Notes

CONSTITUTION OF INDIA, LAW AND ENGINEERING (PRADIP SIR)
Module 1--Introduction and Basic Information about Indian Constitution
Constitutionalism
For genuine democracies, constitutions consist of overarching arrangements that determine the
political, legal and social structures by which society is to be governed. Constitutional provisions
are therefore considered to be paramount or fundamental law. Under these circumstances, if
constitutional law itself is inadequate, the nature of democracy and rule of law within a country
is affected. The structure of modern nations has been shaped with government being divided into
executive, legislative and judicial bodies, with the commonly accepted notion that these bodies
and their powers must be separated. Of course, the separation of powers does not mean these
bodies function alone, rather they work interdependently, but maintain their autonomy. Other
tenets include the idea of limited government and the supremacy of law. Together, these can be
termed the concept of constitutionalism. In other words, constitutionalism is the idea that
government should be limited in its powers and that its authority depends on its observation of
these limitations. A constitution is the legal and moral framework setting out these powers and
their limitations. This framework must represent the will of the people, and should therefore have
been arrived at through consensus.
Meaning of Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes,
and patterns of behavior elaborating the principle that the authority of government derives from
and is limited by a body of fundamental law". A political organization is constitutional to the
extent that it "contain[s] institutionalized mechanisms of power control for the protection of the
interests and liberties of the citizenry, including those that may be in the minority". As described
by political scientist and constitutional scholar David Fellman: It may be said that the touchstone
of constitutionalism is the concept of limited government under a higher law.
Constitutionalism‘ means limited government or limitation on government. It is antithesis of
arbitrary powers. Constitutionalism recognizes the need for government with powers but at the
same time insists that limitation be placed on those powers. The antithesis of constitutionalism is
despotism. A government which goes beyond its limits loses its authority and legitimacy.
Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and
personality, the Constitution should be permeated with ‗Constitutionalism‘; it should have some
inbuilt restrictions on the powers conferred by it on governmental organs.
Constitutionalism in India
India is a democratic country with a written Constitution. Rule of Law is the basis for
governance of the country and all the administrative structures are expected to follow it in both
letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in India.
But the experience with the process of governance in India in the last six decades is a mixed one.
On the one hand, we have excellent administrative structures put in place to oversee even the
minutest of details related to welfare maximization but crucially on the other it has only resulted
in excessive bureaucratization and eventual alienation of the rulers from the ruled. Since
independence, those regions which were backward remained the same, the gap between the rich
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and poor has widened, people at the bottom level of the pyramid remained at the periphery of
developmental process, bureaucracy retained colonial characters and overall development
remained much below the expectations of the people
What is a Constitution?
Applied to the system of law and government by which the affairs of a modern state are
administered, the word constitution has two main meanings:
1. It means a document having a special legal status which sets out the framework and principal
functions of the organs of government within the state and declares the principles or rules by
which those organs must operate. In countries in which the constitution has overriding legal
force, there is often a high ranking court which applies and interprets the text of the constitution
in disputed cases e.g. supreme court in the USA or Canada. In these countries, legislative or
executive acts may be held by the court to be without legal force where they conflict with the
constitution.
2. In modern words, constitution refers to the whole system of government of a country, the
collection of rules which establish and regulate or govern the government. This system is
founded partly on Acts of Parliament and Judicial decisions, partly upon political practice and
partly upon detailed procedures established by the various organs of government for carrying out
their own tasks, e.g. the law and custom of Parliament or the rules issued by the Prime Minister
to regulate the conduct of Ministers.
It has been said of the US constitution that (the) governing constitution is a synthesis of legal
doctrines, institutional practices, and political norms.
The Making of Written Constitutions

It was in the late 18th century that the word constitution came to be identified with a single
document, mainly as a result of the American and French Revolutions. The political significance
of the new concept of constitutions was stressed by the radical, Tom Paine.
A constitution is a thing antecedent to a government, and a government is only the creature of a
constitution. A constitution is not the act of a government, but of a people constituting a
government and a government without a constitution is power without a right.
In the world today, the making of a constitution normally follows a fundamental political event,
the conferment of independence on a subordinate territory; a successful revolution; the creation
of a new state by the uniting of states which were formally separate; or reconstruction of a
country‘s institutions following a war. A documentary constitution normally reflects the beliefs
and political aspirations of those who have framed it. During the 1990s, after the collapse of
Commission, eastern and central Europe saw an end of constitution making, as revolution against
socialist regimes led to the creation of new structures that embraced liberal and democratic
values. --------------------------------------
Constitution of India: Historical Background
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The history of the Constitution of India is very insightful as it explains exactly how it came into
being. It also explains why India chose the Parliamentary form of democracy in its modern form.
The British came to India in the 17th century initially for trading only. Eventually, after slowly
gaining more power, they attained the rights to collect revenue and govern themselves. In order
to do this, they enacted various laws, rules and regulations.
According to the Charter Act of 1833, the Governor General of Bengal became the Governor
General of India. It also created a Central Legislature, which, in a way, made the British supreme
rulers of India.
The rule of the Company itself finally ended with the Government of India Act in 1858. As a
result, the British Crown became ruler of India and administered the country through its
government.
The Indian Councils Acts of 1861, 1892 and 1909 started giving representation to Indians in the
Viceroy‘s councils. They also restored legislative powers back to some provinces. In other
words, they adopted decentralization of powers between the Centre and the provinces.
The Government of India Act, 1919

According to this Act, legislative councils came into existence in all provinces of the
government. In other words, the British adopted a bicameral structure with separate central and
provincial governments. This was also the first time when people could elect their own
representatives through direct elections. The Constitution later adopted this quasi-federal and
bicameral structure.
The Government of India Act, 1935

The enactment of this law is one of the most important events in the history of the Constitution.
Firstly, this law divided powers of governance into a Federal List, a Provincial List and a
Concurrent List. Even the Indian Constitution adopted such division of powers between the
Central and state governments.
Secondly, this Act granted more autonomy of self-governance to the provinces. It even
established the Federal Court, which we now refer to as the Supreme Court of India.
The Indian Independence Act of 1947

This Act marks the final step in the departure of the British from India. India became a truly
independent and sovereign state after this Act. The Act established governments at the central
and provincial levels. It also laid down the foundation of the Constituent Assembly.
Constituent Assembly
Members of the provisional assemblies indirectly elected members of the Constituent Assembly.
This assembly served as the first ‗Parliament‘ of independent India and first met on 9 December
1946 in Delhi. After Independence, the Assembly elected Dr Rajendra Prasad as its Chairman
and began drafting the Constitution.
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Dr Ambedkar became the head of the Drafting Committee. This is why he is called the Father of
the Constitution. After more than two years of deliberations, the Assembly finally approved the
Constitution on 26 November 1949. This is why we celebrate this day as Constitution Day today.
The Assembly finally adopted the Constitution on 26 January 1950. India formally became a
sovereign republic that day. This is why we celebrate 26 January as India‘s Republic Day. --------
Features of the Indian Constitution

1. Lengthiest constitution
It is the lengthiest and the longest constitution in the world. It has 395 Articles and 12 Schedules.
Also, about 90 Articles have been added since 1951 and there have been more than 100
Amendments. But, as the Articles are not separately added but as a part of an existing Article, the
total number of Articles remain the same.
2. Drawn from Different Sources

The basis of the basic structure such as Federal scheme, Judiciary, Governors, Emergency
powers, Public Service Commissions, Administrative details, etc. are from the Government of
India Act, 1935.
Similarly, the fundamental rights are from the American constitution, Directive Principles from
the Irish Constitution and the Cabinet form of government is from the British Constitution. Also,
it adopts various provisions from the Constitutions of Canada, Australia, Germany, USSR, and
France.
3. Federal System and Unitary Features

The federal features of governance are a dual system of government i.e. center and states, the
division of powers between the executive, judiciary and legislature which are the three organs of
the state, Supremacy of the Constitution, independent Judiciary and bicameralism. The Indian
constitution contains all these features. Thus, it is a federal system. But, it also contains many
unitary features such as a strong center, All India Services common to the center and the states,
emergency provisions that can modify the Constitution into a unitary one, the appointment of
Governors by the President on the advice of the center, etc. Article 1 of the Indian constitution
clearly mentions that India is a ―Union of states‖. Therefore, this makes the Indian Constitution
a federal system with unitary features.
4. Parliamentary Form of Government
The Indian Constitution chose the Parliamentary form of government. In a Parliamentary form of
government executive is part of the legislature and there is a collective responsibility of the
council of ministers to the legislature. Also, there exists majority party rule and the Prime
Minister is the leader of the country and the Chief Minister is the leader in the state.
5. Parliamentary Sovereignty and Judicial Supremacy
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The Indian Constitution has a proper balance between Parliamentary sovereignty and Judicial
Supremacy. The Supreme Court has the power of judicial review vide Articles 13, 32 and 136.
Thus, it can cancel any Parliamentary law as unconstitutional. On the other hand, the Parliament
has the authority to make laws and also amend the major portion of the Constitution vide Article
368.
6. Independent and Integrated Judicial System

As per the Indian constitution, a single system of judiciary prevails in India. The Supreme Court
is at the top, the High Courts at the state level and district and other subordinate courts are below
and are subject to the supervision of the High Courts. Also, all the levels of courts have a duty of
enforcing central as well as state laws.
7. Directive Principles
The Directive Principles of State Policies in Part IV of the Constitution intends to make India a
welfare state. The Directive Principles are not enforceable by the courts for their violation.
However, it is a moral obligation of the state to apply these principles in making laws.
8. Rigid and Flexible

The Indian Constitution is a combination or a blend of rigidity and flexibility. As per Article 368,
some provisions can be amended by a special majority of the Parliament i.e. a 2/3rd majority of
the members of each House present and voting and majority which is more than 50 percent of the
total membership of each House. ------------------------------------
Preamble
Introducing the Indian Constitution – Preamble

For an organization or an institute to function properly, there are a set of rules and regulations.
These rules and guidelines are the key essentials that help the head to govern its people.
Further, these rules could include dress code, culture to follow, hierarchy to abide by, etc.
Similarly, for a country to function properly, there are a set of such rules.
Therefore, the preamble of the Indian Constitution is a brief statement of the various guidelines
and rules that guide the citizens. Moreover, the preamble explains the aspirations and hopes of
the people. It is a preface which emphasizes on the entire constitution.
The Constituent Assembly adopts this on 26th November 1949. However, it came into effect on
26th January 1950.
The Preamble and its Initial Articles

The Indian constitution and its preamble describe India as a sovereign, socialist,
secular, democratic and republic.
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Sovereign refers to the independent authority of a State. It also means that it has the power to
legislate on any subject and that the preamble is not subject to the control of any other State or
external power.
Secular refers to the relationship between the government and religious groups. The constitution
determines the relationship according to the constitution and law. It keeps the power of the state
and religion as separate aspects.
Socialist refers to the achievement of socialist goals through democratic, evolutionary and non-
violent means.
Democratic refers to the right of the people of India to elect their governments by a system of
universal adult franchise, which is also known as ―one person one vote‖. Every Indian citizen
after 18 years of age who is not otherwise debarred by law is entitled to vote. The word
‗democratic‘ not only refers to political but also to social and economic democracy.
Republic refers to the aspect wherein the head of state is in power and not a hereditary monarch.
Thus, this word denotes a government where no one holds public power as a proprietary right.
It secures to its entire citizen with the following:

 Social, political and economic justice
 Equality of opportunity, equality of status and to promote equality among them all
 Liberty of expression thought, belief, worship, and faith
 Fraternity in the sense of assuring dignity to all citizens along with unity and integrity of the
country and its elements.
These italicized terms of the constitution were made to be a part of the preamble after its 42nd
amendment in the year 1976. The Indian Constitution and the preamble is one of the best of its
kind and it embodies the spirit of the nation and the constitution. Indian preamble focuses on
unity and national integrity as well. ---------------------------
What are the Fundamental Rights?

Fundamental rights are the basic human rights enshrined in the Constitution of India which are
guaranteed to all citizens. They are applied without discrimination on the basis of race, religion,
gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain
conditions.
Why are they called Fundamental Rights?

These rights are called fundamental rights because of two reasons:
1. They are enshrined in the Constitution which guarantees them
2. They are justiciable (enforceable by courts). In case of a violation, a person can approach
a court of law.
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List of Fundamental Rights

There are six fundamental rights of Indian Constitution along with the constitutional articles
related to them are mentioned below:
1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)
Why Right to Property is not a Fundamental Right?
There was one more fundamental right in the Constitution, i.e., the right to property.
However, this right was removed from the list of fundamental rights by the 44th Constitutional
Amendment. This was because this right proved to be a hindrance towards attaining the goal of
socialism and redistributing wealth (property) equitably among the people.
Note: The right to property is now a legal right and not a fundamental right.
Introduction to Six Fundamental Rights (Articles 12 to 35)
Under this section, we list the fundamental rights in India and briefly describe each of them.
1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of religion, gender, caste,
race or place of birth. It ensures equal employment opportunities in the government and insures
against discrimination by the State in matters of employment on the basis of caste, religion, etc.
This right also includes the abolition of titles as well as untouchability.
2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The Indian
Constitution guarantees freedom to citizens. The freedom right includes many rights such as:
 Freedom of speech
 Freedom of expression
 Freedom of assembly without arms
 Freedom of association
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 Freedom to practise any profession

 Freedom to reside in any part of the country
Some of these rights are subject to certain conditions of state security, public morality and
decency and friendly relations with foreign countries. This means that the State has the right to
impose reasonable restrictions on them.
3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other forms of forced
labour. It also implies the prohibition of children in factories, etc. The Constitution prohibits the
employment of children under 14 years in hazardous conditions.
4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given to all religions.
There is freedom of conscience, profession, practice and propagation of religion. The State has
no official religion. Every person has the right to freely practice his or her faith, establish and
maintain religious and charitable institutions.
5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them
to preserve their heritage and culture. Educational rights are for ensuring education for everyone
without any discrimination.
6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens‘ fundamental rights are violated. The
government cannot infringe upon or curb anyone‘s rights. When these rights are violated, the
aggrieved party can approach the courts. Citizens can even go directly to the Supreme
Court which can issue writs for enforcing fundamental rights.
Features of Fundamental Rights
 Fundamental rights are different from ordinary legal rights in the manner in which they
are enforced. If a legal right is violated, the aggrieved person cannot directly approach the
SC bypassing the lower courts. He or she should first approach the lower courts.
 Some of the fundamental rights are available to all citizens while the rest are for all
persons (citizens and foreigners).
 Fundamental rights are not absolute rights. They have reasonable restrictions, which
mean they are subject to the conditions of state security, public morality and decency and
friendly relations with foreign countries.
 They are justiciable, implying they are enforceable by courts. People can approach the
SC directly in case of violation of fundamental rights.
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 Fundamental rights can be amended by the Parliament by a constitutional amendment but

