Unit-II: Constitutional Organs

A. Parliament
1. Composition
2. Parliamentary Sovereignty
3. Parliamentary Privileges

B. Executive Power: Power of President and

Governor

C. Judiciary
1. Jurisdiction of Supreme Court and High
Courts
2. Independence of Judiciary
PARLIAMENT
 COMPOSITION OF PARLIAMENT

• Parliament is composed of: (Art. 79)

1. The President
2. Rajya Sabha
3. Lok Sabha

• The Parliament has two Houses- Rajya Sabha and

Lok Sabha. Rajya Sabha is upper House and
represents the States of India while the Lok Sabha
is lower House. It is also called popular House
because it represents the people of India.

• The President is an integral part of the Parliament

though he is not a member of the either House.
 LOK SABHA

Composition (Art. 81)- 552- {530 (States),

20 (UT), 2 (Anglo Indian community-
nominated by President)(Art. 331) (* 104th
Constitutional Amd.)}

Qualification (Art. 84): 25 years, citizen of

India

Tenure (Art. 83(2)): 5 years

Presided by: Speaker of Lok Sabha (Art. 93)

 RAJYA SABHA

Composition (Art. 80): 250- 238 (states,

UT), 12 (nominated by President)

Qualification: Citizen of India, 30 years

Tenure (Art. 83(1)): Every 2 years- 1/3 of

members retire

Presided by: Vice President is the ex-

officio chairman of Rajya Sabha. (Art. 89)
 Disqualifications of Members

Vacation of seat (Art. 101)

• No person can be a member of both Houses of Parliament.
• No person can be a member both of Parliament and a house of State legislature.
• Disqualification u/a 102.
• Resignation.
• Absent for 60 days.

Disqualification (Art. 102)

• Hold a office of profit under the Government

• Unsound mind
• Undischarged insolvent
• Not citizen of India
• Disqualified under any other law

• Disqualified under 10th schedule (Anti defection law)

• Decision on disqualification- taken by President (Art. 103)

Case law
• Jaya Bachan v. UOI (2006)
• Lily Thomas v. UOI (2013)
• Lok Prahari (through General Secretary SN Shukla) v. Election Commission of India
(2018)
 SPECIAL POWERS OF LOK SABHA

• Money Bill can be introduced only in Lok Sabha + special procedure for
passing it. (Art. 109).

SPECIAL POWERS OF RAJYA SABHA

• If the Council of States has declared by resolution supported by not less

than two-thirds of the members present and voting that it is necessary or
expedient in the national interest that Parliament should make laws with
respect to goods and services tax provided under article 246A or any matter
enumerated in the State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the territory of India
with respect to that matter while the resolution remains in force. (Art. 249)

• If the Council of States has declared by resolution supported by not less

than two-thirds of the members present and voting that it is necessary or
expedient in the national interest so to do, Parliament may by law provide
for the creation of one or more all India services including an all-India
judicial service common to the Union and the States, and, subject to the other
provisions of this Chapter, regulate the recruitment, and the conditions of
service of persons appointed, to any such service. (Art. 312)
 SESSIONS OF PARLIAMENT

• Article 85: (1) The President shall form time to time

summon each House of Parliament to meet at such
time and place as he thinks fit, but six months shall
not intervene between its last sitting in one session
and the date appointed for its first sitting in the
next session.

(2) The President may from time to time

(a) prorogue the Houses or either House;
(b) dissolve the House of the People

• Article 108: President can summon joint session in

case of disagreement on a bill b/w both houses of
parliament.
 STATE LEGISLATURE
(Art. 168)

GOVERNOR LEGISLATIVE LEGISLATIVE

ASSEMBLY COUNCIL

Art. 170- 60-500 Art. 171- min- 40

max- 1/3 rd
members of LA

Art. 169- LC can be created or abolished in a State by the Parliament

on the recommendation of State LA.

Andhra Pradesh, Telangana, Uttar Pradesh, Bihar, Maharashtra,

Karnataka
 LA & LC

•Duration- Art. 172

•Qualifications- Art. 173
•Disqualifications- Art. 191
B.R. Kapoor v. State Of Tamil Nadu (2001 (6)
SCALE 309)- A member who does not posses
qualifications prescribed U/A 173 or has
been disqualified U/A 191 of Constitution
cannot be appointed as CM or Minister.
PARLIAMENTARY
PRIVELEGES
 Privileges- Special rights, immunities

Available to:
• These rights are mainly from the members of both
the Houses of Parliament.

• Apart from this, these rights are also given to those

individuals who speak and participate in any
committee of the Parliament, which includes the
Attorney General of India and the Union
Ministers.

• It is necessary to tell that the President, even if he

is part of Parliament, does not have parliamentary
privileges.
Privileges are enlisted in COI under Article 105 for Parliament
and under Article 194 for State Legislature. The two privileges
enlisted under these articles are-

(1) Freedom of Speech

Exceptions-
• Freedom of speech should be in accordance with the
constitutional provisions and subject to rules and procedures
of the parliament, stated under Article 118 of the Constitution.
• Under Article 121 of the Constitution, the members of the
parliament are restricted from discussing the conduct of the
judges of the Supreme Court and the High Court. But,
even if this happens, it is the matter of the parliament and the
court cannot interfere.
• No privilege and immunity can be claimed by the member for
anything which is said outside the proceedings of the house.
(2) Right to the publication of proceedings
Clause (2) of Article 105 (and article 194) expressly provides that
“no person shall be compelled to made liable in regards to the
publication by him or by under the authority of either house of the
parliament for any report, paper, journal, vote or proceedings”.

