Module 2-Union Executive and State Executive

Major Topics
Powers of Indian Parliament,Functions of Rajya Sabha, Functions of Lok Sabha,Powers and
Functions of the President, lomparison of powers of Indian President with the United
States,Powers and Functions of the Prime Minister,Judiciary - The Independence of the Supreme
lourt, Appointment of Judges, Judicial Review, Public Interest Litigation, Judicial
Activism,LokPal, Lok Ayukta, The Lokpal and Lok ayuktas Act 2013, State Executives - Powers
and Functions of the Governor, Powers and Functions of the lhief Minister,Functions of State
labinet, Functions of State Legislature, Functions of High lourt and Subordinate lourts
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Lecture1
Powers ox Indian Parliament
All the legislative powers of the federal Government are vested in the Parliament. The laws
framed by the Indian Parliament are enforced in the whole of the country. The Parliament of
India is a bi-cameral legislature. It consists of two houses- Rajyasabha Lok Sabha and President
of India. Rajyasabha is the upper house of the Parliament while Lok Sabha is the lower house of
the Parliament. Parliament makes law with the help of its both the houses. Laws passed by the
parliament and approved by the president are enforced in the whole country.

Its powers and xunctions can be classixied in to xollowing heads:

Legislative powers
Executive powers
Financial powers
Constituent powers
Judicial powers
Electoral powers
Other powers

1) Legislative Powers- All the subjects in our constitution are divided among state, union and
concurrent lists. In concurrent list Parliamentary law is over riding than state legislative law.
Constitution also has powers to make law with respect to state legislature in following
circumstances:

When Rajya Sabha passes a resolution to that effect

When national emergency is under operation
When two or more states request parliament to do so
When necessary to give effect to international agreements, treaties and conventions
When President’s rule is in operation.
2) Executive Powers- According to parliamentary form of government executives are
responsible to the parliament for its acts and policies. Hence parliament exercises control by
various measures like committees, question hour, zero hour etc. ministers are collectively
responsible to the Parliament.
Members of different political parties are elected/nominated to the parliamentary committees.
Through these committees, the parliament controls the government. Committee on ministerial
assurances constituted by parliament seeks to ensure that the assurances made by the
ministries to parliament are fulfilled.

Article 75 of the constitution mentions that the council of ministers remains in office as long as
it enjoys the confidence of the Lok Sabha. The ministers are responsible to the Lok Sabha
individually and collectively. Lok Sabha can remove the council of ministers by passing a no
confidence motion in the Lok Sabha.
Apart from that, the Lok Sabha can also express lack of confidence in the government in the
following ways:
By not passing a motion of thanks on the President’s inaugural address.
By rejecting a money bill
By passing a censure motion or an adjournment motion
By passing a cut motion
By defeating the government on a vital issue
These powers of parliament help in making government responsive and responsible.

3) Financial Powers- It includes enactment of budget, scrutinizing the performance of

government with respect of financial spending through financial committees (post budgetary
control)
Parliament enjoys the supreme authority in financial matters. Executive cannot spend any
money without parliament’s approval. No tax can be imposed without the authority of law. The
government places the budget before the parliament for approval. The passage of the budget
means that the parliament has legalized the receipts and expenditure of the government. The
public accounts committee and the Estimates committee keep a watch on the spending of the
government. These committees scrutinize the account and bring out the cases of irregular,
unauthorised or improper usage in public expenditure.

In this way, parliament exerts budgetary as well as post-budgetary control on the government.
If the government fails to spend the granted money in a financial year, the remaining balance is
sent back to the Consolidated Fund of India. This is known as ‘rule ox lapse’. This also leads to
increase in expenditure by the end of the financial year.

4) Constituent Powers-Only parliament is empowered to initiate any proposal for amendment

of the constitution. A bill for amendment can be initiated in either House of
Parliament. However, the state legislature can pass a resolution requesting the parliament for
the creation or abolition of the legislative council in the state. Based on the resolution, the
parliament can make an act for amending the constitution for that purpose.
There are three types ox bills xor constitution amendment which requires:
(i) Simple Majority: These bills need to be passed by simple majority, that is, a majority of
members present and voting in each of the House.
(ii) Special Majority: These bills need to be passed by the majority of the House and two-third
of the members present and voting in each of the House.
(iii) Special majority and consent of half of all the state legislatures: These bills are to be
passed by the special majority in each house. Along with this, atleast half of the state
legislatures should give consent to the bill.
5) Judicial Powers- Includes;
Impeachment of President for violation of constitution
Removal of judges of Supreme Court and High court
Removal of Vice- President
Punish members for breach of privileges like sitting in the house when the member
knows he is not an eligible member, serving as member before taking oath etc.

6) Electoral Powers- The electoral powers and functions of the parliament are mentioned
below;
The elected members of the parliament (along with state assemblies) participate in the
election of the President
All the members of the parliament participate in the election of the Vice-President.
The Lok Sabha elects its Speaker and Deputy Speaker.
The Rajya Sabha elects its Deputy Chairman.
Members of various parliamentary committees are also elected.

7). Other Powers-

To discuss various issues of national and international importance
Imposing emergency
Increase or decrease area, change names, alter the boundary of the states
Create or abolish state legislature etc any powers can be added from time to time

Article 245 of the constitution declares that parliament may make laws for the whole or any
part of the territory of India and a state legislature can make laws for the whole or any part of
the state.
Seventh Schedule of the constitution distributes the legislative powers between the centre and
the state by putting subjects into Union List, State List and Concurrent List. The centre can make
law on any of the subjects in the union list or in the concurrent list. The parliament can override
the law of a state on a subject listed in concurrent list.
In addition to these powers, the residuary powers are also vested with the parliament.

Lecture2

Functions ox Rajya Sabha, Functions ox Lok Sabha

Functions ox Rajya Sabha:The functions of Rajya Sabha may broadly be categorised as:
Legislative
Financial
Deliberative
Legislation is by far the most important business of Rajya Sabha, as indeed of Parliament and in
this sphere, Rajya Sabha enjoys almost equal powers with Lok Sabha.

Legislative Functions

The Constitution has classified the subjects for legislation into three Lists, namely:

(i)The Union List: The Union List includesthose subjects over which Parliament has exclusive
authority to make laws, while the Concurrent List enumerates those subjects over which it has
authority along with the States.

(ii)The State List: Even in regard to the State List, over whichthe States have exclusive
jurisdiction, Parliament can assume authority, if
Rajya Sabha declares by a resolution supported by not less than two-thirds of the
members present and voting that such legislation is in national interest,or
Two or more States mutually agree that Parliament may do so, or
It is necessary to implement treaties or international conventions.

(iii)The Concurrent List

Financial Functions
Under the Constitution, financial legislation has been divided into two categories –
Money Bills and Financial Bills.
The former contains only and exclusively money clauses and the latter, apart from
money clauses also contain other matters.
A Bill which, if enacted and brought into operation would involve expenditure from the
Consolidated Fund of India is also called a Financial Bill.
With respect to Money Bills, Rajya Sabha is empowered to make only
recommendations.
If a Money Bill which is transmitted to Rajya Sabha for its recommendations is not
returned toLok Sabha within fourteen days, it is deemed to have been passed by both
Houses at the expiration of the said period in the form it was passed by Lok Sabha.
However, in case of Financial Bills, Rajya Sabha has full powers like an ordinary piece of
legislation.

Deliberative Functions
One of the important functions of Rajya Sabha is to focus public attention on major
problems affecting policies of the Government and administration and to provide a
forum for ventilation of public grievances.
 This responsibility is discharged through deliberations on General Budget, Railway
Budget, and Motion of Thanks on the President’s Address, Five-Year Plans and working
of various Ministries/Departments and on various policy statements made by the
Government.

Federal Functions
Rajya Sabha may pass a resolution, by a majority of not less than two-thirds of the
members present and voting, to the effect that it is necessary or expedient in the
national interest that Parliament should make a law with respect to any matter
enumerated in the State List.
Such a resolution remains in force for a maximum period of one year but this period can
be extended by one year at a time by passing a further resolution.
If Rajya Sabha passes a resolution by a majority of not less than two-thirds of the
members present and voting declaring that it is necessary or expedient in the national
interest to create one or more All India
Services common to the Union and the States, Parliament may then by law provide
for the creation of such service or services.
Under the Constitution, the President is empowered to issue Proclamations in the
event of national emergency, in the event of failure of constitutional machinery
in a State, or in the case of financial emergency.
Normally, every such Proclamation has to be approved by both Houses of Parliament
within a stipulated period. Under certain circumstances, however, Rajya Sabha enjoys
special powers in this regard.
If a Proclamation is issued at a time when Lok Sabha has been dissolved or the
dissolution of Lok Sabha takes place within the period allowed for its approval,
then the Proclamation can remain effective if, a resolution approving it is passed by
Rajya Sabha.

Function ox Lok Sabha

The Lok Sabha which is the more representative house of the Parliament performs a number of
useful functions. These functions are described below:

1. Legislative Functions
Lawmaking is the main function of the Parliament and in this field the Lok Sabha plays an
important role. All types of bills can originate in the Lok Sabha and if a bill is moved in and
passed by the Rajya Sabha, it has to come to the Lok Sabha for its approval.
If there is any disagreement between the two Houses, the Lok Sabha will prevail in the joint
sitting with the Rajya Sabha because it has more members than the other House of the
Parliament.
2. Financial Functions
Control over purse makes one powerful. In financial matters, the Lok Sabha has a distinct
superiority over the Rajya Sabha. The Money Bill can be introduced only in the Lok Sabha. It
cannot be moved in the Rajya Sabha.
Further, there is no question of joint sitting if the Rajya Sabha disagrees with the Lok Sabha on a
Money Bill. It is up to the Lok Sabha to accept or reject the suggestions for change in the Money
Bill made by the other House.

3. Control over Executive:

The Council of Ministers is collectively responsible to the Lower House of the Parliament. Thus,
the government is accountable to the Lok Sabha for its acts of omission and commission. The
Rajya Sabha cannot hold the government accountable to it. It is only the Lok Sabha which can
force the Council of Ministers to resign by passing a vote of nonconfidence against it.
There are also other methods by which the Lok Sabha can exercise control over the central
executive. These methods are putting questions, moving adjournment motions and call-
attention motions, budget discussions, cut-motions and debates etc.
By employing any of these methods the Lok Sabha can expose the misdeeds and inefficiency of
the government and warn it against repeating such mistakes.

4. Constitutional Functions:

The Lok Sabha shares with the Rajya Sabha the power to amend the constitution.

5. Electoral Functions:
The Lok Sabha takes part in the election of the President and the Vice-President.
It elects the Speaker and the Deputy Speaker. (c) Its members are elected to different
Committees of the Parliament.

