4 th Semester 5 Year B.A LL.B.

Examination , 2021
CONSTITUTIONAL LAW-II
MODEL ANSWERS
Max marks:80
Instructions: 1. Answer all five units
2. One essay type question and short note/problem is
compulsory from each unit

Q.No.1. (a) Discuss the federal structure of the Indian constitution.

Marks: 10
Ans: Indian Constitution is aid to be a federal structure only because it is said
that it has clear demarcation of boundaries between central & the state
government similar to that of U.S. India having legislative and executive
authority divided between the centre and the state.

Chief essentials for a constitution to be federal are:

1. Diversion of powers between the center and the unit states forming federation
among a number of co-ordinate bodies, controlled by constitution.
2. Rigidity – neither the center nor the state has power to amend the provision
3. Domination of the constitution – neither of center or state have power to
nullify.
4. An independent body and unprejudiced authority (Eg. Judiciary)

India is often also claimed to be non- federal in matter such as the Center can
impinge upon the areas earmarked only for the states in some cases. Therefore,
it infringes the principle of federalism as it makes the state hyponym to the
center. Hence, it is also said to be in a unitary form of government too.

The phenomena of such unitary form of government arises only during the
period of wars or emergency period.
A federal constitution establishes a duple polity with Union at the center and
the States at the fringe, each dowered with autonomous powers to be exercised
in the field assigned to them respectively by the constitution. Both are in a way
co-ordinate to powers of each other.

In fact, the basic principle of federalism is that the legislative, executive and
financial authority is divided between the centre and the states not by law passed
by the center but the Constitution itself.

Indian Constitution also defines a counterpoise of powers between the

Executive, Legislature and the Judiciary. If courts are deprived of the powers,
the fundamental rights conferred on the people of the country will become just
equal to a decoration and people as puppet in the hands of the sovereign. Thus,
it will also lead to a system wayward to that of democracy and undermine its
spirit. The bestowal of the right to spifflicate the identity of the Constitution
twinned with provision that no Court of Law shall pronounce upon the validity
of such wipe out and no limit to the amending powers. If the constitutional
amendment cannot be pronounced to be invalid even if it destroys the basic
structure of the Constitution, a law passed in pursuance of such will be beyond
the pale of judicial review as it will receive the protection of Constitutional
amendment thus made and no organ has power to overrule it.

The first significant case where this issue was discussed at length by the apex
Court was State of West Bengal V. Union of India. The main issue involved in
this case was the exercise of sovereign powers by the Indian states. The
legislative competence of the Parliament to enact a law for compulsory
acquisition by the Union of land and other properties vested in or owned by the
state and the sovereign authority of states as distinct entities was also examined.
The apex court held that the Indian Constitution did not propound a principle
of absolute federalism.

Article 13 of the Indian Constitution will then become a non-issue and could be
easily neglected as even ordinary laws will escape the scrutiny of the courts on
the ground that they are passed on the strength of the Constitutional
Amendment which is not open to challenge. It was stated under a leading case
decided by the Apex Court in the [Minerva Mills Ltd. & others V/s Union of
India;AIR 1980 SC 1789].

In Pradeep Jain V. Union of India, the Apex Court expressed as India is not a
federal State in the traditional sense of that term. It is not a compact of sovereign
State which have come together to form a federation by ceding undoubtedly
federal features. InGanga Ram Moolchandani v. State of Rajasthan the Supreme
Court restated: Indian Constitution is basically federal in form and is marked by
the traditional characteristics of a federal system, namely supremacy of the
Constitution, division of power between the Union and States and existence
independent judiciary. The apex Court in ITC LTD v Agricultural Produce
Market Committee expressed a similar opinion.

In the Kesavananda Bharati vs. state of Kerala(1976) case, the Supreme Court
ruled that all provisions of the constitution, including Fundamental Rights can
be amended. However, the Parliament cannot alter the basic structure of the
constitution like secularism, democracy, federalism, separation of powers. Often
called the "Basic structure doctrine", this decision is widely regarded as an
important part of Indian history.

In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended
the doctrine's importance as superior to any parliamentary legislation.
According to the verdict, no act of parliament can be considered a law if it
violated the basic structure of the constitution. This landmark guarantee of
Fundamental Rights was regarded as a unique example of judicial independence
in preserving the sanctity of Fundamental Rights. The Fundamental Rights can
only be altered by a constitutional amendment, hence their inclusion is a check
not only on the executive branch, but also on the Parliament and state
legislatures. The imposition of a state of emergency may lead to a temporary
suspension of the rights conferred by Article 19 (including freedoms of speech,
assembly and movement, etc.) to preserve national security and public order.

The Supreme Court is an independent authority to declare the Acts of the Union
and States ultra-vires if either of them entrenches the defined powers of each
other. Thus while in normal times our Constitution is federal, in emergency
period it becomes unitary. Therefore, we can even call our Indian Constitution
as semi – federal.

OR

Write a short note on the constitutional Provisions relating to Local- Self

Government with special emphasis on 73rd Amendment.

Marks:10

Ans:In 1990, the issues relating to strengthening of the Panchayati Raj

Institutions were considered afresh by the Cabinet Committee set up for this
purpose. It was brought up before a Conference of Chief Ministers held in June
1990, presided over by the then Prime Minister Shri V.P. Singh. 1 The Chief
Ministers’ Conference endorsed the proposals for the introduction of a new
Constitutional Amendment Bill. The Cabinet approved the Amendment Bill and
Model Guidelines in July 1990. The Constitution Amendment Bill was
introduced in the Lok Sabha on 7th September 1990 but could not be taken up
as political changes took place leading to the dissolution of the Lok Sabha.
Finally, the Central Government headed by Narasimha Rao was successful in
enacting ‘The Constitution 73rd Amendment Act, 1992 on Panchayats and The
Constitution 74th Amendment Act, 1992 on Municipalities.’2 This 73rd and
74th Constitutional Amendment Act (CAA) exhibited the beginning of Local
Self-Government under adequate legal sanction in India.3

73th Constitutional Amendment Act (CAA), 1992

The 73rd Amendment Act 1992 came into effect from the 24 April 1993. All
states enacted legislation by 23rd April 1994. The Panchayats previously were
a mere suggestion in the Directive Principles of State Policy whereas the 73rd
Amendment resulted in the Panchayati Raj Institutions (PRIs) being conferred
constitutional sanction. This means that all activities of PRIs as stipulated by
the Act have now legal and constitutional status and any violation of this by
anybody and at any time would be punishable by law. Constitutional status vide
Article 243 of Part IX of the Constitution which came into effect from April 24,
1993 made it mandatory for all States to promulgate their own new acts
consequent to the 73rd Constitutional Amendment Act or amend their old ones
by April 1994. All states have done so by new. Keeping in view the provisions
of 73rd Constitutional Amendment Act, State Panchayati Raj acts have been
constituted which incorporate a three-tier system of Panchayati Raj, Consisting
of Zilla Panchayats at the District level, Panchayat Samitis or kshetra
Panchayats at intermediate level & Gram Panchayats at the village level.
The 73rd and 74th Amendments to the Constitution of India constitute a new
chapter in the process of democratic decentralisation in India. The concept of
Local Self- Government emerges from man’s basic urge for liberty, the power
to make decisions and to uplift the society as per the needs of the respective
communities. Local Self- Governments are those bodies that look after the
administration of an area or a small community such as a village, a town or a
city. Local Self-Government operates at the lowest level of society. It works at
the grass-root level, close to the people, touching their everyday life. Local Self-
Government is the management of local affairs by such local bodies who have
been elected by the local people.

Local Self Government

Following the enactment of the 73rd Amendment Act, 1992, almost all
the States in India passed legislation in conformity with the provisions of the
73rd Amendment Act. There are some States which have two tier Panchayats –
one at the village level and second at the district level. And there are also other
States where Panchayati Raj Institution is a three tier system- Gram/ Gaon
Panchayat as first level, Samiti, Mandal or Anchalik or Taluk or Block or
Janapad or Union or Kshetra as second level and Zilla or District as the third
level. At the rural level the Gaon Sabha constitutes the foundation of the
Panchayati Raj system. Gaon Sabha performs the functions and powers
entrusted to it by the state legislatures. The 73rd Amendment Act aims to
provide three tier system in the Local Self Government constituted through
elections held regularly every five years. The Act also provides reservation of
seats for Scheduled Castes, Scheduled Tribes and Women. Moreover, the Act
provides for a State Finance Commission to make recommendations regarding
the financial powers of the Panchayats and to constitute District Planning
Committee to prepare draft development plan for the district. 16 Provision has
also been made to constitute a State Election Commission in every state to
supervise, direct and control the regular and smooth elections to Panchayat
bodies.

73rd Constitutional Amendment

The 73rd Constitutional Amendment Act was passed by the Parliament in

April1993. The Amendment Act has added part IX to the Constitution of India
entitled as ‘Panchayats’. The part consists of provisions from Article 243 to 243-
0. A new schedule called as Eleventh Schedule lists 29 functional items that
panchayats are supposed to deal with under Article 243-G.
The salient features of the 73rd Amendment
• The Gram Sabha:
The act provides that a gram sabha will consist of persons registered
in the electoral rolls of a village within the area of a panchayat at the village
level. Thus, it is a village assembly consisting of all the registered voters in
the area of the panchayat. It exercises such powers and performs such
functions at the village level as the legislature of a state determines.

• The 73rd Amendment has addressed itself to this ailment and has
provided the following for activisation of this core institution:

(1) Public problems of the village will be discussed and beneficiaries of

welfare programmes would be identified.
(2) The panchayat secretary will be the secretary of the sabha also.
(3) Two compulsory meetings otherwise the sarpanch will be asked to
quit.
(4) The quorum of meetings will be one-tenth of the total.
(5) Assistance to panchayat in the execution of rural development
schemes.
(6) Vigilance committee of the sabha will keep an eye on the panchayats.
(7) The budget and programmes of the panchayat will keep the
suggestions of the sabha in view.
(8) A constitutional status to gram sabhas.
• The Three-Tier System:
The Union government has prescribed a uniform three-tier system
of panchayati institutions for a period of five years.

• Reservation of seats for Schedule caste and Tribes

The Act provides for the reservation of seats for Scheduled Castes and
Scheduled Tribes in every panchayat (i.e., at all the three levels) in proportion
 of their population to the total population in the panchayat area. Further, the
state legislature provides for the reservation of offices of chairpersons in the
panchayat at the village or any other level for the SCs and STs.

• Reservation of Seats for Women

It further provides for the reservation of not less than one-third of the
total number of seats for women (including the number of seats reserved for
women belonging the SCs and STs). Further, not less than one-third of the
total numbers of offices of chairpersons in the panchayats at each level are to
be reserved for women.

• Reservation of Seats in Panchayats

The Act also authorises the legislature of a state to make any

provision for reservation of seats in any panchayat or offices of
chairperson in the panchayat at any level in favour of backward classes.
The term of office is five years but a panchayat can be dissolved before the
completion of its term.

Q.No.1.b) Write a short note on freedom of trade, commerce and

intercourse.

Marks:06

Ans:The freedom of trade, commerce, and intercourse is provided under Part

XIII of the Indian Constitution in Articles 301 to 307. Article 301 lays down the
general principles of trade and commerce whereas Article 302 to 305 enunciates
the restrictions which trade is subjected to. The source for adopting these
provisions was the Australian Constitution.
Freedom of trade, commerce, and intercourse
Article 301 talks about the freedom of trade, commerce, and intercourse
throughout the country. It states that subject to other provisions under Part
XIII, the freedom to carry on these activities shall be free. Freedom here means
the right to freedom of movement of persons, property, things that may be
tangible or intangible, unobstructed by barriers within the state (intra-scale) or
across the states (inter-scale).

The three main words used in this article are:

Trade
Trade means buying and selling of goods for profit-making purposes. Under
Article 301, the word trade means an actual, organized & structured activity
with a definite motive or purpose. For the motive of Article 301, the word trade
is interchangeably used with business.

Commerce
Commerce means transmission or movement by air, water, telephone, telegraph
or any other medium; what is essential for commerce under Article 301 is
transportation or transmission and not gain or profit.

Intercourse
It means the movement of goods from one place to another. It includes both
commercial and non-commercial movements and dealings. It would include
travel and all forms of dealing with others. However, it is argued that the
freedom guaranteed in Article 301 does not reach out to intercourse in its
broadest meaning. There are two reasons for this. First of all, the word
“intercourse” is used in juxtaposition with the words ‘trade and commerce’ and
hence this word here will mean “commercial-intercourse” and not purposeless
motion. The second reason being that though Article 301 imposes a limitation
on the power of Legislature and Parliament (provided to them under Article
245 and 246) but the word intercourse is not included as a subject of legislation
under the Seventh Schedule (as the words trade and commerce have been) and
so the word intercourse can not be implied to have the widest of the meaning
when used here.

The use of the word ‘free’ in Article 301 does not mean freedom from laws and
rules governing the country. There is a clear distinction between the laws
obstructing freedom and laws containing rules and regulations for the proper
conduction of trade activities in a smooth and easy manner.

Activities which are not trade

Article 301 gives the freedom of trade, commerce, and intercourse but there are
certain activities which may be covered under the ambit of the trade, commerce
or intercourse activities but are not protected by the freedom guaranteed under
Article 301 of the Indian Constitution.