44th Amendment- Article 361-A provides that “protection of

publication of proceedings of parliament and state legislature”
under clause (1) of this article empowers that no person shall be
made liable to any proceedings initiated against him, either civil
or criminal in any court in regards to the publication made by him
in any newspaper of a substantially true report of any
proceedings of any house of parliament or the state legislature
assembly, or as the case may be, unless the publication made by
the member is proven to have been made with the malafide
intention.

Exception-secret sitting
 OTHER PRIVELEGES

(1) COLLECTIVE PRIVILEGES

• Publication of proceedings
• Power to make rules and regulates its proceeding
and conduct of its business (Art. 118)
• Courts not to inquire into proceedings of
Parliament (Art. 122)
• Right to exclude strangers
• Arrest/ summons of a member- permission of
presiding officer
• Right to expel- Raja Ram v. Hon’ble Speaker
of Lok Sabha
• Right to punish for contempt of parliament
(2) INDIVIDUAL PRIVILEGES
• Freedom of speech: No member is liable to any
proceedings in any given court for anything said
or any vote by him/her in the parliament or its
committees.

• Freedom from arrest: The members of

Parliament can’t be arrested during the session of
the Parliament and 40 days before the beginning
and 40 days after the end of the session.
However this privilege is available in civil cases
only not in criminal cases. (Sec 135 CPC)

• Freedom from appearing as a witness

 Parliamentary privileges and
fundamental right

• Gunupati Keshavram Reddy v. Nafisul

Hasan

• M.S.M. Sharma v. S.K. Sinha

• In re Keshav Singh
PARLIAMENTARY
SOVEREIGNTY
• Parliamentary sovereignty means supremacy of the
legislative body i.e parliament over all other
government institutions including executive and
judicial bodies. Sovereign legislature may change or
repeal any previous legislation and is not bound by
any written law like constitution.

• Dicey’s Parliamentary Sovereignty has three

Connotations:
(a) There is no law which the Parliament cannot
make.
(b) There is no law which the Parliament cannot
repeal or modify.
(c) There is no distinction between laws which are
fundamental or constitutional and laws which are not.
 Position in India
Indian Parliament derives its power from the
Constitution of India. The Parliament is an independent
organ and has power to make laws. The factors that
limit the sovereignity of India Parliament are:
(i) Defined powers under written Constitution
(ii) Federal Structure of Government
(iii) Power of amendment is not absolute
(iv) System of checks and balances
(v) Power of Judicial Review
(vi) Fundamental Rights

CASE LAWS:
• Minerva Mills v. UOI (1986)
• Kesavananda Bharti v. State of Kerala (1973
EXECUTIVE
 PRESIDENT

Article 52: There shall be a President of India

Article 53
(1) The executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through
officers subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the foregoing provision,
the supreme command of the Defence Forces of the Union shall
be vested in the President and the exercise thereof shall be
regulated by law
(3) Nothing in this article shall:
(a) be deemed to transfer to the President any functions conferred
by any existing law on the Government of any State or other
authority; or
(b) prevent Parliament from conferring by law functions on
authorities other than the President
ARTICLE 58 : QUALIFICATIONS FOR ELECTION AS
PRESIDENT

(1) No person shall be eligible for election as President unless

he –
(a) is a citizen of India;
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the House of the
People.
(2) A person shall not be eligible for election as President if he
holds 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.

Explanation: For the purposes of this article, a person shall not

be deemed to hold any office of profit by reason only that he is
the President or Vice-President of the Union or the Governor of
any State or is a Minister either for the Union or for any State.
 ARTICLE 59 : CONDITIONS OF PRESIDENT’S
OFFICE
(1) The President shall not be a member of either House of
Parliament or of a House of the Legislature of any State,
and if a member of either House of Parliament or of a House
of the Legislature of any State be elected President, he shall
be deemed to have vacated his seat in that House on the date
on which he enters upon his office as President.
(2) The President shall not hold any other office of profit.
(3) The President shall be entitled without payment of rent to
the use of his official residences and shall be also entitled to
such emoluments, allowances and privileges as may be
determined by Parliament by law and until provision in that
behalf is so made, such emoluments, allowances and
privileges as are specified in the Second Schedule.
(4) The emoluments and allowances of the President shall not
be diminished during his term of office.
 ARTICLE 54 : ELECTION OF PRESIDENT
The President shall be elected by the members of an electoral college
consisting of-
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
the elected members of the Legislative Assemblies of the UT of Delhi
& Puducherry

ARTICLE 55 : MANNER OF ELECTION OF PRESIDENT

ARTICLE 56(1) : TERM OF OFFICE OF PRESIDENT

The President shall hold office for a term of five years from the date on
which he enters upon his office.