6. Judicial Functions:
The Lok Sabha has power to punish a person on the ground of breach of privilege;
It takes part in the impeachment proceedings against the President of India,
It shares power with the Rajya Sabha to remove the Judges of the Supreme Court and
the Judges of High Courts.

7. Ventilation ox Grievances:
The members of the Lok Sabha are elected from different parts of India. They try to remove the
difficulties of their respective constituencies by stating their grievances on the floor of the Lok
Sabha.
8. Imparting Education on Democracy:
The Lok Sabha discussions would help in raising the political consciousness of people. As they
are telecast, the people are able to learn of different aspects of Indian politics.
9. Other Functions:
The Lok Sabha discusses reports submitted by the U Public Service Commission (UPSC),
Comptroller and Auditor-General of India, Finance Commission etc.

Lecture3
Powers and Functions ox the President, Comparison ox powers ox Indian President with the
United States

The primary duty of the President is to preserve, protect and dexend the constitution and the
law of India as made part of his oath (Article 60 of Indian constitution). The President is the
common head of all independent constitutional entities. All his actions, recommendations
(Article 3, Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78 c,
Article 108, Article 111, etc.) over the executive and legislative entities of India shall be used in
accordance to uphold the constitution. There is no bar on the actions of the President to
contest in the court of law.

The President of India is the Head of State. The system of government of India is a cabinet form
of government. The Indian President is, therefore, a constitutional head like the King or Queen
of Britain—that is, all executive powers are constitutionally vested in him, although those are
actually exercised and executed by the cabinet.

In India the powers ox the Union government are treated as the powers of the President
because these powers are used in his name in pursuance of the constitutional stipulation under
Article 53 which reads: The executive powers of the Union shall be vested in the President and
shall be exercised by him either directly or through the officers subordinate to him in
accordance with this Constitution. The constitutional powers and functions of the President of
India may be classified as follows:

A.Executive Functions
1. Head ox the Union: The President is at the head of the Union Executive. Consequently, all
executive powers are exercised in his name. The executive power of the Union to be exercised
by the President is extended to the matters with respect to which Parliament has power to
make laws and to conclude treaty and agreement.

2. Appointments: As head of the executive, the President appoints the Governors of States, the
Judges of the Supreme Court and the High Courts, the Auditor General of India and many other
high officials, such as the members of Finance Commission, Election commission, Union Public
commission etc. 2

3. Appointment ox the Prime Minister and other Ministers: The President also appoints the
Prime Minister and with his advice the other Ministers of the Union Council of Ministers. But
here too, as in all other appointments, the President can seldom use his discretion. He is,
ordinarily, duty-bound to summon the leader of the political party which secures an absolute
majority in the Lok Sabha to become the Prime Minister and form the Ministry.
He does enjoy some discretionary powers in the matter only under exceptional circumstances.
When no single political party wins a clear absolute majority and, as a result, no Council of
Ministers can be formed without a coalition of parties the President can exercise his discretion
judiciously in appointing the Prime Minister. Such situations developed in the past. India has
entered into an age of coalition politics. And it may so happen that no single party will be able
to secure an absolute majority, and the President may be required to exercise his discretionary
power for some time to come, in appointing Prime Minister.

4. Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally remains in
office for five years, unless dissolved earlier for any reason. The President must be satisfied that
the Council of Ministers enjoys the confidence of the majority of the Lok Sabha. In case of any
doubt he can ask the Council of Ministers to prove its majority in the Lok Sabha, as the Prime
Ministers Sri H.D. Deve Gowda was asked by the President after the official withdrawal of
support by the Congress Party from Ministry. The President can also dissolve the Union Council
of Ministers in accordance with Article 75(2) of the constitution, if he finds that the Ministry
does not enjoy the support of the majorities in the Lok Sabha.

5. Supreme Commander: As head of State, the President is the supreme Commander of the
Armed Forces of India and is entitled to declare war or conclude a treaty.

B .Legislative Powers and Functions

1. President is a part ox Parliament: The Union Legislature or Parliament consists of the
President and two Houses of Parliament. The President is, therefore, an integral part of Union
Legislature. He shall summon from time to time, either separately or jointly, the Houses of
Parliament. The President can prorogue the Houses or either House of Parliament and, if
necessary, can dissolve the lower Chamber of Parliament, the Lok Sabha. For example, the
President solved the twelfth Lok Sabha in early 1999 when the confidence motion in favour
your of the Vajpayee government was lost in the Lok Sabha.

2. Summons and Addresses Parliament: The President may address either or both House of
Parliament. In such address, at the first session after general election to the Lok Sabha and at
beginning of a joint session of Parliament each year, he may place the reasons for summoning
it. Apart from addressing Parliament, the President may also, in case of 3 necessities, send
messages to either House, or to both Houses [Article 86(2)]. Normally, the President does not
send such a message, unless however, he has a serious disagreement with the Council of
Ministers.
3. Nomination: The President nominates a number of members in both Houses. The chief
purpose of the nomination is to ensure adequate representation in Parliament of all sections of
population which many not always be achieved through elections.

4. Power in respect ox Bills: The President has certain functions in respect of passing of a Bill. A
bill passed by both the Houses of Parliament requires his assent in order to become an Act. He
may give his assent to a bill or can withhold assent when a bill, after getting approved in both
the Houses, is placed before the President. But, if Parliament, acting on President’s refusal to
assent to a bill, passes it again with or without amendment, for the second time and presents it
to the President for his approval, the President shall not withhold his assent there from under
Article 111.

In other words, it becomes obligatory upon him to give his assent. In certain cases, prior
sanction of the President is required for initiating any legislation. For instance, bill for formation
of a new State or altering the boundaries of the existing State or States is to be placed before
Parliament with prior approval of the President. Money bill is another example where obtaining
of such approval of the President is a constitutional necessity.

5. Bill passed by a State Legislature: A bill passed by a State Legislature may also be reserved
for the consideration of the President by the Governor of that State. The President enjoys this
right in relation to a bill passed by a State Legislature only in such cases where those are
referred to him by the Government of a State under Article 200. Power to Promulgate
Ordinances Except when both Houses of Parliament are in session, the President may
promulgate such Ordinances as the circumstances appear to him to require (Article 123). Such
an ordinance can have the same force and effect of an Act of Parliament. Such an ordinance
shall cease to operate unless passed by both Houses of Parliament within the stipulated period.

A.K. Roy vs. Union of India (1982) illustrates the proposition that the satisfaction of the
President must be as to the existence of a situation which makes it necessary for the President
to promulgate such on Ordinance. The more controversial and debatable legislative power of
the President has always been the Ordinance Making Power. Usually the power to make the
laws rests with the Parliament. However, special power on the President empowering him to
promulgate ordinances when the Parliament is not in session and the circumstances are such
which require immediate action.

An ordinance cannot be promulgated when both the houses of parliament are in session
However it may be passed when only one house is in session the reason being that a law cannot
be passed by only one house and thus it cannot meet a situation calling for immediate
legislation. This power granted to the President in the Indian Constitution is unique and no such
power has been conferred upon the executive in Britain or the USA. In justification of the
inception of the Ordinance Making power in the Constitution Dr Ambedkar said that there
might be a situation of emergency when the Houses of the parliament are not in session. It is
important that this situation should be dealt with and it seems to me that the only solution is to
confer upon the President the power to promulgate the law which will enable the executive to
deal with that particular situation because it cannot resort to the ordinary process of law
because the legislature is not in session. Financial Powers and Functions.

C.Emergency Powers ox the President

The constitution ox India empowers the President to proclaim three kinds ox Emergencies:
1. National Emergency (Art. 352);
2. Emergency for failure of Constitutional Machinery in a State (Art. 356);
3. Financial Emergency (Art. 360)
1 National Emergency The President of India may issue a Proclamation of National Emergency
when the security of India or any part thereof is threatened by war, armed rebellion or external
aggression. Such a Proclamation of Emergency may remain in force for an indefinite period.
During a Proclamation of National Emergency, the executive power of the States is to be
exercised in accordance with the directions given by the Central Government. Parliament has
the power to make laws on the subjects enumerated in the State List. The right to freedom of
speech and expression, freedom to form association, freedom to practice and profession, etc.,
embodied in Article 19 shall remain suspended.

2. Failure ox State Constitutional Machinery In Case ox xailure ox Constitutional machinery in a

State, the President of India is authorized to make a Proclamation to that effect. The maximum
duration of this type of emergency is three (3) years. During such an emergency, the President
may assume to himself the executive powers of the State. The powers of the legislatures of the
State are to be exercised by the Union Parliament.

3. Financial Emergency The President may also issue a Proclamation of Financial if he is

satisfied that the financial stability of India is threatened. This type of emergency may continue
to remain in force for an indefinite period. The Central Government may give directions to the
States for canons of financial propriety. All money-bills passed by the State Legislatures are to
be reserved for the consideration of the President. The President of India grants, pardons,
reprieves or remissions of punishment to any person who has been convicted by a Court of
Law.

D.Diplomatic powers
All international treaties and agreements are negotiated and concluded on behalf of the
President. However, in practice, such negotiations are usually carried out by the Prime Minister
along with his Cabinet (especially the Foreign). Also, such treaties are subject to the approval of
the Parliament. The President represents India in international forums and affairs where such a
function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the
officers from the Indian Foreign Service. The President is the first citizen of the country.

E.Military powers

The President is the Supreme Commander of the Indian Armed Forces. The President can
declare war or conclude peace, on the advice of the Union Council of Ministers headed by the
Prime Minister. All important treaties and contracts are made in the President's name. He also
appoints the chiefs of the service branches of the armed forces.

F.Pardoning Powers / Judicial Powers

The President of India grants, pardons, reprieves or remissions of punishment to any person
who has been convicted by a Court of Law. As mentioned in Article 72 of the Indian
Constitution, the President is empowered with the powers to grant pardons in the following
situations:

Punishment is for an offence against Union Law

Punishment is by a Military Court
Sentence is that of death

The decisions involving pardoning and other rights by the President are independent of the
opinion of the Prime Minister or the Lok Sabha majority. In most cases, however, the President
exercises his executive powers on the advice of the Prime Minister and the cabinet.