Illegal activities, like lottery and gambling, can be an example. The bar on these
illegal activities was upheld by the Supreme Court in the case of State of Bombay
v. R.M.D. Chamarbaugwala (1957). In this case, it was held that all activities of
criminal nature or those activities which are undesirable would not be given any
protection under Article 301. Some examples of such activities can be clicking
obscene pictures for money, trafficking of women and children, hiring goondas
or terrorists, etc. Though the forms, methods, and procedures of trade may be
applied these activities are extra-commercium (not subject to private ownership or
acquisition), and thus are not covered under Article 301. Inter-relation between
Article 301 and Article 19(1)(g)

• Article 301 under Part XIII empowers the free flow of the stream of trade
throughout the country whereas Article 19(1)(g) under Part III provides
the freedom to practice any occupation, trade or business in the interest
of the general public. The right under Article 301 is constitutional and
 can be claimed by anyone. The right under Article 19(1)(g) is fundamental
and can be claimed only by citizens. Thus, this aspect of limitation of
Article 19 is dealt with under Article 301 which gives the right to both
citizens and non-citizens to move the court if their right has been
infringed.
• Article 19(1)(g) contains restrictions to the freedom of carrying an
occupation or trade while Article 301 is accompanied by Article 302-307
which lay down the restrictions to the free flow of trade in the country.
However, the restrictions specified in Article 302-307 should have
indirect results and should not directly reduce the freedom laid down in
Article 19(1)(g). Article 301 is thus considered an explanatory provision
to Article 19(1)(g) and also has a more limited scope than Article 19(1)(g)
because it is only concerned about the flow of goods and services.
• It is also often argued that Article 301 is the right available for trade as a
whole whereas Article 19(1)(g) is the right for individuals. However, this
is not true. Article 301 is derived fromSection 92 of the Australian
Constitution and hence this right is available to individuals as well.
• Thus both of them can be said to be interrelated in some aspects. They
also can be seen as interrelated concepts at the time of emergency. At the
time of emergency, rights under Article 19(1)(g) are suspended. At that
time the court looks forward to the rights provided under Article 301 to
check whether any violation has occurred or not

Restrictions to trade and commerce

Parliament’s power to regulate trade and commerce in the public interest
Article 302 gives power to the Parliament to impose restrictions on the freedom
of trade, commerce or intercourse carried on within a state or across states
anywhere in the territory of India. These restrictions can solely be imposed
taking into due consideration the interests of the public. The power to decide
whether something is in the interest of the public or not is solely given to the
Parliament. It can be seen as in the case of Surajmal Roopchand and Co v/s the
State of Rajasthan (1967)were under the Defence of India Rules, in the interest
of the general public, restrictions were imposed on the movement of grain.

States power to regulate trade and commerce

The power of the Parliament in Article 302 is kept in check by Article 303.
Article 303(1) states that the Parliament does not have the power to make any
law which will keep one State at a more preferable position than the other State,
by virtue of any entry in trade and commerce in any one of the lists in 7th
Schedule. However, Clause (2) states that the Parliament can do so if it is
proclaimed by law that it is essential to make such provisions or regulations, as
there is indeed a scarcity of goods in some parts of the country. The power to
decide whether there is a scarcity of goods in some parts of the territory or not
is vested in the hands of the Parliament.

Article 304(a) further says that the State should impose taxes on any goods
transported/imported from other States if alike goods are taxed in the State too.
It is done so that there is no discrimination between goods produced within the
State and goods imported from some other states. In the case of State of Madhya
Pradesh v/s Bhailal Bhai,(1964) the State of Madhya Pradesh imposed taxes on
imported tobacco which was not even subject to tax in the very own State i.e
State of Madhya Pradesh. The Court disapproved of the tax statement that it
was discriminatory in nature.

Restrictions on trade, commerce, and intercourse among States

Clause (2) of Article 304 guides the States to impose certain reasonable
restrictions on the freedom of trade, commerce, and intercourse as may suit the
public interest. But no Bill or Amendment for such shall be put forward in the
State Legislature without the prior approval of the President. A law passed by
the State to regulate interstate trade must thus fulfill the following conditions-

• An approval from the President must be taken beforehand,

• The restriction must be sensible and rational,
 • It must be in the interests of the public.

These conditions make it clear that the Parliament’s power to regulate trade and
commerce is superior to the State’s power.

Saving of Existing Laws

Article 305 of the Indian constitution saves already formed laws and laws
providing for State monopolies. Article 305 can only do so until the President is
not ordering something opposite to it or otherwise to the law already formed.
In Saghir Ahmad v/s The State of UP,(1954), the Supreme Court raised the query
that whether an Act that provides for State monopoly in a specific trade or
commerce would be held violative of the Constitution of India under Article 301.

Article 19(1)(g) was amended by the First Constitutional Amendment taking

out such activities from the purview of Article 19(1)(g). And now after the
Constitution’s 4th Amendment, already formed laws and laws made hereafter
for State monopoly in trade, are immune from attack on the ground of violation
of Articles 301 & 304.

Appointment of authority for carrying out the purposes of Articles 301 to

304
Article 307 under Part XIII permits the Parliament to designate such authority
as it deems fit for carrying out the provisions laid down in Articles 301, 302, 303
and 304. The Parliament can also bestow such authorities with functions and
powers as it feels are required.

Landmark Judgments
Atiabari Tea Co. vs the State of Assam (1961)
Facts
In this case of Atiabari Tea Co.Ltd. v/s the State of Assam, Assam Taxation Act
levies a tax on goods transmitted through Inland Waterways and road. The
petitioner in the present case carried on the business of transporting tea to
Calcutta (now Kolkata) via Assam. Now while passing through Assam for the
purpose of transportation to Calcutta, the tea was liable to tax under the said
Act.

Issues
The rationality of The Assam Taxation Act of 1954 was questioned on the
grounds that:

• whether it is violative of Article 301 or not?

• whether it could be protected by making it fall under the ambit of Article
304 (b) or not?

Judgment
The Supreme Court said that the disputed law undeniably levied a tax that
directly and immediately infringed the movement of goods and therefore it
comes under the purview of Article 301. The Supreme Court further clarified
that these taxes can only be levied after fulfilling the conditions of Article 304(b)
which states that the sanction by the President is required before any State
enacts such a law. In this case, the requirements of Article 304(b) were also not
fulfilled. Freedom assured under Article 301 would become non-existent or
imaginary if transmission of goods is obstructed without meeting the criteria
set out by Article 302 to Article 304 of the Constitution.

Automobile Transport Ltd. vs State of Rajasthan (1963)

Facts
In The Automobile Transport Ltd. v/s State of Rajasthan, case, State of Rajasthan
imposed an annual tax on motor vehicles (Rs 60 on a motor vehicle and Rs 2000
on a goods vehicle).

Issue
The appellant challenged the validity of the tax levied under Article 301. Now
whether the tax levied was constitutionality correct or not had to be checked.
Judgment
It was held by the court that in the present case the tax imposed is valid as it is
only a regulatory measure or a compensatory tax for the facilitation of the
smooth running of trade, commerce, and intercourse. The Court commented
that the taxes are the sole key for a state, in order to preserve the financial health
of the state at large. The concept of “Compensatory or Regulatory Taxes” has
evolved to ensure that the state will levy such taxes that are set as an objective
in the form of compensation, that is, for the public interest as well as for
regulatory purposes if necessary. They would be used within the state. If the
same is challenged in the Court as being an infringement or as being violative
of the freedom under Article 301 then that would not be considered as an
infringement and such a measure or tax does not even need the validation of the
provisions under Article 304(b).

OR

Write a short note on legislative relationship between the center and

states.

Marks:06

Ans:
Articles 245 to 255 in Part XI of the Constitution deal with the legislative
relations between the Centre and the states. Besides these, there are some other
articles dealing with the same subject.

Like any other Federal Constitution, the Indian Constitution also divides the
legislative powers between the Centre and the states with respect to both the
territory and the subjects of legislation. Further, the Constitution provides for
the parliamentary legislation in the state field under five extraordinary
situations as well as the centre’s control over state legislation in certain cases.
Thus, there are four aspects in the Centre-states legislative relations, viz.,

• Territorial extent of Central and state legislation;

• Distribution of legislative subjects;

• Parliamentary legislation in the state field; and

• Centre’s control over state legislation.

1. Territorial Extent of Central and State Legislation

The Constitution defines the territorial limits of the legislative powers vested in
the Centre and the states in the following way:

(i) The Parliament can make laws for the whole or any part of the territory
of India. The territory of India includes the states, the union territories, and any
other area for the time being included in the territory of India.

(ii) A state legislature can make laws for the whole or any part of the state.
The laws made by a state legislature are not applicable outside the state, except
when there is a sufficient nexus between the state and the object.

(iii) The Parliament alone can make ‘extraterritorial legislation’. Thus, the
laws of the Parliament are also applicable to the Indian citizens and their
property in any part of the world.

However, the Constitution places certain restrictions on the plenary territorial

jurisdiction of the Parliament. In other words, the laws of Parliament are not
applicable in the following areas:

(i) The President can make regulations for the peace, progress and good
government of the five Union Territories– the Andaman and Nicobar
Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and
Ladakh. A regulation so made has the same force and effect as an act of
Parliament. It may also repeal or amend any act of Parliament in relation
to these union territories.

(ii) The governor is empowered to direct that an act of Parliament does not
apply to a scheduled area in the state or apply with specified modifications
and exceptions.

(iii) The Governor of Assam may likewise direct that an act of

Parliament does not apply to a tribal area (autonomous district) in the state or
apply with specified modifications and exceptions. The President enjoys the
same power with respect to tribal areas (autonomous districts) in Meghalaya,
Tripura and Mizoram.

2. Distribution of Legislative Subjects

The Constitution provides for a three-fold distribution of legislative subjects

between the Centre and the states, viz., List-I (the Union List), List-II (the State
List) and List-III (the Concurrent List) in the Seventh Schedule:

(i) The Parliament has exclusive powers to make laws with respect to any of
the matters enumerated in the Union List. This list has at present 98 subjects
(originally 97 subjects) like defence, banking, foreign affairs, currency, atomic
energy, insurance, communication, inter-state trade and commerce, census,
audit and so on.

(ii) The state legislature has “in normal circumstances” exclusive powers to
make laws with respect to any of the matters enumerated in the State List. This
has at present 59 subjects

(originally 66 subjects) like public order, police, public health and sanitation,
agriculture, prisons, local government, fisheries, markets, theaters, gambling
and so on.

(iii) Both, the Parliament and state legislature can make laws with respect to
any of the matters enumerated in the Concurrent List. This list has at present
52 subjects (originally 47 subjects) like criminal law and procedure, civil
procedure, marriage and divorce, population control and family planning,
electricity, labour welfare, economic and social planning, drugs, newspapers,
books and printing press, and others. The 42nd Amendment Act of 1976
transferred five subjects to Concurrent List from State List, that is, (a)
education, (b) forests, (c) weights and measures, (d) protection of wild animals
and birds, and (e) administration of justice; constitution and organisation of all
courts except the Supreme Court and the high courts.
(iv) Parliament has power to make laws with respect to any matter for any
part of the territory of India not included in a state even though that matter is
one which is enumerated in the State List. This provision has reference to the
Union Territories or the Acquired Territories (if any).

(v) The 101st Amendment Act of 2016 has made a special provision with
respect to goods and services tax. Accordingly, the Parliament and the state
legislature have power to make laws with respect to goods and services tax
imposed by the Union or by the State. Further, the parliament has exclusive
power to make laws with respect to goods and services tax where the supply of
goods or services or both takes place in the course of inter-state trade or
commerce.

(vi) The power to make laws with respect to residuary subjects (i.e., the
matters which are not enumerated in any of the three lists) is vested in the
Parliament. This residuary power of legislation includes the power to levy
residuary taxes.

From the above scheme, it is clear that the matters of national importance and
the matters which require uniformity of legislation nationwide are included in
the Union List. The matters of regional and local importance and the matters
which permit diversity of interest are specified in the State List. The matters on
which uniformity of legislation throughout the country is desirable but not
essential are enumerated in the concurrent list. Thus, it permits diversity along
with uniformity.

In US, only the powers of the Federal Government are enumerated in the
Constitution and the residuary powers are left to the states. The Australian
Constitution followed the American pattern of single enumeration of powers. In
Canada, on the other hand, there is a double enumeration– Federal and
Provincial, and the residuary powers are vested in the Centre.

The Government of India Act of 1935 provided for a three-fold enumeration,

viz., federal, provincial and concurrent. The present Constitution follows the
scheme of this act but with one difference, that is, under this act, the residuary
powers were given neither to the federal legislature nor to the provincial
legislature but to the governor- general of India. In this respect, India follows
the Canadian precedent.

The Constitution expressly secures the predominance of the Union List over the
State List and the Concurrent List and that of the Concurrent List over the State
List. Thus, in case of overlapping between the Union List and the State List, the
former should prevail. In case of overlapping between the Union List and the
Concurrent List, it is again the former which should prevail. Where there is a
conflict between the Concurrent List and the State List, it is the former that
should prevail.

In case of a conflict between the Central law and the state law on a subject
enumerated in the Concurrent List, the Central law prevails over the state law.
But, there is an exception. If the state law has been reserved for the consideration
of the president and has received his assent, then the state law prevails in that
state. But, it would still be competent for the Parliament to override such a law
by subsequently making a law on the same matter.

In the case of Kartar Singh V State of Punjab , the court held that parliament
may combine its power with the residual power under article 248 under entry in
the union list or competition list. Also in case of UOI V H.S Dhillion it was held
that gift tax act , inquiry act commissions, etc are valid under the parliament
residuary power.

Q.No.2.a) Explain the powers and functions of President of India.

Ans: Article 52 of the constitution says that there shall be a President of India.
He is the head of the state. The Executive power of the union, Article 53 says,
shall be President. In accordance with the constitution either directly or through
officers subordinate to him.

Qualifications:- Article 58 lays down the qualifications which a person must

possess for being elected to the office of the President of India;

1. He must be a citizen of India.

2. He must have completed the age of 35 years.

3. He must be qualified for election as a member of the House of the People.

4. He must not hold any office of profit under the Government of India, or the
Government of any state or under any local or other authority subject to the
control of any of the said Governments.

