0% found this document useful (0 votes)

3 views10 pages

unit c

Uploaded by

himanshukus257

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

0% found this document useful (0 votes)

3 views10 pages

unit c

Uploaded by

himanshukus257

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

You are on page 1/ 10

Articles 309–311: Civil Services under the

Constitution of India
Article 309 (Recruitment & Service Conditions): Empowers Parliament/State
Legislatures to regulate recruitment and conditions of service of public servants (Union
or State) constitutionofindia.net . Until such law is made, the President/Governor may make
interim rules constitutionofindia.net . In practice this means Acts (and rules under them) lay
down qualifications, procedure, leave, pension, etc.

Article 310 (Tenure – Doctrine of Pleasure): States that every member of the Union or
State civil services “holds office during the pleasure” of the President (for Union
services) or Governor (for State services) constitutionofindia.net . This codifies the Doctrine of
Pleasure: the executive can terminate a bureaucrat’s service without assigning reason
(subject to constitutional exceptions). In other words, a civil servant has no fixed tenure
as a matter of privilege – tenure continues at the will of the appointing authority
constitutionofindia.net . However, this power is not absolute (see Article 311 below). Example:
Article 310(2) even provides for compensation if a contract appointee is compulsorily
retired before an agreed term without fault constitutionofindia.net .

Doctrine of Pleasure (constitutional): Derived from Article 310, meaning “the Crown
(State) may dismiss civil servants at will.” It is limited by other provisions: e.g., Article
311 and judicial decisions (the courts have read that even “pleasure” must not be
exercised arbitrarily) drishtijudiciary.com constitutionofindia.net . Certain high offices (judges, CAG,
CEC, etc.) are expressly excluded from this doctrine (they have security of tenure).
Article 311 (below) carves out explicit exceptions to the pleasure doctrine for ordinary
civil servants.

Article 311 (Safeguards on Dismissal/Removal): Protects IAS/IPS/AIS and other civil

servants from arbitrary removal. Key points:

(1) No Subordinate Dismissal: A civil servant cannot be dismissed or removed by a

subordinate authority constitutionofindia.net . Only the authority which appointed the
officer (or one of equal rank) can do so. This ensures an independent review and
prevents junior officials from ousting seniors.
(2) Right to Inquiry and Hearing: An officer cannot be dismissed, removed or
reduced in rank without an enquiry. The officer must be informed of charges and
given a reasonable opportunity to be heard constitutionofindia.net . (This embodies
principles of natural justice.) Exception: If the officer is convicted of a crime, or if
the authority certifies in writing that holding an enquiry is not practicable, or if the
President/Governor deems an inquiry against security of State, then this procedure
need not be followed constitutionofindia.net .

(3) Question of Practicability: If there is a dispute whether an inquiry can be held,

the decision of the competent authority is final constitutionofindia.net .

Combined Effect: These safeguards mean that although service is technically “at
pleasure” under Art.310, dismissal for misconduct or inefficiency must follow due
process constitutionofindia.net constitutionofindia.net . In sum, Article 311 grants “security of
tenure” by requiring fair procedure before a civil servant can be removed (absent
the narrow exceptions).

Key Case – T.S.R. Subramanian v. Union of India (2013 AIR 2014 SC 263): A PIL by 83
retired top bureaucrats (led by ex-Cabinet Secretary T.S.R. Subramanian) challenged arbitrary
transfers and oral directives by ministers timesofindia.indiatimes.com . The Supreme Court held (31
Oct 2013) that:

Oral Instructions: Civil servants shall not act on informal/oral directives from political
superiors. Orders must be written; an officer who acts on oral orders alone “takes a risk”
since it cannot later be justified telegraphindia.com . This protects officers from “wrongful and
arbitrary” political pressure telegraphindia.com telegraphindia.com .

Fixed Minimum Tenure: Every civil servant must have a minimum assured tenure at
each posting. The Court directed that central and state governments should ensure
normally at least two years at post for All-India Service officers (IAS/IPS/IFS) unless
promoted or deputed timesofindia.indiatimes.com . This two-year rule was later adopted in
government rules (DOPT Jan 2014) timesofindia.indiatimes.com .