only if the amendment does not alter the basic structure of the Constitution.
 Fundamental rights can be suspended during a national emergency. But, the rights
guaranteed under Articles 20 and 21 cannot be suspended.
 The application of fundamental rights can be restricted in an area which has been placed
under martial law or military rule.
Fundamental Rights Available Only to Citizens
The following is the list of fundamental rights that are available only to citizens (and not to
foreigners):
1. Prohibition of discrimination on grounds of race, religion, caste, gender or place of birth
(Article 15).
2. Equality of opportunity in matters of public employment (Article 16).
3. Protection of freedom of:(Article 19)
 Speech and expression
 Association
 Assembly
 Movement
 Residence
 Profession
Protection of the culture, language and script of minorities (Article 29).
Right of minorities to establish and administer educational institutions (Article 30).
Importance of Fundamental Rights
Fundamental rights are very important because they are like the backbone of the country. They
are essential for safeguarding the people‘s interests.
According to Article 13, all laws that are volatile of fundamental rights shall be void. Here, there
is an express provision for judicial review. The SC and the High Courts can declare any law
unconstitutional on the grounds that it is violative of the fundamental rights. Article 13 talks
about not just laws, but also ordinances, orders, regulations, notifications, etc.
Amenability of Fundamental Rights
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Any changes to the fundamental rights require a constitutional amendment that should be passed
by both the Houses of Parliament. The amendment bill should be passed by a special
majority of Parliament.
As per the Constitution, Article 13(2) states that no laws can be made that take away
fundamental rights.
The question is whether a constitutional amendment act can be termed law or not.
In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend any part
of the Constitution including fundamental rights.
But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath case, it
said that the fundamental rights cannot be amended.
In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the SC held
that although no part of the Constitution, including Fundamental Rights, was beyond the
Parliament‘s amending power, the ―basic structure of the Constitution could not be abrogated
even by a constitutional amendment.‖
This is the basis in Indian law in which the judiciary can strike down any amendment passed by
Parliament that is in conflict with the basic structure of the Constitution.
In 1981, the Supreme Court reiterated the Basic Structure doctrine.
It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati
judgement, and held that it should not be applied retrospectively to reopen the validity of any
amendment to the Constitution which took place prior to that date.
.
Doctrine of Severability
This is a doctrine that protects the fundamental rights enshrined in the Constitution.
It is also known as the Doctrine of Separability.
It is mentioned in Article 13, according to which all laws that were enforced in India before the
commencement of the Constitution, inconsistent with the provisions of fundamental rights
shall to the extent of that inconsistency be void.
This implies that only the parts of the statute that is inconsistent shall be deemed void and not the
whole statue. Only those provisions which are inconsistent with fundamental rights shall be void.
Doctrine of Eclipse
This doctrine states that any law that violates fundamental rights is not null or void ab initio, but
is only non-enforceable, i.e., it is not dead but inactive.
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This implies that whenever that fundamental right (which was violated by the law) is struck
down, the law becomes active again (is revived).
Another point to note is that the doctrine of eclipse applies only to pre-constitutional laws (laws
that were enacted before the Constitution came into force) and not to post-constitutional laws.
This means that any post-constitutional law which is violative of a fundamental right is void ab
initio.
Conclusion
To know how many fundamental rights are there in the Indian Constitution is a must-rule for an
IAS aspirant. The list of fundamental rights given above will be helpful for the candidates in
their UPSC preparation. Also, aspirants should know the difference between human rights and
fundamental rights. The basic difference between human rights and fundamental rights is the
scope of acceptance. While fundamental rights have scope within a country, human rights are
accepted worldwide. ---------------------------------
What are the Directive Principles of State Policy?

The Sapru Committee in 1945 suggested two categories of individual rights. One being
justiciable and the other being non-justiciable rights. The justiciable rights, as we know, are the
Fundamental rights, whereas the non-justiciable ones are the Directive Principles of State Policy.
DPSP are ideals which are meant to be kept in mind by the state when it formulates policies and
enacts laws. There are various definitions to Directive Principles of State which are given below:
 They are an ‗instrument of instructions‘ which are enumerated in the Government of India
Act, 1935.
 They seek to establish economic and social democracy in the country.
 DPSPs are ideals which are not legally enforceable by the courts for their violation.
Directive Principles of State Policy – Classification

Indian Constitution has not originally classified DPSPs but on the basis of their content and
direction, they are usually classified into three types-
 Socialistic Principles,
 Gandhian Principles and,
 Liberal-Intellectual Principles.
Criticism of Directive Principles of State Policy
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As a point of debate, the following reasons are stated for the criticism of Directive Principles of
State Policy:
1. It has no legal force
2. It is illogically arranged
3. It is conservative in nature
4. It may produce constitutional conflict between centre and state
What is the conflict between Fundamental Rights and DPSPs?
With the help of four court cases given below, candidates can understand the relationship
between Fundamental Rights and Directive Principles of State Policy:
Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental Rights and DPSPs, the
provisions of the former would prevail. DPSPs were regarded to run as a subsidiary to
Fundamental Rights. SC also ruled that Parliament can amend Fundamental Rights through
constitutional amendment act to implement DPSPs.
Result: Parliament made the First Amendment Act (1951), the Fourth Amendment Act (1955)
and the Seventeenth Amendment Act (1964) to implement some of the Directives.
Golaknath Case (1967)

Supreme Court ruled that Parliament cannot amend Fundamental Rights to implement Directive
Principles of State Policy.
Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment Act 1971
declaring that it has the power to abridge or take away any of the Fundamental Rights by
enacting Constitutional Amendment Acts. 25th Amendment Act inserted a new Article 31C
containing two provisions:
 No law which seeks to implement the socialistic Directive Principles specified in Article 39
(b)22 and (c)23 shall be void on the ground of contravention of the Fundamental Rights
conferred by Article 14 (equality before law and equal protection of laws), Article 19
(protection of six rights in respect of speech, assembly, movement, etc) or Article 31 (right to
property).
 No law containing a declaration for giving effect to such policy shall be questioned in any
court on the ground that it does not give effect to such a policy.
Kesavananda Bharti Case (1973)
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Supreme Court ruled out the second provision of Article 31C added by the 25th Amendment Act
during Golaknath Case of 1967. It termed the provision ‗unconstitutional.‘ However, it held the
first provision of Article 31C constitutional and valid.
Result: Through the 42nd amendment act, Parliament extended the scope of the first provision
of Article 31C. It accorded the position of legal primacy and supremacy to the Directive
Principles over the Fundamental Rights conferred by Articles 14, 19 and 31.
Minerva Mills Case (1980)

Supreme Court held the extension of Article 31C made by the 42nd amendment act
unconstitutional and invalid. It made DPSP subordinate to Fundamental Rights. Supreme Court
also held that ‗the Indian Constitution is founded on the bedrock of the balance between the
Fundamental Rights and the Directive Principles.‘
Supreme Court‘s rulings following the case were:
 Fundamental Rights and DPSPs constitute the core of the commitment to social revolution.
 The harmony and balance between Fundamental Rights and Directive Principles of State
Policy is an essential feature of the basic structure of the Constitution.
 The goals set out by the Directive Principles have to be achieved without the abrogation of the
means provided by the Fundamental Rights.
Conclusion: Today, Fundamental Rights enjoy supremacy over the Directive Principles. Yet,
Directive Principles can be implemented. The Parliament can amend the Fundamental Rights for
implementing the Directive Principles, so long as the amendment does not damage or destroy the
basic structure of the Constitution. ----------------------------------
Emergency Provision and Special Provisions of the Indian Constitution
In the constitution of India, part 18 deals with the provisions related to the emergency.
Throughout the history of India, this part particularly has been subject for many attacks by the
critics. When the constitution was framed, many debates and agitated scenes were witnessed for
this part in the constitutional assembly. Out of those scenes, the most that influenced the
emergency provisions were the Weimar constitution of Germany.
Amendments of the Indian Constitution – What is Article 368?

To define constitutional amendment process, Article 368 of Part XX of Indian Constitution
provides for two types of amendments.
1. By a special majority of Parliament
2. By a special majority of the Parliament with the ratification by half of the total states
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But, some other articles provide for the amendment of certain provisions of the Constitution by a
simple majority of Parliament, that is, a majority of the members of each House present and
voting (similar to the ordinary legislative process). Notably, these amendments are not deemed to
be amendments of the Constitution for the purposes of Article 368.
Any of these amendments follow a certain procedure. Hence, this article will talk in detail about
the types of amendments in the Indian Constitution, the Constitutional Amendment Process and
the scope of amendability.
Types of Amendments in Indian Constitution

The list of types of amendments can be found below. There are three ways in which the
Constitution can be amended:
1. Amendment by simple majority of the Parliament
2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half of the
state legislatures.
1. By Simple Majority of Parliament

A number of provisions in the Constitution can be amended by a simple majority of the two
houses of Parliament outside the scope of Article 368. These provisions include:
 Admission or establishment of new states.
 Formation of new states and alteration of areas, boundaries or names of existing states.
 Abolition or creation of legislative councils in states.
 Second Schedule-emoluments,
 Allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.
 Quorum in Parliament.
 Salaries and allowances of the members of Parliament.
 Rules of procedure in Parliament.
 Privileges of the Parliament, its members and its committees.
 Use of the English language in Parliament.
 Number of puisne judges in the Supreme Court.
 Conferment of more jurisdiction on the Supreme Court.
 Conferment of more jurisdiction on the Supreme Court.
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 Citizenship-acquisition and termination.

 Elections to Parliament and state legislatures.
 Delimitation of constituencies.
 Union territories
 Fifth Schedule-administration of scheduled areas and scheduled tribes.
 Sixth Schedule-administration of tribal areas.
2. By Special Majority of Parliament

 The majority of the provisions in the Constitution need to be amended by a special majority
of the Parliament, that is, a majority (that is, more than 50 percent) of the total membership
of each House and a majority of two-thirds of the members of each House present and
voting. The expression ‗total membership‘ means the total number of members comprising
the House irrespective of the fact whether there are vacancies or absentees.
 The special majority is required only for voting at the third reading stage of the bill but by
way of abundant caution, the requirement for the special majority has been provided for in
the rules of the Houses in respect of all the effective stages of the bill.
 The provisions which can be amended by this way include (i) Fundamental Rights;
(ii) Directive Principles of State Policy; and (iii) All other provisions which are not covered
by the first and third categories.
3. By Special Majority of Parliament and Consent of States

Those provisions of the Constitution which are related to the federal structure of the polity can be
amended by a special majority of the Parliament and also with the consent of half of the state
legislatures by a simple majority. If one or some or all the remaining states take no action on the
bill, it does not matter; the moment half of the states give their consent, the formality is
completed. There is no time limit within which the states should give their consent to the bill.
The following provisions can be amended in this way:
 Election of the President and its manner.
 Extent of the executive power of the Union and the states.
 Supreme Court and high courts.
 Distribution of legislative powers between
 the Union and the states.
 Any of the lists in the Seventh Schedule.
 Representation of states in Parliament.
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 Power of Parliament to amend the Constitution and its procedure (Article 368 itself). ----------
Emergency Provisions
A state of emergency in India refers to a period of governance that can be proclaimed by
the President of India during certain crisis situations. Under the advice of the cabinet of
ministers, the President can overrule many provisions of the Constitution, which
guarantees Fundamental Rights to the citizens of India.
 The emergency provisions are contained in Part XVIII of the Constitution of India,
from Article 352 to 360. These provisions enable the Central government to meet any
abnormal situation effectively.
 The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and
security of the country, the democratic political system and the Constitution.
 The Constitution stipulates three types of emergencies-
1. National Emergency
2. Constitutional Emergency
3. Financial Emergency
NATIONAL EMERGENCY
National emergency can be declared on the basis of war, external aggression or armed rebellion.
The Constitution employs the expression ‗proclamation of emergency‘ to denote an emergency
of this type.
Grounds of declaration:
o Under Article 352, the president can declare a national emergency when the security of India
or a part of it is threatened by war or external aggression or armed rebellion.
o The President can declare a national emergency even before the actual occurrence of war or
armed rebellion or external aggression
o When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it
is known as ‘External Emergency’. On the other hand, when it is declared on the grounds
of ‘armed rebellion’, it is known as ‘Internal Emergency’. This term ‗armed rebellion‘ is
inserted from the 44th amendment. Before this term it was known as internal disturbance.
 Example:
o If India and Pakistan openly accept that they will use armed forces against each other is
simply war.
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o If there is no formal declaration that there will be armed forces used against a country is
External aggression.
o And if because of these two grounds an emergency is proclaimed as an external emergency.
State Emergency
Article 355 imposes a duty on the centre to ensure that the government of every state is carried
on in accordance with the provisions of the constitution. It is this duty in the performance of
which the centre takes over the government of a state under Article 356 in case of failure of
constitutional machinery in a state. This is popularly known as ‗President‘s Rule‘.
Grounds of imposition: the president‘s ruler can be proclaimed under Article 356 on two
grounds:
1. Article 356 empowers the President to issue a proclamation if he is satisfied that a situation
has arisen in which the government of a state cannot be carried on in accordance with the
provisions of the constitution.
2. Article 365 says that whenever a state fails to comply with or to give effect to any direction
from the centre, it will be lawful for the President to hold that a situation has arisen in
which the government of the state cannot be carried on in accordance with the provisions of
the constitution.
Parliamentary approval and duration: A proclamation imposing president‘s rule must be
approved by both the houses of parliament within two months from the date of its issue.
However, if the proclamation of President‘s rule is issued at a time when the Lok Sabha has been
dissolved or the dissolution of the Lok Sabha takes place during the period of two months
without approving the proclamation, then the proclamation survives until 30 days from the first
sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the
meantime
Consequences of the President’s rule: The President acquires the following extraordinary
powers when the President‘s rule is imposed in a state:
 He can take up the functions of the state government and powers vested in the governor or
any other executive authority in the state.
 He can declare that the powers of the state legislature are to be exercised by the parliament.
 He can take all other necessary steps including the suspension of the constitutional provisions
relating to anybody or authority in the state.
Scope of judicial review: The 38th Amendment act of 1975 made the satisfaction of the
President in invoking Article 356 final and conclusive which would not be challenged in any
court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of
1978 implying that the satisfaction of the President is not beyond judicial review.
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Financial Emergency
Grounds of declaration: Article 360 empowers the president to proclaim a Financial
Emergency if he is satisfied that a situation has arisen due to which the financial stability or
credit of India or any part of its territory is threatened.
Parliamentary approval and duration: A proclamation declaring financial emergency must be
approved by both the Houses of Parliament within two months from the date of its issue.
However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha
has been dissolved or the dissolution of the Lok Sabha takes place during the period of two
months without approving the proclamation, then the proclamation survives until 30 days from
the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the
meantime approved it.
Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely
till it is revoked.
Effects of Financial Emergency

 Extension of the executive authority of the Union over the financial matters of the States.
 Reduction of salaries and allowances of all or any class of persons serving in the State.
 Reservation of all money bills or other financial bills for the consideration of the President
after they are passed by the legislature of the State.
 Direction from the President for the reduction of salaries and allowances of all or any class of
persons serving the Union; and the judges of the Supreme Court and the High Courts. ----------
Module 2-Union Executive and State Executive:

Rajya Sabha: Functions and Powers of the Rajya Sabha
The Rajya Sabha, i.e., the Council of States, is the Upper House of the Union Parliament. It gives
representation to the States of the Indian. However, the states do not enjoy an equal
representation in the Rajya Sabha. These have been given representations on the basis of the size
of their populations.
Composition of the Rajya Sabha:

The Rajya Sabha can have a maximum strength of 250 members; out of these 238 are to be the
representatives of the States and remaining 12 members are to be nominated by the President
from amongst persons who have achieved distinctions in the fields of art, literature, science or
social services.
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At present, the Rajya Sabha has 245 members 233 elected and 12 nominated. Members of each
State Legislative Assembly, together elect their allotted number of MPs for Rajya Sabha. The
President nominates 12 MPs of Rajya Sabha. Odisha has 10 seats in the Rajya House.
Method of Election:
The members of the Rajya Sabha are elected indirectly by the people. The people of each state
elect the members of their state legislative assembly who then elect the members of Rajya Sabha
by a method of proportional representation—single transferable vote system. Each State
Legislative Assembly elects as many representatives as have been allocated to it by the
Constitution. Odisha Legislative Assembly has 147 MLAs who together elect 12 members of
Rajya Sabha.
Qualifications for the membership of Rajya Sabha:

(a) He must be a citizen of India.
(b) He must be above the age of 30 years.
(c) He must possess all other qualifications as laid down by the Parliament.
(d) He must not hold any office of profit under any government.
(e) He should not be an insane or a bankrupt.
(f) He should not have been disqualified under any law of the Parliament
Tenure:
The Rajya Sabha is a quasi-permanent House. It is not subject to dissolution as a whole. One
third of its members retire after every two years and elections are held only for the vacant seats.
The tenure of each member of the Rajya Sabha is six years.
Sessions:
The President convenes the sessions of the Rajya Sabha usually along with the sessions of the
Lok Sabha or whenever he feels it necessary. However, there cannot be a gap of more than six
months within the two sessions of the Rajya Sabha. The President can call a special session of
Rajya Sabha for getting approved an emergency declaration at a time when Lok Sabha stands
dissolved.
Powers and Functions of the Rajya Sabha:

