Constitutional Law-I

UNIT I : Introduction to Constitution

 Definition of Constitution
 Sources & Framing of Constitution
 Salient Features of Indian Constitution
 Nature of Constitution of India

Introduction to Indian Constitution

The framing of the Constitution was completed on November 26, 1949 when the Constituent Assembly
formally adopted the new Constitution. The Constitution came into force with effect from January 26,
1950.

The Constitution contains the fundamental law of the land. It is the source of all powers of, and
limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of the
state would be valid unless it is permissible under the Constitution. Therefore, it is imperative to have a
clear understanding of the nature and working of the Constitution.

Objectives of The Constitution

The Constitution of Independent India was framed in the background of about 200 years of colonial rule,
mass-based freedom struggle, the national movement, partition of the country and spread of communal
violence. Therefore, the framers of the Constitution were concerned about the aspirations of the
people, integrity and unity of the country and establishment of a democratic society. Their main was to
give India a ‘Constitution’ which will fulfill the cherished ideas and ideals of the people of this country.

The Constitution begins with a Preamble which declares India to be a

Sovereign, Socialist, Secular, Democratic, Republic. The Preamble also mentions the goals of securing
justice, liberty and equality for all its citizens and promotion of national unity and integrity on the basis
of fraternity among the people assuring dignity of the individual.

Salient Features of the Indian Constitution

The main features of Indian Constitution are the following:

1. A written Constitution: The Indian Constitution is mainly a written constitution. A written
constitution is framed at a given time and comes into force or is adopted on a fixed date as a document.
As you have already read that our constitution was framed over a period of 2 years, 11 months and 18
days, it was adopted on 26th November, 1949 and enforced on January 26, 1950. Certain conventions
have gradually evolved over a period of time which have proved useful in the working of the
constitution.

2. Federal Policy: The Constitution of India does not use the term ‘federal state’. It says that India
is a ‘Union of States’. There is a distribution of powers between the Union/Central Government and the
State

Governments. Since India is a federation, such distribution of functions becomes necessary. There are
three lists of powers such as Union List, State List and the Concurrent List.

3. Parliamentary Democracy: India has a parliamentary form of democracy. This has been adopted
from the British system. In a parliamentary democracy there is a close relationship between the
legislature and the executive. The Cabinet is selected from among the members of legislature. The
cabinet is responsible to the latter. In fact the Cabinet holds office so long as it enjoys the confidence of
the legislature.

In this form of democracy, the Head of the State is nominal. In India, the President is the Head of the
State. Constitutionally the President enjoys numerous powers but in practice the Council of Ministers
headed by the Prime Minister, which really exercises these powers. The President acts on the advice of
the Prime Minister and the Council of Ministers.

4. Fundamental Rights and Duties: Fundamental Rights are one of the important features of the
Indian Constitution. The Constitution provides for six Fundamental Rights about which you will read in
the following lesson. Fundamental Rights are justiciable and are protected by the judiciary. In case of
violation of any of these rights one can move to the court of law for their protection. Fundamental
Duties were added to our Constitution by the 42nd Amendment. It lays down a list of ten Fundamental
Duties for all citizens of India. While the rights are given as guarantees to the people, the duties are
obligations which every citizen is expected to perform.

5. Directive Principles of State Policy: The Directive Principles of State Policy which have been
adopted from the Irish Constitution, is another unique feature of the Constitution of India. The Directive
Principles were included in our Constitution in order to provide social and economic justice to our
people. Directive Principles aim at establishing a welfare state in India where there will be no
concentration of wealth in the hands of a few.

6. Partly rigid and Partly flexible: A constitution may be called rigid or flexible on the basis of its
amending procedure. The Constitution of India provides for three categories of amendments. In the first
category, amendment can be done by the two houses of Parliament simple majority of the members
present and voting of before sending it for the President’s assent. In the second category amendments
require a special majority. Such an amendment can be passed by each House of Parliament by a majority
of the total members of that House as well as by the 2/3rd majority of the members present and voting
in each house of Parliament and send to the President for his assent which cannot be denied. In the
third category besides the special majority mentioned in the second category, the same has to be
approved also by at least 50% of the State legislatures.

7. Language Policy: India is a country where different languages are spoken in various parts of the
country. Hindi and English have been made official languages of the central government. A state can
adopt the language spoken by its people in that state also as its official language.

8. Special Provisions for Scheduled Castes and Scheduled Tribes: The Constitution provides for
giving certain special concessions and privileges to the members of these castes. Seats have been
reserved for them in Parliament, State legislature and local bodies, all government services and in all
professional colleges.

9. A Constitution Derived from Many Sources: The framers of our constitution borrowed many
things from the constitutions of various other countries and included them in our constitution. That is
why; some writers call Indian Constitution a ‘bag of borrowings’.

10.Independent Judiciary: Indian judiciary is independent an impartial. The Indian judiciary is free from
the influence of the executive and the legislature. The judges are appointed on the basis of their
qualifications and cannot be removed easily.

11.Single Citizenship: In India there is only single citizenship. It means that every Indian is a citizen of
India, irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the
Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains
a citizen of India. All the citizens of India can secure employment anywhere in the country and enjoy all
the rights equally in all the parts of India.

12.Universal Adult Franchise: Indian democracy functions on the basis of ‘one person one vote’. Every
citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective of caste,
sex, race, religion or status. The Indian Constitution establishes political equality in India through the
method of universal adult franchise.

13.Emergency Provisions: The Constitution makers also foresaw that there could be situations when the
government could not be run as in ordinary times. To cope with such situations, the Constitution
elaborates on emergency provisions. There are three types of emergency; a) emergency caused by war,
external aggression or armed rebellion; b) emergency arising out of the failure of constitutional
machinery in states; and c) financial emergency.

Theory of Basic Structure

1. Supremacy of Constitution
2. Republican and Democratic form of Government

3. Secular Character of Constitution

4. Separation of Powers between the Legislature, the Executive and theJudiciary

5. Federal Character of Constitution

Nature of the Indian Constitution – Federal, Unitary, Quasi-federal

In a Democratic government, Constitution plays a primary role in efficient governance. Constitution is a

set of fundamental principles or established precedents according to which a State can be governed.
Constitutions may be classified into two categories. Such as: Federal or Unitary.

What is Federal and Unitary Constitution?

In a Unitary Constitution, all the powers of a Government are concentrated in a central authority. The
States or the different constituents of the Country are subordinate to such central authority. However,
in Federal Constitution, powers are distributed among the center and the States. States are not
subordinates of the central government. Constitution of USA, Australia are considered to be federal in
nature.

Is Indian Constitution a federal or unitary in nature?

Indian Constitution is an hybrid of both federal and unitary nature of a

Constitution and hence rightly termed as ‘Quasi-federal‘ Constitution. It means a federal set up where
despite having two clear sets of government – central and the states, more powers are given to the
Central Government.

Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it should displays federal
character predominantly.

Following are the defining features of federalism:

• Distribution of Powers between center and states

• Supremacy of the Constitution

• Written Constitution

• Rigidity of the Constitution

• Independent Judiciary
Factors that affect the federal character of the Constitution of India are:

• Appointment of the Governor of a State

• Power of the parliament to make laws on subjects in the State list.

• Power to form new states and to change existing boundaries

• Emergency Provisions

The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been grappling the
Apex court in India because of the theoretical label given to the Constitution of India, namely, federal,
quasifederal, unitary. 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. Though the authority was
decentralized this was mainly due to the arduous task of governing the large territory. The court
outlined the characteristics, which highlight the fact that the Indian Constitution is not a “traditional
federal Constitution”.

Thus, it can be said that Indian Constitution is primarily federal in nature even though it has unique
features that enable it to assume unitary features upon the time of need.

Principles of Federalism

The 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 State
Governments, existence of an independent judiciary and a rigid procedure for the amendment of the
Constitution.