POWERS AND FUNCTIONS OF THE PRESIDENT:

Democracy is a basic feature of the constitution. The executive power of the

Union shall be vested in the President. He should exercise his powers according
to the provisions of the constitution. Our President is not too strong and not
too week. The framers of the constitution placed him in a unique position. The
powers given to the President are not negligible. Under certain circumstances,
the President becomes more powerful, that too subject to the provisions of the
constitution. The various powers are given to the President of India. The powers
of the President can be classified under the following heads:

Executive Power:
The constitution has conferred extensive executive powers on the President.
The executive power of the Union of India is vested in him. He is the head of the
Indian Republic. All executive functions are executed in the name of the
President. He has the power to appoint the Prime Minister and on his advice
other Ministers are appointed, the judges of the Supreme Court, and the High
Courts, the Governors of the states, the Attorney- General, the comptroller and
Auditor- General, the Chairman and Members of the Public Service
Commission, the Members of the Finance Commission and Official
Commissions, Special officer for Scheduled Castes and Scheduled Tribes. The
above mentioned officials holds their office during the pleasure of the President.
This means that he has the power to remove them from their post. This power
is, however, to be exercised subject to the procedure prescribed by the
constitution.

Military Power:
The President is the Supreme Commander of the Defence Forces of the Country.
He has power to declare war and peace. However, the exercise of these powers
by the President is “regulated by law”. The Parliament is empowered to regulate
or control the exercise of the military powers by the President. the military
power of the Presidents is thus subordinate to his executive power which is
exercisable by him on the advice of the Cabinet.

Legislative Power:
The President of India is a competent part of the Union Parliament. In theory
he possesses extensive legislative powers. He has power to summon and
prorogue the Parliament and he can dissolve the Lok Sabha. The legislative
powers of President are in accordance with the aid and advice of Council of
Ministers. The Bill shall have to be passed in both the Houses with Majority.
The Bill comes into Law after the President gives his assent. The President shall
give the “Opening Address” of both Houses of Parliament assembled together
at the first session after each general election to the House of the People and
also at commencement of each year. The President has to lay before the
Parliament the Annual Finance Budget, the report of Auditor General, the
recommendations of the Finance Commission, Report of the UPSC etc.

Diplomatic Powers:
As the head of the Country, the President sends and receives Ambassadors, and
other diplomatic representatives. All treaties and international agreements are
negotiated and concluded in the name of the President though subject to
ratification by Parliament.

Judicial Power:
The President has the power to appoint the Chief justice of Supreme Court and
High Courts and also to appoint other judges of Supreme Court and the High
Courts. Under Article 72 President has power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence. The object of conferring judicial
on the President is to correct the judicial errors, for no human system of judicial
administration can be free from imperfections.

In Maru Ram v/s Union of India, it has been held that in exercising the
pardoning power the object and the spirit of section 433- A of Cr.P.C. must be
kept in view. The power to pardon is exercised by the President on the advice
of the Council of Ministers.

In Sher Singh v/s State of Punjab, the Supreme Court in this case held that
the mercy petition must be disposed of within a period of three months from the
date of its receipt. Long delay is also unjustice.

Emergency Power:

Articles 352-360 of the Constitutions empowers the President with enormous

emergency powers. The emergencies envisaged under the Constitution are of
three kinds: (1) emergency arising out of war, external aggression or armed
rebellion, (2) emergency due to failure of Constitutional machinery in the State,
and (3) financial emergency.

OR

Discuss the composition, power and function of Parliament

10 MARKS

Ans: INTRODUCTION: The Parliament is the legislative organ of the Union

Government. It occupies a pre-imminent and central position in the Indian
democratic political system due to adoption of Parliamentary form of
government. Part-V Articles 79 to 122 deals with the organization, composition,
duration, officers, procedures, privileges, powers and so on of the Parliament.
COMPOSITION OF TWO HOUSES: Under the Constitution, the
Parliament of India consists of three parts viz, the President. the Council of
States and the House of the People. In 1954, the Hindi names “Rajya Sabha" and
‘Lok Sabha’ were adopted by the Council of States and the House of People
respectively. The Rajya Sabha is the Upper House (Second Chamber or House
of Elders) and the Lok Sabha is the Lower House (First Chamber or Popular
House). The former represents the States and Union territories of the Indian
Union, while the latter represents the people of India as a whole.
Though the President of India is not a member ofeither House of Parliament
and does not sit in the Parliament to attend its meetings, he is an integral part
of Parliament. because a bill passed by the both the House of Parliament cannot
become a law without the assent of the President.
a) Composition of Rajya Sabha:
The maximum strength of the Rajya Sabha is fixed at 250, out of which, 238 are
to representative of the States and Union territories, elected indirectly and 12
are nominated the President. The Fourth Schedule of the Constitution deals
with the allocation ofseats in Rajya Sabha to the States and Union tenitories.
i. Representation of States:
The representative of States in the Rajya Sabha are elected by the elected
members State legislative assemblies. The election is held in accordance with
the System proportional representation by means of the single transferable vote.
The seats are allotted to the States in the Rajya Sabha on the basis of population.
Hence, the number of representatives varies from the State to State.
ii. Representation of Union Territories:
The representatives of each Union territory in the Rajya Sabha are indirectly
elected members of an electoral college specially constituted for the purpose.
This election is also held in accordance with the system of proportional
representation by means of the Single transferable vote. Out of the nine Union
territories only three (Delhi, Puduchery and Jammu and Kashmir) have
representation in Rajya Sabha.
iii. Nominated Members:.
The President nominates 12 members to the Rajya Sabha from people who have
special knowledge or practical experience in art, literature, science and social
service. The rationale behind this principle of nomination is to provide eminent
persons a place in the Rajya Sabha without going through the process of
election.
b) Composition of Lok Sabha:
The maximum strength of the Lok Sabha is hxed at 552. Out of this, 530
members are to be the representatives of the States, 20 members ,are to be the
representatives of the Union Territories and 2 members are to be nominated by
the President from the Anglo-Indian community.
At present, the Lok Sabha has 545 members. Of these, 530 members represent
the States. 13 members represent the Union territories and 2 Anglo-Indian
members are nominated by the President.
i) Representation of States:
The representatives of States in the Lok Sabha are directly elected by the people
from the territories constituencies in the States. The election is based on the
principle of universal adult franchise. Every Indian citizen who is above 18 years
of age and who is not disqualified under the provisions of the Constitution or
any' law is eligible to vote at
such election.

ii) Representation of Union Territories:

The Constitution has empowered the Parliament to prescribe the manner of
choosing the representatives of the Union territories in the Lok Sabha.
iii) Nominated Members:-
The President can nominate two members from the Anglo-Indian community if
the community is not adequately represented in the Lok Sabha.
3) DURATION OF TWO HOUSES:
a. Duration of Rajya Sabha:
The Rajya Sabha (first constituted in 1952) is a continuing chamber, that is, it is
a permanent body and not subject to dissolution. However one-third of its
members retire every Second year. Their seats are filled up by fresh elections
and presidential nominations at the beginning ofevery third year. The retiring
members are eligible for re-election and nomination any number of times.
The Constitution has no fixed the term of office of members of the Rajya Sabha
and left it to the Parliament. Accordingly, the Parliament in the Representation
of the People Act (1951) provided that the term of office of a member of the
Rajya Sabha shall be six years. The act also empowered the President of India
to curtail the term of members chosen in the first Rajya Sabha. In the first batch,
it was decided by lottery as to who should retire. Further, the act also authorized
the President to make provisions to govern the order of retirement of the
members ofthe Rajya Sabha.
b. Duration of Lok Sabha:
Unlike the Rajya Sabha, the Lok Sabha is not a continuing chamber. Its normal
term is five years from the date of its first meeting after the general elections,
after which it automatically dissolves. However, the President is authorized to
dissolve the Lok Sabha at any time even before the completion of five years and
this cannot be challenged in a court of law.

Further, the term of the Lok Sabha can be extended during the period of national
emergency be a law of Parliament for one year at a time for any length of time.
However, this extension cannot continue beyond a period of six months after
the emergency has ceased to operate.

4) QUALIFICATION FOR MEMBERSHIP OF PARLIAMENT:

The Constitution lays down the following qualifications for a person to be

chosen a member of the Parliament.
i) He must be a citizen of India.

ii) He must make and subscribe to an oath or affirmation before the person
authorized by the election commission for this purpose. In his oath or
affirmation, he swears.
a) To bear true faith and allegiance to the Constitution of India.
b) To uphold the sovereignty and integrity of India.

iii) He must be not less than 30 years of age in the case of the Rajya Sabha and
not less than 25 years of age in the case of the Lok Sabha.

iv) He must posse other qualifications prescribed by Parliament The Parliament

has laid down the following additional qualifications in the Representation
ofPeOpIe Act, 1951 .

a) He must be registered as an elector for a parliamentary constituency. This

is same in the case of both, the Rajya Sabha and the Lok Sabha. The
requirement that a candidate contesting an election to the Rajya Sabha
tiom a particular State should be an elector in that particular States was
 dispensed with in 2003. In 2006, the Supreme Court upheld the
constitutional validity of this change.

b) He must he a member of a Scheduled Caste or Scheduled Tribe in any State

or Union territory. if he wants to contest a seat reserved for them. However.
a member of Schedule Castes or Schedule Tribes can also contest a seat not
reserved for them.
5) VACATING OF SEATS:

In the following cases. a member of Parliament vacates his seat.

a) Double Membership:

A person cannot be a member of both Houses of Parliament at the same time.

Thus, Representation of People Act, 1951 provides for the following:-

i. If a person is elected to both the Houses of Parliament, he must intimate

within 10 days in which House he desires to serve. In default of such
intimation, his seat in the Rajya Sabha becomes vacant.

ii. If a sitting member of one House is also elected to the other House, his
seat in the fus‘ House becomes vacant.

iii. If a person so elected to two seats in a House, he should exercise his option
for One, Otherwise, both seats become vacant.

Similarly, a person cannot be a member of both the Parliament and the State
legislature
at the same time. If a person is so elected, his seat in Parliament becomes
vacant if he does not resign his seat in the State legislature within 14 days.

b) Disqualifications:-
 If a member of Parliament becomes subject to any of the disqualification
specified in the Constitution, his seat becomes vacant. Here, the list of
disqualification also include the disqualification on the grounds of defection
under the provisions of the Tenth Schedule of the Constitution.
c) Resignation:-A member may resign his seat by writing to the Chairman of
Rajya Sabha or Speaker of Lok Sabha, as the case may be. The seat falls vacant
when the resignation is accepted. However, the Chairman/Speaker may not
accept the resignation if he is satisfied that it is not voluntary or genuine.
d) Absence:A House can declare the seat of a member vacant if he is absent from
all its meetings for a period of sixty days without its permission,in computing
the period of sixty days, no account shall be taken of any period during which
the House is prorogued or adj ourried for more than four consecutive days.
e) Other Cases:
A member has to vacant his seat in the Parliament:
i) if his election is declared void by the Court.
ii) if he is expelled by the House.

iii) if he is elected to the office of President or Vice-President and

iv) if he is appointed to the office of Governor of a State.
If a disqualified person is elected to the Parliament, the Constitution lays down
no procedure to declare the election void. This matter is dealt by the
Representation of the People Act, 1951, which enables the High Court to declare
an election void if a disqualified candidate is elected. The aggrieved party can
appeal to the Supreme Court against the order of the High Court in this regard.
6) OATH OR AFFIRMATION-Every member of either House of Parliament,
before taking his seat in the House, has to make and subscribe to an oath or
affirmation before the President or some person appointed by him for this
purpose. In his oath or affirmation, a member of Parliament swears:
a) to bear true faith and allegiance to the Constitution of India.
b) to uphold the sovereignty and integrity of India and
c) to faithfully discharge the duty upon which he is about to enter.