Proviso(c) the President shall, notwithstanding the expiration of his

term, continue to hold office until his successor enters upon his office.

ARTICLE 57 : ELIGIBILITY FOR RE-ELECTION

A person who holds, or who has held, office as President shall, subject to
the other provisions of this Constitution be eligible for re-election to that
office.
Art. 55- Proportional representation by means of single transferable vote.
 RESIGNATION
ARTICLE 56(1) proviso(a): the President may,
by writing under his hand addressed to the Vice-
President, resign his office.
Art. 56(2) Any resignation addressed to the Vice-
President under clause (a) of the proviso to clause
(1) shall forthwith be communicated by him to
the Speaker of the House of the People.

IMPEACHMENT OF PRESIDENT
Art. 56 proviso (b) the President may, for
violation of the Constitution, be removed from
office by impeachment in the manner provided
in article 61.
 ARTICLE 61 : PROCEDURE FOR IMPEACHMENT
OF THE PRESIDENT

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

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

(2) No such charge shall be preferred unless –

(a) the proposal to prefer such charge is contained in a
resolution which has been moved after at least fourteen days’
notice in writing signed by not less than one-fourth of the
total number of members of the House has been given of
their intention to move the resolution, and

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

than two-thirds of the total membership of the House.
(3) When a charge has been so preferred by either
House of Parliament, the other House shall
investigate the charge or cause the charge to be
investigated and the President shall have the right to
appear and to be represented at such investigation.

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

passed by a majority of not less than two-thirds of the
total membership of the House by which the charge
was investigated or caused to be investigated, declaring
that the charge preferred against the President has been
sustained, such resolution shall have the effect of
removing the President from his office as from the date
on which the resolution is so passed.
 POWERS OF PRESIDENT

• EXECUTIVE POWERS OF PRESIDENT

1. For every executive action that the Indian government takes, is to
be taken in his name
2. He appoints the following people:
• Governor, Lt. Governor
• PM, Union Minsters
• SC, HC Judges
• Comptroller and Auditor General of India (CAG)
• Chief Election Commissioner and other Election Commissioners
• Chairman and members of the Union Public Service Commission
• State Governors
• Finance Commission of India chairman and members
• Attorney general of India
3. He seeks administrative information from the Union government
4. He requires PM to submit, for consideration of the council of
ministers, any matter on which a decision has been taken by a
minister but, which has not been considered by the council
5. He appoints National Commissions of:
• Scheduled Castes
• Scheduled Tribes
• Other Backward Classes
6. He appoints inter-state council
7. He appoints administrators of union
territories
8. He can declare any area as a scheduled
area and has powers with respect to the
administration of scheduled areas and
tribal areas
• LEGISLATIVE POWERS OF PRESIDENT
1. He summons or prorogues Parliament and
dissolve the Lok Sabha
2. He summons a joint sitting of Lok Sabha and
Rajya Sabha in case of deadlock
3. He addresses the Indian Parliament at the
commencement of the first session after every
general election
4. He appoints speaker, deputy speaker of Lok
Sabha, and chairman/deputy chairman of
Rajya Sabha when the seats fall vacant.
5. He nominates 12 members of the Rajya Sabha
6. He consults the Election Commission of
India on questions of disqualifications of
MPs.
7. He recommends/ permits the
introduction of certain types of bills.
8. He promulgates ordinances (Art. 123)
9. He lays the following reports before the
Parliament:
• Comptroller and Auditor General
• Union Public Service Commission
• Finance Commission, etc.
Article 123. Power of President to promulgate Ordinances during recess of
Parliament

(1) If at any time, except when both Houses of Parliament are in session, the
President is satisfied that circumstances exist which render it necessary for
him to take immediate action, he may promulgate such Ordinance as the
circumstances appear to him to require

(2) An Ordinance promulgated under this article shall have the same force and
effect as an Act of Parliament, but every such Ordinance
(a) shall be laid before both House of Parliament and shall cease to operate at
the expiration of six weeks from the reassemble of Parliament, or, if before
the expiration of that period resolutions disapproving it are passed by both
Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President
Explanation: Where the Houses of Parliament are summoned to reassemble on
different dates, the period of six weeks shall be reckoned from the later of those
dates for the purposes of this clause

(3) If and so far as an Ordinance under this article makes any provision
which Parliament would not under this Constitution be competent to enact,
it shall be void.
• Ordinance making power of President is coextensive with legislative
power of Parliament.

• Ordinance may modify or repeal a law.

• However, ordinance making power of President does not extend to

amendment of Constitution.

AK Roy v. UOI (1982): Judicial Review

DC Wadhwa v. State of Bihar (1987): Re- promulgation of Ordinances

is a fraud on the Constitution An ordinance issued by governor in
exercise of power u/a 213 is of necessity limited in point of time.

