Questions on Conflict between Executive & Legislature
Judicial Intervention in Executive & Legislature
All Pardoning Powers
Emergency Powers
Governor - Each and Every Part No Matter What combined with Centre State Relations
Art 142 - Extra Ordinary Power of Supreme Court
😎Extra Concepts
Resolution, Bill, Motion
Bill - Legislative Proposal
Motion - Not Necessarily Put to Vote
Resolution - It is necessarily Put to Vote
Timing of No of Parliamentary Sessions in a Year
Summary
No Mention of How Many Minimum No of Session in a Year in the Constitution
The Constitution Only Says that there shall be no TIME GAP OF NOT MORE THAN 6 Months
As a Conventional Practise 3 Sessions are Done. There is no Mention in the Constitution itself
Budget Session
Monsoon Session
Winter Sessions
Recess : Break between Two Sessions
Adjournment :
Temporary Breaks in Between the Session
Temporary Break : Definite Break
Hour
Days
Week
Done by the Chairman of the House
Adjournment Sine Di :
Temporary Breaks in Between the Session
Temporary Break : Indefinite Break
Presiding Officer will pass adjournment Sine Die, when all the tasks are over
This Serves as an Indication to the President that work of parliament is over, taking cue from Adjournment Sine Di President calls for Prorogation of House
Art 100 Article → When there is No Specific Majority Mentioned ?
Whenever there is no Specific Majority is Mentioned, it has to considered as a Simple Majority
Extra
Parts 5 (Art 52 - Art 151) - The Union
Chapter 1 - Executive (Art 52 - Art 78)
1 President Art 52 - Art 622 Vice President Art 63 - Art 713 President Power Art 72 - Art 734 CoM Art 74 - Art 755 AGI Art 766 Govt Business Art 77- Art 78
Chapter 2 - Parliament (Art 79 - Art 122)Chapter 3 - Legislative Powers of President (Art 123)Chapter 4 - Union Judiciary (Art 124 - Art 147)Chapter 5 - CAG (Art 77 - Art 78)
Part 6 (Art 152 - Art 237) - The States
One Man One Vote One Value - in Lok Sabha Art 143 - President can refer matters to Supreme CourtA Single Constitution Can Amend ?
A Single Constitutional Amendment Act can change and amend many provisions in the constitutions
AFSPA
1. Implemented in Disturbed Area, Army is sent to aid the Civil Administration
Civil Administration Still is in Action
Three National Emergencies in India
1975 - 1976 - Time of Third National Emergency
Principle of Natural Justice
No Person can be the Judge of his own case
Sometimes Judges recuse themselves from hearing some cases
All Parties should be given equal opportunity before passing the order
Supreme Court Process
A Supreme Court Bench can over rule its predecessors Judgement by having a Larger Number of Bench.
Example : Berubari Union Case 7 Judge Bench over rides KBC’s 13 Judge Bench.
Difference Between Referendum & Plebiscite Latest No of Amendments to the Constitution
105th Amendment in January 2022 This Numbering of 1 to 105 is done under Art 368 only
Difference Between Ratification & Notification Joint Sitting of HousesDifference between Commission & Committee
Commission - Independent - External Committee - Sub Set of Parliament - Internal
Types of Bodies
Constitutional
Statutory
Extra Constitutional
Difference Between PIO & NRI Concepts of PIO & OCI
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NOTE : PIO & OCI are NOT CITIZENS OF INDIA
Illegal Migrant
Enters without Legal Document Stays for Extra Time in India w/o Permission
Meaning of Landmark Cases
Those cases which have laid down a new principle for the interpretation of the constitution
ILP - Inner Line Permit System
RR of Rt to Free Movement of Internal Citizens
ILP - Quasi Visa System
Ninth Schedule Amendment is Done by
Special Majority
SC ST Reservation in Lok Sabah for Nomination or Not
Layout of India
Only State to be Demoted from State to UT - Jammu & Kashmir
Daman & Diu and Dadar and Nagar Haveli - have been Combined
In a World of 2 India
You don’t choose the Village Parliament, You are the Village Parliament - Gram Sabha
JUDICIARY - INDEPENDENT & INTEGRATED
Higher Judiciary - Collegium Process, by the Judges for the Judges
Lower Judiciary (From District) - Recruited by State, Interview taken by HC Judges of State
Majorities in Indian Constitution 1
Analogy
Batch of Students on 5 Aug = 100 - ABSOLUTE ATTENDANCE - Which Subject to Start with ?
Withdrawn on 15 Aug = 20
Effective Students = 80 - EFFECTIVE ATTENDANCE - Whether Teacher is Good or Not ?
on 15 Jan 22 = Present in Class = 50 & ask u the question - Can we take 15 minutes Extra
20 - Didn't wanna Answer
30 - Wanted to Answer the Question - SIMPLE - PRESENT & VOTING -
Parliamentary Majority
Basic Rules
Tougher Decision Requires Tougher Majority
Parliamentary Majority is Who to Ask What Questions ?
Usage of Parliamentary Majority in ⇒ Part + Legislature
State - 28 - SLA + SLC
UT -3 - UT LA
Types of Votes
Yes No Abstain - Present & Not Vote
Why Allowed to Not Vote ? Explained by Example
Ex - Voting of Farm Laws in LS
You are a BJP MP from Punjab - You have Objection to Farm Laws
Vote Yes - Proves Loyalty to BJP but Betray the Constituency
Vote No - will uphold the trust of Constituency but BJP will be Betrayed
Hence Solution is - Silence i.e Freedom of Speech is Freedom of Silence
Example : China abstains from many votes in UNSC against Pakistan
Example : Russia abstains from Many votes in UNSC against Iran/Iraq
Imp Note
All these Terms haven’t been used in the Constitution, it only puts down the Procedure
The above terms are our Innovation
Tough 💪 to Easy 😌 - Use More than 1/2 of Figure
Note : Simple is Sub Set of Effective is Sub Set of Absolute Majority
Absolute Majority - Political Majority
Used Only & Only to Establish Majority in Lower Houses,
Hence used in Lok Sabha & Vidhan Sabha
By Extension being used in Local Self Government
Figure : > 1/2 of Total Strength of That Specific House
Used at time of Govt Formation
LOK SABHA
LS : > 1/2 * 545 = 273
545 → 543 ( Anglo Indian Nomination Removed )
Whichever Party gets Majority in LS decide who gets to be the Minister ; that doesn't mean minister will be necessarily from LS it can be from RS
Current Lok Sabha - 17th Lok Sabha 2019-2024
BJP Coalition - NDA National Democratic Alliance but useless due to BJP having absolute majority of 303
Effective Majority - To Remove Presiding Officers of Houses
Presiding Officers
LS - Sp + Dy Sp
SLA - SP + Dy Sp
UT - Sp + Dy Sp
SLC - Sp + Dy Sp
RS
RS - Vice Chaiperson
PARTIALLY REMOVE ONLY → RS - Chairperson ( VP of India
Simple Majority - Jitne Aaye Hain Unse Poocho, Simple
Used in All Houses - LS, RS, SLA, SLC, UT LA
Purposes
Pass Laws which are NOT Constitutional Amendments
For all Parliamentary Motion
No Confidence Motion - Koi Bhi Emotion Motion - Bas Notion Rahe Naam ke Saamne
Hence, Simple Majority - Default Majority - If not mentioned then Default Majority it is
Figure : > 1/2 of Present & Voting
Easy 😄 to Tough 🤯 - Use More than 2/3 of Figure
using a Higher Fraction cause it is Symbolic that it will affect the
Federal Structure
Institutions
CS Impact
Functionaries
Special Majority 1 - Resolution/Permission Majority
Only in RS/SLA
Resolution / Permission Majorities : colloquial term
RS has some special powers like
authorise the parliament to make a law on something that is state list
add or subtract an all india service
certain emergencies to approve
Requesting SLC by State Govt
Figure : > 2/3 of Present & Voting
Special Majority 2 - Only in LS & RS
Only used in LS & RS ; not in State/UT
Usage :
To Pass a Certain Type of Amendment
To Remove Certain Functionaries
SC Judge, HC Judge, CAG etc
Basic Funda : कम से कम इतना वोट तो आना ही चहिये
Figure :
Example to Remove a SC Judge
Example 1 - Judge Not Removed
Only Par LS/RS ( Separately will sit and do ) by Spl Maj 2
LS Total Strength 545
on 15 Jan 2022 : 360 MP Present
Only and Only 270 MP - Have decided to Vote
Other 90 - Abstain
Hence P&V : 270
Special Majority 2 is :
2/3 of P&V = 2/3* 270 = 180
this 180 SHOULD BE > 1/2 of TS of HS (LS) 545
1/2 of 545 - 273
Hence 180 is not greater than 270
Hence it will not pass
Example 2 - Judge Removed
TS LS : 545
MP Present : 500
P&V : 480
Hence > 2/3 of 480 = 320
320 > 1/2 of TS LS
320 > 273
Hence Judge will be removed
Special Majority 3 - Extension to Special Majority 2
Only used for ONE PURPOSE - For a Specific Type of Constitutional Amendment
Step 1
Only & Only in LS & RS
In LS - like Special Majority 2
In RS - like Special Majority 2
Once LS & RS SEPARATELY pass the Bill
This Bill will be sent to all 31 Legislatures
Step 2 - Sate Ratification Process
Across All SLA (28) inc UT W.L (3) = 31 Legislatures
Out of these 31 Legislatures → 1/2 of these 31 i.e 16 Legislatures → will have to pass the same law using simple majority
Special Majority 4 - Only in LS & RS
used in LS & RS Separately ; not in State Legislatures
Usage : Only & Only to remove Hon. President of India
Figure : > 2/3 of that Specific House
LS : > 2/3 of LS 545 = 273
RS : > 2/3 of RS 245 = 123
Majorities in Indian Constitution 2
Majorities
Remarks
Keep in Mind
Simple
1/2 of Present & Voting
How Many Pre & How Many Voting
Absolute
1/2 of Total of House
Remember Total Strength of RS & LS
Effective
1/2 of Effective (Total - Death Disqualify Resign)
How Many Death Disqualify & Reisgned
Amend Constitution
Federal Strcuture NOT Altered NOT <2/3 of P&V) && (1/2+1 of Total Strength of Each HouseFederal Strcuture AlteredNOT <2/3 of P&V) && (1/2+1 of Total Strength of Each House&&>1/2 of State Ratification by Simple Majority
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Impeachment of Prez
NOT <2/3 of P&V
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Type of Majorities in India
Simple Majority
Definition : It is the Majority of Members, Present as well as Voting
You need to Know : How Many PRESENT ? && How Many VOTING ?
Absolute Majority
Definition : It is the Majority of Total Membership of House
Just Half of Total Strength + 1
Effective Majority
Definition : It is the Majority of Effective Membership of the House.
Effective Membership = Total Membership ( Strength of House ) - Vacancies ( Death Disqualify Resign )
Total Membership = Total Strength of House
Vacancies = Death + Disqualification + Resignation
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Absolute = Effective → when Vacancy = 0
Special Majority (4)
Apart from above mentioned Majorities i.e Simple, Absolute & Effective Majorities. All other Majorities are denoted by a Common Name i.e Special Majority
However, There are Different Types of Special Majority under Constitution for Different Purposes
Constitutional Amendment - Has Two Conditions
Condition 1 - There Should be a Yes by - NOT LESS than 2/3rd of Members Present & Voting
Condition 2 - Absolute Majority of the House
Example : Satisfying Both Conditions
Total Members = 543
Present = 500
P&V = 450
in Favour = 300
in Against = 150
Example : Not Satisfying Both Conditions
Total Members = 543
Present = 500
P&V = 300
in Favour = 200
in Against = 100
State Ratification Needed in Amendments which alter the Federal Structures of the Constitution
Impeachment of President - Has One Condition
Condition 1 - Yes by - NOT LESS than 2/3rd of Total Membership of House
Schedule 01 - States & TerritoriesSchedule 02 - List of Allowances Granted to Various Offices within Government of IndiaSchedule 03 - List of Oath for Various Dignitaries Schedule 04 - List of Seats of Rajya Sabha Schedule 05 - Protect Interest of ST Art 244(1)Schedule 06 - Protect Interest of ST Art 244 (2) - North East 4 States Schedule 07 - Union State & Concurrent List
It Provides for 3 Lists
It is example of Division of Powers
The Lists are
Union List - 100 - Power of Parliament
Defence, Home Affairs, Foreign Affairs, Insurance, Banking
State List - 61 - Normally within the Power of State Legislature
Police, Law & Order, Health
Concurrent List - 52 - Concurrent Power of Both Parliament & State Legislature
Forest, Wild Life
Total Subject Matters : 213
Schedule 08 - 22 Scheduled Languages of IndiaSchedule 09 - Safety from Judicial Review of Constitutional Amendments Schedule 10 - Anti Defection Law
Power & Procedure of Parliament to amend the Constitution
Some Important Questions
Who can Introduce a Bill ?
Either a Minister Private Member
Do they have to take Prior Permission from President ?
No Not under Art 368
Do they have to take Permission from Chairman of the House ?
Yes, a Mere Formality
in LS : Speaker
in RS : VP
Can it be Introduced in any house ?
Yes, in either LS or RS
Types of Constitutional Amendments
Bill tries to Amend - Non Federal Provisions - Doesn’t Change Power Balance b/w Centre & State
Procedure
Bill has to be Introduced (by any MP) - Subject Matter is to Amend the Constitution
Introduced in & Passes to → LS/RS || RS/LS
It should gain Special Majority
</ 2/3rd Members Present & Voting
Absolute Majority of House Needed
President has to Give the Assent ( No Veto ) - It was made mandatory for the President to give assent to the bill by 24th CAA, 1971
Bill tries to Amend - Federal Provisions - Changes Power Balance b/w Centre & State
Procedure
Bill has to be Introduced (by any MP) - Subject Matter is to Amend the Constitution
Introduced in & Passes to → LS/RS || RS/LS
It should gain Special Majority in both the Houses Separately
</ 2/3rd Members Present & Voting
Absolute Majority of House Needed
Then it is Sent for Ratification by the State Legislature
<1/2 of State Legislatures Accept it, its Enough
i.e 28 States - 14 State Legislatures have to Ratify them
State Legislature - Simple Majority
State Legislative - Simple Majority
President has to Give the Assent ( No Veto ) - It was made mandatory for the President to give assent to the bill by 24th CAA, 1971
Example
Art 246 Schedule 7
Basics of Polity & Indian Constitution
4 Golden Rules of Indian Polity
1 Democratic Mandate
Mandate : Authority given to a Person to do something
Analogy - Eligibility of Atish Sir to Teach Polity, is the Mandate of Atish Sir
Rule Says
in Order to Perform any advanced or higher democratic function one must have some form (direct or indirect) of a Democratic Mandate - Corollary also true.
D(f) → D(m) && Corollary 0> XD(f)→ XD(m)
Examples
to be a Minister you have to be a MP - Simplest Application D(m)
Either at time of becoming MP
but within 6 months you have to be a MP either e/n && either in LS (IDD DE) / RS (IDD IDE)
Example : Manmohan Singh, Arun Jaitley, S Jayshankar
Rajya Sabha MP → elected by respective SLA → that SLA - SLA(MLA)e must be elected && SLA(MLA)n nominated not allowed
Prez Elected by → (LS + RS + SLA)e → Nominated Members of RS & SLA & LS → DON’T Participate in a Presidential Election
Ordinance Powers of Centre(Art 123) and State(Art 213)
Ordinance is a Temporary Law drafted by Council of Minister Directly Sent to President for Signature when Parliament is not in Session
The Term “Temporary Law” is the Application of Democratic Mandate
CoM - Draft the Ordinance - in Absence of Parliament, CoM is the best Next Mandate
President - because he has been democratically elected by LS & RS & SLA
Advice & Suggestion given by Bodies like CAG etc → are NOT Binding → cuz they are appointed authority and not elected → Hence don’t have the mandate
Even Recommendation of Parliamentary Committee → is NOT Binding → cuz it will violate the democratic mandate of Parliament
2 Federal Balance
About Centre and State
Analogy
Family Dynamics → Younger and Elder Sibling → Indian Family Scenarios ELDER SIBLING (CENTRE) have the FR to Dominate YOUNGER SIBLINGS (State)
Make a Face && Threaten to Parents → Toffee to make feel good → Superficial Condolence → Toffee Wrapper has Stones 😂
Steps
Step 1 : C > S ( Centre will do something to overpower the States ) Step 2 : Candy to States to Compensate the States Step 3 : Hollow Candy (Hollow Appeasement)
Examples - States ka Katna Tay Hai
Territory
C>S → All Territorial Rules power are with Centre and State has no say in the matter whatsoever
Candy → President refers the Law to concerned State Legislature for their opinion
Hollow Candy → Centre has to ask, but not bind to agree or implement their view
State Legislative Council
C>S → Parliament authorises the creation of SLC in the state
Candy → Parliament can only create SLC, if State SLA has requested for a SLC (Special Majority 2)
Hollow Candy → Just because SLA has asked, C will not give SLC to S.
Ex : Sikkim asking for SLC since last 2 decades
Ex : WB Bengal asking for SLC for safe passage for key functionaries
All India Services - IAS + IPS + IFoS
C>S
Recruited and Removed by Centre but work for States & States pay for your training
States didn't want this because they had their PSC with them
Recruiting a Bunch of Officers and compulsory sending them to the states ; states don’t have the choice
Candy → Increase / Decrease of AIS, LS can do it, but RS has to authorise LS for the same ( as RS is representative of states) & this will affect States as well
Hollow Candy → Just because RS has said yes, its not sure if LS will accept it or pass it.
Appointment of Governor
C>S : Recruited by (C) && Removed by (C) but Governor HAS to work at (S)
Candy → as per constitution Governor has more discretionary powers than President
Hollow Candy → Governor has been appointed by the president on advice of CoM but whenever governor uses his discretionary power against the Centre ; centre by means of president can remove him.
Prelude to 3 & 4
Everybody believes that they are powerful - Origin of Separation of Powers (SOP)
3 Separation of Powers (2)
Inter SOP - Between L ↔ E ↔ J
Conduct of Supreme Court Judge cannot be discussed on the floor of parliament
Intra SOP - Inside LEJ → L (RS/LS) && E (EE-m && PE-b) && J (SC HC LC)
Except for Ministers, LS & RS MP can only sit in the houses they belong
4 Checks & Balances (2)
Inter C&B - Between L ↔ E ↔ J
Supreme Court Judge can be removed only by Parliament
Intra C&B - Inside LEJ → L (RS/LS) && E (EE-m && PE-b) && J (SC HC LC)
Judgement of SC is binding on all Lower Courts
What is a Constitution
Countries, Political Parties, Corporates have Constitution
Constituion is Necessary but not Sufficient
A Constitution is the most basic but highest Law of the Land. All the Other Laws in the Country in order to be valid must be as per constitution.
A Constitution provides a framework for the Governance of the Country. It gives the structure of State, Its organs of state, their Functions, Powers and Limitation on these powers.
A Constitution Establishes a Legal Relationship called Citizenship between State and Its People. A Democractic Constitution protects the Rights of Minorities. A Constitution for countries Like India is not just a Legal Document but also a Socio Economic Document because it contains the Values, Dreams and Aspiration of People of India
A Constitution Ensures that the basic values of a country are not threatened in moments of temporary passion.
False - A & D && True - B & C
True - A B D E && False - C
Does having a Constitution Ensure Constitutionalism ?
It is more difficult to run a constitution than to frame one. Constitutionalism refers to the degree or extent to which a country is governed according to its constitution.
A country may have a written constitution but little constitutionlaism where as a country with unwritten constitution may have high constitutionalism
Written Constitution & Unwritten Constitution
An Unwritten Constitution is one whose provisions have not been codified into a Single Legal Document.
Example : UK, Israel, Newzeland
In India SC and HC by their power of Judicial Review Ensure that India has high levels of constitutioanlism
Judicial Review (from USA)
In India the Power of Judicical Review is Availaible Implicitly to SC in Art 32 and to HC under Art 226 but not to Sub Ordinate Courts
Power of Judicial Review Means the Power of Court (SC&HC) to declare any law policy or order (whether central or state) as null and void if it contravenes any provision of constitution to the extent of such contravention ( Jis Had Tak Galat Hai Sirf us had tak, not poora)
SC & HC → Can Declare Null and Void of both Parliament and State. Can be done Simultaneously in Both Together like one in CG and One in Delhi in SC.
When the court declares a Law as Null and Void it does not suggest any alternative or improvement
While Exersicing Power of Judicial Review the Courts Follow Following Principals.
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Importance of Comprehension
Woman without her man, is nothing.
Woman without her, man is nothing.
Principal 1
If a Law or Policy has Two Interpretations such that First Interpretation makes it constitutionally valid and the other makes it invalid, Judiciary Shall Consider first Interpretation and declare the Law or Policy as Valid
Thus the Presumption is in the Favour of Constitutionality
Principal 2
👨🏫
1. A Proposed Law is a Bill
2. A Passed and Assented(Prez) Bill is a Act
3. Acts come into force in India by Three Ways (Direct Assent, After “x” no of days, on the date specified in the Gazette of India)
Manmohan Singh in power passed a Act called Whistle Blowers Protection Act, it read that it wil be implemented as in the date specified by Govt of India. Modi hasnt implemented yet
👨🏫
Gazette of Govt of India is like a Magazine of Govt of India
Judicial Review is not applied on the Laws and Rules which are not Operational
Principal 3
👨🏫
Suo Motu - Khud Se - By Self
Example: In IPC, 1860 && Sec 375, Sec 376
Generally SC or HC examine a Law or Policy for its constitutionality only on a petition or reference filed by someone and not Suo Motu
The Power of Judicial Review is Considered to be most Significant Power of Supreme Court w/o which court will not Enjoy Status and Prestige that it currently enjoys
Considering its importance SC decalred Power of Judicial Review as Part of Basic Structure of Constitution
What is a State ?
A State is a Poiticial Legal Term which refers to a defines Territory, Population, Govt and is Sovereign
The Terms Govt and State Should not be used Interchangebly. Govt is one of the components of State. because Govt is the Instrument to Govern the State. State is Permanent while Govt is Sub to Change.
Difference Between Nation and State from International Relatiosn
Democracy
Cracy - Rule & Demo - People or Population
It refers to a Political System in which people practise self rule. In Modern times, such a direct democracy is not practically feasible and therefore indirect or Representative Democracy is practised
In this system, People elect their reprensetatives after every few years and these representatives then govern the country
Merits of Democracy
Citizens elect their Government.
Citizens can change governments if unhappy with gocts policies, actions or inactions.
Govt is accountable to the people.
Govt works for welfare of people and hence a democratic govt is also called as a Welfare Govts
Citizens Enjoy Basic Rights and Liberties
Demerits of Democracy
Political & Policy Instability
Good and Bold but Unpopular Decision may not be taken. Ex: Reforming Reservation Policy is needed in India
Slow Decision Making
Minorities May be Ignored
In Democracy, there is no assurance that best persons come to power because citizens do not caste vote only on the grounds of merit
Democracy often goves Birth to Demagogues
(A Political Leader is not Necessarily Leader but is good in Mobilising Emotions)
Theory of Separation of Power
Was Given by a French Philosophers Montesquieu
This Theory Proposes that the Powers of State should be divided into three distincy and separte organs
The Objective of the Theory is to Prevent Concentration of Powers and to prevent the state from working in Authortitarian or Dictatorial Manner
US was the first constitution to adopt this Theory
Constitution of India has also adopted this theory. However India being a Parliamentary Democracy this theory has not been adopted completely like that of US Constitution (Presidential System)
Art 50 (DPSP), which requires the state to separate Judicial Functions from Executive Office. Accordingly Parliament Enacted CrPC (Criminal Procedure Code), 1973 to separate Judicial Functions from District Officers.
However, District Officers still enjoy certain executive magisterial powers like
Insepction of Jail
Issuing Prhobitoty Orders under Sec 144 of CrPC
Granting Parole to Prisoners (Parole is Temporary Leave from Jail)
Doctrine of Checks and Balances
This concept is a Natural Extension of Concept of Spearation of Powers. It says that every organ of state must exersice, some checks and balances over other two organs of state
This ensures a Balance of Powers amongst three organs and that none of the organ oversteps its constitutional limits
Federalism
It is a Political System in which the powers of state are divided into two levels of govt.
First Level - Union / Central / Federal / National
Second Level - State / Region / Province / Canton (Switezerland)
Federalism is necessary in countries which are large and diverse, it allows people of different communities to stay together as a nation without the fear of one culture being imposed on others
Features of Federalism Are
Govt at Atleast Two Levels
Division of Powers and Functions between Levels of Government (Union List, State List, Concurrent List)
Division of Revenue and Taxation Powers
Independent Judiciary for the 29 states to resolve dispute between (State and State or State and Centre)
Apart from Lower House or Lok Sabha. There should be a Bi Cameralism → Upper House - Rajya Sabha (Ind) && Senate (USA) → For States Voice
A Written and Rigid Constitution
Federal Provisions cannot be amended by one level of government unilaterally
Constittuion of India does not use the word Federalism in Constitution, it is because of Centrifugal Tendencies Prevailing in Some parts of India at the Time of Independence
Art 1 Describes India i.e Bharat as a Union of States rather than Federation of States
Regulating Act 1773 - COD & Central Administration
Philosophical
The first step towards Central administration
Political and administrative functions of East India Company was regulated, British Crown interference started
To regulate the administration of the East India Company
Features
Governor of Bengal (Warren Hastings) was made governor-general of Bengal +
4 members executive Council
The Governor of Bombay and governor of Madras were made subordinate to him
Supreme Court established in 1774 in Calcutta = 1 Chief Judge + 3 Judges
The Court of Directors looked after revenue, civil, military affairs and reported to British Parliament/crown/government
Ban on bribe and personal trade by East India Company officials
Amending Act of 1781 - SC Power
Supreme Court Jurisdiction
Supreme Court jurisdiction was removed
ON
Governor general + his Council (in official capacity)
Servants of East India Company
FROM
Revenue matters
Collection of revenue
Supreme Court jurisdiction remained in
Inhabitants of Calcutta
Muslims Sharia law
Hindu Hindu law
Governor General Council Function Changes
Gov Gen of Ben + Council (4) - GG Council →
make laws
Hear Appeal of provincial courts
Pitt's India Act 1784 - Dual Government
Dual Government was formed
Commercial matters - Court of directors (COD)Political matters - Board of Control (BOC) -
supervise and direct CMR affairs
First time Sovereign authority of crown over EIC
Act of 1786
Governor general had the power to override decision of counsel in special cases with his responsibility
He was made the commander in chief of East India Company Army
Charter Act of 1793 - First Charter && GG Structure
Governor generals overriding Council power extended
Future governor general
Governor of other Presidency
Governor general of Bengal was given more power over governor of Bombay and Madras
Trade Monopoly was extended for 20 years
Commander in chief was not from governor general Council
Board of Control fees and salary was to be given from Indian revenue
Charter Act of 1813 - Transitionary Act && Ban on Monopoly
Trade Monopoly in India ended
Tea and Trade Monopoly with China remained
Sovereignty of British Crown over EIC Territory
Christian Missionary promoted to educate and awaken locals
Western education was introduced
Local government could authorise
Impose tax
Punish for non collection of taxes
Charter Act of 1833
It was the first step towards centralisation
Governor general of Bengal was made
Governor General of India - William Bentick
Was given
Civil military power
Executive legislative power
Of legislative power of Governor General of Bombay and Madras was reduced
Before and after charter act 1833
Before - regulation
After - ATS
Company's commercial operation was ceased
company was only administrative body now
Civil services was made open to Indians but COD negative
Charter act of 1853
Governor general Council function was separated into
Legislative
6 Legislative Councillors Appointed
4 Indians From - Madras Bombay Agra Calcutta
2 Foreigners
Indian Central Legislative Council similar to British parliament in London was made
Executive
Civil services was made open to Indians by free and fair competition by Recommendation of Macaulay committee of 1854
Companies rule extended by British Crown until further notice
Government of India Act 1858
Important points to note
Government act
Start of crown rule
Just after the revolt of 1857
Companies power over (civil military revenue) was removed, now it would be in the name of Her Majesty
Governor general of India was made viceroy of India → Lord Canning
Secretary of state was sent to India as
Indian minister of parliament of London
He was a member of British cabinet
He was answerable to British Parliament
SOS had his own 15 member Council
Dual government was ended
Sequence of GOI Act 1858, 1919, 1935, Indian Council Act 1861
Viceroy nominated Indians to viceroys Legislative Council, Indian inclusion was intended after revolt of 1857
1862
Raja of Banaras
Raja of Patiala
Sir Dinkar Rao
Decentralisation took place
Legislative power of Bombay Madras was restored
Provincial Legislative Council was created
Bengal
Punjab
NWFP
Portfolio system was introduced in Viceroy council in 1859
Ordinance power by Viceroy without concurrence of counsel was allowed
Sequence of ICA 1861 of, 1892, 1909 Indian Council Act 1892
Increased non official members in
in Central and provincial legislative councils
but not in majority
Rights of Legislative Council was increased like
budget decision
they could ask question but not reject it
Nomination to Legislative Council was introduced
At Centre - by viceroy of India
by recommendation of
Bombay Chamber of Commerce
provincial Legislative Council of state governments
At state level by
district board
University and trade Association
Zamindar
noncommercial Chambers
Indirect election was introduced to fill seats of centre and state legislative council
Indian Council Act 1909 - Morley Minto reforms
Background
Morley was Secretary of state
Minto was viceroy of India
Size of Legislative Council was increased
Centre 16 to 60
State - vary from state to state
Changes in Legislative Council
Central - retained official majority
Provincial - non official majority was allowed
Changes in Powers of Legislative Council
Allowed supplementary question
Allowed to move resolution on budget
Indians in viceroy's executive Council was held at
first person to be added was
Satyendra Prasad Sinha as law member
Separate electorate was introduced, this had two features
Communal electorate
Hence Minto is called father of communal electorate
Communal electorate meant Muslim member of Council by Muslim voters
This legalised communalism
Government of India Act 1919 - Montague Chelmsford reform
Background
SOS - Montague
Viceroy - Transport
It was introduced on 20 August 1917
Relaxed Central Control over Provinces
Separate and Demarcated Subjects and Budget
DYARCHY - Centre & Province could make laws on their subjects
Central
Central List - GG + Executive Council
Provincial
Transferred → Gov + Minister of LC
Reserved → Gov + Executive Council of Governor
Bi-Cameralism was introduced - Majority Elected + Some Nominated
Upper House - Legislative Assembly
Lower House - Council of States
Limited Franchise on Tax Education & Property
In viceroy's executive Council 26 Indian compulsory other than commander-in-chief
Communal electorate was extended to 6 Indian Christians anglo-indians and Europeans
Office of high Commissioner of India in London was to share responsibility of SOS
Public Service Commission in 1926 was established to recruit civil servants
Statutory Commission to review working of government every 10 years was introduced
Simon Comission 1927
Background
7 member committee under Sir John Simon came to India with no Indian representation
Submitted report in 1930
it was by quoted by all the parties in India
Recommendations of Simon Commission are
Abolition of dyarchy
Extension of and establishment of responsible government in provinces
Establishment of Federation of British government and state (to appease kings and Queens)
Continuation of separate and communal electorate
Also called
It is called white paper on constitutional reforms - which is a joint select committee of British Parliament
Lead to Round table conference between
British Government
British India
princely states
Most of its recommendation were implemented in Government of India Act 1935
Communal award 1932
At this time ransom McDonald was the British pm
It was a scheme for representation of minorities
Provided for separate electorate for
Muslim Sikh Indian Christian
Anglo Indian and European
Depressed classes ( SC / ST )
Gandhi was against it
Took a Fast in Yerwada jail Pune
Led to Poona pact between Gandhi and Ambedkar
Poona pact allowed to retain Hindu electorate
reserved not separated seats to depressed class
This was the starting of reservation in India
Government of India Act 1935
Background
It was just after World War 2 in 1939
Mini constitution of India
321 section and tenth scandals
It provided for
All India Federation = provinces && princely state
Power between centre and units (provinces && princely state) was divided into three part
Federal 59
Provincial 54
Concurrent 36
Power only with Viceroy
Federation was abolished the princely states didn't agree
Provincial autonomy was given by abolishment of dyarchy
State would be autonomous units of Administration
Governor woodwork with the advice of ministers of state legislature
this was the responsible government suggested in Simon Commission of 1927
Bi Cameralism in States
Dyarchy at centre was launched but never started
Federal subject for to be divided into
reserved subjects and transferred subjects
Communal representation extended from all minorities and SC to women labour workers
SOS’s Council of India abolished which was established by government of India Act 1858
SOS was provided with team of Advisors
UAF extended to 10% of total population
RBI was given control over currency and credit
3 tier civil services was established
Centre - Federal Public Service Commission
2 or More States - joint PSC
1 State - Provincial PSC
Federal Court was established in 1937
Indian Independence Act of 1947
Background
Constant Assembly was established in 1946
saying that constitution kind applied to area not willing to accept
On 20th February 1947
British pm Clement attlee said,
British rule would end in India by June 30 1948
Muslim League protested in favour of partition
Viceroy of India Lord Mountbatten resolve this by
Mountbatten plan which was implemented by independence of India Act 1947
Features
British rule ends in India
India Pakistan would be independent sovereign countries from 15 August 1947
Dominion status was given that is right to secede or stay from Commonwealth
India was divided into two Dominions India and Pakistan
Office of Viceroy was abolished
governor general was appointed by British king on advice of dominance cabinet
Mountbatten was first Governor General of India
Secretary of state of India abolished
secretary of state of Commonwealth affairs started
They both had same work
Constituent assembly of both the Nation was established to
Enact any Constitution that they make
Repeal any act of British including Indian Independence Act of 1947
New Constitution was formed in India, constant assembly would do to work
Legislate themselves for territories
Headed by GV Mavalankar
Make constitution
Headed by Rajendra Prasad
British rule ended in India → lapse of British Paramountcy,
Britishers drop the title of king or emperor of India from Royal titles
Princely states could join any
India
Pak
or be Independent
Indian Political System
Meaning of Political System
India being a democracy is an aspect of our political system
Political Systems - A Formal / Legal / Constitutional Arrangement that constitutes the Government
It also deals with Relationship of Government with Organs of the Country
How is Government Formed in India ?
What are the Parts of Indian Parliament ?
Lok Sabha - House of People - Direct Election @ UAF - 543 Seats
Rajya Sabha - Council of States - 243 Seats
Entire Country is divided into ?
Entire Country i.e 28 States & 7 UT have been divided into No of Territorial States
What is UAF ?
Universal Adult Franchise
Anyone who has attained the age of 18 has the right to vote
Which is the Latets Parliament and Its Details ?
17th Lok Sabha Election (Popular Choice) : 2019 Elections
Congress - Coalition - UPA - United Progressive Alliance
BJP - Coalition - NDA - National Democratic Alliance
Key Features of Indian Political System ? (6)
💡
De PD SOP DOP FSUB IIJ
1 Democracy
Meaning
Democracy is a Government which is elected for the people, of the people, by the people
Means Rule of People by Representative
Indian Democracy is Not Direct but Indirect Democracy
India was chosen to be a Indirect Democracy because
Huge Size of Nation
Administrative Convenience
Three Important Features for a Country to be called a Democracy ?
UAF
Universal Adult Franchise
Every Citizen on Attaining 18 years of age shall have the right to vote without any discrimination
Free & Fair Elections
Process in which conduct of election is free from any from of corrupt practise & also provides an equal platform for all the candidates contesting the elections
Ensured by Independent Authority to Conduct Elections i.e Election Commission of India
Periodic & Regular Elections
It also means that the elections happen at a regular interval as prescribed in the constitution
In India normally the elections to both Parliament ( Lok Sabha ) & State Legislative Assembly happens every 5 Years
2 Parliamentary Democracy
CRUX - PARLIAMENTARY DEMOCRACY
Legitimacy of Executive (CoM + PM) is constantly & regularly accountable to Legislature (Lok Sabha && State Assembly)
Continuous Accountability of Executive(PM/CM && CoM) to Legislature - They should always have Majority in Lok Sabha / State Assembly
Example : India
CRUX - PRESIDENTIAL DEMOCRACY
Process of Election in USA
Electoral Collage : 100 Members will be elected by the People
This Electoral Collage will elect the President
USA Parliament is called as Congress
House of Representatives - Lower House or the Lok Sabha
Senate - Upper House or the Rajya Sabha
Executive (President) is NOT accountable (meaning : to not have majority) to Legislature
Once President is Elected, President has no Accountability to the Legislature
Example : USA
💡
Meaning of being “Accountable” = To Have Majority In the House
DEBATE IN CONSTITUENT ASSEMBLY
Majority Chose Parliamentary Democracy because it is more accountable to the People
3 Separation of Powers - Inter Body - { Division between LEJ }
Prelude
Essential Feature of Indian Political System
Maxim : Power Corrupts but Absolute Power Corrupts Absolutely
Separation of Powers
Implemented by Checks & Balance of System
Three Important Systems
Legislature - Making of Law
Centre : Parliament
State : State Legislature
Union Territory
With & w/o Legislature - President
Executive - Implementation of Law
Centre : Union Executive
Political / Temporary Executive : Pres + VP + PM + CoM
Permanent Executive : Central Deputed Bureaucrats
State : State Executive
Political / Temporary Executive : Gov + CM + CoM
Permanent Executive : State Deputed Bureaucrats
Judiciary - Interpretation of Law
Centre : Supreme Court
State : High Court & Sub Ordinate Courts
Power of Judicial Review & Interpretation
If Judges Make Mistake : Parliament can remove Judges
SOP & DOP Mind Map
4 Division of Powers - Intra Body - { Division within LEJ }
Prelude
Also Called - Federal Political System or Decentralisation ;
First Time in Government of India Act 1935
Any Federal System in the World Follows : Division of Powers
Federal Political System : DOP b/w C & S
Multiple Levels of Government
Union Government
State Government
Panchayati Raj
Constitution DOP b/w C&S
Central Govt - Unity Needed
Defence
Insurance
Banking
Citizenship
State Govt - Regional Diversity Needed
Agriculture
Health
Sanitation
Police
5 Federal System with Unitary Bias
What is Federalism ?
Powers of the Government are divided at multiple levels- Centre, States
Union has its Legislature (Parliament), Executive(Centre & State)(Permanenet & Temporary)
Federal Political System is one which has a division of Power between Centre & State
What are the Essential Features of Federalism ?
Dual Government
Distribution of Powers
Supremacy of Constitution
Rigidity of Constitution
Independent Judiciary
Where is Federalism Suitable for ?
Federalism is suitable for a plural society with multiple cultures and multiple language speaking populations.
It is more democratic in nature and facilitates people participation
Checks the powers of the government—checks abuse of power.
Federal Government can absorb some of the costs of new technology or programs that would have to be absorbed completely by member units in a unitary system.
Is India a Federal Polity ?
Why India Chose a Federalism with Unitary Bias ?
Federal System - To Accommodate Diversity
Unitary Bias - To Prevent Balkanisation of India
Federalism with Unitary Bias is Called ?
Federal System with Unitary Bias
Federation with Centralising Tendency
Quasi Federal System - by K C Wheare
Ambedkars View on Indian Federalism
6 Independent & Integrated Judiciary
Independent Judiciary
Enough Mechanism in Constitution that insulate Judiciary from Influence of Legislature & Executive
Once Judges are appointed it becomes extremely difficult for legislature & executive to remove a supreme court judge
Since Constitution has been made, no judge has been removed
Integrated Judiciary
Judgement Given by SC is binding upon all HC & Sub Ordinate Courts
Judgement Given by HC is binding upon all Sub Ordinate Courts of that state
Judgement by a HC is not binding on other HC, It does not have a Binding Effect but a Persuasive Effect and a Precedence Value
Extra Judicial & Quasi Judicial Bodies
Tribunals with some role of Executive
Indian Constitution
Constitution
Why do we need to have a Constitution ? - BR, SoG, Lim of Pow, Obj Ach
Prelude
To Accommodate Diversity - Different Aspirations & Demands
To Solve the Conflict of Interests
Basic Rules by Constitution - to MINIMISE the conflicts in Society
Basic Rules Facilitating Co Ordination amongst People
Basic Rules : Doesn’t Have minute Information of All Small Rules
Example : Constitution Provides for Safeguarding rights of Minority & oppressed class, each and every sections of society is protected
Define Structure of Government
by Democracy implemented by Elections
India is a Parliamentary Democracy
Not a Presidential Democracy
Limitation of Powers
to prevent the Government to become Arbitrary
Meaning of Arbitrary : not seeming to be based on any reason or plan and sometimes seeming unfair
How ? : by Conferring rights on the people → Especially Fundamental Rights
Enables the State to Achieve its objectives
How do we define the Constitution ?
Definition
Constitution is the Fundamental Law of the Country which lays down the Basic Structure of the Political System having a special sanctity under which its people are to be governed.
Image of Constitution
Why is it called a Fundamental Law or Supreme Law ?
Other Laws in the Country have to be in Congruence or Consonance with the Fundamental Laws
Other Laws - Ordinary Laws - can be made by
Parliament
State Legislature
Why Constitution Chose Democracy ?
The Welfare of People is Supreme
People Should be Centric in the Governance
What is the Definition of State ?
An Independent political entity occupying a defined territory, the members of which are united together for the purpose of resisting external force and preservation of internal order and the state needs certain instruments or organs to carry out its function
What are the Major Functions of Indian Constitution ?
To provide a set of basic rules that allow for minimal coordination amongst members of a society
To define who has powers to make laws and enforce them i.e organizational framework
To set some limits on what the State can impose on its citizens
Reflects the ideology and philosophy of a Nation-State
Provide for its own amendment provisions
How the success of the constitution could be ensured?
A Constitution Should be drawn by those people who have credibility, are popular, and represent various sections of society
A law that has something for everyone
Should have constitutionalism
Should be followed and respected
Should be rigid yet flexible
What is Constitutionalism ?
Constitutionalism is specific limitations on general State powers to prevent the exercise of arbitrary decision-making e.g. Gaddaffi constitution did not have constitutionalism.