Unless a member takes the oath, he cannot vote and participate in the
proceedings of the House and does not become eligible to parliamentary
privileges and immunities.
A person is liable to a penalty of Rs. 500/for each day he sits or votes as a
member in a House in the following conditions:
i) Before taking and subscribing to the prescribed oath or affirmation or
ii) When he knows that he is not qualified or that he is disqualified for its
membership or
iii) When he knows that he is prohibited from sitting or voting in the House of
virtue of any parliamentary law.
7) SALARIES AND ALLOWANCES:
Members of either House of Parliament are entitled to receive such salaries and
allowances as may be determined by Parliament, and there is no provision of
pension in the Constitution. However, Parliament has provided pension to the
members.
The salaries and allowances of the Speaker and Deputy Speaker of Lok Sabha
and the Chairman and Deputy Chairman of Rajya Sabha are also determined by
Parliament. They are charged on the Consolidated Fund of India and thus are
not subject to the annual vote of Parliament.
From 1976, the members are also entitled to a pension on a graduated scale for
each five-year term as members of either House of Parliament. Besides, they are
provided with travelling facilities, free accommodation, telephone, vehicle
advance, medical facilities and so on.
8) CONCLUSION
Parliament of India is bicameral. The lower House is designated as ‘House of
People’ or ‘Lok Sabha’ and the upper House as ‘Council of States’ or ‘Rajya
Sabha’. The two houses alongwith the President constitute Parliament and all
these three organs are essential to the process of legislation by the Parliament.
The two houses of Parliament in India differ from each other in many respects.
They are constituted on entirely different principles. The Parliament of India is
Sovereign authority to which the power to legislate is delegated by the
Constitution We have adopted Parliamentary system of Government consisting
of two Houses. The procedure of making law is given in detail in the
Constitution. The power to make law of Parliament is not absolute but Article
13(2) make it clear that State cannot make any law which violates Fundamental
Rights.
2.Q.No.b)Write a short note on collective responsibility
ANS:Collective Ministerial Responsibility in the crux of any Parliamentary
form of government. The principle of collective responsibility represents
ministerial accountability to the legislature of the country. In India, the concept
of collective responsibility exists. The Union Executive is collectively
responsible to the House of the People and the State Executive is collective
responsibility to the Legislative Assembly. This is specifically enshrined in the
Constitution under Article 75(3).
It can be interpreted to mean that the Government must maintain a majority in
the Lok Sabha, the House of People as a condition of its survival. The entire
object of Collective responsibility is to make all the people holding ministerial
office collectively, or in the legal language “vicariously responsible for such acts
of the others as are referable to their collective violation so that, even if an
individual may not be personally responsible for it, yet, he will be deemed to
share the responsibility with those who may have actually committed some
wrong.”
The collective responsibility under Article 75 of the Constitution of India has
two meanings: (I) All members of Government are unanimously in support of
the policies made by that government,
(II) The ministers, are personally and morally responsible for the success and
failure of all the policies.
Collective responsibility of the cabinet refers to the accepted conduct of
Government Ministers as part of the cabinet. Ministers are bound to support
publicly the decisions made by the Cabinet as a whole and will show no
disagreement with any decision made by the particular government outside the
cabinet room. This concept has evolved to ensure cabinet’s unity and party
discipline and showing that the government stands firmly behind the policies it
promotes and seeks to pass through the parliament. The principle of collective
responsibility secures the unity of the Cabinet and the Council of Ministers.
Prime Minister Nehru took occasion to expound the principle as follows in the
context of State Governments,
OR
Write a short note on the position of Prime minister
Ans: Position of the Prime Minister:
(a) The office of PM is very powerful:
A study of the powers and functions of the Prime Minister clearly brings out the
fact that he holds the most powerful office in the Indian. He exercises real and
formidable powers in all spheres of governmental activity—executive,
legislative and financial. The Prime Minister is the captain of the ship of state,
the key stone of cabinet arch, the steering wheel of government, and the moon
amongst lesser stars.
The whole organisation and working of the Council of Ministers depend upon
the Prime Minister. The President always acts in accordance with the advice of
the Prime Minister. The ministry-making is the sole right of the Prime Minister.
The resignation or removal of the Prime Minister always means the resignation
of the Council of Ministers. Hence, Prime Minister is the centre of gravity and
the foundation stone of the Council of Ministers.
(b) The President of India always acts upon the advice of the PM:
The President always acts upon the advice of the Prime Minister. The
constitution assigns to the latter the role of being the chief advisor to the
President. All the powers of the President, both the normal powers and the
emergency powers, are really the powers of the Prime Minister.
As the head of the government, leader of the Cabinet, leader of the majority,
leader of the Parliament and the leader of the nation, the Prime Minister plays
an important an powerful role in the Indian Political System. Indeed the Prime
Minister occupies a very powerful rather the most powerful position in India.
(c) The PM cannot become a dictator:
Undoubtedly, the Prime Minister of India enjoys a very strong position, yet he
can neither be a dictator nor even behave like a dictator. His office is a
democratic office to which he rises only through an effective participation in the
democratic process.
The party to which the Prime Minister belongs, his own ministerial colleagues
who are also his competitors, the leaders of the opposition parties, the President
of India, the Parliament, the Press, the Constitution, and the public in general,
all act as limitations upon him. These prevent him from becoming a dictator and
from acting in an arbitrary way. His personality and skills are continuously on
test. Any failure or lapse can cause his exit.
The office of the Prime Minister of India is a powerful democratic office. Its
actual working depends upon the personal qualities and political status of the
person who holds this office. However no one can convert his office into an
authoritarian or dictatorial office. A person can remain Prime Minister only so
long as he follows democratic norms and values.
Q.No.3.a) Discuss the composition , power and functions of state
legislature
VI of the Constitution deals with the State Legislature. In this article, we will
discuss this part of the Indian Constitution in detail. Here we will discuss the
unicameral and bicameral legislature. The creation and abolition of these Houses
of the State Legislature. The qualification of a person to be a member of the State
Legislature. Ultimately, we will discuss Articles 168 to 212 of the Indian
Constitution. It is quite complex to understand the working and procedure of
work in State Legislature but after going through the Constitution of India it
becomes easier for one to understand it.
Bicameral and Unicameral Legislature
Before discussing what is a bicameral and unicameral legislature, let us first
discuss what is the legislature. The legislature is the law-making body of the
State. It is first among the three organs of the state. It can make laws as well as
administers the government. As mentioned in Article 168 of the Indian
Constitution, a state can have a unicameral legislature (It should be Legislative
Assembly) as well as a bicameral legislature (Legislative Council and Legislative
Assembly). According to Article 168 of the Indian Constitution, there shall be
legislature in every State and it shall consist of the Governor.

Unicameral Legislature
Unicameral legislature refers to having only one legislative chamber which
performs all the functions like enacting laws, passing a budget, and discussing
matters of national and international importance. It is predominant in the world
as most countries have a unicameral legislature. It is an effective form of the
legislature as the law-making process becomes easier and reduces the possibility
of obstacle in lawmaking process. Another advantage is that it is economically
feasible to maintain a single chamber of the legislature. It is the most prevailing
system in India as most of the States of India have a unicameral legislature. The
members of the unicameral legislature (Legislative Assembly) elected directly
by the citizens of the State.
Bicameral Legislature
By bicameral legislature, we refer to the State having two separate law-making
Houses to perform the functions like passing the budget and enacting laws. India
has a bicameral legislature at the Centre level while the State can make the
bicameral legislature. In India, only 7 States have a bicameral legislature. It may
be seen that a bicameral legislature may not be as effective as a unicameral
legislature. However, it works as a barricade in some cases as it somehow makes
the law-making process more complex.

Abolition or Creation of Legislative Councils

In our country, the Legislative Council (also known as Vidhan Parishad) is the
Upper House of a bicameral legislature. The creation of which is given in Article
169 of the Indian Constitution and can also be abolished according to Article
169 of the Constitution.

Article 168 mentions about the Legislative Council in some of the States of our
country. There is no rule of having a bicameral legislature in the State of India.
It is because our Constitution framers knew that it will not be possible for every
State to have a bicameral legislature ( due to financial or any other reason).

Article 169 talks about the creation or abolition of the Legislative Council. For
the creation or abolition of the Legislative Council, the Legislative Assembly
must pass a resolution that must be supported by more than 50% of the total
strength of the assembly. It must be supported by more than 2/3rd of the total
members present in voting. Therefore it talks about the absolute and special
majority. The resolution to create or to abolish the Legislative Council needs
the assent of the President as well.

Composition of the Houses

Article 170 of the Indian Constitution talks about the configuration of the
Legislative Assemblies. This Article simply put emphasis on what will be the
structure of the Legislative Assemblies in the state. On the other hand, the
configuration of the Legislative Council is given in Article 171 of the Indian
Constitution.

Legislative Assembly (Vidhan Sabha)

According to Article 170, there should be a Legislative Assembly in every State
of India. However, these assemblies should be according to the provisions
of Article 333 of the Indian Constitution. The Legislative Assembly of state can
have at most 500 constituencies and at least 60 constituencies. These
constituencies would be represented by the members who would be selected
through the process of direct election. However, the division of territorial
constituencies would be determined in such a manner that it becomes dependent
on the population of that constituency. Here by the term “ population” we mean
population which has been published in the precedent census. The composition
of the Legislative Assembly in any state can change according to the change in
the population of that state. It is determined by the census of population.
However, there are several exceptions to the composition of the Legislative
Assembly. Let’s take the example of Mizoram, Sikkim, and Goa which has less
than 60 constituencies.

The tenure or duration of the Legislative Assembly is mentioned in Article

172 of the Indian Constitution. The Legislative Assembly should work for a
time period of five years. Its tenure starts from the day of its first meeting.
However, it can be dissolved earlier by the special procedure established by the
law. However, there can be an extension in the tenure of the Legislative
Assembly. This can be done during the National Emergency. During the period
of the National Emergency, the Parliament can extend the tenure of the
Legislative Assembly for a period of maximum one year. Also, this extension
should not be more than six months after the proclamation has ceased to operate.
Legislative Council (Vidhan Parishad)
The composition of the Legislative Council is given in Article 171 of the Indian
Constitution. The total members in the Legislative Council should not exceed
one-third of the total members in the state Legislative Assembly. There is
another criteria for the composition of the Legislative Council. The member in
the Legislative Council should not be less than 40 in any case. There is an
exception in the composition of Vidhan Parishad. The Legislative Council of
Jammu and Kashmir has only 36 Member in Legislative Council, unlike the
other Legislative Council.

The composition of the Legislative Council can be further divided in the

following way:

• One-third of the members of the Legislative Council should be elected

from the district boards, municipalities and other local authorities which
is specified by the Parliament according to law.
• One-twelfth of its members shall be elected from the person who has been
residing in the same state for the time period of at least three years and
graduated from the university which is in the territory of India.
• One- twelfth of its total member should be elected from the person who
is engaged in the teaching profession for at least three years in the
educational institution of the state itself.
• One third should be elected by Legislative Assemblies and none of them
should be a member of the Legislative Assembly.
• The remainder of the members should be nominated by the Governor
according to the established law.

Qualifications of Membership
After this much of knowledge on both the Houses of Legislations, we can move
further on the next topic. Here we will discuss what are the qualifications that
one requires for being a member of the Legislative Assembly/Council.
The qualification of membership is given in Article 173 of the Indian
Constitution. For the membership or for filling a seat in the legislature of the
State, a person must be a citizen of India. A person will not be granted
membership if he/ she is not a citizen of that country. Also, the qualification of
the membership is somewhat similar to the qualification to the membership of
the center legislature. The member of the Legislative Assembly should be more
than 25 years. For being a member of the Legislative Council one should be
more than 30 years. Also, a necessary condition for being a member of
legislatures includes that he/she must be a voter from any of the constituencies
of the state.

Disqualifications of Membership
After being elected/ nominated as a member of the legislature, one can not be a
permanent member of the legislature. There are certain reasons mentioned in
the Constitution by which a person may be disqualified from his/her
membership to the Legislature. Article 191talks about the disqualification of the
members of the Legislature.

Disqualification of MLA/ MLC can be made on the following grounds:

1. If one holds the office of profit under the state or central government.
2. If one is of unsound mind and is declared so by the competent court.
3. If one is an undischarged insolvent.
4. If one is not a citizen of the country anymore or when he/ she voluntarily
took the citizenship of another country.
5. If one is disqualified by the law of the Parliament. Example- Anti defection
law.

Decisions on disqualifications
Article 192 of the Indian Constitution talks about the decision on the
disqualification of a member of the state legislature. If any question arises about
the disqualification of a member of the House of the legislature on any ground
mentioned in Article 191 in the Indian Constitution, then Article 192 comes into
play. Article 192 mentions that in such cases the decision about disqualification
would be determined by the Governor of that state and his/ her decision would
be final. However, the Governor needs to consult the Election Commission for
the same and he/she needs to act accordingly. Here, grounds of disqualification
would be the same as mentioned in Article 191.

Sessions of the State Legislature

Moving further on the next topic we will discuss the sessions of these State
Legislatures. Its time of prorogation and dissolution will also be discussed by us
here. Also, one thing is quite clear after a lot of analysis of State Legislature is
that the Legislative Assembly is somehow similar to the House of the People
(Lok Sabha) while the Legislative Council is similar to the Council of State
(Rajya Sabha). Their sessions are also quite similar. Article 174 of the Indian
Constitution gives the power to the Governor to summon these Houses of the
State Legislature. He/ She can summon these bodies to meet at places and at
such times which he/ she thinks fit or appropriate. But a necessary condition
should be kept in mind is that the time period between the two sessions of these
Houses should not exceed six months. Also as mentioned in Article 174 of the
Indian Constitution, the Governor has the power to prorogue either House and
to dissolve the Legislative Assembly.

Speaker and Deputy Speaker

There is a need for head or in charge of every legislative part. The Speaker and
Deputy Speaker serve the same purposes in the Legislative Assembly. Article
178 of the Indian Constitution talks about the same. According to this article,
there should be a Speaker and Deputy Speaker should be chosen from the
Legislative Assembly. In this, it is also mentioned that the condition where if
the office of Speaker and Deputy Speaker becomes vacant then it becomes the
duty of the Legislative Assembly to choose the new Speaker and Deputy Speaker
respectively.
Powers and Functions of Speaker
Article 178 gives the power to Speaker to preside over the sessions of the
Legislative Assembly of the state. Similar powers are given to the Speaker of the
Lok Sabha, as mentioned in Article 93 of the Indian Constitution. The power
and position of an Indian Speaker are quite similar to the Speaker of the House
of Commons in England.

The most important function of the Speaker is to preside over the sessions of the
Legislative Assembly and also to maintain discipline and order in the assembly.
Within the assembly, the Speaker is the master. He has the power to decide
whether the Bill is a Money Bill or not. Also, the decision of Speaker cannot be
challenged in a court of law. Money Bills are sent to the Legislative Council with
the approval of the Speaker. The salary of Speaker is given from the
Consolidated Fund of State.

The other functions/ powers of the Speaker are as follows:

• He/she does not participate in the debate of the assembly.

• Only votes when there is a condition of a tiebreak.
• He/She sees whether there is a necessary quorum.
• He has the power to adjourn or suspend the sitting of the Legislative
Assembly when there is not a necessary quorum and also to maintain the
discipline of House.
• He/She has the power to suspend or to expel the member for his/ her
unruly behaviour.

Chairman and Deputy Chairman of the Legislative Council: Article

182,183,184,185
The working of the Legislative Council is quite complex. The process of
membership, the appointment of its head and the power of the Legislative
Council is also quite difficult to understand. According to Article 182 of the
Indian Constitution, the Legislative Council must choose its two members as
Chairman and Deputy Chairman. It also mentions that the Legislative Council
must choose the Chairman and Deputy Chairman of the Legislative Council as
soon as their office becomes vacant.

The offices of Chairman and Deputy Chairman becomes vacant very often.
However, the reason for their removal/ resignation is mentioned in Article
183 of the constitution. The reasons are as follows:

1. Should not hold their post if they are not a member of the Legislative
Council.
2. By sending the written resignation letter to each other.
3. They can be removed by passing a resolution in the Council. However,
there should be a majority of members in support of this resolution. An
important point to be remembered while passing a resolution that a notice
of the intention of resolution should be given before 14 days.