1. Legislative Powers:
In the sphere of ordinary law-making the Rajya Sabha enjoys equal powers with the Lok Sabha.
An ordinary bill can be introduced in the Rajya Sabha and it cannot become a law unless passed
by it. In case of a deadlock between the two Houses of Parliament over an ordinary bill and if it
remains unresolved for six months, the President can convene a joint sitting of the two Houses
for resolving the deadlock.
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This joint sitting is presided over by the Speaker of the Lok Sabha. If the bill is passed in the
joint sitting, it is sent to the President for his signatures. But if the deadlock is not resolved, the
bill is deemed to have been killed.
2. Financial Powers:
In the financial sphere, the Rajya Sabha is a weak House. A money bill cannot be introduced in
the Rajya Sabha. It can be initiated only in the Lok Sabha. A money bill passed by the Lok
Sabha comes before the Rajya Sabha for its consideration. However, if within a period of 14
days, the Rajya Sabha fails to pass the bill, the bill is taken to have been passed by the
Parliament irrespective of the fact whether the Rajya Sabha has passed it or not. If the Rajya
Sabha proposes some amendments and the bill is returned to the Lok Sabha, it depends upon the
Lok Sabha to accept or reject the proposed amendments.
3. Executive Powers:
―The Union Council of Ministers is collectively responsible before the Lok Sabha and not the
Rajya Sabha.‖ Lok Sabha alone can cause the fall of the Council of Ministers by passing a vote
of no-confidence.
Although the Rajya Sabha cannot remove the Ministry from its office yet the members of the
Rajya Sabha can exercise some control over the ministers by criticising their policies, by asking
questions and supplementary questions, and by moving adjournment motions. Some of the
ministers are also taken from the Rajya Sabha. Now the Prime Minister can also be from Rajya
Sabha if the majority party in the Lok Sabha may elect/adopt him as its leader.
4. Amendment Powers:
Rajya Sabha and Lok Sabha can together amend the constitution by passing an amendment bill
with 2/3 majority in each House.
5. Electoral Powers:
The Rajya Sabha has some electoral powers also. The elected members of the Rajya Sabha along
with the elected members of the Lok Sabha and all the State Legislative Assemblies together
elect the President of India. The members of the Rajya Sabha Lok Sabha together elect the Vice-
President of India. Members of the Rajya Sabha also elect a Deputy Chairman from amongst
themselves.
6. Judicial Powers:
(a) The Rajya Sabha acting along with the Lok Sabha can impeach the President on charges of
violation of the Constitution.
(b) The Rajya Sabha can also pass a special address for causing the removal of a judge of the
Supreme Court or of any High Court.
(c) The charges against the Vice-President can be leveled only in the Rajya Sabha.
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(d) The Rajya Sabha can pass a resolution for the removal of some high officers like the
Attorney General of India, Comptroller and Auditor General and Chief Election Commissioner.
What is Lok Sabha and who are Lok Sabha members?

Indian Parliament is bicameral in nature i.e. that it has two houses. Lok Sabha is one of those two
houses. The other house is the Rajya Sabha Lok Sabha is the first chamber of the parliament and
represents the people of India as a whole. The members elected by universal adult suffrage are
part of Lok Sabha.
Composition of Lok Sabha:
Composition of Lok Sabha
Maximum Strength – 552 530 represent the States
20 are the representatives of Union Territories
2 are nominated by the President from Anglo-Indian

Community
Current Strength – 545 530 represent States
13 represent Union Territories
2 are nominated from the President from Anglo-Indian

Community
Lok Sabha Elections

The members of Parliament (MPs) are elected/appointed from states, union territories or are
appointed from a field of particular expertise. The elections to Lok Sabha occur every 5 years in
the name of general elections. The Indian Constitution has adopted universal adult franchise as
a basis of elections to the Lok Sabha and the state legislative assemblies.
Representation of States in Lok Sabha:

 Members are directly elected by the people from the territorial constituencies in the states
 Election Principle used – Universal Adult Franchise
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 Eligibility to Vote: Any Indian Citizen of/above 18 years of age

Note: Voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act,
1988.
Representation of Union Territories in Lok Sabha:

 Parliament is empowered to choose the members from the UTs in any manner as it desires
 Election Principle used – Direct Election
Note: Union Territories (Direct Election to the House of the People) Act, 1965, has been
enacted by which the members of Lok Sabha from the union territories are chosen by direct
election.
Representation of Nominated Members in Lok Sabha:

President nominates 2 members from Anglo-Indian Community if they are not adequately
represented.
Note: The provision to nominate Anglo-Indians was extended till 2020 by 95th Amendment Act,
2009.
Who is Lok Sabha Speaker?

The speaker of Lok Sabha is a member who elected from amongst the members of the house. He
chairs the house and no proceedings in the house take place in his absence.
Powers and Functions of the President
The Indian President is the head of the state and he is also called the first citizen of India. He is a
part of Union Executive, provisions of which are dealt with Article 52-78 including articles
related to President (Article 52-62). Under these articles, information on how a President is
elected, his powers and functions, and also his impeachment process is given.
Who is President of India?
The Indian President is the head of the state. He is the first citizen of India and is a symbol of
solidarity, unity, and integrity of the nation. He is a part of Union Executive along with the
Vice-President, Prime Minister, Council of Ministers, and Attorney-General of India.
How is President elected?
There is no direct election for the Indian President. An electoral college elects him. The Electoral
College responsible for President‘s elections comprises elected members of:
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1. Lok Sabha and Rajya Sabha

2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry
Qualifications of the President

A candidate has to meet some qualifications to be elected as the president. Those qualifications
of the President are:
1. He should be an Indian Citizen
2. His age should be a minimum of 35 years
3. He should qualify the conditions to be elected as a member of the Lok Sabha
4. He should not hold any office of profit under the central government, state government,
or any public authority
What are the powers and functions of the President of India?
Executive Powers of President
1. For every executive action that the Indian government takes, is to be taken in his name
2. He may/may not make rules to simplify the transaction of business of the central
government
3. He appoints the attorney general of India and determines his remuneration
4. He appoints the following people:
1. Comptroller and Auditor General of India (CAG)
2. Chief Election Commissioner and other Election Commissioners
3. Chairman and members of the Union Public Service Commission
4. State Governors
5. Finance Commission of India chairman and members
5. He seeks administrative information from the Union government
6. He requires PM to submit, for consideration of the council of ministers, any matter on
which a decision has been taken by a minister but, which has not been considered by the
council
7. He appoints National Commissions of:
1. Scheduled Castes
2. Scheduled Tribes
3. Other Backward Classes
8. He appoints inter-state council
9. He appoints administrators of union territories
10. He can declare any area as a scheduled area and has powers with respect to the
administration of scheduled areas and tribal areas
Legislative Powers of President
1. He summons or prorogues Parliament and dissolve the Lok Sabha
2. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock
3. He addresses the Indian Parliament at the commencement of the first session after every
general election
4. He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of
Rajya Sabha when the seats fall vacant (to know the difference between Lok Sabha and
Rajya Sabha check the linked article.)
5. He nominates 12 members of the Rajya Sabha
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6. He can nominate two members to the Lok Sabha from the Anglo-Indian Community
7. He consults the Election Commission of India on questions of disqualifications of MPs.
8. He recommends/ permits the introduction of certain types of bills (to read on how a bill is
passed in the Indian Parliament, check the linked article.)
9. He promulgates ordinances
10. He lays the following reports before the Parliament:
1. Comptroller and Auditor General
2. Union Public Service Commission
3. Finance Commission, etc.
Financial Powers of President
1. To introduce the money bill, his prior recommendation is a must
2. He causes Union Budget to be laid before the Parliament
3. To make a demand for grants, his recommendation is a pre-requisite
4. Contingency Fund of India is under his control
5. He constitutes the Finance Commission every five years
Judicial Powers of President
1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him
2. He takes advice from the Supreme Court, however, the advice is not binding on him
3. He has pardoning power: Under article 72, he has been conferred with power to grant
pardon against punishment for an offence against union law, punishment by a martial
court, or death sentence.
Note: Pardoning powers of the president includes the following types:
 Pardon with the grant of pardon convicts both conviction and sentence completely
absolved
 Commutation with this nature of the punishment of the convict can be changed
 Remission reduces the term of the imprisonment
 Respite awards lesser punishment than original punishment by looking at the special
condition of a convict
 Reprieve stays the execution of the awarded sentence for a temporary period
Diplomatic Powers of President
1. International Treaties and agreements that are approved by the Parliament are negotiated
and concluded in his name
2. He is the representative of India in international forums and affairs
Military Powers of President
He is the commander of the defense forces of India. He appoints:
1. Chief of the Army
2. Chief of the Navy
3. Chief of the Air Force
Emergency Powers of President
He deals with three types of emergencies given in the Indian Constitution:
1. National Emergency (Article 352)
2. President‘s Rule (Article 356 & 365)
3. Financial Emergency (Article 360)
What is the Ordinance Making Power of the President?
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Article 123 deals with the ordinance making power of the President. The President has many
legislative powers and this power is one of them. He promulgates an ordinance on the
recommendation of the union cabinet. --------------------
Powers and functions of the prime minister of India
The Prime Minister of India is the head of the government and country. He is appointed by the
President of India after the political party wins a general election and nominates a candidate for
the post. The leader of that political party is hence appointed as the Prime Minister of India.
Powers of Prime Minister
Prime Minister of India serves the country by performing various functions. He performs his
functions taking responsibilities that are listed below
 The leader of Country: The Prime Minister of India is the Chief Head of the Government of
India.
 Portfolio allocation: The Prime Minister has the authority to assign respective portfolios to
the Ministers.
 Chairman of the Cabinet: The Prime Minister is the chairman of the cabinet and conducts the
meetings of the Cabinet. He can impose his decision if there is a crucial opinion difference
and conflict among the members.
 Official Representative of the country: Prime minister represents the country for high-level
international meetings and he is the ambassador of the country.
 The link between the President and the Cabinet: The Prime Minister acts as the link and bond
between the President and cabinet. He communicates and transmits all decisions of the
Cabinet to the President which is related to the administration of the affairs of the Union and
proposals for legislation.
 Head: The Prime Minister is the head of many organisation and programs like Nuclear
Command Authority, NITI Aayog, Appointments Committee of the Cabinet, Department of
Atomic Energy, Department of Space and Ministry of Personnel, Public Grievances and
Pensions.
 Chief Advisor: He also plays the role of chief advisor to the President
----------------------------
Independence of Judiciary
Concept of Independence of Judiciary
The concept of Independence of Judiciary is of modern origin and accepted as a hall-mark of a
liberal democratic state. But the term independence has neither been defined in the Constitution
of India nor in the General Clauses Act. Hence for a proper comprehension of the meaning of the
term independence it is necessary, first to examine its etymological and dictionary meaning and
then its legal meaning.
A dictionary meaning ascribes to it, the state of being not dependent on another persons or things
for support or supplies. In a literal sense, independence means absence of external control or
support. In other words, it signifies something that it is not dependent on or controlled by any
other agency or authority. In legal parlance Independence of Judiciary mean the power of
upholding without fear or favour, the Rule of Law, personal freedom and liberty, equality before
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law and impartial and effective judicial control over administrative and executive actions of the
Government
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the duty of all governmental and other institutions to
respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is within its competence
as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor
shall judicial decisions by the courts be subject to revision. This principle is without prejudice to
judicial review or to mitigation or commutation by competent authorities of sentences imposed
by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal
procedures. Tribunals that do not use the duly established procedures of the legal process shall
not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure
that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to
properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are
like other citizens entitled to freedom of expression, belief, association and assembly; provided,
however, that in exercising such rights, judges shall always conduct themselves in such a manner
as to preserve the dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to represent
their interests, to promote their professional training and to protect their judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with
appropriate training or qualifications in law. Any method of judicial selection shall safeguard
against judicial appointments for improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex, religion, political or other
opinion, national or social origin, property, birth or status, except that a requirement, that a
candidate for judicial office must be a national of the country concerned, shall not be considered
discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration, conditions
of service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in
particular ability, integrity and experience.
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14. The assignment of cases to judges within the court to which they belong is an internal matter
of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to
confidential information acquired in the course of their duties other than in public proceedings,
and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation
from the State, in accordance with national law, judges should enjoy personal immunity from
civil suits for monetary damages for improper acts or omissions in the exercise of their judicial
functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall
be processed expeditiously and fairly under an appropriate procedure. The judge shall have the
right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential,
unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour
that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with
established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest court and those
of the legislature in impeachment or similar proceedings. -------------------------
Appointment and Transfer of Judges in Indian Judiciary
Appointment of Judges in the District Courts

Qualifications
Article 233 of the Indian Constitution deals with the appointment of District Judges. According
to this article, there are certain qualifications for a person to be appointed as a District Judge,
they are:
 The person has to be in practice as an advocate or pleader for seven years or more;
 The person should not be in working in any other services of the Union or the State;
 The person has to be recommended by the High Court for employment.
Procedure for appointment
There are various procedures to be followed before the appointment of District Judges.
According to Article 233, the appointment can be done only after consulting the Governor of the
State and also the Judges of the High Court that is exercising jurisdiction in the State. Article
235 of the Indian Constitution provides powers to the High Courts to have control over the
persons in the judicial service in the district court and other subordinate courts. Article 233-
A validates the appointment of Judges in the district court that was made before the
commencement of the Constitution (Twentieth Amendment) Act, 1966 and they are held to be
valid even though they are not in accordance with the provisions of Article 233 and Article 235.
Appointment of Judges in the High Courts
Qualifications
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There are certain qualifications which have to be fulfilled in order to appoint a person as a judge
in the High Courts. The qualifications regarding the appointment are provided in Article
217. According to the Article,
 The person appointed must be a citizen of India;
 The person appointed should have held a judicial office in the territory of India for at
least ten years;
 The person appointed should have been an advocate in the High Court for at least ten
years.
Procedure
Article 217 of the Indian Constitution provides the procedure regarding the appointment of
judges in the High Courts. According to this Article,
 The judges of the High Courts can be appointed only by the warrant of the President and
his seal;
 The appointment can be done only after consulting the Chief Justice of India and the
Governor of the State;
 The appointment of Judges other than the Chief Justice can be done after consulting the
Chief Justice of the High Court;
 The provisions under this article must be followed even while appointing the Additional
Judges according to Article 224.
 The person can hold the office as a judge until he is sixty-two years old;
 The consultation must be very effective, that is all the necessary information about the
person being recommended must be revealed and no information should be hidden in
order to facilitate the appointment;
 The Judges appointed must take an oath before the Governor of the State according
to Article 219. The oath must be according to the form that is provided for the purpose in
the Third Schedule.
Salary for the Judges appointed
Article 221 of the Indian Constitution provides various provisions regarding the salaries of High
Court Judges. The salaries shall be determined by the Parliament by law and until the provision
on the behalf is made, the salaries provided in the Second schedule must be followed. The article
also says that the judges are entitled to receive pension and allowances which is decided by the
Parliament and it varies from time to time.
Procedure for appointment of additional and acting judges
The appointment of additional judges is governed by Article 224 of the Indian Constitution. The
President has the power to appoint additional judges. The State Government should obtain the
permission and sanction of Central Government in order to create a post for additional judges
and for appointing additional judges. Article 224 also deals with the appointment of acting
judges. They are appointed for a period of three months. The members of the bar are not
preferred for the appointment.
Appointment of Judges in the Supreme Court
Procedure
There are various procedures for the appointment of Judges in the Supreme Court. The
appointment is governed by various provisions in the Indian Constitution. Article 124 of the
Indian Constitution deals with the appointment of Chief Justice and Judges of the Supreme
Court. The collegium system is still followed for the appointment of the Judges. Article 124 of
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the Constitution says only seven judges can be appointed in the Supreme Court and the
appointment can be increased when the Parliament deems it to be necessary. The President has
the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the
Supreme Court and also in certain cases other judges of the High Court. The Judges can hold
office until they attain 65 years of age. Article 127 of the Indian Constitution deals with the
appointment of ad-hoc judges in the Supreme Court.
Qualification
Article 124 of the Indian Constitution provides various qualifications which have to be satisfied
for the appointment. The person who satisfies all these necessary qualifications is only
recommended. They are:
 The recommended person must be a citizen of India;
 They should not be above 65 years of age;
 They must have been a judge of one or more High courts continuously for five years;
 They must have been an advocate in the high court for at least ten years;
 The recommended person must be a distinguished jurist in the opinion of the President.
Salary
The salary of the Supreme Court judges is determined according to Article 125 of the Indian
Constitution. The salary provided to the Supreme Court judges is high compared to the High
Courts. The salary is determined by the Parliament by law and if provisions are not made clear
the salary mentioned in the second schedule must be provided.
Appointment of acting Chief Justice and Ad Hoc judges