Civil Services Boards: A statutory Civil Services Board (CSB) was mandated at Centre
(headed by Cabinet Secretary) and in each State (headed by Chief Secretary) to advise
on transfers, postings and disciplinary action telegraphindia.com . Premature transfers should
occur only on a CSB recommendation, otherwise reasons must be recorded
timesofindia.indiatimes.com . Quarterly reports of such transfers must be furnished to the Centre.
Significance: These reforms “unshackle” the bureaucracy by insulating honest officials
from capricious transfers or suspensions. The Court emphasized accountability “to the
Constitution and people”, not merely to politicians telegraphindia.com . Overall, T.S.R.
Subramanian strengthened the rule of law in public administration by linking service
conditions to written norms and collective institutional review (CSBs) telegraphindia.com

timesofindia.indiatimes.com .

Article 368: Amendment of the

Constitution
Parliament’s Amending Power (Clause 1–2): Article 368 vests constituent power in
Parliament: any provision of the Constitution can be amended by law constitutionofindia.net .
The procedure is special: an Amendment Bill must be introduced in either House and
passed by a special majority – i.e. a majority of the total membership and at least 2/3
of members present and voting constitutionofindia.net . After passage, it goes to the President
for assent. (There is no provision for referendum – only parliamentary supermajority.)

States’ Role: Certain amendments affecting federal structure also require state
ratification constitutionofindia.net . If the Bill seeks to alter, for example, any of the matters
listed in Art.368(2) – such as the President’s election (Art.54–55), extent of Executive
power (Art.73, 162), High Courts (Art.241), GST Council (Art.279A), major
Parts/Chapters of the Constitution, or any entry in the Seventh Schedule – then after
Parliament’s passage it must be approved by resolutions in not less than half of the
State Legislatures constitutionofindia.net . Only then is it presented for Presidential assent. In all
other cases (most amendments), only Parliament’s special-majority is needed.

Scope of Amendments: Article 368 permits addition, variation or repeal of any

Constitution provision constitutionofindia.net . Notably, Art.368(3) bars application of Article 13
– meaning fundamental rights themselves can be amended or repealed by this process
constitutionofindia.net . There is no time-bar or entrenched clause (except as below). Clause (4)
(added by the 42nd Amendment) originally stated that Amendments made under
Art.368 are beyond judicial review constitutionofindia.net , and Clause (5) declared no
limitations on Parliament’s power constitutionofindia.net . However, these were subsequently
qualified by the Supreme Court (see Basic Structure below).

Types of Amendments (by procedure): Practically, there are:

Simple Special-majority amendments: (Art.368(1)-(2)) – e.g. amendments of non-

federal provisions, statutes into schedules, changes in Fundamental Rights, etc.

Special-majority + State ratification: (Art.368(2) proviso) – e.g. amendments to

federal features (states’ powers, All-India Services, legislative lists, etc.).
(There is no parallel to e.g. UK-style entrenchment or referendums; the whole
process is parliamentary.)

Constitutional Doctrine – Basic Structure: The classic constraint on Article 368 is the
Basic Structure Doctrine from Kesavananda Bharati v. State of Kerala lawwatch.in . In that
landmark case the Supreme Court (1973) held that although Parliament’s amending
power is broad, it cannot destroy the Constitution’s “basic structure” or essential
features lawwatch.in . In effect, this reads an implied limitation into Art.368: amendments
inconsistent with the core principles (democracy, rule of law, separation of powers,
federalism, secularism, judicial review, etc.) are invalid, even if passed by the prescribed
procedure. The Court did not exhaustively list all basic features; later cases have named
examples like equality, sovereign republican structure, Preamble values, etc. But the
take-away is: Parliament cannot use Article 368 to convert India into a fundamentally
different polity.

Key Case – Keshavananda Bharati v. State of Kerala (1973 AIR 1973 SC 1461): A 13-
Judge Bench considered petitions against Kerala’s land reform amendments (and the
29th Amendment inserting those laws in the Ninth Schedule). Facts: Swami
Keshavananda and others challenged amendments curtailing right to property and
putting laws beyond judicial review. Issues: Did Parliament’s power under Article 368
include the right to amend even fundamental rights or the “basic structure” of the
Constitution? Held: By a narrow 7–6 majority, the Court upheld most challenged
amendments (24th, 25th and 29th Amendments) but laid down a crucial limitation:
“Parliament has no power to destroy or emasculate the basic elements or fundamental
features of the Constitution” lawwatch.in . It overruled the doctrine from Golak Nath (which
held Fundamental Rights non-amendable) and affirmed that rights including Art.19
freedoms and Art.31 property could be amended. At the same time, it struck the ouster
clause of the 25th Amendment (which tried to bar court review) as unconstitutional, and
declared that the Constitution is supreme over Parliament’s will. Significance: This case
established the Basic Structure Doctrine – Parliament’s constituent power is wide but
not unlimited lawwatch.in . It means even unchallenged text (Art.368(4)&(5)) must yield to
this doctrine. In practical terms, Keshavananda protects democracy, rule of law, rights,
etc., from arbitrary repeal by future majorities.