To ensure the success of democracy it is important that there is a limitation on the powers of the state
Limitation on the Arbitrary Action of State & Tyranny of Executive
How does Rule of Law Help in Ensuring Constitutionalism ?
For constitutionalism, the Constitution should be adhered to and followed
The primary meaning of the term rule of law is that everything must be done according to law
Two principles
Everyone should be equal in the eyes of law
No one is above the law
Salient Features of Indian Constitution (9)
1 Written Constitution
Written Constitution
What are the Characteristics of a Written Constitution ?
Codified into a Single Document ( Can be in more than one Document )
But whatever has been codified, only that will be called and used as a Constitution ; nothing else than that
there is a clear distinction between constitutional text and ordinary laws ( IPC, CrPC, Consumer Protection, Motor Vehicles Act)
There is a Specific time of Enactment and Adoption & Changes Organically with time but not so frequently ( Combination of Rigidity & Flexibility )
Example : India
Indian constitution is the lengthiest constitution
Commencement : 395 Art ; 22 Parts ; 8 Schedules
Currently : 465 Art ; 25 Parts ; 12 Schedules
Example : USA
Un Written
What are the Characteristics of a UnWritten Constitution ?
It is codified and written but there is no separate document as a constitution
All the Laws Passed by Legislature, Conventions Followed by Country & Judgements Passed by Supreme Court becomes a part of constitution
There is no distinction between Constitution & Ordinary Laws
There is no Specific Time of Enactment and Adoption and It involves Changes but Very frequent ones
Example : British, Israel & Newzeland
2 Drawn from Multiple Sources
Summary
Details
Indian constitution was made after deep study of various existing constitutions of the world.
Criticism that it is a borrowed constitution. But Ambedkar refuted this statement. becasue Indian constitution was made at a time when allmost many countried had their own constitution
USA
Fundamental Rights, Concept of federalism, Independent Judicial system, bicameralism
British
Parliamentary democracy, Westminster model of Government, the idea of single citizenship, the institution of the speaker, the concept of rule of law.
German constitution
Emergency provisions.
South Africa
Procedure for amendment of Indian constitution, Election of Rajya Sabha members
Irish Constitution
DPSP, Nomination of members to Rajya Sabha.
Soviet Union
Fundamental Duties
Australia
Free commerce and trade between the states, Article 253- the power of the Union to legislate on state subject in order to keep up India’s commitment at the international level.
France
values of liberty, equality & fraternity.
Canada
A form of federalism(strong centre), the concept of residuary powers with the centre.
3 Lengthiest Constitution of the World
Indias Constitution is the Lenghtiest Constitution of the World
Single constitution for the centre and states
Huge diversity is prevalent
Principles of administration have also been provided in the Indian constitution.
Positive directions have been given to the state
Facts
Indian constitution is the lengthiest constitution
Commencement : 395 Art ; 22 Parts ; 8 Schedules
Currently : 465 Art ; 25 Parts ; 12 Schedules
3 Rigid & Flexible
How Easy / Difficult is it to change/amend a constitution
To Change / Amend : Article 368
Latest Amendment : 105th CAA occurred in 2022
Contrary to this USA Constitution has been Amended 33 times only
4 Fundamental Rights Part 3 12-35
Whats is the Meaning of the Word Rights ?
Rights are Entitlement, Privileges or Normative Fundamental Rules of what is allowed of people
Why are the Rights Given ?
Prevents Arbitrary Actions by State - Majorly Against the State
Prevents Arbitrary Action by Citizen as well - Very Less are Against the State
What is the Top Most Rights ?
Fundamental Right is the top most right of India under Part 3 ( Art12 - Art35) of the constitution
How are they Justiciable ?
They are Justiciable in
Supreme Court under Art 32
Difference : 194
High Court under Art 226
5 DPSP Part 4 36-51
Directive means Guidelines
Present Under Part - IV (Art 36 - Art 51 )
These Guidelines will lead to Welfare of State
It has been Purposefully made Non Justiciable
Moral Obligation - Duties of State
6 Fundamental Duties Part 4 A 51 A
Mentioned in Part 4 A of the Constitution
Art 51 A deals with it
There are in total 11 Duties
10th FD were added by 42nd CAA, 1976 under PM Indira Gandhi ; It was time of Emergency in India
11th FD was added by 86th CAA of 2003
These FD are Not Punishable
These are moral obligations to citizens i.e., Duties of Citizens
7 Secular State
In India, the State will never Identify itself with any one particular region
The State will promote & provide equal opportunity for all religion
State is Non Religious & State Promotes All Religions Equally & there shall be no Discrimination on the basis of Religion
Concept of Positive Secularism
8 Single Citizenship
Which are the Countries that Allow Dual Citizenship
Constituent Assembly Debated, Dual Citizenship will go against Fraternity & Brotherhood
Local Identity of State would prevail over National Identity
Idea of Single citizenship is to promote Unity and Integrity of Nation
9 UAF
Whats is the Meaning of Franchise ?
Franchise Means : the right to vote in elections
It is Essence of Democracy, There shall be no discrimination on any basis
Every Citizen above the Age of 18 has the Right to Vote
Right to Vote was mentioned in Articles - 325 & 326
At the commencement of Constitution, the age for UAF was 21 years
With 61st CAA, 1988 , the age was reduced to 18 years
10 Federal Government
Whats is Federalism ?
Two or more levels of Government- Central level and state level
Both the Union and State derive power from constitution
Presidential form of government- Eg: USA
Parliamentary government- Westminster Model- Eg: UK & India
Essential Features
Dual Government
Distribution of Powers- Separate spheres of functioning. Eg: 7 Schedule-Union List, State List, Concurrent list.
Residuary subject-In India more power to the centre
The supremacy of the constitution
The rigidity of the constitution
Independent judiciary
Benefits of federalism
Federalism is suitable for a plural society with multiple cultures and multiple language speaking populations.
It is more democratic in nature and facilitates people participation
Checks the powers of the government—checks abuse of power.
Federal Government can absorb some of the costs of new technology or programs that would have to be absorbed completely by member units in a unitary system.
Is India a federal polity?
India has a dual government(division of powers), Supremacy of the constitution, Independent judiciary, etc.
In matters of federalism Indian constitution is rigid, but flexible in most others.
Reasons for criticizing India's federal setup:
The powers of the union are more than the state in the legislative domain.
In certain exceptional instances, the Union can legislate on state subjects as well.
Article 356- Gives power to the centre to dismiss the state government
Finance commission- Appointment made by the Central government
Why choose a federal setup with strong unitary bias?
Secessionist tendencies at the time of independence made it imperative to have a strong centre to maintain the unity and integrity of the country.
External threats. Eg: Pakistan
We require uniformity in policies to address major issues facing the country. Eg: Poverty, literacy, etc.
11 Responsible Government
Executives are responsible to the legislature
12 Independent & Integrated Judiciary
India is a Unique Example of :
”Reconciliation of written constitution with parliamentary sovereignty”
Salient Feature of Indian Constitution from Laxmikant
Constituent Assembly
Facts from Laxmikant - PDF Form
Introduction
Cabinet Mission Plan ( Pethick Lawrence, Stafford Cripps, A V Alexander )
Pethick - Minister in British Parliament
Chronology
First Sitting : 9th December 1946
Objectives Resolution : 13th December, 1946
Constitution Ready by : 26th November 1949
Came into Existence on : 26th January 1950
Composition & Scheme
British Provinces (292) →Indirect Elections from Provincial Legislature
Limited Adult Franchise ( Education Status, Tax Paying Capability, Property Holding)
💡
Limited Franchise : T E P → Tax Education Property
Princely States (93)→ Nomination by Head of Princely States
Commisioner Led Provinces (4)→ Nomination by the Commissioner
Total Seats = 389
What will be Basis for Seat Allocation Basis ?
Representation in Proportion to their Population ( General Community / Muslims / Sikhs )
For 1 Million Population i.e 10 Lac People : 1 Representation
Members were chosen indirectly by the members of the Provincial Legislative Assemblies
Enactment & Enforcement
Objectives Resolution : Dec 13, 1946
Moved by Jawaharlal Nehru
Need : To provide framework/guideline/limits on which constitution of India should be made
It was the expression to the ideals and aspirations of the people of India and so the objectives of the Constitution.
Later became Preamble of India
Debates on
Each & Every Fundamental Rights
Committees
Drafting Committee
Facts
Articles : 395
Parts : 22
Schedules : 8
This body continued till the first Parliament was elected in India
The Preamble
Summary from Laxmikant
The Preamble
Also Called & By
To Summarise Philosophical Aspects
Identity Card of Constitution
Supreme Court
Key to unravel the Minds of Makers of Constitution
Preface of the Constitution
We the People of India
Source of Authority
Characteristics of State / Nature of Indian State
Sovereign
Full Control over the people, property & territory and also free to conduct internal & external affairs
India can chose its friends
Is full sovereignty possible in a Globalised World ?
Theoretically Yes
Practically No
Socialist
Whats is Socialism ?
Social Ownership of Property & against private ownership
Ownership of Production by the Government, so that the redistribution is easy
What type of Socialism is followed by India ?
India follows Democratic Socialism i.e Mid Way
Essential for majority of masses especially poor
State Holds & Provides for
Example : Railways
Not Essential or may be used by the Rich
State Privatises & Promotes Public Sphere of PPE
Example : Air India
What are the Pro Socialist provision in Constitution & Indian Polity ?
Public Sector Union
Nationalisation of Banks
Social Sector Schemes
Abolition of Privy Purse by Indira
Why was a Socialistic Nature Adopted for the Constitution ?
Economic Inequality
Land Ownership Inequality
to promote Egalitarianism
What was the view of Ambedkar on putting the word Socialist in the Preamble ?
DR B R Ambedkar opposed the introduction of this word in the constitution
He said so because
It is today in 1947 that due to inequality socialism appears good
but tomorrow when society develops socialists ideology would become obsolete
by putting it in constitution, it makes it permanent & thus takes away from the masses their choice of type of social, economic & political system they want
Unlike west Indian State can and will be involved with religion but will not promote one religion over another
We will have our own kind of Secualrism which will be accomodated according to India
The Indian Idea of Secularism doesnt match specifically with the current definition of secularism. Hence it is better to not put Secular as a Word in the Preamble but Indian Constitution inherently is a Secular State
Democratic
Govt Elected by the People, for the People, of the People
Things that prove that India is a Democratic State
Regular Elections 5 Years
Rt To Vote under Art 326
Free & Fair Election ( ECI under Art 324 )
Republic
Head of State will be Elected ( by Elections )
Two Cases - Both are Democracies, Both have F&F Elections, Both have UAF but
UK : Head of State is a Constitutional Monarchy (Heredetary Succession)
India : Head of State is a Elected Person ( Direct Election - India && Inidrect-USA )
Objectives of Constitution
Justice ( SEP )
Details about Justice
Does Equality Mean Justice ?
What is the Meaning of Justice ?
Just & Fair Treatment of People
Equality Doesnt Mean Justice
India Doesnt Follow Equality Before Law but Equality by the Law
Why this Specific Order has been followed
According to Ambedkar, S E P are in line of, Toughness to Achieve a Particular Justice Type
As in Social Justice is the Most Toughest to Achieve
Then Economic Justice is Tough
Easiest to Achieve is Political Justice.
For Example : in a Stroke of Enactment of Constitution, Everyone will be Equal Politcially
Social
What is a Social Justice ?
It is a fair and just tretament of all citizens from their social standing
Determined by their : Educational Level, Caste Acceptance etc
What are the Examples of Social Justice ?
Examples of Social Justice
Reservation in the Educational Institutions
Reservation in Public Employment
What is concept of Postitive Discrimination
Positive Discrimination is the Affirmative Action Taken by the State for the upliftment of a particular group
Economic
What is a Economic Justice ?
Equitable Distribution of Wealth amongst Citizens
Examples of Economic Justice ?
Land Reforms & Land Ceiling
Direct Taxes - Progressive Taxation System — Differential Tax Slabs in Income Tax - People who Earn More, Pay More
Political
What is the Meaning of Political Justice
State cam commit discrimination but cannot be a Arbitray Distinction
Absence of any arbitray disntinction between man and man
Examples of Political Justice in India ?
UAF
Political Resrvation
Liberty (TE BF W)
Relation Between Liberty & Freedom ?
Liberty comes with some Reasonable Restrictions
Liberty is not an absolute concept where as Freedom is more of a absolute restriction
Freedom of One, might hamper the right of another
Freedom Restrained to a Particular Level is Liberty
What are the Examples of Liberty with Restrictions ?
Example :
Loudspeaker in Religious Institutions ;
Govt Circular on Db Level of Speakers
Hate Speech
Meaning of Liberty ?
Minimal Rights Essential for free and civilised existence
Types of Liberty in Indian Constitution are ?
Art 19 - with RR
Thought - Thought Process
Expression - To Express Thoughts in Various Forms
Art 25 - with RR
Belief - Lower in Degree, It can be Changed
Faith - Higher in Degree, It cannot be Changed
Worship - Act of practising a Religion
A Belief System Repeated over time becomes Faith and Its Expression is Worship
Equality ( S&O) - Pending
Difference between Equality & Equity ?Equality of Status
Equality of Oppurtunity
Fraternity ( Dign. & UI )
Assuring Dignity of the Individual
Unless All the Previously Mentioned Objectives are met, one cannot feel dignity
Unity & Integrity of Nation (2)
Unity ( Brotherhood ) - Single Citizenship & Fundamental Duties
Territorial Integrity
Major Themes within Preamble
Case Chronology
Berubari Union v/s UOI, 1960 - 07 Judge Bench
Preamble Not an Integral Part of Constitution & cant be Amended
Is Not Justiciable & Non Enforceable
Keshavanand Bharti Case, 1973 - 13 Judge Bench
Yes it is an Integral Part of Constitution & can be Amended
Is Not Justiciable & Non Enforceable
Why is Preamble a Part of Constitution Now ?
cuz it was debated, discussed & voted by the constituent assembly as and like any other part of constitution
Is Preamble Integral Part of the Constitution ?
Yes it is ; under Keshavananda Bharthi Case
Can the Preamble be Amended under Art 368 ?
Yes, But the Basic Structure cant be Amended
Can the Preamble be Amended in Totality ?
No, Basic Structure Doctrine cant be Amended
Backing of Important Words by Articles of Constitution
Together
Part 1 - We the People of India
Ultimate Sovereign of Country - We the People - Reiteration of Social Contract
Part 4 - In Our Constituent Assembly
Historical Context and Legal Status of Preamble
Country Specific Words
Part 2 - Words that Describe Country as a Whole - Mains
S3DR
Sovereign → Socialist → Secular → Democratic → Republic
Sovereign
Meaning : “Freedom from External Influence” → Look closest to this word
Evolved : from basic notions of Independence to Interdependence
ContemporaryContext
Territorial Sovereignty
UNCLOS - United Nation Commission on Laws of Seas ; Recognition of CoOperation by EEZ Exclusive Economic Zone
Geo-Political / IR / Diplomacy Context
UNGA - Example of discussion of SOP on Terrorism ;
In UN you can say
Yes
Ratification : country will come back home & implement it
Ex : UNCOA Ratified by India & POCA (Prevention of Corruption Act) changed
Ex : Rio Declamation
Signatory : Good Idea but country will not implement it right now cuz they don’t have the need, will, infra for the same
Ex : ICCPR - Protocol Death Penalty to be abolished
Ex : Nuclear Non Proliferation Treaties
No
Abstain
Idea is that the CHOICE remains with US.
Technology - Data Protection & Data Localisation
Amazon data of Indians in Amazon Servers in Foreign
Economic Human Right
Conclusion
India’s Sovereignty is based on National Interest.
Ex : Showed Strength - Choice is with us
Ex : Fought with developed world ; COPA
Ex : India decides to be a member of QUAD
Ex : India says Kashmir Valley is a Bi Lateral and non International Issue
Ex : Stayed Silent - Choice is with us
India Silent on Israel (Palestine Violence)
Silent on Russia ( Question on Withdrawal in Crimean War)
Citizen Specific Words
Part 3 - Words that define Citizens as a Whole - Prelims
Citizens - JLEFU
Justice Liberty Equality Fraternity & Unity&Integrity
Background
Dictatorship
Internal Process → When Dictatorship Ends → Democracy has to Start
Colonialism
External Process → When Colonialism Ends → There has to be a “Transfer of Power” by a Law
by Law (Indian Independence Act, 1947 by British Parliament under Clement Attlee
ToP to Constituent Assembly → Interim Parliament forming a Interim Government → until First Election in 1952
26th Nov 1949 - Final Draft of Constitution was ready BUT not implemented then and now
Constituent Assembly
Nehru - Head of Constitution Committee
Ambedkar - Head of Drafting Committee
But a More Symbolic Date & country was to be made ready for the Same → Hence Date Chosen was 26 January 1950 that ALL Articles were put into force is Law Day
Significance of 26 January 1929 - India for the First Time demanded Poorna Swaraj ( Complete Independence ) at congress session in Lahore - Symbolism
Articles that came into force in immediately after 1949 are :
Speech Objectives Resolution : aspiration of kind of country we wanted to build - Preamble was added to the constitution before 26 November 1950
Preamble is the vision of Constitution, the Preface to Constitution
Three Sets of Dates
15 August 1947
26 November 1949
26 January 1950
Prelims Question Preamble is : Words that cannot be legally defined are generally correct : Pulse/Heart/Soul of the Constitution
Constitutional Article - Part 1 & Part 2
Part 1 (Art 1 - Art 4) - The Union & Its Territory
Questions Answered by Part 1 are ?
What is the Name of Country ?
What is the Territory ?
Can it Expand ?
How can it Expand ?
Can India Cede to a Foreign Country ?
Can it be Done with or w/o Amendment ?
Art 1 - Name & Territory of the Union
Art 1(1) - India i.e Bharat Shall be a Union of States
Two Names for Country → India & Bharat
Why Two Names ?
Ancient Name - Bharat - One Opinion
Modern Name - India - Second Opinion
Union of States v/s Federation of States
Some Members Said India i.e Bharat will be Better if it was called Federation of States ( De Centralised Power)
Union of States - Feels Like - Unitary form of Government (Centralised Power)
Ambedkar said that india is Federal Political System - but This Federation is Merely a Union
As The Division of Power in CS - Leans Towards Union
For only administrative convenience we are having states
Two Important Things
at no point of time, any state in India would have right to secede from the india → to prevent Balkanisation
if the union wants, union can unilaterally internally reorganise states
Art 1(2) - State & UT name will be in First Schedule Art 1(3) - Territory of India Shall Comprise(3) of
India = States (28) + UT (8) + Other Territory acquired in Future How India will Expand its Territory ?
It will be based on International Laws
Whether India Acquires Territory by Normalcy or by any other method
How is it decided that it will be either a State or UT ?
Factors which Decided if its a State or UT -
Population of Area
Large - State
Less - UT
Strategic Importance of that Area was made a UT
Delhi
Despite High Population, Its a UT
if there was a State, Union would have to take Permissions
Andaman Nicobar & Lakshwdeep - National Security Reasons
Cultural Differences
Dadar & Nagar Haveli
Puducherry
How is a State & UT Governed ?
State - Federal Relationship
UT - Directly Under State Control
Art 2 - Power of the Parliament to - Add Territory from Outside
Add a Territory - Explicitly Mentioned
What Happens to territory coming from outside
Admit into the Union - Given Status of UT
Establish New states into the Union - Given Status of State
Who has the Power to Admit that Territory in India ?
Parliament
Who will Decide it is a State or UT
Sikkim - was Made State - 36 CAA
Goa - Initial UT & then State
Puducherry & Daman & Die from Portugese - Directly UT 1962
Art 2A - Special Case of Sikkim : 36th CAA, 1975 ( Art 371 F added)
They Carried out a Special Majority under Art 368 because when Sikkim was added to India
Three Changes were Made
First Schedule - By Simple Majority - List of All State and UT
Fourth Schedule - By Simple Majority - Rajya Sabh Seats of State & UT
Art 371 F - Special Status Given - Needed CA - By Special Majority
Art 3 - Power of the Parliament to - Internal Reorganisation
Reorganise Indian Territory within Existing Territory
Powers of Parliament to
One Action leads to Multiple Actions Being Performed
Create a New State
Merge Two States
Divide Two States
Increase Area of State
Decrease Area of State
Alter boundaries of State
Alter Names of States
Madras - Tamil Nadu
Mysore - Karnataka
Orissa - Odisha
Examples ( Hypothetical )
All 7 North Eastern States can be merged
Bundelkhand
Backward Part of Country = Part of MP + Part of UP
From MP & UP → Make a New Bundelkhand
UT added to Tamil Nadu
What is the Procedure followed by the Parliament in Exercising its Power under Art 3 ?
Introduction of Bill
What is a Bill ?
A Bill is a Draft Proposal for Legislation under Consideration.
Bill is Introduced in the ?
Lok Sabha & Rajya Sabha
Diagram
Example : AP Reorganisation Act, 2015 && AP Reorganisation Bill, 2015 Procedure - Process of Constitutional Amendment Bill
MP will seek permission from President
President Refers Bill to the State Legislature with a Time Limit
Yes - Opinion Not BindingNo - Opinion Not BindingDelay - Opinion Not Binding
President Gives Permission to MP
Yes
Process in Parliament
MP will introduce Bill in Parliament (LS/RS).
MP can introduce in either
his house (can vote in his house only)
another house (cannot vote here but can introduce)
Fourth Schedule - Allocation of Seats to Rajya Sabha
Earlier
AP : 18 Seats in RS
Now
Telangana : 7 in RS
AP : 11 in RS
How are the Changes made ?
Will it take a CA for changing the Schedule ?
The Act Passed by the Parliament will automatically change the Schedules
Hence AP Reorg Act automatically changed First & Fourth Schedule
No
Bill Cannot be introduced in Parliament
Art 4 - Any Law under Art 2 & Art 3 then such a Law can be made by a Simple Act of Parliament
Laws made under Art 2 & Art 3 which provides for amendment of the first & fourth schedules
That Law is NOT an amendment of this Constitution under Art 368
Only First & Fourth Schedules are allowed to be Amended
Cede a Territory - No Where Mentioned in Parliament, hence decided by Supreme Court - CAA Needed
Re-Berubari Union v/s UOI, 1960
Prelude for Reference
Re → Stands for Presidential Reference Background
Smoothen Process of Boundary Dispute → Cyril RadcliffePlace Called : Berubari Union → 9 Sq Miles of Land was a Part of West Bengal Pakistan Claimed this Place saying that
Northern Part had to go to East Pakistan Southern Part had to go to India
Pakistan Said that it has gone to India as a Whole Both Pak & Ind PM Met → JLN & Feroz Khan Noon → Nehru Noon Agreement, 1958 Govt Thought it can be done under Art 3 ; but people said that Art 3 is only internal reorganisation but diminishing area of a state by ceding it to another country thus making a Net Subtraction to the States
Question of Law
Can Parliament do it under Art 3 ?
Logics - Put in front of SC
Do Not Give - Look Into Preamble
India is a Sovereign - India is a Sovereign State, why India should budge to others part
Can Give - Sovereignity
India is a Democratic Country - Democratic hence Indian people elected leaders can do
SC Said
No point of arguing on preamble - preamble is not an integral part of constitution
SC Judgement
India cannot cede a territory by Art 3But can cede by a CAA under Art 368 - by following a special majority for a Non Federal Dispute ( No State Ratification )
Parliaments Action
Enclave
Small Pocket of Land completely surrounded by Another Country
Enclave Background
India & Bangladesh → Have Poor & Porus Borders
Each others Enclave in one Place or Another
9th CAA, 1960
Unilateral Ceding of Territory
Nehru Noon Agreement, 1968 Land Boundary Agreement, 1974
Indian Enclave will be to Bangladesh
Bangladesh Enclave will be to India
We Will Exchange all the Enclaves
No Matter Profit or Loss of Net Land
If India Losses these Enclaves
India needs a CAA under Art 368 Non Federal Method
This Ceding happened by CAA
100th CAA, 2015
Exchange Enclaves between India & Bangladesh
Ultimately First Schedule was Changed by Ceding a Territory by these CAA
Examples
9th CAA, 1960 - North to Bangladesh by CAA
India Retained Southern Part under Art 2
100th CAA, 2015 - Indian Enclaves given to Bangladesh by CAA
India Received Bangladesh Enclaves under Art 2
States Re-Organisation Chronology in India
Historical Background1947 - India & Pakistan, 19471948 - S K Dhar Commission, 1948
NO
No Linguistic Re Organisation
One Language One State - Not Possible
YE
Geographical Contiguity
Financial Self Sufficiency
Ease of Administration
1948 - JVP Committee, 1948
JLN, Vallab Bhai Patel, Sita Bhai Patta Ramaaya
Rejected Linguistic Re Organisation
Especially fro Telugu Speaking Community in State of Madra
Protest Erupted → Violence → 56 Days of Hunger Strike → Potti Sriramamalu
1953 - Andhra Pradesh, 1953
AP Created
Similar Demands Started coming in Other Parts of Country
1953 - First Re Organisation Commission (Fazal Ali), 1953
Rejected Idea of - One Language One State But Linguistic Re Organisation can help in Maintaining the Cultural Homogeneity of PeopleOthers can be taken into Account
Economic & Administrative Viability Linguistic * Cultural Homogenity
1956 - States Re-Organisation Act, 1956 under Art 3
Before this India had following States
Part A - British Provinces
Part B - Princely States
Part C - Commissioner Provinces
Part D - Andaman & Nicobar
14 States & 6 UT was created
1960 - Maharashtra and Gujarat
Maharashtra for Marathi speaking people
Gujarat for Gujarati speaking people
Gujarat 15th state of Indian Union
1961 - Dadra and Nagar Haveli
Portuguese ruled until 1954
Portuguese administration until 1961
Added to Union Territory of India by 10th CAA 1961
1962 - Goa Daman and Diu
Acquired from Portuguese by police action in 1961
Added to Indian union territory bY 12th CAA 1962
Goa was Given statehood in 1987
Daman and Diu remained union territory
1962 - Puducherry
French gave Puducherry to India in 1954
Puducherry consists of Puducherry Karaikal Maher and Yanam
From 1954 to 1962 it was administered as an acquired territory
In 1962 added to Indian union territory by 14th CAA
1963 - Nagaland
Nagaland = Naga Hills + Tuensang Area → from Assam
From 1961 to 1963 it was under governor of Assam
Became 16th state of India in 963
1966 - Haryana Chandigarh and Himachal Pradesh
Punjab bifurcated to create Haryana
1987 - Goa given the status of statehood
Part 2 (Art 5 - Art 11) - Citizenship
Questions it will Answer ?
How to Identify citizens of India ?
Who are Citizens of India ?
Two Types of Citizenship
One at Commencement of Citizenship
One after the Independence ?
Why is there a Concept of Citizenship ?
State Confers all the Rights on Citizens, for Aliens it is Limited in some cases
State expects duties from its Citizens and sometimes Foreigners are relieved
State can differentiate between Citizen and Alien
Who is a Citizen ?
Citizens are Members of the State and owe Allegiance to it, They enjoy all Civil & Political Rights, guaranteed by the Constitution of the State
Art 5 - Art 8 → Citizenship Before 26 Jan 1950
Which All Person can become Citizen of India BEFORE 26 Jan 1950 ?
Deemed to be Citizen of India by Virtue of Constitution Enforcement
ALL PEOPLE WHO WERE RESIDENTS OF INDEPENDENT UNDIVIDED INDIA
Art 5 - Domicile → Domiciled in India before 26 Jan 1950
Domicile → Residence + Intention
Residence in India + Intention of an Individual to Make India as a Permanent Home
Intention -
Major - No of Years of Stay is 5 Years before 26 Jan 1950
Minor - Ownership of Property
Art 6 - Pak to Ind → Direct Migration → (15 Aug 1947 - 26 Jan 1950)
Deals with Person who had Migrated to India from Pakistan Pakistan to India - Majority
Before Commencement of Constitution if they come to India from Pakistan, they will be be made citizens of India
Art 7 - Permit System → Reverse Migration → (1 Mar 1947 - 26 Jan 1950)
Deals with Person who migrated from India to the Now Territory of Pakistan after 1 March 1947 but had subsequently returned to India for resettlement through Permit System
1 March 1947 - When Mountbatten Plan was Finalised
Migration After 1 March 1947 → Because due to Mountbatten Plan they knew, what was the Territory of India and Pakistan ; Now if they Migrate → It means they wanted to be a Part of Pakistan
Before 1 March 1947 → They can come back to India before 26 Jan 1950
but these people could be used as Agents of Pakistan. Hence, a Special Permit for Background Check from Indian High Council Commissioner, Pakistan was Needed
ALL PEOPLE WHO WERE PERSON OF INDIAN ORIGIN
Art 8 - PIO → Person of Indian Origin applied BEFORE 26 Jan 1950
Provision relating to Persons Living in Foreign Countries at the Commencement of the Constitution
PS : They don’t have to be in India for the Citizenship, they can be anywhere
Define Person of Indian Origin (PIO) ?
PIO is not a Citizen of India : A Person or whose Parents or GrandParents are born in India as Defined in GOI Act, 1935
How can a PIO become Citizen of India ?
Application to the Countries Embassy
Provide Proof that he is a Person of Indian Origin
Summary of Art 5 6 7 8
Art 9 - No Dual Citizenship - (Before & After 26th Jan 1950)
No Person Shall be a Citizen of India or be deemed to be a Citizen of India, if he has voluntarily acquired the citizenship of any foreign state
Shall be Citizen → Subsequent to Commencement of the Constitution
Deemed to be → under Art 5 6 7 8
Voluntarily Acquired & Any Foreign State → No Dual Citizenship
Art 10 - Provision of Power to Parliament to Acquire & Revoke Citizenship
Every Person who is or is deemed to be Citizen of India shall continue to be such citizen subject to the provision of any law made by the Parliament
Concept of Citizenship is not Permanent
Citizenship can be Revoked / Altered / Terminated
How can it be Altered ?
by Making a Law by Parliament under power of Art 11
Citizenship is a very Dynamic Creiteria hence Constituent Assembly gave provisions of Citizenship only until commencemnt of Constitution. After Commencement, provisions of power to parliament were made for the parliament to decide rules about citizenship by the Parliament (both acquisition and loss)
Art 11 → Loss (Before & After 26 Jan 1950) & Acquisition (After 26 Jan 1950) of Citizenship
Parliament shall have the power to make any provisions with respect to the acquisition and termination of citizenship and all other parliaments relating to citizenship
Deals with Following Action of Citizenship
Acquisition of Citizenship → for (After 26 Jan 1950) - PENDING
Person Should be Born in India between 1 July 1987 - 2nd December 2004
Plus One Parent an Indian Citizen
Issues
Most of the Illegal Migrants came to India and Married an Indian
Citizenship Act, 2003 - (from 3rd December 2004)
Conditions for Citizenship
Born in India after 3rd December 2004
One Parent an Indian citizen
Other parent Not an illegal migrant
Exceptions
Convoy of a Foreign Sovereign
IFS of another country marries an Indian and gives birth to a Child → Child will not be an Indian Citizen
Enemy Alien
Who belongs to a country with which India is at War with Some Other Country → Temporary Concept
Enemy Alien Marries Indian gives birth to a Child → Child will not be a Indian Citizen
At the time of Birth of Child war should not be going on India
Special Case : Aircraft & Ships
Depends on where the Ship & Aircraft is Registered → Citizenship will be that of the Nation of Registration
2 Descent - Born outside Indian Territory
Background
Based on Right of Blood : Latin : Jus Sanguinis
Descent Means : By Blood Line
Criteria
Born outside Territory of India
Born to an Indian Parent ( related in blood)
at time of Birth → Parents were Indian Citizens
Between 26th January 1950 - before 10th December 1992
Child Born Outside Territory of India
Father should be Citizen of India
IMPORTANT POINT : If Mother is Citizen of India ; Father is Not ; Child will not eligible for Citizenship → Criticism of Gender Injustice
Between 10th December 1992 - 2nd December 2004
Born Outside Territory of India
Any Parent should be Citizen of India at time of Childs Birth
3rd December 2004 onwards
Born Outside Territory of India
Any Parent a Citizen of India
Paren Should Register Birth of Child in the Nearest Indian Foreign Office
This time can be relaxed by government on grounds of Genuine Reasons
Nodal Authroity : Ministry of Home Affairs
Now this Law was Considered to be a Gender Neutral Law
3 Registration
Three Major Categories of People who are eligible to become Citizen of India
Type 1 - PIO
PIO Card → OCI Card
PIO Cardholder was Introudced by India in 1999
To Recognise Contributions in FDI & Political Support
PIO Cardholder Status
File Application
Pay Fees
Once PIO Cardholder Status was Granted → They still had to Go for Visas and Stuff
Hence some priviliges were given to them
for 15 Years No Visa was Needed
Stay for 180 Days in India without any Permission
He wil have Property Rights similar to that of Indian Citizen
in both Mobile & Immobile Properties
except for Agricultural Lands & Plantation Properties
PIO were Demanding Dual Citizenships becasue
They weren’t eligible to Contest Elections
Not able to Participate in Government Exams
Committee was Setup to Look into the Matter
Committee Reccomended Dual Citizenship
Parliament rejected the Reccommendation.
But Government Found a Mid Way
Above PIO + Below Citizenship of India → Overseas Citizenship of India Status
A PIO can Apply for OCI Status by Paying some Fees
a OIC wil get
Life Long Visas
No Restrictions on Length of Stay
Have Property Rigths - Mobile & Immobile - Agricultural Lands & Plantation Properties
Countries Eligible
Initially Given to only 16 Countries
All Countries in the World
Except for Pakistan
PM Involved
Atal Ji - Started
Manmohan Ji - Narrowed Differences between PIO & OCI
Modi - Made both PIO & OCI Same
Definition of PIO
CAA Gives the Definition as “Any Person or his Parents or Grandparent born in the Territory of India according to the Government of India Act, 1935 or any other territory acquired by India after 1947 ; and is right holding a passport of someother country”
Deconstruction of Definition
WHO : Himself - Parents - Grandparents
WHICH Territory
Territory according to GOI Act, 1935 - Undvided India
Territory acquired by India after 1947
Sikkim
Goa
Dadra and Nagar Haveli
Damn and Diu
Puducherry
Bangladesh Enclaves
WHAT is current status
Holding a Passport of Other Country
HOW : By Registration
Process
This Person applies for Visa for being a Citizen of India
with the Undertaking that he will renounce citizenship of Previous Country
Governemnt gives them Visa to be a Ordinary Resident
Demand : 7 Years of Citizenship in India
which is NOT Continuos but can be Irregular
Exceptions
Can Exclude Countries Like Bangladesh & Pakistan which may vary from time to time due to various Reasons
Security of Nation
Population Control in India
Application to ?
Ministry of Home Affairs
Type 2 - Foreigner Marrying and Indian Citizen
BKG : Foreigner who is not a PIO but Marries and Indian
Condition :
Marries and Indian Citizen
Stays in India for Period of 7 Years
Type 3 - OCI Status Cardholder
Background
OCI : Overseas Citizenship of India Status
Started by Government in 2003
OCI are not Citizens of India but has some Privilege
now this OCI Person if wants a Citizenship in India, can get Citizenship in India
PIO Card → OCI Card
PIO Cardholder was Introudced by India in 1999
To Recognise Contributions in FDI & Political Support
PIO Cardholder Status
File Application
Pay Fees
Once PIO Cardholder Status was Granted → They still had to Go for Visas and Stuff
Hence some priviliges were given to them
for 15 Years No Visa was Needed
Stay for 180 Days in India without any Permission
He wil have Property Rights similar to that of Indian Citizen
in both Mobile & Immobile Properties
except for Agricultural Lands & Plantation Properties
PIO were Demanding Dual Citizenships becasue
They weren’t eligible to Contest Elections
Not able to Participate in Government Exams
Committee was Setup to Look into the Matter
Committee Reccomended Dual Citizenship
Parliament rejected the Reccommendation.
But Government Found a Mid Way
Above PIO + Below Citizenship of India → Overseas Citizenship of India Status
A PIO can Apply for OCI Status by Paying some Fees
a OIC wil get
Life Long Visas
No Restrictions on Length of Stay
Have Property Rigths - Mobile & Immobile - Agricultural Lands & Plantation Properties
Countries Eligible
Initially Given to only 16 Countries
All Countries in the World
Except for Pakistan
PM Involved
Atal Ji - Started
Manmohan Ji - Narrowed Differences between PIO & OCI
Modi - Made both PIO & OCI Same
OCI Card Holder
has to Posses Status of OCI for 5 Years
Comes to India and Stays in India for 1 Year
Undertaking that Previous Citizenship will be Revoked when Indian Citizenship is Given
Summary
🇮🇳
NOTE : PIO & OCI are NOT CITIZENS OF INDIA
REVISIT OCI ka LAST PART
4 Naturalisation
Any Category of Person or Any Foreigner can become an Indian Citizen provided that the Foreigner is not an illegal Migrant
Defintion of Illegal Migrant :
Any Foreigner who enters India w/o a Valid Document or Extends his Stays in India according the Documents is an Illegal Migrant
Conditions in Third Schedule of of CAA
Ordinary Resident for a Period of 12 Years
undertaking to renounce the citizenship of previous country
Background Verification of Good Character by Local Police
Adequate Knowledge of any one Language specified in 8th Schedule (22 Languages)
Bonafide Interest to Stay in India
RELISTEN FROM HERE
5 Incorporation of Territory
If a New Territory becomes a Part of India, the Government of India shall specify the persons of that territory who shall be citizens of India
Example - Puducherry Citizenship Order, 1962
100th CAA, 2015 - Exchange of Encalves between India and Bangladesh
One cannot be Forced to take Indian Citizenship
6 Special Provision as to Citizenship of Person covered under Assam Accord of 1985
Background
Assam Accord was Signed in 1985 under Leadership of Rajeev Gandh
Assam Accord was a Tripartite Agreement signed among Government of India, Government of Assam and All Assam Studnets Union (AASU) demanding identification and Deportation of Illegal Migants from Bangladesh
Important Details
Parties
Government of India
Government of Assam
AASU - All Assam Students Union
To Prevent :
Illegal Migration from Assam
because of Porus Borders between India & Bangladesh
Concerns with Migration
Especially Economic Oppurtunities been taken away by illegal migrants
Demographic Changes - some Hindu Majority distritcs became Muslim Majority Districts
Main Demand
Identification - Of Illegal Migrants
Deportation - Back to Bangladesh
Important Questions of Assam Accord
Provisions of Assam Accorded as Incorporated in Citizenship Amendment Act, 1986
What are the Conditions to Identify Illegal Migrants ?
All Persons - Illegal Migrants
before 1st Jan 1966
Can be Granted Citizenship
cuz Good Relation with East Pakistan
Leniency due to Turmoil in East Pak Government. India had Good Relations with East Pak Gov Initially
1 Jan 1966 - 25 Mar 1971
Will be Illegal Migrant
East Pak had a Elected & Stable Government
Not Deported
They will Register with Indian Authority ; From date of Registration to 10 Years in India - will be Given Citizenship
Between Registering & Citizenship - they will have all rights except for Votes
after 24 March 1971
are Illegal Migrants
they will be Deported & sent to Bangladesh
Now Bangladesh has said that they will not accept these migrants as they are not Bangladeshi Citizens
Now they will be sent to Deportation Centres
Both India & Assam Govt had not Implemented Assam Accord In 2013 in SC, case was filled stating Illegal Migrations SC directed to Implement Assam Accord → NRC was done in Assam in NRC it was found that 1.9 Million People were Illegal Migrants
1.3 Million → Were Hindus 0.6 Millions → Were Muslims All These People have to be sent back to Bangladesh
If Bangladesh Accepts → Deported Back If Bangladesh Doesnt → Put in Deportations Centres
Citizenship Amendment Act, 2019
The Details
CAA, 2019 → It is Giving Exceptions to Some Categories of Immigrants
Citizenship Amendment Act, 2019
Naturalisation of Illegal Migrants
of 3 Countries → Pakistan, Afghanistan & Bangladesh
Exceptions to
Hindu
Sikh
Christians
Buddhist
Jain
Parsis
Entered India Before 31st December 2014
Reason : in 2014 & Subsequent to 2014 with the coming of Modi there has been not a single ant been able to cross borders
All these People are Eligible to become Citizens of India by Naturalisation
What will these 6 Community Provide as Proofs
Opinion of Government
All these 6 Communities are considered to be Persecuted Minority
Persecuted Minority - Who are Ill Treated, Harrased, Subjected to Homicide in original country
all the 3 Countries are Muslim Majority States with Official Religion as Islam
Indian being a Hindu Majority Country should give hope to these Persecuted Minorities
Views on CAA 2019
Criticism of CAA, 2019
Violation of Article 2014
Equality Before Law Violated - Citizens & Foreigners
Why Not All Persecuted Minorities & Why Not All Neighbouring Countries ?
Rohingyas from Myanmar
Tamils from Sri Lanka
Ahmediyas from Pakistan
Violation of Secular Principles
Putting Muslims is Deporation Centres
It is Against Assam Accord
Assam Accord Cut of Date : 24 March 1971
In Favour of CAA, 2019
Government - Its an Humanitarian Law to protect Persecuted Minorities
Current Status
Matter is Sub Judice But SC has not put a Stay on
Loss of Citizenship → for both (Deemed(before) && Acquisition (after))
Nothing is Mentioned in the Constitution, it is decided by the Laws of Parliament.
Renunciation
By Voluntary Act
With the Parent, the Childs Citizenship who is minor will also be Renounced
Will the Child be able to restore the Citizenship on Reaching 18 Years of Age ?
Yes, but has to apply within 1 Year.
Termination
By Application of Law
When an Indian Citizen takes CItizenship of any Other Country, his Citizenship is terminated automatically from India
Here the Main Difference is that, Here Minor Childs citizenship is NOT Revoked.
What is the Difference Between Renunciation & Termination ? Deprivation
Conditions for Deprivation
Disloyal to India
Fraud - Example : Malya & Nirav Modi
Registration
After Registration for a Period of 7 Years, If someone goes to Jail for the Next 2 Years.
Outisde India
Citizen of India who hasnt returned to India for a Period of 7 Years.