There is an independent judiciary to determine issues between the Union and the States, to be
exercised in fields assigned to them respectively. However, there are marked differences between the
American federation and the Indian federation. They are:

1. America has a dual citizenship, while in India, there is single citizenship

2. States in America have a right to make their own Constitutions, whereasno such power is given
to States in India

3. Indian Constitution exhibits a centralizing tendency in several of itsprovisions

4. In certain circumstances, the Union is empowered to supersede theauthority of the State or to

exercise powers otherwise vested in the States.
CASE LAWS

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1

2. S. R. Bommai v. Union of India, AIR 1994 SC 1918 8

3. State of West Bengal v. Union of India, AIR 1963 SC 1241 24

4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39

5. Kuldip Nayar v. Union of India, AIR 2006 SC 3127

6. State of Haryana v. State of Punjab, AIR 2002 SC 685

UNIT – II : Constitutional Organs

 Legislative : Parliament
 Executive : President & Governor
 Judiciary : Supreme Court, High Court & Subordinate Courts

Parliament : Composition & Functions

According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all
laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This
check notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with
the power to amend the Constitution. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the document. But the
Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since
independence. With the intention of preserving the original ideals envisioned by the
constitution-makers, the apex court pronounced that Parliament could not distort, damage or
alter the basic features of the Constitution under the pretext of amending it. The phrase 'basic
structure' itself cannot be found in the Constitution. The Supreme Court recognised this concept
for the first time in the historic Kesavananda Bharati case in 1973.[1] Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.
The Indian parliament is considered as a bicameral structure. It consists of Lok Sabha, president,
and Rajya Sabha. Rajya Sabha represents the council of states and the upper house. While Lok
Sabha represents the house of people and the lower house. Lok Sabha represents the Indian
people while Rajya Sabha represents the union territories and states.
The Composition of Lok Sabha
The maximum number of people that can be elected in Lok Sabha is 552. Out of these 552
people, 530 are elected to be members of the states. While 20 are the members represented in
the union territories. The remaining 2 people are from the Anglo-Indian community that is
elected by the president of India.

The current structure of Lok Sabha consists of 530 members. Also, the state representatives are
directly elected by the people from their respective constituencies. Furthermore, under the
constitutional amendment act of 1988, the voting age was reduced to 18 years from 21 years.
The Composition of Rajya Sabha
The maximum people that can be elected in Rajya Sabha is 250. Out of this, 238 are elected as
the state representatives. While the remaining 12 are nominated by the president. The 238
people also consist of representatives from union territories.
Currently, there are 245 members of Rajya members. Also, 229 of them are the state
representatives. While 12 are nominated by the president and 4 are elected from union
territories. For the allocation of seats in Rajya Sabha to states and union territories, the fourth
schedule of the constitution is used.
The elected members that are elected for the state legislative assemblies elect the state
representatives in Rajya Sabha. Also, these seats are given in the Rajya Sabha on the basis of the
population.
For both the houses, the duration or tenure of their MP’s is different. Lok Sabha does not follow
continuous members. The normal term in Lok Sabha is of 5 years. Thus, it is from the date of it’s
first meeting to the general elections. The committee dissolves thereafter.
While Rajya Sabha is considered as a permanent body. Thus, it is not subjected to dissolution.
Also, 1/3rd members of the Rajya Sabha retire every 2nd year. These retiring members can
stand for re-election as well as for re-nomination any number of times they want.want

Speaker and deputy speaker of Lok Sabha

In Lok Sabha, the speaker is elected from amongst it’s elected members. Also, the date for the
election of the speaker is fixed by the president. The speaker decides if a bill is a money bill or
not. Also, the decision of the speaker is considered as final within any question.
Like the election of the speaker, the deputy speaker is also elected by the members of Lok
Sabha. However, the election date is fixed by the speaker. In the case of resignation, the deputy
speaker offers his resignation to the speaker of Lok Sabha.

Functions of Indian Parliament

The legislative powers of the federal government lie within the parliament of India.
Thus, the laws that are framed by the parliament of India are enforced throughout the
country. In India, the parliament is divided into two categories, Rajya Sabha and Lok
Sabha. Thus, the functions of Indian parliament depend on the various power given by
the government. So, the laws made by the parliament are executed by both the houses.
 The functions of parliament are divided based on the powers it has. These are
 Executive powers
 Legislative powers
 Constituent powers
 Judicial powers
 Financial powers
 Electoral powers
 Executive powers
The executive is responsible for the acts and policies of the parliament. This enacted by
the parliament form of the government. Thus, there are various measures that the
parliament uses to control.
These are questioned hour, committees, zero hours, etc. Furthermore, ministers are
also collectively responsible for the measures taken in the parliament.
Legislative Powers
There are many subjects in our constitution and they are divided among the state,
union, and concurrent lists. Thus, in the concurrent list, the parliamentary law overrules
the legislative law of the state. Furthermore, the constitution also has the powers to
make the law in the following circumstances:
 When the national emergency is under the operation.
 When the Rajya Sabha passes a resolution act.
 If it is required by two or more states to request the parliament.
 When the rule of the president is under operation.

Also, when it is important to give recognition to international treaties, agreements,

and conventions.

Constituent Powers

This is a simple function of parliament. Within this power, the parliament can pass any law that is
required. Also, it can be done to amend the constitution.

Judicial Powers

Within this power, there are different functions of parliament associated. This power includes functions
like

 Removing the vice president

 Impeaching the president in reference to the violation of the constitution
  Punishing various members for breach of privileges like serving as a member while he/she is still
under oath. Also, sitting in the house when the member themselves knows that they are not
eligible.
 Removing the judges of the high court and supreme court.

Financial Powers

This power has various functions in it. It includes scrutinizing the performance of the government
particularly with respect to financial committees. Also, it includes the enactment of the budget.

Executive Functions

The parliament of India also consists of the political executive. There are various ways through which the
parliament exerts the control over the executive. This is done through zero hours, question hour,
adjournment motion, calling attention motion, etc.

Thus, to establish this, members of various political parties are nominated for the parliamentary
discussion. These committees help the parliament to control the government.

It is mentioned in article 75 of the constitution that the council of ministers can stay in the office as far
as it does enjoy the confidence of the Lok Sabha. Also, the ministers are responsible for the Lok Sabha
individually as well as collectively. Thus, Lok Sabha also has the right to remove the council by passing a
no-confidence motion in the Lok Sabha.

Parliamentary Privileges
Parliamentary privileges are defined in Article 105 of the Indian Constitution. The members of
Parliment are exempted from any civil or criminal liability for any statement made or act done
in the course of their duties. The privileges are claimed only when the person is a member of
the house. As soon as he ends to be a member, the privileges are said to be called off. The
privileges given to the members are necessary for exercising constitutional functions. These
privileges are essential so that the proceedings and functions can be made in a disciplined and
undisturbed manner.

The privileges individually enjoyed by the members are

Freedom of speech in parliament

The members of the parliament have been vested with the freedom of speech and expression.
As the very essence of our parliamentary democracy is a free and fearless discussion, anything
said by them expressing their views and thoughts are exempted from any liability and cannot
be tried in the court of law.

The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different
from the freedom of speech and expression provided to a member of the parliament. It has
been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to
rules and orders which regulates the proceedings of the parliament.

This right is given even to non-members who have a right to speak in the house. Example,
attorney general of India. So that, there is a fearless participation of the members in the debate
and every member can put forward his thought without any fear or favour.

Some limitations are also present which should be followed in order to claim immunity:

 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.
Freedom from arrest
The members enjoy freedom from arrest in any civil case 40 days before and after the
adjournment of the house and also when the house is in session. No member can be
arrested from the limits of the parliament without the permission of the house to which
he/she belongs so that there is no hindrance in performing their duties.
If the detention of any members of the parliament is made, the chairman or the speaker
should be informed by the concerned authority, the reason for the arrest. But, a
member can be arrested outside the limits of the house on criminal charges against him
under The Preventive Detention act, The Essential Services Maintenance Act (ESMA),
The National Security Act (NSA) or any such act.
Freedom from appearing as a witness
The members of the parliament enjoy special privileges and are exempted from
attending court as a witness. They are given complete liberty to attend the house and
perform their duties without any interference from the court.
Privileges enjoyed by the members collectively as part of parliament
Right to prohibit the publication of proceedings
As stated in Article 105(2) of the Constitution, no person shall be held liable for
publishing any reports, discussions etc. of the house under the authority of the member
of the house. For paramount and national importance, it is essential that the
proceedings should be communicated to the public to aware them about what is going
on in the parliament.
But, any partial report of detached part of proceedings or any publication made with
malice intention is disentitled for the protection. Protection is only granted if it reflects
the true proceedings of the house. If any expunged proceedings are published or any
misrepresentation or misreporting is found, it is held to be the breach of the privilege
and contempt of the house.
Right to exclude strangers
The members of the house have the power and right to exclude strangers who are not
members of the house from the proceedings. This right is very essential for securing free
and fair discussion in the house. If any breach is reported then the punishment in the
form of admonition, reprimand, or imprisonment can be given.