Now imagine a condition when there is a vacancy in seat of Chairman of the

Legislative Council. Then, the question which would strike us would be related
to the replacement of his/ her place in the Legislative Council or who will look
after the working of the Legislative Council. The answer to the second part of
the question is given in Article 184 of the Indian Constitution. According to this
Article, the Deputy Chairman has the power to perform the duties and to act as
Chairman of the Legislative Council. According to Article 184, if there is a
vacancy in the office of Chairman then all duties of Chairman would be
performed by the Deputy Chairman and in case if the office of Deputy Chairman
is also vacant then the duties of Chairman would be performed by the person
appointed by the Governor.

Talking about Article 185 of the Indian Constitution, it puts certain restrictions
on Chairman or Vice-Chairman when their impeachment resolution is under
consideration. It simply tells that a Chairman or Vice-Chairman can not preside
the Council when the resolution for their impeachment is under consideration.
Here in this condition, Article 184 will be applied. Also, it is given in Article 185
that when such resolution is under consideration then the Chairman has all the
right to attend the proceedings of the Legislative Council and he/she will have
all the right to speak during such proceedings. Here, the Chairman has the right
to vote in the first instance of the proceedings but he/she will not be able to vote
in the condition of equality of votes.

Legislative Procedure: Article 196

The main purpose of Legislature is to make laws, pass a bill etc. To understand
the working of Legislature or Legislative Procedure let us first discuss the term
“Bill”. By Bill, we mean a draft of the legislative proposal. This bill after getting
assent from both the Houses of Legislature becomes an Act after getting assent
from the Governor. Article 196 of the Indian Constitution tells us about the
provisions of the introduction and passing of the Bill. Except for the Money Bill
and the Financial Bill ( procedure of passage of these bills are given in Article
198 and 207), the other bills can be introduced in either Houses of the
legislature. Any bill is said to be passed only when it got assent from both the
Houses of the legislature. Here both the Houses should agree on the amendment
made to the bill. A bill would not lapse when it is pending in the House and there
is the prorogation of that House. A bill pending in the Legislative Council of any
state which is not passed by the Legislative Assembly shall not lapse even on
the dissolution of the Legislative Assembly. Also, there is a condition mentioned
in Article 196 which states that if there is a bill pending in the assembly and at
that time the assembly dissolute, then the bill will also lapse ultimately. The bill
will also lapse if it is passed by the assembly and is pending by the Council.

Ordinary Bills
The provision or the procedure related to Ordinary Bill is discussed in Article
196 of the Indian Constitution. The main purpose of the State Legislature is law-
making as already being discussed in this article earlier. The legislature can
make laws on State List as well as on Concurrent List. Ordinary Bill can be
introduced in either of the Houses. The process given in Article 196 is applied
here and once it gets the sign from the Governor it becomes law. The Governor
has the power to issue ordinance when there is a need of any law and the
legislature is not in session.

Money Bills
A Money Bill is a bill that is concerned with government spending or taxation.
The procedure to pass a Money Bill is quite different from the Ordinary Bill. Its
procedure is given in Article 198 of the Indian Constitution. According to this
Article of the Constitution of India, the Money Bill can only be introduced in
the Lower House i.e. in Legislative Assembly. After the Money Bill is passed by
the Legislative Assembly and in that state, then this bill would be forwarded to
the Legislative Council for its recommendations. The same bill should be
returned to the assembly within fourteen days from the date of receiving the
bills. The assembly can either accept the recommendation or can deny any
recommendations according to the discretion of the assembly. The same bill is
then again sent to the Council and the Council has a time period of fourteen days
to pass the bill. In case the Legislative Council fails to do so, then it is deemed
to be passed by both the Houses.

Assent to Bills: Article 200

Till now we have seen how a Bill gets assent from Houses of the state legislature.
After this, Article 200 comes into play. As mentioned in Article 200, the bill after
getting assent of both Houses and is then sent to Governor. It then comes under
the discretion of the Governor whether to give assent or withhold his assent.
He/she can also reserve assent for the consideration of the President.

Here the Governor has to return this bill to the State Legislature as soon as
possible with the message of recommendation. Here again, these
recommendations can be either accepted or rejected by the legislature and once
again this bill is again sent to the Governor for his confirmation. Now he has
only two options left with him, he can either give assent to this bill or can reserve
it for further consideration from the President.
Bills reserved for President’s consideration: Article 201
The bill which is reserved for the consideration of the President should have
reasonable grounds for being reserved. Any bill can be reserved by the Governor
which he/ she thinks is against the law. The further procedure of this Bill is
given in Article 201 of the Indian Constitution. The Bill which is reserved for
the President for his/her consideration should either be given assent by
him/her. The President can also withhold his/her assent. The President then
directs the Governor to return the bill to the House/Houses of Legislature with
a message which was sent earlier by the Governor (according to Article 200 of
the constitution). This bill should be reconsidered by the State Legislature
within a period of six months. And again if the bill is passed by both Houses,
then it is again presented before the President for its consideration.

An example of the contradiction to this Article came in the case of K.P.

Kochanujan Thirumulpad vs State Of Kerala where a petition was filed and a
question was asked on the legality of a bill which was passed before any direction
came from the President during the period of reconsideration. Here the petition
was rejected and it was held that there are certain restrictions/ grounds on
which Article 201 does not apply.

Language to be used in the Legislation: Article 210

All the proceedings in the State Legislature like the law-making process should
be in the official language or in the language of the state or in Hindi or in
English. It is given in Article 210 of the Indian Constitution. Here, under the
special circumstances the Chairman or Deputy Chairman may allow the member
to use other languages (who cannot express himself/herself in any of the
languages as mentioned above in this article). Here, the role of language which
is to be used in the legislation becomes very vital. However, there is a provision
that determines that if the State Legislature does not make any law for using the
English language even after fifteen years, then the word English from Article
210 will get eliminated by itself.
Procedure in Financial Matters: Articles 202 to 207
The State Legislature of every state follows a special procedure in the matters
related to finance. These procedures are given in Article 202 to Article 207 of
the Indian Constitution. The procedure which is mentioned in these articles are
as follows:

1. Article 202 (Annual Financial Statement): It is the duty of the Governor

to lay down the estimated receipts and expenditure of the State for that
year. It is known as the Annual Financial Statement.
2. Article 203 (Procedure in the legislature related to estimates): The
estimates that relate to expenditure from the Consolidated Fund of a State
should not be submitted to a vote of the Legislative Assembly. But
nothing mentioned here should be construed as preventing the discussion
of the Legislatures that relates to those estimates. Demand for a grant can
be made only on the recommendation of the Governor.
3. Article 204 (Appropriation Bill): After making the grants under Article
203, the assembly shall introduce a bill that will provide for the
appropriation out of the Consolidated Fund of the State for the matters
related to money which is granted by the assembly.
4. Article 205 (Supplement, Additional or excess grants): In this Article, the
Governor can allow supplement grants (when the expenditure is more
than what was estimated) and he/ she has the power to extend the granted
money for any particular service.
5. Article 206 (Vote on Accounts, Votes of Credit or Exceptional Credits):
This Article talks about the power or authority of the Legislative
Assembly to grant in the given situation.
• In advance in respect of the estimated expenditure for a part of any
financial year pending the completion of the procedure given in
Article 203.
• To make a grant for meeting an unexpected demand upon the
resources of the State.
 • To make exceptional grants which are not a part of the current
financial year.
6. Article 207 (Special Provisions related to Financial Bills): Financial Bill
should not be introduced in the Legislative Council and without the
recommendation of the Governor.

General Rules of Procedure

It is important for every organ of the State to make certain rules and regulations
for its proper functioning. Similarly, there are some general rules of procedure
made for the smooth functioning of the State Legislature. These are given from
Article 208- Article 212 of the Indian Constitution. All the provisions under
these Articles are explained below:-

• Article 208– Houses of the State Legislature has the power to make rules
and regulations for its conduct, its procedure and the conduct of its
business.
• Article 209– Regulation by law of procedure in the Legislature of the
State in relation to financial business.
• Article 210– It talks about the language which is to be used in the
Legislature.
• Article 211– It is about the restriction of the topic on which there will be
no discussion in the Legislature.
• Article 212– This Article tells that Courts can not inquire into
proceedings of the Legislature.

Conclusion
In this article, we have discussed all the aspects of the State Legislature. One of
the loopholes is that it is not compulsory for the states to have Council and it
disturbs the uniformity in State Legislature of different States.. I think there
should be uniformity in the State Legislature system. But this can sometimes be
considered as the beauty of the Indian Constitution as it gives the chance to the
State Assembly to decide on the same issue. Part VI of our Constitution has
made it very clear about the functions, way of functions and the various power
given to the state legislature.

OR

Discuss the composition, power and function of the supreme court of

India.

Ans: Supreme court of India: Composition, Power and Functions

India is a federal State having a single and unified judicial system with a
three-tier structure, i.e., Supreme Court, High Courts and Subordinate
Courts. Read this article to find out about the Supreme Court of India, its
composition, power and functions.
I The Indian Constitution under Article 124(1) states that there shall be a
Supreme Court of India consisting of a Chief justice of India (CJI) and 34 judges,
including the CJI. The Jurisdiction of the Supreme Court of India can broadly
be categorised into original jurisdiction, appellate jurisdiction and advisory
jurisdiction.
Supreme Court of India
Supreme Court at the apex of the Indian Judiciary is the highest authority to
uphold the Constitution of India, to protect the rights and liberties of the
citizens, and to uphold the values of rule of law. Hence, it is known as
theGuardian of our Constitution.
The Indian Constitution provides for a provision of the Supreme Court under
Part V (The Union) and Chapter 6 titled 'The Union Judiciary'. The
Constitution of India has provided an independent judiciary with a hierarchical
setup containing High Courts and Subordinate Courts under it.

Composition of the Supreme Court

Article 124(1) and Amendment act of 2008 states that there shall be a
Supreme Court of India consisting of a Chief justice of India (CJI) and 34
judges including the CJI. Article 124(2) states that every judge of the Supreme
Court shall be appointed by the President of India by warrant under his hand
and seal after consultation with such of the judges of the Supreme Court and of
the High Courts in the states.
 Here, the collegium system(appointment of judges to the courts) was followed
which is also known as the three judges cases, which comprises of the Chief
Justice of India (CJI) and four senior-most judges of the SC, one Chief Justice of
the High Court and two of its senior-most judges. This system demanded a
consensus decision of all the senior-most judges in conformity with the Chief
Justice of India.

However, due to lack of transparency and delay in the appointment, a new article
124 A was incorporated in the constitution, under which the National Judiciary
Appointments Commission (NJAC) replaced the collegium system for the
appointment of judges as mandated in the existing pre-amended constitution by
a new system.

The NJAC consists of the following persons:

1. Chief Justice of India (chairperson)

2. Two senior-most Supreme Court judges

3. The Union Minister of Law and Justice

4. Two eminent persons nominated by a committee consisting of CJI, Prime

minister of India and the Leader of the Opposition.

Functions of the Commission are as follows:

• Recommending persons for CJI, judges of the Supreme Court, Chief Justice of
High court, Judges of High court
• Transfer of Chief justices and judges from one court to other
• Ensure persons recommended are of ability and integrity
Jurisdiction (Articles 141, 137)
Articles 137 to 141 of the Constitution of India lay down the composition and
jurisdiction of the Supreme Court of India. Article 141 states that Law declared
by Supreme Court is binding on all the courts in India and Article 137 empowers
Supreme Court to review its own judgment. The Jurisdiction of the Supreme
Court of India can broadly be categorised into three parts:

Original Jurisdiction- (Art 131)

 This jurisdiction extends to cases originating in the Supreme Court only and
states that the Supreme Court of India has original and exclusive jurisdiction in
cases between:

• The government on one hand and one or more states on the other
• Government and one or more states on one side and other states on the other
• Two or more states
Appellate Jurisdiction- (Art 132,133,134)
The appeal lies with the Supreme Court against the High court in the following
4 categories:

1. Constitutional matters- If the High court certifies that the case involves a
substantial question of law that needs interpretation of the constitution.

2. Civil matters- If the case involves a substantial question of law of general

importance.

3. The criminal matters- If the High court has on appeal reversed the order of
acquittal of an accused and sentenced him to death or has withdrawn for trial
before itself any case from subordinate court.

4. Special leave to appeal is granted by SC if it is satisfied that the case does not
involve any question of law. However, it cannot be passed in case of the
judgment passed by a court or tribunal of armed forces.

However, under this jurisdiction, the Supreme Court can transfer to itself cases
from one or more high courts if it involves the question of law in the interest of
justice.

Advisory Jurisdiction (Art 143)

Article 143 authorises the President of India to seek an advisory opinion from
the Supreme Court in the two categories of matters:

(a) matters of public importance

(b) of any question arising out of pre-constitution, treaty, agreement,

engagement, Sanad or other similar instruments.
Also, Article 144 states that all authorities civil and judicial in the territory of
India shall act in aid of the Supreme Court.

Powers of the Supreme Court

1. Power to punish for contempt (civil or criminal) of court with simple
imprisonment for 6 months or fine up to Rs. 2000. Civil contempt means wilful
disobedience to any judgment. Criminal contempt means doing any act which
lowers the authority of the court or causing interference in judicial proceedings.
2. Judicial review to examine the constitutionality of legislative enactments
and executive orders. The grounds of review is limited by Parliamentary
legislation or rules made by the Supreme Court.
3. Deciding authority regarding the election of President and Vice President.
4. Enquiring authority in the conduct and behaviour of UPSC members.
5. Withdraw cases pending before High Courts and dispose of them
themselves.
6. Appointment of ad hoc judges- Article 127 states that if at any time there
is a lack of quorum of Judges of Supreme Court, the CJI may with the previous
consent of the President and Chief Justice of High Court, concerning request in
writing the attendance of Judge of High Court duly qualified to be appointed as
Judge of the Supreme Court.
7. Appointment of retired judges of the Supreme Court or High Court -
Article 128 states that the CJI at any time with the previous consent of the
President and the person to be so appointed can appoint any person who had
previously held the office of a Judge of SC.
8. Appointment of acting Chief Justice- Article 126 states that when the
office of CJI is vacant or when the Chief Justice is by reason of absence or
otherwise unable to perform duties of the office, the President in such case can
appoint Judge of the court to discharge the duties of the office.
9. Revisory Jurisdiction- The Supreme Court under Article 137 is empowered
to review any judgment or order made by it with a view to removing any mistake
or error that might have crept in the judgement or order.
10. Supreme Court as a Court of Record- The Supreme Court is a court of
record as its decisions are of evidentiary value and cannot be questioned in any
court.
Removal of Supreme Court Judge:
A judge of the Supreme Court can be removed only from the office by the
President of India on the basis of a resolution passed by both the Houses of
Parliament (Lok Sabha and Rajya Sabha) with a majority of the total
membership and a majority of not less than two-thirds of the members present
and voting in each House, on the grounds of proved misbehaviour or incapacity
of the judge in question.