Chronology of Citizenship Act - Liberal to Conservative
Citizenship Act, 1955 - (26 Jan 1950 - 01 Jul 1987) - Acquisition & Loss of CitizenshipCitizenship Act, 1986 - (1 Jul 1987 - 2nd Dec 2004) - Acquisition & Loss of CitizenshipCitizenship Act, 2003 - (from 3rd December 2004) - Acquisition & Loss of CitizenshipCitizenship Act, 2005 - Citizenship Act, 2015 - Citizenship Act, 2019 -
Current Affairs
Constitution - Part 3, Part 4, Part 4A
Part 3 (Art 12 - Art 35) - Fundamental Rights
⭐️Important Questions & Concepts of Fundamental Rights
What is a Right ?
An Entitlement by the State
What is the Difference between Rights & Fundamental Rights ?
These are Fundamental Rights is because they are essential for a “Dignified Human Survival & Realize Fullest Potential of thyself”
Dignified Human Survival
To have sense of Respect for ThySelf
This makes you feel like “Life is Worth Living”
Fullest Potential, in terms of
Intellectual
Spiritual
Physical
How is the Top Priority Given to Fundamental Rights (FR) ?
One can go directly to the Supreme Court, w/o going to Lower Courts
It is Protected & Guaranteed by the Constitution
What is the Purpose of Giving Fundamental Rights ?
Constituent Assembly wanted the FR to be
Protective
Citizens be Protected from any Arbitrary & Tyranny of State
Promotive
Promotes Individual Well Being & Allied Aspects of Social Life
Example : Art
Who can Exercise this Privilege or Who is Holder of the Right ?
How Many Number of Fundamental Rights were Originally & at Present ?
Originally - 7
Currently - 6
At the time of Independence we had how many Right ?
we had a total of 7 themes of FR
Art 31 - Right to Property has been Removed from Part 3 by 44th CAA in 1978 and sent to 300 A
How is Fundamental Right a Limitation on State ?
If by the Actions of State ( above Defined ) → FR is Violated → Individual can Assert & Seek (Remedy & Justice) this in Court of Law → Which is a Limitation on Actions of State
⭐️Features of Fundamental Rights
1 Rigidity v/s Flexibility
Not as Rigid as US
Not as Flexible as UK
2 Citizen v/s Alien
Only for Citizens → Art - 15,16,19,29,30
Other All Are for both → Citizen and Aliens
3 Qualified v/s Absolute
These FR are only Qualified meaning they can be reasonably restricted
Absolute Rights can cause harm to Other Individuals of Society
4 Against State v/s Against Individual
Some are Against the State
Protection Against Arbitrary Action & Tyranny of State
Some are Against the Individuals
5 Negative v/s Positive
Negative - Restrict the State
Positive - Confer Privileges on Person
6 Interaction with Court of Law
Justiciable - Can Move to Court of Law
Defended & Guaranteed by Supreme Court
7 Not Sacrosanct & Permanent
Can curtail or repeal them
Only without affecting the Basic Structure of Constitution
8 Can be Suspended in Case of
National Emergency - Except Art 2० & Art 21
6 Rights of Art 19 Suspended
on basis of : External Emergency → Emergency on Grounds of War & External Aggression
NOT on basis of : Internal Emergency → Armed Rebellion
Power of the High Court under Articles 226 and 227
⭐️Art 12 - Art 13 → Basics of Part (III)
⭐️Art 12 - Defines the Term State for the Purpose of Part 3 of the Constitution ⭐️
Article 12 Says
Definition In this Part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India
Why do we need to define State ?
This helps us in deciding that “Against whom to Assert these Rights” ?
This helps us in Defining “The Arbitrary Action of” State. Hence Definition Necessary
Most FR are against State. Hence Definition Necessary
What is a State Acc to Art 12 ?
Government & Parliament of India
P VP PM CoM + Civil Servant
Government & Legislature of States
G CM CoM + Leg Assembly + Leg Council
Local Authorities
Panchayats, Municipalities etc
Other Authorities within the Territory of India, under the Control of the Government of India
Other : LIC, ONGC, SAIL, MTNL, BSNL, HAL, DRDO
What is Other Authorities ?
Electricity Board of Rajasthan v/s Mohan Lal, 1967
other authorities would include
all the authorities created by the constitution or statute on which powers are conferred by law
The court held that an electricity board would also be a stateoverruling a previous judgment where the court had ruled otherwise
In another important judgment of SC, it was held that statutory corporations such as ONGC and LIC are also a part of the state under article 12
Ajay Hasiya v/s Khalid Mujeeb, 1981 Case - Doctrine of Instrumentality & Agency
Share Capital
If Govt is a Majority Share Holder
Financial Assistance
If the financial assistance provided to a body by the govt. is so much that it meets the entire expenditure of the company
Monopoly Status
If company enjoys a State Conferred Monopoly
Ex MTNL, BSNL, HAL, DRDO
Nature of Functions
Related to Govt Functions or Important Functions
if an entity performs public functions or functions closely related to govt. functions
State Control
Appointments of Important Positions in the Company/Organisation
Note : All these Principles are not needed to be Applied at Once, Even if one or some apply, it will also be considered as a Satte
Is Judiciary a Part of State ?
Judiciary falls under the definition of state in some ways, and still, in some ways, it does not
Judiciary carries out:
Judicial functions - Not Considered as State
Administrative functions - Considered as State
Rulemaking functions - Considered as State
Art 13 - LawsInconsistent with Fundamental Rights be Void
Important Questions
What is Judicial Review ?
What are the Laws ?
Pre Constitutional Law
Entire Bulk of IPC & CrPC
Example :
Sec 124 A - Sedition
Sec 377 - Rape
Post Constitutional Law
IT Act, 2000
Motor Vehicle Act, 1987 → Amended in 2016
Right to Information Act, 2005
Right to Education Act, 2009
Laws Made by
Parliament
State Legislature
What is Inconsistent ?
Not in Sync
Out of Line
Not in Congruence
Not in Concurrence
What are the Article of Fundamental Rights ?
Directly Confers the Rights - Art 14 to 32
What is a Void ?
It cannot be Implemented, There will be no Legal Affect
How much of Law will be Stuck Down ?
Not the Full Law but
to the Extent of Inconsistency, the Laws will be Struck Down
Who can strike down the Law ?
Judiciary Interprets and can decalre the Laws to be Void
Courts use Power of Judicial Review
Under Art 13 - Power of Judicial Review under Art 13
What is a Judicial Review - Suo Moto Cognisance
It is the Power of Courts to Review Actions of Legislature & Executive and declare them null & void if its actions are found to be violative of provisions of constitution
Under Art 13, it is the power of the courts to Judicially Review, the actions of Legislature & Executive. If they are found to be violative of fundamental rights they can be decalred as void
The Power of Judicial Review is Implicit under Art 13 it is not Explicitly Mentioned under Art 13
What is the Idea of Art 13
To Give Primacy & Supremacy to Fundamental Rights
Checks the powers of the legislature
Shows significance/sacrosanctity of FRs
It's like a safety valve for FRs
Extra Self
Does the Word Law Include Ordinary Laws & Constitutional Amendment ?Doctrine
Doctrine of Severablity Doctrine of Eclipse
Can a Constitutional Amendment (Article 368) abrogate/reduce the effect of the FR?
Article 368 v/s Article 13
Shankari Prasad v/s Union of India, 1950
Whether the courts can look into CAA, ie., whether CAA is a law or not. (If a law, then subject to Article 13)
1 CAA added 9th schedule among others
Laws kept under 9 Schedule, even if they violate FRs(Fundamental Rights), they cannot be struck down for violating Article 13
SC(Supreme Court) majority opinion was that CAA is not a law, hence not subject to judicial review.
Sajjan Singh v/s State of Punjab, 1965
Whether CAA is a law was the question;
Similar judgement-CAA is not a law;
In this case, the minority judges(2 judges out of 3 judges) dissented- Justice Hidayatullah & Justice Mudholkar;
Justice Hidayatullah opined that FRs are sacrosanct & they cannot be amended;
Justice Mudholkar opined that every constitution has certain parts that can be amended and that sections which cannot be amended. If the entire constitution can be amended then what was the need of writing a constitution by the CA(Constituent assembly)
Golaknath Case v.s State of Punjab, 1967
7th CAA was challenged before a larger bench;
Whether CAA is a law or not;
CAA is equal to law & hence subject to Article 13;
Hence the effect of FRs cannot be amended; FRs are sacrosanct;
24th CAA, 1971
introduced Article 13(4)& Article 368(3)to the Indian constitution;
Nothing in this article shall apply to an amendment to the constitution made under Article 368-->Thus beyond the judicial powers of the court now;
FRs can now be amended under Article 368;
Thus via a CAA any part of constitution can be changed & cannot be challenged under Article 13;
Keshavananda Bharti Case v/s State of Kerala, 197342nd CAA, 1976 Minerva Mills v/s Union of India, 1980
Like Zamindari Abolition Acts → Led to Resistance Amongst People
Kameshwar Singh v/s State of Bihar, 1950
He didn't want to sell the Property, he thought it was the Violation
of Right under Art 19
Art 19(1)(f) - Acquire Hold Dispose Property
Grounds of Restriction
Interests of General Welfare of Society
Interests of Protecting Rights of SC/ST
of Right under Art 31
Govt can take away property only by a law Passed by the Government ; and not only by a Executive Action
That Compensation under Law under Art 31 is not a Just & Fair Compensation
of Right under Art 14
Govt had given Various Discretion of Value of Land for Various People
Supreme Court Said
Just & Fair Compensation is different from Equal Compensation
Just & Fair Compensation is Must
1st CAA - Art 31 B, 1951
Art 31 B Says
Saves those Laws from Judicial Review which are placed in 9th Schedule
Addition of 9th Schedule
Originally Constitution had 8 Schedule
First Law which was added : Bihar Land Reforms Act 1950
It now has 284 Laws Now
Shankari Prasad v/s Union of India, 1951
Supreme Court has to decide
What is the Power of Parliament to Amend the Constitution ?
Insertion of Art 31 B is in Part 3 of the Constitution - Parliament is Taking Away Fundamental Rights by Amending the Fundamental Rights Part
Whether Constitutional Amendments are Considered to be a Law under Art 13 ?
Under Art 13 - He Said Addition of Art 31 B under 1 CAA is a Law in Itself and hence can be Declared Null and Void
SC Said that
Parliament has 2 Types of Powers
Constituent Powers under Art 368
Constituent Powers similar to that of a Constituent Assembly
This power was given to Parliament because CA wanted the Constitution to be a Living Document
Hence, Parliament can Amend the Fundamental Rights under Art 368
Ordinary Law making powers
SC said that according to CA debates, CA never wanted to consider CAA as a Ordinary Law
Sajjan Singh Case v/s State of Rajasthan, 1965
17th CAA was challenged in SC Rajasthan came up with Land Reforms Act and requested the Parliament to put up the Law in 9th Schedule Same Result as that of Shankari Prasad Case If CAA is taking away FR Parliament can Still Amend it, only a Ordinary Law cant take away your FR
IC Golaknath ORS v/s State of Punjab, 1967
Basic Line of Argument by SC : Parliament is having Constituent Power under Art 368
Golaknath Brother Argued that there is no Constituent Powers to the Parliament as
Originally Art 368 says : Procedure to Amend the Constitution
There is no mention of Power of Parliament → Hence they don’t have a Constituent Assembly like Power.
Hence Now SC Stance was
Earlier Until Now Parliament had two Laws :
Constituent Law Powers : not under Art 13
Ordinary Law Making Powers : under Art 13
Now Parliament gad
Constituent Law Powers : is under Art 13
Ordinary Law Making Powers : is under Art 13
24th Constitutional Amendment Act, 1971
Amended Art 368 → Added [Power] → Power & Procedure to Amend the Constitution
Amended Art 13 →
Earlier → Laws Inconsistent with Fundamental Rights be Void
Now → Constitutional Amendments under Art 368 would not be Law under Art 13
What was given by SC as Judgement in Shankari Prasad & Sajjan Singh Case - was added by the Parliament to the CAA as an Amendment
Keshavananda Bharti Case v/s State of Kerala, 24 April 1973
While Shankari Prasad and Sajan Singh Case gave unlimited Powers to the Parliament, KBC gave limited Powers
SC upheld that there is a Constituent Power and 24th CAA is valid and Constitution can amend the Fundamental Rights but it should not destroy the Basic Structure
Basic Structure
Sovereignty
Democratic
Republic
Hence, Now merely for Amending the FR you cannot challenge the CAA in Court of Law
it can only be challenged only on the Ground that it violates Basic Structure
The Sacrifise of Justice Khanna
Indira / Raj Narayan Case, 1975
Free & Fair Elections Added to Basic Structure
42nd CAA, 1976
Amended Art 368 of Constitution → Constitutional Amendements will be complete Immune to Judicial Review
Minerva Mills Case, 1980
Power of Judicial Review of Courts is a Part of Basic Structure and Hence even by a CAA it cannot be changed. Hence 42nd CAA’s was struck down
Indira Sahani Case, 1992
Rule of Law Added to Basic Structure
SR Bommai Case, 1994
Secularism Added to Basic Structure
NJAC Case, 2015
Independence of Judiciary Added to the Basic Structure
Final Answers
Can Parliament Amend the Constitution
Yes
Is it Unlimited ?
No, it is Limited
How much is it limited
It cannot destroy the basic structure
Can parliament amend FR
Can Amend but not to the extent to destroy the basic structure
Can amendment to the FR be declared null and void by the courts
Yes it can be declared to be Null and Void, only if it violates the Basic Structure
Art 14 - Equality Before Law & Equal Protection of Law (1)
Art 14 in Constitution
The State shall not deny any person equality before Law or the equal protection of Laws within territory of India
To Whom & Against Whom
Persons
Natural Persons
Artificial Entities
Who Shall Not Discriminate
State
Why these 2 types of Application of Law came into existence
Absolute Function of Equality is not Possible Treating Equals Equally is Actual LawBefore Law & Protection of Law
Equality Before Law
Concept Exception
Art 361 - President & Governor
Criminal Cases
Can’t be Convicted in Criminal Cases
Can be trial after the Leaving of Posts
Civil Cases
Can be tried while in Office
Notice of 2 months to be Given
Art 105 & Art 194 - Parliamentary Privileges
Art 105 - Art 194 -
Diplomatic Immunity to a Foreign Sovereign
Equal Protection of Law
Background
Talks about Equals being Treated Equally
Equal Protection of Law is not Against Equality before Law but helps in Achieving it.
Equality Before Law includes Equal Protection of Law under Art 14
Equal Protection of Law is applied in the form of Different Groups can be Created and Different Privileges can be conferred upon certain Groups to Empower them
Can be called as an Affirmative Action or Positive Discrimination
Reservation is Example of Positive Discrimination
Individuals who are considered to be Backward (Primarily Socially)
Scheduled Caste
Scheduled Tribe
Other Back Ward Class
Summary
Similar Treatment of Individuals whoa are similarly placed
Positive Discrimination or Affirmative Action
Reasonable Classification - Classification Should not be Arbitrary
Reasonable Nexus between Classification & Object
Examples
Reservation Policy
ScheduleCaste : 15% Reservation in Educational Institution and Govt Jobs
Schedule Tribe :
Other Backward Class :
Progressive Taxation Policy
Slab Based Taxation Policy
Citizenship Amendment Act, 2019
This is Violative of Equality Before Law
This is Application of Equal Protection of Law with Reasonable Classification of 3 Countries and 6 Religions
Most Important Concept
There should be a Reasonable Nexus in the Objective and Grouping of the Beneficiaries
The
The Positive Discrimination
The Affirmative Action
of the State
Should not become Discrimination in totality for the Unreserved
Art 15 - Prohibition of Discrimination on Certain Grounds (6)
What is Art 15
Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth - ReRa CaSe PoB
Art 15(1)
Summary
No Discrimination ReRa CaSe PoB What is Art 15(1)
State Shall not Discriminate against any citizen on Grounds only of Religion, Race, Caste, Sex or Place of Birth or Any of them.
Shall not Discriminate Against
Religion - Belief Faith
Race - Physical Attributes
Caste - Varna System
Sex - Biological Factors
Place of Birth - Birth Place
Any of Them - or a Combination of them
Art 15(2)
Summary
No Discrimination ReRa CaSe PoB
Disability, Liability, Restrcition
(a) Access - Shop Pub Res Hot & Place of Pub Ent
(b) Use - Well Tank Ghats Road Pub Resort - Wholly Partly by State FundWhat is Art 15(2)
No Citizen shall be discriminated on grounds only of Religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability or restriction with regard to
(a) access to Shops, Public Restaurants, Hotels & Places of Public Entertainment
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds
Access - Can be Private Owned
Public Entertainment (Parks, Malls, Exhibition Centre) - Can be Private Hotel - Can be Held by Private Individual
Use - Has to be Partially / Fully by State
Art 15(3)
Summary
Special Provision for Women & Children What is Art 15(3)
Confers Power upon the State for making any special provisions for women and children
Background
is a EnablingProvision for Women and Children
It is Dependent on the Will and Wish of State
Women and Children cannot Demand the Right
Example
73rd 74th CAA - Special Provision for Women
Gave Constitutional Status to Panchayats and Municipalities
Reservation for Women - 33% to Women
Odd and Even Policy in Delhi - Special Provision for Women
Men have to follow Odd & Even
Women can drive any day
Juvenile Justice - Care & Protection of Children Act, 2015 - Special Provision for Children
Juvenile is someone below 18 Years of Age
Criminal Offence Punishment for Adult & Children is not Same
Art 15(4)
Summary
Special Provision for SEBC/SC/ST
Institute : Govt Institution What is Art 15(3)
Confers Powers upon the State to Make Special Provisions for the Advancement of any socially and educationally backward classes or the Schedule caste and Schedule Tribes
Background
For SEBC / SC / ST
Added by First Constitutional Amendment Act, 1951
and the History for it is
Champakam Dorairajan v/s State of Madras Case, 1951
Art 15(5) - Confers power upon the state to make special provisions by law for the advancement of any socially educationally backward classes or the for the schedule caste or for the scheduled tribes in so far as such special provisions relating to their admission to educational institutions including private educational institutions whether aided or unaided by the state except minority educational institutions
Why Article 15(50 when there is Article 15 (4) ?
Supreme Court Judgement in Inamdar Case 2005
Powers Conferred to state doesn't extend to giving reservation in Private Educational Institutions
Added by 93rd CAA
Special Provision for SEBC/SC/ST
Exception : Minority Educational Institution
Art 15(6) - Confers Power Upon the State for the Advancement of any EWS of citizens through reservation in Educational Institutions not exceeding 10 Percent
Based on Economically Weaker Section
Added by 103rd Constitutional Amendment Act, 2019
This 103rd CAA was challenged in court of Law. Given that CAA can only be challenged if it affects the Basic Structure Doctrine
Challenged on the basis of
in Indira Sawhney Case, 1992 SC said that
Reservation is Approved but
The Reservation Should not be above 50%
OBC - 27
SC - 15
ST - 7.5
Total : 49.5
EWS : 10
SC maintained that any reservation above 50% is violative of rule of law
Condition for being a EWS
Art 16 - Equality of Opportunity in Public Employment (7)
Art 16
Article is
Equality of opportunity in Matters of Public Employment
Exceptions to Art 16
Presidential Guards
Only People from 3 Caste can be in Presidential Guards
Rajputs
Sikhs
Jaat Sikhs
Petition was filed against this in Delhi High Court Govt Replied that
People from these 3 Castes → They have uniform body structure
This case is Sub Judice Right Now
Women in Army for Permanent Commission
SSC - Short Service Commission
Indian Army SSC - 14 Years of Service
Permanent Commission from SSC → can serve upto Retirement Age
But Women weren't allowed to get into Permanent Commission earlier
Now, in some fields permanent commission has been allowed for women ; Like in
Recruitment Division
Ordinance
Traffic
Non Combat Divisions
Not in all fields
Reasons Given by Army
Biological Factors
May have to go on Long Leave and it will be strategically bad for army
Socio Cultural Factors
Most of the Jawans are from Rural Background, They look upto leaders
Who are More Stronger
Women Might have difficulties in commanding leadership
Operational Constraints
in 2021, SC didn't accept these factors
Art 16 (1)
Article is
There Shall be Equality of Oppurtunity for all citizens in Employment to any office under the state
Art 16 (2)
Article is
There shall be no discrimination among any citizen only on the grounds of religions, race, caste, sex, descent, place of birth, residence, or any of them for employment under office of the state
Art 16(3)
Article is
Parliament shall have the power to make laws regarding residence as a requirement for certain employment or offices under the states
Its an Enabling Provision → To make a Law → for Local Residents only can Apply for the Jobs The Services can be Reserved in case of Sub Ordinate Services only i.e → Group C & Group D Services Example : Public Employment (Requirement as to Residence) Act, 1957
Certain Jobs in : Manipur, Himachal Pradesh, Andhra Pradesh, Tripura
in all these places : Reserved only for Local Residents
Art 16(4)
Article is
Confers Power upon the State to make provisions for reservation of post in favour of backward classes of citizens
Appointed by Morar Ji Desai Govt after Emergency, Govt Collapsed in 1980
Implemented by V P Singh Government in 1990
Recommendation of Mandal Commission
27 % Reservation to OBC
in Central Government Jobs
to elevate their position
Final Recommendations
27% OBC Reservation in Centre & State Govt Jobs - Added by Mandal Commission
27% OBC Reservation in Successive Promotion - Added by 77th CAA
Indira Sawhney Case, 1992
27% Reservation of OBC in Central Government Jobs was challenged in Court
SC upheld 27% Reservation of OBC in Central Government Jobs
Conditions Put Forth by Government
Concept of Creamy Layer
SC & ST is Homogeneous Community
OBC is Not
OBC Creamy Layer - are Socially & Educationally Advanced
Hence Creamy Layer should be excluded from Reservation
and Non Creamy Layer OBC should be Given Reservation
Reservation only should be given to Deserving People
No Reservation in Promotion 50% Ceiling Limit in Reservation
If this Limit is surpassed, rule of law for general will be violated
in Both Centre & State Government
Current Reservation Status
OBC - 27%
SC - 15%
ST - 7.5%
EWS - 10%
Total : 59.5%
How is Reservation of more than 50% been Given in some states
Maharashtra Case - Reservation of 50% - Struck Down by SC
Old Reservation was 46-48% Reservation
Backward Commission was Appointed by State Govt to study that Maratha Community will fall under OBC or not
Backward Commission said that Maratha Community is in Backward Classes
Hence Maharashtra Government, Gave Reservation and total Reservation was 64%
First to HC → Then to SC → SC Struck Down the Reservation citing
It goes over and above 50% Rule
Maratha Community is Advanced Community both Socially & Educationally
Tamil Nadu Case - Reservation of 69% - Sub Judice in SC
Prelude & Backdrop
50% Rule Violated by Giving 69% Violation
Tamil Nadu Reservation & Educational Institutions & Public Employment Act, 1994
Actions
State Govt can pass the Law
Only Parliament add to 9th Schedule by means of CAA
TN Govt Requested the Parliament to Place this Law under 9th Schedule - Hence it becomes Immune to Judicial Review
Hence 69 Percent Reservation Continued
IR Coelho Case, 2007
Until Now 9th Schedule was Immune to Judicial Review
IR Coelho argued that the
By Putting any Laws in 9th Schedule of Constitution
& Giving them Blanket Immunity
It Violated Basic Structure Doctrines Part = Judicial Review
Hence SC upheld that Laws Under 9th Schedule which violate Basic Structure Doctrine can be subject to Judicial Review
Doctrine of Basic Structure came into Existence 24 April 1973
After 24 April 1973 && Violates Basic Structure - Can be Challenged
Before 24 April 1973 && Violates Basic Structure - Cannot be Challenged
TN Reservation 69% Case
FOR REMOVING 69% RESERVATION
69% Reservation was given by a Act in 1995
Which is After 1973
Also it violates Rule of Law && Rule of Law is Part of Basic Structure Doctrine
AGAINST REMOVING 69% RESERVATION
Mandal Commission
Whole India OBC was 52%
Reservation was 27%
Where as TN
Has 90% OBC
Hence More Affirmative Action is needed
Hence More Reservation is Needed
Art 16(4)(A)
Article is
Reservation in Promotion by State in favour of SC & ST
How Much Reservation ?
Varies in Centre and in State to State
Reservation in ?
Centre & State
Art 16(5)
Article is
Confers power upon the state to make appointment to any religious denominations belonging to a particular religion
Example : Tamil Nadu Hindu Religious Charitable & Endowment Act, 1959
Approximately 30,000 Temples are under control of Management of State of Tamil Nadu
State can appoint : Manager & Priests
Art 16(6)
Article is
Confers Power upon the State to make reservation to public offices for categories of persons belonging to economically weaker section (EWS) not exceeding 10%
Inserted by 103rd CAA
Inserted both 15(6) - EWS in Educational Institutions
Inserted both 16(6) - EWS in Matters of Public Employment
This Amendment is Still Sub Judice
Art 17 - Abolition of Untouchability (1)
Art 17
Abolition of Untouchability
Untouchability
is a Form of Social Disability
is a Social Evil
is against the concept of & Denies Equality
Still Prevalent in Some Rural Parts of India
Art 17 Says that
Disability arising out of practise of untouchability is a punishable offence
But
It doest define untouchability
Laws Passed by Government
Untouchability Offences Act, 1955
Defines Untouchability & Defines Punishment of Offence
Made Untouchability
Non Cognizable & Bailable Offence
Non Cognizable Offence
Police cannot arrest without a Warrant
Bailable Offences
Is a Matter if Right
Only a Charge Stands now
He is Not Guilty Yet
Can be Given by Police or Magistrate
Protection of Civil Right's Act, 1976
Defines Untouchability & Defines Punishment of Offence
Made Untouchability
Cognizable & Non Bailable
Cognizable
Police Can Arrest w/o a Warrant
Non Bailable Offence
Is not a Matter of Right
Art 18 - Abolition of Titles (1)
Titles are hereditary in Character like : Raja, Maharaja, Nawabs
This Created a Lot of
Social Inequality in Society
Artificial Distinction in Society
CA felt that this goes against Equality of Status
Balaji Raghavan v/s Union of India Case, 1996
Courts Allowed Presentation of Awards by Indian State
Indian Citizen cannot received Awards but not Titles
Except - Academic & Military Titles
Objectives
to avoid social equality & artificial distinction
Art 19 - Art 22 → Right to Freedom (5)
Art 19 - Protection of Certain Rights regarding Freedom of Speech (6)
Articles 19 & Its Allied Restrictions - A Summary
Art 19 1 A - FoSE
Art 19 2 - 8 RR
Art 19 A B - Assemble w/o Arms
Art 19 3 - 2 RR
Art 19 A C - Association Union Co Operatives
Art 19 4 - 3 RR
Art 19 A D - Move Freely Territory of India
Art 19 5 - 2 RR
Art 19 A E - Reside & Settle
Art 19 5 - 2 RR
Art 19(1)(a) - Right to Freedom of Speech and Expression
What is Freedom of Speech & Expression ?
Expression of Ideas, Beliefs, thought process, Faith and Ideologies subject to Reasonable Restrictions
How can it be Expressed ?
In the form of Picture, Writing, Speaking, Audio Video & Other Modes
Is it Absolute ?
It is not Absolute & is subject to Reasonable Restriction
What is the Definition of Right to Freedom of Speech and Expression
Definition : It is the Fundamental Right of the Citizens to express their ideas, views, beliefs, thoughts in the form of word of mouth, writing, painting, picturing, etc
How is Democracy Affected by FoSE ?
It is the Essence of Participatory Democracy in the World
What are the Important Dimensions of Rt to FoSE ?
Right to Freedom of Press
In Romesh Thapar v/s Union of India, 1950, Supreme Court declared the Right to Freedom of Press is Implied under RFoSE
Right to Freedom of Press
Protects Pre Censorship
Right to Propagate
Right to Publish
Press Cant be Subjected to Arbitrary Taxation
Right to Criticise
Kedarnath v/s State of Bihar,
Right to Remain Silent
Bijoe Immanuel v/s State of Kerala,
Students not singing national anthem, not disturbing anyone but not singing
SC Held that staying silent is not a sign of non patriotism and is the right under FoSE
Right to Know the Criminal Antecedents of Candidates Contesting Election
ADR - NGO to being Electoral Reforms in Country
Association for Democratic Reforms (ADR) v/s Union of India Case
SC Held that - People contesting election should declare their Criminal Antecedents
Can the Rt to FoSE be Restricted ?
Yes, as it is subject top Reasonable Restriction
How many grounds on which FoSE can be restricted ?
in total 8.
Who can Restrict it ?
Only State can by means of Reasonable Restriction
How can the FoSE be Restricted ?
It can only be restricted by a way of a Law
What are the Grounds ?
Sovereignty & Integrity of India - Law Pending
Example : anybody who would write or say something that affects the Sovereignty of India
Example : a Separatist Leader of Kashmir
Example : Anti India Comments on Social Media can be Removed
Security of the State
Law : Unlawful Prevention of Activities Act, 1967
Friendly Relation with Foreign State - Law Pending
Example : Someone is Authoring a Book, in which it consists some information which can strain the relation of India and some country
Hence, India on the basis of Reasonable Restriction can either completely ban or partly remove
4 Public Order
Law :
Sec 153 A - Hate Speech → Incitement of Offence → Disrupted Public Orders
5 Decency or Morality
Decency or Morality : Means of Norms of Society
Law : Indian Cinematographic Act, 1952
Body : Central Board for Film Certification (CBFC) - Does Pre Censorship of Movies
Why is Pre Censorship only to movies and not Press ?
Context : the content of motion pictures can affect the minds of society and frame narration
Not Pre Censored - Books, Press (Online & Offline), Newspaper
Pre Censored - Movies
It has huge impact on audience
something that people may like unlike book
you can easily convey message
actors are looked upon as role models
6 Contempt of Court
Contempt of Court : Showing disrespect to the court including criticising the judges and their decisions
Example : Prashant Bhushan
Law : Contempt of Court Act, 1971
7 Defamation
Reasonable Restriction to : Defamation
Law : Section 499 of IPC
8 Incitement to an Offence
Reasonable Restriction to : Incitement to an Offence or Hate Speech either Libel (written) or Slander (Speaking) to defame an Individual or a section of Society
Law : Sec 153 A of CrPC
Some Controversial Restrictions
Sedition
What is the Definition of Sedition ?
the use of words or actions that are intended to encourage people to be or act against a government
Any Action (words, signs or visible representation) that attempts to bring hatred or contempt or dissatisfaction or disloyalty towards the government established by Lae in India
What is the Law for it ?
Under Section 124 A of IPC Sedition is an Punishable Offence
Punishment Range : 3 Yrs to 14 Yrs
What is the current Petition in SC ?
to have a Sedition or to do away with it
What is the Background of this Law in India ?
IPC came into existence in 1860
1870 Amendment brought in Sec 124 A under IPC
It was brought in to control the actions of freedom fighters
Some Freedom Fighters who were found guilty of Sedition in British Times - Tilak & Gandhi
Gandhi Ji even pleaded guilty of this Offence
Will Criticism Amount to Sedition ?
In Kedarnath v/s State of Bihar Case, SC held that Mere Criticism of Government will not amount to Sedition
How many Sedition Charges are actually convicted ?
According to NCRB, in 97% cases the case put forth by govt is nullified and convicts are acquitted
Hence Conviction Rate is only 3%
NCRB : National Crime Records Bureau
What are the Criticism of Sedition Law ?
Sedition Law is a Colonial Legacy and in a democratic country sedition law should not exist
It has chilling affect on the rights of FoSE, especially on the Art 19(1)(a)
Its a Paradox that on one side scope & interpretation of FoSE is being widened and on the other hand Sedition Law is restricting it.
Even U K doesn't have such Law.
JLN personally remarked Sedition Law to be : “Highly Objectionable & Obnoxious”
Why Should Sedition Law be Continued ? - PENDING TO ADD Kedarnath v/s State of Bihar, 1962
1 Kedarnath : Member of CPI Party in Bihar 2 Essence of Statement
India has gained freedom from Britishers but India will actually be free when India will be free of Congress and we will work towards it
3 Congress Applied Sedition Law on Kedarnath 4 He Challenged this in Court saying
Application of Sedition doesn't Apply here
The Sedition Law Sec 124 A in itself is unconstitutional as Sec 124 A directly violates Art 19(1)(a)
5 Supreme Court has to decide that ?
Whether Sec 124 A is constitutional or not ?
SC held that Sec 124 A is Constitutional
Because FoSE is not Absolute
cuz of Diversity there may actually be instances of Sedition
But it cannot be used Arbitaraily
If it is constitutional, actions of Kedarnath is sedition or not ?
Kedarnath was not found guilty of Sedition
6 Supreme Courts Guideline in application of Sedition Law
What Does Not Amount to Sedition ?
Mere Criticism of Government, no Matter how stringent will and shall not amount to Sedition
Mere Discussion & Advocacy cant be Seditious
What Does Amount to Sedition ?
By Any Action of an Individual leading to clear & immediate violence against the State will constitute Sedition
Balwant Singh Case v/s State of Punjab, 1995
A Group of Sikh Individuals shouted “Khalistan Zindabad” after assassination of Indira Gandhi
SC Said that what they said is not Patriotic
but their actions didn’t lead to any violence and hence they were Acquitted
Aseem Trivedi v/s State of Maharashtra, 2011
Cartoonist Criticised Congress, Arrested for Cartoon, Acquitted
Kanhaiya Kumar v/s State of Union, 2016 Jignesh Mevani v/s State of Gujarat, 2019 Should Sedition be continued
Matter was Referred to Law Commission of India
Law Commission of India
Law Commission of India is a non-statutory body and is constituted by a notification of the Government of India
Law Commission Suggested in 2011 that Sedition is not Favourable.
Current Status of Sedition
It is Currently Sub Judice in the Supreme Court
SC said that until the decision is made, all sedition charges should be put at hold
Question : Mains
Should India do away with the Sedition Law ? Critically Examine. Critically Examine : Both Pros and Cons Finally Take a Rational Stand
The Mid Way - Way Forward
Dont Scrap ; Dont Current
The Laws Definition should be made more clear
It is currently cognisable, this can be altered a bit
More Procedural Safeguards in the Application of Law
Change in Semantics will reduce the Social Degradation and Media Trial of the Blamed
Most Sedition Law are applied on Journalists, the Journalists made requests that, before arresting people, HC should hear the conviction plea
Mala fide Intention of Application of Law can be defined
Ambiguity should be reduced. Rather than 'govt', it should only be contempt against the country/ 'India'…
Hate Speech
What is Hate Speech ?
Hate Speech is an Incitement to hatred Against a Particular group of persons such as a Particular race, religion, caste residence, sexual orientation etc especially in circumstances in which the communication is likely to provoke violence
Current Law Status ?
There is no Separate Law but a No of Law
Sec 153 A CrPC
Offence of Promoting Enmity or Feelings of Hatred on the Grounds of Religion, race, place of birth, language, residence etc
Sec 505 CrPC
Promotion of Fake News
Publication of Circulation of material aimed at causing public mischief or enmity of ill will
Sec 123(3) of Representation of Peoples Act, 1951
Regulates hate speech by election candidate
Case of Religious Parliament in Uttarakhand ?
Religious Leaders passed open resolutions against minority
Court Summoned Chief Secretary and asked can it be considered a Hate Speech
Mains Question
FoSE
Hate Speech - Art 19(2)
Films in India - Pre Censorship
Art 19(1)(b) - Right to assemble peaceably & without arms
Conditions of Peace
It Confers Fundamental Rights on Citizens to assemble peacefully without arms in public places
Conditions Are :
Peaceful Manner
In Public Place
Without Arms
Grounds on which it can be restricted
Protecting Sovereignty and Integrity of India
AFSPA → Armed Forces Special Powers Act, 1958
Invoked in Places considered to be a disturbed area
Disturbed Area : Insurgency Activities, Separatist Activities, Terrorist Activities
Example : J&K & North East States
With Application of AFSPA, Many Rights are Curtailed
Assembly of People even if its a peaceful protest is NOT ALLOWED
Public Order
Section 144
Prevents Assembly & Movement of People, Despite Order if people assemble it can be considered illegal
Art 19(1)(c) - Right to form Association or Union or Co Operative Societies
Article Says ?
Article 19(1)(c) confers rights upon the Citizen to form Association, Unions and Co - Operatives
When was the word Co Operatives Added ?
Co Operatives was Added by : 97th CAA, 2011
Meaning of Association ?
Group of People coming together for a common cause
Can be a Cultural Political Sports Caste
Individuals have the Right to form Association
To be a Part of Association is NOT the Right
Meaning of Cooperatives ?
Cooperative is a form of association but on economic terms
Meaning of Union ?
Union is also a form of association but the differences are
Forming an Union is a Fundamental Right but the Union has to be Registered under Trade Union Act, 1926
With Registration comes a Legal Obligation for Collective Bargain of Union and Employer or Opposite Party Allowed
Difference Between Union & Association
Examples of Unions
AITUC - All India Trade Union Congress INTUC - Indian National Trade Union Congress BMS - Bhartiya Mazdoor Sangh BKU - Bhartiya Kisaan Union
All Unions are Association but not all Associations are Union
Reasonable Restrictions
Grounds of
Sovereignty & Integrity of India
Public Order
Morality
Banned Unions
ULFA - United Liberation front of AsomPLA - Peoples Liberation Army LTTE - Liberation Tigers of Tamil ElumIM - Indian Mujahideen Al Qaida
Art 19(1)(d) - Right to Freedom of Movement
Article Says
To Move Freely Throughout Territory of India
Grounds of Reasonable Restrictions
Interest of General Public
Epidemic Act, 1897 - Legality of Quarantine
Sec 144 CrPC - Partying and Movement is Curtailed
Protection of Interests of Any Schedule Tribes
To Prevent the Contamination of Way of Living of Indigenous People
Bengal Eastern Frontier Restriction Act - Inner Line Permit Areas
To Enter into this Area, you have to take permission from State - Also called Quasi Visa System
States covered under ILP are : MINA + Ma
Mizoram
Imphal
Nagaland
Arunachal Pradesh
Manipur
Britishers also had this Inner Line Permit System but there motive was to protect there vested economic interests
Art 19(1)(e) - Right to Reside & Settle in any part of territory of India
Article Says Grounds of Reasonable Restrictions
Interests of General Public
Disasters Management Act - authorities can order leaving an area
Coastal Regulation Zone
Nuclear Power Plant Buffer Zone
Inner Line Permit System is for a Fixed Period
Protection of Interests of any Schedule Tribe
Art 19(1)(g) - Right to Profession, Occupation, Trade, Business
Article - Important for Economic Livelihood of Citizens
Right to Practise any profession or to carry any occupation, tade or business
Ground of Reasonable Restriction
Technical Qualification Restriction
Lawyer - Law Degree
Doctor - MBBS Degree
Interest of General Public - Public Safety | Health | General Welfare → of People
Public Safety
Nuclear Power Plant Right not given to Private Individuals
General Welfare
Railways Monopoly of State
Creation & Consumption of Alcohol
Slaughtering & Selling of Certain Animals
Health
Creation & Consumption of Alcohol
Art 20 - Protection in respect of conviction for offences (3)
Basics
Presence of this right prevents India from becoming a Police State
Conviction : Someone has been found Guilty of Some Offence
Protection Given Under Art 20
Art 20(1) → No Ex Post Facto Criminal Legislation
Types of Legislations are ?
Civil Legislation
Property Disputes
Family Disputes
Marriage
Divorce
Criminal Legislations
Murder
Domestic Violence
What is the Point of Difference for Civil and Criminal Legislation
Criminal Offences are considered to be a Crime Against the Society
Hence, State is the Prosecuting Authority
Civil Offence are often Interpersonal in Nature
Hence, Two Parties Involved can either be State or Individuals
Which type of Legislation is it applied to
It is applied only to Criminal Legislation
What is - No Ex Post Facto Criminal Legislations
Case 1 - Making a New Law All together
No Criminal Legislations CAN NOT be given effect from BACK DATE
All Criminal Legislation CAN be Implemented from either TODAY or from a FUTURE DATE
Hence, Criminal Laws in Country can be Prospective but not Retrospectively
Case 2 - Changing the Law
No Increase in Punishment for any criminal offence retrospectively
Can Punishment Decrease from a Back Date in Criminal Offence ?
Yes, it is not prohibited by constitution
Can State give effect to Civil Legislation Retrospectively ?
For a Same Offence at a Single Point in time, a person cannot be punished twice
Art 20(3) → No Self Incriminating Evidence
Article Says
Accused Immunity from being Compelled to Give Evidence Against Himself
The Procedure
First of All : Police Should Not Torture Someone to Give Evidence Against Self Second of All : Even if the accused is forced to give evidence against themselves (oral or document) Now if Person Says in front of Magistrate that he gave evidence against himself by force, the current evidence will be considered null & void
Also Provides Protection from
Narco Test & Polygraph Test can only be done by the permission of the convicted
But SC said that it is not an Immunity Against Cooperation with police in investigation
Art 21 - Protection of Life & Personal Liberty
SC View on Art 21
Has been given the Widest Interpretation
Article Says
No Person shall be deprived of his life or personal liberty except according to the procedure established by Law
Keywords
No Person - Rt to both Citizen and Alien Except According to Procedure Established by Law - by Following Procedure Established by Law
Meaning of Procedure Established by Law
SC said that meaning of Procedure Established by Law is same as Due Process of Law as in the USA Constitution
Right to Life
Meaning of Right to Life
SC Said : Rt to Life means Rt to Dignified Life
First time said by SC in Menaka Gandhi Case
Rt to Life is something more than mere animal existence or physical act of breathing
Rt Implied under Art 21 - Rt to Life
Rt Against Sexual Harassment - Vishakha Case Rt to LivelihoodRt to have a clean environment
Against Pollution
Rt to Die with Dignity
Right to Personal Liberty
Liberty Means
A set of actions that a man can undertake in pursuit of happiness by a free man which are subject to certain restrictions
Not just Rt Against Bodily Restraints rather all those rights & liberties that are essential for the orderly pursuit of happiness of a free man
Right Implied under Art 21 - Rt to Personal Liberty
Rt to Privacy Rt against Telephone Tapping Rt against Hand Cuffing
If Ind cooperates in arrest, he shouldn’t be handcuffed
Rt against Solitary Confinement Rt to Speedy Justice Rt to Travel Abroad
Case Studies
Two Concepts
Procedure Established by Law
There Should be a Law
The Law should prescribe a Procedure & that should be followed
Not Concerned whether the procedure mentioned in the Law is just, fair or reasonable
Due Process of Law
Procedure Established by Law (First 2 Points) +
Whether the Procedure Mentioned in the Law is Just Fair and Reasonable
What is the Difference between Procedure Established by Law & Due Process of Law ?