Article 126 of the Indian Constitution deals with the appointment of acting Chief Justice. The
President can appoint other judges of this court as acting Chief Justice when the office of Chief
Justice is vacant or they are unable to perform their duties due to various issues like health
issues. Article 127 deals with the appointment of Ad Hoc judges. According to this Article, Ad
Hoc judges can be appointed in various situations like when the quorum of the Judges of the
Supreme Court are not available to hold or continue any session of the Court, then it is the duty
of the Chief Justice to appoint Ad hoc judges with the consent of the President of India.
Transfer of Judges
Transfer of Judges in the High Court
Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to
another. The same procedure is also followed even for the transfer of Chief Justice. The
President has the power to transfer the Judges from one High Court to another. This transfer
must be made only after consulting the Chief Justice. There is also a provision for providing a
compensatory allowance to the Judges who are transferred in addition to their salary.
Landmark Judgments
S.P Gupta v Union of India
Several writ petitions were filed in the various High Courts regarding the appointment of High
Court Judges as well as the Supreme Court judges in the form of public interest litigation. These
petitions were transferred to the Supreme Court using suo moto cognizance. The main issue was
to decide whose opinion in the collegium should be given primary importance while appointing
the judges. The majority opinion was that ―the opinions of Chief Justice of India and opinions of
the Chief Justice of High Court were merely consultative and that power of appointment solely
resides in the Central Government ‖.
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The meaning of the word consultation was also discussed in the case. The word consultation
mentioned in Article 124 and Article 217 in relation to all consultees and final decision in the
matter was left to the Central executive. The majority took an extremely literal and positivistic
view of Article 217. The central government even after this judgment followed the old practice
and no judge was appointed without the name being cleared by the Chief Justice of India.
Supreme Court Advocates on record association v. Union of India
This case was a landmark judgment which constituted a bench of nine judges. This case is
popularly known as the Second Judges case. The main question that was decided was whether
the independence of the judiciary is the basic feature of the constitution. The Supreme Court
Advocates-on-Record Association and Senior Advocates filed writ petitions before the Supreme
Court which questioned the constitutionality of the 99th Amendment and the NJAC Act. The
petitions accused that the NJAC violated the basic structure of the Constitution by compromising
the judiciary‘s independence. The majority verdict the Chief Justice has the power to appoint and
transfer Judges. The Chief Justice of India needs to consult only two senior-most judges during
the time of appointment.
The first major issue which was in question was the meaning of the term ―consultation‖ which is
present in Article 124. The majority came to a conclusion that it means an ―integrated,
participatory and consultative process‖. This leads to complete discharge of constitutional
obligations on the part of constitutional functionaries. Various methods have been used by the
Judges in the case to establish that ―consultation‖ means occurrence or primacy notably among
which are‖ The Chief Justice of India as a ‘PaterFamilias’ would be competent enough and has
the best qualities to judge and differentiating the Indian constitution with other constitutions, our
constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief
Justice of India cannot be considered as an inferior position.
In re Special Reference 1 of 1998
This is another famous case which decided various regarding the appointment of Judges. The
main issue that was to be decided was whether the expression ―consultation with the Chief
Justice of India‖ which are mentioned in articles 217(1) and 222(1) requires consultation with a
many Judges when the opinion of the Chief Justice of India is formed or does the single
individual opinion of the Chief Justice of India constitute a valid consultation that comes under
the meaning of the term ―consultation‖ which is mentioned in the above said articles. The case
also decided various other issues like whether any recommendations made by the Chief Justice
of India without following the rules and the process of consultation are binding upon the
Government of India.
It was held in the case that the expression ―consultation with the Chief justice of India‖ in
Articles 217(1) and 222(1) of the Constitution of India requires consultation with a majority of
Judges in the formation of the opinion of the Chief Justice of India. The individual and personal
opinion of the Chief Justice of India does not constitute a valid ―consultation‖ which comes
under the meaning of the term in the said Articles.
Conclusion
Judges are the most important part of the judiciary. It is important to ensure that the Judges are
competent enough to handle various issues that arise every day. The appointment of Judges must
be done properly and a lot of effort must be carried out while selecting the Judges. The Judges
should not be transferred unnecessarily and the transfer must be done only when there is a proper
reason. Judges should not be transferred for personal and political reasons. Thus the government
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and the judiciary must consider the appointment of Judges as a very important process and a lot
of care must be taken. ------------------------------
Judicial Review in India
Judicial review is recognized as a necessary and a basic requirement for construction up of a

novel civilization in order to safeguard the liberty and rights of the individuals. The power of
judicial review is significantly vested upon the High Courts and the Supreme Court of India.
Under Article 13 of the Indian Constitution, the compulsion of judicial review was described in
fundamental rights in Part III. It is stated that the State or the Union shall not make such rules
that takes away or abridges the essential rights of the people. If any law made by the Parliament
or the State Legislature contravenes the provisions of this Article, shall be void.
Meaning of Judicial Review

Judicial Review can be understood as a form of court proceeding, usually in the Administrative
Court where the lawfulness of a decision or action is reviewed by the judge. Where there is no
effective means of challenge, judicial review is available. The concern behind Judicial Review is
that whether the law has been correctly applied with and right procedures have been followed.
Judicial Review and Constitution of India

In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of
India has given influences to the higher courts and the Supreme Court of India. To guard the
rights of public and implement the fundamental rights are the main objects of judicial review. If
any difficulty arises between State and Center relation, then Article 246 and the Schedule 7 of
the Constitution has marked the working zone for the regulation construction between both State
and Center.
Judicial review has evolved in three dimensions:

# To protect the legality of essential rights under Part III of the Indian Constitution.
# To authorize the disinterest of organizational achievement.
# Interrogation of public interest.
Article 13 of the Indian Constitution

Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or
in particular areas
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(4) Nothing in this article shall apply to any amendment of this Constitution made under Article
368 Right of Equality
Judicial Review in India
Judicial review plays an important role as a protector when the executive, judiciary and
legislature harm the Constitutional values and deny the rights. The judicial assessment is
considered as an indispensable feature in the country. In India, there is parliamentary form of
democracy where every section of people is involved in decision making and policy making
process. It is true that the primary duty of the court to apply rule of law and is the groundwork of
social equality. By exercising new powers of Parliament, rule of law which is to be applied by
the court cannot be modified. All those here, who are doing public duty, are accountable. They
have to work within the democratic provisions of the Constitution of India. The concept of
separation of power and rule of law is judicial review. The influence of judicial assessment has
been so long under Articles 226 and 227 in case of High Court and Articles 32 and 136 of the
Constitution of India for the review.
Mechanisms of Judicial Review

In India, three aspects are covered by judicial review that is as follows:
# Judicial review of legislative action
# Judicial review for judicial decision
# Judicial review of administrative action
These facets of judicial review were pronounced by the Supreme Court of India in case of
L. Chandra Kumar v. Union of India, stating that the judges of higher court have to interpret
legislation up to this end that the Constitutional values are not to be interrupted. To achieve this
end, the judges have to keep in mind that the equilibrium of control, specified in the Constitution
is not disturbed.
Judicial Pronouncements
1. Shankari Prasad v. Union of India
It was held by six judge bench, five judges not agreed to amending the essential rights under the
Indian Constitution. However, in case of Keshavanand Bharti v. state of Kerala where six judges
out of seven judges held that Parliament modifying influence has and at all portion of the
Constitution can be amended and over ruled the Golaknath case. The Supreme Court held that
the essential rights cannot be modified in such a method, which will touch the elementary
construction of the Constitution.
2.I. R. Coelho v. State of Tamil Nadu

This case was seen from Keshvanand Bharti case in which the cases like Chandra Kumar v.
Union of India and others (1997),Waman Rao and others v. Union of India and others (1981),
Minerva Mills Ltd. and others v. Union of India (1980), Indira Nehru Gandhi v. Raj Narnia
(1975), where judicial review was considered as essential and integral Part of the Constitution of
India.
3. Mitthu v. State of Punjab
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The Supreme Court of India has struck down Section 303 of Indian Penal Code, 1860. This
section had made death sentence mandatory. In case Article twenty-one of the Indian
Constitution was illustrated by the S.C.I. complete its frequent pronouncement.
4. P.U.C.L v. U. O. I.
The Indian Supreme Court, in its historical verdict stated that to disregard or disobey the decision
given by the court, the lawmakers of India have no power to ask for the instrumentality, if the
legislature has influence over the subject matter. -------------------------------
Public Interest Litigation
Introduction
 The expression ‗Public Interest Litigation‘ has been borrowed from American jurisprudence,
where it was designed to provide legal representation to previously unrepresented groups like
the poor, the racial minorities, unorganized consumers, citizens who were passionate about
the environmental issues, etc.
 Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of
―Public Interest‖, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any
matter where the interest of public at large is affected can be redressed by filing a Public
Interest Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It has been interpreted
by judges to consider the intent of public at large.
 Public interest litigation is the power given to the public by courts through judicial activism.
However, the person filing the petition must prove to the satisfaction of the court that the
petition is being filed for a public interest and not just as a frivolous litigation by a busy
body.
 The court can itself take cognizance of the matter and precede suo motu or cases can
commence on the petition of any public spirited individual.
 Some of the matters which are entertained under PIL are:

o Bonded Labour matters
o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements
 The seeds of the concept of public interest litigation were initially sown in India by Justice
Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
 The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979) that
focused on the inhuman conditions of prisons and under trial prisoners that led to the release
of more than 40,000 under trial prisoners.
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 Right to speedy justice emerged as a basic fundamental right which had been denied to
these prisoners. The same set pattern was adopted in subsequent cases. A new era of the PIL
movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of
India.
o In this case it was held that ―any member of the public or social action group acting
bonafide‖ can invoke the Writ Jurisdiction of the High Courts (under article 226) or the
Supreme Court (under Article 32) seeking redressal against violation of legal or constitutional
rights of persons who due to social or economic or any other disability cannot approach the
Court.
o By this judgment PIL became a potent weapon for the enforcement of ―public duties‖
where executive action or misdeed resulted in public injury. And as a result any citizen of India
or any consumer groups or social action groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of general public or a section of the
public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He
did not insist on the observance of procedural technicalities and even treated ordinary letters
from public-minded individuals as writ petitions.
 The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala
Consultancy Service and Ors held :- ―In an appropriate case, where the petitioner might
have moved a court in her private interest and for redressal of the personal grievance, the
court in furtherance of Public Interest may treat it a necessity to enquire into the state of
affairs of the subject of litigation in the interest of justice.‖ Thus, a private interest case can
also be treated as public interest case.
 M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga water
pollution so as to prevent any further pollution of Ganga water. Supreme Court held that
petitioner although not a riparian owner is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in protecting the lives of the people who
make use of Ganga water.
 Vishaka v. State of Rajasthan: The judgement of the case recognized sexual harassment as a
violation of the fundamental constitutional rights of Article 14, Article 15 and Article
21. The guidelines also directed for the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013.
Factors Responsible for the Growth of PIL in India
 The character of the Indian Constitution. India has a written constitution which
through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy)
provides a framework for regulating relations between the state and its citizens and
between citizens inter-se.
 India has some of the most progressive social legislations to be found anywhere in the
world whether it be relating to bonded labor, minimum wages, land ceiling,
environmental protection, etc. This has made it easier for the courts to haul up the
executive when it is not performing its duties in ensuring the rights of the poor as per the
law of the land.
 The liberal interpretation of locus standi where any person can apply to the court on
behalf of those who are economically or physically unable to come before it has helped.
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Judges themselves have in some cases initiated suo moto action based on newspaper
articles or letters received.
 Although social and economic rights given in the Indian Constitution under Part IV are
not legally enforceable, courts have creatively read these into fundamental rights thereby
making them judicially enforceable. For instance the "right to life" in Article 21 has been
expanded to include right to free legal aid, right to live with dignity, right to education,
right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.
 Judicial innovations to help the poor and marginalised: For instance, in the Bandhua
Mukti Morcha, the Supreme Court put the burden of proof on the respondent stating it
would treat every case of forced labor as a case of bonded labor unless proven otherwise
by the employer. Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati
held that anyone getting less than the minimum wage can approach the Supreme Court
directly without going through the labor commissioner and lower courts.
 In PIL cases where the petitioner is not in a position to provide all the necessary
evidence, either because it is voluminous or because the parties are weak socially or
economically, courts have appointed commissions to collect information on facts and
present it before the bench.
Who Can File a PIL and Against Whom?
 Any citizen can file a public case by filing a petition:
o Under Art 32 of the Indian Constitution, in the Supreme Court.
o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some basic needs for
PIL as the letter is addressed by the aggrieved person, public spirited individual and a
social action group for the enforcement of legal or Constitutional rights to any person
who are not able to approach the court for redress.
 A Public Interest Litigation can be filed against a State/ Central Govt., Municipal
Authorities, and not any private party. The definition of State is the same as given
under Article 12 of the Constitution and this includes the Governmental and Parliament
of India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of
India.
Significance of PIL
 The aim of PIL is to give to the common people access to the courts to obtain legal redress.
 PIL is an important instrument of social change and for maintaining the Rule of law and
accelerating the balance between law and justice.
 The original purpose of PILs has been to make justice accessible to the poor and the
marginalized.
 It is an important tool to make human rights reach those who have been denied rights.
 It democratises the access of justice to all. Any citizen or organization who is capable can
file petitions on behalf of those who cannot or do not have the means to do so.
 It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.
 It is an important tool for implementing the concept of judicial review.
 Enhanced public participation in judicial review of administrative action is assured by the
inception of PILs.
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Certain Weaknesses of PIL