Hence, a democratic country like India needs a judiciary because democratic

values tend to lose their prominence without proper checks and balance.

Q.No.3b) Write a short note on anti- defection law

ANS:Our legislatures made an amendment in the year 1985 and passed a law
called “Anti-defection law” which added a new schedule to our Constitution, i.e.,
Schedule X.
Schedule X of our Constitution provides for Anti-defection law,which is as
follows:-

·Disqualification on ground of defection.—(1) Subject to the provisions of

[Paragraphs 4 and 5], a member of a House belonging to any political party
shall be disqualified from being a member of the House—
(a) if he has voluntarily given up his membership of such political party ; or

(b) if he votes or abstains from voting in such House contrary to any direction
issued by the political party to which he belongs or by any person or authority
authorised by it in this behalf, without obtaining, in either case, the prior
permission of such political party, person or authority and such voting or
abstention has not been condoned by such political party, person or authority
within fifteen days from the date of such voting or abstention.

·Decision on questions as to disqualification on ground of defection.- (1) If any

question arises as to whether a member of a House has become subject to
disqualification under this Schedule , the question shall be referred for the
decision of the Chairman or , as the case may be , the Speaker of such House and
his decision shall be final:
Provided that where the question which has arisen is as to whether the
Chairman or the Speaker of a House has become subject to such disqualification,
the question shall be referred for the decision of such member of the House as
the House may elect in this behalf and his decision shall be final.

·Bar of jurisdiction of courts.—notwithstanding anything in this Constitution,

no court shall have any jurisdiction in respect of any matter connected with the
disqualification of a member of a House under this Schedule.
The Chairman or the Speaker of a House may, without prejudice to the
provisions of Article 105 or, as the case may be, Article 194, and to any other
power which he may have under this Constitution direct that any willful
contravention by any person of the rules made under this paragraph may be
dealt with in the same manner as a breach of privilege of the House.

Q.No.4.a) Discuss the Establishment, Composition and Powers and

Functions of Election Commission of India.

Introduction:

Preamble of our Constitution declares India to be a Democratic Republic.

Democracy is the basic features of the Indian Constitution. Democracy is
sustained by free and fair elections. Only free and fair elections to the various
legislative bodies in the country can guarantee the growth of a democratic
polity. It is the cherished privilege of a citizen to participate in the processes
which place persons in the seats of power. India has been characterised as a
biggest democracy in the world because of the colossal nature of the elections
held in the Country. At a general elections, an electorate of millions goes to the
polls to elect members for the Lok Sabha. The Legislative Assemblies and the
Legislatures of the Union Territories. Free and fair election has been held to be
a basic feature of the Constitution

Establishment of Election Commission:

In order to ensure free, fair and impartial elections, the Constitution

establishes the Election Commission, a body autonomous in character and
insulated from political pressures or executive influence. Care has been taken to
ensure that the commission functions as an independent agency free from
external pressures from the party in power. Part-XV, Articles 324 to 329 of the
Constitution deals with provisions relating to Establishment, Composition,
Powers and Functions of Election Commission of India.

According to Article 324 (1) the election commission was constituted for
purpose of superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and Vice-
President held under this Constitution shall be vested in a Commission (referred
to in this Constitution as the Election Commission).

Composition of Election Commission:

According to Article 324 (2), The Election Commission shall consist of the Chief
Election Commissioner and such number of other Election Commissioners, if
any, as the President may from time to time fix and the appointment of the Chief
Election Commissioner and other Election Commissioners shall, subject to the
provisions of any law made in that behalf by Parliament, be made by the
President.
As per Article 324 (3) says that When any other Election Commissioner is so
appointed the Chief Election Commissioner shall act as the Chairman of the
Election Commission.
According to Article 324 (4), Before each general election to the House of the
People and to the Legislative Assembly of each State, and before the first general
election and thereafter before each biennial election to the Legislative Council
of each State having such Council, the President may also appoint after
consultation with the Election Commission such Regional Commissioners as he
may consider necessary to assist the Election Commission in the performance of
the functions conferred on the Commission by clause (1).
Tenure & Safeguard: Article 324 (5)

Every Election Commissioner has a term of six years from the date he/she
assumes office or till he attains the age of 65 years (whichever is earlier).
The Chief Election commissioner cannot be removed from his office, except in a
like manner and on like grounds as a judge of the Supreme Court. All the three
members are entitled to the same salary and other facilities, as are provided to a
judge of the Supreme Court.
Powers and Functions of Election Commission:

The election commission plays a pivotal role in the electoral mechanism of the
Country. The Election Commission primarily exercises administrative functions
but it also has some adjudicative and legislative functions as well.
Article 324 (1) assigns the following powers and functions of Election
Commission:

The Superintendence, direction and control rolls for all elections to

Parliament, State Legislatures, Offices of the President and Vice-
President;
Conduct of all these elections.
Prepare, revise and maintain the voter’s list.
Delimitation of Constituencies.
Advises the President and Governor regarding electoral matters
Determine criteria for recognizing political parties
Settle election disputes.
Election Commission has the power to review its decision as to the
expediency of holding the poll on a particular date.
When there is no law or rule made under the law, the Commission may
pass any order in respect of the conduct of elections.

OR
Explain the contractual Liability of the State with reference to
constitutional provisions.

Ans: Introduction:-
The subject of government contracts has assumed great importance in the
modern times. Today the state is a source of wealth. In the modern era of a
welfare state, government's economic activities are expanding and the
government is increasing.
Today a large number of individuals and business organizations enjoy
largess in the form of government contracts, licenses, quotas, mineral rights,
jobs, etc. This raises the possibility of exercise of power by a government to
dispense largess in an arbitrary manner. It is axiomatic that the government or
any of its agencies ought not to be allowed to act arbitrarily and confer benefits
on whomsoever they want.
Therefore there is a necessity to develop some norms to regulate and
protect the individual interest and at the same time to create working
environment to exercise the discretion of the Government to extend the
contractual benefits to the other parties to the contract.
Contract - Meaning of the term
A contract is an agreement enforceable by law which offers personal rights, and
imposes personal obligations, which the law protects and enforces against the
parties to the agreement. The general law of contract is based on the conception,
which the parties have, by an agreement, created legal rights and obligations,
which are purely personal in their nature and are only enforceable by action
against the party in default.
Section 2(h) of the Indian Contract Act, 1872 defines a contract as "An
agreement enforceable by law". The word 'agreement' has been defined in
Section 2(e) of the Act as ‘every promise and every set of promises, forming
consideration for each other’
Government Contract A contract to which the Central Government or
a State Government is a party is called a 'Government Contract'.
The Indian Contract Act, 1872 does not prescribe any form for entering
into contracts. A contract may be oral or in writing. It may be expressed or be
implied from the circumstances of the case and the conduct of the parties.But the
position is different in respect of Government Contracts. A contract entered into
by or with the Central or State Government has to fulfill certain formalities as
prescribed by Article 299 of the Indian Constitution.

In the case of State of Bihar v Majeed

The Hon'ble Supreme court has held 30 Section 2(h) of the Indian Contract Act,
1872 defines a contract as "An agreement enforceable by law".
The word 'agreement' has been defined in Section 2(e) of the Act as ‘every
promise and every set of promises, forming consideration for each other’
Government Contract:-
A contract to which the Central Government or a State Government is a party
is called a 'Government Contract'.
The Indian Contract Act, 1872 does not prescribe any form for entering
into contracts. A contract may be oral or in writing. It may be expressed or be
implied from the circumstances of the case and the conduct of the parties.

But the position is different in respect of Government Contracts. A

contract entered into by or with the Central or State Government has to fulfill
certain formalities as prescribed by Article 299 of the Indian Constitution.
'Contracts' and 'Government contracts' It is true that in respect of
Government Contracts the provisions of Article 299(1) must be complied with,
but that does not mean that the provisions of the Indian Contract Act have been
superceded.

In the case of State of Bihar v Majeed,

the Hon'ble Supreme court has held that;

"It may be noted that like other contracts, a Government Contract is also
governed by the Indian Contract Act, yet it is distinct a thing apart. In addition
to the requirements of the Indian Contract Act such as offer, acceptance and
consideration, a Government Contract has to be complied with the provisions
of Article 299.

Thus subject to the formalities prescribed by Article 299 the contractual liability
of the Central or State Government is the same as that of any individual under
the ordinary law of contract."
As regards the interpretation of contract, there is no distinction between the
contracts to which one of the parties is the Government and between the two
private parties.

Article 299 provides:-

All contracts made in the exercise of executive power of the union or a

state shall be expressed to be made by the President or by the Governor of the
State as the case may be, and all such contracts and all assurances of property
made in the exercise of that power shall be executed on behalf of the President
or the Governor by such person and in such manner as he may direct or
authorize.
2. Neither the President nor the Governor shall be personally liable in
respect of any contract or assurance made or executed for the purpose of any
enactment relating to Government of India hereto before in force , nor shall any
such contract or assurance on behalf of any of them be personally liable in
respect thereof".
Thus Article 299 lays down three conditions which the contracts made in
the exercise of the executive power of the Center or a State must fulfill to be
valid –
a. The contract must be expressed to be made by the president or the
Governor as the case may be;

In Union of India v. SSH Syndicate, AIR 1976 SC 879.

It is observed that the contract with the Government will not be binding if it is
not expressed to be made in the name of the President or the Governor, as the
case may be.
b. These contracts made in the exercise of the executive power are to be
executed on behalf of the President/Governor as the case may be; and
In Union of India V. N.K.Ltd(AIR 1972 SC 915)
The Director was authorized to execute contract on behalf of the president, but
the contract was entered into by the secretary. The contract was declared invalid
as it was entered by an officer who was not authorized for this purpose.
c) The execution must be by such person and in such manner as the
President or the Governor of the case as the case may be, may direct or
authorize.
It has been held by the Hon'ble Supreme Court in the case of
 BhikarajJaipuriavs Union of India
"it is clear from the words "expressed to be made" and "executed" that
there must be a formal written contract…The provisions of Article 299(1) are
mandatory in character and any contravention thereof nullifies the contract and
makes it void.
The provisions of Article 299(1) have not been enacted for the sake of mere form
but they have been enacted for safeguarding the Government against the
unauthorized contracts. The provisions are embodied in the constitution on the
ground of public policy on the ground of protection of general public and these
formalities cannot be waived or dispensed with."
Where a contract is made by tender and acceptance, the acceptance must be
made by a duly authorized person and on behalf of the President, and a valid
contract may result from correspondence.
Implied Contract with the Government
In view of Article 299(1) there can be no implied contract between the
government and another person, the reason being that if such implied contracts
between the government and another person were allowed, they would in effect
make Article 299(1) useless, for then a person who had a contract with the
government which was not executed at all in the manner provided under Article
299(1) could get away by saying that an implied contract may be inferred on the
facts and the circumstances of the particular case.
It was held by the Hon'ble Supreme Court in the case of

K.P.CHOWDHARY VS STATE OF MADHYA PRADESH

"In view of the provisions of Article 299(1) there is no scope for any implied
contract. Thus no contract can be implied under this Article.if the contract
between the Government and a person is not incompliance with Article 299(1),
it would be no contract at all and would not be enforceable as a contract either
by the Government or by the person."
CONCLUSION
The reason for enacting Article 299 of the constitution of India is that in order
to bind a government there should be a specific procedure enabling the agents
of the government to make contracts.
The Public funds cannot be placed in jeopardy by the contracts made by
unspecified public servants without express sanction of the law.
It is a provision made to save the state from spurious claims made on the
strength of unauthorized contracts.
Q.No.4b) Write a short note on public service commission
Ans:The Union Public Service Commission (UPSC) is the Central recruiting
agency in India. It is an independent constitutional body in the sense that it has
been directly created by the Constitution. Articles 315 to 323 in Part XIV of the
Constitution contain elaborate provisions regarding the composition,
appointment and removal of members along with the independence, powers and
functions of the UPSC.

2) COMPOSITION:

The UPSC consists of a Chairman and other members appointed by the

President of India. The Constitution, without specifying the strength of the
Commission has left the matter to the discretion of the President, who
determines its composition. Usually, the Commission consists of nine to eleven
members including the chairman. Further, to qualifications are prescribed for
the Commission’s membership except that one-half of the members of the
Commission should be such persons who have held office for at least ten years
either under the Government of India or under Government of State. The
Constitution also authorizes the President to determine the conditions of service
of the chairman and other members of the Commission.