Due Process of Law focuses on the Procedure Mentioned in the Law is Just, Fair, Reasonable
A K Gopalan v/s State of Madras, 1950
The Case
A K Gopalan was a member of Communist Party
There was intel of a mass protest
Police arrested him on a Preventive Detention
he challenged it in Supreme Court
Details of Preventive Detention
Before committing the crime, on anticipation of police, an individual can be arrested
Preventive Detention can happen by a Law
Preventive Detention Act, 1950
Gopalan Argued
Gopalan Argued that his Rt to Life & Liberty is violated
He challenged Preventive Detention Act also
SC said
Rt to Life is not absolute
It checked for Procedure Established by Law
Is there a Law - Yes
Was the Procedure Followed - Yes
Hence SC is only concerned until here
Criticism
The Narrowness of Procedure Established by Law
The Procedure’s Just, Fair, Arbitrariness is not considered
Menaka Gandhi v/s Union of India, 1978 - Watch Part of Lecture 22/10
The Case
Menaka Gandhi had to travel foreign
Regional Passport Authority asked her to surrender the passport by means Indian Passport Act
She Surrendered the Passport & asked the reason for it
Regional Passport Officer Said : In Public Interests we cannot disclose the reason
Regional Passport Officer had the right to do so under Indian Passport Act
Filling of Case in Supreme Court
Menaka Gandhi with this reply filed a petition in SC and argued that this violated her
Art 14
Discretion of Presiding Officer - in which case to give reasons and in which case to not give reason
This Discretion leads to Arbitrariness of officer and thus Leads to Arbitrariness of State
Art 19
Art 21
Passport has been Seized - Cannot Travel Abroad & Cannot Return back
Violates Rt to Life & Liberty
Hence She argued that
Procedure Established by Law was unfair - Rt to Life
SC Upheld that
Only if we apply the Due Process of Law
Individuals Rt to Life & Liberty can be maintained
Case Studies Related to Interpretation of Article 21
Rt Against Sexual Harassment at Workplace - Watch Last Part of Lecture on 22/10
Declared to be a Fundamental Right by SC in Vishakha Case
Principle of Locus Standi - What your interests and how are u affected by this case
Traditional Way - Only People who are affected can go to court
Any one exposed to Sexual Harassment will not have a dignified life
Outcome
Training and Awareness has to be given
Creation of Sexual Harassment Compliance Committee
It will be headed by a women
will have representation from Local NGO concerned with this things to prebtn pressure from company
Committe will recommend Action
Legal Action
Action According to Conduct Rules of Service Conditions of Employees
in 2013 - Prevention of Sexual Harassment Act was made in 2013, hence for a long time Sc guide,ines acted as a tool to prevent sexual harrasment
Rt to Livelihood
It became a Fundamental Right after Pavement Dwellers Case in Mumbai Municipal Corporation.
SC said that Municipal Corporation was correct in doing it but at the same time Rt to Livelihood is a implied Rt in Rt to Life
Hence Suggestion by Supreme Court was of making Hawking and Non Hawking Zone
Rt to Clean Environment
M C Mehta Case - Polluting of River Wanter Ganga
Features
Polluter’s Pay
Cost of Implementation of Filtering Plants by the company
Banning of Crackers - Enforcement is Difficult, but it is Regulated
To Ensure Noise Pollution
To Ensure Air Pollution
Rt to Privacy
M P Sharma v/s Satish Chandra, 1954 Kharak Singh v/s State of Uttar Pradesh, 1962International Bodies which Recognise 2011
International Covenants on Civil & Political Rights
European Union
Universal Declaration of Human Rights
Justice Puttaswamy v/s Union of India, 2017
Retired Judge of Karnataka HC
Challenged the Aadhar Act introduced by Executive Action → which led to creation of UIDAI
UIDAI : Unique Identification Development Authority of India
UIDAI would collect
Biometric
Demographic
Dimensions of Rt to Privacy
Physical Privacy
Home
Even State needs Search Warrant
Already Existed but not as a Fundamental Right
Informational Privacy
use of personal data of individual related to Personal Data Protection
Other Should not use personal data of individual
Personal data is something from which one can be recognised
Decisional Privacy
Whatever decisions an individual makes can have no interference by any individual
Decision on Sexual Orientation
Sec 377 - Criminalises Sex Against Order of Nature
LGBT - Lesbian, Gay, Bisexual, Trans
LGBTQ+ → Q Questioning & Queer
Delhi HC gave some remedy in 2010
but SC turned it down in 2013, SC declared in 2013 that Sec 377 is correct
SC has read down some part of 377
Current Laws is :
Consenting Adults
Any Form of Sexual Orientation
in Private Space
Rt to Privacy Includes
Right to be Left Alone
Right to be Forgotten
Right to have any Sexual Orientation
How will the Violators of Rt to Privacy be punished ?
SC Appointed Justice B N Krishna Committee recommended
Data Protection Bill was proposed by Parliament ; Currently withdrawn from the parliament
Follow the Provisions of Bill, Closely, Whenever it is introduced, Its Very Very Important
Reasonable Restriction
Medical Records
Polce Investigation
Euthanasia (Rt to Die) & Rt to Execute a Living Will
What is Euthanasia
Procedure through which you medically terminate the life of an individual
Whom Does it Apply to ?
Applicable to Only those people who are in
Permanent Vegetative State
Permanent State of Coma
Brain Dead Patients
Is there a Law on Euthanasia ?
There is no Law in India on Euthanasia as such, it only works on SC Guidelines until now
How is Euthanasia different from Suicide
Sec 309 of IPC gives punishment of 2 Years if suicide fails
Natural Death of Ind is already commenced, he is in the process of dying, his life is not dignified in manner and hence dignified death be given to him/her
in Suicide, the Natural Death has not yet commenced
What are the Types of Euthanasia ?
Mere Procedural Difference of Providing Euthanasia
Active Euthanasia - Not Legal in India
Something is Actively Administered by Doctor to Terminate the Life of Patients
Ex : Lethal Poisonous Injection Administered
Passive Euthanasia - India Allows this
Medical Practitioner remains passive to the needs of patient
Ex : He doesn't replace the Medical Support System
Aruna Ramchandra Shanbag v/s Union of India, 2011
Implemented the Execution of Living Will
Background
Working as Nurse in Mumbai Hospital
Didnt had good relationship with Ward Boy
Ward Boy Strangled and Left her in Room
She wasted a Lot of Blood, She got into coma
Until Present She didn't gain any consciousness
SC Guidelines
Doctors Team will give a report
Kith & Kin has to be informed
Family has to be taken permission from High Court
Ask Immediate Family
If Not, Ask Relatives
If Not, Ask Care Takers
NGO Common Cause, 2018
Rt to Execute a Living Will
What is a Living Will ?
Consent of Patients
Voluntary Non Voluntary
Important Point
Due Process of Law will be Applied to Cases of Art 21 only
But, Supreme Court has devised its own mechanism to keep a check on the Just & Fair Nature of Procedure
Art 21 A - Right to Education
Article Says
Free & Compulsory Rt to Education
Background Development
Added by 86th CAA, 2002 Before it was made a Fundamental Right it was considered implied under Art 21 i.e Rt to Life and Liberty
Mohini Jain v/s State of Karnataka, 1992
in 1992, Mohini Jain v/s State of Karnataka declared that Rt to Education
upto Higher Education (Upto Tertiary Education)
Unnikrishnan v/s State of Andhra Pradesh, 1993
Rt to Education will be considered a FR under Art 21 upto Primary Education
86th CAA, 2002 Rt to Education Act, 2009
Any Child upto 14 Years of Age
has right to get Quality Education
with Access to Free Books & Dress
No Detention Clause
This Act has a No Detention Clause
with Enrolment, Retaining of Individual is also a must
They will be promoted upto 8th Std
But because of this Clause
The quality of education had been degraded
Math Skill of a Class 5 is of Class 1
Language Skills worst
Now they cannot be failed until Class 5
After Class 5 there will be purview of District Education Officer
Reservation
In Govt School, No Once Can Deny Admission
25% Reservation of Seats in Private School for Disadvantaged Section (SC ST & BPL)
Disadvantaged Section will be notified by the State Govt
Operational Implementation of this Reservation due to Stigmatisation is Difficult
Exception is : Minority Schools
Art 22 - Protection Against Arrest & Detention in Some Cases
Article Says
Protection Against Arrest & Detention in Certain Cases
Detention - Preventive & Punitive
Scheme of Things - Preventive & Punitive Detention
Punitive Detention
Defintion
Process
A → Complains Against → B → Police Officer Acts → Cognisable Offence → w/o Warrant Arrest
Judge if wants to extend the custody, will give the Judicial Custody - ie in Jail and not in police station
After Investigation Report is submitted, and then he is bailed until judgement is given
Result
Found Guilty → Sent to Jail → Punitive Detention
Not Found Guilty → Released
Rights of Person who is Arrested
Written
Should be Informed the Reasons of his Arrest
Has to be given a Legal Right of Lawyer
Has to be produced in front of nearest Magistrate in front of a Judge within 24 Hours
Judge will give permission for extending the custody or giving the bail
Image
D K Basu v/s State of West Bengal
Rt to see the Identity Card of Police Officer
There has to be a Arrest Witness of a Person in locality
Women has to be Arrested
in presence of a women police officer
after sunrise and before sunset
To Note
The Trial Will Take Place
Offence has already taken Place
Preventive Detention
Defintion
Example
All Local Leaders were kept under house arrest
A K Gopalan Case
To Note
It is done in preventive basis
The actual commission of offence has NOT been done
Preventive Detention can happen only by way of Law
Both Central & State Can Make Law
Centre - Applies in India
State - Applies to State
Examples of Laws of Preventive Detention
PDA - Preventive Detention Act, 1950
MISA - Maintainence of Internal Security Act, 1971
NSA - National Security Act, 1980
Constitutional Provisions
PD not beyond 3 Months w/o the approval of advisory board
Advisory Board Consists of
Judge of HC & Other Members
Detention can not be beyond the period prescribed in the Law
Ex : NSA Max Detention is 1 Year Detention
Detainees are entitled to know the grounds of the detention
Except : Public Interests
Art 23 - Art 24 → Right Against Exploitation(2)
Art 23 - Prohibition of Traffic in Human Being and Forced Labour
What does the Article Say
What is Begar & Human Trafficking
Trafficking - Commercial Exploitation of Human Beings
Organ Harvesting
Sexual Slavery
Prostitution
Why is Trafficking a serious concern for India ?
India is at the Tri Junction of Afghanistan and Pakistan leading way to South East Asia
What are the Laws Against It ?
Immoral Traffic Prevention Act, 1986
Bonded Labour System Abolition Act, 1976
Is Devadasi a part of Human Trafficking
Some Big Temples in South India and Orissa it was widely prevalent
Some Young Girls are brought to Temple as Wife & Daughters of God
But in the lieu of Religion, they are sexually exploited by Local Influencers
Art 24 - Prohibition of Employment of Children in Factories
Article Says
No child below the age of 14 Years, shall be employed to work in any factory or mine or engaged in any other hazardous employment
What are the Acts Against it ?
Mines Act, 1952
Factories Act, 1948
Child Labour Prohibition Act, 1986
Lists Down the List of Hazardous Jobs
Recent Amendment - Done to be in Resonance with Rt to Education
The Child Labour (Prohibition & Regulations) Amendment Act, 2015
Here Rt to Education has been made a FR
Category Child (0-14)
Child Shall Not be employed in any employment upto age of 14
Exception to - During Vacation Not During School Hours
Audio Visual Industry
Family Enterprise
Self Agricultural Farms
Adolescence (15-18)
Shall not be employed in Hazardous Jobs
Art 25 - Art 28 → Right to Freedom of Religion(4)
Background
Questions to Ask ?
Positive Secularism has a Interventionist Approach
To What Extent Can State Intervene in the Religion
Article in totality Says
Profess, Practise, Propagate : The Freedom of his Choice
Art 25 - Individual Religious Rights
Article Says
Propagate - Disseminate Information
Practises - Rituals or Religious Practises
Profess - Openly using his/her faith/belief
Important Points
State Intervention is Possible in Matters of Religion → Positive Secularism
Reasonable Restriction
Public Order
Use of Loudspeakers
Morality & Health
Health
Practise of Sallekhana & Santhara
Morality
Practise of Performing of Nudity by Monks of Digambar's
Other Provisions of this Part
If Rt to Freedom of Religion is violative of others FR
Forceful Conversion
a Person wilfully can convert from religion to another religions by his faith and clarity of conscience
but cannot be by means of force, fraud, inducement or fear
Doctrine of Essentiality
Also called the Doctrine of Essential Religious Practise
Religious Practises can be divided into 2 Parts
Essentiality Religious Practise
According to Supreme Court there are certain practises which are integral to the religion w/o which the practise of the religion is not possible
Non Essential Religious Practise
However there are certain practises which are not integral to the religion. Such Practises doesn't affect the essence of the religion
Sirur Math Case, 1954
Innovated by SC for the first time in this case
Santhara Case - Jains
HC Said it is not
SC it is Essentially Religious Practise
Evidence Taken as
Religious Texts
Testimony Given by Religious Experts
Hijab Case - Muslims
One View - No
Against Secularism & Equality
One View - Yes
Rt to Life - 21
Rt to Liberty - 19
There is no Question to enter into Doctrine of Essentiality
Evidence Taken was
Empirical Evidence
Behavioural Issues
Sabrimala Case - Hindus
Why Not Entered
God Placed in sacrosanctum practises Celibacy
Hence entry of Active Menstruation Ladies is not allowed
SC Said
Evidence - Scriptures & Religious Experts
Violative of Art 17 & Art 25
Criticism of Doctrine of Essentiality
Judges may be Legal Experts but they are not Religious Experts
Methodology Used by Judges is Different in Different Cases
In Totality, Why is Supreme Court Venturing into a domain, which is not its domain
Art 26 -Freedom to Manage Religious Affairs & Religious Denominations
Article Says
Meaning of Denominations
Denomination means the Group of People
Within a Religion there can be many Denomination
Religious Denomination has not been defined in the constitution
Definition by SC : It consists of a Religious Sect or a Body having common faith and organisation and designated by a distinct name
Rights Included within are
Rt to Establish Religious Denominations Rt to Manage their Religious Affairs Rt to do Charitable Activities Rt to Acquire & Own ; Movable and Non Movable Property
Subject to Reasonable Restriction
Note : Art 25 Individual Art 26 Group Art 27 - Religion cannot be a basis of Taxation Policy in Country
No Tax on the Name of Religion ; Whatsoever
Usage of Tax on Promotion of Religion
Subsidy for People for Mansarowar Temple
Building of Ram Temple, Contribution by States
Hajj Subsidy Earlier there, Now not there
Question of Fees collected in Various Temples in India
collected only for secular activity and not for promoting religion
Art 28 - Can there be Religious Instructions
Article Says
Religious Worships - Religious Practises cannot be forced upon students
Religious Instructions - Preaching of Religious Texts and Scriptures
Three Types of Institutions
Educational institution wholly maintained by State
No Religious Instruction - 100% Ban
Educational Institution Administered by State but Established under the Religious Endowment or Trust
Religious Instructions are allowed
Religious Endowment or Trust Act
Estab of Madarsa
Estab of Convent Schools
Private Educational Institutions recognised or aided by the State
Religious Instruction or Worship can be Imparted only on Voluntary Basis
Cannot be Forced to do it
What is the Exact Meaning of Religious Instructions
Mere Teaching of Religious Peoples Lives, Like teachings and values of Guru Nanak is not a Religious Instruction
Art 29 - Art 31 → Culture & Educational Rights
Art 29 - Protection of Interest of Minorities - FOR ANY SECTION OF CITIZEN
Article Says
Section of Citizens
Can be a Minority or Majority - Any Section of Citizen
Residing in Any Part
Distinct Language, Script, Culture
Shall Preserve by Any Means
Like the Game of Jallikattu
Initially banned
Protest in Tamil Nadu
Again Court Hearing and Finally Allowed with Slight Modification in Tamil Nadu
Jallikattu
Taken up by PETA
Asked for Ban of Jallikattu
Cruelty of Animals to be Prevented
Prevention of Cruelty to Animals Act
What Does Jallikattu Do ?
Practise leads to hurting of these animals
usage of chilli powder on eyes and nose of animals
physical abuse of animals to make it more violent
Art 30 - Right of Minority to Establish & Administer Educational Institutions - ONLY FOR MINORITY
in Art 29 - by any means in Art 30 - by means of establishing educational institutions
Conditions
Only if they(minority person or group) establish and then they will have right to administer
No Unnecessary Interference from State
Art 30(1)
Article Says
All Minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice
Grounds on Which Minority can be Identified
Religion
Language
Amongst these 2 who will be minority
that is not defined in the constitution
What is the Basis of Identifying Minorities
TMA PAI Foundation v/s State of Karnataka, 2003
wherever the educational institution has to be established ; the state should be the unit
Whoever is less than 50% in numbers on grounds of language or religion → it will be considered as minority
Examples of a Minority Educational Institutions
AMU
St Stephens
Jamia Milia Islamia
Privileges to Minority Educational Institutions
They will be regulated but with minimal interference
they can setup their own governing body
reasonable fee structure, state can just set a boundary
they will recruit their own teaching or non teaching staff
method of appointment - upto institute
Admission should be in fair manner - but how do u do that is your outlook
Why is the Minority Educational Institutions
To Give Impetus to education in that community
Free to Reserve 50% of Seats in the Institution
Reservation Doesn't apply here
Can the Land be compulsory be acquired by state ?
Normal Institution
Yes it can be acquired by state compulsorily with proper remuneration
Fair & Just Compensation < Market Value
Minority Institution
Can be Compulsorily Acquired
But the Compensation here should be completely on Market Value and NOT a Just & Fair Compensation
Art 31 - Rt to Property && Art 19(1)(f) - Currently Removed from Part 3
By 44th CAA, 1978
Both Clauses were present in the original constitution
19(1)(f) - removed from Part 3 of the Constitution
Article Says
Guarantees to Every Citizen the Right to Acquire, Hold & Dispose Property
Not an Absolute Right
RR for Art 19(1)(f) are
Public Welfare
Interest of Scheduled Tribe
Art 31 - Removed from Part 3 and Placed in 300A
Article Says
No Person shall be deprived of his property except by an authority of Law
Law : Land Acquisition Act
Meaning : The Action of the state has to be backed by a Law
Earlier it was a FR now its a Legal Right
Kameshwar Singh v/s State of Bihar, 1950
He Said Land Acquisition Act is violative of Art 14 Art 19 Art 31
SC Said land can be taken away by law
He Said that it should be by Fair & Just Compensation - Hence Violative of Art 19 & Art 31
Different Place Different Compensation - Violative of Art 14
SC accepted this Premise
Was a Blow to the Govt. Hence Series of Changes were brought to Indian Constitution
as a Reaction to Kameshwar Singh v/s State of Bihar
Art 31 A was inserted
Art 31 A - Art 31 D → Saving of Certain Laws
Art 31 A - Saves Certain Categories of Laws related to Agrarian Reforms
Inserted by First CAA, 1951
Saves Certain Categories of Laws related to Agrarian Reforms, (Specifically 5 Categories of Law) specifically for Socio Economic Reforms
Even if Law of Land Acquisition violates Art 14 19 31 is violated, it cannot be challenged in court of law
Art 31 A takes away the power of Judicial Review from Courts on the cases of Art 14 19 31
Art 31 B - Saves Laws Placed in the Ninth Schedule
Inserted by First CAA, 1951
Saves Laws Placed in the Ninth Schedule
Provides for Complete or Blanket Immunity
Provides Protection Against All the Fundamental Rights
Why Need 31 A when there is 31 B
31 B requires a CAA && only when it is placed in the Ninth Schedule
Currently there are 284 Laws in the Ninth Schedule
Where as a CAA is not required in case of Art 31 A
Art 31 C - Save Any Law Trying to Implement Art 39(b) & 39(c) on grounds of violation of Art 14 19 31
Inserted by 25th CAA, 1971
Indira Gandhi Wanted to Specifically Implement Two Important Directives i.e Art 39(b) & Art 39 (c)
Art 39(b) → Prevention of Concentration of Wealth in the hands of few individuals of society
Art 39(c) → Redistribution of Wealth
by 42nd CAA, 1976 she tried to enlarge scope of Art 31 C
Protection of 39(b) 39(c) was extended to all the DPSP over Art 14 19 31
Now the Art 31 C read - Saves Any Law Trying to Implement DPSP over Art 14 19 31
Minerva Mills Case, 1980
This was taking Judicial Review of Supreme Court. Hence, the Extended Scope of 31 C was made null and void
SC declared - These 2 to be part of Basic Structure
Judicial Review
Harmonious Balance between DPSP & FR
Sometimes 39 (b) 39 (c) can be given supremacy over Art 14 19 31
Here DPSP - Collective Need - Art 39(b) && Art 39(c)
Here FR - Individual Need - Art 14 19 31
44th CAA, 1978
19 (1)(f) was repealed
Art 31 deleted & inserted in Art 300 A
Art 32 - Art 35 → Right to Constitutional Remedies - Heart & Soul of Constitution
Art 32 - The 5 Writs
Writ Summary
Background
According to Ambedkar its the Heart & Soul of the Constitution
Talks About Writ Jurisdiction
Enforcement of Rights comes from this Right
Rt to Seek Remedy in case of violation of FR is itself a FR
Process of getting Constitutional Remedies
Individual will file a petition that SC has been violated
Court will issue Writs - Directive by Court
Powers of Issuing Writs
Power to Issue Writs is a Concurrent Powers(SC & HC Both) and Not Exclusive Power
Affected Individuals can knock doors of
SC under : Art 32
HC under : Art 226
Difference in Jurisdiction of HC & SC
Difference Between Knocking Doors of SC & HC
Territorial Jurisdiction
But SC has got wider Territorial Jurisdiction
whereas HC can issue writs only if right has been violated within the state
Nature of Cases
SC can issue writs only in case of violation of FR
where as HC can issue writs for both FR & Legal Rights
Can any other court other than SC & HC issue writs
Art 32(3) provides for the Parliament to Give power to Other Courts to Issue Writs as well
Not done until now
When is a Writ Issued
When the violated BRINGS TO THE NOTICE OF COURT, that his FR has been violated
Meaning of Locus Standi ?
Whenever a case is brought in front of court, the court asks the person, what is your standing or what is your relation to this case
Traditionally Judiciary has been following the rule that, the person who is affected should come to the court
the affected person might not have resources to file the case, this would prevent justice
Public Interest Litigation - PIL
hence SC innovated PIL - Public Interest Litigation
Where the another person having no connection to the case, can apply to the court for justice
Examples are
Aruna Shaunbague Case
Vishaka Case
Habeas Corpus - To Have the Body
Meaning
Literally Means to Have a Body
It means, to produce the body in front of the authorities which has issued the order
Does Principle of Locus Standi apply in this case ?
No it does not apply in case of Writ of Habeas Corpus
Meaning not necessarily the Affected Ind but any other person can also file for petition
Hussainara Khatoon & ORS v/s Home Secretary, State of Bihar, 1979 - PIL
It was in case of prolonged Undertrials
in Bihar No of Undertrials were increasing,
even if convicted jail would be for 2 Years
but they have spent 5 to 6 Yrs in Jail
SC Said
Rt to Speedy Justice is Rt under Art 21
Initially 14 Undertrials were released
Taking Precedence later 40,000 Undertrials were released
Mandamus - We Command
Principal of Locus Standi Doesnt Apply here
Its a command given by the Courts
to the Public Authorities (PA)
in case of Violation of Rights
cuz PA failed to Perform the Duty
This is only in case of PUBLIC Authority
Failing of PA could be
Omission - Missed
Commission
Examples of Public Authority not doing its work ; for the court to issue mandamus
Police Station not Filling FIR
Municipal Corporation Not taking care of Pollution Free Environment
Prohibition - To Forbid (HC→LC)
Direction for Higher Court to Lower Court
Preventive in Character ; Negative Injunction
Principle of Locus Standi Applies in Case of Prohibition
This is a Direction from Higher Court to Lower Court ; to tell the lower court that this is not the jurisdiction of the lower court in the first place
Prevents Lower Court from Exceeding Jurisdiction
Negative Injunction which directs Inactivity of Lower Court
Applies to Only Judicial and Quasi Judicial Authority
Examples of Quasi Judicial Bodies
Parliament
Finance Commmission
Election Commission
Arbitration Board
Tribunals
What if the Lower Court has already passed the boundary of Jurisdiction
Certiorari - To Certify
Grounds on Which Higher Court can certify Lower Courts Judgement
Error of Law
Excess of Jurisdiction
Violation of Natural Justice
Certiorari is CURATIVE in NATURE
Principle of Locus Standi Applies
Can be Issued against
Against Judicial
Quasi Judicial
Administrative Authorities - by Departmental Enquiry based on the Conduct Rules
Quo Warranto - By What Authority
To Check of an Eligible Person is holding on to the Public Office (which is Significant & Substantive)
Examples : PM, CM, CoM, CEC, CVC
These Offices can only be held with Suitable Qualifications
Whenever the Writ of Quo Warranto is filed, the person has to prove in court of law that he fulfils the eligibility
by What Authority or Warrant
Enquire into Legality of claim of a Person to a Public Office
Against Public Authority holding office of substantive importance
Principle of Locus Standi does not apply
Under Representation of People Act, 1951
If they are convicted for a minimum of 2 Years or More. Then they will be immediately disqualified to be the member of state legislature
Further, They cannot contest election for another 6 Years
Examples
Jayalalita was convicted for 4 years for Prevention of Corruption Act
Her Party won the Elections
she didn't fight elections
She was appointed the CM
Quo Warranto Applied
6 Months time for Jaylalitha
SC said within 6 months also she is not eligible to contest elections
Azam Khan convicted for 3 years for Hate Speech
Art 33 - Power of the Parliament to Modify the Rights Conferred by this Part (Part 3)
Art 33 empowers the parliament to restrict or abrogate the FR of the members of the
armed forces - Army Navy Air Force
para military forces CISF, BSF, NSG, ITBP
police forces - CBI
intelligence agencies - R&AW, IB
analogus forces - NIA
Examples of Law
Army Act, 1950
Navy Act, 1950
Airforce Act, 1950
Police Force (Restriction of Rights), 1965
Rights Restricted are :
Rt to Form Union
Rt to Speech and Expression
Rights Restricted due to
National Security Concerns
Art 34 - Restriction on Rights conferred by this part while Martial Law is in Force in any area
This Part is Part 3
Sec 144 is NOT Martial Law
After Independence ; There has never been implementation of martial laws
Martial Law : Military Rule
The Civil Administration System doesn't work
The Justice, Administration & Whole Process of an area is given to an army officer
When can Martial Law be Implemented - War, Invasion, Insurgency
Art 35 - Legislation to give affect to provisions of this part (3)
Who has Authority to make Laws for Part 3
Article 35 Empowers the Parliament not the State Legislature
To Make Laws to give the Affect
Article 16(3)
Article 32(3)
Article 33
Article 34
Prescribe Punishment for those acts which are declared to be offences under this part
Art 17 - Untouchability
Art 23 - Begar
Art 24 - Child Labour
Trinity - Goden Triangle - Art 14 19 21
Before Menaka Gandhi Case, FR were considered different in water tight compartment
After MG case only, FR were considered to be connected
If Rt to Life & Liberty is Deprived - Art 21
If need to be, only by Due Process of Law
Test of not only Art 21 but also test of Art 14 & Art 19 is also needed
How is Art 14 19 21 related
Restrictions should be - Reasonable Restriction
Test of Reasonability
Google Art 14 19 21
Part 4 (Art 36 - Art 51) - DPSP
Art 36 - Definition of State
Article Say
Same as Definition in Part 3 unless stated otherwise
Why do we need to define it
To Know who has the obligation
If violated, who is accountable
Art 37 - Moral Obligation
Shall be the Duty of the State to apply these principle in governance of the state though not enforceable in a court of law
Duty of State to ensure Peace and Stability in society
By Institution of Police and Court
Art 39 - Certain Principles and Policies
6 Principles under Art 39 are
1 To Secure Adequate means of Livelihood for all the Citizens
MGNREGA
UBI - Universal Basic Income Scheme - Not Implemented but Govt is contemplating
Minimum Allowance to Citizen, to follow a certain standard of life
India is thinking about Quasi Judicial UBI
Work More on it
2 Equitable Distribution of Resources - Art 39(c)
Equitable not Equal
Land Reforms Act
Progressive Taxation Methods
Tax from Rich
Subsidy to Poor
3 Prevention of Concentration of Wealth - Art 39(b)
Progressive Taxation
CSR
Abolition of Privy Purse
Abolition of Princely States
4 Equal Pay for Equal Work
To Prevent Social Justice
Equal Remuneration Act
Men and Women India Cricket Team
5 Preservation of Health of Workers
Labour Laws
Mines Act
Factories Act
Industrial Disputes Act
Disability During Work - Compensation
6 Opportunity for Healthy Development of Children
Mid Day Meal Scheme
Mission Vatsalya
ICDS - Integrated Child Development Scheme
POCSO - Protection of Children against Sexual Offences
ASHA Workers
Art 39A - Equal Justice & Pre Legal Aid
There is no Equal Access to Justice
Free Legal Aid for certain people
Legal Services Authority Act
Provide for Free Legal Aid for Poor People
National = NALSA - National Legal Service Authority
State = SLSA - State Legal Service Authority
District = DLSA - District Legal Service Authority
Art 41 - Right to Work, To Education, To Public Assistance
Work
MGNREGA
Education
Rt to Education
Public Assistance
Provision for Disables in Public Sphere
Disasters
Old Age Homes
Widow Pension Schemes
Art 42 - Provision for Just & Humane Conditions of Work and Maternity Leaves
Just & Humane Conditions of Works
Mines Act, Factory Act, Industry Disputes Act
Maternity Leaves
Maternity Benefit Act
One is maternity leave which is of 180 days ( applicable for first two children only ) which can be started 3 months before the delivery date. This is now applicable to all private and public institutions also.
In central govt one more leave ,that is child care leave which is of 720 days which can be taken till the child attains the age of 18 years.
Paid Leave Means
She can take paid leave of 26 Weeks in an organised Sector
It will be counted for her seniority and her salary will be given
can be taken in one single stretch or in any no of breaks
Art 43 - Living Wage etc for Workers
Minimum Wages Act - to Prevent Exploitation of Workers
Implementation is still questionable
Art 43A - Participation of Workers in Management of Industries
Industrial Disputes Act
Trade Union Act
Workers can collectively Bargain by forming a union
Art 47 - Duty of State to raise the level of Nutrition, Standard of Living, Improve Public Health
with Constitutional Status - It means it becomes Mandatory to be established
Earlier - Even if Panchayat will be constituted or not, state could actually stop it also
For Gandhi Democracy at Grass Root Level is the Real Democracy and not at the Highest Level
Advantage of Having Panchayat, Elected Representatives of Local Area, They can question them
Hence, Third Tier Democracy Increases Accountability
Art 43 - Promotion of Cottage Industries - Gandhian Principles
Promotion of & Empowering the Cottage Industries
Art 43 B - Promotion of Co Operative Societies
Co Operative Societies Act - To Regulate and Empower Co Operatives
Art 46 - Promotional of Education and Economic Interest of SC ST and Other Weaker Sections
SC ST OBC
Reservation to SC ST OBC in Educational Institution
Reservation for ST in Promotion
Standup India Schemes - To Promote Economic Interests of SC & ST
Every Year a Minimum of 1 Crore has to be Sanctioned for the SC ST for Entrepreneurship from EACH & EVERY BRANCH of each bank
Economically Weaker Section
103rd CAA - EWS - Weaker Section
Art 47 - Prohibition of Intoxicating Drinks
Gujarat, Bihar, Nagaland, Mizoram, Lakshadweep
In Gujarat - was challenged under - Art 19 (1)(g) - Rt to Occupation Trade and Business
In Bihar - was challenged under - Art 21 & Art 19
Patna HC - Struck Down Bihar’s Case
SC Sub Judice
Follow Judgement
Art 48 - Organisation of Agriculture and Animal Husbandry
Most of the States there is a Regulation with regards to prevention of Slaughtering of Cow and other Milch Animals
Complete Ban - UP, Gujarat, Rajasthan, MP
Partial Ban - Karnataka
Like Until Productive Age, There cannot be Slaughtering
No Ban - Kerala & Some North Eastern States
Liberal (7) - 44, 45, 48, 48A, 49, 50, 51
Art 44 - Uniform Civil Code (UCC) - Very Important ⭐️⭐️
How old is the case of UCC ?
The Debate of Having a UCC is as old as the CA itself.
What is the Meaning of UCC ?
Definiton
A Set of Common Civil Code for all Indian Citizens in personal matters related to marriage, divorce, property, inheritance etc irrespective of religion which right now is not uniform
Uniform - Set of Common Laws
Civil Code
Mundane Aspects
Marriage
Divorce
Inheritance of Property
For Civil / Personal Laws
Current Status of Laws ?
80% Hindu Buddhism Sikh Jain - Same Law
20% Muslims Christians Parsis & Others - Different Law
Why do we need UCC - In Favour ?
It is the Moral Obligation of State
UCC is example of Progressive Society
Example : France & USA
Uniform Laws help in reduction of Vote Bank Politics
Deals with Remedy to Violation of Rights
Example
Grounds of Religion - Art 15
Equality Before Law - Art 14
Right to Life - Art 21
Gender Injustice across religion
Equality of Law Across Religion
Why do we NOT need UCC - Against the Motion ?
Violative of Art 25 - Religious Rights
If people don’t accept
State Implements it by Force
Unity & Integrity of the Nation will hampers
because people will resent
State Interference in Personal Matters
Examples of Laws Different Laws Currently ?
Marriage
Hindu Marriage Act, 1955
Muslim Personal Law (Shariat)
Incurable Leprosy
Hindu & Muslim - Ground for Divorce
Christian & Parsis - Not Ground for Divorce
Adoption
Adopted Child Right to Inherit Property - Hindu Yes
Other Religion No
Maintainence After Divorce
Hindus - Compulsory
Others - No
Practise of Triple Talak & Polygamy
Muslims - Allowed Until Now
Hindus - Not Allowed
How does it violate FR ?
Art 14 Art 19 Art 21
Who Suggested UCC in CA ? Ex of Western Countries which have UCC ?
France and USA
Case Laws wrt to UCC in SC & LC ?
Largely SC was Neutral,
Shah Bano Case, 1985
Case of Divorce b/w Muslim Husband & Muslim Wife at age 65
Husband denied Maintainence
Maintenance for only first 3 Months
Under Muslim Personal Law, she cant get maintenance
SC invoked 125 of CrPC - Criminal Law Its a Punishable Offence to not Provide Maintainence to Wife
Even after Divorce she would continue to be Wife of husband if she has not married anyones else
Husband will have to give Rs 500
SC Recommended Implementation of UCC
Sarla Mudgal Case, 1995
Sarla Mudgal - Hindu
Husband - Hindu
Marriage - Hindu Marriage Act
Husband - Converted to Islam
Husband - Married Muslim Women
SC declared
We don’t see your religious conversion not on belief but to take advantage of polygamy rule of Islam
SC Suggested Govt to think about UCC
SC recommended matter to Law Commission
Law Commission has very categorically said that UCC is
Neither Feasible Nor Necessary
Why LC said like this
Tension Amongst Minorities
Citizens don’t accept it
LC suggested Incremental Approach but not a Sweeping Reform
Example
THE PROHIBITION OF CHILD MARRIAGE
(AMENDMENT) BILL, 2021
Like Making Age of Marriage 21
Art 45 - Provision for Early Childhood Care & Education to Children below the age of Six Years Art 48 - Organisation of Agriculture and Animal Husbandry
Green Revolution Pink Revolution White Revolution Schemes
Art 48 A - Protection & Improvement of Environment and Safeguarding of forest and wildlife
From Environment Classes
Art 49 - Protection of Monuments and Places and objects of National Importance
Ministry of Culture
ASI - Archaeological Survey of India
Scheme : Adopt Heritage Sites Scheme
Companies Can Show it as part of CSR
CSR under Companies Act
Private Individuals, Companies & NGO
Art 50 - Separation of Judiciary from Executive
CrPC - De Alienates Power of Police & Who Can Give Punishment
Art 51 - Promotion of International Peace & Security
India is the Second Largest Country in the World to Give Men for International Peace Keeping
Panchsheel - Non Interference in Internal Affairs of other Country
No First Use Nuclear Policy
India will not use Nuclear Weapon against a Non Nuclear State
India was initially a part of Non Alignment Movement
Does Constitution divide DPSP categories
No it does not, we make these division for our understanding
Background
Present in Part 4 of Constitution
Consist of Art 36 to Art 51
What is a DPSP
They are Certain Guidelines and they are very detailed guidelines
How is FD & DPSP related
FD are Moral Obligation - On Citizens
DPSP - Moral Obligation - On State
How does DPSP lead to Welfare State
If State keeps implementing DPSP → will automatically lead to Welfare State
Why was DPSP Kept a Moral Obligation
Initially india was a Nascent Democracy at the time of Independence
Though Some Members of CA wanted it to be a Legal Obligation, Ambedkar Said it should only be a Moral Obligation because
Resource Constraints
DPSP is very aspirational, country like US cant even implement it fully now
Legal Obligation will only increase the Litigation in Courts
Power of Indian Democracy
Even Moral Obligation can make Govt follow the DPSP, because India is a Democracy and they cant ingnore it
In what condition DPSP is Justiciable
Unless Implemented It cant be made a Legal Obligation
But if the Govt makes a Law and Confers Rights in the Citizen → Taking Inspiration from DPSP→ Then after the Law being made → If rights are violated, now it is justiciable
Example
MGNREGA - 100 Days of Employment
If he is not given Employment, he can seek remedy
Is DPSP new to Constitution
In Government of India Act 1935, there were elements of DPSP
In GOI Act, 1935 it was called Instrument of Instruction
What is the Difference Between FR & DPSP ?
Examples of Questions Possible
Justiciable or Moral Obligation
Amendments of DPSP
Difference from DPSP & FR
Prelims Exam - Min 1 Max 2
Mains - 1 Question - Majorly UCC
Part 4A (Art 51A) - Fundamental Duties
Background - Factual Information
was not Part of Original Constitution
Added by 42nd CAA 1976
Added to Part 4 A
Added Art 51 A
Initially had 10 Duties
11th Duty added by 86th CAA, 2002
The Fundamental Duties Images
The Story Behind its coming
Based on Recommendation of Swaran Singh Committee (Defence Minster of India then)
He was Part of Kitchen Cabinet of Indira Gandhi
1975 - 1976 - Time of Third National Emergency
People weren't happy ; Public Property was destroyed
He Recommended Bringing in some Fundamental Duties
This FD could be a Moral Obligation & NOT a Legal Obligation
Important Points to Note
It is the Duty of the Citizens
It is the Moral Obligation of Citizens
There is NO moral obligation on Aliens
Can It be made a Legal Obligation
Examples
FD : To Respect National Emblems
Law : Prevention of Insults to National Honours Act, 1971
It become a Legal Obligation, Only if the Law is Made on it
Scope of Mains Questions
FD is the Codification of task integral to Indian Way of Life
with FD it was codified but the morals were already present in the lives of Indians
Sample Question
Respect National Emblem
Call for Nationalism and Preservation of Property
Preservation of Environment
Worship of Nature
Sacred Grooves in Tribe
Chipko Andolan
Strive Towards Excellence
Bose
Aryabhatta
Taxilla
Composite Culture
Most of Kingdoms Secular
Less Religious Persecution
Institution of Family & Marriage is Sacred in India
Protecting Sovereignty
Sikh At least 1 Offspring to serve the army
Scope of Prelims Questions
Non Justiciable
Applicable Only to Citizen
Facts
Which of the Following is a Fundamental Duty
Detailed FD
To Abide by the Constitution and Respect the Ideals of Constitution & to the National Flag and National Anthem
Ideals are Justice Liberty Equality
Institutions - Judiciary Parliament
To Cherish and to follow the Noble Ideas which inspired Struggle for Freedoms
Ideals - Self Respect, Non Violence, Satyagraha
To Uphold Protect and Sovereignty & integrity of India
Revolt against foreign rules
Uprisings & Revolt of 1857
after independence, Chinese war, civilians participated
To Defend Country
Same as above
To Promote Harmony and the spirit of common brotherhood amongst all the people
Vasudeva Kutumbhakam
Renounce Practise Derogatory to Dignity of Women
Social Reformer - Abolish Sati Widow Re Marriages
Value & Preserve Rich Heritage & Composite Culture
Indian Festivals
Foreign Soft Power
Scientific Temper
Bose Aryabhatta
Spirit of Reform
RRMR
Safeguard Public Property & Abjure Violence
Satyagrah
Non Violence in Religions
Individual and Collective Activity
DPSP
Cooperative Movements
Child Education
Gurukul Culture
Executives - Union & State Executives
⭐️Division of Power - Union & State
Because of Division of Powers ; Executive in India can be divided into two Parts
Union Executive
Political Exec
President
Vice President
Prime Minister
CoM
Permanent Executive
Attorney General
Civil Servants
State Executive
Political Exec
Governor
NA
Chief Minister
CoM
Permanent Executive
Advocate General
Civil Servants
⭐️President - Basics
Articles Involved
Art 52 - There shall always be a President
Art 53 - Head of Union Executive
Art 54 - Electoral College for Presidential Elections
Art 55 - Proportional Representation
Art 58 - Qualification of President
Art 59 - Conditions of Presidents Office
Art 61 - Impeachment
Art 71 - Election Dispute of President
Art 74 - Council of Ministers to Aid & Advice the President
Who are the Real Executive ?