 PIL actions may sometimes give rise to the problem of competing rights. For instance, when
a court orders the closure of a polluting industry, the interests of the workmen and their
families who are deprived of their livelihood may not be taken into account by the court.
 It could lead to overburdening of courts with frivolous PILs by parties with vested
interests. PILs today has been appropriated for corporate, political and personal gains. Today
the PIL is no more limited to problems of the poor and the oppressed.
 Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic or
environmental problems can take place through the PILs.
 PIL matters concerning the exploited and disadvantaged groups are pending for many
years. Inordinate delays in the disposal of PIL cases may render many leading judgments
merely of academic value.
Conclusion
 Public Interest Litigation has produced astonishing results which were unthinkable three
decades ago. Degraded bonded labourers, tortured under trials and women prisoners,
humiliated inmates of protective women‘s home, blinded prisoners, exploited children,
beggars, and many others have been given relief through judicial intervention.
 The greatest contribution of PIL has been to enhance the accountability of the governments
towards the human rights of the poor.
 The PIL develops a new jurisprudence of the accountability of the state for constitutional and
legal violations adversely affecting the interests of the weaker elements in the community.
 However, the Judiciary should be cautious enough in the application of PILs to avoid Judicial
Overreach that are violative of the principle of Separation of Power.
 Besides, the frivolous PILs with vested interests must be discouraged to keep its workload
manageable ------------------------------------
Judicial Activism
A judiciary is an independent body that is evenhanded, unbiased, and unprejudiced. It functions

within the framework of the constitution, defined under the concept of the separation of powers.
It interprets the constitution which is supreme and at times needed, supports the rule of law and
the standards laid down in the constitution. The Supreme Court of India is considered the
sentinel qui vie and protects the fundamental and constitutional rights of the people.
Judicial Activism means the rulings of the court based on political and personal rational and
prudence of the Judges presiding over the issue. It is a legal term referring to court rulings based,
in part or in full, on the political or personal factors of the Judge, rather than current or existing
legislation.
According to Black's Law Dictionary judicial activism is a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other factors, to
guide their decisions.
The judicial activism was evolved through the process of judicial review which can be pursued
from the unwritten constitution of Britain during the period of Stuart (1603-1688). In the year
1610, the power of Judicial Review was acknowledged for the first time in Britain through the
activism of Justice Coke. The then Chief Justice Coke stated that if a law made by Parliament
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breached the principles of common law; and â€˜reason, then it could be reviewed and
adjudicated as void by the judiciary.
Judicial activism in India implies the authority of the Supreme Court and the high courts, but not
the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the
legislation is incompatible with one or more of the constitutional clauses.
According to SP Sathe , a court giving a new meaning to the provision to suit the changing
social or economic conditions or expanding the horizons of the rights of the individual is
said to be an activist court.
The Supreme Court of India in its initial years was more a technocratic court but slowly began to
become more active through constitutional interpretation. The court became an activist through
its involvement and interpretation of law and statutes but the whole transformation took years
and it was a gradual process. The origins of judicial activism can be seen in the court's premature
and early assertion regarding the essence and nature of Judicial Review.
Landmark cases of Judicial Activism
In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions of the
undertrial prisoners reflected through the articles published in the newspaper. Many prisoners
who were under trial had already served the maximum persecution without being charged for the
offense. A writ petition was filed by an advocate under article 21 of the Indian Constitution. The
apex court accepted it and held that right to speedy trial is a fundamental right and directed the
state authorities to provide free legal facilities to the under-trial inmates so that they could get
justice, bail, or final release.
Another important case Sheela Barse v. State of Maharashtra, a letter written by a Journalist
was addressed to the Supreme Court avouching the custodial violence of women prisoners in
Jail. The court treated that letter as a writ petition and took cognizance of that matter and issued
the opposite guidelines to the concerned authorities of the state.
In Sunil Batra v. Delhi Administration, the court exercised its epistolary jurisdiction, and a
letter written by a prisoner was treated as a petition. The letter supposed that the head warden
atrociously inflicted pain and assaulted another prisoner. The Court stated that the technicalities
cannot stop the court from protecting the civil liberties of the individuals.
Some instances when the mechanism of Judicial Activism turned to the Judicial overreach. The
parliament of India has held responsible or accused the Judiciary for intervening and
overreaching its constitutional powers.
In the Supreme Court Advocates-on-Record Association v. Union of India, the National
Judicial Appointments Commission (NJAC) Act, and the constitutional amendment was declared
unconstitutional by the Apex court and the judgment was delivered with the majority of 4:1. The
act was declared unconstitutional as it was violating the judicial independence. And the existing
collegium system pertaining to transfer and appointment of judges again came in the operation.
Justice Khehar said, the absolute independence of judiciary, from other organs of
governance, protects the rights of the people.
Lodha Committee report on the Board of Control for Cricket in India
The Supreme Court established the Lodha Panel amid accusations of Indian cricket corruption,
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match-fixing, and betting controversies. In an effort to bring law and order back into the BCCI,
the committee was set up.
The committee recommended some points such as BCCI should come under RTI, cricket betting
should be made legal, and only the bodies that represent states should have the voting rights
while teams such as Railways and Services should be given the status of associate members
without any voting rights. But these recommendations were treated as Judicial overreach as
BCCI is an independent body not controlled by any state or central govt. so the Lodha committee
has no authority to declare such recommendations.
In Christian Medical College, Vellore & Others versus Union of India and Others
The Supreme Court barred the states from conducting separate entrance exams for medical
courses and ruled that undergraduate admissions to medical courses can only be done through the
NEET.
The rulings of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET), i.e.,
the single exam for admission to medical colleges, the reformation of the Board of Cricket
Council in India (BCCI), the filing of the post of judge, etc were regarded by the government to
be the Judicial Intervention.
In Swaraj Abhiyan-(I) v. Union of India & Ors., the Apex court instructed the Ministry of
Agriculture of the Union of India to update and amend the Drought Management Manual. he
apex court also guided the state to constitute a National Disaster Mitigation Fund within three
months. On this, the then Finance Minister Arun Jaitley said: We have the National Disaster
Response Fund and the State Disaster Response Fund and now we are being asked to create a
third fund.
The appropriation bill is being passed. Now outside this Bill, we are being told to create this
fund. How will I do that? India's budget-making is being subject to judicial review. Step by step,
brick by brick, the edifice of India's legislature is being destroyed. This was the response of the
legislature on the overreaching the constitutional powers by the judiciary.
The judiciary sometimes has tried to regulate itself and put some constraints on its powers
whenever it is required. The Supreme Court in Divisional Manager, Aravali Golf Course v.
Chander Haas observed that: Judges must know their limits and must not try to run the
Government. They must have modesty and humility, and not behave like Emperors. There is
broad separation of powers under the Constitution and each organ of the State-the legislature, the
executive and the judiciary- must have respect for the others and must not encroach into each
other's domains.
Conclusion
Therefore, in a nutshell, I would like to say that the concept of judicial activism has both
positives and negatives. If the judiciary intervenes too much in the working of other organs of
the government and tries to overreach the constitutional powers then this concept of judicial
activism loses its importance and essence. Sometimes in the name of activism, the judiciary often
rewrites personal views in the name of activism; power separation theory is being overthrown.
While judicial activism is deemed favorable in addition to the legislative's failures, overreaching
the domain of the other organs of the government is regarded as interference into the appropriate
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workings of democracy. Its significance, however, lies in the institution's role as a place of hope
for aggrieved individuals.
The role of Judicial Activism cannot be negated or overlooked as it played a significant role in
providing justice to the underprivileged sections of the society, indigent individuals, and socially
and educationally backward classes, victims of trafficking and under trial prisoners. Proper
implementation of fundamental rights could only become possible due to the advancement of
Judicial Activism.
There is a narrow demarcation between activism and overreach. Sometimes in the process of
judicial activism, the judiciary intervenes too much and reflects its personal beliefs in the course
of providing justice. The interpretation of law which is the primary function of judiciary but the
courts rather than interpreting the law start making the law, issue guidelines and directions which
is to be done by the legislature. -----------------------
What are Lokpal and Lokayukta?

 The Lokpal and Lokayukta Act, 2013 provided for the establishment of Lokpal for the
Union and Lokayukta for States.
 These institutions are statutory bodies without any constitutional status.
 They perform the function of an "ombudsman‖ and inquire into allegations of corruption
against certain public functionaries and for related matters.
Background
 In 1809, the institution of ombudsman was inaugurated officially in Sweden.
 In the 20th century, Ombudsman as an institution developed and grew most significantly
after the Second World War.
 New Zealand and Norway adopted this system in the year 1962 and it proved to be of
great significance in spreading the concept of the ombudsman.
 In 1967, on the recommendations of the Whyatt Report of 1961, Great Britain adopted
the institution of the ombudsman and became the first large nation in the democratic world
to have such a system.
 In 1966, Guyana became the first developing nation to adopt the concept of the ombudsman.
Subsequently, it was further adopted by Mauritius, Singapore, Malaysia, and India as well.
 In India, the concept of constitutional ombudsman was first proposed by the then law
minister Ashok Kumar Sen in parliament in the early 1960s.
 The term Lokpal and Lokayukta were coined by Dr. L. M. Singhvi.
 In 1966, the First Administrative Reforms Commission recommended the setting up of
two independent authorities- at the central and state level, to look into complaints against
public functionaries, including MPs.
 In 1968, Lokpal bill was passed in Lok Sabha but lapsed with the dissolution of Lok Sabha
and since then it has lapsed in the Lok Sabha many times.
 Till 2011 eight attempts were made to pass the Bill, but all met with failure.
 In 2002, the Commission to Review the Working of the Constitution headed by M.N.
Venkatachaliah recommended the appointment of the Lokpal and Lokayuktas; also
recommended that the PM be kept out of the ambit of the authority.
 In 2005, the Second Administrative Reforms Commission chaired by Veerappa
Moily recommended that the office of Lokpal should be established without delay.
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 In 2011, the government formed a Group of Ministers, chaired by Pranab Mukherjee to

suggest measures to tackle corruption and examine the proposal of a Lokpal Bill.
 "India Against Corruption movement" led by Anna Hazare put pressure on the United
Progressive Alliance (UPA) government at the Centre and resulted in the passing of the
Lokpal and Lokayuktas Bill, 2013, in both the Houses of Parliament.
 It received assent from President on 1 January 2014 and came into force on 16 January 2014.
Structure of Lokpal
 Lokpal is a multi-member body, that consists of one chairperson and a maximum of 8
members.
 Chairperson of the Lokpal should be either the former Chief Justice of India or the former
Judge of Supreme Court or an eminent person with impeccable integrity and outstanding
ability, having special knowledge and expertise of minimum 25 years in the matters relating
to anti-corruption policy, public administration, vigilance, finance including insurance and
banking, law and management.
 Out of the maximum eight members, half will be judicial members and minimum 50% of the
Members will be from SC/ ST/ OBC/ Minorities and women.
 The judicial member of the Lokpal either a former Judge of the Supreme Court or a former
Chief Justice of a High Court.
 The non-judicial member should be an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the
matters relating to anti-corruption policy, public administration, vigilance, finance including
insurance and banking, law and management.
 The term of office for Lokpal Chairman and Members is 5 years or till the age of 70
years.
 The members are appointed by the president on the recommendation of a Selection
Committee.
 The selection committee is composed of the Prime Minister who is the Chairperson; Speaker
of Lok Sabha, Leader of Opposition in Lok Sabha, Chief Justice of India or a Judge
nominated by him/her and One eminent jurist.
 For selecting the chairperson and the members, the selection committee constitutes a search
panel of at least eight persons.
Lokpal Search Committee
 Under the Lokpal Act of 2013, the DoPT is supposed to put together a list of candidates
interested to be the chairperson or members of the Lokpal.
 This list would then go to the proposed eight-member search committee, which would
shortlist names and place them before the selection panel headed by the Prime Minister.
 The selection panel may or may not pick names suggested by the search committee.
 In September 2018, the government had constituted a search committee headed by former
Supreme Court judge Justice Ranjana Prakash Desai.
 The 2013 Act also provides that all states should set up the office of the Lokayukta within
one year from the commencement of the Act.
Lokpal Jurisdiction and Powers
 Jurisdiction of Lokpal includes Prime Minister, Ministers, members of Parliament,
Groups A, B, C and D officers and officials of Central Government.
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 Jurisdiction of the Lokpal included the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space.
 The Lokpal does not have jurisdiction over Ministers and MPs in the matter of anything said
in Parliament or a vote given there.
 Its jurisdiction also includes any person who is or has been in charge (director/ manager/
secretary) of anybody/ society set up by central act or any other body financed/ controlled by
central government and any other person involved in act of abetting, bribe giving or bribe
taking.
 The Lokpal Act mandates that all public officials should furnish the assets and liabilities of
themselves as well as their respective dependents.
 It has the powers to superintendence over, and to give direction to CBI.
o If Lokpal has referred a case to CBI, the investigating officer in such case cannot
be transferred without the approval of Lokpal.
 The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
 Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or
procured by means of corruption in special circumstances.
 Lokpal has the power to recommend transfer or suspension of public
servant connected with allegation of corruption.
 Lokpal has the power to give directions to prevent the destruction of records during
the preliminary inquiry.
Limitations
 The institution of lokpal has tried to bring a much needed change in the battle against
corruption in the administrative structure of India but at the same time, there are loopholes
and lacunae which need to be corrected.
 Five years have passed since the Lokpal and Lokayuktas Act 2013 was passed by
parliament, but not a single Lokpal has been appointed till date indicating the lack of
political will.
o The Lokpal act also called upon states to appoint a Lokayukta within a year of its coming to
force. But only 16 states have established the Lokayukta.
 Lokpal is not free from political influence as the appointing committee itself consist of
members from political parties.
 The appointment of Lokpal can be manipulated in a way as there is no criterion to decide
who is an ‗eminent jurist‘ or ‗a person of integrity.‘
 The 2013 act did not provide concrete immunity to the whistle blowers. The provision
for initiation of inquiry against the complainant if the accused is found innocent will only
discourage people from complaining.
 The biggest lacuna is the exclusion of judiciary from the ambit of the Lokpal.
 The Lokpal is not given any constitutional backing and there is no adequate provision for
appeal against the Lokpal.
 The specific details in relation to the appointment of Lokayukta have been left completely
on the States.
 To some extent, the need for functional independence of the CBI has been catered to by a
change brought forth in the selection process of its Director, by this Act.
 The complaint against corruption cannot be registered after a period of seven years from the
date on which the offence mentioned in such complaint is alleged to have been committed.
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------------------------------------------
Who is a Governor?
Governor is a nominal executive head of the state. He forms an important part of the state
executive where he acts as the chief executive head. Central Government nominates the
governor for each state.
How is a Governor Appointed?
The Indian President appoints Governor for each state by warrant under his hand and seal.
Central Government is responsible to nominate the governor for each state.
Note:
 Unlike elections of President, there is no direct or indirect election for the post of
Governor.
 The office of a governor is not a part of the union executive and is an independent
constitutional office. The governor doesn‘t serve the union government and neither is
subordinate to it.
 The nomination of a governor by the Union and his appointment by the President in India
is based on the Canadian model of government.
What is the term of the Governor’s office?
Since the Governor holds the office under the pleasure of the President, his office has no fixed
term. President can remove the Governor and the grounds upon which he may be removed are
not laid down in the constitution.
Governor may also get transferred from one state to another by the President. He also can be
reappointed.
Note:
 An interregnum is not allowed; following which a Governor may sit in the office beyond
5 years (expiry of the term) till the new governor assumes the charge of the office.
 On President‘s discretion, the Chief Justice of the High Court of the concerned state can
also be appointed as the Governor on a temporary basis when and how the President
thinks fit. (Example – On the governor‘s death, Chief Justice of HC can be appointed as
the governor.)
Who is qualified to become a Governor?
Unlike Lok Sabha or Rajya Sabha members or even in the case of Prime Minister or President
who have a set of qualifications to meet to hold the office; Governor has to meet only two
qualifications:
1. He should be an Indian Citizen
2. He should be 35 years old or more
Note: There are two conventions that the government follow before nominating a person as a
Governor:
1. That person is not appointed as the governor who belongs to the state. He shall be an
outsider having no relation with the state he is being appointed to.
2. Consultation of the Chief Minister is taken by the President before appointing a governor
It should also be noted that both the above conventions are not absolute and have been ignored
by the union government in many instances.
What are the conditions of his office?
There are a few conditions for a person to be appointed as a Governor:
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1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of
either of the house, he should vacate the seat on his first day as Governor in the office.
2. He should not hold any office of profit.
3. For his residence, Raj Bhavan is provided to him without the payment of rent.
4. Parliament decides his emoluments, allowances, and privileges.
5. When a governor is responsible for two or more states, the emoluments and allowances
payable to him are shared by the states in such proportion as the President may
determine.
6. Parliament cannot diminish his emoluments and allowances during his term of office.
7. He is given immunity from any criminal proceedings, even in respect of his personal acts
8. Arrest or imprisonment of the Governor cannot take place. Only civil proceedings can be
initiated for his personal acts that too after giving two months‘ of prior notice.
What are the powers and functions of the Governor?
Executive Powers of the Governor
The following comes under his executive powers:
1. Every executive action that the state government takes, is to be taken in his name.
2. How an order that has been taken up his name is to be authenticated, the rules for the
same can be specified by the Governor.
3. He may/may not make rules to simplify the transaction of the business of the state
government.
4. Chief Ministers and other ministers of the states are appointed by him.
5. It is his responsibility to appoint Tribal Welfare Minister in the states of:
1. Chattisgarh
2. Jharkhand
3. Madhya Pradesh
4. Odisha
6. He appoints the advocate general of states and determines their remuneration
7. He appoints the following people:
1. State Election Commissioner
2. Chairman and Members of the State Public Service Commission
3. Vice-Chancellors of the universities in the state
8. He seeks information from the state government
9. A constitutional emergency in the state is recommended to the President by him.
10. The governor enjoys extensive executive powers as an agent of the President during the
President‘s rule in the state.
Legislative Powers of the Governor
The following are the legislative powers of the governor:
1. It‘s in his power to prorogue the state legislature and dissolve the state legislative
assemblies
2. He addresses the state legislature at the first session of every year
3. If any bill is pending in the state legislature, Governor may/may not send a bill to the
state legislature concerning the same
4. If the speaker of the legislative assembly is absent and the same is Deputy Speaker, then
Governor appoints a person to preside over the session
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5. As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the total