How the oxxice ox the US President is dixxerent xrom that ox the Indian
President?
Manner ox election
US president is more or less directly elected whereas the Indian president is indirectly elected.
The advantage of the directly elected head of the government is the stability of the
government. Unlike Indian Prime Minister American President is not overpowered by the
“compulsions of coalition politics”
Head ox the State
The US President is both the Head of the State and Head of the Government, whereas the
Indian president is only the head of the State. President of the US is the real executive. Indian
President like the British monarch is only a titular head.
Term ox oxxice
American President holds the office for 4 years and he can seek re-election only once, while the
Indian president holds the office for 5 years and is eligible for re-election any number of times.
Responsibility to Legislature
The US president is not part of any legislature and is not responsible to the legislatures. In India,
the Parliament includes the President and the two houses- Lok Sabha and Rajya Sabha.
Removal process
Both the American and Indian Presidents can only be removed from the office
through impeachment. In India either house can initiate impeachment proceedings against the
president and with the concurrence of the other house can impeach the President. In US the
power to impeach solely lies with the Senate (upper house).
Emergency powers
Indian President wields huge powers during emergency situations. He can proclaim both
external and internal emergencies. Indian President can declare emergency in a state, dissolve
state legislature and dismiss the state council of ministers. During financial emergency, he has
the power to reduce the salaries of all the government officials including that of the Supreme
Court and High Court judges. He has a formidable list of executive, financial and legislative
powers which he can exercise on the advice of the cabinet during emergency.
Independence ox oxxice
The Indian President needs to act as per the advice of the Council of Ministers (CoM) while
discharging his duties. The CoM takes all the decisions pertaining to the affairs of the country
and executes them under the President’s name.
In the US, the members of the cabinet are not members of the Congress and are not
responsible to it. The cabinet members are appointed by the President and they are liable to be
dismissed by the President. The American President has the power to determine the policy of
his government independently without any external interference.
Veto power
Indian President has comparatively lesser veto power than the President of US. The President
of US can veto a bill passed by the Congress. He needs to sign the bill if it is once again passed
by two-thirds majority of both the houses.
The Indian President on the other hand can send the bill for reconsideration only once. If the
bill is passed again even by a simple majority in the Parliament he is obliged to sign the bill.
Pocket veto
US President can exercise his pocket veto power by not signing the bill for 10 days if he knows
the session of the congress will end within 10 days. In such cases the bill dies.
Indian President can keep the bill for indefinite period as there is no constitutionally prescribed
time limit to give his assent. The President can use his pocket veto if the fall of the government
appears imminent. However, he has to act as per the advice of the new government and cannot
take his own decision if the current government falls. Pocket veto was first exercised by the
President Giani Zail Singh with respect to the Indian Postal Bill which was passed by the Rajiv
Gandhi government. Subsequently, the new government withdrew the bill in 1989.
State bills
Certain state bills need the prior consent of the president and he possess absolute veto power
with respect to some types of state bills. The US President does not have such powers.
Dissolving the legislature
The Indian President can dissolve the Parliament while the US President does not have such
powers.

Lecture4
Powers and Functions ox the Prime Minister

The Prime Minister is the real executive authority (de facto executive) of the country. He
appoints many officers as the head of many constitutional institutions.

There is no special process for the election of the Prime Minister in the Constitution of India.
Article 75 only says that India shall have a Prime Minister whose appointment shall be made by
the President. The Prime Minister is the leader of the Council of Ministers.The President is the
only nominal ruler while the real executive powers are envisaged in the Prime Minister. In this
article, we have explained about the Power and Functions of the Prime Minister of India.

A. Powers/Rights ox the Prime Minister

1. Rights in relation to appointments:

The Prime Minister has the right to give advice to the President in relation to the
appointment ox the xollowing oxxicers:
The Comptroller and Auditor General of India
Attorney-General of India
Solicitor General of India
President of the Union Public Service Commission and its members
Election Commissioners
Chairman and Members of the Finance Commission

2. Rights in the context ox Parliament:

The prime minister is the leader ox the lower house ox Parliament and he enjoys the xollowing
powers.
He advises the President with regard to summoning and proroguing of the sessions of
the parliament.
He can recommend the dissolution of the sessions of the Parliament.
He declares government policies on the floor of the house.

3. Other powers ox the Prime Minister:

He plays an important role in shaping the foreign policy of the nation.
 He is the chief spokesman of the Central Government.
He is the leader of the ruling party.
He is ex-officio Chairman of the Planning Commission (now NITI Aayog), National
Development Council, National Integration Council, Inter-State Council and National
Water Resources Council.

He is the crisis manager-in-chief at the political level during emergencies.

He is the political head of the armies.

3. Relation with the President ox India

The relationship between the President and the Prime Minister is given in the xollowing two
articles.
(i) Article 74: There shall be a Council of Ministers to help and advise the President of India.
The President shall work as per the instructions given by the Prime Minister but the president
has the power to request the council of the minister to reconsider the advice. Although the
president is bound to work as per the advice given after the reconsideration.

(ii) Article 75:

a. The president will appoint the Prime Minister and other ministers shall be appointed by the
president on the advice tendered by the Prime Minister.
b. The Ministers can remain on his post till the pleasure of the President.
c. The Council of Ministers shall be collectively responsible to the Lok Sabha.

B.The main xunctions ox Prime Minister related to the Council ox Ministers are as xollows:
The Prime Minister recommends the names of members of his team to appoint as a
Minister. The President can only make those people as ministers whose names are
recommended by the Prime Minister.
Prime Minister determines which department will be given to which minister and he can
also change the allotted department of any Minister.
He also presides over the meeting of the Council of Ministers and can change the
decisions according to his wishes.
He can ask any minister to resign or advise the president to dismiss him in case of
differences of opinion.
He also controls and directs the activities of all Ministers.
He can bring about the collapse of the Council of Ministers by resigning from office.
Note: If the Prime Minister resigns from his post or dies, then other ministers can’t do any
work, which means the Council of Ministers dissolves itself with the death/resignation of the
Prime Minister.

C.Prime Minister's Duties:

Submit the report of all the affairs of the Council of Ministers to the President.
 Give full information to the President regarding any emergency situation or any sudden
development in the foreign policy.
Inform the President on all the decisions of the Council of Ministers related to the
activities and administration of the Union.
Commenting on the Prime Minister's power, Dr. Ambedkar said that “if any functionary under
our constitution is to be compared with the USA president, he is the prime minister and not
the President of India”.
Thus, it can be said that in the Parliamentary system of India, the President is the only nominal
Executive Chief and the actual executive powers are contained in the Prime Minister

Lecture5
Judiciary - The Independence ox the Supreme Court, Appointment ox Judges, Judicial Review,
Public Interest Litigation, Judicial Activism

A. Judiciary - The Independence ox the Supreme Court

One of the unique features of the Indian Constitution is that, notwithstanding the adoption of a
federal system and existence of Central Acts and State Acts in their respective spheres, it has
generally provided for a single integrated system of Courts to administer both Union and State
laws.
At the apex of the entire judicial system, exists the Supreme Court of India below which are the
High Courts in each State or group of States. Below the High Courts lies a hierarchy of
Subordinate Courts. Panchayat Courts also function in some States under various names like
Nyaya Panchayat, Panchayat Adalat, Gram Kachheri, etc. to decide civil and criminal disputes of
petty and local nature.
Different State laws provide for different kinds of jurisdiction of courts. Each State is divided
into judicial districts presided over by a District and Sessions Judge, which is the principal civil
court of original jurisdiction and can try all offences including those punishable with death. The
Sessions Judge is the highest judicial authority in a district. Below him, there are Courts of civil
jurisdiction, known in different States as Munsifs, Sub-Judges, Civil Judges and the like.
Similarly, the criminal judiciary comprises the Chief Judicial Magistrates and Judicial Magistrates
of First and Second Class.

The Supreme Court of India comprises the Chief Justice and not more than 30 other Judges
appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65
years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of
India and must have been, for atleast five years, a Judge of a High Court or of two or more such
Courts in succession, or an Advocate of a High Court or of two or more such Courts in
succession for at least 10 years or he must be, in the opinion of the President, a distinguished
jurist. Provisions exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the
Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as
Judges of that Court.
The Constitution seeks to ensure the independence ox Supreme Court Judges in various ways.
A Judge of the Supreme Court cannot be removed from office except by an order of the
President passed after an address in each House of Parliament supported by a majority of the
total membership of that House and by a majority of not less than two-thirds of members
present and voting, and presented to the President in the same Session for such removal on the
ground of proved misbehavior or incapacity. A person who has been a Judge of the Supreme
Court is debarred from practicing in any court of law or before any other authority in India.
Salient Features
The proceedings of the Supreme Court are conducted in English only. Supreme Court
Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice
and procedure of the Supreme Court.
The Registry of the Supreme Court is headed by the Secretary General who is assisted in
his work by seven Registrars, and twenty one Additional Registrars etc. Article 146 of
the Constitution deals with the appointments of officers and servants of the Supreme
Court Registry.
The Attorney General for India is appointed by the President of India under Article 76 of
the Constitution and holds office during the pleasure of the President. He must be a
person qualified to be appointed as a Judge of the Supreme Court. It is the duty of the
Attorney General for India to give advice to the Government of India upon such legal
matters and to perform such other duties of legal character as may be referred or
assigned to him by the President. In the performance of his duties, he has the right of
audience in all Courts in India as well as the right to take part in the proceedings of
Parliament without the right to vote. In discharge of his functions, the Attorney General
is assisted by a Solicitor General and four Additional Solicitors General.
There are three categories ox Advocates who are entitled to practise law before the
Supreme Court of India:-
(i) SENIOR ADVOCATES:These are Advocates who are designated as Senior Advocates by
the Supreme Court of India or by any High Court.
(ii) ADVOCATES-ON-RECORD:Only these Advocates are entitled to file any matter or
document before the Supreme Court. They can also file an appearance or act for a party
in the Supreme Court.
(iii) OTHER ADVOCATES:These are Advocates whose names are entered on the roll of
any State Bar Council maintained under the Advocates Act, 1961 and they can appear
and argue any matter on behalf of a party in the Supreme Court but they are not
entitled to file any document or matter before the Court.

B.Appointment ox Judges

Article 124 of the Constitution of India describes the process for appointment and removal of
judges of the Supreme Court. The currently sanctioned strength of the court is 26 judges (CJI +
25).According to Article 124(3), the following people can become a Supreme Court judge:
 A High Court judge who has held the post for five years or longer (like the Ex CJI, Dipak
Misra);
An advocate who has practiced in a High Court (or the Supreme Court) for ten years or
longer (for example Justice Rohinton Nariman); and
A distinguished jurist – technically this could include a scholar (like, say, Upendra Baxi),
though no judge has ever been appointed on this basis.

The general rule of thumb when it comes to appointing existing High Court judges is seniority –
more senior judges in these courts should be considered for elevation to the Supreme Court.
However, where a particular judge has demonstrated exceptional ability or character, the order
of superiority can be superseded. The reasons behind that particular judge being appointed
need to be recorded in such cases.

The judges of the Supreme Court are to be appointed by the President of India.However,
unlike the procedure followed in other countries, such as the USA, the appointment of Supreme
Court judges in India happens with the involvement of the Judiciary. Article 124(2) says that the
President shall appoint the judges:

After consultation with such of the judges of the Supreme Court and of the High Courts
in the States as the President may deem necessary for the purpose.
For the appointment of any judge of the Supreme Court apart from the CJI, the Article
also says that the Chief Justice of India must be consulted.