Krishna Kumar Singh v. State of Bihar (2017): On January 2, 2017, the

seven-judge Constitution Bench of the Supreme Court of India held that
repeated re- promulgation of Ordinances is unconstitutional and leads
to subversion of democratic legislative processes. The Court also held
that the satisfaction of the President of India, under Article 123 and of the
Governor under Article 213 while issuing an Ordinance is not immune
from judicial review.
• FINANCIAL POWERS OF
PRESIDENT
1. To introduce the money bill, his prior
recommendation is a must
2. He causes Union Budget to be laid
before the Parliament
3. To make a demand for grants, his
recommendation is a pre-requisite
4. Contingency Fund of India is under
his control
5. He constitutes the Finance
Commission every five years
• JUDICIAL POWERS OF PRESIDENT
1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him
2. He has pardoning power (Art. 72)

PARDONING POWER
Article 72: The President shall have the 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
(a) in all cases where the punishment or sentence is by a court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to
which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.

• Discretionary Power

• Exercised on aid and advice of CoM: In Maru Ram v Union of India (1980), the Constitutional
Bench of Supreme Court held that the power under Article 72 is to be exercised on the advice of the
Central Government and not by the President on his own, and that the advice of the Government
binds the head of the Republic.

• Subject to Judicial Review: In a landmark judgment Epuru Sudhakar & Anr v. Govt. Of A.P. & Ors,
it was held by the Supreme Court that it is a well-set principle that a limited judicial review of
exercise of clemency powers is available to the Supreme Court and High Courts. Granting of
clemency by the President or Governor can be challenged on the following grounds:

· The order has been passed without application of mind.

· The order is mala fide.
· The order has been passed on extraneous or wholly irrelevant considerations.
· Relevant material has been kept out of consideration.
· The order suffers from arbitrariness.
• DIPLOMATIC POWERS OF PRESIDENT
1. International Treaties and agreements that are approved by
the Parliament are negotiated and concluded in his name
2. He is the representative of India in international forums and
affairs

• MILITARY POWERS OF PRESIDENT

He is the commander of the defence forces of India. He appoints:
• Chief of the Army
• Chief of the Navy
• Chief of the Air Force
• EMERGENCY POWERS OF PRESIDENT
He deals with three types of emergencies given in the Indian
Constitution:
• National Emergency (Article 352)
• President’s Rule (Article 356 & 365)
• Financial Emergency (Article 360)
 POSITION OF PRESIDENT

Article 53(1): The executive power of the Union shall be vested in

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

Article 74. Council of Ministers to aid and advise President

(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the
exercise of his functions, act in accordance with such advice.
Provided that the President may require the council of Ministers to
reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after
such reconsideration

(2) The question whether any, and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any
court.
 Article 75
(1) The Prime Minister shall be appointed by the President and the
other Ministers shall be appointed by the President on the advice of
the Prime Minister.
(2) The Minister shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the
House of the People.
(4) Before a Minister enters upon his office, the President shall
administer to him the oaths of office and of secrecy according to the
forms set out for the purpose in the Third Schedule.
(5) A Minister who for any period of six consecutive months is not a
member of either House of Parliament shall at the expiration of that
period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine and, until
Parliament so determines, shall be as specified in the Second Schedule
The Attorney General for India.

Case Law: UN Rao v. Smt. Indra Gandhi

 VICE PRESIDENT

• Qualification (Art. 66(2) & (3)):

(a) is a citizen of India;
(b) has completed the age of thirty five years;
(c) is qualified for election as a member of
the Council of States
(d) The Vice President shall not be a member
of either House of Parliament or of a House
of the Legislature of any State.
(e) A person shall not be eligible for election
as Vice President if he holds any office of
profit under the Government.
• Election (Art. 66(1)): The Vice President shall be elected by the
members of an electoral college consisting of the members of
both Houses of Parliament in accordance with the system of
proportional representation by means of the single transferable
vote and the voting at such election shall be by secret ballot.

• Term (Art. 67): The Vice-President shall hold office for a term of
five years from the date of his appointment.
(a) a Vice President may, by writing under his hand addressed to the
President, resign his office;
(b) a Vice President may be removed from his office by a resolution
of the council of States passed by a majority of all the then
members of the council and agreed to by the House of the People;
but no resolution for the purpose of this clause shall be moved
unless at least fourteen days notice has been given of the intention
to move the resolution;
(c) a Vice President shall, notwithstanding the expiration of his
term, continue to hold office until his successor enters upon his
office.
• Every Vice-President shall make an Oath or
Affirmation on entering upon his office before the
President, or some person appointed in that behalf
by him. (Article 69)

• The Vice-President shall be ex-officio Chairman

of the Council of States. (Article 64)

• The Vice-President to act as President or to

discharge his functions during casual vacancies in
the office, or during the absence, of President.
(Article 65)

• Discharge of President’s functions in other

contingencies. (Article 70)
 GOVERNOR

• Art.153- There shall be a Governor for

each State.
Provided that nothing in this article shall
prevent the appointment of the same
person as Governor for two or more
States.

• Appointment of Governor (Art.155): The

Governor of a State shall be appointed by
the President by warrant under his hand
and seal.
• Qualifications (Art. 157 & 158):
• He should be an Indian Citizen
• He should be 35 years old or more
• The Governor shall not be a member of
either House of Parliament or of a House of
the Legislature of any State.
• The Governor shall not hold any other office
of profit.