Real Executive is Someone Directly elected by People
PM & CoM
Is President a Real or Nominal Executive ?
Although He is head of Executive. he is a Nominal Head because he has to work on the Aid and Advice of CoM (Art 74)
Is the Aid and Advice of CoM, binding upon the President ?
Until 1976 the Judiciary had to answer this Question, Many times.
It was assumed by the CA, instead of a King or Queen, India will have a President & he has to play the same function performed by the Monarch in UK
It wasn't explicitly mentioned in Constitution, Hence some presidents were acting in contradiction
So every time in a tussle between president and govt happened - judicial intervention was needed
Hence, IG brought 42nd CAA, 1976 → Word “SHALL ACT” was added.
Then, 48th CAA, 1978
After Emergency, 1977 Janta Party Came to Power
Janta Party was ok with President being a Nominal Executive
But 48th CAA
Added that President can send for reconsideration only once
if the Govt sends again, then President has to agree now
So Does President EVER exercise any discretionary power ?
Yes He Sometimes Exercises, Some Situational Discretion
Existence of President
What if President Suddenly Dies in Office
VP will become President of India
If VP dies
CJ of India will be President
If CJ dies
Senior Most Judge of SC will be President
What if Senior Most Judge Dies
→ Then Next Line of 33 Judges based on Seniority
Art 58 - Qualification for being the President
1 Citizen of India
Can a Naturalised Citizen be a President of India ?
Yes
Indian Constitution doesn't differentiate between a Natural Born & Naturalised Citizen - Once a Citizen he is a Citizen
But in USA, only Natural Born Citizens are allowed
2 Age : 35 Years of Age 3 Qualifies for Election as a Member of House of People (Lok Sabha) - Art 84
1 Citizen of India 2 Not Less than 25 Years of Age
Automatically allows for Presidents Age
3 Oath / Affirmation in front of an Authorised Authority
He has to file his Nomination Papers in front of Authorised Authority
Authorised Authority - Decided by Election Commission
He is generally a Returning Officer - Alternating
Secretary General of LS - For President
Secretary General of RS - For Vice President
4 He/She should be an Eligible Voter
He should himself be able to vote in Lok Sabha
5 He/She should not hold any Office of Profit
0 Office of Profit is NOT defined in the constitution 1 SC Decided the Definition 2 Office of Profit - Before 2006
Any Office executive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or a remuneration or profit
can be considered to be an office of profit
3 Jaya Bacchan Case, 2006
Jaya Bacchan was a MP in Rajya Sabha
Only when they are elected as a MP, MP should not hold any office of Profit.
Subsequent to being MP in RS, she was also appointed as Chairperson of Uttar Pradesh Film Development Corporation
She was disqualified from being an MP of RS
Jaya Bacchan said her Disqualification was wrong, but she said that she hadn't taken any salary from there.
Hence, the Disqualification was Unconstitutional
SC changed the definition of Office of Profit
4 Office of Profit - After 2006
Any OfficeExecutive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or remuneration or profit is receivable in the first place
can be considered to be an office of profit
It is immaterial whether the individual actually receives the salary or not
Concept of Office of Profit
0 Office of Profit is NOT defined in the constitution 1 SC Decided the Definition 2 Office of Profit - Before 2006
Any Office executive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or a remuneration or profit
can be considered to be an office of profit
3 Jaya Bacchan Case, 2006
Jaya Bacchan was a MP in Rajya Sabha
Only when they are elected as a MP, MP should not hold any office of Profit.
Subsequent to being MP in RS, she was also appointed as Chairperson of Uttar Pradesh Film Development Corporation
She was disqualified from being an MP of RS
Jaya Bacchan said her Disqualification was wrong, but she said that she hadn't taken any salary from there.
Hence, the Disqualification was Unconstitutional
SC changed the definition of Office of Profit
4 Office of Profit - After 2006
Any OfficeExecutive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or remuneration or profit is receivable in the first place
can be considered to be an office of profit
It is immaterial whether the individual actually receives the salary or not
Exceptions to Office of Profit - Pres, VP, Gov, CoM (Union & State)
Sitting President
Sitting Vice President
Sitting Governor
Ministers (Union/State)
Art 56 - Term of Office
Since the Day he assumes office → for 5 Years
A President is eligible for reelection as many times as he wants
US Presidents only for 2 Terms
Resignation
to Vice President
No Need to give some specific reason
with Resignation comes vacancy to the President
This Vacancy can only be for a period of 6 Months and until then the office has to filled with elections
Art 54 - Electoral College & Type of Election for President
Why Indirect Elections
In a Democracy Elected Government will have the real power and once PM is elected. Having a Direct Election for President would means
Extra Cost of Election for a Nominal Executive
Power Tussle between PM & President
How is Presidential Election related to Indian being Republic ?
No Matter What Kind of election, the election will have to be there, because India is a Republic and it needs to have a elected head of state
What is the Meaning of Electoral College
Electoral College will mean all the people who will be Eligible to Vote
Why is it called a Indirect Election
Because people elect people
who then elect the president
Who are part of Electoral College
ELECTEDMEMBERS of Both Houses of Parliament
Lok Sabha (545)
Elected
543 Members Elected - Exist
Nominated
2 Members Nominated from Anglo Indian Community by President
Removed by 104th CAA, 2020
Rajya Sabha (238)
Elected
233 Elected
Members
12 Nominated - NOT Considered
ELECTEDMEMBERS of LEGISLATIVE ASSEMBLY of States
Legislative Assembly
Elected
No of Seats State to State
Nominated
1 Member could have been nominated by the Governor - NOT Considered for Election
Legislative Council - NOT CONSIDERED
ELECTED MEMBERS of LEGISLATIVE ASSEMBLY of NCT of Delhi && Puducherry
Added by 70th CAA of 1992
NCT meaning - National Capital Territory
Will J&K be also a part of electoral college for presidential elections
Who is Not Part of the Electoral College
Nominated Members of Both Houses of Parliament
Nominated Members of State Legislative Assemblies
Elected and Nominated Members of State Legislative Council
Unless & Until a CAA is done to Art 54 & 55, J&K UT is also not a Member of Electoral College
Art 59 - Conditions of Presidents Office
Should not be a Member of Parliament or State Legislature
Member of Parliament - of Lok Sabha & Rajya Sabha
State Legislature - MLA & MLC
An MP or MLA MLC can contest elections in being in the post but as soon as he becomes president he should resign
He Should not Hold any Office of Profit
He is Entitled for Official Residence
He will have to live in Rashtrapati Bhawan for discharging works of president and security of president
Emoluments & Allowances - Law by Parliament
Law will be made by Parliaments
Presidents Salary is 5 Lac Per Month
Presidents Salary & Allowances cannot be varied to be his disadvantage
can be varied to Advantage but not disadvantage
Art 55 - Mannerof Election
Concepts Needed
For Population - Important Point - 1971 Census
Latest Census was Used until 1975
Latest Census Rule was amended and changed by 42nd CAA, 1976 by IG
They Inserted the Word : 1971 Census was to be used till the Year 2001
& Replaced the Word : Latest Census
in Year 2001, this Provision was amended by 84th CAA, 2001 - that Census of 1971 will be used until the First Census after the Year 2026
What is the Reason Behind this
During Emergency - Idea of Sanjay Gandhi - Congress brought Family Planning in India
There were instances of Forced Sterilisation in India
Central Govt asked the States to Implement this Policy
Southern State said : Already there is Low Population Growth in Southern State as compared to Northern State
Hence, Southern States would have been in Disadvantage as the value of their MLA would have degraded
Hence, 1971 Census was fixed for Levelling the Play Field
Acceptable Growth Rate was thought to be achieved by 2001
but then due to non achievement it was further amended until 2026
By Secret Ballot Vote (SBV)
No one can know, who voted for whom
The Party can give Direction but the person will vote completely on the conscience of his own
By Single Transferable Vote (STV)
What is Single Transferable Voting System
Each and Every MP or MLA will have a Single Vote, but they can give preferences
How does Ballot Paper Look Like
FPPT System
FPPT - First Past the Post System
Used in Elections in Lok Sabha and Legislative Assemblies
Running Race Competition :
The Person has to just get only vote, no matter even if he gets one vote
but in Presidential Elections we have Electoral Quota
Valid Votes - Key Word
How does vote become Invalid
No First Preference
Giving Two First Preference
Not Legible or some procedural Works
Simply Said :
Electoral Quota : > 50% + 1
For Ex If :
Total No of Valid Votes : 10 Lacs
President Should Minimum Get : 5 Lacs + 1
Important Points for Counting Votes
Giving First Preference is Compulsory
EC will only count the First Preferences
How is Single Transferable Vote Implemented
Now what if this Occurs
Now 10% is ruled out
Now Also No One is Achieving the Electoral Quota. Hence, C is ruled out
Summary of Presidential Elections
By Proportional Representation (PR)
Value of Vote of MLA
State having more population will have more say in the elections, by giving them more power
UP : Highest : 208 per Vote
Sikkim : Lowest : 7 per Vote
Value of Vote of MP
Total Number of Elected Members of Parliament
LS - 543
RS - 233
Total = 776
Electoral Quota
Anti Defection Law doesn’t apply in case of Secret Election
🇮🇳
Inferences - VVIMP
Value of Vote of RS & LS MP is Same
Value of Vote of an MP > Value of Vote of MLA
Value of Vote of a MLA is Different in Different States
An MLA in Same State will have Same Value of Vote
Cumulative Value of Vote of MP from Lok Sabha > Rajya Sabha
Summary of MLA & MP Votes Value
Art 71 - Election Dispute of President
Only Place where Presidential Election can be challenged is in Supreme Court
No Petition can be made to any High Court
Supreme Court - OR Juris
Original Jurisdiction
Exclusive Jurisdiction
Prior Acts - Will Remain Valid because
To Prevent Administrative Inconvenience
Anyways the President has acted upon the Aid and Advice of CoM (Art 74)
Vacancy in Electoral College is NOT a Ground to challenge the Presidential Election
Art 61 - Procedure for Impeachment of President
Grounds on which President can be Impeached is only & only
“Violation of Constitution”
Procedure
Resolution for Removal to be Introduced in either Houses
Resolution → Proposal
Proposal Should
Include the Charge
Narration of Incident
Proposal Approved by
Even Before a Proposal is introduced it should be supported by 1/4th of Members of the House (in which he is trying to introduce the bill)
Proposal is given to the Presiding Officer
Speaker - Lok Sabha
Chairman/VP - Rajya Sabha
Presiding Officer will give permission only when
1/4th Members (in which it is introduced) have seconded it
Before Introduction the 14 Days Prior Notice to the President has to be given
Introduced in (Either Houses)
Either LS
Either RS
2/3rd of total membership of the house majority is needed
Resolution Passed to the Next House
President has the Right to Represent (Alone or with aid of his personal council)
2/3rd of total membership in the other house is achieved
President Stands Impeached
Vacancy of Office of President
Current President Carries on
Due to Expiry of the Term - To Prevent Constitutional Interregnum
Vice President Takes Over
Becomes the President for a Period of 6 Months, within 6 Months ECI has to conduct elections
Death
Resignation
Removal by Impeachment
Otherwise → Election Declared Void by SC
President - Advanced
Powers & Functions of President
Why These Functions ?
President is the Head of Union Executive
All Action taken by Union Govt is taken in the Name of President
Name of President Meaning (Art 74) : The President Shall act on the Aid & Advice of PM & CoM
But Still, Being a Union Executive he has to perform of some function
Major Functions of President
1 Executive Powers🚀
These are also called Administrative Powers
Discretionary Power
Discretionary Power Art 78 : Right to be Informed of the Affairs of the State
Example : Delegation led by Opposition went to president during time of Farm Laws Protests
Normal Power
Normal Power Art 77 : President Makes Rules for more Convenient Transaction of Business and allocation among the ministries
How Many Departments
How Many Portfolio
Normal Powers Art 239 : Administers Union Territory Directly
President is the Authority to Appoint People
President can appoint an office who report to governor for functioning of UT
UT w/o Legislative Assembly
Lt Governor
Commissioner
Administrator
UT with Legislative Assembly
J&K
Puducherry
Delhi
They have special powers and some level of autonomy but
UT’s are not in Federal Relation with centre
The Boss is Still President for them.
Normal Power : All Executive Actions are taken in the name of the President
Every means Every
All Simple and Major Actions
Normal Powers : Appointment & Removal of Various Constitutional Functionaries
All these Constitutional Functionaries - Appointed and Removed by President
CAG - Comptroller & Auditor General
Election Commissioner - EIC
Attorney General - AG
Members of UPSC
Judges of Supreme Court & High Court (Based on Recommendation of Collegium)
Normal Power : Power to Appoint Commissions to Investigate Conditions of SC ST OBC
Appoints National Commission like
NCSC - National Commission for SC
NCST - National Commission for ST
NCBC - National Commission for OBC
2 Legislative Powers🚀
Veto Power
1 Art 111 Veto Power (Centre) : Powers to Assent Legislations & Veto Powers
Veto for Ordinary Bills Only
Types of Veto Powers of President
Is the Word Veto Mentioned in the Constitution
Word Veto is no where mentioned in the Constitutions
For what kind of bill is the Veto Done ?
These Kinds of Vetos are only for Ordinary Bill
Meaning of Veto
to refuse to give official permission for an action or plan, when other people have agreed to it
Example of US
In US President has to give assent within 10 Days or it is deemed to be passed
In India there is No Time Limit for Giving Assent
Pocket of President of India is Much Bigger than that of US
Is there a Lapse Period/Time ?
No there is no Lapse Period of Bill
1 Absolute Veto - Situational Discretion
Meaning : He is going to withhold the assent to the Bill
Condition : This can be Done in only Two Conditions
Situational Discretion
Private Members Bill
It is not agenda of the government
govt would support it
very less chances, that it might pass in lok sabha
however if by luck private member passes the bill, CoM can advice the president to not give assent to the bill
Bill is passed by the Parliament but lok sabha is dissolved
Bill is passed by the Parliament
But Lok Sabha is Dissolved
Because of Expiry of Term of Lok Sabha
Because of Losing Majority
Concept of Care Taker Government
If LS is dissolved, because of President
as President should always be there
So there shall always be CoM to aid the President
this Govt will be called Caretaker Government
Example : of Usage of Absolute Veto
President R Venkat Raman (1991)
Salary Allowances & Pension of Members of Parliament Amendment Bill, 1991
2 Suspensive Veto - Discretionary Power
What is the Meaning of Suspensive Vote ?
When the President Sends the Bill for Re Consideration
Why is it called Suspensive Vote?
Because the Veto of President is suspended by the Parliament by passing a Simple Majority
Why is it Sent ?
May be President is not happy with the Bill and wants it reconsidered. A breathing room for dialouge & discussion
How Can it be Sent ?
He may send it with or w/o a Note
How Many Times can he send the bill for Re Consideration ?
Sending the Bill for Reconsideration “on his own” Only Once is his discretionary Power
Now if the Parliament again passes the Bill with Simple Majority
The President has to give assent to the Bill
Example of usage of Suspensive Vote ?
President A P J Abdul Kalam
on Office of Profit Bill, 2006
a MP cant hold any office of profit
There will be some Exemptions where the MP from being Office of Profit
Kalam sent for Re Consideration
But it was again sent for assent
and now kalam sir HAD to give his assent
3 Pocket Veto - No Situation
Meaning of Pocket Veto ?
President does not take any action on the Bill
Why is there a Pocket Veto ?
Because Constitution does not specify a time in which the President has to give assent to the Bill
When is it Generally Done ?
Before Dissolving of Lok Sabha
Before Ending of Session of Bill
Example of Usage of Pocket Veto ?
by President Gyani Zail Singh, 1986, Post Office Interception Mail Bill, 1986 ; He Just Sat Over it
Govt Term was Over, The Act was not given assent anyhow
Three things that can be done by the President
1 Gives his Assent
Bill is Passed
2 Withhold his Assent - Is Always a Situational Veto
Meaning
Means he is communicating that he is not going to give his assent.
As Long as he withholds his assent, Bill doesn't becomes act
by Absolute Veto
3 Return for Re-Consideration - Suspensive Veto
Meaning
for time being he is not giving the assent
based on advices fom his advisors : Secretary & Other Legal Advisors
by Suspensive Veto
4 Sit Over It w/o Communicating - Pocket Veto
2 Art 200 Veto Power (State) : Powers regarding the bill passed the state legislatures (Governor to Reserve Bill for Presidents Consideration)
Process of Making Law in State
State Legislatures can make Laws in States
Governor Gives the Assent
With the Gubernatorial Assent, Bill becomes an Act
Powers of the Governor
No Role of President
1 Can Give Assent → Bil Becomes Act Can Withhold Assent
Private Member Bill
Legislative Assembly is Dissolved
Can Send it for Re Consideration to the State Govt Once
Role of President Involved
Can Reserve it for Re Consideration of President***
What Happens when Governor Reserves the Bill for the Assent of President
Now Fate of Bill is in Hands of President
After Sending the Bill for Re Consideration, does the Governor has say in the Bill now ?
Now Governor has no say in the assent or dissent of the bill is what soever
Which Bill will be Reserved for the Consideration of President by the Governor ?
It is strictly on the Constitutional Discretion of Governor
Exception Being for Money Bill of State
What can the President do when the State Bill is sent to him for Consideration ?
1 Prez Give Assent to State Bill
Bill doesn't become Act
2 Prez Withhold Assent to State Bill 3 Prez can direct the Governor to send the Bill for Re Consideration to State Assembly
President can send the Bill to the State Legislature as many times as he wants
If the President sends the bill back for Re Consideration to State Legislature, Governor will ask the State Legislature to Re Send the Bill Back to the President within 6 Months
Ordinance Making Power
1 Art 123 : President Ordinance Making Power
What is ordinance ?
Ordinance is similar to that of Law like by Legislature
What is ordinance making power ?
It is the Law Making Power Entrusted in the Hands of the Executive, during extraordinary circumstances
Why this power was given ?
to meet any urgent or unforeseen situation especially when the legislative body is not in session.
With whom advice is the ordinance made ?
According to Art 74, President can make ordinance on the Aid & Advice of the CoM
According to SOP
Law Making - Legislature
Implementation - Executive
Interpretation - Judiciary
Critique of ordinance making power ?
It violates the doctrine of separation of power
Conditions under which Ordinance Making power can be invoked ?
Recess or any one of the house of parliament not in session - Original Constitution
When there is too much work in the house and govt needs an urgent Law - D C Wadhwa Case
Satisfaction of President as to emergent situation - Original Constitution
What is the nature of ordinance ?
It is temporary in nature, it is NOT permanent
What are the checks and safeguards on ordinance laws ?
Whenever the parliament comes to session, within 6 weeks, the parliament has to pass it with simple majority
Is Ordinance Making a Parallel Power ?
No, It is not. You cannot make any ordinance, when the session is in parliament.
it can be only done when parliament is not in session
What is the area in which president can make ordinance ?
The Ordinance Making Power of President is Co Terminus with Scope of Laws that can be made by parliament
Can ordinance be made for a Constitutional Amendment Bill ?
No, the exception to Ordinance making power is that of non inclusion of constitutional amendment in its scope
Is Ordinance making power subject to Judicial Review → Chronology
Ordinance Making was beyond judicial review till 1970
R C Copper v/s Union of India, 1970 (Bank Nationalisation Case) - Maintained that Ordinance Making Power was under Judicial Review
This case made clear that what will be the nature of ordinance making power
R C Cooper was the person who had major stakes in these banks
Nationalisation of banks was done with Ordinance and not by normal majority
He challenged it on the grounds that , 2 days before the parliament was to be in session, the ordinance was made, hence hinting Mala Fide intention
SC Maintained in R C Cooper Case that
Presidents Satisfaction on Ordinance Making is Under Judicial Review on the Grounds of Mala fide Intention
Govt wasn't happy that Ordinance making was under Judicial Review 38th CAA, 1975 → Said that Ordinance Making Power was beyond Judicial Review44th CAA, 1978 → Ordinance making power was again brought under scope of Judicial Review
2 Art 213 : Governor Ordinance Making Power
All these 3 cases can be used in argument of ordinance making power of both president and governor
R C Cooper v/s UOI, 1978
Governors Ordinance Making Power also came under Judicial Review
D C Wadhwa v/s State of Bihar, 1987
Background
was a professor in pune
researching about ordinance making power of governor
he was surprised that from 1960-80, governors of Bihar had passed more than 200 Ordinances
Here in Bihar, they didn't pass it through parliament, but kept re promulgating it again and again. thus making it as a kind of law only
SC Said
Re Promulgation of Ordinance again and again is an act of violation of constitution
Extra Ordinary or Exceptional Power of Ordinance Making should not be used as a Substitute of Legislature
Criticism
In Bihar, House was in Session and even then ordinance was made. Meaning that it was used as a parallel power of legislation.
Because there was a lot of work in the house and they needed urgent law.
Hence SC maintained that If there is too much legislative business or the time at the the disposal of the legislature is short
Krishna Kumar Case v/s State of Bihar, 2017
SC Maintained
Re Promulgation of Ordinance is a fraud on the constitutional power
Re Promulgation is the Subversion of Democratic Legislative Process
Mains Question : Do you think that the ordinance making power entrusted upon the President and Governors violates the concept of separation of powers ?
Normal Power
1 Normal Power : Is an Integral Part of Parliament
Parliament = President + LS + RS
2 Normal Power : No Bill becomes an act without his assent 3 Normal Power : Summoning Function of Parliament (Parliamentary Sessions)
By President
Summoning Acc to Art 74 - 5 साल की शुरुआत
Calling of the Members of Parliament to Start a Session
The President can Summon the Session of Parliament as and where he wants.
For Example
In Case of Wars, Session can be called in at a different place
Prorogation Acc to Art 74 - 5 साल के बीच में
Termination of Session is called Prorogation by President
Dissolution - 5 साल बीतने के बाद
When Term of Lok Sabha is Over
Entire House is Dissolved
By Presiding Officer of House (Generally for Winter, Summer Kinda Session)
Recess → Temporary Break in Between Two Session Adjournment → Temporary But a Definite Break Adjournment Sine-Di →Temporary But a Indefinite Break
4 Normal Power : Right to Send Message and Address the House of the Parliament
Can send messages to the Parliament
When a Bill is Pending for a Long Period of Time in Parliament
considering the respect for president
Address the Parliament
Optional to Address
When calls for Bill Pending - Addressing the House is Optional
Compulsory to Address
When a New Govt is Formed → Speech made by Govt via the Mouth of President Routine First Session Every Year
During First Session of Every Year which is generally the Budget Session
This Address can be Either
To Individual Houses
To Join Sitting of Houses
This Speech is the
“Report Card of Govt : On Previous Year Achievements of Govt”
Motion of Thanks - IMP***
Whenever a President Addresses House, a Motion of Thanks has to be Introduced in both Lok Sabha and Rajya Sabha Independently.
No Matter that if President has Addressed the Single House or Joint Sitting, Motion of Thanks will be Presented in
Lok Sabha - Generally by CoM and PM
Rajya Sabha
Distinctively (Alag Se)
If Motion of Thanks is not passed in
LS - It is considered that the govt has lost the majority in LS and is not enjoying majority and hence the Govt has to resign
Because PM & CoM is accountable to the Lok Sabha
RS - It is merely a Embarrassment to the Govt
5 Normal Power : Powers of Nomination of the Member of the House
Original Constitution, President can Nominate
Lok Sabha - Done Away with 104th CAA, 2021
2 Anglo Indians was done to ensure their adequate representation
This was meant to be for next 10 Years
Rajya Sabha - Still Exists
12 Members in fields of Arts, Commerce, Sports & Social Science
6 Normal Power : Laying of Report before the House of the Parliament
CAG
Union Finance Commission
NCST / NCSC / NCBC
7 Normal Power : Prior Sanctions for Introduction of Certain Legislations (3/110/117 @ New State/Money/Finance)
Why to take Permission of President ?
Due to Importance of Some Bills, constitutions wants certain types of bills to be introduced only if recommendation is given in first place
Examples of Such Kind of Bills of President
Example of Bills are :
Art 3 : Bill of Creation of New States
Importance of National Unity
Art 110 : Introduction of Money Bills
Importance of Finances
Art 117: Introduction of Finances Bill
Inferences
To Prevent Unnecessary Publicity of Bill
To Discourage Private Member from Entering the Bills
3 Judicial Powers🚀
Art 72 Pardoning Power
Why this power was given to the president
Judiciary is not beyond errors, hence a way if judiciary goes wrong
True Idea of Justice in not merely punishment but reform of individual as well
Powers of President are :
Summary of Art 72
1 Commute
Lesser Punishment with
change in character
Ex : Capital → Life Imprisonment
Ex : 14 Yrs of Jail → 10 Yrs of Jail
2 Remit
reduction in duration w/o change in character
Ex : 5 Yrs of Imprisonment → 2 Yrs of Imprisonment
3 Reprieve
delay in execution of punishment
Ex : generally in case of capital punishment
4 Respite
short period of rest or relief under special circumstances
Ex : special circumstances
person in jail → undergoes physical disability
women in jail → is expecting a baby
5 Pardon
It is the Highest Form of Mercy Petition
Meaning
completely set free
absolving all consequences of punishment
Example - Azam Khan
Under RPA, 1951 under sec 8(1)
If the punishment is of ≥ 2 years → Leads to Immediate Disqualification from Seat
Then after coming out of jail he cant contest election for 6 Years
Cases in which President can Exercise these Powers :
1 Court Martial
Military Court → Can give no of punishments including capital punishment
2 In all cases where the punishment is for an offence ; to which the executive power of the union extends
Here one can only go to the president if and if the laws are made only by the parliament
Here punishment on any law(other than capital death) made by state
3 In all cases where punishment is sentence of death
In laws of state legislature and parliament
President cannot be approached for mercy petition, on the punishment given based on the laws made by state legislature except for capital punishment
Supreme Court Cases
Maru Ram v/s Union of India, 1980
Pardoning Power of President is under judicial review on the ground of mala fide intention in a limited manner
like relative of CoM being pardoned etc
Devinder Pal Singh Case, 2013
Power to be exercised on the aid and advice of council of ministers
Mahinder Singh v/s State of Punjab, 2013
There cannot be a Oral Hearing in front of President. It can be only on the basis of Written Petition
4 Emergency Powers🚀
Background
Contained in Part 18(XVIII) of the Constitution
from Art 352 to Art 360
Circumstances under which Emergency can be Proclaimed
Based on Art 74 : Aid & Advice of CoM
Art 352 : To Proclaim National Emergency
Grounds : War, External Aggression & Armed Rebellion
War - Both Sides
Armed Rebellion - Within Country Maoist Activity
External Aggression - Unilateral Attack from one side on Territorial Integrity & Sovereignty of India
Original Constitution
War
External Aggression
Internal Disturbance - This was amended by 44th CAA
They replaced the Word Internal Disturbance with Armed Rebellion
Scope : Can be for whole Country, Part of India Instances of National Emergency in India (in Totality 3 Emergencies in India)
Indian China War 1962 - External Aggression - Normal
(1971-1977) → India Pakistan War 19 - External Aggression 1971 - Normal
Raj Narayan fought against Indira Gandhi from the Same Constituency in 1975 Election
RN lost. He later maintained that IG had misused resources of Govt of India for her election bias
RN argued on Corrupt Practise Clause under RPA, 1951 → Saying that It was not a Free and Fair Election
According to RPA, 1951 → in HC of that Constituency the case has to be filed of RP
on 12th June 1975 Allahabad High Court, gave its decision → that IG was involved in Electoral Malpractice & Corrupt Practises for winning election
Violation of RPA, 1951 - Found by Allahabad HC
on Grounds of Corrupt Practise which is a ground for Disqualification,
Appeal in the Supreme Court
IG appealed in the SC
on 24th June 1975 → SC Passed an Interim Order that → Until we decide the legitimacy of IG’s election → She can continue to be the PM but w/o the right to vote
cuz the question was debate is that she is MP or Not
This led to Protest → Delhi Chalo Andolan → IG was quarantined in her residence
They were sending direction to govt servants to not follow orders of this govt
Hence on Case of Internal Disturbance Emergency was put
How FR of Protestors was curbed
Art 359 was used to curb the FR of Individuals,
How was the third Emergency of 1975 was Invoked, when the second emergency of 1971 made ?
Here 1975 Emergency was brought in on grounds of Internal Disturbance
It was politically wrong to put leaders in jail on grounds of war and aggression and suspension of FR wasn't justified on base of war and aggression
On Grounds of External War and Aggression, curbing the Internal Unrest would not have been Commensurate
So Third Emergency was put on grounds of Internal Disturbance,
here FR could be curtailed here and all most all the opposing leaders were put in jail thus curtailing their FR
39th CAA by IG
Election of PM was Sub Judice in SC
Crux : Pre VP PM Speaker, their action can only be challenged in front of an authority as may be appointed by an act of law
IG said - Now SC cant hear her case
SC Struck down 39th CAA
SC Declared this 39th CAA as Un-Constitutional
SC Struck it down by Means of “Violation of Basic Structure”
on grounds of Separation of Power
Free and Fair Election was added to the Basic Structure of Constitution
Invoking of Art 396
In Original C President can curb all Rights
Under Art 74 - on Aid & Adv of PM - Suspended FR of Citizens
ADM Jabalpur Case, 1976
This case tested the Viability of Invoking of Art 396
SC Maintained that President can revoke all FR of all Citizens even Rt to Life and Everything
Dark Day of Democracy
Was Considered a Negative Case
SC Decision
SC found IG Innocent
Concept of CoM
In total there are 70 - 80 CoM
Cabinet Ministers
Core Ministers - Cabinet Minsters - 20/25
Cabinet Minsters have Independent Portfolios
Minister of State
They may have or not have an Independent Portoflio
They are in Line of Succession to be a Cabinet Minsters
Deputy Ministers
They don’t have a Independent Charge
Can be Implemented in
Whole Country
or a Part of India i.e State
Procedure for Proclamation of National Emergency
President can declare the National Emergency only if he is satisfied that there is a IMMINENT Danger to the Security of India
Satisfaction → on Aid and Advice of CoM
Imminent → No On Going Danger Needed
It is not a Discretionary Power of President
Grounds on which Emergency can be Invoked
War
External Aggression
Armed Rebellion
Added by 44th CAA, 1978
Earlier Word was : Internal Disturbance
Once President Imposed National Emergency it is not final in itself
Emergency can be Imposed Directly but
But Both the House of Parliament has to give approval within 1 Month → then it can continue for another 6 month
6 Months time from the date of Proclamation of Emergency
It was initially for 2 months 44th CAA made it 1 months
It was initially for Indefinite Period, 44th CAA made it compulsory for a Successive Approval
Parliament has to give approval with Special Majority
It was initially Simple Majority, 44th CAA made it for a Special Majority
Similar to that of Majority required for Amendment in Constitution
Then towards the End of 6 month, another special majority mandate by the lok sabha has to be taken
How to End an Emergency
Proclamation may be revoked by president at any time on Aid and Adv of CoM
Lok Sabha can pass a Resolution to that effect by Simple Majority (only in Lok Sabha)(Not in Rajya Sabha)
This mandate of Lok Sabha has been made binding upon president
Changes by 44th CAA 1978
Before - Aid and Advice of CoM - Orally
Now - Aid and Advice of CoM - With a Written Communication of Cabinet Specifically for Art 352
Each and Every Minister of Cabinet Rank has to give it in writing to President
Even if one Cabinet Minister doesn't give in writing president cant impose emergency
Criticism of National Emergency
Was Arbitrary on SOme View
Was done by one person
Consequences of National Emergency
It has four fold effect on the polity of India
Goes Against Federal Structure of India - Centre Becomes More Powerful
Effect on Legislative Relationship between Centre and State
Introduction
Federal Political Power Changes
Federal Politics becomes Unitary in Characters
From De Centralisation India goes to Centralisation of Power
Changes are
Parliament can legislate on any matter of State Lists
Meaning the States Power aren’t taken away BUT
Parliament will have over riding power
Parliament will have a concurrent power
Wherever National Emergency is Imposed, State Legislature is intact but it is under the central parliament
Executive Relationship between Centre and State
Union can give executive directions on any matters
Normally
CM & CoM - will carry the functions of state
Final Responsibility is of CM & CoM
Normally Union Cant Interfere in States Work
Union and State Executive is divided
Emergency
CM & CoM - State Executives will continue to function
Union Executives order now becomes binding on State Executive
Basically State Executive become sub ordinate to Union Executive
Note - On Above 2
State Legislature & Executive is Intact, but they become subordinate to Union Legislature & Executive
Financial Relationship between Centre and State - Re Listen from Lecture of 12 Nov
Tax System Normally - Normal Finance Year 41%
Normally
Tax
Major Source is Tax
Spectrum of Collection o
Non Tax
Return from Investments
Borrowings
Collection of Fines
Auctioning of Natural Resources
Disinvestment from Public Sector
Division of Tax
Centre Collects - Rs 100
Divisible Pool 50%
to be Shared with States
41% of this has to be shared with States
It has to be shared with all States
Non Divisible Pool 50%
Exclusive to Centre
State Collects - Rs 50
Centre can keep it all
Under Art 280 of Constitution - Independent Constitutional Body appointed by President called Finance Commission
Centre can unilaterally alter States Share of Divisible Pool
Fundamental Rights between Centre and State
Precondition of Art 358 & Art 359
Art 358
Automatically comes into effect
Automatically Suspends Art 19
Only in case of - War & External Aggression
Art 359
Not Automatic
Suspension of FR done through a Presidential Order
Except Art 20 & 21
Original Constitution could suspend all FR
44th CAA made sure that Art 20 & Art 21
President has to Specify which FR he is suspending
Art 356 : To Impose Presidents Rule / State Emergency
Difference between State and National Emergency
State Emergency
National Emergency
For a Particular State
For Country or a Part of Country
Also Called Presidents Rule
Also Called National Emergency
The CoM loose their Seats
The CoM Retain there position
Leg Ass is dissolved
Leg Ass is Intact
Power is with Parliament
Can Give Power to President
Power is with the State, but the Centre can over rule it
Examples / History of State Emergency in India
Rationale Behind this State Emergency
At No Point of time Indian Constitution will and should not provide any scope for maintenance of an Illegitimate Government
Ambedkar wanted This Article to be a Dead Letter in the Govt but it has been used and misused many no of time
Grounds : Failure of Constitutional Machinery in the State
Constitutional Machinery - Not Defined in Constitution
Generally Means they have failed out to perform function as mentioned in the constitution
For Example :
When State Govts Looses Majority in the State Legislature.
and no other party can prove majority
Recently in Maharashtra
Hung Assembly - After Election no party is able to form Government
They have majority but Govt is not able to maintain Law and Order in State.
State Govt is doing something which is against constitution. For Ex Against Secular Nature of Indian Constitution
What can be considered a Constitutional Breakdown
But this constitutional Breakdown has not been defined in the constitution
this constitutional breakdown has been defined by various supreme court cases
Hence Meaning of Constitutional Breakdown are
Government Looses Majority
Majority is preserved but the Law and Order of the State is disturbed and out of order
If any state govt is carrying any activity which is anti-secular activity or politics
These are just few Examples, the Interpretation of Constitutional Breakdown will be done by Supreme Court time to time
S R Bommai Case, 1994
Background
Its a Land Mark Judgement wrt Imposition of President Rule in India
S R Bommai was a CM of Karnataka in 1989 from Janata Party
He is father of current CM of Karnataka Basavaraj Bommai
After he became CM, few MLA from his party and other party, went to Governor, to tell that Bommai has lost majority in the state
Governor sent the letter to President to impose president rule
Meanwhile, Bommai went to Governor, to ask for an opportunity to prove his majority
Gov didn’t listen to him, President Imposed President Rule, Bommai reached Supreme Court
Supreme Courts Decisions & Guidelines
1. President Rule is Subject to Judicial Review
For the First Time, SC said that Power of President for imposing State Emergency is under Judicial Review on grounds of mala fide Intention
2. Opportunity to Prove Majority
It should not be done on basis of Subjective Satisfaction of President
But shall be done only on the Basis of Floor Test
w/o the floor test, if presidents rule is imposed, it would be considered unconstitutional
the floor test can only in the Legislative Assembly not in Raj Bhavan, or a bungalow, or a hotel
3. 2 Months time for Simple Majority from House
Imposition of PR by Prez is not final, it has to be put it in front of the parliament, it has to be passed within 2 months by both the houses of parliament by simple majority
Very Important Point
Once the State Emergency is Imposed &&
Unless the PR is passed by simple majority by both houses of the parliament within 2 Months
the CoM & Leg Ass of State will be kept under Suspended Animation
Suspended Animation → It will not actively perform active functions but it will not be dissolved as well
6. Why Suspended Animation →
State Govt - Rabri Devi CM of Bihar
National Govt - Atal Bihari Vajpayee Govt suggested imposition of PR on grounds of Law & Order but Bihar Leg Ass was with Complete Majority
Here PR was put to houses, LS gave approval, RS didn’t
Hence, Now Bihar Govt was put back in action, Rabri Devi became CM
If the Govt was dissolved, Election would have been the only option
If the State Govt is not Happy with PR then the Burden of Proof Lies in the Hands of Central Government
SC maintained that if the PR is not passed in Parliament they will be given a Full Remedy / Complete Justice i.e by restoring the earlier govt
Presidents Rule Grounds
Constitutional Breakdown
Law & order
Majority Lost
Anti Secular Motives
Not on grounds of Administrative Breakdowns
Not a Welfare Orientation
Lot of Corruption Charges
Anti Secular Politics is Liable to Action under Art 356
Procedure to Impose State Emergency
What Happens in a Normal Condition
Normally on Aid and Advice of CM & CoM, Governor Works
But this process only works until and unless the government is a legitimate and constitutional government
If the Particular Government is dismissed, till the time the new government is elected by election
In this meantime President is given the power to administer the state
President Rule is Applied when the
President is Satisfied that there is Constitutional Breakdown in the State
President on Receipt of Report of Governor or Otherwise (Art 356)
whenever he feels that there is a constitutional breakdown
Normally Governor sends report on Constitutional Breakdown
But It is not necessary for the President to wait for the report of governor
It is not the Discretionary Power but on Aid & Advice of CoM
Approved both Houses within 2 Months
By Simple Majority
Leg Ass of State will be until then put under Suspended Animation
Once Approved the President Rule can extend upto duration of 6 Months
Can be extended by 6 Months once approved for a Maximum of 3 Years. However Beyond one year it can be extended only when
Before this 6 Month Ends, Another Simple Majority can extend the State Emergency to another 6 Months
This can be done only for 6 times that is for a totality of 3 Months
Imp Point : Upto 1 Year there is No Issue
From 1 Year to 3 Years, it can be extended only under 2 conditions only
There Should be National Emergency
In Entire Country
Or Any Part of Country where the State Exists
&& The Election Commission of India certifies that due to the National Emergency it is difficult to carry out Elections
Note : Both Conditions have to be fulfilled
Revoked by the President
By AA of CoM President can revoke the President Rule
Consequences of State Emergency
Important Point
That Particular State looses Federal Relation with the Centre
The Relationship between Centre and State will change only with that State and no other state is affected
B R Ambedkar Supported this provision and wanted it to be a part of it
Consequence 1 - Executive Relationship
All Executive Authority is taken up by the President
Consequences 2 - Legislative Relationship
The Legislative Powers of the State shall be exercisable by or under the authority of the parliament or confer power upon the president
CoM is bound to be Dismissed
Legislative Assembly is put under Suspended Animation
Art 360 : To Proclaim Financial Emergency
Grounds : Threat to Financial Stability or Credit of India
Conditions are
High Fiscal Deficit
Expenditure High Income Low
Lack of Balance of Payment
Inflation is High
Unemployment is Very High
Insufficient Foreign Exchange Reserves
Reserve should be for the Minimum of 3 Months
Instances
There has not yet been a Single Financial Emergency in India Yet
Example of One Instance where it could have happened
in 1990 Govt of India had only foreign reserve for only 15 days, after 15 days there would not have been a energy source
Theres no Example as such yet
There was consideration of Financial Emergency in 1990’s
IMF Help was given on the Condition of Liberalisation
Declaration of Financial Emergency
The President can declare the Financial Emergency if he is SATISFIED that
Satisfied Means → Not Necessarily the Condition has occurred but if only the President is Satisfied
the Financial Stability & Credit of India is threatened
Declaration to be Approved within 2 Months by the House of Parliament
Approval by Simple Majority
Consequences of Financial Emergency
1. The Union Government may give direction the State to Observe Canons of Financial Propriety
Centre generally doesn’t have a say so as to how the State can spend the Money
But in Financial Emergency, Centre can direct the State on Financials
2. Reduction in Salaries on all or any class of person serving in the State Governance 3. Reservation of Money Bills or Financial Bills of the Consideration of the Presidents
Centre can ask the President
President may ask the Gov to Reserve all Bill
Governor will have to Mandatorily Reserve the Bill
4. Reduction in Salaries and Allowances of all classes of person serving in the Central Government including Judges of Supreme Court and High Court
Ambedkar's Comment on Emergency
We cannot allow a unconstitutional govt
I envisaged it to be the Dead Letter in Constitution
Its been used as a Deadly Weapon now
5 Financial Powers
It is the Financial Nature of Executive and Emergency Powers of President
The president can reduce the salaries of all government officials, including judges of the supreme court and high courts, in cases of a financial emergency.
All money bills passed by state legislatures are submitted to the president for approval.