members of the legislative council from the fields of:
1. Literature
2. Science
3. Art
4. Cooperative Movement
5. Social Service
6. As President nominates 2 members in the Lok Sabha, Governor nominates 1 member in
state legislative assembly from Anglo-Indian Community.
7. He can consult Election Commission for the disqualification of members
8. With respect to the bill introduced in the state legislature, he can:
1. Give his assent
2. Withhold his assent
3. Return the bill
4. Reserve the bill for the President‘s consideration (In instances where the bill
introduced in the state legislature endangers the position of state High Court.)
Note: Governor can reserve the bill for the President‘s consideration in the following cases:
 When provisions mentioned in the bill violates the constitution (Ultra-Vires)
 When provisions mentioned in the bill oppose Directive Principles of State Policy
 When provisions mentioned in the bill hinders the larger interests of the country
 When provisions mentioned in the bill concern the national importance
 When provisions mentioned in the bill mention the acquisition of property that is dealt
with Article 31A in the constitution. (Read more about important articles in the Indian
Constitution in the linked article.)
1. An ordinance can be promulgated by him when either the Legislative Assembly or
Council (Unicameral/Bicameral) are not in session. (Read the Ordinance Making Power
of President & Governor in the linked article.)
2. The following reports are laid by him:
1. State Finance Commission
2. State Public Service Commission
3. Comptroller and Auditor General (Concerning the state finance)
Financial Powers of the Governor
The following are the financial powers and functions of the Governor:
1. He looks over the state budget being laid in the state legislature
2. His recommendation is a prerequisite for the introduction of money bill in the state
legislature
3. He recommends for the demand for grants which otherwise cannot be given
4. Contingency Fund of State is under him and he makes advances out that to meet
unforeseen expenditure
5. State Finance Commission is constituted every five years by him. (Read about
the Finance Commission of India in the linked article.)
Judicial Powers of the Governor
The following are the judicial powers and functions of the Governor:
1. He has the following pardoning powers against punishment:
1. Pardon
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2. Reprieve
3. Respite
4. Remit
5. Commute
2. President consults the Governor while appointing judges of High Court
3. In consultation with the state High Court, Governor makes appointments, postings, and
promotions of the district judges
4. In consultation with the state high court and state public service commission, he also
appoints persons to the judicial services.
----------------------------------
Powers and functions of the Chief Minister
Appointment of Chief Minister
Our constitution does not specifically mention about the qualification to be appointed as Chief
Minister (CM). Article 164 of the Constitution envisages that the Chief Minister shall be
appointed by the governor. However, this does not imply that the governor is free to appoint
anyone as the Chief Minister of the state or UT.
The powers and functions of CM can be classified under following heads:
• With respect to council of ministers –
The following are the powers of CM with respect to state council of ministers –
1). He advises the Governor to appoint any person as a minister. It is only according to the
advice of CM the Governor appoints ministers.
2). Allocation and reshuffling of portfolios among ministers.
3). In case of difference of opinion; he can ask minister to resign.
4). Directs, guides and controls activities of all the ministers.
5). If the Chief Minister resign then full cabinet has to resign.
With Respect to Governor -
Under Article 167 of our constitution: The Chief Minister acts as a link between Governor
and state council of ministers. The functions with respect to the Governor are as follows:
1). CM has to communicate to the Governor all the decisions of the council of ministers relating
to the administration of the states.
2). Whenever the Governor calls for any information relating to the decisions taken or regarding
the administration, the CM has to provide him the same
3). The Governor can ask for consideration of council of ministers when a decision has been
taken without the consideration of the cabinet.
4). CM advises Governor regarding the appointment of important officials like Attorney
General, State Public Service Commission (Chairman and Members), State Election
Commission etc.
• With Respect to State Legislature –
1) All the policies are announced by him on the floor of the house.
2) He recommends dissolution of legislative assembly to the Governor.
3) He advises the Governor regarding summoning, proroguing the sessions of State Legislative
Assembly from time to time.
• Other Functions
1) At the ground level he is the authority to be in contact with the people regularly and know
about their problems so as to bring about policies on the floor of the assembly.
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2) He acts as the chairman of State Planning Commission.

3) He is the vice chairman of concerned zonal council in rotation for a period of one year.
4) During emergencies he acts as the crisis manager in the state.
S from the above explanation it can be conclude that the Chief Minister of a state has wide
range of functions. He is the leader of the MLAs elected by the general public of the state.
--------------------------------------
Powers and Functions of the High Court
The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian
Constitution talk about the High Courts, their organisation and powers. The Parliament can also
provide for the establishment of one High Court for two or more states. For instance, Haryana,
Punjab and the Union Territory of Chandigarh have a common High Court. The northeastern
states also have one common High Court. In addition, Tamil Nadu shares a High Court with
Puducherry. Currently, there are 25 High Courts in India. The High Courts of Calcutta, Madras
and Bombay were established by the Indian High Courts Act 1861
High Court Powers
Apart from the above, the High Courts have several functions and powers which are described
below.
As a Court of Record
 High Courts are also Courts of Record (like the Supreme Court).
 The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.
 All High Courts have the power to punish all cases of contempt by any person or
institution.
Administrative Powers
1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself
and decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.
Power of Judicial Review
High Courts have the power of judicial review. They have the power to declare any law or
ordinance unconstitutional if it is found to be against the Indian Constitution.
Power of Certification
A High Court alone can certify the cases fit for appeal before the Supreme Court.
Module 3- Introduction and Basic Information about Legal System

Sources of Law
1. Legislative.
2. Precedents.
3. Customs.
4. Opinion juris (statutory interpretation and preparatory works).
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5. Justice equity and good conscience.

Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the
law derives its force or validity. Several factors of law have contributed to the development of
law. These factors are regarded as the sources of law.
Legislation
Legislation is that source of law which consist in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old
laws and cancels existing laws in all countries. In modern times this is the most important source
of law making. The term legislature means any form of law making. Its scope has now been
restricted so a particular form of law making. It not only creates new rules of law it also sweeps
away existing inconvenient rules.
Types of Legislation
1. Supreme legislation. 2. Subordinate Legislation.
1. Supreme legislation: Supreme legislation is the expression of the legislative will of a
supreme authority in a state. It is supreme because no authority can annual, modify or
control it. It proceeds from the sovereign or supreme legislative power in the state, and
which is therefore, incapable of being abrogated by any other legislative authority.
2. Subordinate legislation: Subordinate legislation is that which proceeds from any authority
other than the sovereign legislation power, and is, therefore, dependent for its existence or
validity on some superior or supreme legislative authority. It comes from a subordinate
legislature or any authority and is subject to the repealing or sanctioning control of a
superior legislation. In England all form of legislative activity recognized by law, other than
the power of parliament are subordinated and subject to parliamentary control.
Types of subordinate legislation

The chief forms or types of subordinate legislation are five in number. These are:
1. Local bodies such as municipal or corporations.
2. Autonomous legislation: It is the process of law making by persons not by the state for
their own guidance. Legislation thus made by private persons and the law created may be
distinguished as autonomic view. These are autonomous bodies like municipal councils,
universities etc.
Precedent
Precedent is one of the sources of law. The judgments passed by some of the learned jurists
became another significant source of law. When there is no legislature on particular point which
arises in changing conditions, the judges depend on their own sense of right and wrong and
decide the disputes. Such decisions become authority or guide for subsequent cases of a similar
nature and they are called precedents.
The dictionary of English law defines a judicial precedent as a judgments or decision of a court
of law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy. Precedent is more flexible than legislation and custom. It is always
ready to be, used. Precedent is otherwise called case law judicial decision judge made law it is
the sources of law. It enjoyed a high authority precedent plays a vital role when law is unwritten
English common law is based on precedent.
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Kinds of precedent
1. Authoritative precedents or absolute precedent: whether judge approves it or not this kind of
precedent must be followed.
2. Conditional precedent: The judge may disregard either by dissenting or by over ruling it
known as conditional precedent.
3. Persuasive precedents: Judges have no obligation to follow can take into consideration.
Precedent of other court i.e. foreign court.
Theories of precedent
1. Declaratory theory: Declaration of existing law by the judges is known as declaratory theory.
Judge only declare the existing law.
2. Original precedent theory: Law making by the judge known as original precedent theory
judge are the law makers the role of judge is creative particularly when the law is absent.
Principles of precedent
1. Ratio decidendi Reason for the decision - An authoritative principle of a judicial decision.
It contains the principle of law formulated by a judge, it is essential for the decision of a
case. It has force of law and binding on the courts.
Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a
particular case. Bridges v. Hawkeshworth, Customer found money on the floor of a
shopping complex both customer and shopkeeper claim that money. Court treated shop as
a public place and applied rule finder keeper and it favoured the customer. Here the ratio
decidendi is the finder of goods is the keeper principle.
2. Obiter dictum something said by the judge, does not have any binding authority. Judge
may declare some general principles relating to law but that may be unnecessary and
irrelevant to the issues before him. Those unnecessary statements of law which lay down
a rule is called Obiter dictum.\
3. Stare decisis: Means let the decision stand in its rightful place. During 17th century a
progress made in the law reporting system. Reporting of the decisions of the court Act to
stare decisis a principle of the law which has become settled by a series of decisions is
generally binding on the courts and should be followed in similar cases. It is based on
expediency and public policy.
4. Prospective overruling: Reversing the lower court's decision by Supreme Court can
overrule their own earlier decisions by another bench of judges consisting of more
number of judges than previous one. It is a modern trend which enables the court to
correct its errors without affecting its past transactions.
Customs
A custom is a rule which in a particular family or in a particular district or in a particular section,
class or tribe, has from long usage obtained the force of law. The dictionary of English law
defines custom as a law not written, which being established by long use and consent of our
ancestors has been and daily is put into practice. Custom as a source of law got recognition since
the emergence of Savigny on the horizon of jurisprudence.
It is an exemption to the ordinary law of the land, and every custom is limited in its application.
A study of ancient shows that law-making was not the business of the kings. Law of the country
was to be found in the customs of the people which developed spontaneously according to
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circumstances. It was felt that a particular way of doing things was more convenient than others
when the same things were done again and again in a particular way, it is of custom. According
to Salmond custom is the legal source of law.
According to Salmond: Custom is the embodiment of those principles which have commended
themselves to the national and national conscience as the principles of justice and public utility.
According to Austin: Custom is a rule of conduct which the governed observed spontaneously
and not in pursuance of law set by political superior.
According to Holland: Custom is a generally observed course of conduct.
Kinds of Custom: Custom is of two kinds:

I. Legal Custom
II. Conventional Custom.
I. Legal Custom: According to Salmond, a legal custom is one whose legal authority is absolute,
one which in itself and possesses the force of law:
Kinds of legal Custom:
a. General Custom.
b. Local Custom.
(a) General Custom: General customs are those which have force of law throughout the territory.
The common law of England is based upon general customs of the realm.
(b) Local Custom: the local customs are those which operate have the force of law in a particular
locality. The authority of a local custom is higher than that of general custom.
II. Conventional Custom: A Conventional custom is one whose authority is conditional on its
acceptance in the agreement between the parties to be bound by it. There is a process by which
conventional usage comes to have the force of law.
Conditions for a valid custom: Certain conditions must be satisfied before a court is entitled to
incorporate the usages into contracts.
i. The usage must be so well-established as to be notorious.
ii. The usage must be reasonable.
iii. Usage cannot alter general law of land.
iv. A usage should not nullify or very the express term of the contract.
Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law
I. Immemorial: A Custom to be valid must be proved to be immemorial. According to
Blackstone: A custom in order that in may be legal and binding, must have been used so
long that the memory of man not to the contrary, so that if anyone can show the
beginning of it, it is good custom.
II. Reasonable: Another essential of a valid custom is that it must be reasonable. The
unreasonableness of custom must be so great that its enforcement results in greater harm
than if there were no custom at all. According to Prof. Allen: The unreasonableness of
custom must be proved and not its reasonableness.
III. Continuous: A custom must not continuously observed and if it has not been
continuously and uninterruptedly observed, the presumption is that it existed at all.
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IV. Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.

V. Certainty: A valid custom must be certain and definite, if there are any ambiguities in it
or it keeps change, it is not a valid custom.
VI. Compulsory Observance: A custom is valid if its observance is compulsory. An optical
observance is ineffective. According to Blackstone: A custom that all the inhabitants
shall be rated towards the maintenance of a bridge will be good, but a custom that every
man is to contribute thereto at his own pleasure is idle and indeed no custom at all.
VII. General or Universal: The custom must be general or universal. In the absence of
unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom
must not be opposed to public policy or the principles of morality. ----------------------
Indian Judiciary
Indian Judiciary – Structure