The chairman and members of the Commission hold office for a term of six years
or until they attain the age of 65 years, whichever is earlier. However, they can
relinquish their offices at any time by addressing their resignation to the
President. They can also be removed before the expiry of their tenn by the
President in the manner as provided in the Constitution.
Write a short note on Administrative Tribunal
Ans: Administrative Tribunals for service matter [Article 323A]
Article 323A provides the establishment of administrative tribunals by law made
by Parliament for the adjudication of disputes and complaints related to the
recruitment and conditions of service of Government servants under the Central
Government and the State Government. It includes the employees of any local
or other authority within the territory of India or under the control of the
Government of India or of a corporation owned or controlled by the
Government.
The establishment of such tribunals must be at the centre and state level
separately for each state or for two or more states. The law must incorporate
the provisions for the jurisdiction, power and authority to be exercised by
tribunals; the procedure to be followed by tribunals; the exclusion of the
jurisdiction of all other courts except the Supreme Court of India.
Tribunals for other matters [Article 323B]
Article 323B empowers the Parliament and the State Legislature to establish
tribunals for the adjudication of any dispute or complaint with respect to the
matters specified under clause (2) of Article 323B. Some of the matters given
under clause (2) are a levy, assessment, collection and enforcement of any tax;
foreign exchange and export; industrial and labour disputes; production,
procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers
of such tribunals and lays down the procedure to be followed.
In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached
various conclusions as to jurisdictional powers of the tribunal constituted under
Articles 323A and 323B. The Supreme Court struck down clause 2(d) of Article
323A and clause 3(d) of Article 323B on the ground that they excluded the
jurisdiction of the High Courts and the Supreme Court under Article 226/227
and 32 respectively.
The SC ruled that the tribunals created under Article 323A and 323B would
continue to be the courts of the first instance in their respective areas for which
they are constituted. The litigants are not allowed to approach the High Courts
directly by overlooking the jurisdiction of the concerned tribunal.
No appeal for the decision of the tribunal would lie directly before the Supreme
Court under Article 136 but instead, the aggrieved party would be entitled to
move the High Court under Article 226 and 227 and after the decision of the
Division Bench of the High Court, the party may approach the Apex Court
under Article 136.
Q.No.5.a) Examine the power of the Parliament to amend the constitution
referring to decided cases.

Amendment to the Constitution is very necessary from time to time to overcome

the difficulties which may encounter in future in the working of the Constitution.
If no provision were made for the amendment of the Constitution, the people
would have recourse to extra constitutional method like revolution to change
the Constitution. A Federal Constitution is generally rigid in character as the
procedure of amendment is unduly complicated. The procedure of amendment
in USA, Australia, Canada and Switzerland is very difficult. Our Constitution is,
not too rigid, not too flexible. Article 368 of our Constitution empowers the
Parliament to amend the Constitution.

Power of the Parliament to Amend the Constitution:

For the purpose of amending the constitution the power has been given to the
Parliament under Article 368. The Constitution amendment is divided into
three categories:
1. Amendment by Simple Majority:
Articles that can be amended by Parliament by simple majority as that
required for passing of any ordinary law. The amendments contemplated
in Articles 5, 169 and 239-A, can be made by simple majority. These
Articles are specially excluded from the purview of the procedure
prescribed in Article 368.
2. Amendment by Special Majority:
Articles of the Constitutional which can be amended by special majority
as laid down in Article 368. All constitutional amendments, other than
those referred to above, come within this category and must be effected
 by a majority of the total membership of each House of Parliament as well
as by a majority of not less than 2/3 of the members of that House present
and voting.
3. By Special Majority and Ratification by States:
Article which require, in addition to the special majority mentioned above,
ratification by not less then ½ of the State Legislatures. The States are
given an important voice in the amendment of these matters. These are
fundamental matters where States have important power under the
Constitution and any unilateral amendment by parliament may vitally
affect the fundamental basis of the system built up by the constitution.
This class of Articles consist of amendments which seek to make any
change in the provisions mentioned in Article 368. The following
provisions require such ratification by the States;
a) Election of the President
b) Extent of the Executive powers of the Union and States.
c) Articles dealing with judiciary, Supreme Court, High Court in the
States and Union territories
d) Distribution of Legislative powers between the Centre and the state
e) Any of the Lists of the VIIth Schedule.
f) Article 368 itself.
Procedure for Amendment:

A Bill to amend the Constitution may be introduced in either House of

Parliament. It must be passed by each House by a majority of the total
membership to that House and by a majority of not less than 2/3 of the members
of that House present and voting. When a Bill is passed by both Houses it shall
be presented to the President for his assent who shall give his assent to Bill and
thereupon the Constitution shall stand amended. But a Bill which seeks to
amend the provisions mentioned in Article 368 requires in addition to the special
majority mentioned above the ratification by the ½ of the States.
Some of the leading decided cases relating to Amendment to the
Constitution:

1. In Shankari Prasad v/s Union of India.

This is the first case-law challenging the validity of amending power of
the Parliament. The Parliament made the first amendment by which it
inserted Article-31-A and 31-B in the constitution. The petitioner filed a
writ petition and challenged the validity of the amendment arguing that
the amendment to the constitution would take away the fundamental
right guaranteed under Part-III.
Judgement: the Supreme Court did not agree the arguments of the
petitioner and held that the parliament had the power to amend the
Constitution.
2. In Sajjan Singh v/s State of Rajasthan.
The parliament brought the Constitution (17th amendment) Act, 1964.
The petitioner challenged it. The Supreme Court held that the Parliament
had the power to amend the Constitution.
3. In Golaknath v/s State of Punjab.
The Supreme Court by a majority overruled its earlier decision in
shankari Prasad’s and sajjan singh cases and held that Parliament had no
power from the date of this decision to amend the Part III of the
Constitution so as to take away or abridge the fundamental rights.
OR
Discuss the concept of emergency, types and its effect on the fundamental
rights.

Emergency provision is a unique feature of Indian Constitution that allows the

Centre to assume wide powers so as to handle special situations. In emergency,
the Centre can take full legislative and executive control of any state.
Emergency provision also allows the Centre to curtail or suspend freedom of
the citizens. Existence of emergency provision in the Constitution is a big reason
why academicians are hesitant to call Indian Constitution as fully federal.

The Indian Constitution provides for three different kinds of abnormal

situations which call for a departure from the normal governmental
machinery setup by the Constitution:
a. An emergency due to war, an external aggression or armed rebellion [Article
352]. It is also known as National Emergency.
b. Failure of constitutional machinery in states [Article 356]. Also known as
Presidential Rule.
c. Financial Emergency [Article 360].

Part XVIII of the Constitution permits the state to suspend various civil
liberties and the application of certain federal principles during presidential
proclaimed states of emergency.

Emergency provision falls within the Article 352 to Article 360 of the Indian
Constitution.
1. National emergency (Article 352)
2. State emergency (Article 356)
3. Financial emergency (Article 360)

NATIONALEMERGENCY
The provision for National Emergency is provided for under the Article 352 of
the Constitution. The national emergency deals with constitutional provisions
to be applied, whenever there is an extraordinary situation that may threaten
the peace, security, stability and governance of the country or a part thereof.

Article 352 says that if the President is 'satisfied' that a grave emergency exists
whereby the security of India or any part of it is threatened due to outside
aggression or armed rebellion, he may make a proclamation to that effect
regarding whole of India or a part thereof. However, sub clause (3) says that
President can make such a proclamation only upon the written advice of the
Union Cabinet. Such a proclamation must be placed before each house of the
parliament and must be approved by each house within one month of the
declaration of the proclamation otherwise it will expire.

It should be noted herein, that in explanation to Article 352 it has is provided

that for proclamation of emergency, it is not necessary that external aggression
or armed rebellion has actually happened. It can be proclaimed even if there is a
possibility of the happening of external aggression or armed rebellion.

In the case of Minerva Mills vs Union of India it has been held that there is no
bar to judicial review of the validity of the proclamation of emergency issued by
the president under Article 352(1). However, court's power is limited only to
examining whether the limitations conferred by the Constitution have been
observed or not. It can check if the satisfaction of the president is valid or not.
If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no
satisfaction at all.
Procedure of proclaiming emergency

A proclamation can be made by the president of the country, but there are some
provision for that too. The President can declare such an emergency only if the
Cabinet recommends in writing to do so. Such a proclamation of emergency has
to be approved by both the Houses of Parliament by absolute majority of the
total membership of the Houses, as well as 2/3rd majority of members present
and voting within one month, otherwise the proclamation ceases to operate.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency
or is not in session, it has to be approved by the Rajya Sabha within one month
and later on by the Lok Sabha, within one month of the start of its next session.
Once approved by the Parliament, the emergency remains in force for a period
of six months from the date of proclamation. In the case it is to be extended
beyond six months, another prior resolution has to be passed by the Parliament.
In this way, such emergency continues indefinitely.

Procedure of revoking emergency

If the situation improves the emergency can be revoked by the President of India
through another proclamation. The 44th Amendment of the Constitution
provides that ten per cent or more members of the Lok Sabha can make a
requisition for meeting of the Lok Sabha and in that meeting; it can disapprove
or revoke the emergency by a simple majority. In such a case emergency will
immediately become inoperative.

STATEEMERGENCY
It is the duty of the Union Government to ensure that governance of a State is
carried on in accordance with the provisions of the Constitution. Under Article
356, the President may issue a proclamation to impose emergency in a state if
he is satisfied on receipt of a report from the Governor of the State, or otherwise,
that a situation has arisen under which the Government of the State cannot be
carried on smoothly. In such a situation, proclamation of emergency by the
President is called ‘proclamation on account of the failure (or breakdown) of
constitutional machinery.’ In popular language it is called the President’s Rule.

Such an emergency can have the following effects:

a) the President can assume to himself all or any of the functions of the
government of the state other than the High Court,

b) declare that the powers of the legislature of the state shall be exercisable by
or under the authority of the Parliament, and
c) make provisions necessary or desirable for giving effect to the objects of the
proclamation.

The President is not, however, authorised to assume the powers of the High
Court, or to suspend any constitutional provision pertaining to it.
Procedure of Proclaiming State Emergency
Like National Emergency, such a proclamation must also be placed before both
the Houses of Parliament for its approval. In this case approval must be given
within two month; otherwise the proclamation ceases to operate. If during these
two months, the Lok Sabha is dissolved and the Rajya Sabha has approved it,
then, the proclamation shall cease to operate on expiration of thirty days from
the date on which the Lok Sabha first sits after its reconstitution, unless it is
approved by the Lok Sabha before the expiration of this period.

A proclamation so approved shall, unless revoked, cease to operate on the

expiration of a period of six months from the date of issue of the proclamation.
Unless revoked, its life can be extended by six months each, several times, but
in no case beyond three years. Thereafter, the President’s Rule must come to an
end, and the normal constitutional machinery must be restored in the State.

The 44th Amendment introduced a new provision to put restraint on the power
of Parliament to extent a proclamation issued under Article 356 beyond one
year.
Procedure of Revoking State Emergency
Any such Proclamation may be revoked or varied by a subsequent Proclamation.

A proclamation issued under Article 356(1) expires in any of the following

modes:
a) After two months of its making if it is not presented for approval before both
Houses of the Parliament [Article 356(3)].

b) Even before two months, if the proclamation on presentation to the Houses

of Parliament fails t get approval from any House [Article 356(3)].

c) After 6 months from the date of the proclamation, in case no further resolution
is passed by the House of Parliament after the passage of the initial resolution
approving the said proclamation [Article 356(4)].

d) After the expiry of 6 months from the passage of the last resolutions of
approval passed by the House of Parliament subject to an over-all maximum
limit of 3 years from the date of the proclamation. Continuance of the
proclamation beyond one year is subject to the fullfilment of the conditions laid
down in Article 356(5):

i) a National Emergency is already in operation; or if

ii) the Election Commission certifies that the election to the State Assembly
cannot be held.

e) The date on which the President issues a proclamation of revocation [Article

356(2)].
FINANCIAL EMERGENCY
The third type of Emergency is Financial Emergency provided under Article
360. It provides that if the President is satisfied that the financial stability or
credit of India or any of its part is in danger, he may declare a state of Financial
Emergency. Under such situation, the executive and legislative powers will go
to the centre. Like the other two types of emergencies, it has also to be approved
by the Parliament. It must be approved by both Houses of Parliament within
two months. Financial Emergency can operate as long as the situation demands
and may be revoked by a subsequent proclamation.

This Article has never been invoked.

A Proclamation issued under Art. 360—
(a) may be revoked or varied by a subsequent Proclamation
(b) shall be laid before each House of Parliament
(c) shall cease to operate at the expiration of two months, unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament.
Effect of Proclamation of Emergency
Effects of national emergency
The declaration of National Emergency effects both on the rights of individuals
and the autonomy of the states in the following manner:

1. The most significant effect is that the federal form of the Constitution changes
into unitary. The authority of the Centre increases and the Parliament assumes
the power to make laws for the entire country or any part thereof, even in respect
of subjects mentioned in the State List.

2. The President of India can issue directions to the states as to the manner in
which the executive power of the states is to be exercised.

3. During the emergency period, the Lok Sabha can extend tenure by a period
of 1 year at a time. But the same cannot be extended beyond 6 months after the
proclamation ceases to operate. The tenure of State Assemblies can also be
extended in the same manner.

4. During emergency, the President is empowered to modify the provisions

regarding distribution of revenues between the Union and the States.
5. The Fundamental Rights under Article 19 are automatically suspended and
this suspension continues till the end of the emergency.

But according to the 44th Amendment, Freedoms listed in Article 19 can be

suspended only in case of proclamation on the ground of war or external
aggression. From the above discussion, it becomes quite clear that emergency
not only suspends the autonomy of the States but also converts the federal
structure of India into a unitary one. Still it is considered necessary as it equips
the Union Government with vast powers to cope up with the abnormal
situations.

Effect of State Emergency

The declaration of emergency due to the breakdown of Constitutional
machinery in a State has the following effects:
1. The President can assume to himself all or any of the functions of the State
Government or he may vest all or any of those functions with the Governor or
any other executive authority.
2. The President may dissolve the State Legislative Assembly or put it under
suspension. He may authorise the Parliament to make laws on behalf of the State
Legislature.
3. The President can make any other incidental or consequential provision
necessary to give effect to the object of proclamation.
Effects of Financial Emergency
The proclamation of Financial Emergency may have the following
consequences:
1. The Union Government may give direction to any of the States regarding
financial matters.
2. The President may ask the States to reduce the salaries and allowances of all
or any class of persons in government service.
3. The President may ask the States to reserve all the money bills for the
consideration of the Parliament after they have been passed by the State
Legislature.
4. The President may also give directions for the reduction of salaries and
allowances of the Central Government employees including the Judges of the
Supreme Court and the High Courts.
Effects of Proclamation of Emergency on the Fundamental Rights
• Federal laws will overrule state legislation, and the Union is empowered to
govern areas (eg. Policing) that are normally devolved to the states.