Minor Functions - Extension of Executive Powers
6 Military Powers
President is the Ex Officio Head of Military of all 3 Wings - Also called the “Supreme Commander”
7 Diplomatic Powers
All Signatures are done in the Name of President
International Treaty are Done
Welcoming of International Guests
Vice President
Introduction to Office of Vice President
There shall be an Office of Vice President
Ex Officio Chairman of Council of States → Someone holds an office by virtue of holding ant other office
Rajya Sabha
Chairman - not elected
Deputy Chairman - elected
Acts as President when Office of President is Vacant due to
Due to Death
Resignation
Removal of President
Otherwise
Not in case
e. NOT due to Expiry of End of term of Incumbent President
Example 1
VP B D Jatti - Became President
Fakhruddin Ali Ahmed - Died as President in February 1977
Election of Vice President
Indirectly Elected - Not a Significant Role
Electoral College - Very Less
Members of Both Houses of Parliament
(Both Nominated and Elected Members of the House)
Very Important Note : In case of VP → Both Elected & Nominated Members are included in Electoral College
Qualification for being the Vice President
1 Citizen of India
Can a Naturalised Citizen be a President of India ?
Yes
Indian Constitution doesn't differentiate between a Natural Born & Naturalised Citizen - Once a Citizen he is a Citizen
But in USA, only Natural Born Citizens are allowed
2 Age : Completed 35 Years of Age 3 He should eligible to contest election to Rajya Sabha (Council of States)
1 Citizen of India 2 Not Less than 30 Years of Age
Automatically allows for Presidents Age
3 Oath / Affirmation in front of an Authorised Authority
He has to file his Nomination Papers in front of Authorised Authority
Authorised Authority - Decided by Election Commission
He is generally a Returning Officer - Alternating
For President → Secretary General of LS
For Vice President → Secretary General of RS
4 He/She should be an Eligible Voter
He should himself be able to vote in Lok Sabha
5 He/She should not hold any office of Profit
0 Office of Profit is NOT defined in the constitution 1 SC Decided the Definition 2 Office of Profit - Before 2006
Any Office executive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or a remuneration or profit
can be considered to be an office of profit
3 Jaya Bacchan Case, 2006
Jaya Bacchan was a MP in Rajya Sabha
Only when they are elected as a MP, MP should not hold any office of Profit.
Subsequent to being MP in RS, she was also appointed as Chairperson of Uttar Pradesh Film Development Corporation
She was disqualified from being an MP of RS
Jaya Bacchan said her Disqualification was wrong, but she said that she hadn't taken any salary from there.
Hence, the Disqualification was Unconstitutional
SC changed the definition of Office of Profit
4 Office of Profit - After 2006
Any Office Executive in nature,
either under central govt, or state govt, or local authorities
by a way of which an individual receives a salary or remuneration or profit is receivable in the first place
can be considered to be an office of profit
It is immaterial whether the individual actually receives the salary or not
Exceptions to Office of Profit
Sitting President
Sitting Vice President
Sitting Governor
Ministers (Union/State)
Term of Office of Vice President
5 Years of Tenure
Resignation Given to the President
Removed by Resolution passed by
Effective Majority - Rajya Sabha
Simple Majority - Lok Sabha
(Simple Majority Art 100)
For VP it can be introduced only in the Rajya Sabha
Note for Death of Vice President
Vacancy to Office of Vice President to be filled as soon as possible
ECI should conduct election as soon as possible
Vacancy to Office of VP - Same as President Oath to be Administered by President Election of Vice President can be challenged in Court of Law
Original & Exclusive Jurisdiction of Supreme Court
Prior Acts of VP will not be Invalidated Election of VP cannot be invalidated merely on vacancy of electoral collage
Powers & Functions of Vice President
His only function is to be the Ex Officio Chairman of Rajya Sabha
To be the President when President Dies in Office
Governor
1. Head of State Executive. He is the Constitutional head of the State 2. He works on Aid and Advice of CoM
President is Nominal Head of States
Governor is Nominal Executive of States
President Nominal by Art 74
Governor Nominal by Art 163
Except for his Discretionary Power he has to act on the A7A of CoM
He has more Constitutional Discretionary Power than the President
3. He has a Dual Role
Executive Head of State
Representative of Center
SC directed to Not use the words Agent of Centre
4. He is Appointed by the President 5. His Term is of Five years (Occupies Office during Pleasure of the President)
Meaning
Pleasure of President means on the Wish of President
B P Singhal Case, 2010
Questions he Asked ?
He Challenged in Court of Law the Meaning of Pleasure of President
Can the Governor be Removed at any point of time by the President ?
Is there any remedy to the Governor ?
SC Said
Yes the Governor Holds office only and only during the Pleasure of the President
Meaning Governor can be removed at any point of time
Although, the Pleasure of President is Mandatory, it does not mean the Governor can be removed Arbitrarily or by a Mala Fide Intention
Such Removal is Subject to Judicial Review
Examples Arbitrary Actions
President cant Remove if →
Governor is NOT directing States for formulation of Policies according to Ideology of Centre
If Gov is Removed if Centres Whims and Wishes aren’t followed
Security of Term of Governor
Security of Term of President is needed for a Neutral & Better Functioning of President
Governors Can only Handle the Pressure when there is a Security of their Term
Cases of Gubernatorial Tensions
It is generally seen at places where the state govt is a local regional party or a party whose ideology doesn’t match with the centre
For Example
Kerala, West Bengal, Karnataka ETC
Commissions on Centre State Relations
Sarkaria Commission, 1983
It was established to Study the Centre State Relationship
Recommended About Security of Tenure
Governor to be Informed Reasons or Grounds of his removal IN WRITING
Punchi Commission, 2007
It was established to Study the Centre State Relationship
Recommended a Fixed Tenure of 5 Years
Removal of Governor by Impeachment
6. Conditions of Office of Governor
1. Should not be an MP of Member of State Legislature
A Member can be appointed but as soon as he becomes Governor he shall cease to
2. Should not hold any Office of Profit
According to Jaya Bacchan Case
3. Salaries and Allowances shall be determined by an Act of Parliament 4. Same Person can be appointed Governor for Two or More States
He will get a Salary of One State but he will get some extra allowances
this will be decided by President
5. He is Administered Oath by Chief Justice of High Court or the Next Senior Most Judge of State
Powers & Functions of Governor
1. Governors doesn't exercise these powers
No Diplomatic Powers
No Military Powers
No Emergency Powers
2. Governors has Similar Powers to that of President
Executive, Legislative, Ordinance & Pardoning Powers are synonymous with president with certain exception
Comparison between President & Governor wrt Executive & Legislative Powers
Theme
President
Governor
Discretionary Powers
Less
More
A&A of CoM
Art 74
Art 163
Place in Government
Centre
State
Administrative / Executive Power
All Executive Actions are taken in the name of the President
All Executive Actions are taken in the name of the Governor
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Art 77 President Makes Rules for more Convenient Transaction of Business Rules and allocation among the ministries
Art 166 Governor Makes Rules for more Convenient Transactions of Business and allocation among the ministries
Based on Aid & Advice of CoM
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Appointment & Removal of Various Constitutional Functionaries
1. CAG
2. Election Commissioner
1. Advocate General
2. District Judges
3. State Election Commission Appointed d by Governor removed by president only
4. State Finance Comm
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Power to Appoint Commissions to Investigate Conditions of SC ST OBC
State Level Commissions of SC ST OBC by Governor
Discretionary Powers
Art 78 : Right to be Informed of the Affairs of the State
Art 167: Governor can call upon CoM to apprise him of State Affairs
Other Power
Art 239 : Administers Union Territory Directly
NA for Governor
Legislative Powers
President Is an Integral Part of Parliament
Governor is an Integral Part of State Legislature
Case 1
Govt = Gov + Leg Ass + Leg Council
Case 2
Govt = Gov+Leg Ass
Why is he a Part?
cuz without his assent bill cannot become act
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No Bill can become an act without his assent
No Bill can become an act without his assent
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Summoning Powers
Summoning Powers
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Right to Send Messages and Address the House of the Parliament
Right to Send Messages and Address the House of the Parliament
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Powers of Nomination of the Member of the House
LS - No
RS - Yes → 12 Mem from Arts, Science, Social Service, Literature
Powers of Nomination of the Member of the House
LA - Originally 1 Member from Anglo Indian
Now Removed by 104th CAA
LC -Arts, Science, Social Service, Literature && Co-Operatives
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Laying of Report before the House of the Parliament
Reports of
CAG
NCSC NSCST
Union Finance Commission
Laying of Report before the House of the Parliament State
SCSC SCST
State PSC
State Finance Commission
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Prior Sanctions for Introduction of Certain Legislations
Art 3 - Creation of New States
Art 110 - Money Bill
Prior Sanctions for Introduction of Certain Legislations
Art 110 - Money Bill
Art 117 - Finance Bills
Veto Power
Art 111 Veto Powers
Art 200 Veto Powers
Extra Option to Governor
Can Reserve bill for Consideration of President
Ordinance Making Power
Art 123
Concurrent with Law Making Power of Parliament
Case Laws Same
Art 213
Concurrent with Law Making Power of State Legislature
Case Laws Same
Emergency Powers
Has been Stated Below in Emergency Powers
No Powers to Governor in terms of Emergency Power
Comparison between President & Governor wrt Pardoning Powers
Executive Power of Centre Extends Means - The Law is Made by Parliament
Executive Power of State Extends Means - The Law is Made by State Legislature
Theme
President
Governor
Power by
Art 72
Art 161
Idea Behind Pardoning Power
Same
Same
Powers are
Pardon
Commute
Remit
Reprieve
Respite
Pardon
Commute
Remit
Reprieve
Respite
Pardoning Power Jurisdiction
1. Court Martial
2. Executive Power of Union Extends →
2.1 Where Law is made by Parliament
(Union List)
3. In Case of Capital Punishment (Does Not Matter if Executive Power of Union Extends or Not, Capital Punishment is an exception for Pardoning to President)
In Case of the Punishment Given on violation of above Laws, Pardoning Plea can be applied
1. No Power wrt Court Martial
2. Executive Power of State Extends →
2.1 Where Law is Made by State Legislature (State List)
2.2 Where Law is made by Parliament && State Implements it (Concurrent List)
2.3 Where Law is made by Parliament but centre asks the state to Implement it (Union List)
3. In Case of Capital Punishment (Provided Executive Power of State Extends) OR (by Law Made by State Legislature)
In Case of the Punishment Given on violation of above Laws, Pardoning Plea can be applied
To Note
Aid & Advice of CoM
Aid & Advice of CoM
To Note
Subject to Judicial Review
Subject to Judicial Review
To Note
No Rights for Oral Hearing
No Rights for Oral Hearing
Special Case of Capital Punishment
Capital Punishment is given by Law Made by State
Can Apply for Pardoning Power to Governor
Can Apply for Pardoning Power to President
Both Independently
Capital Punishment is given by Law Made by Parliament
Can Apply for Pardoning Power to President Only
Hence Governor has no Power in Pardoning in Cases of
No Power wrt Court Martial
No Power wrt cases where Executive Power of Union Extends
Comparison between President & Governor wrt Discretionary Power
Theme
President
Governor
Constitutional Discretion
Less
More
Situational Discretion
Both Exercise
Both Exercise
Situational Discretion
Art 74
A&A of CoM
Art 163
A&A of CoM except in those areas where he can act in his discretion
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There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advises
There shall be a CoM to A&A Gov to exercise his function except in so far as matter he is required to exercise his function in his discretion
except in so far as matter he is required to exercise his function in his discretion - Explicit Recognition of his her constitutional Discretion
Examples Where, Governor uses his Extra Discretionary Power
Art 200
Reserving Bills for Consideration of President
Art 356
Imposing President Rule i.e Sending report to Presidents
Art 167
Can Summon Ministers and ask them
Art 200
Reserving the Bill to be sent to the President
Due to this Discretion Power, There is a Issue as well
State Govt Becomes Helpless
There’s always a Lacuna on the question that Art 163 doesn’t define exact places where governor can exercise his discretion
SC has said many time that governors discretion should only in the places where constitution has defined the Discretion clearly
Despite this, even if the Gov doesnt act according to A&S of CoM then State Govt becomes helpless. It has no power to remove the Gov whatsoever, unlike the president who can be impeached by the parliament, at least there's a procedure
Here the Governor is appointed and removed only by the President on A&A of CoM of Centre
Way Forward
Hence Recommendation of Sarkaria and Punchi Commission is a must to be Implemented
Also, the Office of Governor should be Given a Specific Time Of Office
CM of the State should be consulted before appointing the Gov
Difference Between Parliamentary and Presidential Parliament
Parliamentary System
Presidential System
Political Party with the Majority forms the Govt
Eg : PM is Leader of Majority Party
President Directly / Indirectly elected by the People
Executive Part of the Legislature
Executives are not Part of Legislature
Executives Require Support of Legislature for Survival
Executives don't require any support
Lower House can be dissolved before expiry of the term
House cant be Dissolved
Less Stable
More Stable
More Accountable
Less Accountable
Dual Executive
Head of State - President
Head of Govt - PM
Real Executive
Head of State & Govt - President
No Complete Separation of Power
Especially b/w Legislature & Executive
There is a Complete Separation of Power
Difference Between Indian and British Parliament
Indian Parliamentary System
British Parliamentary System
Republic - Head of State Elected
Constitutional Monarchy - from Royal Family by Hereditary Succession
Supremacy of Constitution
Parliamentary Sovereignty
Any Person can be appointed as minister (Max 6 Months)
Ex: Mamta & Uddhav
Only MP can be appointed as Minister
PM can be from any House
Ex: Manmohan
PM should be from only Lower House
No Tradition of Shadow Cabinet
Tradition/Convention of Shadow Cabinet
PS : The Shadow Cabinet is the team of senior spokespeople chosen by the Leader of the Opposition to mirror the Cabinet in Government
Real Executive - PM & CM
Summary
Theme
PM
CM
Parliament / State Leg
1. When Session is Summoned
2. When Session is Prorogued
3. When the Session is Dissolved
4. Set the Agenda
Performed by CM as well
CoM & Govt
1. PM Advice President
2. Co-Ordination
3. Head of Cabinet Committees
4. Chief Spokesperson of Govt
Performed by CM as well
President / Governor
1. Art 78 - What is Happening in State
2. Advice for CAG, Fin Com, NCST, NCSC
Performed by CM as well
No CAG at State Level, Others are same
Holds Office
on Pleasure of President
on Pleasure of Governor
Real Executive - CoM - Union & State
Theme
Union CoM
State CoM
Real Executive
Art 74 - Aid & Advice to President
Art 163 - Aid & Advice to the Governor
Appointment
PM appointed by President
Other Ministers by President on Advice of Prime Minister
CM appointed by Gov
Other Ministers by Gov on Advice of Chief Minister
Size of CoM
Reason for Amendment: Later there were more Coalition Govt, Everyone wanted their say as a ministers post
Size of CoM /> 15% of House of People
Added by 91st CAA, 2003
Size of CoM /> 15% of State Legislature
Added by 91st CAA, 2003
Special Note: in Case 15% < 12 Members - Then they can have 12 CoM
Example: AP is a State Leg of 60 Seats. There 15% is 9 Members
They can have 12 members
Pleasure Of
Holds Office during the Pleasure of President
Holds Office during the Pleasure of Governor
Pleasure : Unless they lose Majority
Administered Oath by
President
Governor
Salaries by
Parliament
State Legislature
Collectively Responsible to
House of People
State Legislature
Important Decision by
Cabinet - Means Most Important Ministers
Cabinet Ministers are called upon depending on Functions
Cabinet
Headed by
PM
Unless PM is absent or he asks someone else to head the cabinet meeting
CM
Attorney General & Advocate General
Appointment
Choice is of Govt
Should be Qualified to a Judge of SC
Salary Decided by President
Functions needed to Perform
He has to defend govt of India in Court of Law
Example
He Defended India in the Rafael Deal
He Defended India in the Aadhaar Act
It was introduced as a money bill
He gives Legal Opinions wrt Variou Cases to the Government
Any Other Functions as may be directed by the President
in Art 143, Presidential Reference to SC by President, AG makes clear of the case to the SC
Immunities of Attorney General
Can be called upon to Defend Govt in Parliament
Opposition said Govt & Ministers don’t know, call AG, Govt didn’t accept
He can talk and debate but he will not use the Rt to Vote
Here he will Exercise all privileges and immunities as that of Member of Parliament except the right to vote
He has the Right to be an Audience in any court within territory of India
He Also has the Right to Private Practise but he should not hold against a Brief against the Govt
He May also appear against the Govt, but with Prior Permission of Govt
SC Maintained that the relation between AG and Govt is NOT that of a Employer and Employee but that of a Council and a Subject
Tenure
Normally Term is 3 Years. They can be removed at any point of time on the pleasure of president
Points of Attorney General and Advocate General are same but with some minute changes of area
Legislature - Union & State Legislature
Schema of Legislature
Structure of the Parliament
Parliament = President + Lok Sabha + Rajya Sabha
President is not a member of parliament but he is a Integral Part of Parliament
Bicameralism Nature of State
Council of States - Upper Houses - Will of States
House of People - Lower Houses - Will of People
Council of States (Rajya Sabha)
Why has it been made mandatory in the constitution ?
To Protect the Interests of the States
Strengthens the Federal Structure of Constitution
Special Powers of RS
Art 312 - Creation of New All India Services - 3
Art 249 - under some special circumstances the RS can authorise the LS to make laws on state list
Maximum Strength
Elected → Not More than 238 from
States →
All States Have Representation in RS
UT →
Except for UT of PC, NCT of Delhi, J&K
Details of Which are Present in the Schedule 4 of the Constitution
Past and Future Amendments will be done on the premise of their populations
Nominated → 12 from Areas of Literature, Art, Social Service, Science and Literature
Examples : Sachin & PT Usha, Ellai Raja
Indirect Election of RS
Electoral College - Elected Members of Legislative Assemblies
Proportional Representation by means of Single Transferable Vote
Proportional Representation
Concept
UP - 403 Seats
BJP - 250
SP - 100
Others - 53
Vacancy is RS happens after every second year, Hence Elections of 1/3 seats will be done every 2 Years
The Maths of Election is
Total No of Rajya Sabha Seats is decided in the Schedule 4 of the Constitution, for UP it is - 31
Total No of Seats in the State Legislative Assembly of UP is 403
Hence, (403/10+1)+1 → “38 Single First Preference Votes” are needed for a member to be elected to the Rajya Sabha
BJP has 250 Seats in State Leg Ass, Hence BJP can send 250/38 → 6.54 → 6 Members by means of “38 Single First Preference Votes”
House of People (Lok Sabha)
Earlier
Earlier It was 552 Members Maximum = 550 Elected + 2 Nominated
Art 331 - Representation of Anglo Indian Community
2 Members to be Nominated from Anglo Indian Community
Now, 104th CAA Ended 2 Nominated Members
Now It is of no use as, it has been repealed
Presently, Maximum Seats is 550 = 550 Elected (Sub to Art 331)
530 States - Elected Directly
20 UT - Elected Directly
Current Total No of Seats - 543
Hence India Needs to be divided into 543 Constituencies
Direct Election (UAF - Art 325 & Art 326 )
By Art 326 - Adult Suffrage
Earlier 21 Years
By 61 CAA
Now 18 Years
By Art 325 - Universal
Gives Equality Between the Adults
Territorial Constituency / Single Member Constituencies
FPPS - First Past the Post System
There is no Threshold of votes as such
He has to get Maximum No of Votes as compared to others, even if its just one
Seats are allocated in Proportion to the Population
States with More Population will have more seats
States with Less Population will have seats
Delimitation Commission
Who Undertakes this Creation of Constituency and allocation of Seats
Concept
Constitution Empowers the Parliament
Parliament Makes the Law to Create a Authority
this Authority has to take care of dividing India into number of constituencies
Parliament Passed the Delimitation Act, 1952
Delimitation Act Created Delimitation Commission
Delimitation Commission has to create these constituencies based on the Representation by Population
This Commission gets to know the Population by Means of Census of 1971 & 2001
Structure of Delimitation Commission
Retired Judge of Supreme Court - Chairperson
CEC / EC - Chief Election Commissioner
SEC - State Election Commissioner
Functions of Delimitation Commission
They have to decide the Number of Seats of Every State and UT by the Principle of RBP (Representation by Population
Here Census used is - For Inter State Parity - 1971 Census
“Latest Census” was amended by 42nd CAA 1976
Latest Census was freezed to 1971 Census
This was amended by 84th CAA, 2001
Now 1971 Census was fixed until first Census after 2021 (probably 2031)
They have to Delimit the Constituencies = They have to draw the Boundaries of Constituencies
For Ex : LS Seats for UP is 80 Seats
Here Census used is - For Intra State Parity - 2001 Census
By Means of Delimitation Act of 2002
2001 Census - used to Demarcate Boundary
They have to Reserve Seats for SC & ST
Here Seats will be reserved on the basis of Population
Here Census used is - For Intra Parity State - 2001 Census
By Means of Delimitation Act of 2002
2001 Census - used to allot seats to SC ST
Seats of RS, LS & SL are mentioned In
Seats of RS - In Constitution
Seats of LS & State Legislatures is in - In RPA, 1950
Tenure of Houses
Lok Sabha
5 Years Normally
Reduced
Lost Majority
They have majority they ask the President to dissolve the Lok Sabha
Rule : Any Bill Related to Lok Sabha, On Dissolution of Lok Sabha, It will Lapse
With Exception of : If Before LS is Dissolved & President is Involved
Case 1 - Bill Lapse Subject to Few Exceptions
in 17th LS, A Bill has underwent 3 Stages
Bill Progressed → 2 Stages Pending
17th LS Dissolved, 18th LS Started
Hence the Bill Lapses
Case 2
RS may accept with change - RS will send back to LS - Bill Lapses
RS accepts without any change - Sent to President - Bill Does Not Lapse
Bill Related to Lok Sabha It Will Lapse
Yes
It Will Lapse
Exception - Before the Lok Sabha is Involved - Bill will NOT Lapse
No
It will not Lapse
Cases
Pending = Under Consideration
Bill Will Lapse
All Bills Pending in the Lok Sabha
Intro in LS → Pending in LS → It will Lapse
Intro in RS → RS Pass → Pending in LS → It will Lapse
All Bills pending in Rajya Sabha passed by Lok Sabha
Intro is LS → Passed by LS → Pending in RS
RS Passed it → Bill becomes an act
RS Send it back for Reconsideration & Changes and Accepted to LS
RS Rejected the Bill
In all these 3 Cases the Bill Will Lapse
Bill Will Not Lapse
Bill Pending in RS → Not Passed by LS
Intro in RS → Pending in RS → Bill will NOT Lapse
Bills Pending for President Assent
Bill Intro → Pass by RS → Pass by LS → Prez Generally used Absolute Veto Art 111 → Bill will NOT Lapse
Bill Sent for Re Consideration by the President
Bill Intro → Pass by RS → Pass by LS → President Sent for Reconsideration → Bill will NOT Lapse
When LS and RS reach a Deadlock → On Art 74 → under Art 108 Prez can call a Joint Sitting → If Prez has called for Joint Sitting → Bill will Not Lapse
Qualification to the Members of Parliament for both of LS & RS
By Grounds Mentioned in Constitution
They Should be a Citizen of India
They have to take an Oath / Affirmation before an authorised authority means
Authorised Authority →
As Appointed by Election Commission Of India →
Generally Called the Returning Officer
Not Less than
Lok Sabha - 25 Years of Age
Rajya Sabha - 30 Years of Age
By Other Qualification as mentioned by Law
Representation of People Act, 1950, Provides for Certain Qualifications like
He Himself should be an elector from any constituency in India
Members of Reserved Category to Contest Reserved Constituency (of SC/ST) → he himself should belong to a particular community
Difference in Qualification of LS & RS
Age
There is no Reserved Seats in Rajya Sabha
Disqualification to the Members of Parliament for both of LS & RS
Grounds Mentioned in Constitution
If it is found that who is elected but is found that he was not a Citizen of India, leads to disqualification
If he Voluntarily Gives up the Citizenship after becoming a Member of Parliament
Undischarged Insolvent
Somebody who has taken credit from Banks or from any financial institution and he is not paying the debt despite many notices to him by the Bank by Means of Insolvency Code
He is considered to be a Disqualified Person
Holds Office of Profit
Parliament (Prevention) of Disqualification Act, 1959
By Protection under this Law, Certain Offices are mentioned under this particular Law will not be considered as office of profit
If somebody turns out to be a Unsound Mind
By Laws Made by Parliament
By RPA, 1950 → there are no of grounds as of now, there’s only one ground
If somebody is convicted under any offence, under any law for 2 or more years
He will be considered Disqualified
Found Guilty of Election Offences
Example : Raj Narayan Case
Here the Disqualification is Automatic
Disqualification By
Disqualifying Authority is President of India on the Aid & Advice of Election Commissioner which is binding on the President
Anti Defection Law by 52nd CAA, 1985 (Tenth Schedule) - Special Case of Anti Defection Law
Introduction
It was not a part of Original Constitution
In Anti Defection Law, Disqualification is done by Presiding Officer himself, He Conducts an Independent Enquiry.
He does not act on aid and advice of EC by a Quasi Judicial Process
Here President has no say in the process
What is the Constitutional Position of Anti Defection Law ?
Added by 52nd CAA, 1985 to the Tenth Schedule
Background of Anti Defection Law
Why was there no Defection Law in the Original Constitution
In the original constitution there was no need for defection law
Congress was only Party
Conscience of people was high
What is the Meaning of Defection ?
If a member having a ticket from one party to another party, after getting elected from the previous party
Why was a Rise in Defection Seen ?
Coalition Govt
Political Instability
Aayaram Gayaram Episode
Why was Anti Defection Law Brought in
To Prevent Political Instability
To Prevent Political and Economic Gains of Defectors
To Prevent Subversion of Entire Democratic Process
To Respect the Sentiments and Emotions of Peoples Mandate
What is Anti Defection Law ?
What do you mean by Defection ?
In general MP and MLA elected from a Particular Party ticket moving to another party OR engaging in anti party activities may be considered defection
What amounts to Defection ?
Voluntarily giving up membership of political party
Resigned from the Party
He has not resigned in a party but is engaging in activities against the party
Example : BSP Member Not Resigned, Sitting in SP
If we abstain from voting or vote, contrary to party directions
Party Whip - Senior Member of Party
Anybody Doing Contrary to the Party Will
Exception
Taken Permission from Party Before Hand
Apologised to the Party within 15 Days
If any independent member joins any political party
Independent Member - निर्दलीय
He can support the Govt or he can help in formation of Govt but without taking membership of the party
If any nominate member joins any political party after expiry of six months
As of Now, RS 12 Members
For Ex: At time of Nomination, Sachin Tendulkar was not a member of any party, ab within six months if he wants to join the party he can, but within 6 months
Example of Process
Belonging to Congress
Mp of 2 Years
Goes to BJP
Presiding Officer Disqualified Him
He cannot be a member of Parliament
Unless and Until he is Re Elected Again
Exception to Anti Defection Law
If there is 1/3rd Split in the Membership of the Party
Case 1
Party - 60 Members
1/3 - Move Out - 20
2/3 Remain - 40 Members
This is called as a Faction or Ideological Differences
Case 2
This was amended by 91st CAA
Brought in 2/3rd Merger
A Minimum of 40 Members have to split and get merged with another party
What are the Case Laws Related to ADL ?
Kihoto Hollohan Case, 1992
Argument 1
It Challenged the Constitutionality of ADL
It argued that ADL violates Art 105 in Centre and Art 194 and takes away parliamentary privileges of the MP
It violates Freedom of Speech in voting in Parliament to which they are immune to
SC Said, that there is grave conflict but Stability of govt is more important over the Freedom of Speech
Hence, its constitutionality was upheld
Argument 2
52nd CAA, 1985 said that decision of presiding officer to be final and binding
SC maintained that the law in entirety was constitutional but the part of presiding officers decision being final and binding is unconstitutional
Hence this was changed by SC
now a member can appeal to higher courts
What are the Pros and Cons of ADL ?
Advantages of Anti-Defection Law are
Ensures stability of government
Ensures Party Discipline and Decisions on Party Direction
Disadvantages of Anti-Defection law
One of the Reason that why quality of debate in parliament has reduced is because the mentality of MP has become
No Matter what he debates, he has to anyhow vote on the party lines
Not Truly Representative : MP Depicts the Will of Party and Not will of People
Mis Use of Discretionary Powers by the Presiding Officer
Speaker i.e Presiding Officer is from the Ruling Party
There is not a Fixed timeline for the Presiding Officer to Act, SC Recommended the Presiding Officer to act within 3 Months
The Speaker can not take Suo Moto Cognisance
Example TRS & TDP In Telangana
What are the Suggestions to improve upon ADL ?
Strictly Restrict ADL to No Confidence Motion
Example : UK, Parliament System
Law Commission of Indian in its 170th Report also recommended this
Power to be Exercise by independent officers like President and Governors on the Recommendation of ECI
Suggestion by Dinesh Goswami Committee & M Venkatachaliah Commission (NCRWC, 2002)
NCRWC - National Commission to Review Working of Constitution
Appoint a Politically Neutral Person as Speaker
Ex : Convention is followed in UK
Once a Person is elected he gives up the membership of Party
SC Recommended Creation of Separate Tribunal to deal cases with ADL
Speaker of Lok Sabha
Presiding Officers of
Lok Sabha - Speaker
Rajya Sabha - Vice President
The Process of Election of Speaker
Election
Prove Majority
PM Appointed by President
CoM Appointed by Prez on A&A of PM
Prez Appoints Speaker Pro Term
Speaker Pro Term Administers the Oath to Newly Elected Members
Speaker Pro Term will conduct elections for a Speaker on the Date Decided by President
Qualification
Only Qualification to Contest Elections is that he or she should be a member of Lok Sabha
To be elected as Speaker, a simple majority is needed
Office of Speaker Pro Term ceases to exist after Speaker is elected
Pro Term Speaker
Speaker Pro Term is generally a person who has been elected to the House Maximum No of times generally
Tenure
The Current Speaker of 17th LS will continue to be the Speaker until 18th LS, until Pro Term Speaker of 18th LS
Removal
He can be removed as speaker by means of effective majority
Resignation
Speaker can give his resignation to Deputy Speaker
Disqualification
All Criteria of MP for Disqualification
Exception
A Speaker cannot be disqualified from the post of speaker for resigning from the Party
Powers & Function of the Speaker
Maintain the Order and Decorum in the House
Presiding Officer has the power to carry out the proceedings only if there is Quorum of the House
Quorum - Minimum Strength Needed to carry the Proceedings of House
Quorum of Lok Sabha -1/10 of the Total Membership
He is the Final Authority to Interpret rules within the House
He has the Power to Preside over Joint Sitting
President has the Power to call for Joint Sitting under Art 108 on A&A of CoM
In Joint Sitting if it is passed with Simple Majority, then it is deemed to be passed by both houses of Parliament
Convened by President, Presided by Speaker
If Speaker not There, Deputy Speaker of LS, Dy Chairman of RS
Chairman RS cannot
He has the Power to Certify a Bill as a Money Bill under Art 110
He has the Powers to Disqualify on the grounds of Defection
Voting Power of Speakers
To Break a Tie he can use or exercise his casting vote
He Appoints Chairman to Various Committees.
He himself is the Chairman of
Rules Committee
Business Advisory
General Purpose Committee
Independence and Impartiality of the Speaker
How his position can be misused
Important because of Anti Defection Power
Misuse in case of certifying a bill as a Money Bill
In Money Bill RS deprived of its power and LS will have all the Power
Misuse of Power to not give opposition member be spoken
Provisions for Speaker
Security of Tenure
Salary & Allowance charged from CFI (Consolidated of Fund of India)
CFI - Consolidated Found of India
Charged on CFI - Parliament can’t
Made from CFI
Not to be Questioned in court of Law Regarding proceedings of house
Presiding Officer can vote in case of a Tie as his Casting Vote
Deputy Speaker of Lok Sabha
Its a Parliamentary Convention from the 11th LS &
From 16th & 17th LS there is No Deputy Speaker as there is No Opposition as of Now
Elected from Amongst the Members
Acts as a Speaker when Office of Speaker is Vacant
He automatically becomes chairperson of a committee if he is a member of that committee given that speaker is not a member of that party
Chairman of Rajya Sabha
Vice President - Ex Officio Chairman Powers & Functions (Similar to Speaker)
Maintain Order and Decorum
Conduct Proceedings when Quorum
Final Authority to Interpret Rules of RS
Final Authority to Preside Joint Sittings
No Power to Certify Money Bills
No Power to Preside Joint Sitting
Deputy Chairman of Rajya Sabha
Elected Amongst Members of Rajya Sabha
Removal by Effective Majority
Resignation to Chairman
Parliamentary Privileges (Art 105 & Art 194)
What does it mean by Parliamentary Privileges ?
Parliamentary privilege refers to rights and immunities enjoyed by parliamentarians in order to properly discharge the duties and functions entrusted upon them by the Constitution
Roles of Parliamentarians
To Make Laws
Accountability of the Govt
Financial Accountability
What is the Rationality behind it ?
To Ensure Accountability of Government
Constitutional Provisions ?
For Centre Art 104 and State Art 194
What are the Parliamentary Privileges exercised by MP’s ?
2 by Constitutional Provision and others by Parliamentary Convention
Right to Freedom of Speech and Right to Vote
Right to Publication - Collective Right
Collective Privilege is exercised by means of speaker
What Punishment will be given - Parliamentary will decide
But Scope of Parliament is not Restricted to these two privileges,
Apart from these Priv there may be other Priv as may be determined by Laws of Parliament
Till the Time Parliament Makes Laws, Parliamentarians may exercise privileges before constitution came into existence(i.e by Constituent Assembly)
Important Note on Parliamentary Privileges
Constitution Empowers the Parliament to Codify Privileges
Till Such Codification Members Continue to Enjoy Privileges they enjoyed before the commencement of constitution
It is taken care by Privilege Committee, Each Separate for Lok Sabha and Rajya Sabha
Final List of Privileges exercised by Parliamentary
What are the Issues Around Parliamentary Privileges ?
Borrowed from British Parliamentary System as a Conventional Practise
Collective
Art 105 - Ind & Coll
Freedom to Right of Publication of Debates Proceedings or to Restrain Them
To Punish Members and Outsiders for Breach of its Privileges
Right to Exclude Strangers and Outsiders
Individual
Art 105
Freedom of Speech - Individual → Subject to Exception of
Rules of House of Parliament & Constitution
Unparliamentary Languages
Cannot Engage in Contempt of Court or Criticise Actions of a Judge
Exemption from arrest 40 Days before and after the session → Effectively Amounts to 5 Years of No Arrest
What are the Issues Around Parliamentary Privileges & Associated Case Laws ?
Violation of Art 19 & Art 21 of Constitution
MSM Sharma Case, 1959 or Searchlight Newspaper Case
Case of Bihar, Published in Newspaper which was barred by Speaker of Leg of Bihar
Here Supreme Court Ruled that Art 194 will have precedence over Art 19
Keshav Singh Case, 1964
Ques: Is Judicial Review of Parliamentary Privileges Possible ?
Ans: SC Maintained that Judicial Review is Possible in case of Parliamentary privileges especially if it deprives Rt to Life & Liberty
Court Said that whenever you are trying to deprive someone of Rt to Life and Liberty, there has to be Due Process of Law
Ques: Can Judges be considered to have Breach of Parliamentary Privileges
Ans: No they cannot be ever a Liability to the Judges
Why is Codification Required ?
Goes Against the Idea of Limitation of Powers
Goes Against the Principle of Constitutional Supremacy
It rather promotes Parliamentary Sovereignty
For Protection of Fundamental Rights
Misused for Vested Interests - Generally for Political Vendetta
What are the Disadvantages of Codifying Parliamentary Privileges ?
Once Codified, it will lead to Judicial Scrutiny and Lead to Pendency of Cases and May be used to hamper the proceedings of parliament
M N Venkatachaliah Commission (NCRWC 2002) - Recommended the Codification of Parliamentary Privileges
Sample Mains Question
Parliamentary Procedures - Summarise, Structure and Add Once
In Sequence
Summary
Question Hour
Introduction
Any Kind of Question can be fired to Ministers
It is also called Accountability Hour
15 Days Notice has to be given to the presiding officer
Types of Questions asked
Advance Notice has to be given to the Minister
Starred Question - Oral Answer
Here Notice time is a Minimum of 15 Days Notice
Unstarred Questions - Written Answer
Here Notice time is a Minimum of 15 Days Notice
Short Notice Question - Oral Answer
Here Notice time can be less than 10 Days
Zero Hour
Merely an Extension of Question Hour
No Prior Notice of 10 Days is Needed
Indian Innovation, Its Merely a Convention
Starts at Zero at 12 Noon
Entire Rules and Procedures have to be done by speaker Lok Sabha
There is No Specific Agenda for the Zero Hour as Such
Motions & Questions
Difference between Motion and Questions in the House
Question is Asked and it is Answered
It is introduced in the first part of the day
Motion is Introduced, Debated and Deliberated & Voted Upon
It is introduced in the second part of the day
Introduction to Motion
A motion is a proposal which is introduced in the house to elicit a debate on a particular matter
It can be put up only in the second part of the day
Types of Motions
Vote of Thanks
What is Motion of Thanks
Given by President
When Does it Happen ?
It is given by By President
When Govt is Installed after General Election is Over
He Talks about Objectives and Aims of the Government for the next 5 Years
First Session of Every Year
He Lays Report like a Progress Report of the Government
What will happen if the Motion is Not Passed ?
In Lok Sabha - Considered as No Confidence Motion -
In Rajya Sabha - Its Just an Embarrassment if government takes it to be an Embarrassment
No Confidence Motion
This word is no where mentioned in the Question
Mentioned in Rule 198 of Lok Sabha
Any Person can Introduce No Confidence Motion
But it can be in the Lok Sabha Only
Presiding Officer may or may not accept it
PO may not accept it unless and until it is supported by 50 Members at the time of introduction
There has to be No Specific Agenda for the No Confidence Motion
Once No Confidence Motion Passes
President may accept the resignation and look for installation of new government
President may accept the resignation but if there is no new govt to be installed the old govt may act as a Caretaker Government. Here A&A of CoM will not work
Art 75 of the Constitution - Talks about collective responsibility of members or minsters to Lok Sabha
Adjournment Motion
Not Mentioned in Constitution
It is a Rule of the House
Can be Introduced only in the Lok Sabha
Once this motion is admitted in the floor of the house, even the speaker lok sabha cant adjourn the house, until and unless the ADJOURNMENT Motion is talked and debated and completed
It is used for a Matter of Urgent Public Importance
Can only be introduced only if 50 Members support this motion then only it can be introduced
Minimum Discussion will be for 2.5 Hours
House cannot be adjourned Motion is put to vote
Even if it is passed, there is no impact on the Government but it is a indication that government might not be having majority
Privilege Motion
Before Punishing a Individual, this motion is introduced
Motion is passed and voted upon to finalise the punishment for breach of Parliamentary Privileges
Lunch Break Actual Business of House
The Law Making Process - As a Base by Example of Ordinary Bill
What is a Bill
It’s a Legislative Proposal, Once Passed by Both the Houses of Parliament and has Been Given Presidential Assent before it become a Law
Procedure Involved in the Bill
1. Introduction of the Bill
Who Introduces the Bill
Government Bill - Introduced only by the Minster
Pre Legislative Process - Add from Lecture
Bill is referred to Legislative Dept under Law Ministry for the drafting of Bill
If he wants, Before he places in House, it can be put up in public domain
Before putting it in parliament, PM is told about it
PM calls a Cabinet Meeting with Important Ministers
Cabinet Gives Approval - Bill is backed by the Government
Now Treasury has to support the Bill, if he denies it will be considered as Defection
Private Member Bill
Pre Legislative Process - Add from Lecture
Anyone who is not a minster is a Private Member
He has to do it by Legislative Experts Privately
He will have to take permission of Presiding Officers and put it up in the house
What is the Subject Matter of the Bill
Money Bill
Financial Bill
Ordinary Bill
Constitutional Bill
What is the Place where Bill has been Introduced
Lok Sabha
Rajya Sabha
What happens with the Bill
The Person who Introduces this Bill will discuss the Objectives of the Bill
2. Referral to DRSC
Departmentally Related Standing Committees
In Parliament - 24 DRSC Present
Each House will have 31 Members
21 from - Lok Sabha
10 from - Rajya Sabha
16 DRSC - Lok Sabha
8 DRSC - Rajya Sabha
These DRSC’s divide the Whole Major Functions of Government
Example
Constitution Amendment Bill - to DRSC on Home Affairs
Mediation Bill - to DRSC on Public Grievances
They Scrutinise in Depth and Prepare a Report on the Bill. They Give the Report back to the House
Drawback of these Committee
Neither it is mandatory for the Govt to refer to DRSC
Nor the Recommendation of DRSC is Binding on the Govt
A Minister cannot be a part of any DRSC
3. Discussion Stage or Second Reading
Clause by Clause Analysis is done here s
Even after the Second Reading Stage Govt feels that bill should be referred to another committees
It can be referred to - Ad Hoc Committee
Ad Hoc Committee - Temporary Committee made for a Specific Time is called
Standing Committee - Permanent Committee
Join Parliamentary Committee (JPC)
Select Committee - is from a Specific House not from Both the House
Example : Surrogacy Bill became Act → It was long time pending in the Select Committee
4. Final Vote or Third Reading in the First House
Bill has to be totally accepted or rejected
Bill has to be passed with Simple Majority
No Clause by Clause Analysis
No Changes can be made here in this Stage
5. Bill in the Second House
The Process
Ordinary Bill - Both LS and RS have Equal Power
Bill is introduced in the Second House
Major Objectives and Reasons of the Bill will be discussed
They Do Not Take An Action
If after the Introduction the Bill has been pending in the second house for more 6 Months → Constitution calls it Deadlock
They Take an Action → Bill moves to Second Reading Stage
2. Second Reading Stage in Second House - They Make Clause by Clause Analysis
They can make changes
They can refer it to a JPC or Select Committee
They Do Not Make Changes
Bill is sent to Third Reading Stage
Bill is put to vote in the Second House
Bill is Passed
They Pass with Changes
First House will Accept the Changes → Bill is sent to Presidents Assents
First House will Not Accept the Changes → Deadlock
They Pass with No Changes
Bill Goes to the President for his Assent
Bill is not Passed → Deadlock
They do not take action since introduction for 6 Months → Acc to Constitution → Deadlock
The Summary
Same Procedure as in the first house
Options in the Hands of Rajya Sabha
Accept the Bill without any change → Sent for President Assent
Reject the Bill → Deadlock
Pass with Amendments & First House Accepts the Amendment → Sent for Presidents Assent
Pass with Amendments & First House Does Not Accepts the Amendment → Deadlock
No Action for Six Months → Deadlock
Here Joint Sitting can be convened by President under Art 108
Presided by → Speaker LS → Dy Speak LS → Deputy Chairman RS
6. Presidential Assent
Can Give Assent to Bill → Bill becomes an Act
Can withhold Assent to Bill → Absolute Veto
Can send for Reconsideration to the House → Suspensive Veto
Can sit on it without communicating on the Bill → Pocket Veto
Any Bill which is not a Constitutional Amendment Bill, Nor a Money Bill, Nor a Finance Bill1, Nor a Finance Bill 2 will be considered as a Ordinary Bill
Examples
POCSO Act
CAA
Money Bills - Art 110
Introduction
Art 110 deals with Money Bills
Any Bill which contains only those items mentioned in Art 110 of the Constitution can be certified as money bill by the Speaker of Lok Sabha
Subject Items in Art 110
Important Full Form
CFI → Consolidated Fund of India
Income Generated by Govt is Credited into CFI
To Withdraw Money, Approval of Parliament is Needed
Law Needed → FRBM Act - Deals with Clauses of Borrowing
3. Custody of Consolidated Fund and Contingency Fund of India AND Withdrawal of Money
Income Generated by Govt is Credited into CFI
To Withdraw Money, Approval of Parliament is Needed
Contingency Fund of India - Expenditure for Unforeseen Expenditure like a Disaster
It is Generally Less the Consolidated Fund
4. Appropriation of Money from CFI
Withdrawal from Contingency Fund of India can be authorised by merely a Executive Action under Contingency Fund of India Act, 1951
5. Declaring a Expenditure as Charged Expenditure for CFI
There can be only two types of Expenditure in Indian Government
Under Art 112 of the Constitution - Tells which Expenditure are Charged Expenditure and Which are Made Expenditure
Made Expenditure
Charge Expenditure
Explanation
6. Receipt of money on account of CFI or PAI
PAI - Public Accounts of India
Govt Functions as a Trustee to this Fund
PAI → Example : Post Office Savings, Pension Funds
Procedure for a Money Bill
Detailed
Introduction of Bill - Requires Prior Recommendation of President
Both Minister and Private Members can introduce the Bill → But in both the case Prior Recommendation of President is Needed
Prior Recommendation - To Discourage Private Members to Introduce Money Bill
Can be Introduced only in the Lok Sabha → as Govt is Accountable only to the Lok Sabha
Speaker Certifies the Bill to be a Money Bill → Now RS has no Power on this Bill
Only Power of RS is → Max RS can sit over the Bill for 14 Days
Can they Reject the Bill - No
Can they accept the Bill
With Changes → Send back to Lok Sabha → Can Send Back with Changes but Recommendation of Rajya Sabha is NOT binding upon Lok Sabha
Without Changes
Summarised
Introduced Only in the House of People
Transmitted to Council of State after passed by Lok Sabah
In RS Maximum Delay of 14 Days Allowed
Return the Bill with or Without Recommendation
Lok Sabha can accept or reject such recommendation
Relation Between Money and Financial Bill
Financial Bills
Relation Between Money Bills and Financial
All Money Bills are Financial Bills
But All Financial Bills are NOT Money Bills
Now, other than the Money Bills there can be bills which deal with the Finances of Government. These can be divided into Two Types, Namely :
Financial Bills Type 1
A Bill which contains any of the matters contained in Article 110 but does not Exclusively Contain only those Matters
Meaning It will contain some clause of the 6 Subjects of Art 110 but not only that, with Art 110 Clauses it will also have some other Parts as well
Example: Compensatory Afforestation Fund Act, 2016 → To Maintain Balance between Afforestation and Development in India
For a Industrialist who wants to build a Industry in a Forest Area, he will pay a compensation for the Same. This Fund will be used for developing a forest cover equal or better than that
This Fund will go to
PAI - Public Authority Fund of India
PAS - Public Authority Fund of State
This Fund will be Managed by CAMPA like Officials Fees and Usage of this Money
How is it Similar to Money Bill
It can be Introduced only with the Prior Recommendation of President
It can be Introduced only in the Lok Sabha
President Assent
Like Ordinary Bills
Financial Bills Type 2
Any Bill which merely involves expenditure but does not Include any matter in Art 110
Example: Salary Allowances and Pensions of Members of Parliament Bill
Procedure for Financial Bill Type 2 is Similar to that of an Ordinary Bill except that President may Recommend for its consideration in Both the Houses
That is After the Introduction in the House and in Between the Second Reading of the House
In Ordinary Bill DRSC Can be Skipped and from Introduction it can directly go to Second Reading
But in Financial Bill Type 2, After the Introduction Either After DRSC Step or to directly go to Second Reading Stage, Presidents Assent is Needed, It is a Must
Constitutional Bills
Power & Procedure of Parliament to amend the Constitution
Some Important Questions
Who can Introduce a Bill ?