The right to punish members and outsiders for breach of its privileges
The Indian Parliament has the power to punish any person whether strangers or any
member of the house for any breach or contempt of the house. When any breach is
committed by the member of the house, he/she is expelled from the house.
This right has been defined as ‘keystone of parliamentary privilege’ because, without
this power, the house can suffer contempt and breach and is very necessary to
safeguard its authority and discharge its functions. This power has also been upheld by
the judiciary in most of the cases. The house can put in custody any person or member
for contempt till the period the house is in session.
The right to regulate the internal affairs of the house
Each house has a right to regulate its proceedings in the way it deems fit and proper.
Each house has its own jurisdiction over the house and no authority from the other
house can interfere in regulation of its internal proceedings. Under Article 118 of the
Constitution, the house have been empowered to conduct its regulation for proceedings
and cannot be challenged in the court of law on the ground that the house is not in
accordance with the rules made under Article 118. The Supreme Court has also held
that this is general provision and the rule is not binding upon the house. They can
deviate or change the rule anytime accordingly.
Punishments prescribed for breach of privileges or contempt of the house
 Imprisonment – If the breach committed is of a grave nature the, punishment can be
given in the form of the imprisonment of any member or person.
 Imposing fine – If in the view of the parliament, the breach or contempt committed
is of economic offence and any pecuniary gain has been made from the breach then,
the parliament can impose fine on the person.
 Prosecuting the offenders – The parliament can also prosecute the one committing
the breach.
 Punishment given to its own members – If any contempt is committed by the
members of the parliament then, he is to be punished by the house itself which
could also result in the suspension of the member from the house.

What constitutes parliamentary breach or contempt of the house?

There is no codification to clearly state that what action constitutes a breach and
what punishment it entails. Although, there are various acts which are treated by
the house as the contempt. It is generally based on the actions which tend to
obstruct the proceedings of the house and creates a disturbance for the members.
Some of them are briefly discussed.
Giving any misleading statement in the house
The acts which are done solely with the purpose to mislead are considered as the
contempt of the house. If the statement is made by a person who believes the
information to be true then, there is no breach involved. It has to be proved that the
statement was made with an intention to mislead the house.
Disturbance by the outsiders
Any disruption created by shouting slogans or throwing leaflets etc. with the
purpose of disturbing the proceedings of the court is regarded as a major contempt
by the house. The person is imprisoned by the house for a specified period of time
or a warning is given depending on the seriousness of the case.
Any kind of assault on the members
Here, the privilege is available when the member is performing his duties. An assault
done by any person on the member of the parliament in the course of performing
his duties is treated as contempt of the house.
Writings or speeches about the character of the member
any speech published or libel made against the character of the member is regarded
as the contempt of the house. These are regarded to be necessary because it affects
the performance and function of the member by reducing the respect for him.
So, clearly, any attack on the privilege of the members by any means is considered
as a breach of the privilege and the parliament can take action regarding the same.

Parliamentary privileges and the principle of natural justice

In a recent judgment by the Supreme Court judges in the case of Algaapural R.
Mohanraj v Tamil Nadu Legislative AssemblyAssembly(2015), it was held that the
principle of the natural justice cannot be violated by the privilege committee.
Executive : President & Governor
The President (Article 52)
The first and foremost part of the Executive is the President. Article 52 states that
there shall be a President of India. The President is considered the Executive head of
the country. All the Executive business of the country is carried out in the name of
the President.
Article 58 talks about the eligibility of a person to become President of India. It says
that a person is eligible for election as President if he:
 is a citizen of India;
 has completed the age of thirty-five years;
 is qualified for election as a member of the House of the People.
A person can be disqualified for election as President if he holds any office of profit
under
 the Union of India or;
 the Government of any State or;
 under any local or other authority subject to the control of any Government of
India.
Condition of President’s Office: Article 59
The eligibility to become the President might seem simple but the conditions his
office are quite strict. Article 59 of the Indian Constitution talks about the
conditions of the President’s office. It says:
 The President cannot be a member of either House of Parliament or of any
other House of the Legislature of any State.
 If he is a member of either House of Parliament or a member of a House of
the Legislature of any State, he will need to vacate his seat in that House on
the date of entering into his office as President.
 The President shall not hold any other office of profit.
 The President shall be authorized to the use of his official residences without
rent.
 He shall be also authorized to emoluments, allowances, and privileges
determined by Parliament.
 The emoluments and allowances of the President cannot be diminished or
reduced during his term of office.
Election of President: Article 54
It says that the President must be elected by the members of an electoral
college. The electoral college consists of the elected members of both
Houses of Parliament and the state Legislative Assemblies.
 Mode of Voting
As per Article 55(3) of the Constitution of India, the election of the President
should be held according to the system of proportional representation by
means of a single transferable vote. The voting at the presidential election
shall be by secret ballot.
Article 71 deals matters relating to the election of the President. It states that
any dispute arising with respect to the election of the President will be
adjudicated by the Supreme court and its decision will be considered final.
 If the election of a person as President is declared void, acts done by him
in the exercise of the powers of the office of President will not be
considered invalid by reason of the order of the Supreme Court.
 Parliament can formulate any law regarding the election of a President in
consonance with the provisions of the Constitution.
 The election of a person as President or Vice President shall not be called
in question on the ground of the existence of any vacancy for whatever
reason among the members of the electoral college electing him.

Powers of the President

The President of India is provided with a wide range of power that we will discuss one by one.
Let’s start with the most interesting and important power i.e. the executive powers.

Executive powers

Article 53 of the Indian Constitution states that all the executive powers of the Union will be
vested in the President of India. President is allowed to exercise his executive powers through
officers subordinate to him, directly or indirectly, in consonance to the provisions of the
Constitution.

Under this article, the President has powers regarding:

Appointment of the high authorities of the Constitution like the Prime Minister and the Council
of Ministers;

 Right of being informed about all the national affairs;

 Appointment of the judges of the constitutional courts(Supreme Court and High Courts);
  Appointment of the state Governors, the Attorney General, the Comptroller, and
Auditor General, the Chief Commissioner and members of the Election Commission of
India;
 Administration of Union territories and appointment of the Chief Commissioners and
Lieutenant Governor of the Centrally Administered Areas;
 Removal of the Council of Ministers, the state Governors, the Attorney General.

Military powers

Article 53 also states that the President shall be the Supreme Commander of all the Armed
Forces of the Union of India. It also states that no specific provisions can reduce the scope of
this general principle.

As the Supreme Commander of the Armed Forces of the Union, President has powers
regarding:

 Appointment of all the officers, including the appointment of the chiefs of the forces;
 Wars are waged in the name of the President;
 Peace is concluded in the name of the President.
 Diplomatic powers

The President forms the face of Indian diplomacy and helps the nation to maintain cordial
relationships with countries across the globe.

All the Ambassadors and high commissioners in foreign nations are his representatives;

He receives the credentials of the Diplomatic representatives of other nations;

Prior to ratification by Parliament, the treaties and agreements with other nations, are
negotiated by the President.

Legislative powers

The President also enjoys certain legislative powers like:

During the budget session, the President is the first to address the Parliament;

The President is empowered to summon a joint session in order to break the deadlock in the
legislation process between the two Houses of the Parliament;

President sanction is mandatory in cases of provisions relating to:

  creating a new state;
 changes in the boundary of existing states;
 a change in the name of a state.

Legislative provisions relating to fundamental rights of the citizens of India require the
President’s consent;

 President’s consent is mandatory in cases of money bill originating in Lok sabha;

 President’s consent is necessary for all the bills passed by the Parliament to become a
law;
 President is empowered to promulgate ordinances when the Parliament is not in
session;
 President also nominates the members of both the Houses.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An ordinance can be
promulgated if:

neither of the House of the Parliament is in session;

and the President feels a need for immediate action.

The ordinance which is promulgated by the President will have the same effect as that of an act
or law of the Parliament.

The essential conditions to be met by an ordinance are:

 It shall be presented before both the Houses of Parliament for passing when it comes to
the session;
 The ordinance shall cease to operate six weeks after the date of reassembling of the
parliament;
 The ordinance may also expire if the resolutions disapproving it are passed by both the
Houses of Parliament;
 It can be withdrawn at any time by the President;
 The ordinance must be in consonance to the Constitution of India else it shall be
declared void.

Financial Roles

President receives reports of the Finance Commission and acts on its report.