Meaning ox “Consultation” and Role ox the Collegium in Appointments

Initially, the fact that Article 124 only required a “consultation” with the judges (including the
CJI), meant that the Central Government had the final say, and could reject the views of the
judges when it came to deciding who would be appointed to the top court. The Supreme Court
itself upheld this back in 1981 in the First Judges Case.

In 1993, a nine-judge bench of the Supreme Court changed this up in the Second Judges Case,
holding that the word “consultation” should be read as “concurrence” and laid out a new set of
principles for appointments. Under these new principles, the CJI was to have primacy when it
came to judicial appointments, with the consultation of the next two senior-most judges of the
Supreme Court. Thus was born: the Collegium.

CJI Not Sole Decision-Maker

In 1998, the then President KR Narayanan made a reference to the Supreme Court to settle the
question once and for all. Questions had arisen as to whether the “consultation” needed to
take place with the Collegium/other judges or if the opinion of just the CJI was enough. Another
nine-judge bench set out the conclusive position in 9 guidelines, in the Third Judges lase.
The Collegium was expanded to include the CJI and the next four (up from two) senior-most
judges. It was concluded that the CJI could only recommend judges for appointment after
consultation with the other four judges, and any candidate has to be supported by a majority of
the Collegium.

Collegium’s Recommendation Binding

Once the Collegium makes a recommendation to the President, the President can either accept
it or send it back to the Collegium for reconsideration. If the Collegium once again recommends
that candidate for appointment, the President is bound by the recommendation.

The final position is thus that even though the formalities need to be performed by the
President, the actual decision-making power when it comes to appointment of Supreme Court
judges rests with the Collegium.

NJAC – Government Tries (and Fails) to Change Appointment Procedure

The Judges Cases effectively took away the powers of the Executive to play a role in deciding
who was appointed as a Supreme Court judge. The NDA in particular have taken exception to
this, and have made it a priority issue during both their tenures in power. The Justice
Venkatachalaiah Commission report in 2002 suggested replacing the Collegium with a National
Judicial Commission, but its recommendations could not be implemented in time.

NJAC Introduced and Struck Down (the NJAC Judgment)

In 2014, they successfully introduced and passed the 99th Amendment to the Constitution and
the National Judicial Appointment Commission (NJAC) Act 2014. This was supposed to lead to
the creation of the NJAC, a six-member commission that would henceforth recommend
candidates to the President.

The make-up of the commission was meant to ensure that the Judiciary wouldn’t get sole
control over appointments by including the Law Minister and two “eminent persons” decided
by the PM, Leader of Opposition and CJI together. Only three judges (CJI + 2 others) were
automatically part of the commission.

The 99th Amendment and the NJAC Act were challenged in the Supreme Court. In October
2015, it held (by a majority of 4:1) that they were unconstitutional because they violated the
basic structure of the Constitution. This meant that the NJAC system was abolished, and
appointment of judges would continue as per the old Collegium system.

The Memorandum ox Procedure(MOP) Controversy

Even though the NJAC was struck down, the government was not done just yet. After the
Second and Third Judges Cases, a Memorandum of Procedure had been formulated to govern
the process of, how the Collegium would make recommendations to the Executive.

The MOP for appointment of Supreme Court judges gives the Centre more than one
opportunity to raise any concerns about the Collegium’s recommendations – first by the
Ministry for Law and Justice, and then by the Prime Minister. But if the Collegium still wants to
stick to its guns, the Executive cannot change anything.

The government therefore suggested that a new MOP be drafted and finalized for appointment
of SC judges. In what sparked a massive controversy, they wanted the Executive to get a veto
over candidates for national security reasons in this new MOP.

The Collegium, headed by the then CJI JS Khehar, rejected this proposal in March 2017 as
reported by the Indian Express, after which the government has failed to respond. This has led
to some confusion as to the status of the MOP – but the CJI in a November 2017 decision and
the four senior judges in their January 2018 letter have made it clear that the old MOP was
upheld in the NJAC judgment, and the government’s recalcitrance does not affect it.

However, even this has not led to a conclusive win for the Judiciary. Neither the old MOP nor
the Constitution of India set out any time limits for the Executive to approve the Collegium’s
recommendations. Consequently, the government has been able to frustrate the judges by just
sitting on the files and doing nothing about them.

Removal ox Supreme Court Judges: Impeachment

While the Judiciary still holds the cards when it comes to appointment of judges, they do not
have a say when it comes to the removal of judges. The power to remove judges from their
office rests with the President, who can only do so after receiving duly supported requests from
Parliament.

The Supreme Court has formulated an ‘in-house procedure’ for complaints against judges of the
High Courts or Supreme Court (though not the CJI himself), which provides for inquiries to be
set up by the CJI. The CJI can recommend the removal of a judge to the President and Prime
Minister, but this is not a necessary prerequisite for the impeachment process.

Parliament decides whether to impeach judges or not.

The Impeachment Process

The process of impeachment is described in Article 124(4) of the Constitution and the Judges
(Inquiry) Act 1968. A judge can be removed on the ground of “proved misbehavior or
incapacity”. Neither misbehaviour nor incapacity are defined, but would include any criminal
activity or other judicial impropriety.

The steps are as follows:

An impeachment motion against the judge needs to be raised in either of the Houses of
Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or
Chairperson (by default, the Vice-President) in Rajya Sabha if it has the required levels of
support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
 If the motion is admitted, a three-member committee is set up to investigate the
allegations. The committee is made up of a Supreme Court judge, the Chief Justice of
any High Court, and a ‘distinguished jurist’ (read judge/lawyer/scholar) nominated by
the Speaker/Vice-President.
Once the committee prepares its report, this has to be submitted to the Speaker/Vice-
President, who then also shares it with the other House.
Both Houses of Parliament then need to pass an ‘address to the President’ asking for the
judge to be removed. To succeed, this needs to be passed by a 2/3 majority of the MPs
present in each house during the vote, and must also exceed the 50 percent mark in
each House.
If both addresses succeed, then the President can remove the judge from his position by
Presidential Order.

Judicial Review

The constitution of India envisages a very healthy system of judicial review and it depends upon
the India judges to act in a way as to maintain the spirit of democracy. In the present
democratic setup in India, the court can not adopt a passive attitude and ask the aggrieved
party to wait fo public opinion against legislative tyranny, but the constitution has empowered
it to play an active role and to declare a legislation void, if it voilates the constitution.

The constitutional thinkers of India before the Indian Republic was established were of the view
that in the constitution of free India there must be provisions for supreme court with the power
of judicial review.

Under the statutory and constitutional provisions, the courts have the wide range of powers of
judicial review in India. It is to state that the constitutional and statutory provisions of judicial
review are totally different. The courts must exercise these powers with self-control and great
caution. It is not expected from the courts that they phase out from the boundary of their
appropriate influences of judicial assessment.The constitution of India provides an express
provision for judicial review in the shape of Article 13. which states as:

13(1). all laws in force in the territory of India immediately before the commencement of
constitution shall be void to the extent to which they are inconsistent with the provisions of part
3rd of the constitution.

13(2). state shall not make any law which takes away or abridges the fundamental rights
conferred by part 3rd of constitution and any law made in contravention of fundamental rights
shall to the extent of contravention, be void.
13(3). law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage
having the force of law.

Article 13 in fact provides for the judicial review of all legislations in india, past as well as future.
This power has been conferred on the High courts and the Supreme court of India which can
declare a law unconstitutional if it is inconsistent with any of the provisions of part 3rd of the
constitution.

Thus, the laws which take away or abridge the fundamental rights are liable to be struck down
as ultravires or void by the courts under art 13 (2) by exercising the power of judicial review.

lhief Justice Patanjali Shastri in State of Madras vs V.G.Row AIR 1952 Sl 196, observed that our
constitution contains express provision for judicial review of legislation as to its confirmity with
the constitution........ the courts in this country face upto such important and none too easy
task, it is not out of any desire to tilt at legislative authority and a crusader's spirit, but in
discharge of duty plainly laid upon them by constitution. This is specially true as regards the
fundamental rights as to which the court has been assigned the role of sentinel on the qui
vive. lhief Justice Kania in A.K.Gopalan vs state of Madras AIR 1950 Sl 27, pointed out that it
was only by way of abundant caution that the framers of our constitution inserted the specific
provisions in Art 13...... In India, it is the constitution which is supreme and all statute laws must
be in confirmity with the constitutional requirements and it is for the judiciary to decide
whether any enactment is constitutional or not.

The fundamental subjects of judicial review in the constitution of india relates to the following
things,

Violation of fundamental rights

Violation of various other constitutional restrictions embodied in the constitution.
Enactment of legislative act in violation of constitutional mandates regarding
distribution of powers.
Delegation of essential legislative power by the legislature to the executive or any other
body.
Violation of implied limitations and restrictions.
In India, judicial review broadly covers three aspects;
o judicial review of legislative action
o judicial review for judicial decision, and
o judicial review of administrative action

Public Interest Litigation

Public Interest Litigation (PIL) is a practice or a technique that focuses on the citizens of the
country. The main purpose of this school of jurisprudence – PIL is to protect the people of the
nation. Moreover, before heading into the intricacies of PIL, let’s understand what it actually is and
how it benefits us.

Meaning and Dexinition: In addition to what the above paragraph states, the public interest
litigation gets initiation by a group of people. These people belong to the country where the filing
of the litigation happens. Also, it is important to understand that PIL is a practice that allows the
following to file for litigation:

• an individual; or

• a group of people
Further, this individual person or a group of people can directly file interest litigation with the
Supreme Court. Apart from the Supreme Court of India, the High Courts, as well as the Judicial
Members, are capable of accepting litigation files.

Moreover, it is also important to note that the person or people who are filing the petition should
not possess any interest in the litigation. In other words, the petitioners should not file a litigation
petition keeping in mind a personal agenda. The Court accepts the litigation only when the plea
comes from a large public interest.

Importance ox the Public Interest Litigation

• Public interest litigation provides a wider scope promoting the right to equality.

• Not only does it promote equality, but it also ensures right to life and personality. Part III of
the Constitution of India guarantees right to quality, life, and personality.

• PIL is solely responsible for providing relief and remedies of the writ jurisdiction.

• The public interest litigation practice functions as an effective instrument for changing
society and ensuring welfare.

• Also, with the help of the public interest litigation, anyone can seek remedy on behalf of the
under-privileged class by introducing the public interest litigation.
Apart from the obvious importance of the PIL, here is why it is valued as highly as it is.

The PIL can do the following:

• Clarify the Indian societal law.

• Holding the public accountable by/and ensuring that they make appropriate decisions, act
fair and transparent within their legal powers.

• Aid in developing the law by providing the judges with the opportunity to accurately
interpret the legislation.

• Provide a voice to the voiceless and vulnerable by highlighting an important issue.

• Providing a platform to the vulnerable people to protect and practice their rights.

• Raise awareness of societal issues, encourage public debates and increase accurate media
coverage.