• Oath to office (Art. 159): in the presence of

the Chief Justice of the High Court
exercising jurisdiction in relation to the State,
or, in his absence, the senior most Judge of that
Court available.
Term (Art. 156): (1) The Governor shall hold
office during the pleasure of the President.
(2) The Governor may, by writing under his
hand addressed to the President, resign his
office.
(3) Subject to the foregoing provisions of this
article, a Governor shall hold office for a term
of five years from the date on which he enters
upon his office:
Provided that a Governor shall,
notwithstanding the expiration of his term,
continue to hold office until his successor
enters upon his office.
 POWERS OF GOVERNOR

Legislative Powers:
• It’s in his power to prorogue the state legislature
and dissolve the state legislative assemblies.
• He addresses the state legislature at the first
session of every year.
• Assent to bill
• If the speaker of the legislative assembly is absent
and the same is Deputy Speaker, then Governor
appoints a person to preside over the session.
• Governor nominates ⅙ of the total members of
the legislative council from the fields of Literature,
Science, Art, Cooperative Movement, Social
Service.
• He can consult Election Commission for the
disqualification of members.
• With respect to the bill introduced in the state
legislature, he can give his assent, withhold his
assent, return the bill, reserve the bill for the
President’s consideration.
• An ordinance can be promulgated by him
when either the Legislative Assembly or
Council (Unicameral/Bicameral) are not in
session. (Art. 213)
• The following reports are laid by him:
1. State Finance Commission
2. State Public Service Commission
3. Comptroller and Auditor General
Financial Powers:
• He looks over the state budget being laid
in the state legislature.
• His recommendation is a prerequisite for
the introduction of a money bill in the state
legislature.
• He recommends for the demand for
grants which otherwise cannot be given.
• Contingency Fund of State is under him
and he makes advances out that to meet
unforeseen expenditure.
• State Finance Commission is constituted
every five years by him.
Judicial Powers:
• Power of Pardon (Art. 161):Previously, the governor
cannot pardon the death sentence, which only the Indian
President can do. But, recently on 3rd August 2021, the
Supreme Court in The State Of Haryana & Ors. v. Raj
Kumar @ Bittu(2021), held that the Governor of a State
can pardon prisoners, including death row ones.The
Governor’s power to pardon overrides Section 433A of the
Code of Criminal Procedure which mandates that a
prisoner’s sentence can be remitted only after 14 years of
jail.

• President consults the Governor while appointing judges of

High Court.

• In consultation with the state High Court, Governor makes

appointments, postings, and promotions of the district
judges.
 POSITION OF GOVERNOR
• He is the executive head of the state. All the executive functions will be
performed by him or by the officers subordinate to him in accordance with the
Constitution. (Art. 154)

• Art. 163: (1) There shall be a council of Ministers with the chief Minister at
the head to aid and advise the Governor in the exercise of his functions,
except in so far as he is by or under this constitution required to exercise his
functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects
which the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be final, and
the validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered by
Ministers to the Governor shall not be inquired into in any court.

• The Council of Ministers are collectively responsible to the state legislative

assembly. (Art. 164)

• Shamsher Singh v. State of Punjab (1974)

• MP Special Police Establishment v. State of M.P. (2004)
 PRIVILEGES OF PRESIDENT & GOVERNOR (Art. 361)

(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to
any court for the exercise and performance of the powers and duties of his office or
for any act done or purporting to be done by him in the exercise and performance of
those powers and duties.
Provided that the conduct of the President may be brought under review by any court,
tribunal or body appointed or designated by either House of Parliament for the
investigation of a charge under Article 61.

(2) No criminal proceedings whatsoever shall be instituted or continued against the

President, or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a
State, shall issue from any court during his term of office.

(4) any civil proceedings in which relief is claimed against the President, or the Governor
of a State, shall be instituted during his term of office in any court in respect of any act
done or purporting to be done by him in his personal capacity, whether before or after he
entered upon his office as President, or as Governor of such State, until the expiration of
two months next after notice in writing has been delivered to the President or
Governor, as the case may be, or left at his office stating the nature of the proceedings,
the cause of action therefor, the name, description and place of residence of the party
by whom such proceedings are to be instituted and the relief which he claims.
JUDICIARY
SUPREME COURT OF INDIA
• Established on: 26 January 1950

• 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.

• Appointment: Every Judge of the Supreme Court shall be appointed by the

President 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 as the President may
deem necessary for the purpose. (Art. 124 (2))

• Term: SC judge shall hold office until he attains the age of sixty-five years. (Art. 124
(2))

• Oath: Every person appointed to be a Judge of the Supreme Court shall, before he
enters upon his office, make and subscribe before the President, or some person
appointed in that behalf by him, an oath or affirmation according to the form set out for
the purpose in the Third Schedule. (Art. 124 (6))

• Qualification: A person shall not be qualified for appointment as a Judge of the

Supreme Court unless he is a citizen of India and-
(a) has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more
such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist. (Art. 124 (3))
• Resignation: A Judge may, by writing under his hand
addressed to the President, resign his office. (Art. 124
(2) proviso (a))