Articles 301–307: Freedom of Trade,

Commerce and Intercourse
Article 301 (General Freedom): “Trade, commerce and intercourse throughout the
territory of India shall be free”, subject only to Part XIII provisions constitutionofindia.net . This
creates a right to unimpeded inter-state commerce and movement of people. In
essence, it prohibits barriers (like internal tariffs or prohibitions) on goods or trade
across state lines. Scope: It covers goods, markets, transportation and even services
(broadly “commerce”), as well as the movement of persons (“intercourse” – e.g. the
right to travel and reside anywhere in India). The goal was to create a national common
market.

Article 302 (Parliament’s Restrictive Power): Parliament may make laws restricting
trade or intercourse between states (or within any part of India) “as may be required in
the public interest” constitutionofindia.net . In other words, reasonable restrictions by law are
allowed (for example, to protect health, prevent smuggling, ensure essential supplies,
etc.). Any such restriction must satisfy the special-majority requirement of an
amendment (since Art.301 is constitutional). Example: The Essential Commodities Acts
(requiring permits) were upheld under Art.302 (public interest in stable supplies).

Article 303 (Non-Discrimination between States): Neither Parliament nor any State
Legislature may give preferential treatment to one state’s trade over another’s
constitutionofindia.net . Specifically: they cannot enact laws that discriminate against or give
preference to one State in matters of trade and commerce covered by the legislative
lists constitutionofindia.net . Exception (Art.303(2)): Parliament may enact a
preference/discrimination law if it is expressly declared necessary to meet a situation of
scarcity of goods in any part of India constitutionofindia.net . In practice, Art.303 ensures a level
playing field among States (no state may favor its own products by law).

Article 304 (State Regulations):

(a) Taxation: A State legislature may impose sales or entry taxes on goods imported
from other states but only to the same extent as on local goods, and without
discrimination constitutionofindia.net . (E.g. Maharashtra cannot tax textiles from Gujarat
more heavily than textiles produced in Maharashtra.)

(b) Other Restrictions: A State may also impose reasonable restrictions on

trade/commerce with or within the state in the public interest constitutionofindia.net .
Condition: Such laws (and any amendments thereto) require prior Presidential
assent before introduction in the state legislature constitutionofindia.net . This ensures
central oversight on interstate-trade restrictions. In summary, states have narrow
regulatory powers (fiscal and limited constraints) but must not discriminate and
must get consent for any restriction beyond taxation constitutionofindia.net constitutionofindia.net

.
Article 305 (Existing Laws and State Monopolies): Saving clause. It preserves existing
state laws and agreements at the commencement of the Constitution, even if they
conflict with Art.301/303 constitutionofindia.net . For example, many States continued alcohol
licensing laws and local trade controls. Such laws remain valid “until the President by
order otherwise provides” constitutionofindia.net . (Notably, a 1955 amendment also protected
laws enabling state trading or corporate enterprises.)

Article 306 (Transitional for Part B States): This allowed certain former Part B states
(princely states) to continue imposing pre-Constitution duties on inter-state trade for up
to 10 years after 1950, by mutual agreement with the Centre constitutionofindia.net . This is a
historical, temporary provision (now lapsed).

Article 307 (Enforcement Authority): Empowers Parliament to appoint an authority for

enforcing the trade-and-commerce provisions (Arts.301–304) and to give it necessary
powers constitutionofindia.net . (No such authority has been constituted to date.)

Summary of Scope & Restrictions: Articles 301–307 collectively create a constitutional

guarantee of a common market, subject to limited controls. Parliament has broad
power to step in for national interests (Art.302) and to preserve equality among States
(Art.303). States can impose taxes and restrictions only on equal terms and with
Presidential sanction (Art.304). The existing laws clause (Art.305) ensured continuity of
State policies (e.g. public-sector monopolies, rationing laws) despite the new free-trade
rule constitutionofindia.net .

Key Points (Tabular Summary): The following table highlights who may legislate and under
what conditions for intra-Indian trade.