The Contingency Funds of India are at the disposal of the President.

He also causes the presentation of audits in the Parliament.

Judicial powers

The President enjoys the following privileges as his judicial powers:

 He can rectify the judicial errors;

 He exercises the power of grant of pardons and reprieves of punishments;
 President can seek the advice of Supreme Courts on:
 Legal matters,
 Constitutional matter,
 Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the President.
President can grant pardons, respites, reprieves, and remissions of punishments or remit
suspend or commute the sentence given to a person by the court in the following cases:

When the sentence is granted through a court-martial;

When the sentence or punishment is given for offense of violation of any law relating to
matters that fall in the ambit of Union’s executive powers;

When a death sentence is passed by a court.

Clemency Power not unbridled

Unbridled Ness of the pardoning powers of the president has always been a highly debated
issue. Supreme Court in various cases has laid down provisions for exercising control over the
pardoning powers of the Executive.

In Maru Ram Etc. Etc v Union of India, Supreme Court held that pardoning power under Article
72 is to be exercised by the President, on the advice of Central Government and not on his own
will and that the advice is binding on the head of the Republic.

In Dhananjay Chatterjee alias Dhana v State of West Bengal, the Supreme Court reiterated the
same.

Nature of Pardoning Power

Indian Presidents are known for the generous grant of pardons. Pardon is an act of grace and
not a form of a right to be demanded by any person. Unlike the Constitutional provision,
Pardon is granted by the executive as a whole and not by the President alone. This is done as it
is necessary for the President to act on the aid and advice of the Council of Ministers.

A pardon completely sets free an offender of all his guilt. A full pardon makes the person
innocent in the eyes of law as if he has never committed a crime. It gives him the identity as
that of a new man with a new set of capacities.

The pardoning power comes with discretion on the part of the President. The practice to confer
the right of pardon on some authority has long existed. It is also practised in other countries,
for example, the U.S. Constitution prescribes for the power of pardon to the President whereas,
In the United Kingdom, the same is conferred to the Crown.

Pardoning Power: subject to judicial review

The question that arises is whether the pardoning power of the president can be brought under
the judicial review. Can the judicial review of such an order be done? What could be the
grounds for judicial review of such orders?

In Kuljit Singh Alias Ranga Vs Lt. Governor of Delhi & Ors the court held that the pardoning
powers of the president

under Article 72 can be examined according to the facts and circumstances of each case. The
Court has the power of judicial review even on a matter which the Constitution has vested
solely in the Executive.

The most significant case of Kehar Singh And Anr. Etc Vs. Union of India And Anr. dealt with
the concept of judicial review of the President’s pardoning power on grounds of its merit. In
this case, the Supreme Court held that

The terms and history of Article 72 as well as the specific guidelines and case laws relating to
Article 72 clearly indicate that the ambit of Article 72 very wide. The powers under this article
cannot be clearly defined or channelized with specific guidelines. The term “pardon“ itself
signifies it to be discretionary. Hence, the grant or rejection of pardons cannot be reasoned and
the order of President cannot be brought under judicial review with respect to its merits.

Whereas In Epuru Sudhakar Case, where a Congress activist faced ten years in prison in
connection with the killing of two persons including a TDP activist. His punishment was remitted
by the Governor of Andhra Pradesh. Contentions were raised regarding the immunity of the
pardoning power. The Supreme Court bench stated that the exercise of pardoning powers
would be subject to judicial review by the court against the maintenance of Rule of Law.

Exercising powers of clemency is a matter of discretion but still subject to certain standards and
not a matter of privilege. The power of executive clemency is a matter of performance of official
duty and not only for benefiting the convict. During exercising such powers the President must
also consider the effect of his decision on the family of the victims, the society and the
precedent it sets for the future.

Thus this judgment settled position of law that immunity from the judicial review can not be
granted to the President for exercise or non-exercise of the pardoning power.

Judicial Process Under the Constitution

Nature of Judicial Review

The Constitution if the Supreme law of the land and any law which is inconsistent with the constitution
is termed to be void. ‘Judicial Review‘ is a term refers to the power that can be utilised for judicially
reviewing an enactment passed by the Legislature, or a decision of an administrator, an order of a quasi-
judicial authority and/or in a given case, a decision of the judiciary.

The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this
case, justice John Marshall held that judiciary has inherent power to review actions by legislature even if
no explicit provision is given in the constitution.

Judicial Review – Art. 32, 226 and 227

In India, by reason of Arts. 32 and 136, the Supreme Court can exercise the power of judicial review.
Similarly, under Arts. 226 and 227 High Courts have a power of judicial review. No other Court has been
conferred with such a power. In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the
power vested in SC by art 32 and High Court by art 226 over legislative action is a basic feature.

Judicial Review has two prime functions

1. Legitimizing government action; and

2. To protect the Constitution against any undue encroachment by theGovernment

the Government

Court system in India

• Supreme Court

• High Court

• Sessions Court

• Assistant Sessions Judge

• Chief Metropolitan Magistrate

• Chief Judicial Magistrate

• Metropolitan Magistrate

• Special Metropolitan Magistrate

Supreme Court and High Court Judges – Appointments, conditions of service

The supreme court, being the guardian of the constitution, ensures that the fundamental rights of the
citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has
provided several measures that ensure the independence of the judiciary.

Composition of the Supreme Court

Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number
of other judges has now been increased to 25.

To be appointed as a judge of the supreme court, a person must be a citizen of India and

• has been a Judge of a High Court for 5 yrs .

• has been an advocate of a High Court for 10 yrs.

• in the opinion of the president, a distinguished Jurist.

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of controversy
because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice
is appointed by the president after consulting with the judges of the supreme court and the high courts.
Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly
tried to prevent the executive from having complete discretionary powers in the appointment of the
judges.

Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However,
this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior
judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that
the word “consult” does not mean that the president is bound by the advise. He is free to make his own
decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge
from one high court to another under Article 222, SC held that the President has the right to differ from
the advice provided by the consultants.

The 11th Presidential Reverence sought clarification on certain doubts over the consultation process to
be adopted by the Chief Justice of India as stipulated in the 1993 case relating to judges appointment
and transfer opinion.

The following propositions were laid down:

1. CJI should consult a collegium of four senior most Judges of the ApexCourt

2. The Collegium should make the decision in consensus and unless theopinion of the collegium is
in conformity with that of the CJI, no recommendation is to be made

3. In the transfer of HC Judges, in addition to the collegium of four seniormost Judges, the CJI was
obliged to consult the CJ of two High Courts.

4. In regard to the appointment of HC Judges, the CJI was required toconsult only two senior most
Judges of the Apex Court Case Law:

This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR
1982. In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of
appointment of judges of high courts and supreme court, the CJ should have the primacy and the
appointment of the CJ should be based on seniority. It further held that the CJ must consult his two
senior most judges and the recommendation must be made only if there is a consensus among them.

As of now, due to the decision in this case, the appointment of the judges in SC and High Courts are
fairly free from executive control. This is an important factor that ensure the independence of the
judiciary.

Jurisdiction of the Supreme Court

The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed.

Art 129 Court of Record

SC is a court of record and has all the powers including power to punish for civil or criminal contempt of
court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish
for contempt of any subordinate court in India as well.

In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for
failing to deliver on his promise not to allow any construction in disputed area.
Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between:

• Center and one or more states.

• Center and one or more states on one side and one or more states on another.

• two or more states.

Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a
question of law or fact on which a legal right depends. Further, the suit cannot be because of any
commercial relation or political relation between the two parties.

In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka
against the Govt. regarding its objection to the appointment of an inquiry commission is maintainable.

Art 132 Appellate Jurisdiction – Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout
the country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the
decision of the lower courts.

Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:

1. The order appealed must be against the judgement of a high court in civil,criminal, or other
proceedings.

2. The case involves a question of law as to the interpretation of theconstitution.

3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 – If there is a difference of opinion among High
Courts and if there is no direct decision by SC on that point, it is a substantial question of law that can
permit appeal in SC.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen
or is likely to arise and that the question is of such public importance that expedient opinion of the SC is
required, then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to
the president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under
art 131.
There is no similar provision in the American constitution. In US, the court can give ruling only on
concrete cases.

In re Kerala Education Bill 1953, SC has interpreted the word “may” in clause 1 as it is not bound to give
its opinion. If it has a good reason, it may refuse to express its opinion.

In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding
on all courts in the country.