• The Union is also empowered to take over and completely control the taxation
and budgetary revenue processes. Under financial emergency, the Union is
empowered to have the final say in the promulgation of financial acts approved
by the state legislature.

• The Union may decide to suspend some or all of the fundamental rights
guaranteed by Part III (Articles 12 through 35) of the constitution • Further,
the right to challenge the suspension of the above mentioned rights (the right
to constitutional remedies) may also be suspended. However, this provision will
not cover the suspension of Articles 20 and 21 which govern rights to personal
liberty, Right to silence, freedom from double jeopardy and freedom from
unlawful arrest and detention. Any individual who deems that his rights under
these categories have been suspended unlawfully, can challenge the suspensions
under a court of law.

• The Union may decide to dismiss the legislative functions of a state legislature
and impose federal law for a period of six months. This state of suspension may
be renewed at the end of this period under the vote of Parliament (indefinite
number of times) until such a time when the Election Commission of India can
certify the feasibility of holding free and fair elections in the state to reconstitute
the legislature.

• Any order to the above effects however, should be passed by the House of
Parliament "as soon may be after it is made".
Background
The proclamation of emergency is a very serious matter as it disturbs the normal
fabric of the Constitution and adversely affects the rights of the people. Such a
proclamation should, therefore, be issued only in exceptional circumstances and
not merely to keep an unpopular government from office. This happened in June
1975 when an emergency was declared on the ground of internal disturbance
without there being adequate justification for the same. The proclamation of
1975 was made on the ground of internal disturbance which proved to be the
most controversial because there was violation of fundamental rights of the
people on a large scale; drastic press censorship was imposed. A large number
of persons were put in preventive detention without justification. In the light of
these amendments have thus been made by the 44th amendment act to the
emergency provisions of the constitutions to make repetition of the 1975
situation extremely difficult, if not impossible.

The 44th Amendment

The 44th amendment substantially altered the emergency provisions of the
Constitution to ensure that it is not abused by the executive as done by Ms.
Indira Gandhi in 1975. It also restored certain changes that were done by 42nd
amendment. The following are important points of this amendment-

1. "Internal disturbance" was replaced by "armed rebellion" under art 352.

2. The decision of proclamation of emergency must be communicated by the

Cabinet in writing.
3. Proclamation of emergency must be by the houses within one month.

4. To continue emergency, it must be re-approved by the houses every six

month.

5. Emergency can be revoked by passing resolution to that effect by a simple

majority of the houses present and voting. 1/10 of the members of a house can
move such a resolution.

6. Article 358 provides that Article 19 will be suspended only upon war or
external aggression and not upon armed rebellion. Further, every such law that
transgresses Article 19 must recite that it is connected to Article 358. All other
laws can still be challenged if they violate Article 19.

7. Article 359, provides, suspension of the right to move courts for violation of
Part III will not include Articles 20 and 21.

8. Reversed back the term of Lok Sabha from 6 to 5 years.

A. Proclamation under Article 352
Article 352(1) provides that the president can make a proclamation of
emergency if he is ‘satisfied’ as to the existence of a threat to the security of
India, or any part thereof. Herein therefore the question has arisen from time to
time that whether this satisfaction of the President is justiciable or not.

The position on this matter is that in the case of Bhut Nath v. State of West
Bengal, the Supreme Court held that it is a political question and not a justiciable
issue. Also to make the position more clear on this matter the 38th Amendment
to the constitution added clause 5 to the Article 352 saying that the ‘satisfaction’
of the president as used in Article 352(1) and (3) is to mean “final and conclusive”
and “could not be challenged in any court of law”.
But later on after Indian democracy saw the abuse of these powers during the
emergency of the 1975, by the 44th Amendment later on the provision of Article
352(5) inserted by the 38th Amendment to the constitution was revoked.
Therefore the present position on this matter is that, it is upto the Supreme
Court to decide whether it will treat the ‘satisfaction’ of the president to issue a
proclamation of emergency, or to vary it or to continue it, as ‘final’ and ‘non-
justiciable’, or as being subject to judicial review on some grounds.

Also it is worth noting herein that Justice Bhagwati has observed in the case of
Minerva Mills that “whether the precedent n proclaiming the emergency under
Article 352 had applied his mind or whether he acted outside his powers or acted
mala fide in proclaiming the emergency could not be excluded form the scope of
judicial review.”
B. Proclamation under Article 356
The susceptibility of a Proclamation under Article 356 to judicial review is
beyond dispute, because the power under Article 356(1) is a conditional power.
In the exercise of the power of judicial review, the court is entitled to examine
whether the condition has been satisfied or not. So the controversy actually
revolves around the scope and reach of judicial review. From the decisions in the
case of State of Rajasthan v. Union of India and the Bommai case, it is clear that
there cannot be a uniform rule applicable to all cases it is bound to vary
depending upon the subject matter, nature of the right, and other factors.
However, where it is possible the existence of satisfaction can always be
challenged on the ground that it is ‘mala fides’ or ‘based on wholly extraneous
and irrelevant grounds’. The relevance of judicial review in matters involving
Article 356 is also emphasized in the Supreme Court judgment in re State of
Madhya Pradesh v. Bharat Singh, where the Supreme Court held that it was
not precluded from striking down a law passed prior to a Proclamation of
Emergency, as ultra vires to the Constitution, just because the Proclamation
was in force at that time.

Judicial review of the Proclamation under Article 356(1) was first tested in State
of Rajasthan v. Union of India, in which a seven member’s constitution bench of
the Supreme Court by a unanimous judgment rejected the petitioner petition
and upheld the centre’s action of dissolving three assemblies under Article 356
as constitutionally valid.

The Supreme Court, in the case of Minerva Mills and Others v. Union of India
and Others, dwelt extensively on its power to examine the validity of a
Proclamation of Emergency issued by the President. The Supreme Court in this
matter observed, inter alia, that it should not hesitate to perform its
constitutional duty merely because it involves considering political issues. At
the same time, it should restrict itself to examining whether the constitutional
requirements of Article 352 have been observed in the declaration of the
Proclamation and it should not go into the sufficiency of the facts and
circumstances of the presidential satisfaction in the existence of a situation of
emergency.

Thus we can safely conclude that, though limited, the Presidential Proclamation
under Article 356 is subject to judicial review. The most recent case which
decided the extent of judicial review of the Proclamation by the President
imposing ‘President’s Rule’ in the states and consolidated the legal position on
the subjective satisfaction of the President is S R Bommai v Union of India was
a landmark in the history of the Indian Constitution. It was in this case that the
Supreme Court boldly marked out the paradigm and limitations within which
Article 356 was to function. In the words of Soli Sorabjee, eminent jurist and
former Solicitor-General of India, “After the Supreme Court’s judgment in the
S. R. Bommai case, it is well settled that Article 356 is an extreme power and is
to be used as a last resort in cases where it is manifest that there is an impasse
and the constitutional machinery in a State has collapsed”.
Criticism of President’s Rule
The way President’s Rule was imposed on various occasions has raised many
questions. At times the situation really demanded it. But at other times,
President’s Rule was imposed purely on political grounds to topple the ministry
formed by a party different from the one at the Centre, even if that particular
party enjoyed majority in the Legislative Assembly. Suspending or dissolving
assemblies and not giving a chance to the other political parties to form
governments in states has been due to partisan consideration of the Union
Government, for which Article 356 has been clearly misused.

In view of the above facts, Article 356 has become very controversial. In spite of
the safeguards provided by the 44th Amendment Act, this provision has been
alleged to be misused by the Union Government. That is why; there is a demand
either for its deletion or making provision in the Constitution to restrict the
misuse of this Article. The Sarkaria Commission which was appointed to review
the Centre–State relations also recommended that Article 356 should be used
only as a last resort. The Commission also suggested that the State Legislative
Assembly should not be dissolved unless the proclamation is approved by the
Parliament. It further suggested that all possibilities of forming an alternative
government should be fully explored before the Centre imposes emergency in a
State on grounds of breakdown of Constitutional machinery. The Supreme
Court held in the Bommai case that the Assembly may not be dissolved till the
Proclamation is approved by the Parliament. On a few occasions such as when
Gujarat Government recommended use of Article 356 in Uttar Pradesh, the
President returned the recommendation for reconsideration. The Union
Government took the hint and dropped the proposal.

CONCLUSION
Having dealt with all the Emergency provisions, it is easy to see what the
purpose was behind to make such provisions in available in the Constitution in
the first place. But while we did our study for the same we did realise that even
if these provisions are provided for the security of the nation and also the
protection of the people, the provisions in themselves give a lot of drastic
discretionary powers in the hands of the Executive. It affects the federal
structure of the nation essentially turning it into a unitary one while it seeks to
safeguard the interests of the state and the people. Though the need for that is
understood, we still think a system of check and balance should be brought into
place so that unlike in the 1975 emergency, there is no misuse of power by the
ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be
justified we think that they are the most basic to the very existence of the
citizens in a democracy. As the experience has been so far we have observed in
our study that inspite of the safety measures that were added by the 44th
Amendment to the Constitution in the emergency provisions there is still
chances for the unjust violation of the fundamental rights. Therefore as there is
provision in the other federal constitutions such as of the Australia and Canada
the courts should be given the power to agree to the extent the Centre can
expand its powers, as it will act as a built-in mechanism to check the arbitrary
use of the discretionary powers available under the emergency provisions to the
parliament.

Q.No.5.a) Judicial Review as a part of the Basic Structure

Ans:In the celebrated case of Keshavanda Bharathi v. State of Kerela, the

Supreme Court of India the propounded the basic structure doctrine according
to which it said the legislature can amend the Constitution, but it should not
change the basic structure of the Constitution, The Judges made no attempt to
define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J
mentioned five basic features:
1. Supremacy of the Constitution. 2. Republican and democratic form of
Government. 3. Secular character of the Constitution. 4. Separation of powers
between the legislature, the executive and the judiciary. 5. Federal character of
the Constitution. He observed that these basic features are easily discernible not
only from the Preamble but also from the whole scheme of the Constitution. He
added that the structure was built on the basic foundation of dignity and freedom
of the individual which could not by any form of amendment be destroyed. It
was also observed in that case that the above are only illustrative and not
exhaustive of all the limitations on the power of amendment of the Constitution.
The Constitutional bench in Indira Nehru Gandhi v. Raj Narain held that
Judicial Review in election disputes was not a compulsion as it is not a part of
basic structure. In S.P. Sampath Kumar v. Union of India, P.N. Bhagwati, C.J.,
relying on Minerva Mills Ltd. declared that it was well settled that judicial
review was a basic and essential feature of the Constitution. If the power of
judicial review was absolutely taken away, the Constitution would cease to be
what it was. In Sampath Kumar the Court further declared that if a law made
under Article 323-A(1) were to exclude the jurisdiction of the High Court under
Articles 226 and 227 without setting up an effective alternative institutional
mechanism or arrangement for judicial review, it would be violative of the basic
structure and hence outside the constituent power of Parliament.

In Kihoto Hollohan v. Zachillhur another Constitution Bench, while examining

the validity of para 7 of the Tenth Schedule to the Constitution which excluded
judicial review of the decision of the Speaker/Chairman on the question of
disqualification of MLAs and MPs, observed that it was unnecessary to
pronounce on the contention whether judicial review is a basic feature of the
Constitution and para 7 of the Tenth Schedule violated such basic structure.

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger

Bench of seven Judges unequivocally declared:
"That the power of judicial review over legislative action vested in the High
Court’s under Article 226 and in the Supreme Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution, constituting
part of its basic structure".

Though one does not deny that power to review is very important, at the same
time one cannot also give an absolute power to review and by recognizing
judicial review as a part of basic feature of the constitution Courts in India have
given a different meaning to the theory of Checks and Balances this also meant
that it has buried the concept of separation of powers, where the judiciary will
give itself an unfettered jurisdiction to review any thing.
OR
Write a short note on the doctrine of Basic Structure.
Ans: The question whether fundamental rights can be amended under article
368 came for consideration in the Supreme Court in Shankari Prasad case.[3]
in this case validity of constitution (1st amendment) act, 1951 which inserted
inter alia , articles 31-A and 31-B of the constitution was challenged. The
amendment was challenged on the ground that it abridges the rights conferred
by part III and hence was void. The Supreme Court however rejected the above
argument and held that power to amend including the fundamental rights is
contained in Article 368and the same view was taken by court in Sajjan Singh
case.[4]
In Golak Nath case,[5]the validity of 17th Amendment which inserted certain
acts in Ninth Schedule was again challenged. The Supreme Court ruled the
parliament had no power to amend Part III of the constitution and overruled its
earlier decision in Shankari Prasad and Sajjan Singh case. In order to remove
difficulties created by the decision of SC in Golak Nath case parliament enacted
the 24th Amendment act.

The Supreme Court recognized BASIC STRUCTURE concept for the first time
in the historic Kesavananda Bharati[6] case in 1973. Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all
amendments made by parliament. In this case validity of the 25th Amendment
act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which
denied parliament the power to amend fundamental rights of the citizens. The
majority held that article 368 even before the 24th Amendment contained the
power as well as the procedure of amendment. The Supreme Court declared that
Article 368 did not enable Parliament to alter the basic structure or framework
of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the
'basic structure' or framework of the constitution. This decision is not just a
landmark in the evolution of constitutional law, but a turning point in
constitutional history.

Basic Features of the Constitution according to the Kesavanada verdict each

judge laid out separately, what he thought were the basic or essential features
of the Constitution.
Sikri, C.J. explained that the concept of basic structure included:
#Supremacy of the Constitution
# Republican and democratic form of government
# Secular character of the Constitution
# Separation of powers between the legislature, executive and the judiciary
# Federal character of the Constitution

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