Article Subject of Law Who May Legislate Key Conditions/Restrictions

301 Freedom of all internal Trade, Constitutional Must be “free” throughout India; all law
Commerce, Intercourse guarantee conform

302 Trade & commerce restrictions Parliament (by Only “as may be required in the public i
(between states or within India) special-majority law) constitutionofindia.net

303 No discrimination/preference Parliament & States Prohibits any law giving preference to o
between States (no separate power over another constitutionofindia.net ; Exception
to discriminate) Parliament may allow preference to me
scarcity constitutionofindia.net

304(a) Sales/entry taxes on imported State Legislatures May tax imports, but no higher than on
goods goods constitutionofindia.net

304(b) Other trade restrictions State Legislatures Restrictions must be “reasonable” and
within/with state (with Presidential public interest” constitutionofindia.net ; no Bill
assent) can be introduced without President’s s
Article Subject of Law Who May Legislate Key Conditions/Restrictions

305 Existing pre-1950 trade laws, Continuity ensured Such laws survive Arts.301/303; only re
State monopolies by Presidential order constitutionofindia.net

306 Transitional (Part B states’ Certain States (with Pre-Constitution export/import duties a
duties on trade) Union) up to 10 years, with Union agreement
constitutionofindia.net

307 Authority for enforcing trade Parliament (by law) Parliament may create an authority to
provisions implement Arts.301–304 constitutionofindia.n

Illustrative Clarifications: Trade includes buying/selling of goods (and typically

transportation of those goods) drishtijudiciary.com . Commerce broadly covers trade plus
transmission (movement) of goods, services and persons drishtijudiciary.com . Intercourse
encompasses trade/commerce and the freedom of people to travel and associate across
states drishtijudiciary.com . Thus Arts.301–307 ensure not just free flow of goods but also the free
movement of people and capital across India.

Concluding Note: Together, these provisions balance India’s federal and democratic goals:
they enshrine a unitary economic space (Art.301) while permitting reasonable controls for
public welfare, and allocating powers between Centre and States (Arts.302–304).
Parliament can intervene for national needs, but States retain limited fiscal autonomy
subject to non-discrimination and central approval constitutionofindia.net constitutionofindia.net . The
Courts have upheld that any restriction under Art.302/304 must be lawful, reasonable and
proportionate to its objective.

Important Doctrines: The Doctrine of Pleasure (Art.310) and the Basic Structure Doctrine
(Art.368) are two constitutional principles that temper the above provisions. The former
limits executive arbitrariness in civil service tenure (Art.311 safeguards it), while the latter
limits Parliament’s amending power to preserve the Constitution’s core identity
(Keshavananda).

Sources: Constitutional text and commentary constitutionofindia.net constitutionofindia.net constitutionofindia.net

constitutionofindia.net lawwatch.in constitutionofindia.net constitutionofindia.net constitutionofindia.net constitutionofindia.net ;

Supreme Court judgments T.S.R. Subramaniam (2013) telegraphindia.com telegraphindia.com

timesofindia.indiatimes.com and Keshavananda Bharati (1973) lawwatch.in lawwatch.in .

Citations

Article 309: Recruitment and conditions of service of persons serving the Union or a …
https://www.constitutionofindia.net/articles/article-309-recruitment-and-conditions-of-service-of-
persons-serving-the-union-or-a-state/
Article 309: Recruitment and conditions of service of persons serving the Union or a …
https://www.constitutionofindia.net/articles/article-309-recruitment-and-conditions-of-service-of-
persons-serving-the-union-or-a-state/

Article 310: Tenure of office of persons serving the Union or a State - Constitution of …
https://www.constitutionofindia.net/articles/article-310-tenure-of-office-of-persons-serving-the-union-
or-a-state/

Doctrine of Pleasure in Indian Constitution - Drishti Judiciary

https://www.drishtijudiciary.com/doctrines/constitution-of-india-doct/doctrine-of-pleasure

Article 311: Dismissal, removal or reduction in rank of persons employed in civil cap…
https://www.constitutionofindia.net/articles/article-311-dismissal-removal-or-reduction-in-rank-of-
persons-employed-in-civil-capacities-under-the-union-or-a-state/

Fixed tenure for bureaucrats: How advisable?

https://timesofindia.indiatimes.com/blogs/from-the-fence/fixed-tenure-for-bureaucrats-how-advisable/