In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its
opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary,
and favors a particular religion.

Public Interest Litigation (PIL)

The Supreme Court has developed new methods of dispensing justice to the masses through the public
interest litigation. Former Chief Justice PN. Bhagwat, under whose leadership public interest litigation
attained a new dimension comments that “the supreme court has developed several new commitments.
It has carried forward participative justice. It has laid just standards of procedure. It has made justice
more accessible to citizens”.

Judicial Activism

The term ‘judicial activism’ is intended to refer to, and cover, the action of the court in excess of, and
beyond the power of judicial review. From one angle it is said to be an act in excess of, or without,
jurisdiction. The Constitution does not confer any authority or jurisdiction for ‘activism’ as such on the
Court.

• interference of the judiciary in the legislative and executive fields

• occurs due to the non-activity of the other organs of the government

• relief is provided to the disadvantaged and aggrieved citizens

• a base for policy making in competition with the legislature and executive

In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower
courts become activists and compel the authority to act and sometimes also direct the government
regarding policies and also matters of administration.
Judicial Restraint

In adjudging the constitutionality of socio-economic legislation, judges accord deference to the

legislative will and such legislation is not invalidated unless it is patently discriminatory. Judges do not
interfere with the policy of the executive government if it is not contrary to a statute or the Constitution.

Unit- III : Distribution of Legislative Powers between Centre and States – Arts. 245, 246
 Center-State Relations
 Legislative Relations
 Administrative Relations
 Financial Relations

India being a Federal State all the powers are distributed between the Centre and the States. Due to the
distribution of powers various relations are witnessed among them. Such relations are:

Legislative Relations

The Legislative Relations of the Centre and the State have been mentioned under Article 245-
255 of the Constitution. There is a two-fold distribution of legislative power:

Territorial Jurisdiction

Article 245(1) empowers the Parliament to make laws for the whole or any part of the territory of India,
subject to the provisions of the Constitution. Article 245(2) says that a law made by the Parliament shall
not be considered invalid on the ground that it has extra-territorial operation. The legislative powers of
the Parliament and the State Legislature are dependent on the scheme of distribution of powers,
Fundamental Rights and other provisions of the Constitution.

In the case of Wallace vs. Income-tax Commissioner, Bombay, a company was registered in England and
was also a partner in a firm in India. The Income-tax Authorities of India sought to tax the entire income
made by the Company. The rule of territorial nexus was applied by the Privy Council and the levy of tax
valid.

Delegated Legislation

Delegated Legislation may be explained as the making of rules of law under the authority of the Act of
the Parliament. Various factors are responsible for the growth of delegated legislation. They are:

 Pressure on the Parliament – There is a lot of pressure on the Parliament. It does not have
sufficient time to make all legislations.
  Technicality of the subject matter – Modern legislations require special knowledge and the
Legislature do not possess such knowledge as it is full of Politicians.
 Experimentation – Delegated Legislation provides scope for experimentation as it is easily
amendable.
 Unforeseen Contingencies – Delegated Legislation enables the Government to see unforeseen
contingencies and to act quickly during emergency situations.
 Emergency Powers – The Legislature is not able to make quick decisions during emergencies.
Delegated Legislation serves this purpose.

Subject Matter

Article 246 deals with the subject matter of law making power of the Parliament and the State
Legislature.

The first clause says that the Parliament has exclusive power to make laws regarding matters mentioned
in List I in the Seventh Schedule (Union list), notwithstanding anything mentioned in the second and
third clause. The second clause says that the State Legislatures have power to make laws regarding the
matters mentioned in List III in the Seventh Schedule (Concurrent List), notwithstanding anything in the
third and first clause.

The Legislature of any State has exclusive power to make laws in respect of such State or any part of the
State regarding matters present in List II in the Seventh Schedule (State List). The Parliament has been
empowered to make laws regarding any matter for any part of the Indian Territory even if such matter is
enumerated in the State List.

The Union List

This List has 97 subjects which are of national importance. Such subjects are defence, foreign affairs,
banking currency and coinage, union duties and taxes. The Parliament has the power to make laws on
these subjects.

The State List

This List has 66 subjects which are of local importance. Such subjects are public order and police, local
Government, public health and sanitation, agriculture, forest, fisheries, education, State taxes and
duties. The States have power to make laws on these subjects.

The Concurrent List

This List consists of 47 subjects; both the States and the Centre can make laws on the subjects
mentioned in this list. However, when there is a conflict between the Centre and the State, the law
made by the Centre shall prevail.

Residuary Powers
The residuary powers are vested in the Parliament. It has power to make laws regarding any matter not
mentioned in the State List or Concurrent List.

Parliament’s Power to legislate on State Subjects

During the following circumstances, the power of the Union extends and it gets the power to make laws
on the subjects mentioned in the State List:

Power of Parliament to legislate in the national interest:

If the Rajya Sabha passes a resolution by 2/3rd majority of the members present and voting that it is
necessary in the national interest that the Parliament should makes laws regarding a subject mentioned
in the State List, the Parliament is empowered to make laws with respect to such matter for whole or
any part of the territory of India. Such laws do not have effect after the expiration of 6 months after the
resolution has ceased to operate. (Article 249)

Proclamation of Emergency

During proclamation of an emergency, the Parliament has the power to make laws on the subjects
mentioned in the State List for the whole or any part of the territory of India. Such laws do not have
effect after the expiration of 6 months after the emergency has ceased to operate.(Article 250)

Power to legislate with the consent of the State

If a resolution is passed by 2 or more States that it is desirable to have a law that is passed by the
Parliament on any matter mentioned in the State List, the Parliament has the power to make laws.
(Article 52)

Power of Parliament to make laws for giving effect to treaties and international agreements

The Constitution has empowered the Parliament to create laws for the entire or any part of territory of
India for the implementation of treaties, international agreements and conventions. (Article 253)

Failure of Constitutional Machinery in a State

The Parliament can make laws for the matters in the State List when it is declared by the Parliament that
the administration of a State is being done according to the provisions of the Constitution. (Article 356)

Administrative Relations

One of the complicated problems under a federal system is the adjustment of administrative relations
between the Union and the States. Administration is the direct consequence of legislation and without
administrative machineries for implementing laws; the laws are of no importance. So our Constitution
provides detailed provisions to avoid clashes between the Union and States in the administrative field.
Article 256 to Article 263 deal with the Union control over States in normal times:

Direction by the Centre to the States

According to Article 256 the executive power of the State shall be exercised ensuring compliance with
the laws made by the Parliament and the executive power of the Union shall extend to the giving of such
directions to the State as it may be essential for the purpose. Article 257 says that the States have to
exercise their executive power in a way by which they do not impede the executive power of the Union
in the State. The powers of the Central Government extend to giving directions to the State regarding
the construction and maintenance of means of communication which are declared to be of national or
military importance and measures to be taken for the protection of railway within the States.

Delegation of Union’s function to the States

Article 258 says that the Parliament may entrust either conditionally or unconditionally to the
Government or to its offices functions relating to any matter falling within the executive powers of the
Union, with the consent of the State Government, with the consent of the State Government. The
Parliament under the second clause is empowered to use the State machinery for the enforcement of
Union laws and for this purpose may confer power or impose duties upon the State or its officers or
authorities in respect of these matters to see that the laws are made applicable to the State.

All-India Services

All-India Services are common to the Union and States. Under Article 312 the Rajya Sabha passes a
resolution supported by not less than 2/3rd of the members present and voting that it is essential in the
nation’s interest to do so, the Parliament may by law provide for the creation of one or more All-India
Services.

Grants in-aid

The Central Government provides Grant in-aid to the States. It is provided because it is a process by
which the Central Government exercises strict control over the States and it facilitates Centre-State
coordination.

Full faith and Credit

According to Article 261 full faith and credit shall be given throughout the territory of India to public
acts, records and judicial proceedings of the Union and every State.

Disputes relating to water

Article 262 deals with disputes relating to water. It empowers the Parliament to provide by law
adjudication of any dispute regarding the uses, distribution or control of waters of any inter-State rivers
and river valleys. Under the second clause of this Article, the Parliament may by law provide that neither
the Supreme Court nor any other Court shall have any jurisdiction regarding the disputes relating to
inter-State rivers and river valleys.