India has a single integrated judicial system. The judiciary in India has a pyramidal structure
with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the
district and subordinate courts. The lower courts function under the direct superintendence of the
higher courts.
The diagram below gives the structure and organization of the judicial system in the country.
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Apart from the above structure, there are also two branches of the legal system, which are:
1. Criminal Law: these deals with the committing of a crime by any citizen/entity. A criminal
case starts when the local police file a crime report. The court finally decides on the matter.
2. Civil Law: this deal with disputes over the violation of the Fundamental Rights of a citizen.
Supreme Court has three types of jurisdictions. They are original, appellate and advisory.
The jurisdiction of the Supreme Court is mentioned in Articles 131, 133, 136 and 143 of the
Constitution.
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What is Arbitration?
At its core, arbitration is a form of dispute resolution. Arbitration is the private, judicial
determination of a dispute, by an independent third party. An arbitration hearing may involve the
use of an individual arbitrator or a tribunal. A tribunal may consist of any number of arbitrators
though some legal systems insist on an odd number for obvious reasons of wishing to avoid a tie.
One and three are the most common numbers of arbitrators. The disputing parties hand over their
power to decide the dispute to the arbitrator(s). Arbitration is an alternative to court action
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(litigation), and generally, just as final and binding (unlike mediation, negotiation and
conciliation which are non-binding).
General principles of arbitration are as follows:
 The object of arbitration is to obtain a fair resolution of disputes by an impartial third party
without unnecessary expense or delay.
 Parties should be free to agree how their disputes are resolved, subject only to such
safeguards as are necessary in the public interest.
 Courts should not interfere.
Arbitrators, or Tribunal members, are commonly appointed by one of three means:
1. Directly by the disputing parties (by mutual agreement, or by each party appointing one
arbitrator)
2. By existing tribunal members (For example, each side appoints one arbitrator and then the
arbitrators appoint a third)
3. By an external party (For example, the court or an individual or institution nominated by the
parties)
Arbitration, while being nicknamed the ‗businessman‘s method of resolving disputes‘, is
governed by state and federal law. Most states have provisions in their civil practice rules for
arbitration. These provide a basic template for the arbitration as well as procedures for
confirmation of an arbitrator‘s award (the document that gives and explains the decision of an
arbitrator), a procedure that gives an award the force and effect of a judgment after a trial in a
court. Many states have adopted the Uniform Arbitration Act, although some states have specific
and individual rules for arbitration.
Classifications of Arbitration.
1. Commercial Arbitration is the most common of disputes. Just as it sounds, it is a dispute
between two commercial enterprises.
2. Consumer Arbitration surrounds disputes between a consumer and a supplier of goods or
services.
3. Labor Arbitration involves the settlement of employment related disputes. This form or
arbitration can be divided into two main categories: Rights Arbitration and Interest Arbitration.
Advantages of Arbitration
Supporters of arbitration hold that it has a multitude of advantages over court action. The
following are a sample of these advantages.
Choice of Decision Maker – For example, parties can choose a technical person as arbitrator if
the dispute is of a technical nature so that the evidence will be more readily understood.
Efficiency – Arbitration can usually be heard sooner than it takes for court proceedings to be
heard. As well, the arbitration hearing should be shorter in length, and the preparation work less
demanding.
Privacy – Arbitration hearings are confidential, private meetings in which the media and
members of the public are not able to attend. As well, final decisions are not published, nor are
they directly accessible. This is particularly useful to the employer who does not want his ‗dirty
laundry‘ being aired.
Convenience – Hearings are arranged at times and places to suit the parties, arbitrators and
witnesses.
Flexibility – The procedures can be segmented, streamlined or simplified, according to the
circumstances.
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Finality – There is in general, no right of appeal in arbitration. (Although, the court has limited
powers to set aside or remit an award).
Having cited the above list of advantages, it is only appropriate to mention some of the most
commonly perceived drawbacks of arbitration.
Cost - One or both of the parties will pay for the arbitrator‘s services, while the court system
provides an adjudicator who does not charge a fee. The fees for an arbitrator can be hefty. To
give an example, for an amount of claims up to $100,000, the minimum fee for a single arbitrator
is $2,000. The maximum fee can reach ten percent of the claim. However, supporters of
arbitration argue that this should be more than compensated for by the potential for the increase
in the efficiency of arbitration to reduce the other costs involved.
‘Splitting the Baby’ – Thomas Crowley states that because of the relaxation of rules of evidence
in arbitration, and the power of the arbitrator to ‗do equity‘ (make decisions based on fairness),
the arbitrator may render an award that, rather than granting complete relief to one side, splits the
baby by giving each side part of what they requested. Thus both parties are leave the table
feeling that justice was not served.
No Appeal – Unless there is evidence of outright corruption or fraud, the award is binding and
usually not appealable. Thus if the arbitrator makes a mistake, or is simply an idiot, the losing
party usually has no remedy. -------------------------------
What is Contract Law? What is Tort Law?

Contract
In order to understand contract law, you must first understand what it takes to have a valid legal
contract. A contract is a legally binding agreement between two or more parties, which obligates
those parties to perform specific acts. In order for a contract to be enforceable, each party must
exchange something of value, which is known as ―consideration.‖
Additionally, all involved parties need to have a sound understanding of every term of the
contract, and they must be in mutual agreement on the terms. Thus, a legally valid contract exists
if there is:
 A valid offer;
 An acceptance of the offer; and
 An exchange of some form of consideration.
If either party breaches their duty to perform or obligations under the contract, contract law aims
to provide damages to the injured party. Typically, damages for a breach of contract are awarded
with the intent to compensate the non-breaching party for losses suffered as a result of the
contract breach. Other damages that may be awarded in contract breaches
include restitution, liquidated damages, nominal damages, rescission of the contract, or in some
cases punitive damages may be awarded.
Torts
Tort law is another body of law that falls within the broader civil law umbrella, which covers
violations where one person‘s behavior or actions cause injury, suffering, unfair loss, or harm to
another person. Tort law is based on the premise that people are liable for their actions, and is a
very broad category of law that includes many different types of personal injury claims.
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Similar to breach of contract damages, tort law aims to compensate victims for any injuries or
losses suffered by the unreasonable acts of another, as well as discouraging the defendant from
repeating the violation in the future.
Tort liability can be imposed in many instances that include negligent behaviour towards a
person or land, negatively affecting a person‘s reputation or limiting freedom of movement. This
module will aim to explain and take you through how and why liability can be imposed on a
defendant, giving you an in-depth understanding of the nature of tortious liability.
Difference between law of Torts and contract
No Tort Contract
1) In tort, no privity exists or is needed as harm is In contract, there must always exist privity of contract between
always inflicted against the will of the party injured. parties i.e. the parties must be legally bounded each to other.
2) In case of torts, minor can be sued and damages are In contract, minority is a good defense as a minors contract is
paid out of his property. void-ab-inition and no rule of estoppel applies. (rule of estoppel
/ another to believe a certain state of things exists which in fact
is not true, then in such a case he is not afterwards allowed to
deny it).
3) A tort is inflicted without or against the consent of In a contract, obligation is founded on the consent of the parties
the party i.e. the obligation arises without any i.e. consent is the essence of a contract.
consent.
4) In torts, mistake is no no defense, even if it is In contract, a contract entered into by mistake is void. But
innocent. If A enters B‘s House by mistake, action mistake of law one‘s own country is no defense as everybody is
lies in tort for trespass. supposed to know the law of ones own country .
5) In torts, tort is a violation of infringement of a right In case of contract it is violation of a right in personam i.e. a
in Rem . i.e. rights available against the world at right available and enforceable against a particular persons.
large.
6) In case of a tort the duty is fixed or imposed by law In case of contract the duty is fixed by the will and consent of
and is owed to the community at large. the parties and it is owed to a definite person or persons.
7 In torts, motive is often taken into consideration. In contract, the ,motive for the breach is immaterial
8) In torts, damages awarded may be real, exemplary In contract real and liquidated damagews are awarded.
unliquidated or contemptuous Exemplary damages are rarely awarded.
9) The period of limitation in case of torts usually runs In contract , the period of limitation rems from the date of the
from the date when the damage is suffered. breach
Tort, Law at workplace
Personal liability of employers

Personal liability of an employer towards their employees is derived from both common and
statutory law. Personal liability is concerned to ensure the physical safety of their employees.
Duty of employer to take reasonable care to ensure the safety of employees
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Any employer is bound to take reasonable care to ensure the safety of its employees. It is
important to note that this duty is personal and non-representative. This duty was found in the
case of English of Wilson and Clyde Company Limited.
Safe place of work
The place of employment must be safe, it must include safe premises with a safe working
environment. The implementation of this principle is in the case of Latimer v AEC Ltd.
The obligation to provide a safe place of work extends to situations in which employees are
tasked to go off-site to work in places which are not controlled by their employer. This means
that those employees whose job is to go to different places can enjoy the same level of protection
as those who work at the same place every day. The responsibility of providing a safe place to
work will increase if employees are tasked with going off-sites to work which is not under the
control of the employer.
This means that those ―employees‖ whose job includes going to different places can enjoy the
same level of security as those who work at the same place every day. In Wilson v. Tyneside
Window Cleaning Company [1958], the court held that employers still have a duty to care for
employees, even if they are working outside their employers premises.
Safe equipments and materials
An employer must equip their employees with safe and properly maintained equipment. If
employees are working with particular equipment, it will be expected that the equipment is high
quality which can avoid unnecessary risk which was decided in the case of Knowles v. Liverpool
County Council.
Safe system of work
The safe system of work is a wide responsibility upon employers, it‘s really difficult to decide
what characterizes good and bad system of work. For this reason, the court decided to take the
decision on a case to case basis, whether liability exists. This means that the duty to provide a
safe system of work covers a wide range of conditions. This includes situations in which
employees are not warned of any danger. In addition, an employer cannot simply provide a
safeguard and then forget that a particular risk exists. This has been observed in Bax v Slough
Metal [1973]. If a particular risk has arisen itself, then its mandatory for the employer to take
preventive actions.
The duty to provide a safe system of work extends to protecting the mental health of employees.
This was held in the case of Walker v Northumberland County Council [1995]. It was held that
there was no reason why an employer‘s working system did not include preventing psychiatric
harm. However, there is a limit to the tasks expected of an employer in relation to providing a
safe working system. It is the duty of an employer to impose a safe system of work; they are still
entitled to trust the employees to follow it as a sensible man.
Competent staff
Employers should provide competent colleagues to their employees. The need to provide
competent employees can give rise to two different types of liabilities – a breach of duty to
provide competent staff, but also a claim can also arise as a result of vicarious liability.
Vicarious liability in employment
The employer may be held liable for actions or omissions during the employee‘s job. An
employer is not liable for work done by his employee which is not within the scope of his
employment. There are three elements that need to be present for vicarious liability.
1. The person who has committed the tort must be an employee.
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2. Tort must be committed by an employee.

3. Tort must be committed during employment.
The above mentioned elements are required for vicarious liability. This can only exist if the
person doing the wrong was an employee, and he / she commits the wrongdoing (result in
damage and caused injury to someone), and the wrongdoing was committed during his work
when he/she was under the scope of their employer.
Module 4- Intellectual Property Laws and Regulation to Information:
Overview of Intellectual Property Laws

A wide body of federal and state laws protects creative property such as writing, music,
drawings, paintings, photography, and films. Collectively, this body of law is called ―intellectual
property‖ law, which includes copyright, trademark, and patent laws, each applicable in various
situations and each with its own set of technical rules. When obtaining permission to use creative
works, you‘re concerned primarily with copyright law. However, trademarks, trade secrets, and
publicity and privacy rights sometimes come into play when permission to use certain types of
works is sought. Below is a summary of the various types of intellectual property laws that are
relevant to the permissions process.
 Copyright. Federal copyright law protects original creative works such as paintings, writing,
architecture, movies, software, photos, dance, and music. A work must meet certain
minimum requirements to qualify for copyright protection. The length of protection also
varies depending on when the work was created or first published.
 Trademark. Brand names such as Nike and Apple, as well as logos, slogans, and other
devices that identify and distinguish products and services, are protected under federal and
state trademark laws. Unlike copyrighted works, trademarks receive different degrees of
protection depending on numerous variables, including the consumer awareness of the
trademark, the type of service and product it identifies, and the geographic area in which the
trademark is used.
 Right of Publicity. A patchwork of state laws known as the right of publicity protects the
image and name of a person. These laws protect against the unauthorized use of a person‘s
name or image for commercial purposes—for example, the use of your picture on a box of
cereal. The extent of this protection varies from state to state.
 Trade Secrets. State and federal trade secret laws protect sensitive business information. An
example of a trade secret would be a confidential marketing plan for the introduction of a
new software product or the secret recipe for a brand of salsa. The extent of trade secret
protection depends on whether the information gives the business an advantage over
competitors, is kept a secret, and is not known by competitors.
 Right of Privacy. Although not part of intellectual property laws, state privacy laws preserve
the right of all people to be left alone. Invasion of privacy occurs when someone publishes or
publicly exploits information about another person‘s private affairs. Invasion of privacy laws
prevent you from intruding on, exposing private facts about, or falsely portraying someone.
The extent of this protection may vary if the subject is a public figure—for example, a
celebrity or politician
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Patent laws in India
A patent is an exclusive right granted by the Government to the inventor to exclude others to
use, make and sell an invention is a specific period of time. A patent is also available for
improvement in their previous Invention. The main motto to enact patent law is to encourage
inventors to contribute more in their field by awarding them exclusive rights for their
inventions. In modern terms, the patent is usually referred to as the right granted to an inventor
for his Invention of any new, useful, non-obvious process, machine, article of manufacture, or
composition of matter. The word ―patent‖ is referred from a Latin term ―patere‖ which means
―to lay open,‖ i.e. to make available for public inspection. There are three basic tests for any
invention to be patentable:
 Firstly, the invention must be novel, meaning thereby that the Invention must not be in
existence.
 Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant
improvement to the previous one; mere change in technology will not give the right of
the patent to the inventor.
 Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the
Invention must not be solely used in any illegal work and is useful to the world in a
bonafide manner.
Rights of the patentee

Rights of Patentee
 Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or
distribute the patented article or substance in India, or to use or exercise the method or
process if the patent is for a person. This right can be exercised either by the patentee himself
or by his agent or licensees. The patentee‘s rights are exercisable only during the term of the
patent.
 Right to grant license: The patentee has the discretion to transfer rights or grant licenses or
enter into some other arrangement for a consideration. A license or an assignment must be in
writing and registered with the Controller of Patents, for it to be legitimate and valid. The
document assigning a patent is not admitted as evidence of title of any person to a patent
unless registered and this is applicable to assignee not to the assignor.
 Right to Surrender: A patentee has the right to surrender his patent, but before accepting the
offer of surrender, a notice of surrender is given to persons whose name is entered in the
register as having an interest in the patent and their objections, if any, considered. The
application for surrender is also published in the Official Gazette to enable interested persons
to oppose.
 Right to sue for infringement: The patentee has a right to institute proceedings for
infringement of the patent in a District Court having jurisdiction to try the suit.
Procedure of Patent
 Step 1: Write about inventions (idea or concept) with each and every detail.
Collect all information about your Invention such as:
1. Field of Invention
2. What does the Invention describe
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3. How does it work