Judicial Activism

Assertion ox judiciary and its power is rexerred to as judicial activism. It is also defined as an
over active judiciary. Few landmark cases that highlight judicial activism are Keshvanand
Bharati Vs. Kesala, Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & SP Vs.
Union of India etc.

The active role of the Indian judiciary, particularly that of the Supreme Court, has been
appreciated both within and outside India. The independence ensured through the
constitutional provisions in favor of the judiciary and subsequently strengthened by the judicial
interpretation has definitely contributed to the present status of the Indian judiciary. Yet, in this
sphere of judicial activism, there are also a few coexisting misconceptions that need to be
understood in order to appreciate the activist role of the judiciary in India better.

Public Interest Litigation (PIL) made judicial activism possible in India. Before the court accepts a
matter for adjudication, it must be satisfied that the person who approaches it has sufficient
interest in the matter. The test is whether the petitioner has locus standi to maintain the
action? This is intended to avoid unnecessary litigation. The legal doctrine that no one except
the affected person can approach a court for a legal remedy was holding the field both in
respect of private and public law adjudications until it was overthrown by the PIL wave.
PIL, which is a manifestation of judicial activism, has introduced a new dimension to judiciary's
involvement in public administration. The issue of locus standi and the procedural complexities
have taken a back seat in the causes brought before the courts through PIL.

In the beginning, the PIL was confined only to improving the lot of the disadvantaged sections
of the society, who by reason of their poverty and ignorance was unable to seek justice and,
therefore, any member of the society was permitted to file a case for appropriate directions.

Consequently, the expectations of public went high and the demands on the courts to improve
the administration by giving appropriate directions for ensuring compliance with statutory and
constitutional prescriptions increased. Beginning with the Ratlam Municipality case the sweep
of PIL had encompassed a variety of causes.

Golak Nath case is also an example of judicial activism in that the Supreme Court. For the first
time by a majority of 6 against 5, despite the earlier holding that Parliament in exercise of its
constituent power can amend any provision of the Constitution, declared that the fundamental
rights as enshrined in Part III of the Constitution are immutable and so beyond the reach of the
amendatory process.

The declaration of law by the Supreme Court that Indian Parliament has no power to amend
any of the provisions of Part III of the Constitution became the subject matter of very animated
discussion.

Kesavananda Bharati had given a burial to the controversy of amendment of any of the
provisions of the Constitution. By a majority of seven against six, the court held that under
Article 368, Parliament has undoubted power to amend any provision in the Constitution but
the amendatory power does not extend to alter the basic structure of the Constitution.

A criticism that we often hear about judicial activism is in the name of interpreting the
provisions of the Constitution. The allegations are that judiciary very often rewrites them
without explicitly stating so. In the process, some of the personal opinions of the judges
metamorphose into legal principles and constitutional values.
Another criticism is that in the name of judicial activism, the theory of separation of powers is
overthrown and the judiciary is undermining the authority of the legislature and the executive
by encroaching upon the spheres reserved for them

Lecture6
LokPal, Lok Ayukta, The Lokpal and Lok ayuktas Act 2013

6.1-What are Lokpal and Lokayukta?

The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the
Union and Lokayukta for States.
These institutions are statutory bodies without any constitutional status.
They perform the function of an "ombudsman” and inquire into allegations of corruption
against certain public functionaries and for related matters.
6.2-Why do we need such institutions?

Maladministration is like a termite which slowly erodes the foundation of a nation and
hinders administration from completing its task. Corruption is the root cause of this
problem.
Most of the anti-corruption agencies are hardly independent. Even Supreme Court has
been termed CBI as a “caged parrot” and “its master’s voice”.
Many of these agencies are advisory bodies without any effective powers and their advice
is rarely followed.
There is also the problem of internal transparency and accountability. Moreover, there is
not any separate and effective mechanism to put checks on these agencies.
In this context, an independent institution of Lokpal has been a landmark move in the
history of Indian polity which offered a solution to the never-ending menace of corruption.
6.3-Background

In 1809, the institution of ombudsman was inaugurated oxxicially in Sweden.

In the 20th century, Ombudsman as an institution developed and grew most significantly
after the Second World War.
New Zealand and Norway adopted this system in the year 1962 and it proved to be of
great significance in spreading the concept of the ombudsman.
In 1967, on the recommendations of the Whyatt Report ox 1961, Great Britain adopted
the institution ox the ombudsman and became the first large nation in the democratic
world to have such a system.
 In 1966, Guyana became the first developing nation to adopt the concept of the
ombudsman. Subsequently, it was further adopted by Mauritius, Singapore, Malaysia, and
India as well.
In India, the concept of constitutional ombudsman was xirst proposed by the then law
minister Ashok Kumar Sen in parliament in the early 1960s.
The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
In 1966, the First Administrative Rexorms Commission recommended the setting up ox
two independent authorities- at the central and state level, to look into complaints
against public functionaries, including MPs.
In 1968, Lokpal bill was passed in Lok Sabha but lapsed with the dissolution of Lok Sabha
and since then it has lapsed in the Lok Sabha many times.
Till 2011 eight attempts were made to pass the Bill, but all met with failure.
In 2002, the Commission to Review the Working ox the Constitution headed by M.N.
Venkatachaliah recommended the appointment ox the Lokpal and Lokayuktas; also
recommended that the PM be kept out of the ambit of the authority.
In 2005, the Second Administrative Rexorms Commission chaired by Veerappa
Moily recommended that the office of Lokpal should be established without delay.
In 2011, the government formed a Group of Ministers, chaired by Pranab Mukherjee to
suggest measures to tackle corruption and examine the proposal of a Lokpal Bill.
"India Against Corruption movement" led by Anna Hazare put pressure on the United
Progressive Alliance (UPA) government at the Centre and resulted in the passing of the
Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
It received assent from President on 1 January 2014 and came into force on 16 January
2014.
6.4-The Lokpal and Lokayuktas (Amendment) Bill, 2016

This Bill was passed by Parliament in July 2016 and amended the Lokpal and Lokayukta Act,
2013.
It enables the leader ox the single largest opposition party in the Lok Sabha to be a
member ox the selection committee in the absence of a recognized Leader of Opposition.
It also amended section 44 of the 2013 Act that deals with the provision of furnishing of
details of assets and liabilities of public servants within 30 days of joining the government
service.
The Bill replaces the time limit of 30 days, now the public servants will make a declaration
of their assets and liabilities in the form and manner as prescribed by the government.
 It also gives an extension of the time given to trustees and board members to declare their
assets and those of their spouses in case of these are receiving government funds of more
than Rs. 1 crore or foreign funding of more than Rs. 10 lakh.
6.5-Structure ox Lokpal

Lokpal is a multi-member body, that consists of one chairperson and a maximum of 8

members.
Chairperson of the Lokpal should be either the former Chief Justice of India or the former
Judge of Supreme Court or an eminent person with impeccable integrity and outstanding
ability, having special knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance including
insurance and banking, law and management.
Out of the maximum eight members, half will be judicial members and minimum 50% of
the Members will be from SC/ ST/ OBC/ Minorities and women.
The judicial member of the Lokpal either a former Judge of the Supreme Court or a former
Chief Justice of a High Court.
The non-judicial member should be an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the
matters relating to anti-corruption policy, public administration, vigilance, finance
including insurance and banking, law and management.
The term ox oxxice xor Lokpal Chairman and Members is 5 years or till the age ox 70 years.
The members are appointed by the president on the recommendation of a Selection
Committee.
The selection committee is composed of the Prime Minister who is the Chairperson;
Speaker of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge
nominated by him/her and One eminent jurist.
For selecting the chairperson and the members, the selection committee constitutes a
search panel of at least eight persons.
6.6-Lokpal Search Committee

Under the Lokpal Act of 2013, the DoPT is supposed to put together a list of candidates
interested to be the chairperson or members of the Lokpal.
This list would then go to the proposed eight-member search committee, which would
shortlist names and place them before the selection panel headed by the Prime Minister.
The selection panel may or may not pick names suggested by the search committee.
In September 2018, the government had constituted a search committee headed by
former Supreme Court judge Justice Ranjana Prakash Desai.
 The 2013 Act also provides that all states should set up the office of the Lokayukta within
one year from the commencement of the Act.
6.7-Lokpal Jurisdiction and Powers

Jurisdiction of Lokpal includes Prime Minister, Ministers, members ox Parliament, Groups

A, B, C and D oxxicers and oxxicials ox Central Government.
Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space.
The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything
said in Parliament or a vote given there.
Its jurisdiction also includes any person who is or has been in charge (director/ manager/
secretary) of anybody/ society set up by central act or any other body financed/ controlled
by central government and any other person involved in act of abetting, bribe giving
or bribe taking.
The Lokpal Act mandates that all public officials should furnish the assets and liabilities of
themselves as well as their respective dependents.
It has the powers to superintendence over, and to give direction to CBI.
o If Lokpal has referred a case to CBI, the investigating officer in such case cannot be
transferred without the approval of Lokpal.
The Inquiry Wing of the Lokpal has been vested with the powers ox a civil court.
Lokpal has powers ox conxiscation ox assets, proceeds, receipts and benexits arisen or
procured by means ox corruption in special circumstances.
Lokpal has the power to recommend transxer or suspension ox public servant connected
with allegation of corruption.
Lokpal has the power to give directions to prevent the destruction ox records during the
preliminary inquiry.
6.8-Limitations

The institution of lokpal has tried to bring a much needed change in the battle against
corruption in the administrative structure of India but at the same time, there are
loopholes and lacunae which need to be corrected.
Five years have passed since the Lokpal and Lokayuktas Act 2013 was passed by
parliament, but not a single Lokpal has been appointed till date indicating the lack ox
political will.
o The Lokpal act also called upon states to appoint a Lokayukta within a year of its
coming to force. But only 16 states have established the Lokayukta.
 Lokpal is not xree xrom political inxluence as the appointing committee itself consist of
members from political parties.
The appointment of Lokpal can be manipulated in a way as there is no criterion to decide
who is an ‘eminent jurist’ or ‘a person of integrity.’
The 2013 act did not provide concrete immunity to the whistle blowers. The provision for
initiation of inquiry against the complainant if the accused is found innocent will only
discourage people from complaining.
The biggest lacuna is the exclusion ox judiciary xrom the ambit ox the Lokpal.
The Lokpal is not given any constitutional backing and there is no adequate provision for
appeal against the Lokpal.
The specific details in relation to the appointment of Lokayukta have been left completely
on the States.
To some extent, the need for functional independence of the CBI has been catered to by a
change brought forth in the selection process of its Director, by this Act.
The complaint against corruption cannot be registered after a period of seven years from
the date on which the offence mentioned in such complaint is alleged to have been
committed.
6.9-Suggestions

In order to tackle the problem of corruption, the institution ox the ombudsman should be
strengthened both in terms of functional autonomy and availability of manpower.
Greater transparency, more right to inxormation and empowerment ox citizens and
citizen groups is required along with a good leadership that is willing to subject itself to
public scrutiny.
Appointment of Lokpal in itself is not enough. The government should address the issues
based on which people are demanding a Lokpal. Merely adding to the strength of
investigative agencies will increase the size of the government but not necessarily improve
governance. The slogan adopted by the government of “less government and more
governance”, should be followed in letter and spirit.
Moreover, Lokpal and Lokayukta must be financially, administratively and legally
independent of those whom they are called upon to investigate and prosecute.
Lokpal and Lokayukta appointments must be done transparently so as to minimize the
chances of the wrong sorts of people getting in.
There is a need for a multiplicity of decentralized institutions with appropriate
accountability mechanisms, to avoid the concentration of too much power, in any one
institution or authority.
Lecture7
State Executives - Powers and Functions ox the Governor, Powers and Functions ox the Chiex
Minister

7.1-Powers and Functions ox the Governor

Both at the state and union levels, it has institutions and processes in place like any other
parliamentary system. At the state level, there is a Governor in whom the executive power of
the State is vested by the Constitution. But the Governor acts as a nominal head, and the real
executive powers are exercised by the Council of Ministers headed by the Chief Minister.