Inter-State Council
Under Article 263 Inter-State Councils are established to facilitate coordination between States. The
President of India in exercise of the powers under Article 263 has constituted the Inter-State Council on
May28, 1990. The following are the duties of the body:

 Investigation and discussion of the subjects which are of common interest

 Make suggestions for better co-ordination of policy and actions on such subjects
 Deliberate on matters of general interest to the States referred by the Chairman to the Council.

Financial Relations

Article 264-291 throw light on the financial relations between the Centre and the State. Article 265
provides that no tax can be levied or collected except by authority of law.

Article 268 deals with the distribution of Revenue between the Union and the States. The Centre has
exclusive jurisdiction over the taxes mentioned in the Union List and the States have exclusive
jurisdiction over the taxes mentioned in the State List and no taxes have been mentioned in the
Concurrent List. The following categories of the Union taxes are wholly or partially assigned to the
States:

 Article 268 says that stamp duties and duties of excise on medicinal and toilet preparations
included in the Union List shall be levied by the Union Government but are collected by the
States within which such duties are being levied. The States are assigned with the proceeds of
such duties.
 According to Article 268A, the Union has the power to levy service taxes which shall be collected
and appropriated by the Union and the State according to the principles formulated by the
Parliament by law.
 According to Article 269(1) the taxes on sale or purchase of goods and taxes on the assignment
of goods shall be levied and collected by the Government of India. It shall be assigned and shall
be considered to be assigned to the States on or after April1, 1996 in the way prescribed by the
Parliament by law. According to Article 269(2) says that the net proceeds in any financial year of
any such tax except in so far as those proceeds represent proceeds attributable to Union
territories, shall not form part of the Consolidated Fund of India; but shall be assigned to the
States within which tax is being levied in that year. It shall be distributed among those States
according to the principles of distribution as may be prescribed by Parliament by law.
 Article 270 mentions that all taxes and duties referred to in the Union List, except the duties and
taxes referred to in Article 271 and any cess levied for specific purpose under any law made by
the Parliament shall be levied and collected by the Government of India and be distributed
between the Union and the States in the way provided by the Parliament.
 Article 271 says that if the Parliament at any time increases any of the duties or taxes provided
under Article 269 and Article 270 by imposing a surcharge, the entire proceeds of such
surcharge shall form part of the Consolidated Fund of India.
 The States receive Grants-in aid from the Centre. Under Statutory grants, the grants are given to
States which require assistance. The grants are given out of the Consolidated Fund of India.
 Article 275 provides Specific grants for the welfare of schedule tribes in a State and to improvise
their administrative level. Article 282 facilitates providing of certain grants to the States on the
recommendations of the Planning Commission at the discretion of the Union Government. Such
grants are known as Discretionary Grants.
Cases
The following cases explained the relationship between the Centre and the State better and had
an impact on both of them.
1. State of West Bengal vs. Union of India, AIR 1963 SC 1241
In this case, it was held that the Indian Constitution is not truly federal. The States are given the
matters of local importance and the other powers specially which deal with the economic,
industrial and commercial unity is with the Union.
2. State of Karnataka vs. Union of India, AIR 1978 SC 68
The Court held that the Constitution of India is not federal but is quasi-federal in nature. The
executive and legislative powers are more in the hands of the Centre.
3. S.R. Bommai vs. Union of India, 1994 SC 1918
In this case, Justice Ahmadi held that the Indian Constitution is quasi-federal as the word
‘federal’ is not mentioned anywhere in the Constitution. Justice Sawant and Kuldip Singh held
that federalism is an essential feature of the Constitution. According to Justice Ramaswamy the
Indian Constitution is an ‘Organic Federation’. According to Justice Jeevan Reddy and Justice
Agarwal federalism in the Constitution has a different meaning in accordance with the context.
Proper distribution of powers between the Centre and the States is an important feature of a
Federal Constitution. The makers of the Constitution have divided the powers well in order to
avoid clashes between the Centre and the States. However, it appears that the framers of the
Constitution have allocated more powers to the Centre and made it stronger.

Doctrines:

1. Territorial nexus
Under article 245 of the Indian constitution, it has been stated that:

Parliament has jurisdiction to make laws for extraterritorial operations or laws for the whole or
any part of the country.

The state legislature has the jurisdiction to make laws for the whole or any part of the state.

Thus it can be said that both the union and the state have their own territorial jurisdiction to
make laws.

Under article 246 it has been stated,

1. Parliament has the explicit power to make laws for the subject matters enumerated in
the union list (list I of the 7th schedule)
 2. The state has the power to make laws for the subject matter enumerated in the state
list(list II of the 7th schedule)
3. Both the state and the union have the power to make laws for the subject matter
enumerated in the concurrent list(list III of the 7th schedule)

Under article 245(2) of the Indian constitution, if any law is made by the parliament regarding
the extraterritorial operations, no questions can be raised on its validity. Thus the validity of a
legislation can’t be questioned. In this case, a court is bound to enforce the laws made with
regards to extra-territorial operations. This legislation can’t be invalidated.

Theory of territorial nexus

In order to give effect to the laws made by a state for extraterritorial purpose, a nexus between
the object and state must be shown. The state legislature has the jurisdiction to make laws
within its territorial jurisdiction. Territorial nexus is one such exception which allows the state
to make laws for extraterritorial operations if it shows that there exists a nexus between the
object and the state.

1. Wallace Bros. And Co. Ltd. vs The Commissioner Of Income

In the instant case, a company which was registered and incorporated in also which also
carried out its business in India through a sleeping partner. The firm made a staggering profit in
that accounting year. The income tax authorities sought to levy a tax upon the company of the
respondent. The income tax authority was challenged by the respondent, but it was held by the
privy council that there existed the doctrine of territorial nexus and held the tax valid. It is said
that the major part of that income was extracted from British India was the sufficient ground to
establish a territorial nexus.

Territorial Nexus and the State Legislature

Our Constitution confers the power upon the state to make laws within its territorial
jurisdiction

Now a question on whether a law falls under the ambit of the state legislature enacting it.

The state legislature is empowered to make laws for its own purpose. The doctrine of territorial
nexus is only applicable when the following conditions are fulfilled. Those conditions are as
follows;

 The nexus must be legitimate.

 The liability shall be related to the territorial connection.
These conditions are sufficient enough to show that the nexus was legitimate and the court
would not question its validity. In several cases of the taxation law it has been held that the
territorial limits of a state would not hamper the sale and purchase of the goods. Buying and
selling of goods would be a reasonable ground to sustain the taxing power of the state.

The role of territorial nexus in Indian Legislation

As it has been stated before in this article that Article 245 of the Indian constitution states the
extent to which the legislative powers are conferred in parliament and the state legislature in
order to make laws with respect to the territory. Parliament has the power to make laws for the
for which it has the jurisdiction. The jurisdiction of parliament extends to the whole or any part
of India. They can also be enacted by the parliament for extraterritorial operations if there is
sufficient nexus of the law with India. These laws cannot be questioned or held invalidated.
However, all the laws must comply with the provisions of the Indian constitution.

The powers conferred in parliament are not absolute. Laws made by the parliament for
Extraterritorial operations are for the purpose of operating outside the geographical limits of
India. The state legislature doesn’t have the power to make laws for extraterritorial operations.
However, this limitation of the state legislature is subjected to one exception and that is
territorial nexus. If it is established that there is sufficient connection with the object and the
laws enacted by the state legislature will have an effect outside the territorial limits of the
state.

The following circumstances are required in order to invoke the jurisdiction of territorial nexus-

 If there exist extraterritorial operations in a state

 If there is legitimate nexus between the object and the state. It should be clear that the
object shall be situated outside the territorial limits of the state but it must have a
territorial connection with the state.

1. State of Bombay vs R.M.D. Chamarbaugwala

In the instant case, the respondent who was not a resident of Bombay conducted a prize
competition of a crossword puzzle through a newspaper which was printed and published in
the Bangalore. This paper was widely published in Bombay to. For this competition depots were
established so that the forms and fees can be collected. It attracted a lot of buyers for the ticket
of that competition.

The state government then levy take over the respondents company for contesting a prize
competition in the state. The respondent challenged the supreme court and a question was
raised whether the tax can be levied upon a person who resides outside the territorial limits of
the state. It was held by the supreme court that there was a sufficient territorial nexus and the
legislature has the authority to tax the respondent for the revenue earned

by his company through the prize competition.

2.Tata Iron And Steel Company vs. Bihar State Tax Act

The state of Bihar passed sales tax act for levying a tax in on the sales whether it took place
within the territorial limits of the state or outside of that limit, it was also stated that the goods
should be manufactured in the state. In the instant case, it was held that there was an
established nexus between the object which was to be taxed and the law. These are the two
essential elements that constitute the doctrine of territorial nexus.