• Removal: a Judge may be removed from his office in the

manner provided in clause (4). (Art. 124 (2) proviso (b))

A Judge of the Supreme Court shall not be removed from

his office except by an order of the President passed
after an address by each House of Parliament
supported by a majority of the total membership of
that House and by a majority of not less than two-
thirds of the members of that House present
and voting has been presented to the President in the
same session for such removal on the ground of proved
misbehaviour or incapacity. (Art. 124 (4))
JURISDICTION OF SUPREME COURT OF INDIA

Original Jurisdiction
(Art 131)

Writ Jurisdiction
(Art 32)

Appellate Jurisdiction
(Art 131-136)

Advisory Jurisdiction
(Art 143)

Review Jurisdiction
(Art 137)
 ORIGINAL JURISDICTION (Art.131)

Subject to the provisions of this Constitution, the Supreme Court

shall, to the exclusion of any other court, have original jurisdiction
in any dispute-
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on
one side and one or more other States on the other; or
(c) between two or more States,
if and in so far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal right depends.
Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad or
other similar instrument which, having been entered into or
executed before the commencement of this Constitution,
continues in operation after such commencement, or which provides
that the said jurisdiction shall not extend to such a dispute.

Case law: UOI v. State of Rajasthan (1984)

Matters not covered by Article 131:
1. Proviso to Art. 131
2. Parliament law- Art. 262- Inter State river
disputes, Art. 280- Finance Commission
3. Adjustment of expenses b/w union & states
(Art. 290)

• Art. 71(1): All doubts and disputes

arising out of or in connection with the
election of a President or Vice-President
shall be inquired into and decided by the
Supreme Court whose decision shall be
final.
 WRIT JURISDICTION

• Article 32 of the Constitution provides that, “The

Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this
Part.”

• Article 139: Parliament may by law confer on the

Supreme Court power to issue directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari,
or any of them, for any purposes other than those
mentioned in clause (2) of article 32.
 Writ Jurisdiction of HC(Article 226)

Notwithstanding anything in Article 32 every

High Court shall have powers, throughout the
territories in relation to which it exercise
jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government,
within those territories directions, orders or
writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred
by Part III and for any other purpose.
 DIFFERENCE B/W art. 32 & Art. 226

• Article 32 gives power to Supreme Court whereas Article 226 gives

power to the High court

• Article 32 is invoked for the enforcement of fundamental Rights

whereas Article 226 is invoked for enforcement of fundamental right
as well as other legal rights too.

• Power to issue writs under Article 32 is mandatory for the Supreme

court whereas High court has discretionary power to issue writs under
Article 226

• Article 32 is suspended during the period of the emergency whereas

Article 226 cannot be suspended during emergency

• Territorial Jurisdiction of the High court under Article 226 is narrower

than the Territorial jurisdiction of Supreme court under Article 226.

• Article 32 is itself a fundamental right (Right to constitutional

Remedies) whereas Article 226 is not a fundamental Right.
 APPELLATE JURISDICTION (Art. 132-136)

• Art. 132: An appeal shall lie to the Supreme Court from

any judgment, decree or final order of a High Court in the
territory of India, whether in a civil, criminal or other
proceeding, if the High Court certifies under article
134A that the case involves a substantial question of
law as to the interpretation of this Constitution.

• CIVIL MATTERS: Art. 133(1) An appeal shall lie to the

Supreme Court from any judgment, decree or final order
in a civil proceeding of a High Court in the territory of
India if the High Court certifies under article 134A-
(a) that the case involves a substantial question of law of
general importance; and
(b) that in the opinion of the High Court the said
question needs to be decided by the Supreme Court.
• CRIMINAL MATTERS: Art. 134(1) An appeal shall lie to the Supreme Court
from any judgment, final order or sentence in a criminal proceeding of a High
Court in the territory of India if the High Court-
(a) has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and sentenced
him to death; or
(c) certifies under article 134A that the case is a fit one for appeal to the
Supreme Court.

• Art. 134A. Certificate for appeal to the Supreme Court- Every High Court,
passing or making a judgment, decree, final order, or sentence, referred to in
clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134-
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party
aggrieved, immediately after the passing or making of such judgment, decree,
final order or sentence,
determine, as soon as may be after such passing or making, the question
whether a certificate of the nature referred to in clause (1) of article 132, or
clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of
article 134, may be given in respect of that case.
Article 135: Until Parliament by law otherwise provides, the Supreme
Court shall also have jurisdiction and powers with respect to any matter to
which the provisions of Article 133 or Article 134 do not apply if
jurisdiction and powers in relation to that matter were exercisable by the
Federal Court immediately before the commencement of this Constitution
under any existing law.

SPECIAL LEAVE PETITION (Art. 136):(1) Notwithstanding anything

in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal
in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination,
sentence or order passed or made by any court or tribunal constituted
by or under any law relating to the Armed Forces.