Appointment
The Governor of a State is appointed by the President of India. In order to become a Governor,
a person must have the following qualifications. He/She:

1. Must be a citizen of India,

2. Must be at least 35 years old, and should not hold any office of profit during his/her
tenure.

If a person is a member of either the House of the Parliament or the Legislature of a State, or a
member of the Council of Ministers at the national or the state level and is appointed as
Governor, he/she resigns that post. The Governor is appointed for a term of five years but
normally holds office during the pleasure of the President. The pleasure of the President means
that the Governor may be removed by the President even before the expiry of his/her term.
He/She may also resign earlier. However, in reality, while appointing or removing the Governor,
the President goes by the advice of the Prime Minister.

Powers ox Governor
With every job, there are powers attached. The powers of the Governor are conferred by the
Constitution to enable him/her to perform his/her functions effectively as a Head of the State.
The powers of the Governor can be categorized as

(i) Executive Powers,

(Ii) Legislative Powers,

(Iii) Financial Powers,

(Iv) Judicial Powers, And

(V) Discretionary Powers.

(a) Executive Powers:

The Constitution of India vests the entire executive powers of the State in the Governor who
performs these functions according to the aid and advice of the Council of Ministers with the
Chief Minister as its head. He/ She appoints the Chief Minister and other members of the
Council of Ministers. He/She also appoint persons on important posts such as the Chairpersons
and Members of the State Public Service Commission, State Election Commission, State Finance
Commission and the Advocate General, Judges of the courts, other than the High Court. He/She
is consulted when the Judges of the State High Court are appointed by the President. But in
practice, the Governor’s powers are only formal. He appoints only that person as Chief Minister
who is the Leader of the majority in the Legislative Assembly. He/She appoints Members of the
Council of Ministers only on the advice of the Chief Minister. All other appointments are made
and executive functions are performed by him/ her exactly as per the advice of the Council of
Ministers.

(b) Legislative Powers:

The Governor is an inseparable part of the State Legislature and as such he/she has been given
certain legislative powers. He/ She has the right to summon and prorogue the State Legislature
and can dissolve the State Legislative Assembly. He/She addresses the State Legislative
Assembly or the joint sessions of the two houses of the legislature. He/She may nominate one
person of the Anglo-Indian community as a member of the Legislative Assembly in case the
community is not represented. He/She also nominates one-sixth of the members to the
Legislative Council, if the State has a bicameral legislature. Once again, in real practice, the
Governor does all this on the recommendations of the Council of Ministers headed by the Chief
Minister. A bill passed by the State Legislature becomes a law or Act only when the Governor
gives assent to it.

(c) Financial Powers:

Every year the budget is presented by the government in the Legislature for its approval. In
fact, the budget i.e. ‘the Annual Financial Statement’ of the State is prepared and presented by
the State Finance Minister before the State Legislature, on behalf of the Governor. Moreover,
no money bill can be introduced in the State Legislature without the recommendations of the
Governor. He/She also has control over the State Contingency Fund.

(d) Discretionary Powers:

The Governor acts on the advice of the State Council of Ministers. This means that in reality, the
Governor has no powers. But according to the Constitution, under special circumstances, he/
she may act without the advice of the Council of Ministers. Such powers, which are exercised by
the Governor on his own, are called discretionary powers. Firstly, if no political party or
coalition of parties wins a clear majority in the Legislative Assembly, he/she can exercise his/her
discretion in inviting a person to be the Chief Minister. Secondly, the Governor acts as a link
between the Centre and the State. He/She can reserve any bill passed by the State Legislature
for the consideration of the President of India. Thirdly, if he/she thinks that the government of
the State is not functioning according to the Constitution, he/she can report to the President. In
that case under Article 356, the President’s Rule is imposed, the State Council of Ministers is
removed and the State Legislature is dissolved or put under suspension. During such an
emergency, the Governor rules on behalf of the President.

Relationship between the Governor and the Council ox Ministers

The State executive consists of the Governor, the Chief Minister and the Council of Ministers.
Normally, the Governor exercises all his/her powers on the advice of the Council of Ministers.

When the Chief Minister is sworn in, the Governor simply performs a formal duty. He/She
invites the leader of the majority in the State Legislative Assembly to be sworn in as the Chief
Minister.

The members of the Council of Ministers are also appointed by the Governor on the
recommendations of the Chief Minister. The majority can consist of members of the Legislative
Assembly belonging to one party or a group of parties and independents.

However, when there is no clear majority in the House electing one candidate as its leader, the
Governor can exercise his/her discretionary power. Similarly, although theoretically, the
Ministers hold their offices during the pleasure of the Governor, in practice the Chief Minister
and the Council of Ministers remain in office till they enjoy the support of the majority in the
Legislative Assembly.

The Governor can dismiss them only when the President’s Rule is imposed. The Chief Minister is
required to communicate to the Governor all the decisions of the Council of Ministers.

He/She may call for necessary information related to the state administration. If a Minister
individually makes a decision, the Governor may ask the Chief Minister to place such a matter
for consideration of the Council of Ministers. It is true that the Governor is a nominal head and
the real powers are exercised by the Council of Ministers headed by the Chief Minister.

But it will not be correct to say that the Governor is just a constitutional or ceremonial head.
He/ She can exercise his/her powers effectively under certain circumstances, especially when
there is political instability in the State.

Since he/she is a link between the Centre and the State, he/she becomes very effective, if the
central government sends directions to the State government. The discretionary powers also
make the Governor act as a real executive in particular circumstances.
7.2-Powers and Functions ox the Chiex Minister

The Governor is a state's de jure head, but de xacto executive authority rests with the Chiex
Minister. So, Chiex Minister is the real executive ox the Government. Article 164 ox the
Constitution says that the Chiex Minister shall be appointed by the governor.

After the abolition of the article 370 from the Indian Constitution now the number of sates in
India remained 28 while the number of Union territories (UTs) has increased to 9. There are 3
UTs (Delhi, Puducherry and Jammu & Kashmir) that have bicameral legislative assemblies.

Appointment ox Chiex Minister

Our constitution does not specifically mention about the qualification to be appointed as Chief
Minister (CM). Article 164 of the Constitution envisages that the Chief Minister shall be
appointed by the governor. However, this does not imply that the governor is free to appoint
anyone as the Chief Minister of the state or UT.

Powers and xunctions ox the Chiex Minister

The powers and functions of CM can be classified under following heads:

With respect to council ox ministers –

The following are the powers of CM with respect to state council of ministers –
1). He advises the Governor to appoint any person as a minister. It is only according to the
advice of CM the Governor appoints ministers.
2). Allocation and reshuffling of portfolios among ministers.
3). In case of difference of opinion; he can ask minister to resign.
4). Directs, guides and controls activities of all the ministers.
5). If the Chief Minister resign then full cabinet has to resign.

With Respect to Governor -

Under Article 167 ox our constitution: The Chief Minister acts as a link between Governor and
state council of ministers. The functions with respect to the Governor are as follows:
1). CM has to communicate to the Governor all the decisions of the council of ministers relating
to the administration of the states.
2). Whenever the Governor calls for any information relating to the decisions taken or
regarding the administration, the CM has to provide him the same
3). The Governor can ask for consideration of council of ministers when a decision has been
taken without the consideration of the cabinet.
4). CM advises Governor regarding the appointment of important officials like Attorney
General, State Public Service Commission (Chairman and Members), State Election Commission
etc.

With Respect to State Legislature –

1) All the policies are announced by him on the floor of the house.
2) He recommends dissolution of legislative assembly to the Governor.
3) He advises the Governor regarding summoning, proroguing the sessions of State Legislative
Assembly from time to time.

Other Functions
1) At the ground level he is the authority to be in contact with the people regularly and know
about their problems so as to bring about policies on the floor of the assembly.
2) He acts as the chairman of State Planning Commission.
3) He is the vice chairman of concerned zonal council in rotation for a period of one year.
4) During emergencies he acts as the crisis manager in the state.
S from the above explanation it can be conclude that the Chief Minister of a state has wide
range of functions. He is the leader of the MLAs elected by the general public of the state

Lecture8
Functions ox State Cabinet, Functions ox State Legislature

Functions ox State Cabinet

The Constitution provides that there shall be a Council of Ministers with the Chief Minister at
the head to aid and advice the Governor in the exercise of his functions except in so far as he
is by or under the Constitution required to act in his discretion.
The governor appoints the Chief Minister and other Ministers on the advice of the Chief
Minister.The Council of Ministers constitutes the real executive in the State. Although the
administration is carried on in the name of the Governor, actual decisions are normally made by
Ministers.

Under ordinary circumstances, the Governor has to follow their advices. It is the duty of the
Chief Minister of a State to communicate to the Governor regarding administration and the
affairs of the State.

Thus, in theory the Governor may dismiss a minister if he so likes, but in view of the collective
responsibility of the Council of Ministers to the State Legislative Assembly, he is not likely to use
this power in actual practice.

The Constitution dexines the position ox the Council ox Ministers in relation to the State
Legislature by providing that the Council ox Ministers is collectively responsible to the
Legislative Assembly ox the State. This means that they can remain in oxxice only ix they enjoy
the support ox a majority ox members ox the State Legislative Assembly. The number ox the
ministers is not xixed. It is xor the Chiex Minister to determine the size ox the Council ox
Ministers and he does so as the requirements ox the occasion may demand.; The only
constitutional requirement is that in the States ox Bihar, Madhya Pradesh, and Orissa the
Council ox Ministers must have a Minister in charge ox Tribal welxare and the same Minister
may also be entrusted with the welxare ox the Scheduled Castes and Backward Classes in the
State.
Powers and Functions ox the Council ox Ministers:
The Council of Ministers performs the following functions:

(i)Formulation of Policies:
The Ministers formulate the policies of the government. The Cabinet takes decisions on all
major problems—public health, relief to the disabled and unemployed, prevention of plant
diseases, water storage, land tenures and production, supply and distribution of goods. When it
has formulated a policy, the appropriate department carries it out.