Either a Minister Private Member
Do they have to take Prior Permission from President ?
No Not under Art 368
Do they have to take Permission from Chairman of the House ?
Yes, a Mere Formality
in LS : Speaker
in RS : VP
Can it be Introduced in any house ?
Yes, in either LS or RS
Types of Constitutional Amendments
Bill tries to Amend - Non Federal Provisions - Doesn’t Change Power Balance b/w Centre & State
Procedure
Bill has to be Introduced (by any MP) - Subject Matter is to Amend the Constitution
Introduced in & Passes to → LS/RS || RS/LS
It should gain Special Majority
</ 2/3rd Members Present & Voting
Absolute Majority of House Needed
President has to Give the Assent ( No Veto ) - It was made mandatory for the President to give assent to the bill by 24th CAA, 1971
Bill tries to Amend - Federal Provisions - Changes Power Balance b/w Centre & State
Procedure
Bill has to be Introduced (by any MP) - Subject Matter is to Amend the Constitution
Introduced in & Passes to → LS/RS || RS/LS
It should gain Special Majority in both the Houses Separately
</ 2/3rd Members Present & Voting
Absolute Majority of House Needed
Then it is Sent for Ratification by the State Legislature
<1/2 of State Legislatures Accept it, its Enough
i.e 28 States - 14 State Legislatures have to Ratify them
State Legislature - Simple Majority
State Legislative - Simple Majority
President has to Give the Assent ( No Veto ) - It was made mandatory for the President to give assent to the bill by 24th CAA, 1971
Example
Art 246 Schedule 7
Budget Bill - Annual Financial Statement
What is a Financial Year ?
1 April to 31 March
What is a Budget
Budget is Statement of Estimated Expenditure & Estimated Earnings
Some Important Points
When is the Budget Laid Down by the FM ?
On Or After 2017 - Budget is Laid by Finance Minister on 1st Feb
Whose Responsibility is to Lay down the Budget ?
Under Constitution - The Responsibility to Lay Down the Budget is of President of India
In Which Session is Put to Vote in the Parliament
It is put to vote in the parliament in a Budget Session
Who Prepares the Budget and What is the Hierarchy ?
Under Finance Ministry
Under Secretary Department of Economic Affairs there is a HOD of Budget Division
This is then Presented to the Finance Minister
FM puts it to the PM who then approves it to be put to Parliament
When would the process for creating the Budget Start ?
The Process for Budget of Year 2023 would be started by September 2022
Is the Budget Laid down in front of only LS or Both LS & RS ?
Now President has to lay down such report in front of Both the Houses of Parliament every financial year
What are the Contents of a Budget
Budget is a Statement in the Form of Estimated Receipt and Estimated Expenditure
Expenditures have to be divided into Charged and Made ExpenditureThis has been told about in Art 112
Made Expenditure - Around 95% Expenditures - Voted in LS
Charged Expenditure - Around 5% of Total - Cant be Voted in LS
Salary of President & His Office Expenditure
Salary Allowances of Chairman, Dy Chairman, Speaker & Dy Speaker
Debt Charges of the Government
Salary Allowance and Pensions of Judges of Supreme Court
Pension of Judges of High Court
In Case of HC it is just the pensions
What About Salary of Judges of HC → will be Consolidated Funds of Respective State
Salary Allowance and Pension of CAG
Sums Required to Satisfy any judgement, decree or any award by the court
Example: SC Fined Govt. of Rs 50 Lac in Favour of Shri Nambi Narayanan
Any Other Expenditure declared by a Law of Parliament or Constitution
Its an Indicative List, Not an Exhaustive List
Example Constitution: Art 146 → Servants Working in Supreme Court
Or By a Law Made by Parliament
Process of Budget Enactment
Introduction of Budget
In Both the Houses - First in LS and then After a Day or Two in RS
FM Gives a Introductory Speech - Stating Some Basic Trends, Facts and Allocations
General Discussion StageScrutiny by DRSC
DRSC were started in 1990’s
Total 24 DRSC - 16 LS & 8 RS → Major Functions of Govt are Covered Here
1 DRSC - 31 Members = 21 Mem of LS + 10 Mem of RS
Each DRSC will look into the Specific Part of the Budget
For Example : Defence DRSC will look into the Defence Part of Budget Only
This Generally Happens for 2 to 3 Weeks
DRSC Submits the Report back to Lok Sabha
Vote on Demand for Grants
These are Demands of the various Department one at a time and NOT the WHOLE Budget at a time
It is only the Power of LS and NOT RS
LS Passes all these Demands One by One By Simple Majority
4. The LS can do the 4 things to a Demand
They Can Approve the Motion
Policy Cut Motion
It Disapprove the Entire Demand
The Demand be Reduced to Rs 1
Economy Cut Motion
Demand is Reduced by a Specific Amount as decided by Lok Sabha
Token Cut Motion
Last Year they had grievance with the way money was spent
It is like with a warning, these motions is passed
As a Symbol - Rs 1 is deducted from the Proposed Budget
5. Lok Sabha has 26 Days to Pass All These Demands
First 25 Days - Important Demands are Put to Vote One by One
Last Day - All Undiscussed Demands are Put to Vote and Passed All together at once → It is called Guillotine Closure
Here Only the Made Expenditure are Voted Upon. ONLY MADE EXPENDITURE CAN BE PUT TO VOTE
Charged Expenditure Cannot be Voted Upon Even in Lok Sabha. They can be discussed but cannot be put to vote
6. Why is the Prerogative of Lok Sabha
Because Expense is the Responsibility
Here In Principal Approval has been Given but the Permission to take out money hasn’t been given yet
Passing of Appropriation Bill (Money Bill)
All the Procedures Seen in the Case of a Money Bill will be applied
The Withdrawal and Deposit Authority of Govt is Finance Ministry
Passing a Finance Bill (Money Bill)
How Much Tax Should be Credited in the CFI
Deposit into CFI
Time Line of Budget
Prior 2017
Railway Budget - First Week of February
General Budget - Last Week of February / Last Day of February 28 Feb
Post 2017
Introduction of Budget - 1st Feb
General Discussion - 3 to 4 Days
DRSC - 2 Weeks
Vote on Demand - 26 Days
45 Days Completed by Now
Budget has to be Enacted before 1 April
Case Where Budget Cannot be Passed Before 1 April
In the Whole Process It Approximately Takes 45 Days and at Max RS can sit on it for 14 Days
Thus before 2017 if the budget is introduced on 28 Feb then, the complete enactment of Budget i.e the Passing of Appropriation Bill would not be possible before 1 April
Vote on Account
It is a special power given to parliament to authorise the government to take out money from CFI even in case of Pending Passage of Appropriation Bill and Passing of Budget for Maximum 2 Months
Only if at least the General Discussion Stage is completed
and in the meantime Parliament has to enact the Budget
Types of Grants
After Budget, If New Expenditure Occurs or Expenditure Increases we have certain tools in Indian Constitution
Supplementary Grant
Defintion
It is the money granted found to be insufficient for a particular service during a financial year
Example: MGNREGA
It happened in 2021,22,23 → because of Covid & Migration of Workers
Budget was allocated to MGNREGA before covid. By December the Funds for the Scheme was over for that financial year.
Now the Money was found to be Insufficient for Entire Course of Year
Money can be made available to the program in the form of Supplementary Grant.
Process
Hence, Govt will put a Vote on Demand for Grant, it will be put to vote and then Lok Sabha will approve it.
This will be Followed by a Corresponding Appropriation Bill
Note: The Scheme should already be there in the Budget
Additional Grant
Defintion
Additional Expenditure on a New Service not contemplated in annual financial expenditure of Year
Example : COVID
Example: Covid was unseen for
Process
Hence, Govt will put a Vote on Demand for Grant, it will be put to vote and then Lok Sabha will approve it.
This will be Followed by a Corresponding Appropriation Bill
Excess Grant
Defintion
Money Spent on any service during a financial year in excess of the amount Granted
Example
Defence 50,000 Cr
Parliament Approved this way
Salary 10,000 Cr
Research & Acquisition 10,000 Cr
Border Road Development 10,000 Cr
Arms Acquisition 10,000 Cr
Other Miscellaneous Charges 10,000 Cr
Process
Transfer of the Money from One Head to Another Head
First they Spend the Money
They Then take the Approval of the Lok Sabha
Vote on Account, Vote of Credit, Exceptional Grant
Vote on Account
Provision to make advance gran in respect of estimated expenditure before passing of the appropriation bill
Vote of Credit
Parliament instead of Authorising a specific demand on Vote on Demand for Grant. The Parliament Gives a Blank Cheque to the Govt for Expenses
It generally happens when the extent and nature of expense is not clear and defined
Example: Defence Ministry cant tell that until when and what kind of costs will be incurred in a War
Definition - It is granted for meeting an unexpected demands upon the Resources of India
Nature of Demand and Magnitude is Indefinite in Character
Exceptional Grant
It has never been utilised everywhere, there is a service for which govt needs money, the head of this service is something on which the government has never ever used money in past
Example: Alien Has been Caught and Govt Needs Money for setting up a laboratory for the Alien
Definition: To Make an Exceptional Grant which forms no part of current service of financial year
Type of Fund in the Parliament
Art 266: CFI - Consolidated Fund of India and Public Accounts of India & of the States
Consolidate Fund & Public Accounts of India → Constitutional Fund
Source of Fund is Constitution Itself
Art 266(1) - CFI for Union and States
Art 266(2) - PAI of India and States
CFI
PAI
Consolidated Fund of India
Public Accounts of India
Whatever Revenue Govt makes, it is credited into CFI
Govt is the Custodian of this Fund
They Taxable and Non Taxable Sources (Natural Resources, Fines, Profits on Investments etc)
Sources Are - Pension Funds, Small Saving Account in Post Office, Other Govt Saving Places
Govt is NOT authorised to take money out by itself
As & When People Require, Govt does not need approval of the Parliament
Art 267: Contingency Fund of India - Statutory Fund
Contingency → Unforeseen and Unexpected Circumstances
Art 267 → It is a Statutory Fund, Article in the Constitution Says that Parliament shall create a contingency fund
Act is → Contingency Fund of India Act, 1951
Source of Money → Money will be taken from CFI of India as and when budget is made
when the Corpus of Contingency Fund is Finished, A supplementary grant is taken for it
It Does not need approval of Parliament
It can be done by an executive order of President of India
Here President of India has already made the Finance Minster of India, Its Overseer. Hence, he/she can take out the money as and when needed
Legislative Council
Important Details of Legislative Council
Art 169 provides for Legislative Council
Final Authority to tell decide about it is that of Parliament of India
Parliament can either create or deny the creation of Legislative Council
Parliament Cannot do this action in Suo Moto Cognisance
Resolution for LC in States has to be passed with Special Majority in the Parliament
State LA has to first pass a resolution and then parliament can create and abolish LC for the states
Remember Two Things
Parliament Cannot Do it Suo Moto
Resolution of State Leg Ass is not Binding upon the Parliament
LC not existing in the states or it existed and then it has been abolished will make a change in the constitution of India i.e in Art 168
So does the Parliament has to follow the process of a Constitutional Amendment ?
No Constitutional Amendment is needed to add the name of state to the Art 168
It can be done by an act of parliament requiring Simple Majority
This Exception has been given in the Constitution itself
Summary of Adding or Abolishing a Legislative Council
Composition of Legislative Council
Total How Many Members can be there in a Legislative Council ?
There is no fixed Exact Number for the Legislative Council
Not More than 1/3rd Members of Leg Ass of State and Not Less than 40
Example State X has 180 MLA’s
Strength Can Range Between → 40 - 60
Example State X has 100 MLA’s
Here, It will be Exactly 40
People who can vote in Legislative Council Election & its Composition ?
Summary
Detailed - Here People of Leg Council are ELECTED BY, not ELECTED AMONGST
Electorates → Who Have the Right to Vote
1/3rd Members Elected by Electorates
Members of Municipalities, District Board & Other Local Authorities
Members of Legislative Assembly
1/12th Members Elected by Electorates
Graduates (3 Years in Possession of Degree)
Each Election will have one Constituency Graduates for Each Election, in Next Election Another Constituency will be given the chance
Teacher Not Less than Secondary Level (Teachers from Class 9th)
Nomination by Governor
1/6th Members to be Nominated by the Governor of state from the fields of (Art, Literature, Science, Social Science, Cooperatives)
Home Work : Relevance of Legislative Council in IndiaComparison Between Centre and State Legislature
Bicameralism is mandatory at Union Level & not at States
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Maximum No of Seats
Maximum Seats for Lok Sabha is 552
Cannot be More than 500 and cannot be less than 60
De Limitation Commission
No of Seats by 1971 Census until (2026)
Boundary by 2001 Census
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Voting Age and Method of Election
18 Years of Vote
First Past the Post System
18 Years of Vote
First Past the Post System
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Duration of Houses
Normally 5 Yers but can be dissolved earlier or extended
Parliament by Law can extend it indefinite 1 Year at a Time
Life of State Leg Assembly can be extended or dissolved earlier
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Permanence of House
Rajya Sabha is a Permanent House
Leg Council is a permanent house once created and until abolished
Parliament can abolish but not by Suo Moto Cognisance
Resolution has to be passed by Special Majority in Parliament
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Terms of Upper House
RS Every 2 Year 1/3 Member Retire
LC Every 2 Year 1/3 Member Retire
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Sessions & Process of Parliament
As in Notes
Same as Lok Sabha
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What Happens to the Pending Proposals When House is Dissolved
As in Note
All Proposals Lapse
1. When Matter has gone to Governor
2. When Governor has sent it for Re Consideration
3. Introduced in LC, pending in LC
No Provision for Join Sitting in State Legislature
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Qualification of Members of Parliament
1. Citizen of India
2. Oath Affirmation
3. LS - 25
RS - 30
4. RPA - Elector from any constituency from India
5. Reserved Category should be from Community
1. Citizen of India
2. Oath Affirmation
3. LA - 25
LC - 30
4. RPA - Elector from any constituency from State
5. Reserved Category should be from Community of that State
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Disqualification
For Office of Profit, Laws can be made by Parliament which can be exempted for certain office
Disqualifying Authority: President
Aid & Advice of ECI
Challenge in Supreme Court
Anti-Defection Law in Art 102
Here ADL By Speaker of LS
For Office of Profit, Laws can be made by that State Leg Ass which can be exempted for certain office
Disqualifying Authority: Governor
Aid & Advice of SEC
Challenge in High Court
Anti-Defection Law in Art 191
Here ADL By Speaker of SLA
ADL by 52nd CAA
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Presiding Officer
As in Notes Above
Same as Centre
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Functions of Presiding Officer
As in Notes Above
Same as Centre
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Chairman & Dy Chairman of RS
VP - Chairman
Elected - Dy Chairman
Chairman and Dy Chairman - Based on Elections
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Parliamentary Privileges
Art 105
Art 194
Breach of Parliamentary Privileges in State is More than the Centres
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Parliamentary Procedures
As Mentioned Above
Most of State Leg Follow Same Procedure as in Parliament but some states might have some different things which are NOT Needed to be Studied
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Law Making Process
Who Introduces - Govt or Pvt Bill
Sub Matter - General, Money, Financial, CAB
Who Introduces - Govt or Pvt Bill
Sub Matter - General, Money, Financial
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Procedure for Ordinary Bill
1. Introduction
2. Referral to DRSC
3. Discussion Stage or Second Stage
3. Final Vote or Third Reading
4. Passed in LS
5. Goes to RS
6. RS Can
Accept → President
Reject → Deadlock
Amendments →
Accepted →
Denied → Deadlock
Sit for 6 Months → Deadlock
No Provision for Deadlock in case of State Leg Ass and State Leg Council
Steps in State Leg Ass
1. Introduction
2. Referral to DRSC
3. Second R -
4. Third R -
5. Passed in State Leg
Bill Passed by Leg Ass →
1. Accept the Bill - Gov Assent
2. Amendments & Sent Back to LA & LA Accepts the Changes
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2. Reject the Bill -
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1. No Action for 3 Months
2. Amendments & Sent Back to LA & LA is not Accepting the Changes
Here, Bill Sent to LC Again by LA
Now, LC can either
Accept - To Gov
1. Reject or 2.Sit on it for 1 Month → Deemed to be passed as passed by LA
3. within a period of 1 Month → LC Proposes Changes Again and Sents to LA → LA can pass it as LA deems to be fit
In Centre LS and RS have equal powers. Hence, Deadlock May Arise
At Max What, LC can do is at Max delay it by 4 Months
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Procedure for a Money Bill
Items under Art 110
Prior Recommendation of President is needed
Items Under Art 199
Prior Recommendation of Governor is needed
For Financial Bill Type 1 and Type 2 → Replace President by Governor
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Annual Financial Statements
Responsibility of President
Responsibility of Governor
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Charged Expenditure
1. Salary of President & His Office Expenditure
2. Salary Allowances of Chairman, Dy Chairman, Speaker & Dy Speaker
3. Debt Charges of the Union Government
4. Salary Allowance and Pensions of Judges of Supreme Court
5. Pension of Judges of High Court
In Case of HC it is just the pensions
What About Salary of Judges of HC → will be Consolidated Funds of Respective State
6. Salary Allowance and Pension of CAG
7. Sums Required to Satisfy any judgement, decree or any award by the court
Compensation has to be given by Union Govt
8. Any Other Expenditure declared by a Law of Parliament or Constitution
Its an Indicative List, Not an Exhaustive List
Example Constitution: Art 146 → Servants Working in Supreme Court
Or By a Law Made by Parliament
1. Salary of Governor & His Office Expenditure
2. Salary Allowances of Chairman, Dy Chairman, Speaker & Dy Speaker for SLA & SLC
3. Debt Charges of the State Government
4. Salaries & Allowances of Judges of High Court
In Case of HC it is just the pensions
What About Salary of Judges of HC → will be Consolidated Funds of Respective State
5. Sums Required to Satisfy any judgement, decree or any award by the court
Compensation has to be given by State Govt
6. Any Other Expenditure declared by a Law of Parliament or Constitution
Its an Indicative List, Not an Exhaustive List
Example Constitution: Art 146 → Servants Working in High Court
Or By a Law Made by Parliament
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Contingency Fund
Approval by Parliament
Head of Contingency Fund is Governor
Approval by SLA
Head of Contingency Fund is Governor
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CAG - Comptroller & Auditor General
Ambedkar's View on CAG
Ambedkar Said that for him CAG is Guardian of Public Purse and for Ambedkar Single Most Important Constitutionally Important Functionary is CAG
CAG Submits the Report to President CAG Helps them In
Parliament is a very large body, hence it is not possible for everyone to do every work
Hence DRSC Come into Play
Committee Function Throughout the Year but Parliament Meets only when the Parliament is in Session
CAG Audits PSU as well
Ex PSU : SAIL, HALE,
PSU have Internal Offers of Themselves
CAG is Outer Reporter
Parliamentary Committee
What is the Need for Parliamentary Committees
Functions of Parliament & Thus of DRSC Are :
They have to Make Govt Accountable
To Pass the Bills and Make Laws
Quasi Judicial Functions
Removal of President
Punishment for Breach of Parliamentary Privileges
Budget Making
CAG Reports are Scrutinised by the Parliamentary Committee → Financial Accountability
Types of Parliamentary Committees
Standing or Permanent Committees
Financial Committees (3)
They help the Govt in Ensuring the Financial Accountability of Government
Theme
Public Accounts Committee
Committee on Public Sector Undertaking
Estimate Committee
Composition
22 Members
15 - LS
7 - RS
Rep from Both Houses
22 Members
15 - LS
7 - RS
Rep from Both Houses
30 Members
30 - LS
No Rep from RS
Chairperson is Appointed by
Appointed by Lok Sabha Speaker
As a Convention Chairperson of Public Accounts Committee is from Opposition
Appointed by Lok Sabha Speaker
As a Convention Chairperson of Public Accounts Committee is from Opposition
Appointed by Lok Sabha Speaker
As a Convention Chairperson is from Ruling Party
Term
1 Year
Generally, They are Re-Elected in Parliament. Its a Convention in Parliament
1 Year
Generally, They are Re-Elected in Parliament. Its a Convention in Parliament
1 Year
Generally, They are Re-Elected in Parliament. Its a Convention in Parliament
Who Can be a Member
No Minister can be a Member of this Committee
Only a Pvt Mem can be Member
No Minister can be a Member of this Committee
Only a Pvt Mem can be Member
No Minister can be a Member of this Committee
Only a Pvt Mem can be Member
Election Method
Elected through System of Proportional Representation
Elected through System of Proportional Representation
Elected through System of Proportional Representation
Functions
They Get the CAG Report from the President of India, submitted to him by CAG
(Direct Finance of Govt)
They will make noise, they may share the CAG report with public as well
They Get the CAG Report from the President of India, submitted to him by CAG (Indirect Finance of Govt)
They will make noise, they may share the CAG report with public as well
They Recommend on the estimates prepared by Department of Economic Affairs for the Budget of that Year
Anecdote / Remarks
Murli Manohar Joshi called PM Singh in 2014 as Chairperson of this Committee
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Recommendations
Cut the Allowances, and Use the Money in Hiring the Experts
They Completely Function in Non Transparent Manner
NCRWC Recommended a Panel of Full Time Experts and Researchers to help the Parliament
Drawback
Committee is Recommendatory & Non Binding
Their Nature of Work is Post Martem except for Estimates Committee
Allowances Given to them to hire the Help of experts are used for Personal Use and Seldom Experts are Hired unlike US
DRSC (24)
Details
DRSC - Departmentally Related Standing Committee
It was started as a practise in 1993
24 Total Committees → Each Cmt has 31 Members - 21 from LS & 10 from RS
16 in LS - Headed by LS Member - Chairperson by LS Speaker
8 in RS - Headed by RS Member - Chairperson by RS Chairman
All Members are Nominated by Speaker and Chairperson Respectively
Functions
Scrutinising the Bills
Scrutinising the Demand for Grants
Implementation of Various Policies & Schemes by Govt
Example: DRSC on Health & Family Welfare will look into the Functioning of NHM - National Health Mission
Example: DRSC on Urban Affairs will look into the Functioning of Smart City Mission
Issues
When the Bills are Introduced it is not Mandatory to Refer the Bills to DRSC
in 16th LS only 25% of Total Bills Introduced were referred to a DRSC
The Recommendations of DRSC is only binding in Nature
Members of DRSC are Not Experts in Legal or Field of DRSC. They do not have expert help as well
NCRWC called it “Crippled” in its functioning
No Transparency in its working
Advantages
As there are members from different parties and houses, it acts as a better consensus building forums before the bill is introduced
Members can freely raise their concern as a part of Ruling Party, even a member of ruling party can go against the bill in the PC without the fear of Anti Defection Law
Administrative Committees
Helps Smooth & Better Administration of House
Examples of Administrative Committees are :
Rules Committee of LS and RS
To Frame the Rules in the House
Headed by Speaker in LS and Chairman in RS
Ethics Committee
Keeps a Note of Various Conflict of Interests a MP may have
It is largely dysfunctional in both the houses
Business Advisory Committee
Advises the PO so as to how to carry out various businesses in the house
Headed by Speaker in LS and Chairman in RS
General Purpose Committee
After All the Functions which are left out will be taken up by the General Purpose Committee
Headed by the Presiding Officers Themselves
Functions
Helps Presiding Officer to maintain the discipline and decorum of the house
It is there in both the house of parliament i.e LS & RS
Temporary Committees
Ad Hoc Committees
They are Temporary in Nature
It is set up for a specific reason
Example
Joint Parliamentary Committee
It will always have members from both the house
can be formed for
Look into Corruption Charges
Scrutinise the Bill
Select Committee
In case of Select Committee it is only a member from a particular house
Members are chosen for a expert reason
Once Work is Done, They are Removed
Function of the Parliament
Law Making
Budget Formulation
Budget Enactment
Accountability of Govt/Executive
Quasi Judicial Rule
Is the Quality of Working in Parliament Declining ?
At Commencement of Constitutions, P used to sit for 122 Days, Now it sits for 70 Days Only
Quality of Debates has to be increased, majority in the house doesn’t speak against it due to ADL
Bills aren’t having good expert preview as only 25% of bills are being sent to DRSC
No of Ordinances in parliament is increasing which signifies decline of functioning of parliament
There has been New in most of the Budget, Most of the Budget are Incremental Budget
Criminalisation of Politics, It is grave that Law Breakers are Becoming Law Makers
No Gender Parity in the Parliament, Representation of Women is Less than 10%
Reforms in Functioning of Parliament
NCRWC Suggested Minimum of 120 Days of Siting
Check on Ordinance Making Power
Reservation for Women in Lok Sabha
Mandatory Referral to DRSC except for under Exceptional Charges
Members with Criminal Background should be subjected to Fast Track Court
Changes to Anto Defection Law
Judiciary - Union & State Judiciary
Introduction to Indian Judiciary
What do you mean by Independent and Integrated Judiciary?
Independent from Executive and Legislature → Balances the Feature of Federalism
Integrated with HC and DC → Where Order of Upper Court is Binding upon Lower Court
Integrated Judiciary → All Courts can Look into All Laws, There is no Separate Hierarchy of Court for different Laws
Establishment & Constitution of Supreme Court
Supreme Court of India - Highest Court of India
Judges of Supreme Court shall be appointed by President
However, at the commencement of constitution there shall be 7+1 Judges
But Present Strength of Judges of Supreme Court is 33 Judges and 1 CJI of India
What does it take to Increase the Number of Judges?
Supreme Court of No of Judges Act, 1956 → The Power to make this law has been given to the parliament
It can be done by an ordinary law and the number of judges can be increased as per the demands
Supreme Court of India
What does the constitution say about the appointment of Judges of the Supreme Court?
President may in consultation with
Judges of Supreme Court
Judges of High Court
Chief Justice of India
shall appoint Judges of High Court
What is Collegium System
No other Democratic Country uses this System but India
Its a System of Appointment of Judges to higher judiciary where the judges appoint the judges
Here, President is a mere appointing Authority
Collegium - Group of Judges
What is the Origin of Collegium System
Its an Judicial Innovation by Supreme Court like that of Basic Structure Doctrine
What are the Case Laws Involved in Judicial Innovation of “Collegium System”
First Judges Case, 1981
Meaning of Consultation was asked
SC Said that Consultation does not mean Concurrence
Hence, Primacy was given to the Executives
Second Judges Case, 1993
Question
This Issue was Raised that if the Ultimately the Primacy is of Executives, then it will affect the Integrity of Judges and Hence Supreme Court
There Should be No Case of Committed Judiciary → Committed Meaning Committed to Govt
SC Said,
that Henceforth → Collegium System Evolved → CJI & 2 Senior Most Judges
Here, Consultation would amount to Concurrence
Question
Whose Consultation would amount to Concurrence
SC Said
Consultation of Chief Justice of India would amount to Concurrence
Third Judges Case, 1998 (Presidential Reference u/a 143)
Consultation with Plurality of Judges → SC Expanded the Collegium
Collegium would now amount to → CJI + 4 Senior Most Judges
Along with CJI At Least 3 Senior Most Judges should be in Concurrence
Other Countries System
India - Collegium
US - Judicial Commission
by 99th CAA, 2015 → Govt brought in NJAC
NJAC → It was declared null and void by the SC on Grounds of violation of Basic Structure
Here Independence of Judiciary was considered to be a part of Basic Structure
Comparison Between NJAC and Collegium System
Critical Analysis of Collegium System and NJAC
Promotes Judicial Nepotism: At Least 50% of Judges are Kith and Kin of Past Judges
Goes against concept of Separation of Power → It does away with the system of checks and balances
The Process is Non Transparent and Non Questionable
There is Lack of Accountability on the Part of Collegium
But, the Compromisation of Judiciary is also a grave concern
Home Work: How to Improve Collegium SystemHome Work: Example from where the Power of Judicial Review Flows?
Art 13
Appointment of Supreme Court Judges
President is appointed by a Warrant under his Hand and Seal
Till they Attain 65 Years of Age
Resignation by given to the President
Can be Removed by Order of President →
Only by Motion Passed in Parliament
Addressed in Both the House
In the Same Session
By means of Special Majority
On Grounds of Misbehaviour and incapacity
Once Passed, the President has to Sign the Order
Here, Step by Step Procedure is NOT Given in the Constitution
Procedure from Removal of a Judge of Supreme Court*
Constitution has empowered the Parliament to give a detailed Process for impeachment of President → Judges Enquiry Act, 1968
in 1988 → There was a Motion for CJ of Punjab of High Court
Procedure for Removal of a Judge
Motion has to be Introduced in Either Houses
Signed by 100/50 Member of LS and RS
Subject to Pre Approval of Speaker & Chairman in LS & RS
Here, Even after the Support of 50 Members, the PO can deny the approval of the Introduction of the Bill
PO shall appoint a Investigating Committee of Three Members
Two Judges of SC
One Retired Judge - Jurists
Hence this is a Quasi Judicial Function of Parliament
Incapacity
Not so Severe Physical Disability
Mental Incapacity like - Schizophrenia
CMT will give the Report to Parliament
Passed with Special Majority in the First House
Passed to Next House and Motion will be put to vote in the Same Session of the Parliament
If Passed with Special Majority in the Second House, Sent for Presidents Approval
President will Sign and Judge Stands Impeached
Qualification to be a Supreme Court Judge
Citizen of India (In Addition to this)
Not Necessarily by Birth or Naturalised Citizen
Either: Five Year Judge of High Court or Two or More Such Courts
Either: Advocate of High Court or Two or More Such Courts in Succession for 10 Years
Either: Someone who is a Distinguished Jurists in the Opinion of President (Opinion of Collegium)
There is NO Minimum Age Criteria for the Appointment of SC Judges
Note
An Oath has to administered by President under his hand of warrant and seal
Difference Between Jurisdiction and Power
Jurisdiction - Type of Cases they can entertain
Power - Not Necessarily Jurisdiction but some powers that they can do
Jurisdiction & Powers of the Supreme Court
1. Original Jurisdiction
Introduction
Given by Power Article 131
Cases that can be taken directly by the ONLY by the Supreme Court
No Other Court in India can take these cases or look into it
Example:
Any Dispute which is Federal in Character → Federal Disputes
Federal in Nature
Union of India v/s State or States
Union of India and State v/s State/States
State v/s States ( Two or More States )
Here Individuals are NOT Party to it, Only States or Centre
Special Case of UT
Special Case: Dispute Between Union Government and UT - Is it a Federal Dispute ?
Under Art 239 UT is controlled by Centre → Hence not being in a Federal Dispute they should go to High Court and then by Means of Appellate Dispute
Special Case: Dispute Between UT and any other States is a → Federal Dispute
Who is considered to be in a Federal Dispute
For Someone to be in a Federal Relationship - There Should be a Different Constitutional Head
Hence, Including UT Of Delhi, JK & Puducherry is not in Federal Relationship
2. Appellate Jurisdiction
In Original You go to SC directly
In Appellate by means of Hierarchy, they can make an appeal to the Supreme Court
Nature of Case in which there can be Appellate Jurisdiction
Appeal on Civil Law
Criminal Matters in the Supreme Court
Here Individuals and State both can be a Party to it
3. Appeal by Special Leave
Example of Inter State River Water Dispute is a Federal Dispute ?
Yes
Will it go to SC directly ?
No
What is the Exception then ?
Exception is Art 262 which says, Whenever there is Case of River Water Disputes, the matter shall not go to Supreme Court but Shall in Lie in front of an Authority as made by the Law of the Parliament
Inter State River Water Disputes Act, → Taken Up by an Ad Hoc Tribunal
Example: Cauvery Water Dispute took 25 Years to give the Order, TN Govt Said they will not accept the Orders of Tribunal. Meanwhile they accepted the Interim Orders of Proportion of Water Sharing, but they didn't accept the Final Order of Tribunal
According to constitution the order of Tribunal is Binding. But Now TN Govt appealed to SC by means of Special Leave Jurisdiction
If any party in India, is not able to go to the Supreme Court by means of any other Jurisdiction, then they can appeal the Supreme Court by Special Leave Jurisdiction
Exemption to Special Leave Jurisdiction : Orders of Armed Forces Tribunal
It's a Extraordinary Power and Hence used by the SC very Sparsingly
4. Writ Jurisdiction
Power to Issue Writs for Fundamental Rights only
Case Only
Write Petition - W
Original Petition - O
Appellate - A
Special Leave Petition - SLP
There are 5 Types of Writs that can be Issued by the Supreme Court
Can SC Issue Writs for Legal Rights
Difference
SC - Can take Matters only for Violation of FR only but Geographical Area is More
HC - Can take Matters only for Violation of FR & Legal Rights but Geographical Area is Less
Art 139 of the Constitution Parliament can empower the Supreme Court to issue writs for Legal Rights as well
5. Review Powers
SC Can review their own order and change it
Hence You Cannot Punish the Judge if SC Changes its decision
In Such Cases a, Review Petition is Filed in the Supreme Court
Examples
Kesavananda Bharati Case
6. Curative Petition
It is NOT Mentioned in Supreme Court
SC under Art 137 of the Constitution did a Judicial Innovation and made a Curative Petition
Once All Exhaustion of Options is Done and even Review Petitions is exhausted, then curative petition exists
Then Even if Curative Petition is Exhausted then there is NO Option from the Court
Only Option is Mercy Petition to the President
7. Law Declared by the Supreme Court binding on all courts
It is an example of implementation of Hierarchy of Courts
Judgment from one HC to another HC is not binding but Persuasive
Examples
Judgment Already Passed by the Supreme Court has to be taken care by HC. Hence in Sedition Case Conviction Rate is only 3% as all sedition cases go to Supreme Court Firsts
Example
Kedarnath Case, 1962 → Clear and Immediate Incitement of Violence (Sedition)
8. Rule Making Power - Article 145
Rule Making Powers is given to SC by means of Art 145
Supreme Court can make Rules with the Approval of Presidents, regulating general practice and procedure in the Court
Approval of Presidents → It is Generally Given
Rules Like
Procedure of Filling of Cases
Conduct if Judges
Min No of Judges Needed for a Constitutional Bench
9. Advisory Jurisdiction
Art 143
It's a Little Different from other Jurisdictions
It can be for
Question of Law
Question of Fact
Whenever President Seeks Advice of Supreme Court
It is not binding upon the Supreme Court to take the Case
It is not binding upon the Govt to accept the Decision of Supreme Court
Example : Ayodhya Mandir Verdict President Referred it to SC in 1990, SC Rejected the Case for Advisory
Now, another new case was filed in Supreme Court which couldn't be rejected by the Supreme Court
10. Contempt Powers
It is nowhere mentioned or defined in the Constitution
Contempt - Showing any type of Disrespect to the Authority of the Court
Art 129 - Supreme Court has the Power to Punish for the Contempt of the Supreme Court and other Courts
Contempt can be defined based on the Law passed by the Parliament → Contempt of Courts Act, 1971
Summary - It is NOT Defined in the Constitution, It comes from the Contempt of Court Act
There are 2 Types of Contempt
Civil Contempt
Willful Disobedience
Not Appearing in Front of the Court or Non-Compliance of Civil Judgement
Generally, It's a Fine
Criminal Contempt
Disrespect to Judge or Institution of Judiciary
Someone who prevents the functioning of the Judiciary
Generally, It’s a Punishment in Jail
Example: Adv Prashant Bhushan was filed for Criminal Contempt, but SC took a Lenient Way and Said
Accept the Contempt
Apologise
Pay a Fine of 1 Rs
or Go to Jail for 3 Months
11. Extraordinary Powers of SC under Art 142
Art 142: The Supreme Court of India can Exercise its powers by Laws made by the Parliament of India
Example: Periyar Volan Case - Person involved in assassination of Former PM Rajiv Gandhi
Mercy Petition → President → President Sat on it
SC used Extraordinary Power → Commuted Hanging to Life Imprisonment
Now he filed the Mercy Petition for Reducing Life Imprisonment to the Governor of TN
TN CoM A&A that His Life Sentence Should be Reduced → Gov Sat on it
SC used Art 142 → Until Now he had spent 30 Years in Jail
Now, SC Released him from Jail
High Courts of India
Introduction
Constitution Says that there shall be a High Court for Each State → Meaning Some HC can have Concurrent Jurisdiction
Each High Court Shall Consist of a Chief Justice plus some Judges (as decided by the President)
Note:
In SC Number of Judges is Decided by an act of Parliament
In HC Number of Judges is decided by the President
Process for Appointment of Judges of HC
Appointment and Condition of Service of Judges of High Court (Art 217)
Appointed by President by warrant under his Hand and Seal
They can retain the Office until they ATTAIN the Age of 62 Years (In SC its 65 Years of Age)
For the Appointment of Judges, President shall Consult
CJI
Governor of State
CJ of the HC of the Concerned State where the appointment to other judges of the High Court is done
Here in Third Judges Case, SC Held that for the HC Judges also Collegium Shall Consists of
CJI + 2 Senior Most Judges of SC
CJ of Concerned High Court
Other Judges of High Court and Such Judges of SC Conversant with the Affairs of High Court Concerned
The Movement of Files in Appointment of HC Judge is
Process of Apt started by CJ of HC
Files go to CM
from CM to Gov
From Gov to Ministry of Law
From Here to CJI
From CJI to Ministry of Law
From Ministry of Law to PM
From PM to President
Procedure for Removal of HC
Same Process as that of SC Judges
Qualification for being the Judge of a HC
Citizen of India &&
10 Years of Judicial Office in the Territory of India
Judicial Office: District Judge etc
OR Advocate of HC for at least 10 Years
Oath Administered by Governor
Transfer of Judges from one HC to Another
President of India can Transfer the Judges from one HC to another HC
But Right Now it is done by Collegium. President acts on the aid and advise of Collegium
Collegium → CJI + 4 Senior Most Judges (Written Recommendation Mandatory)
Chief Justice of Both High Court (from where being transferred to where being transferred)
Such other Judges of Supreme Court who are conversant with the affairs of the High Courts Concerned
Recommendation is Mandatory but the Ultimate Authority is that of Collegium
Judges of the HC have to show compliance no matter what, only way they can defy is by means of Resigning it
Jurisdiction and Powers of HC
Introduction
All HC in our country shall continue to exercise such powers as before the commencement of constitution subject to law made by parliament and state legislature
Jurisdiction as existed at the commencement of the constitution subject to law made by parliament and state legislature
Original Jurisdiction
Civil Matters: based on laws passed by the state legislature
Criminal Matters: there is no original jurisdiction in case of criminal matters in case of HC
Criminal Matters detailed investigation has to be done which is done by Lower Courts
Appellate Jurisdiction
Applies to all the Civil and Criminal Matters
HC Power of Superintendence
General Guidelines - Regulating Practise and Proceeding in the courts, prescribed forms in which accounts have to be kept
Note : Armed Forces Tribunal Excluded from the Jurisdiction of High Court
Writ Powers of HC
Art 226 of Constitution
They Can Issue Writs for Legal Rights and FR, throughout the Territory of the Concerned State
Subordinate Courts
All Courts Below and Including District Courts is Subordinate Courts
Appointment Made by Governor in consultation with HC. No Procedure Defined
Recruitment of Person Other than District Judges
By Means of PSC of That State conducts State Judicial Service Examination. Appointment made by Governor
Rules Made by the Governor in consultation with state public service commission and high court concerned
Homework: All India Judicial Services Pros and Cons
One of the Reason that there is a Lot of Pendency in Courts is that most cases is appealed in the High Courts, that is due to poor quality of judgements in the Lower Court. Most Important courts of India are Session and District Courts
Reform Suggested Are: All India Service under Art 312 → All India Judicial Services
Pre Condition: Rajya Sabha has to give a consent by passing Resolution by means of Special Majority
Currently Judges are selected from the same state. Hence State has a very limited set of Talent Pool
PIL - Public Interest Litigation
Concept of Locus Standi
Concept of Locus Standi: How are you connected to the case, especially in case of Writ Jurisdiction
People who have any problem can go and knock the doors of Judiciary, despite they are not connected to the case
Any Person can bring it to the notice of court by means of bonafide intention and not some vested interests
What is PIL ?