3. State of Bihar v. Charusila Dasi

In the instant case, the state of Bihar passed a legislation which dealt with the motive to
safeguard the properties relating to the Hindu religious trusts. This act consists of all the trusts
within the territorial limits of Bihar. So the respondent Madea trust deed several of her
properties in situated in Bihar and Calcutta, and the trust was inside the territorial limits of
Bihar. Several questions were raised about the scope of this act.

It was held that the act passed by the state of Bihar could have the effect over the property
situated outside the territorial limits of Bihar keeping in mind that the trust must be situated
with the limits of the state and there exist the sufficient nexus.

4. Shrikant Bhalchandra Karulkar v. State of Gujarat

The hon’ble supreme court in this instant case of Shrikant Bhalchandra Karulkar v. State of
Gujarat held that the state legislature is conferred with the power to enact legislation for extra-
territorial operations complying with the provisions enshrined under article 245 and 246.The
laws made by the state legislature is applicable to a person and his acts within the territorial
limits of a state is not considered as extra territorial.

2. Harmonious Construction

It states that a provision of the statute should not be interpreted or construed in isolation but as a
whole, so as to remove any inconsistency or repugnancy.

It brings harmony between the various lists referred to in Indian Constitution Schedule 7. In CIT v.
Hindustan Bulk Carriers, the supreme court stated five important principles and they are: The courts
must avoid a clash on contradicting provisions and they must construe the opposing provisions so as to
harmonize them.
The provision of two sections respectively cannot defeat each other unless the court, despite all its
effort, is unable to find a way to reconcile their differences.

When it is difficult to totally reconcile the distinctions in the conflicting provision, the courts must
decipher them in such a way so that effect is given to both the provisions as much as possible

The courts must also keep in mind, the interpretation that makes the provision ambiguous or useless is
not harmonious construction.

To harmonize is not to destroy any statutory provision or to make it pointless.

3. The doctrine of Pith and Substance

It arises when there is a conflict between two or different subject matters of different list.

There can be circumstances in which subject matter of list 1 clashes with the subject matter of list 2.
Hence, this doctrine is applied in this kind of situation.

The main reason behind the adoption of this doctrine of pith and substance is that the powers of the
legislature would be severely limited if every law were to be declared invalid on the ground that it
infringes power.

According to this doctrine, it is examined to check its“true nature and character” in order to ascertain in
what list it falls.

It provides a degree of flexibility. It is widely used in determining whether the state is within its power to
make statute which involves a subject mentioned in the union list of the constitution.

It is applied in the case State of Bombay Vs F.N Balasar, by the supreme court. This was the first
important judgment which upheld the pith and substance.

4. The doctrine of Colourable Legislation

It is based upon the doctrine of power separation. Separation of power mandates to strike power of
balance between different state components.

It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.

This doctrine of colourable legislation is applied when a Legislature does not have the right to make law
upon a particular subject but indirectly makes one.

The Court has laid down certain tests for discovering whether any particular Act constitutes colourable
legislation.

(a) The court must not look into its form or the label but the substance of the law which the legislature
has given it.
(b) The court must look at the object as well as the effect of the law.

(c) If the legislature proceeds under a legislative plan the court must read all the statutes constituting
that plan and determine the combined effect.

Application of this Doctrine: K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, “If the
Constitution of a State distributes the legislative powers amongst different bodies, which have to act
within their respective spheres marked out by specific legislative entries, or if there are limitations on
the legislative authority in the shape of fundamental rights, questions do arise as to whether the
legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the
method of enacting it, transgressed the limits of its constitutional powers”.

5. The doctrine of Basic Structure

According to India’s Constitution, the parliament cannot alter or destroy certain basic features in the
constitution.

The basic features of the Indian Constitution have not been clearly defined by the Judiciary. The claim of
any specific feature of the Constitution to be a “basic” feature is determined by the Court on the basis of
the cases.

Landmark cases: Shankari Prasad vs Union of India, “It was challenged that Amendment that takes away
the fundamental right of the citizens is not allowed by article 13. It was argued that “State” includes
parliament and “Law” includes Constitutional Amendments. It was held that ‘Law’ in Article 13 is
ordinary law made under the legislative powers. And therefore, the parliament has the power to amend
the constitution.”

However, in Golak Nath V State of Punjab, the Supreme Court adopted a new vision to see the powers of
parliament that it cannot amend the part III of the constitution i.e Fundamental rights.

In Keshavanada Bharti V State of Kerala, the court held that the parliaments cannot alter or disturb the
constitution’s basic structure. It was held that, however, the parliament has unfettered power to amend
the constitution, but it can not disturb or emasculate the basic structure or fundamental features of the
constitution, as it only has the power to amend and not to rewrite the constitution.

6.DOCTRINE OF REPUGNANCY

Black’s Law Dictionary defines repugnancy as an inconsistency or contradiction between two or more parts of
a legal instrument (such as a statute or a contract).
Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State
may also make laws for whole or any part of the State. It further states that no law made by Parliament shall
be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 Deals with three lists which provides subject-matters on which whether Centre can make law or
State or both.

Doctrine of Repugnancy deals with conflict between two pieces of legislation which when applied to the
same facts produce different results. Repugnancy arises when the provisions of two laws are so inconsistent
and irreconcilable that it is impossible to do one without disobeying the other.

Article 254 of the Indian Constitution firmly entrenches the Doctrine of Repugnancy in India. This doctrine
deals with the conflict of law arises between Center and States.

Article 254(1) states that if any provision of law or law made by the legislature of the State is repugnant to
the any provision of law or law made by the Parliament, then the law made by Parliament will prevail over
State enacted Law.

Article 254(2) defines that if any provision of law or law made by the legislature of the State on the matter
enumerated in concurrent list, is repugnant to the any provision of law or law made by the Parliament and if
it has been reserved for the assent of the President and got the assent from the President ten State law will
prevail over the law enacted by Parliament. Provided that Parliament at any time before the assent of the
President can amend or repeal the repugnant law.

CONDITIONS OF REPUGNANCY

The conditions which must be satisfied before any repugnancy could arise are as follows:

1. Clear and direct inconsistency between the Central Act and the State Act.

2. Inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts
into direct collision with each other and a situation is reached where it is impossible to obey the one without
disobeying the other.

LEADING CASE LAWS

Bharat Hydro Power Corpn. Ltd. v. State of Assam, Court tried to eradicate the conflict between two Acts
and reconcile them but both Acts are of different field. The Apex court held that if the two enactments
operate in different fields without encroaching upon each other, then there will be no repugnancy.

In Deep Chand v. State of U.P, nationalization of U.P. Transport Service Act was repugnant to the later added
section in Motor Vehicle Act 1939 by the Parliament. Thus the Court held that both the laws were occupied in
same field, the State law was void to the extent of repugnancy to the Union Law.

In Zaver Bhai V. State of Bombay, Bombay legislature found punishment prescribed by Parliament in
essential Supplies Act, 1946 inadequate and through amendment they passed an Act by enhancing the
punishment. Their Bill was reserved for the assent of the President and they got it also. Later, Parliament also
enhanced the punishment of the very Act in 1950. Then Court held that Both the Laws occupied in same field,
so the State law became void as being repugnant to the Central Law.

In State of Maharashtra v. Bharat Shanti Lal Shah, it was held that it is essential that the repugnancy should
exist in fact. It should also be clearly and sufficiently shown that the Central and State laws are repugnant to
each other

In Security Association of India v. Union of India, Court was of the opinion that Article 254 is only applicable
when the State law is in ‘Pith and Substance’ a law relating to an entry in the concurrent list on which the
parliament has legislated.

Unit- IV : The Emergency Provisions – need of Emergency Powers & Amendment of Constitution

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

Emergency can be of three types –

• Due to war, external aggression or armed rebellion (Article 352) • failure of constitutional machinery
in a state (Article 356), or • financial emergency (Article 360).

However, technically, Proclamation of Emergency is only done upon external aggression or armed
rebellion. In the second case, it is called Presidential Rule, and in the third case it is called “Proclamation
of Financial Emergency:

Proclamation of Emergency

Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India
or any part of India 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 advise of
the Union Cabinet. Such a proclamation must be placed before each house of the parliament and must
be approved by each house with in one month otherwise the proclamation will expire.
An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has
actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such
thing happening.