(ii) Administration and Maintenance of Public Order:

The executive power is to be exercised in such a way as to ensure compliance with State laws.
The Constitution empowers the Governor to make -rules for the more convenient transaction
of the business of the Government. All such rules are made on the advice of the Council of
Ministers.

(iii) Appointments: The Governor has the power to appoint the Advocate-General and the
Members of the State Public Service Commission. The Vice-Chancellors of the State Universities
and members of various Boards and Commissions are all appointed by the Governor. The
Governor cannot make these appointments at his will. He must exercise these functions on the
advice of his ministers.

(iv) Guiding the Legislature:

Most of the Bills passed by the Legislature are Government Bills, prepared in the ministries.
They are introduced, explained and defended in the State Legislature by the Ministers. The
Cabinet prepares the Governor’s Address in which it sets forth its legislative programme at the
commencement of the first session of the Legislature each year.

For weeks at a stretch the Cabinet’s proposals take over every working moment of the House.
The Cabinet makes sure that all government bills will be translated into laws.

(v) Control over the State Exchequer:

The State budget containing the estimates of income and expenditure for the ensuing year is
placed by the Finance Minister before the State Legislature. The Legislature cannot take the
initiative in the case of a Money Bill. Such a Bill must be recommended by the Governor and
can be introduced only by a Minister. The initiative in financial matters lies with the Executive.

(vi) Execution of Central Laws and Decisions of the Union Government:

The Union Government is empowered to give directions to the State-governments in certain
matters. The States should exercise their executive power so as to ensure compliance with the
laws made by Parliament. They should not do anything which would hamper the executive
power of the Union.

Railways, for instance, is a Union subject, but police, including railway police, is a State Subject.
The Union Government can give directions to the State Executive as to the measures to be
taken for the protection of railways within the State.

Functions ox State Legislature

Chapter III of Part VI of the Constitution is concerned with the State Legislature. It comprises
state legislature and executives. Articles 168 to 212 in Part VI of the Constitution deal with the
organisation, composition, duration, officers, procedures, privileges, powers and so on of the
state legislature.

Bicameral and Unicameral States

Though a uniform pattern of Government is prescribed for the States, it is not so in the matter
of the composition of the Legislature. While the Legislature of every State shall consist of
the Governor and the State Legislature, in some of the States, the Legislature shall consist of
two Houses, namely, the Legislative Assembly and the Legislative Council, while in the rest,
there shall be only one House, namely the legislative assembly.
The constitution provides for the abolition of the second chamber in a state where it exists as
well as for the creation of such a chamber in a state where there is none at present. If a state
Legislature passes a resolution by an absolute majority, together with not less than two-thirds
of the members actually present and voting in favour of the creation of the second chamber
and if Parliament gives concurrence to such a resolution, the concerned State can have two
Houses in the Legislature. Similar is the procedure for the abolition of the Upper houses and the
State of Punjab and West Bengal abolished the second chambers in 1969 and 1970 respectively.
Legislative Council in Tamil Nadu was abolished in 1986. The State Legislature which has only
one House is known as the Legislative Assembly (Vidhan Sabha) and in the State which has two
houses, the Upper House is known as the Legislative Council (Vidhan Parishad) and the lower
House is known as the Legislative Assembly (Vidhan Sabha).
Owing to changes introduced since the inauguration of Constitution, in accordance with the
procedure laid down in Art. 169, the States having two Houses are Bihar, Maharashtra,
Karnataka, Andhra Pradesh, Telangana and Uttar Pradesh.
State Legislature – Legislative Assembly
The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a
State. The maximum strength of an assembly must not exceed 500 or its minimum strength fall
below 60. But some of the States have been allowed to have smaller Legislative Assemblies, e.g.
Sikkim, Arunachal Pradesh, Goa, etc.
The territorial constituencies demarcation should be done as far as possible, such that the ratio
between the population of each constituency and the number of seats allotted to it is the same
all over the State. Apart from these general provisions, there are also special provisions with
respect to the representation of SC and ST. In case the Governor feels that the Anglo-Indian
community is not adequately represented, he can nominate one member of that community to
the assembly.

State Legislature – Legislative Council

The Legislative Council of a State Comprises not more than one-third of the total number of
members in the Legislative Assembly of the State and in no case less than 40 members.
However, in Jammu and Kashmir, the strength is only 36. The system of the composition of the
Council as provided for in the Constitution is not final. The final power is given to the
Parliament of the Union. But until the Parliament legislates on the subject, it shall be as
provided for in the Constitution, which is described below:
Duration ox Legislative Assembly & Legislative Council
It will be a partly nominated and partly elected body, the election being an indirect one and in
accordance with the principle of proportional representation by the single transferable vote.
The members being drawn from various sources, the Council shall have a variegated
composition. Broadly speaking 5/6 of the total number of members of the Council shall be
indirectly elected and 1/6 will be nominated by
The duration of the Legislative Assembly is five years. The Governor has the power to dissolve
the Assembly even before the expiry of its term. The period of five years, may, while a
proclamation of emergency is in operation, be extended by the Parliament by law for a period
not exceeding one year at a time and not extending in any case beyond a period of six months
after proclamation has ceased to operate (Article 172(1)). Unlike the Legislative Assembly, the
Legislative Council is not subject to dissolution. It is a permanent body unless abolished by the
Legislative Assembly and Parliament by the due procedure. But no person can be a permanent
member of the Council as one-third of the members of the Council retire on the expiry of every
second year. It amounts to a term of six years for each member. There is no bar on a member
getting re-elected on the expiry of his term.
(a) one-third of the total number of members of the Council would be elected by electorates
consisting of members of local bodies like the municipalities and the district boards.
(b) one-twelfth of the members would be elected by electorates comprising of graduates of the
standing of three years dwelling in that particular state.
(c) one-twelfth of the members would be elected by electorates consisting of teachers who
have been in the teaching profession for at least 3 years in educational institutes in that state,
which are not lower than secondary schools in the standard.
(d) one-third would be elected by members of the Legislative Assembly from amongst people
who are not Assembly members.
(e) The rest would be nominated by the Governor from persons having knowledge or practical
experience in matters like science, literature, cooperative movement, art and social service.
(The Courts can’t question the propriety or bonafide of the Governor’s nomination.)
Qualixications ox Members ox Legislative Assembly
A person shall not be qualified to be selected to occupy a seat in the Legislature of a State
unless he/she
(a) is an Indian citizen;
(b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative Council,
(c) possess such other qualifications as may be prescribed by the Parliament.
Thus, the Representation of the People Act, 1951, has provided that a person shall not be
elected either to the Legislative Assembly or the Council unless he is himself an elector for any
Legislative Assembly constituency in that State.
A person can be disqualified for being selected as and for being a member of the Legislative
Assembly or Legislative Council of a State if he/she:
(a) holds an office of profit under GOI or any State Government, other than that of a Minister
at the centre or any state or an office declared by a law of the State not to disqualify its
holder (many States have passed such laws declaring certain offices to be offices the holding
of which does not disqualify its holder for being a member of the Legislature of that States)
(b) is mentally unsound as declared by a competent Court
(c) is an undischarged insolvent
(d) is not an Indian citizen or has voluntarily got the citizenship of a foreign State or is under
any acknowledgement of adherence/allegiance to a foreign nation
(e) is so disqualified by or under any law made by Parliament
Thus, the Representation of the People Act, 1951, has laid down some grounds of
disqualification, like conviction by a Court, having been found guilty of electoral malpractice,
being a manager or director of a corporation in which Government possesses a financial
interest. Article 192 says that if any question arises as to whether a member of a House of the
Legislature of a State has become subject to any of the disqualifications mentioned above, the
matter will be referred to the Governor of the state who has to act in accordance with the
opinion of the Election Commission. His decision is final and not liable to be questioned in
Court.
Facts about Speaker & Deputy Speaker:

1. A Speaker vacates his office if he ceases to be a member of the Assembly.

2. He may also resign his office at any time.
 3. A speaker may be removed from office by a resolution of the Assembly passed by a
majority of all the then members of the Assembly after fourteen days’ notice of the
intention to move such a resolution.
4. Speaker does not vacate his office on the dissolution of the Assembly.
5. He continues to be the Speaker until immediately before the first sitting of the Assembly
after the dissolution.
6. While the office of the Speaker is vacant, the Deputy Speaker performs his duties.
7. The duties and powers of the Speaker are, broadly speaking the same as those of the
Speaker of the House of the People (Lok Sabha).

Facts about Chairman & Deputy Chairman:

1. The Council chooses from amongst its members a Chairman and a Deputy Chairman.
2. Both vacate their offices if they cease to be members of the Council or resign from its
membership.
3. They can also be removed by a resolution of the Council passed by a majority of all the
then members of the Council, provided fourteen days notice to move such resolution of
removal has been given.
4. When the resolution for removal is under discussion against the Chairman or the Deputy
Chairman, the concerned person shall not preside at the sitting of the Council, although
he may be present at such a sitting and has the right to speak in, and otherwise to take
part in the proceedings of the Council.
5. He shall be entitled to vote only in the first instance on such resolution or on any other
matter during such proceedings.
6. In case of an equality of votes, he does not exercise a casting vote to which he is
otherwise entitled under Article 189.
7. The Chairman presides at all sittings of the Council and in his absence the Deputy
Chairman.
8. During the absence of both the Chairman and the Deputy Chairman, such other person
as may be determined by the rules of procedure of the Council shall preside; or, if no
such person is present, such other person as may be determined by the Council shall act
as Chairman.
9. While the office of the Chairman is vacant, the duties of his office are performed by the
Deputy Chairman. If the office of the Deputy Chairman is also vacant, such member of
the Council as the Governor may appoint shall perform all such duties connected with
the office of the Chairman.