In Sanwat Singh v. the State of Rajasthan (AIR 1961, SC 715), the SC

observed that, “Article 136 of the Constitution confers wide discretionary
powers on the Supreme Court. The powers under Article 136 should be
exercised sparingly by the Supreme Court in exceptional cases. Such
powers are granted to the Supreme Court in order to do complete justice.”
 REVIEW JURISDICTION (Art. 137)

Subject to the provisions of any law made

by Parliament or any rules made under
article 145, the Supreme Court shall
have power to review any judgment
pronounced or order made by it.

CURATIVE PETITION
Rupa Ashok Hurra v. Ashok Hurra (2002)
Zakarius Lakra v. UOI (2005)
 ADVISORY JURISDICTION (Art. 143)

(1) If at any time it appears to the President that a question of law

or fact has arisen, or is likely to arise, which is of such a nature and
of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, he may refer the question
to that Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to

article 131, refer a dispute of the kind mentioned in the said
proviso to the Supreme Court for opinion and the Supreme Court
shall, after such hearing as it thinks fit, report to the President its
opinion thereon.

Example: In re Delhi Laws casse (1951)

In re Keshav Singh Case
 ADDITIONAL JURISDICTION

Art. 138. Enlargement of the jurisdiction of the

Supreme Court- (1) The Supreme Court shall have
such further jurisdiction and powers with respect to
any of the matters in the Union List as Parliament
may by law confer.

(2) The Supreme Court shall have such further

jurisdiction and powers with respect to any matter as
the Government of India and the Government of
any State may by special agreement confer, if
Parliament by law provides for the exercise of
such jurisdiction and powers by the Supreme Court.
 POWERS

1. Binding law: The law declared by the

Supreme Court shall be binding on all courts
within the territory of India (Art. 141)

2. Court of Record (Art. 129): The Supreme

Court shall be a court of record and shall
have all the powers of such a court including
the power to punish for contempt of itself.

Case: In re Prashant Bhushan & Anr. (2020)

3. Transfer of certain cases (Art. 139A): (1) Where cases
involving the same or substantially the same questions of law are
pending before the Supreme Court and one or more High Courts or
before two or more High Courts and the Supreme Court is satisfied
on its own motion or on an application made by the Attorney-
General of India or by a party to any such case that such questions
are substantial questions of general importance, the Supreme
Court may withdraw the case or cases pending before the High
Court or the High Courts and dispose of all the cases itself.
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy
of its judgment on such questions to the High Court from which the
case has been withdrawn, and the High Court shall on receipt
thereof, proceed to dispose of the case in conformity with such
judgment.
(2) The Supreme Court may, if it deems it expedient so to do for
the ends of justice, transfer any case, appeal or other proceedings
pending before any High Court to any other High Court.
4. Ancillary powers of Supreme Court (Art. 140):
Parliament may by law make provision for
conferring upon the Supreme Court such supplemental
powers not inconsistent with any of the provisions of
this Constitution as may appear to be necessary or
desirable for the purpose of enabling the Court
more effectively to exercise the jurisdiction
conferred upon it by or under this Constitution.

5. Enforcement of decrees and orders of Supreme

Court (Art. 142)

6. Rules of Court (Art. 145)

7. Judicial Review- L Chandra Kr. v. UOI

• Art. 214: There shall be a High Court for each State.

• Composition: Every High Court shall consist of a Chief Justice and such other
Judges as the President may from time to time deem it necessary to appoint. (Art.
216)

• Appointment: Every Judge of a High Court shall be appointed by the President by

warrant under his hand and seal after consultation with the Chief Justice of
India, the Governor of the State, and, in the case of appointment of a Judge
other than the chief Justice, the chief Justice of the High court(Art. 217 (1))

• Term: HC judge shall hold office until he attains the age of sixty-two years. (Art.
217 (1))

• Oath: Every person appointed to be a Judge of a High Court shall, before he

enters upon his office, make and subscribe before the Governor of the State, or
some person appointed in that behalf by him, an oath or affirmation according to
the form set out for the purpose in the Third Schedule. (Art. 219)

• Qualification:A person shall not be qualified for appointment as a Judge of a High

Court unless he is a citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more
such Courts in succession(Art. 217 (2))
• Resignation: A Judge may, by writing under his hand
addressed to the President, resign his office. (Art. 217 (1)
proviso (a))

• Removal: A Judge may be removed from his office in the

manner provided in clause (4) of Article 124 for the removal
of a Judge of the Supreme Court. (Art. 217(1) proviso (b))

A Judge of the Supreme Court shall not be removed from his

office except by an order of the President passed after an
address by each House of Parliament supported by a
majority of the total membership of that House and by a
majority of not less than two-thirds of the members of
that House present and voting has been presented to the
President in the same session for such removal on the ground
of proved misbehaviour or incapacity. (Art. 124 (4))
 JURISDICTION OF HIGH COURT

1. Original Jurisdiction

2. Appellate Jurisdiction

3. Writ Jurisdiction (Article 226):Notwithstanding

anything in Article 32 every High Court shall have
powers, throughout the territories in relation to which it
exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within
those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
4. Supervisory Jurisdiction (Art. 227):
(1) Every High Court shall have superintendence over all
courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for
regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts
shall be kept by the officers of any such courts
(3) The High Court may also settle tables of fees to be allowed
to the sheriff and all clerks and officers of such courts and to
attorneys, advocates and pleaders practising therein.
(4) Nothing in this article shall be deemed to confer on a High
Court powers of superintendence over any court or tribunal
constituted by or under any law relating to the Armed Forces.
 Diff b/w Art. 226 & Art. 227