OIK is defined as Litigation in interest of general public without following the principles of Locus Standi
Who can file a PIL ?
PIl is a proceeding in which an individual or group seeks relief in the interests of general public and not for his or her own relief. PIL Has modified and relaxed the Traditional Doctrine of Locus Standi.
Examples
ADR
Common Cause
Since When has it gained Prominence in India ?
From 1970’s
Defining Case: Husainara Khatoon v/s State of Bihar, 1970
Considered to be known prominent in PIL
Relates to PIL for Plight of Undertrials
Undertrials - Poor People, No Bail, No Judicial Knowledge
SC Said:
Speedy Justice as FR under Constitution
14 to 17 People were released
that year 40,000 People were released
Defining Case: SP Gupta v/s UOI, 1981
PIL can be filed for
Writ Jurisdiction - Largely used when FR is violated
Who can file it
Individual or Social Action Group
Are Guidelines by SC Law ?
Guidelines by SC is Law until and unless law made by the parliament
Advantage of PIL
Protection of Rights of Individuals
Example: Husainara Khatoon v/s State of Bihar, 1979
Example: Vishakha Guidelines preventing Sexual Harassment at Workplace, this was law until 2013. In 2013, they made law
Policy Decisions to Address Major Lacuna in Governance
Example: CNG in Delhi
Example: Nota in Elections → ADR filed PIL → Has no Significance → But allows Expression of Discontent
Example: Good Samaritan → In case of Helping Police
Example: Kalyaneshwari v/s Union of India Case → Industries Polluting Environment, Petitioner was part of Competitive Industry
Violation of Doctrine of Separation of Powers
Judge Made Laws
Judge Made Policies
Judicial Innovations
Differentiating between Judicial Activism or Judicial Overreach is very difficult
Judicial Activism (Pro Active Role Played by Judiciary) Examples → Positive Things
Procedure Estab by Law is Due Process of Law
Vishakha Case
Pro Activeness of Judges venturing into Legislature or Executive → Judicial Adventurism → Negative Things
Example: Based on PIL, All Alcohols within 500 M Range of Highways has to Shut Down things
Example: Censoring of some parts of Jolly LLB despite certification from Central Film Board
Solutions
While Entertaining PIL, a Court should Follow the Established Guidelines
Bonafide Intention should be confirmed
No Judicial Adventurism / Overreach → Judicial Restraint by Judiciary itself
Tribunals
Origin of Tribunals
It was Inserted into the constitution by 42nd CAA
It’s a Quasi Judicial Body
Difference Between Quasi Judicial and Judicial Bodies
Called as Quasi Because
They have Specialised Jurisdiction whereas Judicial Bodies have General Jurisdiction
Service Conditions & Independence
Judges are appointed by Govt and Executives Hence Independence is not as strong as Judges
There is a Lot of Conflict of Interest for the Judges in Tribunals
Jurisdiction of Quasi Judicial Bodies is very Restricted
Procedure they Follow → Judicial Bodies follow a Rigid Process but Tribunals follow easy procedures that they only have to follow Law of Natural Justice
They have Speedy Justice
For Example:
Taxation Matters, Environment Matters, Admin Matters
Called as Judicial Because
They impart Justice
Origin
First Recommended by First Law Commission (14th Report)
Pros
Speedy Justice
Cost of Justice Reduced
Easy Access to Courts
Judicial Pendency will be reduced
Cons
Independence and Impartiality of Govt
Justice Shah Committee, 1972 ( HC Arrears Committee)
Recommended Creation of Tribunals
Sixth Law Commission
Not in Favour of Creation of Tribunals
May Violate Jurisdiction of HC & SC
But if after the Tribunal, One can go to HC & SC. Then there should be no provision for appealing after Tribunals
But then it can hamper the Jurisdiction of SC & HC violating Article 226, Art 32 & Art 236
If you have to go to SC & HC → Then what is the point of making tribunals
Based on Recommendation of Swaran Singh Committee under PM ship of IG
It is Not a Part of Original Constitution, it was brought in by 42nd CAA
Article 323 A → Administrative Tribunals
Parliament is the only authority to make law
Laws made by Parliament → Administrative of Tribunals Act, 1985
Centre - CAT → Centre Administrative Parliament
State - SAT → State Administrative Parliament
Article 323 B → Other Tribunals
Both State Leg & Parliament can make Laws on
Taxation Matters, Env Tribunals etc
SP Sampath Kumar v/s UOI, 1986
Administrative Tribunals Act, 1985 was challenged in Supreme Court
Tribunals would be final and binding, hence ATA was unconstitutional violative ofA
Art 226
Art 32
Art 136
When the Matter was Sub Judice, Govt made changes and allowed appeal to HC & SC
Here Art 32 and Art 136 was protected & Art 226 was NOT Protected
Govt Debated : Effective Alternative Institutional Mechanism Theory saying that people can go to SC but not HC
Here SC somehow accepted it
L Chandra Kumar v/s UOI, 1997
It argued that Judicial Review Flows from Art 226
They Said if Art 226 is a part of Basic Structure Doctrine
Here SC Said, You Can Make Tribunals but can’t substitute the role of HC
Here SC Held, that you can make the Tribunals, but HC appeal can be made
SC Said,
Position of Judges in Tribunals is independent from Partiality
SC Suggested
Judges in Tribunals shall be appointed by a Committee headed by CJ of HC
HomeWork:Rationalisation of Tribunals Act, 2021
Centre State Relations: Addition of Current Affairs is a Must
Framework
Constitution Divides the Relationship between Centre and State in the Following Way
Example of Companies Having Federal Political System
USA Canada Australia & India
Indian Federalism is closely related to constitution of canada
Each Countries Federal Structure is Different
Division of Powers (DOP) Between the Central and State Government
Legislative DOP - Between Union Legislature & State Legislature
Questions to be Asked in Centre State Relations of
What are the items on which Parliament can make Laws ?
What are the Items on which State can make Laws ?
It is related to which article and Schedule
Art 246 Provides for Schedule 7
Schedule 7 Provides for 3 Lists, Namely
What are the Lists of Schedule 7 Here ?
Union List - Union Makes Laws (97-100)
Laws Needing Uniformity have been Given to Union
Laws Made by the Parliament will apply throughout the country until and unless exceptions have been defined
Law made by Parliament can have Extra Territorial Jurisdiction meaning outside India
Example: NIA Act after Mumbai Attacks of 26/11/2008
State List - NORMALLY State Makes Laws (66 - 61)
To Accomodate Regional Diversity
Throughout Country of Concerned State
Example: Health, Sanitation, Agriculture, Fishery
Concurrent List - Both Parliament and State Makes Laws (52 -47)
As of Regional Diversity Later Uniformity can be applied for
Example: Forest, Wildlife, Population Control and Family PLanning, Education, Social and Economic Planning, Marriage & Divorce
Framework of Lists
What is the Case when the Law Made by State can prevail ? What is the Exemption ?
If there is a conflict in Law made by States and centres, in all times law made by centre will prevail with only one exemption
The Exemption being, For Example for Education State and Centre has made Laws, Assent is given by Governor Normally
Now, If Gov Reserves the Bill, The Bill is reserved for President's Assent & if the President Assent is Given on the Bill of State. Then here the Law of State will Prevail
For Example: NEET as Mandatory Exam for entry into Medical Courses
State Govt of TN: Passed a Bill by all Legislators 100% Bill was accepted to exempt students of TN from NEET Examination
Constitutionally Education is a Item in the Concurrent List
This bill passed by TN Govt is only useful when the Governor reserves it for President and President has to give the assent
Is India a Truly Federal Country ?
India is a Federal Supremacy not a Truly Federal One
It’s a Federal Structure with Unitary Bias
What are the Instances where Union is Preferred over State
More Items in Union List
Shift in the Nature of Amendment that has happened to Schedule 7, has been shifting items from State List to Concurrent Lists
In Case of Any Conflict between Centre and State
Art 3, Only INherent Power of the Parliament to reorganise States
Only Parliament can make Constitutional Amendments
Through Governors Power, Centre can control law making powers of State
In Case of Creation of Leg Ass, Even Ratification of that State isn’t binding upon centre
Residuary Powers of Law Making is with Central Government
( In a True Federal Country, like US, States have Residuary Powers)
What is a Residuary Power ?
Anything that does not fall under three lists
Parliament has the Power
GOA Act, 1945 - Residuary Powers to Viceroy
USA - Residuary Powers to State
Doctrine of Pith & Substance: In Case of Conflict between State Law & Central Law, the Central Law will Prevail
The Doctrine: where a question arises whether a particular law relates to a particular subject mentioned in one list or another, the court investigate the substances of the law.
For Example: if the substance falls within the union list, then the incidental encroachment by the law on the state list does not make the law invalid.
Innovated by SC through: State of Rajasthan v/s G Chawla, 1959
Example of Application of Doctrine of Pith & Substance:
Agricultural Law: By Art 131 for Federal Dispute in Supreme Court, Many States applied in Law
NIA Act, 2008: was challenged in court by some states, by empowering NIA, parliament is trying to encroachment upon the power of state of Law and Order of State List
What Does Supreme Court Do
If Union has unintentionally encroached upon the powers of state.
If, the reason, objective, subject matter is centred around administration of item in the Union List (only then) that Law cannot be considered as a unconstitutional Law
Example: By NIA Act 2008
State Said : Centre is Encroaching Upon the Powers of Police of Law and Order which is in State List
Centre Said : It is not for encroachment in powers of state but for a centralised intelligence agency
Centre said it has made law under National Security Item
Here SC: Said that Centres Law is Correct
Example: Agricultural Law
There is Nothing Regarding Agriculture in the Union List
In Concurrent List Also, there is no direct agriculture but only Agricultural Produce and Distribution.
Hence, There is a INTENTIONAL Encroachment upon powers of state is seen
Though the Law has been withdrawn by the Centre, SC would by this Doctrine, would have struck down this Law
Power of Parliament to Legislate on State List
Art 249: National Interest
Special Resolution by Rajya Sabha by a Majority of 2/3rd Members of Present & Voting
When they have to suddenly make laws on something which is in state list
For Example: Health is in State List, During Covid Time Govt wanted to bring in Law for Health
Parliament can’t do it alone, it has to be done with the permission of Rajya Sabha as well
Here this Law made is not a Permanent Law, it’s a Temporary One, this Resolution passed by Lok Sabha the Resolution will be enforced for a period of One Year
The Law Ceases to Exist after 6 months
The State can also make Laws on this item of concurrent list but there has to be consistency in it or the law of Parliament will prevail
Art 250: Power of Parliament to make laws during Proclamation of National Emergency
National Emergency is under Art 352 but Power of Legislature to Make Laws during National Emergency is under Art 250
During National Emergency Parliaments will have the power to legislate on any item in State List
Whenever the National Emergency is Revoked, The Centre can make laws on matters in State List
But only six months after the Revocation of National Emergency
Note : Here Power of State Legislature is Not Deprived
Art 252: Legislate for Two or More State by Consent and Adoption of such legislations by any other State
Here there is No National Emergency
State here is requesting to make laws on State List
Minimum of 2 States have to Make Such a Requests
Done in cases where uniformity between 2 states is needed
For Example: Wildlife was in State List until 1976
It was later made part of Concurrent List
Wildlife Protection Act 1972 was passed by the Parliament as the state requested the Parliament
Two or More States Request the Parliament by = Passing Resolution by Simple Majority
Now in the Future only Parliament will gave the Power to amend such law
Also this will be a permanent Law
The Law will apply to those states only
Now that they want to adopt such a law they can adopt the Law
But once adopted by a simple majority, it will be amended only by parliament
Art 253: Implementation of International Treaties
Parliament Makes Laws to Implement International Treaties
Here they don't even have to take permission from states for items under states list given that the condition is of Implementation of International Treaties
Art 356: State Emergency
Here the Law made by the Parliament is a Permanent Law
Parliament can makes laws on any items in the State List
What is the Procedure to Amend Schedule 7
Special Majority - Absolute Majority + Not Less than 2/3rd of the Parliament
State Ratification by Simple Majority of 50%+1 States
Executive DOP - Between Union Legislature & State Legislature
Art 256: Obligation of States and Unions
Executive Power of Every State Shall be exercises as to ensure with laws made by parliament and any existing law in that state
Executive Power of Union Extends to Giving Such Direction to a state as may appear to the government of Indian to be necessary for the purpose
Here States have to respect the Constitutional Direction of Union or else they can be given direction by centre to obey
Here, Still they don’t obey, President can conclude, failure of constitutional machinery failure and can apply Art 365 for President's Rule
Financial DOP - Between Finances of Union & Finances of State
Introduction
Each and Every Govt should have a major source of revenue - Prominently by Means of Taxation
Art 265: No Tax can be collected in country except by an authority of Law
Whatever Tax is collected by Union cannot be solely kept by Centre, But what a State Earns can keep it with itself and it will get something from Centre as well
Body that will recommend the Govt the distribution of Resources within State and Centre is Finance Commission. It will also recommend distribution between states under Art 280
NOTE : Concurrent List Items are made upon by Parliament but Implemented by States
Resources Are :
Taxation Revenue - Necessarily Need Law
Non Taxation Revenues - May and May Not Need Law
Auction of Natural Resources
Fines
Profit from PSU
Borrowings
Profit
Distribution of Powers to Levy Taxes on Union & State
Finance Commission - Finance Commission Act, 1951
It decides the Distribution of Revenue between Centre and States
FC consists of Chairman and 4 Members
Qualification to be a Chairman is
Latest Commission - 15th Finance Commission
Any Other Matter Referred to Commission by the President: To Mobilise Funds for Local Govt by State Govt
Centre - Divisible and Non Divisible Pool
Centre Shares money with States from Divisible Pools
Issues with Grant in Aid
FC is a Important Body in Fiscal Federalism
Grant in Aid by the FC is being Given to States who are the Party from Centre and Not for those who are actually in Need
Horizontal Distribution Parameters are Not Followed by FC Generally
In the Latest 15th FC -
2011 Census - Used 2011 Census and More Weightage was given to 1971 Census
Earlier 2011 Census Low and 1971 Census High Percentage
1971 Census Used High Percentage
Central Govt Said, They Agree South may be affected by Census, but revenue sharing on the basis of Performance Indicators like
MMR, IMR
Digital Penetration
Cooperative Federalism
Definition
Example:
Inter State Council
Constitutional Body, Under Art 263
Headed by PM (Chairperson)
Other Members
CM of all States
CM of UT with Leg Body
Administrators of Other UT
6 Cabinet Ministers of Union Govt nominated by PM Himself
Issues
It has been largely dysfunctional over a period of time
they hardly meet
if they meet, there is no specific agenda
Zonal Council
It’s a Statutory Body established by State Reorganisation Act, 1956
It Provided for 5 Zones of Councils
North
East
West
South
Central
Headed by HM of Centre
Members are CM of all States
Can Help in Solving River Water Disputes
Agriculture Laws could have been brought Zonal Council
NITI Aayog
Replaced Planning Commission of India
PC was a Extra Constitutional Body
Its Recommendations are not Binding
It follows a Bottom Up Approach
More Favourable to States
States can give opinion as well
GST Council
Apex Body for Tax Rates of Goods & Services
2/3 Representation from States and 1/3 from Centre in the Structure of Body
Competitive Federalism
Competition between Federating Units
Centre and State
in Between States
Its a Concept where units of Federation Compete with One Another
Examples Are:
Allocation of Funds by 15th Finance Commission on Performance Based Indicators
Ease of Doing Business Report by World Bank, Helps in Foreign Investors
Report by NITI Aayog: States Composite Water Management Index
15th FC Performance Parameters of States
Competition Amongst States in Implementing Swachh Bharat Mission
Both Types of Federalism is by Relation of
Cooperation : Is Largely Between Centre and State
Confrontationist Approach in Indian Federalism
Indian Federalism has been lately example of it
Examples
GST Cess Settlement between Centre and States
WB not Implementing Centre Funded Scheme
Office of Governor being used as Carrier of Message of Centre
Example: Tamil Nadu
Usage of CBI on States by Centre
States have withdrawn General Consent Between CBI
Centrally Govt Changed the Rules of All India Services
Issues Arise Especially when Centre and State are of Different Parties
Sample Mains Question
Local Government in India (LGB - Local Government Bodies)
Three Tier Govt System added by 73rd & 74th CAA
Urban Local - Municipality
Rural Local - Panchayat
Background
Given Constitutional Status by 73rd CAA, 1992 → Panchayat
Given Constitutional Status by 74rd CAA, 1992 → Municipality
They were there before 1992 but were not of constitutional status
Municipalities are older than panchayats
Lord Ripon is the Father of Local Government in India
After 26 Jan 1950, Local Govt is Item No 5 in State List. Hence State can Legislate it. They used to decide to have a panchayat and municipality
There was no uniformity in
The Structure of M&P
The Existence of M&P
The Rules of M&P
What is its Significance & Importance
Accountability
De Centralisation of Power
Gadhis View of Ram Rajya and Village Swaraj
For Uniformity in Indian M&P
By the Narsimha Rao Govt. This amendments were brought
States had to Establish M&P Madatory
Strucural Uniofrmity was Brought in Panchayats
Levels Were
District Panchayat
Intermediate Panchayat
Village Pachayats
Strcuture of Muncipality was Given
Levels Were
Transitional Municipality
Municipality
Municipal Corporation
Objective of Giving Constitutional Status
Decentralising Power
Bringing Democracy at Grassroot Level
Ensures Accountability of Local Govt to Local People
To Increase People Participation
73rd CAA, 1992
Introduced Part 9 as Panchayats from Art 243 to 243 O
Inserted a New Schedule as Schedule 11 of the Constitution with 29 Functional Items
Art 243 G - Legislature ay empower the Panchayat to take care of any of the functional items
They have no Legislatures
Local Govt is an Item in State List
State Govt has to make laws, from the 29 Items of Sch 11 for the Local Government to Make Laws on it
74th CAA, 1992
Inserted in Part 9A of of the Constitution
Inserted Schedule 12 of the Constitution
Functional Items for Municipalities is 18 in Number
Example: Urban Planning, Urban Poverty, Fire Services, Registration of Births and Deaths
Art 243 W: Legislatures can epower the Local Bodeis to Carry out any of the functions through an act of state legislature
Provision of Panchayats & Municipalities
Note: In Case of Lok Sabha and State Leg Dissolved, there is a Re Election for the New 5 Year Term
In Case of Village Panchayat, After Pre Mature Dissolution & Re Election, panchayat will be for Remainder of the Term.
The Re Election will not happen only when the New Election Time is less than 6 Months
Note: There is Difference Between Re Election and By Election
Panchayat
Municipalities
Art 243 Defitintion
Rural Local Self Govt
Art 243 P Definition
Urban Local Self Government
Article 243 A Gram Sabha
at Rural Level Compulsory
Gram Sabha at Village Level
Perform Such Function as the State Leg may determine by Law
ㅤ
Art 243 B: Constitution of Panchayats → Three Tier
This Structure is a Must
Exception: If Any State has Population Less than 20 Lac, it can directly have district panchayat without the use of Intermediate Panchayat
Village:Intermediate:District:
Art 243 Q: Constittuion of Municipaltities
Nagar Panchayat: Transitional Area
Municipal Council: Smaller Urban Area
Municipal Corporation: Larger Urban Area (Usually Population > 10 Lacs)
Transitional Area from Rural to Urban, Like Agri Reduced & Industry Increased
Art 243 C: Composition of Panchayats
State Legislature May by Law Detrmine
1. Composition
2. Election of Members & Chairpersons
Direct Elections(FPPS) for Members at all 3 Levels (Territorial Constitutencies)
Chiarperson at Village Level (Sarpanch)
(Depends on Law Passed by State Legislature)
Chaiperson at Intermediate & District Level from the Among the Elected Members
Art 243 R: Composition of Municipalities
State Legislature may by Law
State Legislature may by Law
1. Composition
2. Manner of Election of Chairpersons
3. All Members by Direct Election
Art 243 D: Reservation of Seats
1. SC / ST Reservation in Proportion to Population
2. Chaieperson in Panchayat for SC / ST - decided by State Leg
3. Women - 1/3rd Seats to be Reserved for Women in Case of Members & also Chairpersons
4. OBC - Reservation of Seats & Chairperson as determined by Law of State Legislature
Reservation for women and SC&ST can be Adjusted in the same seat
Art 243 T: Reservation of Seats
1. SC / ST Reservation in Proportion to Population
2. Chaieperson in Panchayat for SC / ST - decided by State Leg
3. Women - 1/3rd Seats to be Reserved for Women in Case of Members & also Chairpersons
4. OBC - Reservation of Seats & Chairperson as determined by Law of State Legislature
Art 243 E: Duration of Panchayats
5 Years, unless sooner dissolved, New Panchayat constituted for Pre Mature dissolution only for Reamining term
New Panchayat to be constituted only when Remainder Period is at Least 6 Months
Art 243 U: Duration of Municipality
5 Years, unless sooner dissolved, New Municipality constituted for Pre Mature dissolution only for Reamining term
New Panchayat to be constituted only when Remainder Period is at Least 6 Months
Art 243 F: Disqualification of Membership
1. If he/she is disqualified under any law for election to state legislature concerned
(Generally According to RPA 1951)
2. If he is less than 21 Years
3. If he is so disqulified by or under any law made the by the legislature of the state (may vary from state to state) → for Grievance an appropriate authority will be made
4. Any Question of Disqualification may be referred to such authority or amy be determined by state leg by Law
Art 243 F: Disqualification of Membership
1. If he/she is disqualified under any law for election to state legislature concerned
(Generally According to RPA 1951)
2. If he is less than 21 Years
3. If he is so disqulified by or under any law made the by the legislature of the state (may vary from state to state) → for Grievance an appropriate authority will be made
4. Any Question of Disqualification may be referred to such authority or amy be determined by state leg by Law
Art 243 G: Powers Authroities and Responsibilities of Panchayats
State Leg may by law provide such authorities to panchayat
Art 243 W: Powers Authroities and Responsibilities of Municipalities
1. To Enable them to perform Institutions of Self Govt (Any or all items mentioned in 12th Schedule)
2. State Leg by Law
Art 243 H: Power to Imposes Taxes and Funds of Panchayat
State Leg by Law Authorise the Panchayats
1. Levy Collect & Appropriate Duties & Tolls
2. Assign, Such Taxes, Duties
3. Grant in Aid
4. Constitution Fund (They can have ther constitution of funds by means of Law made by State Leg)
Art 243 X: Power to Imposes Taxes and Funds of Municipalities
State Leg by Law Authorise the Panchayats
1. Levy Collect & Appropriate Duties & Tolls
2. Assign, Such Taxes, Duties
3. Grant in Aid
4. Constitution of thier own Fund
Art 243 I: Constitution of State Finance Commission for Panchayats
1. Respo of Governor to appoint State Finance Commission
2. Composition: State Legislature
3. Functions
3.1 Distribution of Net Proceeds
3.2 Tolls, Fees, Duties, Taxes - Assigned to or appropriated by the Panchayats
3.3 Grant in Aid
3.4. Other Matter Referred by the Governor
Art 243 Y: Constitution of State Finance Commission for Municipalities
Art 243 K: Elections to Panchayat
State Election Commission Appointed by Governor
SEC Removal can be done in the same manner as the Judge of a High Court
Conditions of Service cannot be caried to his disadvantage
State Leg can make law for conduct of elections; Sub to Provisions of the Constitutions
Art 243 ZA: Elections to Municipality
Art 243 L: Application to UT
Subject to Such Modifications as the Preisdent may Specify
Art 243 ZB: Application to UT
Not Applicable to Panchayats
Art 243 ZD: Committee for District Planning (DPC)
1. District Panning Committee for each District → Consolidation of Plans by DPC
2. Composition as Decided by Law made by State Leg
3. Chairperson of DPC; Forwards the Plan to State Govt
(Not Binding on State Govt)
Not Applicable to Panchayats
Art 243 ZE: Metropolitan Planning Committee
1. Metropolitan Planning Commiittee;
Draft Plan - Metropolitan Area
2. Composition as decided by Law of State Leg
3. Chairperson of DPC; Forwards the Plan to State Govt
(Not Binding on State Govt)
Compulsory & Voluntary Provisions in 73rd and 74th CAA
Local Governance in Tribal Area
Provision of Fifth and Sixth Schedule of the Constitution
President can declare an area to be Scheduled Area wrt Art 74
A Tribal Advisory Council shall be established. On its aid and advice the Governor will be advised on how the administration of scheduled area has to be done
Amendment to the Schedule 5 of the Constitution can be done by a simple majority or ordinary law. it is not an Amendment under Art 368
Certain States Like Assam, Meghalaya, Tripura, Mizoram → Within State certain Tribal Districts are Protected under Schedule 6 of the Constitution
Here in Tribal Districts there shall be a Autonomous District Council they can make their own Laws wrt Marriage and Other Social Aspects of Life
Here Changes in Schedule 6 is not an amendment under Art 368 and it can be done by an act of simple majority
Will Panchayat System Extend upto Schedule 5 & 6 ?
Parliament while making the Law did not apply Third Tier Government System to Sch 5 & 6
Here PESA Act was Passed → Panchayat Extension to Schedule Areas Act, 1996
Here Gram Sabha under PESA has more power than the Actual 73rd CAA Gram Sabha like
Gram Sabha will decide Schemes and Policies
Can Decided about Minor Forest Produce
Can identify Beneficiaries
PESA is applicable to only 5th Schedule Area → Major Objective is to Promote Self Governance
Hence
Normal Rural Area - 73rd CAA
Sch 5 Area - PESA
Sc 6 Area - Autonomous District Council
Problem with Regards to Implementation of Local Governance in India
Abbreviations Used
SPV - Special Purpose Vehicles or Institution
MPLAD - Member of Parliament Local Area Development Fund
MLALAD - MLA Local Area Development Fund
DPC - District Planning Committee
MPC - Metropolitan Planning Committee
For Implementation of Smart City Mission, MPC is needed. Here it is either Not Constituted or it is not empowered
Here Rural Development Agency, is a SPV and it has bypassed Local Bodies
Here Development may happen, but the Idea of Grassroot Democracy by Means of Elected Representatives at Village Level does not Occur
Model Case Studies for Local Governance
Kerala Case Studies - For Panchayats
Bangalore Metropolitan Local Governance Reforms - For Metropolitan Corporation
ARC Recommendation on LGB
It recommended improvement in
Finances - Funds
Functions - to be empowered
Functionaries - Skill
It said that initially it might be time consuming but once developed it will be really useful
Constitutional Bodies
Meaning of Constitutional Bodies
If something is mentioned in the constitution then it is not sure that it is a constitutional body
Constitution may say that it is a Body that may be estab by means of Law
Constitutional Body is a Body which is Directly Established by Constitution itself
Election Commission of India
To Ensure Free and Fair Election
Art 324 Says there shall be an Election Commission
Responsibility is to Direct, Control and Supervise Election in our Country
They have to carry out Elections of LS, RS, State Leg, State Leg Council, Election of President and Vice President
State Election Commission → Election of Panchayat and Municipalities
CEC & Election Commissioners as may be determined by the President time to time
Here the Composition is NOT Mentioned in the Constitution
By Conventional Practise, from 1989 we have on CEC and 2 EC
Constitution only says that if there are other election commissioners, then the CEC may be made as Chairman of EC
Privilege of CEC
Based on Law made by Parliament → Position of CEC and Other EC is same
He is the only Chairman
The Decisions are taken only on the basis of Majority Votes
Regional Commissioners
President can appoint, if they want wrt Art 74
for 4 to 5 states one regional commissioner
CEO - Chief Electoral Officer
Hierarchy
CEC + 2 EC → Appointed by President
Regional Commissioners → Appointed by President
Chief Electoral Officer → Appointed by CEC
Service Conditions are decided by Means of Parliamentary Law → Election Commission Act of 1991
Removal of CEC
He can be removed in the same manner as the Judge of a Supreme Court
The Process has been made hard so as to make the position of CEC Independent so that he can conduct a Free and Fair Election
Same Grounds of Misbehaviour and Mental Incapacity
President with the Recommendation of CEC can remove the EC
Hence EC have to maintain good relations with EC
Case
1990 - President of India Appointed CEC and 2 EC
Then President Removed EC
Here there was no recommendation of CEC
EC went to SC against President
Here President was NOT Wrong according to SC
as post was scraped and not they were removed
Manpower
They do NOT have Permanent Manpower
It is the Responsibility of President and Governor to Provide Manpower
Hence, Govt Teacher, State Police, IAS can be deputed by Pres and Gov→ During Deputation Election Commission can Punish them
Detailed Process for the Elections has been made by Parliament by means of RPA 1951 and RPA 1950
Criticism of Election Commission
Election Commission of India wanted the Same Grounds for Removal of Election Commissioners like that of CEC
as of Now Election Commission of India doesn't have permanent Secretariat
Not even few permanent officials → There should be some minimal staff for the same
There by Insulating other people from within the Govt in the Process of Election Commission
Expenditure of Election Commission is MADE from the Consolidated Fund of India. It should be Charged Expenditure
Even the CAG is Charged Expenditure
There is No Cooling Off Period for the CEC or EC to get into some other posts
Comptroller and Auditor General of India
Introduction
Art 148 of the Constitution Provides for Establishment of Office of CAG
Appointed by the President by a Warrant under his hand and seal
He makes the Government Accountable for each and every single penny that Government Spends. Hence Prevents Financial Arbitrariness of the Government
Why is it called so ?
It is Merely a British Legacy
He is NOT a Comptroller - Someone whose permission is needed to withdraw Fund
In India he is merely a Auditor General → Who Audits
In India Comptroller is → Parliament of India
Constitutional Safeguard
Removal → Like CEC and Judge of a Supreme Court
Salary and Service Conditions → By An Act of Parliament
It is NOT be President
His Positions cannot be and should not be varied to his Disadvantage
Office Expenses, Salaries and Allowances of Members of the Officers, Charged on the CFI
Duties and Power of the CAG Art 149
Decided by An Act of Parliament → CAG ( Duties Powers and Conditions of Service Act, 1971)
Audit of Income and Revenue for Centre and State
Audit of Receipts and Expenditure of Union and States
Compile Accounts of Centre - CGA - Compiler General of Accounts
He Performs Financial Audits but he can perform Audit of Wisdom as well - Where and How can it be spent better
Audit of PSU and Government Companies and Corporation etc
Audit Reports Art 151
Union Reports - President - Parliament
State Reports - Governor - State Legislators
Criticism
Language of the CAG - Very Technical
Timely Report of the CAG
There is NO Technical Qualification for the CAG. It's a very specialised Job for a Specialised Jobs
There is NO Specific Body for the Appointment of CAG
CAG Is NOT Eligible for Further Appointment. He cannot be Re Appointed as well
PSC - Public Service Commission
Purpose
It an Independent Body because it is entrusted with Responsibility of Most Important Officers
There may be Nepotism & Not on Basis of Merit. If left to the Government
PSC for Union and State u/a Art 315
Art 315 Says that there shall be a UPSC and SPSC - Constitutional Body
Enables Parliament to Establish JSPC - Statutory Body if Established
in 1996 there was of Haryana and Punjab
On Request of Governor, With Approval of the President ; UPSC may serve any needs of the State
Disciplinary Actions Opinion
Recruitment to Central Government, All India Services and States
Appointment and Term of Office Members - Art 316
Chairman and Members of UPSC and JPSC are appointed by President
SPSC by Governor
1/2 of Members of Every Service Commission should have held ; at least 10 Years of Service ; either Under GoI or State at the Time of Appointment
During Vacancy of Chairman, Pres may temporarily appoint another member as Chairman until new Chairman is Appointed in case of JPSC and UPSC
Same for SPSC by Governor
e. Term of Office
6 Years of 65 Years - UPSC
6 Years of 62 Years - SPSC & JPSC
Removal and Suspension
They are Adjudicating Insolvent
Engaged in Paid Employment outside the Office
Physical Disability or State of Mind → Infirmity of State or Mind
On Grounds of Misbehaviour, only after making reference to the Supreme Court
Pending such enquiry by Supreme Court, the President (UPSC/JPSC) and Governor (SPSC) can suspend the Chairman or Members
Governor can suspend but CANT Remove for SPSC Also
SPSC Removal by President after SC tells to remove
Powers to Make Regulations and Conditions of Service (Art 318)
UPSC and JPSC - President
SPSC - Governor
Other Constitutional Bodies
Art 338 - National Commission for Scheduled Caste
Art 338 A - National Commission for Scheduled Tribes
Art 338 B - National Commission for Backward Class
Functions
Policy Research
Awareness About Rights
Constitutional and Legal Rights Addressed
Look into Violation of Rights
Criticism
They are Politicised in Function
Their Recommendation are merely recommendatory
Statutory Bodies
Basics to Know About
By an Act of Parliament or State Legislature
There has to be an Object or Objective
What is the Composition of that Body - Not So Important
Functions of the Body - Related to Objective
Criticism are Generally Same
Suggestions are Generally Same
Important Statutory Bodies
National Human Rights Commission, 1993
Central Information Commission, 2005
National Commission for Women, 1992
National Commission for Minorities, 1992
National Commission for Protection of Child Rights, 2005
Lokpal 2013
Criticism
Politicisation of Appointment
Toothless Tiger → Except for Lokpal & Central Information Commission → All are Recommendatory in Nature
Irregularity of Fund & Lack of Financial Resources
Suggestions
Giving Constitutional Status can lessen the inefficiency of these commissions
Merely Giving a Constitutional Status can't be the Solution
For Politicisation Issue - There should be a Similar Select Committee
Statutory Backing - For Govt to give it in writing that why any act has been done
appropriate Backing has to be given by means of Political Will
Executive Bodies
Meaning
Created by An Executive Order - Like by Cabinet Ministers
by an Executive Order or Executive Resolution
NITI Aayog
NITI Aayog Replaced erstwhile Planning Commission in India
National Institution for Transforming India
Its a Think Tank for the Government
Gives no of Policy Proposal for Govt
CBI
Premier Investigating Agency of Central Govt - Headed by Rank of IG of Police called Director CBI
It is NOT Created by a Law but by Means of Executive Order
Before Independence, During WW2 it was formed to investigate war corruption activities under ministry of defence
It is under DoPT now
They Derive Powers from Act called Delhi Special Police Establishment Act, 1946
Home Work : Look at Reforms for CBI
ED - Enforcement Directorate
Under Ministry of Finance
Implements
PMLA Act - Prevention of Money Laundering Act
FEMA Act - Foreign Exchange Management Act
NCB - Narcotic Control Bureau
Representation of People Act
Introduction
Art 324
Art 327
RPA Act was passed by Provisional Parliament as RPA, 1950 & RPA 1951
Elections for Both Parliament and State Legislature
Why Two Laws were Needed ?
Segregate so as to what the Election Commission has to do before the Election itself
Two Sets of Laws for
RPA 1950 - Before & After Conduct of Elections
RPA 1951 - Actual Conduct of Election
RPA, 1950 - Not So Important
Before the Actual Conduct of Election
Consolidation of all order passed by Delimitation Commission for specifying Constituency
To Prepare Electoral Role
Allocation of Seats - House of People, Legislative Assembly and Council
EC ensures how the seats have to be filled as a Single Member Constituency
Preparation of Electoral Roles by CEO (usually senior IAS Officer) appointed by CEC
CEO is assisted by DEO (District Electoral Officer - Generally DM / Collector)
Eligible for Voting unde UAF subject to Disqualification Criteria
You should be 18 Years of Age
You Should be a Ordinary Resident of India
You Should be a Citizen of India
You Should be a Person of Sound Mind
You Should be Eligible to vote under law and Not be debarred from Voting under Law for Time Being
By Means of Active Case & In Jails
Amendments to the Electoral Roll
Earlier Cut of Date was only 1 i.e 1 January
Now 4 Cut off Dates are there
1 January
1 April
1 July
1 October
No Person should be Registered in More than One Constituencies
Link Aadhar to Voter ID - to prevent duplication of votes
Before EC was taking undertaking from the Person
Home Work : Issue of Linking Aadhar and Voter ID
RPA, 1951 - Very Important - Questions Every Year
Qualification of Membership of Council of States and House of People
Elector in Parliamentary Constituency ; Not Necessarily from the Same Parliamentary Constituency
From How Many Constituency can you contest an election from
Earlier there was No Limit. With Amendment it was made to be 2 Only
Member of SC / ST to contest elections from Reserved Constituency
Qualification for Leg Assembly and Council
Elector from any Parliamentary Constituency from that State
Disqualification and Conviction for Certain Offences
In Constitution
Citizenship
Insolvency
Office of Profit
Unsound Mind
In case of Defection
Shall be Disqualified on the Basis of
Protection of Civil Rights Act - He Practised Untouchability
Customs Act
UAPA
Only Fine - No Election for Next 6 Years
With Punishment - No Election for Next 6 Years from the date of completion of punishment
Hence if Punishment is of 1 Years then for 7 Years he cannot contest election
Other than this Offences - Not Mentioned in RPA - Lily Thomas Case
Imprisonment < 2 Years - No Disqualification
Imprisonment Minimum of 2 Years → No Immediate Disqualification + Can Contest Election + Temporary Vacancy
Imprisonment > 2 Years → Immediate Disqualification + No Election for the Next 6 Months
Corrupt Practises - Raj Narayan Case
Engaged in Govt Contracts leads to Conflict of Interest. Example Hemant Soren
Disqualification - Dismissal for Corruption or Disloyalty - Cooling Off Period is 5 Years
EC will recommend the President after the Quasi Judicial Process
Govt Servants Disqualified for 5 Years
Remedy within 30 or 40 Days to challenge disqualification in High Court
Can go to SC
Sections Dealt with are Section 8 & Section 9
Election Notification by President for Council of States & House of People on recommendation of Election Commission
Legislative Assembly and Legislative Council
Duties and Powers of Administrative Officers
CEO
DEO
Returning Officer - Nomination Paper Accepted Rejected
Presiding Officer
Election Agents of Political Parties
Registration of Political Parties
Cant do Deregistration
Nomination Candidates
Moral Code of Conduct for Elections
Conduction of Pollings
Counting of Votes
Declaration of Results
Vacation of Seats - Not to be a Member of Both the Houses of Simultaneously
may specify rules; failing which seats in all legislatures become vacant
Home Work : Google Election Symbol
Home Work : Amendments to RPA
Home Work : State and National Party
Home Work : Difference between Delisting and Deregistering by Election Commission
Pressure Groups
Introduction
Types of Pressure Groups
Formal Pressure Groups
Pressure Groups which have well established Institutional Structure are called Formal Pressure Groups
Example:
Industry : FICI, ASSOCHAM
Trade Union : AITUC, CITU
Professional Groups : IMA, Bar Council, Indian Bank Association
Informal Pressure Groups
Pressure Groups that does not have well established Institutional Structure
Example
People Movement by Anna Hazare ( India Against Corruption) - led to Lokpal
Chipko Movement
Maratha Agitation
Patidar
Methods / Functioning of Pressure Groups - Add from PPT by Sir
Electioneering
Lobbying
Propagandizing
Ex: Anna Hazare India Against Corruption
Difference Between Political Parties and Pressure Groups
Similarities Between Political Parties and Pressure Groups
Role of Civil Services in Democracy
Definition Roles of Civil Servants Features of Civil Servants Issues in Civil Services Lateral Entry Reforms in Civil Services