Powers & Functions ox State Legislature

The functions of the states’ Legislative Council are only advisory in nature. If any Bill is passed
by the Legislative Assembly and sent to the Council, and the Council refuses to give its approval,
then the Assembly has the right to reconsider it. The assembly may pass it with or without the
amendments proposed by the Council, and again send it to the Council. When a bill approved
by the Assembly is sent to the Council for the first time, it may retain it for three months, but in
the case when it is sent for the second time and is kept in the Council for one month only, the
bill is deemed as having been passed. This evidently demonstrates the Assembly’s absolute
superiority over the LC. In the case of Money Bills, the State Assembly’s powers are the same as
those of the Lok Sabha. It is evident that the position of the Vidhan Parishad is haplessly weak.
Even, in theory, it cannot be compared to the Rajya Sabha that, in spite of being the upper
chamber of the Union Legislature, has some effective powers.
(1) All the LC can do is delay the passing of a money bill by 14 days, a non-money bill by 3
months or a non-money bill that is sent back to it with recommendations by 1 month.
(2) There is no provision in the Constitution for a joint sitting of the State Legislature. It is to be
noted that while the Vidhan Sabha can override the Vidhan Parishad, the vice versa is never
possible. A non-money bill that is passed by the Vidhan Parishad can be rejected by the Vidhan
Sabha more than once.
(3) The LC members do not participate in the election of the President of the country. Apart
from that, they do not have any meaningful role in any bill’s rectification nor in a constitutional
amendment.
In practical terms, the Legislature ox a State implies its Legislative Assembly which possesses
the xollowing major powers and xunctions:
(1) It can create laws on any subject in the State List; it can also create laws on the Concurrent
List provided the law does not contradict or conflict any law already made by the Parliament.
(2) The Assembly asserts control over the Council of Ministers. Assembly members can question
the ministers, move motions and resolutions, and also pass a vote of censure in order to dismiss
the state government. The government ministry is collectively accountable to the Legislative
Assembly. If the ministry is defeated in the Assembly, it amounts to the passing of a no-
confidence vote against the government.
(3) The assembly controls the State’s finances. A money Bill can emerge from the Assembly and
it is considered passed by the LC after a lapse of fourteen days after reference made to it by the
Sabha. It could reject or pass the grants or reduce their amount indicating rejection or adoption
of the budget and hence, implying victory or defeat of the State Government. Therefore, no tax
can be levied or withdrawn without the consent of the Vidhan Sabha.
(4) The Assembly has constituent powers. With reference to Article 368, certain Bills of
Constitutional amendment after being passed by the Parliament would be referred to the
States for the process of ratification. In these cases, the Vidhan Sabha has a role to play. It
should give its judgement by passing a resolution by a simple majority indicating approval or
disapproval of the said Bill. There is a provision wherein the President shall refer to the state
assembly of a state before he recommends the introduction of a bill which concerns with the
alteration of the concerned state’s boundary lines or its reorganisation in such a manner that its
territory is increased or decreased.
(5) Some other powers of the State Assembly are as under:
(a) It elects its Speaker as well as Deputy Speaker. It can also remove them by a no-confidence
vote.
(b) It participates in the election of India’s President.
(c) It also considers reports presented by agencies such as the Auditor-General, State Public
Service Commission, and others.
Hence, it is evident that the Vidhan Sabha is the powerful and popular chamber of the State
Legislature. In theory, it is somewhat parallel to the Lok Sabha.

Limitations on the powers ox State Legislature

(i) Certain types of Bills cannot be moved in the State Legislature without the previous sanction
of the President of India; (ii) Certain Bills passed by the State Legislature cannot become
operative until they receive the President’s assent after having been reserved for his
consideration by the Governor; (iii) The Constitution empowers Parliament to frame laws on
subjects included in the State List if the Council of States declares that it is necessary and
expedient in the national interest that Parliament should Legislate on these subjects; (iv)
Parliament can exercise the power to make laws for the whole or any part of the territory of
India with respect to any of the matters enumerated in the State List, while a Proclamation of
emergency is in operation; (v) The Legislative competence of Parliament can also extend to the
subjects enumerated in the State List during the operation of a proclamation of breakdown of
the Constitutional machinery.

Legislative Procedure
The Parliamentary procedure followed in the Assembly and the Council is the same as in
Parliament.

1. The State Legislature must meet at least twice a year and the interval between any two
sessions should not be more than six months.
2. The Governor delivers the opening address at the beginning of a new session in which
he outlines the policy of the State Government.
3. Any Bill may be introduced in either House of the Legislature except a Money Bill, which
can be introduced only in the Assembly. It has to go through three readings, after which
it goes to the Governor for his assent. The Governor may send it back for
reconsideration but once it is passed again by the Legislature, he cannot withhold his
assent.
4. He may reserve certain Bills for the consideration of the President, who may ask him to
place it before the Legislature for reconsideration. When it is passed again with or
without amendment it goes to the President for his consideration.
5. The President is not bound to give his assent even though the Bill has been considered
and passed for a second time by the State Legislature. In case the Assembly is dissolved
before a Bill is passed, or it is passed by the Assembly but is pending before the Council,
it will lapse.
6. But in case of Bills which have been duly passed by the Assembly, if there is only one
House in the State, and by the Assembly and the Council where there are two House,
and is awaiting the assent of the Governor or the President it does not lapse.
7. A bill which has been returned either by the Governor or the President for
reconsideration can be considered and passed by the newly constituted Assembly, even
though the Bill was originally passed by the dissolved House.
Lecture9
Functions ox High Court and Subordinate Courts

High Courts are the highest courts in a state. Presently, there are 25 High Courts in India, with
some states having a common High Court. They are an important part of the judicial system in
India and hence, very important from the point of view of Indian polity for the UPSC exam.
High Courts and their functions, powers, jurisdiction, along with the rules for the appointment
of High Court judges are fundamental concepts in the polity section of the IAS syllabus. In this
article, we present this very vital information in a crisp manner for students to study easily.

Powers and Functions ox the High Court

The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian
Constitution talk about the High Courts, their organisation and powers. The Parliament can also
provide for the establishment of one High Court for two or more states.
For instance, Haryana, Punjab and the Union Territory of Chandigarh have a common High
Court. The northeastern states also have one common High Court. In addition, Tamil Nadu
shares a High Court with Puducherry.
Currently, there are 25 High Courts in India. The High Courts of Calcutta, Madras and Bombay
were established by the Indian High Courts Act 1861.

Functions & Powers ox the High Court

(i) High Court Jurisdiction: The various kinds ox the jurisdiction ox the High Court are briexly given
below:

Original Jurisdiction

• The High Courts of Calcutta, Bombay and Madras have original jurisdiction in criminal
and civil cases arising within these cities.
• An exclusive right enjoyed by these High Courts is that they are entitled to hear civil
cases which involve property worth over Rs.20000.
• Regarding Fundamental Rights: They are empowered to issue writs in order to enforce
fundamental rights.
• With respect to other cases: All High Courts have original jurisdiction in cases that are
related to will, divorce, contempt of court and admiralty.
• Election petitions can be heard by the High Courts.
(ii) Appellate Jurisdiction

• In civil cases: an appeal can be made to the High Court against a district court’s decision.
• An appeal can also be made from the subordinate court directly, if the dispute involves
a value higher than Rs. 5000/- or on a question of fact or law.
• In criminal cases: it extends to cases decided by Sessions and Additional Sessions
Judges.
• If the sessions judge has awarded an imprisonment for 7 year or more.
• If the sessions judge has awarded capital punishment.
The jurisdiction of the High Court extends to all cases under the State or federal laws.
In constitutional cases: if the High Court certifies that a case involves a substantial
question of law.

(ii) High Court Powers

Apart from the above, the High Courts have several functions and powers which are described
below.

(a) As a Court ox Record

• High Courts are also Courts of Record (like the Supreme Court).
• The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.
• All High Courts have the power to punish all cases of contempt by any person or
institution.

(b) Administrative Powers

1. It superintends and controls all the subordinate courts.

2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself
and decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

(c) Power ox Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or
ordinance unconstitutional if it is found to be against the Indian Constitution.
(d) Power ox Certixication
A High Court alone can certify the cases fit for appeal before the Supreme Court.

Powers And Functions Ox High Court – Indian Polity

High Court Autonomy

The independence of the High Courts can be corroborated by the points given below:

1. Appointment ox Judges: The appointment of judges of the High Courts lies within the
judiciary itself and is not connected to the legislature or the executive.
2. Tenure ox the Judges: High Court judges enjoy security of tenure till the age of
retirement, which is 62 years. A High Court cannot be removed except by an address of
the President.
3. Salaries and allowances: The High Court judges enjoy good salaries, perks and
allowances and these cannot be changed to their disadvantage except in case of a
financial emergency. The expenses of the High Court are charged on the Consolidated
Fund of the State, which is not subject to vote in the state legislature.
4. Powers: The Parliament and the state legislature cannot cut the powers and jurisdiction
of the High Court as guaranteed by the Constitution.
5. Conduct ox judges: Unless a motion of impeachment has been moved, the conduct of
the High Court judges cannot be discussed in the Parliament.
6. Retirement: After retirement, High Court judges cannot hold an office of emolument
under the Government of India or that of a state. There is an exception to this clause,
however, when, with the consent of the Chief Justice of India, retired judges can be
nominated to a temporary office, and in situation of Emergencies.

Subordinate Courts

The District Courts ox India are the district courts ox the State governments in India xor every
district or xor one or more districts together taking into account the number ox cases,
population distribution in the district. They administer justice in India at a district level. These
courts are under administrative control ox the High Court ox the State to which the district
concerned belongs. The decisions ox District court are subject to the appellate jurisdiction ox
the High court.
Indian Judiciary System

The District Courts of India are the district courts of the State governments in India for every
district or for one or more districts together taking into account the number of cases,
population distribution in the district.

They administer justice in India at a district level. These courts are under administrative control
of the High Court of the State to which the district concerned belongs. The decisions of District
court are subject to the appellate jurisdiction of the High court.

The provisions related to subordinate courts are provided in the 6th part ox the Indian
Constitution. Articles 233-237 deal with the subordinate courts.
Control over Subordinate Courts –
This is an extension of the above supervisory and appellate jurisdiction. It states that the High
Court can with draw a case pending bexore any subordinate court, ix it involves the
substantial question ox law. The case can be disposed of itself or solve the question of law and
return back to the same court.
In the second case the opinion tendered by High court would be binding on the subordinate
court. It also deals with matters pertaining to posting promotion, grant of leave, transfer and
discipline of the members there in.

High court has complete authority and control over its oxxicers and employees. In this regard
it appoints officers and servants to be made by Chief Justice or such other judge of High Court
as the Chief Justice may direct. However the Governor of the state may by rule require that in
such cases as may be specified in the rule no person not already attached to the court shall be
appointed to any office connected with the court except after the consultation with the state
public service commission.
The subordinate courts include the District Judges, Judges of the city civil courts, Metropolitan
magistrates and members of the judicial service of the state.

Appointment ox the District Judges as per Article 233,

1). Appointments and promotion of district judges in any state shall be made by the Governor
of the state in consultation with the high court exercising jurisdiction in relation to such state
2). A person not already in the service of the Union or of the state shall only be eligible to be
appoint a district judge if he has been for not less than 7 years an advocate or a pleader and is
recommended by the high court for appointment.
Control over subordinate courts is the collective and individual responsibility of the High Court
as it is the head of the judiciary in the state and has got administrative control over the
subordinate courts in respect of certain matters.