• In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial
review of the validity of the proclamation of emergency issued by the president under 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.

• Prior to 44th amendment, duration of emergency was two months initially and then after
approval by the houses, it would continue indefinitely until ended by another proclamation. However
after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in art 352.

On Executive – Art 353

1. executive power of the Union shall extend to giving directions to anystate.

2. parliament will get power to make laws on subjects that are not in Unionlist.

3. if the emergency is declared only a part of the count, the powers in 1 and2 shall extend to any
other part if that is also threatened.

4. State Government is not dismissed when National Emergency isproclaimed but brought under
the effective control of the Union.

5. As soon as National Emergency is proclaimed distribution of powerbetween Centre and States

gets automatically suspended. Hence, Union Executive is free to give directions on all the subjects and
such directions are binding on the States.

On Legislature – Art 354

Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by
the president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Judicial Review – Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is
threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In
other words, govt may make laws that transgress upon the freedoms given under art 19 during such
emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every
such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it
is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the
courts after the end of emergency.

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19
are not suspended during emergency but only their operation is suspended. This means that as soon as
emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a
settlement that was reached before emergency between LIC and its employees was rendered ineffective
by a law during emergency. After emergency was over, SC held that the previous settlement will revive.
This is because the emergency law only suspended the operation of the existing laws. It cannot
completely wash away the liabilities that preexisted the emergency.

The Impact of Emergency on Federalism and Fundamental Rights – Arts. 353 – 360

Art 359

This article provides additional power to the president while proclamation of emergency is in operation,
using which the president can, by an order, declare that the right to move any court for the enforcement
of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is
in operation of a shorter period as mentioned in the order. Further, every such law or every executive
action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as
shown below:

Art 358 Art 359

Freedoms given by art 19 are suspended. Fundamental rights are not suspended. Only the
courts cannot be moved to enforce fundamental
rights.

Any actions done or omitted to be done cannot be Any action done by the legislature or executive can
challenged even after emergency. be challenged after the suspension is over.

Art 19 is suspended for the period of emergency. Right to move courts is suspended for the period
of emergency or until the proclamation of the
president to remove suspension.

Effective all over the country. May be confined to an area.

 Art 83(2) While the proclamation is in operation, the president may extend the normal life of the
Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation
ceases to expire.

State Emergency on failure of Constitutional Machinery in a State / Centre-State Relations – Arts. 356
– 357

Provisions in case of failure of constitutional machinery is States.

Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of
the state is cannot function according to the provisions of the constitution, he may, by proclamation,
assume to himself all or any of the functions of the govt, or all or any of the powers vested in the
governor, or anybody or any authority in the state except the legislature of the state. The power of the
legislature of the state shall be exercised by the authority of the parliament.

Under this article, president can also make such incidental and consequential provisions which are
necessary to give effect to the objectives of the proclamation. This includes suspension of any provision
of this constitution relating to any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356

• parliament can confer upon the president the power of legislature of the state to make laws or
the power to delegate the power to make laws to anybody else.

• the parliament or the president can confer power or impose duties on the Union or Union
officers or Union authorities.

• president can authorize the expenditure from the consolidated fund of the stat pending
sanction of such expenditure by the parliament.

The Financial Emergency – Art. 360

Under Article 360 the President enjoys the power to proclaim the financial Emergency. If he is satisfied
that a situation has arisen that financial stability and credit of India or any part thereof is threatened he
may proclaim emergency to that effect. All such proclamations

• (a) Can be varied or revoked by the President.

• (b) Financial Emergency must be approved by the Parliament within 2 months after its
proclamation. Once it is approved, it will remain till the President revokes it.

This article has never been invoked.

Effects of Financial Emergency

1. President is empowered to suspend the distribution of financial resourceswith States.

2. President can issue directions to States to follow canons of financialpropriety.

3. He can direct State Government to decrease salaries allowances of CivilServants and other
Constitutional dignitaries.

4. President can direct the government to resume all the financial andMoney Bills passed by
legislature for his consideration.

The President can issue directions for the reduction of salaries and allowances of Judges of the Supreme
Court and the High Courts.

Changes made by 44th Amendment

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

• “Internal disturbance” was replaced by “armed rebellion” under art 352.

• The decision of proclamation of emergency must be communicated by the Cabinet in writing.

• Proclamation of emergency must be by the houses within one month.

• To continue emergency, it must be re approved by the houses every six month.

• 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.

• Art 358 – Under this article art 19 will be suspended only upon war or external aggression and
not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is
connected to art 358. All other laws can still be challenged if they violate art 19.

• Art 359, under this article, suspension of the right to move courts for violation of part III will not
include art 20 and 21.

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

Services under the State (the Doctrine of Pleasure) – Arts. 308 – 311

Constitutional Amendment

With the development of the State in every sphere, amendment has become necessary. The
Constitution should be able to serve the needs of the society. People would have opted for extra
constitutional remedies like Revolution, had there been no amendment procedure[i]. The framers of the
Constitution were anxious to have a document which could grow with a growing nation, adapt itself to
the changing need and circumstances of growing people[ii]. When a Constitution is too flexible, it results
in wrong exercise of power and thus harms its original provisions. When a Constitution is too rigid, it
fails to grow according to the needs of a state. Therefore, the Indian Constitution is partly flexible and
partly rigid.

Article 368 contains the provisions for the Amendment of the Indian Constitution. The Constitution
provides three ways for amendment. They are:

Amendment by Simple Majority

Certain Articles of the Constitution can be amended by simple majority. Article 368 does not deal with
this category of amendment. The following provisions require amendment by simple majority:

 Citizenship
 Abolition or creation of Legislative Councils in States
 Creation of Local Legislatures or Council of Ministers or both for certain Union Territories
 Admission or establishment of new states
Use of English language in the Parliament
 Quorum of the Parliament
 Rules of procedure in the Parliament
 Delimitation of Constituencies
 Fifth schedule
 Sixth schedule, etc.

Amendment by Special Majority

Articles which require amendment by special majority come under the ambit of Article 368. The Articles
which require amendment by special majority shall be brought into effect by a majority of the total
members of each House of the Parliament and by majority of not less than 2/3 of the members of that
House who are present and voting.

 The impeachment of the President under Article 61

 Approval of national emergency, etc. comes under this category.
 The Provisions which cannot be amended by Simple Majority and which do not require
Ratification by States are amended by Special Majority.

Amendment by Special Majority and Ratification by States

Some Articles require Amendment by Special Majority as well as ratification by not less than ½ of the
State Legislatures. The States have an important role in the amendments of these matters. The following
provisions require ratification by the States:
  Election of President – Articles 54, Article 55
 Extent of Executive powers of the Union and States – Article 73, Article 162
 Articles dealing with Judiciary, Supreme Court, High Court in the States and Union Territories –
Articles 124 to 147, Article 214 to 231, Article 241
 Distribution of Legislative powers between the Centre and the State – Article 245 to Article 255
 Any of the Lists of Seventh Schedule
 Representation of States in Parliament Forth Schedule
 Article 368 (Amendment)

Procedure for Amendment

A Bill in order to amend the Constitution may be introduced by any House of the Parliament and must
be passed by each House by a majority of the total membership of that House and by a majority of not
less than 2/3 of the members of that House who are present and are voting. After being passed by both
the Houses, it shall be presented to the President and he shall give his assent to the Bill. In this process
the Constitution is amended.

Amendment of Fundamental Rights

The topic of amendment of Fundamental Rights arose in the case of Shankari Prasad V Union of India. In
this case, it was held that the power to amend the Constitution includes the power to amend Part III of
the Constitution too. In the subsequent case that is Sajjan Singh V State of Rajasthan[iv] the Court
approved its previous decision and held that Fundamental Rights can also be amended.

In the case of Golak Nath V State of Punjab, the Supreme Court held that Part III of the Constitution
cannot be amended and Parliament cannot abridge the fundamental rights of the citizens.

In the case of KesavanandaBharati V State of Kerala, the Supreme Court held that the Parliament can
amend any part of the Constitution but the basic structure of the Constitution must be maintained.

Illustration:

 Simple Majority – For example, the strength of Lok Sabha is 545. 500 Members were present.
400 Members were present and voting. So the Simple majority is 50% of 400+1 that is 201.
 Special Majority – For example, the strength of Rajya Sabha is 245. The number of members
who are present and are voting is 150. The special majority will be 2/3 of 150+1 that is 101.