The Hon'ble Supreme Court in Surya Devi Rai vs. Ram Chander Rai laid down the
following differences:
i. Firstly, the writ of certiorari is an exercise of its original jurisdiction (Article 226) by
the High Court; exercise of supervisory jurisdiction (Article 227) is not an original
jurisdiction and in this regard, it is akin to appellate revisional or corrective
jurisdiction.

ii. Secondly, in a writ of certiorari, the record of the proceedings having been certified
and sent up by the inferior court or tribunal to the High Court, the High Court if inclined
to exercise its jurisdiction, may simply annul or quash the proceedings and then do no
more (Art 226). In exercise of supervisory jurisdiction (Art 227) the High Court may not
only quash or set aside the impugned proceedings, judgment or order but it may also
make such directions as the facts and circumstances of the case may warrant, may be by
way of guiding the inferior court or tribunal as to the manner in which it would now
proceed further or afresh as commended to or guided by the High Court. In appropriate
cases the High Court, while exercising supervisory jurisdiction, may substitute the
impugned decision with a decision of its own, as the inferior court or tribunal should have
made.

iii. The jurisdiction under Article 226 of the Constitution is capable of being exercised on
a prayer made by or on behalf of the party aggrieved but the power conferred under
Article 227 viz the supervisory jurisdiction is capable of being exercised suo moto as
well.
 POWERS OF HIGH COURT

1. Court of Record (Article 215): Every High Court shall be a

court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.

2. Transfer of certain cases to High Court (Art. 228): If the High

Court is satisified that a case pending in a court subordinate to it
involves a substantial question of law as to the interpretation of
this Constitution the determination of which is necessary for the
disposal of the case, it shall withdraw the case and may
(a) either dispose of the case itself, or
(b) determine the said question of law and return the case to the
court from which the case has been so withdrawn together with a
copy of its judgment on such question, and the said court shall on
receipt thereof proceed to dispose of the case in confirmity with
such judgment

3. Judicial Review
INDEPENDENCE
OF
JUDICIARY
 Union of India v. R. Gandhi (2010)

“Independence is not the freedom for Judges to do what

they like. It is the independence of judicial thought. It is the
freedom from interference and pressures which provides
the judicial atmosphere where he can work with absolute
commitment to the cause of justice and constitutional
values. It is also the discipline in life, habits and outlook
that enables a Judge to be impartial. Its existence depends
however not only on philosophical, ethical or moral aspects
but also upon several mundane things - security in tenure,
freedom from ordinary monetary worries, freedom from
influences and pressures within (from others in the
Judiciary) and without (from the Executive).”
NECESSITY OF AN INDEPENDENT
JUDICIARY

• Watchdog of Constitution

• Impartial Justice

• Fair Interpretation

• Rule of Law

• Basic Structure of Constitution

 CONSTITUTIONAL PROVISIONS

• Security of Tenure (Article 124(2) and Article 217(1))

• Conduct of Judges (Art. 125 & 221)
• Conditions of service (Art. 125 & Art. 221)
• Supreme Court’s powers and jurisdiction (Art. 138)
• Administrative Power (Art. 146 & Art. 229)
• Power to punish for its contempt (Art. 129 & Art. 215)
• Prohibition on practice after retirement (Art. 124(7))
• Demarcation of functions of judiciary from executive
(Art. 50)
• Appointments & Transfers (Art. 124(2) & Art. 217 (1))
 Appointments & Transfer of Judges

Art. 124 (2): Every Judge of the Supreme Court shall be appointed by the President 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 as the President may deem
necessary for the purpose and shall hold office until he attains the age of sixty-five years.
Provided that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India shall always be consulted.

Art. 217 (1): Every Judge of a High Court shall be appointed by the President by
warrant under his hand and seal after consultation with the Chief Justice of India, the
Governor of the State, and, in the case of appointment of a Judge other than the
chief Justice, the chief Justice of the High court, and shall hold office, in the case of an
additional or acting Judge, as provided in Article 224, and in any other case, until he
attains the age of sixty two years.

Art. 222(1): The President may, after consultation with the Chief Justice of India,
transfer a Judge from one High Court to any other High Court.
• SP Gupta v. Union of India (AIR 1982 SC 149)
• Supreme Court Advocates on Record Association v. Union of
India (AIR 1994 SC 268)
• In Re Special Reference No.1 of 1998 ( AIR 1999 SC 1)
• National Judicial Appointments Commission (NJAC)
constituted under Constitution (Ninety Ninth) Amendment
Act, 2014
• Supreme Court Advocates on Record Association v. Union of
India (2015 (11) SCALE 1):
“It would be of utmost importance therefore, to shield judicial
appointments, from any political-executive interference, to
preserve the “independence of the judiciary”, from the regime
of the spoils system. Preserving primacy in the judiciary, in
the matter of selection and appointment of Judges to the
higher judiciary would be a safe way to do so.”