4. Benefits of Invention
If you worked on the Invention and during the research and development phase, you should
have some call lab records which are duly signed with the date by you and the concerned
authority.
 Step 2: It must involve a diagram, drawing and sketch explains the Invention
Drawings and drawings should be designed so that the visual work can be better explained
with the invention work. They play an important role in patent applications.
 Step 3: To check whether the Invention is patentable subject or not.
Not all inventions can be patentable, as per the Indian Patent Act there are some inventions
which have not been declared patentable (inventions are not patentable).
 Step 4: Patent Discovery
The next step will be to find out if your Invention meets all patent criteria as per the Indian
Patent Act-
1. The invention must be novel.
2. The Invention must be non- obvious.
3. The Invention must have industrial applications.
 Step 5: File Patent Application
If you are at a very early stage in research and development for your Invention, then you
can go for a provisional application. It offers the following benefits:
1. Filing date.
2. 12 months time for filing full specification.
3. Lesser cost.
After filing a provisional application, you secure the filing date, which is very important in the
patent world. You get 12 months to come up with the complete specification; your patent
application will be removed at the end of 12 months.
When you have completed the required documents and your research work is at a level where
you can have prototypes and experimental results to prove your inventive move; you can file
the complete specification with the patent application.
Filing the provisional specification is an optional step if you are in the stage where you have
complete knowledge about your Invention you can go straight to the full specification.
 Step 6: Publication of the application
Upon filing the complete specification along with the application for the patent, the application
is published 18 months after the first filing.
If you do not wish to wait until the expiration of 18 months from the filing date to publish your
patent application, an initial publication request may be made with the prescribed fee. The
patent application is usually published early as a one-month form request.
 Step 7: Request for Examination
The patent application is scrutinized only after receiving a request for an RFE examination.
After receiving this request, the Controller gives your patent application to a patent examiner
who examines the patent application such as the various patent eligibility criteria:
1. Patent subject
2. Newness
3. Lack of clarity
4. Inventory steps
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5. Industrial application
6. By enabling
The examiner makes the first examination report of the patent application upon a review for the
above conditions. This is called patent prosecution. Everything that happens for a patent
application before the grant of a patent is usually called patent prosecution.
The first examination report submitted to the Controller by the examiner usually includes prior
art (existing documents prior to the filing date) that are similar to the claimed invention and
is also reported to the patent applicant.
 Step 8: Answer the objections
Most patent applicants will receive some type of objections based on the examination report.
The best thing is to analyze the examination report with the patent professional (patent agent)
and react to the objections in the examination report.
This is an opportunity for an investor to communicate his novelty over the prior art in
examination reports. Inventors and patent agents create and send a test response that tries to
prove that their Invention is indeed patentable and meets all patent criteria.
 Step 9: clearance of objections
The Controller and the patent applicant is connected for ensuring that all objections raised
regarding the invention or application is resolved and the inventor has a fair chance to prove
his point and establish novelty and inventive steps on other existing arts.
Upon receiving a patent application in order for grant, it is the first grant for a patent applicant.
 Step 10:
Once all patent requirements are met, the application will be placed for the grant. The grant of a
patent is notified in the Patent Journal, which is published periodically.
Patent Infringement
Patent infringement is a violation which involves the unauthorized use, production, sale, or offer
of sale of the subject matter or Invention of another‘s patent. There are many different types of
patents, such as utility patents, design patents, and plant patents. The basic idea behind patent
infringement is that unauthorized parties are not allowed to use patents without the owner‘s
permission.
When there is infringement of patent, the court generally compares the subject matter covered
under the patent with the used subject matter by the ―infringer‖, infringement occurs when the
infringer Uses patent material from in the exact form. Patent infringement is an act of any
unauthorized manufacture, sale, or use of a patented invention. Patent infringement occurs
directly or indirectly.
Direct patent infringement: The most common form of infringement is direct infringement,
where the Invention that infringes patent claims is actually described, or the Invention performs
substantially the same function.
Indirect patent infringement: Another form of patent infringement is indirect infringement,
which is divided into two types:
 Infringement by inducement is any activity by any third party that causes another person
to infringe the patent directly. This may include selling parts that can only be used
realistically for a patented invention, selling an invention with instructions to use in a
certain method that infringes on a method patent or licenses an invention that is covered
by the patent of another. The inducer must assist intentional infringement, but does not
require intent to infringe on the patent.
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 Contributory infringement is the sale of components of material that are made for use in a
patented invention and have no other commercial use. There is a significant overlap with
indications, but contributor violations require a high level of delay. Violations of the
seller must have direct infringement intent. To be an obligation for indirect violations, a
direct violation must also be an indirect act.
Remedies for Patent Infringement
Patent infringement lawsuits can result in significantly higher losses than other types of
lawsuits. Some laws, such as the Patent Act, allow plaintiffs to recover damages. Patent
infringement is the illegal manufacture or usage of an invention or improvement of someone
else‘s invention or subject matter who owns a patent issued by the Government, without
taking the owner‘s consent either by consent, license or waiver. Several remedies are
available to patent owners in the event of an infringement. Measures available in patent
infringement litigation may include monetary relief, equal relief and costs, and attorneys‘
fees.
Monetary Relief: Monetary relief in the form of compensatory damages is available to prevent
patent infringement:
1. Indemnity compensation – A patent owner may have lost profits for infringement when
they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be charged in cases of
will or violation of will.
3. The time period for damages – The right to damages can be claimed only after the date
when the patent was issued and only 6 years before the infringement claim is filed.
Equitable relief: Orders are issued by the court to prevent a person from doing anything or Act.
Injections are available in two forms:
1. Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that
prevent parties from doing an act that is in dispute (such as making a patent product)
2. Permanent injunction – A final order of a court which permanently ceases certain
activities or takes various other actions. ---------------------------------
Copyright
Copyright gives creators the freedom to decide what happens to their creations. You may use
someone else‘s work only if you have their permission by the copyright owner or if the law
allows it.
Copyright can seem complicated but at its heart it‘s not. It‘s simply a law which says that if you
create something, then you own it. And as the owner you get to decide what happens to it.
So if you‘re a creator copyright automatically applies to, and protects, all your creative work.
That means you are free to decide how other people can use your work, and means they need to
ask your permission before using your work. It doesn‘t matter whether you‘re a ―professional‖ or
not, the law‘s the same for everyone.
What does copyright protect?
The law in the UK defines the things which copyright automatically applies to.
Original works, for example writing, music, drama, art and photography, are protected by
copyright. Films, sound recordings, typographical arrangements and broadcasts are also covered
as long as they are not copied from a previous work of the same kind.
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To receive copyright protection in the UK a literary, music or dramatic work must be recorded in
writing or otherwise. Here are some examples (the list is not exhaustive) of original works that
are copyright protected:
Literary works – novels, song lyrics, newspaper articles, user manuals and exam papers
Dramatic works – ballet, plays and mime
Musical works – recorded original songs, advert or film soundtracks or instrumental music
Artistic works – paintings, drawings, engravings, photographs, sculptures, maps, diagrams,
architecture and craftwork
Film – any moving image that can be reproduced, for example, cinema films, home videos or
DVDs of television programmes
Typographical arrangements – a published edition of a literary, musical or dramatic work, for
example a magazine design styling, film poster or book cover.
Broadcasts – transmitted images sounds or information that can be received by members of the
public
Sound recordings – recordings of sounds that can be reproduced regardless of what they are
made on (CD, MP3 or vinyl).
What constitutes copyright infringement?

Copyright infringement occurs when any of the following occur:
 unauthorized use of the exclusive rights of the owner of a copyright whether in relation to
the whole or a substantial part of the copyright work;
 permitting a place to be used for infringing purposes on a profit basis; and
 Displaying or exhibiting in public by way of trade or distributing for the purpose of trade
or importing infringing copies of a work.
What remedies are available against a copyright infringer?
The remedies provided by the Copyright Act, 1957 against infringement of copyright are:
 civil remedies - these provide for injunctions, damages, rendition of accounts, delivery
and destruction of infringing copies and damages for conversion;
 criminal remedies - these provide for imprisonment, fines, seizure of infringing copies
and delivery of infringing copies to the owner; and
 Border enforcement - the Act also provides for prohibition of import and destruction of
imported goods that infringe the copyright of a person with the assistance of the customs
authorities of India.
How may copyright infringement be prevented?
No degree of vigilance can guarantee an ‗infringer-free‘ environment, but certain deterrent
measures must be adhered to by copyright owners, for instance:
 documentation of instances of use;
 registration of copyright;
 proper notice of copyright;
 monitoring the activities of habitual infringers;
 making independent contractors and employees subject to confidentiality;
 having proper licensing agreements incorporating a proper control mechanism; and
 publicizing a successful infringement trial (if resources allow). ----------------------------
Salient features of RTI Act, 2005:
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Important features of the RTI Act are:

1. Features that strengthened democracy: Below features strengthened democracy through
active participation of citizens:
 Every citizen has right to claim information from public authorities under the act.
 Public authorities have an obligation to provide the sought information to the applicants with
certain restrictions related to national security, personal information and third party
information.
 Fee has been prescribed for seeking information to check fraudulent applications. However,
persons below poverty line have been exempted from payment of fees.
2. Features leading to transparency:
 A large amount of information has to be placed in the public domain by ways of manuals
prescribed under the Act.
 All the Government departments along with a number of bodies which receive substantial
funding from the Government have been brought under the RTI.
3. Features leading to accountability:
 RTI Act provide for setting up of Central Information Commission and State Information
Commission. These Commissions act as the Second Appellate Authority and also exercise
supervision and monitoring over the functioning of Public Information Officers.
 Public authorities have to provide information as early as possible as but not later than 30
days (not later than 48 hours in the matters pertaining to life and liberty of an individual).
 In case of delay, the Central Information Commission or the State Information Commission
can impose a penalty. The Commission can also recommend disciplinary proceedings against
the officials guilty of the not providing information with malafide intention.
 In case of denial or not providing proper information an appellate structure has also been
provided. First appeal lies with the First Appellate Authority nominated by the Department
while the second appeal lies with the Central Information Commission or State Information
Commission.
Issues and loopholes in RTI:
1. Increasing pendency of cases: These Commissions particularly the Central Information
Commission have kept a strong vigil over the functioning of administrative machinery
relating to the implementation of the Act. However, their performance has often been
restricted by increasing number of appeals. This has resulted in increase in pendency as well
as increase in waiting time for hearing of appeals.
2. Definition of information: An important issue is the definition of information. Supreme
Court stated that ‗information‘ for the purpose of this Act would mean information held by
the PIO or under his control. However, if the information is not held by the PIO the public
authority is not under obligation to provide that information.
3. Not all institutions under RTI: Another issue is that some institutions are not being covered
under the Act. E.g. judiciary is not under the act.
4. Lack of infrastructure: The Implementation of RTI requires the PIOs to provide
information to the applicant through photocopies, soft copies etc. These facilities are not
available at Block and Panchayat level. In order to service RTI requests, basic infrastructure
such as photocopier machines at each Public Authority and basic level of connectivity is
required.
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5. Low awareness level: Awareness about RTI is yet very low. Nodal Departments in many
states have not undertaken any substantial steps to promote the RTI Act. Awareness level is
low especially among the disadvantaged communities such as women rural population,
OBC/SC/ST population.
6. Constraints faced in filing applications: Under Section 26 of the RTI Act, the appropriate
Government is expected to publish and distribute user guides (within 18 months of enactment
of the Act) for information seekers. However Nodal Departments have not published these
guides in many states.
7. Corporates not under RTI: Corporate entities are not under the RTI Act. Apart from the
fact that the corporate sector utilises money from the common public in the form of share
capital a large number of entities in the private sector are performing functions similar to the
public sector. E.g banking, insurance, telephony etc. where the private sector is performing
functions similar to public sector.
Since the implementation of the RTI Act, it has established itself as an important tool in handling
corruption and inefficiency in the Government. Although there have been instances of misuse of
the Act, but it has served its purpose well. Issues and loopholes in RTI should be removed
through proper amendment to further the objectives of transparency and accountability.-----------
The Information Technology Act, 2000

The Information Technology Act, 2000 provides legal recognition for transactions carried out by
means of electronic data interchange and other means of electronic communication, commonly
referred to as―electronic commerce‖, which involve the use of alternatives to paper-based
methods of communication and storage of information, to facilitate electronic filing of
documents with the Government agencies and further to amend The Indian Penal Code, The
Indian Evidence Act, 1872, The Banker‘s Books Evidence Act, 1891 and The Reserve Bank of
India Act, 1934 and for matters connected therewith or incidental thereto.
The Information Technology Act, 2000 extend to the whole of India and it applies also to any
offence or contravention there under committed outside India by any person.
Salient Features of The Information Technology Act, 2000
The salient features of The IT Act, 2000 are as follows −
 Digital signature has been replaced with electronic signature to make it a more
technology neutral act.
 It elaborates on offenses, penalties, and breaches.
 It outlines the Justice Dispensation Systems for cyber-crimes.
 The Information Technology Act defines in a new section that cyber café is any facility
from where the access to the internet is offered by any person in the ordinary course of
business to the members of the public.
 It provides for the constitution of the Cyber Regulations Advisory Committee.
 The Information Technology Act is based on The Indian Penal Code, 1860, The Indian
Evidence Act, 1872, The Bankers‘ Books Evidence Act, 1891, The Reserve Bank of
India Act, 1934, etc.
 It adds a provision to Section 81, which states that the provisions of the Act shall have
overriding effect. The provision states that nothing contained in the Act shall restrict any
person from exercising any right conferred under the Copyright Act, 1957.
Application of the Information Technology Act, 2000
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Nothing in The Information Technology Act, 2000 shall apply to documents or transactions
specified in the First Schedule: Provided that the Central Government may, by notification in the
Official Gazette, amend the First Schedule by way of addition or deletion of entries thereto.
Every notification issued shall be laid before each House of Parliament.
Following are the documents or transactions to which the Act shall not apply −
 Negotiable Instrument(Other than a cheque) as defined in The Negotiable Instruments Act,
1881;
 A power-of-attorney as defined in The Powers of Attorney Act, 1882;
 A trust as defined in The Indian Trusts Act, 1882;
 A will as defined in The Indian Succession Act, 1925 including any other testamentary
disposition;
 Any contract for the sale or conveyance of immovable property or any interest in such
property;
 Any such class of documents or transactions as maybe notified by the Central Government.
Provisions for e-governance under the IT Act, 2000

These are the provisions under the IT Act, 2000 in the context of e-governance:
1. Legal Recognition of Electronic Records (Section 4)
Let‘s say that a certain law requires a matter written, typewritten, or printed. Even in the case of
such a law, the requirement is satisfied if the information is rendered or made available in an
electronic form and also accessible for subsequent reference.
2. Legal recognition of digital signatures (Section 5)
Let‘s say that the law requires a person‘s signature to authenticate some information or a
document. Notwithstanding anything contained in such law, if the person authenticates it with a
digital signature in a manner that the Central Government prescribes, then he satisfies the
requirement of the law.
For the purpose of understanding this, signature means a person affixing his handwritten
signature or a similar mark on the document.
3. Use of electronic records and digital signatures in Government and its agencies (Section
6)
(1) If any law provides for –
a. the filing of a form, application, or any document with any Government-owned or
controlled office, agency, body, or authority
b. the grant or issue of any license, sanction, permit or approval in a particular manner
c. also, the receipt or payment of money in a certain way
Then, notwithstanding anything contained in any other law in force such as filing, grant, issue,
payment, or receipt is satisfied even if the person does it in an electronic form. The person needs
to ensure that he follows the Government-approved format.
(2) With respect to the sub-section (1), may prescribe:
a. the format and manner of filing, creating or issuing such electronic records
b. also, the manner and method of payment of any fees or charges for filing, creating or
issuing any such records
Cyber Appellate Tribunal
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The Information Technology Act, 2000 also provides for the establishment of the Cyber
Appellate Tribunal. In this article, we will look at the establishment, composition, jurisdiction,
powers, and procedures if a Cyber Appellate Tribunal.
Establishment of Cyber Appellate Tribunal (Section 48)
1. The Central Government notifies and establishes appellate tribunals called Cyber Regulations
Appellate Tribunal.
2. The Central Government also specifies in the notification all the matters and places which fall
under the jurisdiction of the Tribunal.
The composition of Cyber Appellant Tribunal (Section 49)

The Central Government appoints only one person in a Tribunal – the Presiding Officer of the
Cyber Appellate Tribunal.
The qualifications for appointment as Presiding Officer of the Cyber Appellate Tribunal
(Section 50)
A person is considered qualified for the appointment as the Presiding Officer of a Tribunal if –
a. He has the qualification of the Judge of a High Court
b. He is or was the member of the Indian Legal Service and holds or has held a post in
Grade I of that service for at least three years.
The Term of Office (Section 51)
The Term of Office of the Presiding Officer of a Cyber Appellate Tribunal is five years from the
date of entering the office or until he attains the age of 65 years, whichever is earlier.
Filling up of vacancies (Section 53)
If for any reason other than temporary absence, there is a vacancy in the Tribunal, then the
Central Government hires another person in accordance with the Act to fill the vacancy. Further,
the proceedings continue before the Tribunal from the stage at which the vacancy is filled.
Resignation and removal (Section 54)
1. The Presiding Officer can resign from his office after submitting a notice in writing to the
Central Government, provided:
a. he holds office until the expiry of three months from the date the Central
Government receives such notice (unless the Government permits him to
relinquish his office sooner), OR
b. he holds office till the appointment of a successor, OR
c. Until the expiry of his office; whichever is earlier.
2. In case of proven misbehavior or incapacity, the Central Government can pass an order to
remove the Presiding Officer of the Cyber Appellate Tribunal. However, this is only after
the Judge of the Supreme Court conducts an inquiry where the Presiding Officer is aware
of the charges against him and has a reasonable opportunity to defend him.
3. The Central Government can regulate the procedure for the investigation of misbehavior
or incapacity of the Presiding Officer.
Module 5 -Business Organizations and E-Governance:
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Formation of a Company under the Companies Act, 2013

A company is an artificial legal person who comes into existence by a process called
―incorporation.‖ It is only when a company has been incorporated; it becomes a distinct entity
from those who invested their capital as well as labour in it. Usually, for the
Section 3 of the Companies Act, 2013, details the basic requirements of forming a company as follows:
 Formation of a public company involves 7 or more people who subscribe their names to
the memorandum and register the company for any lawful purpose.
 Similarly, 2 or more people can form a private company.
 One person can form a One-person company.
Registration or Incorporation of a Company

Section 7 of the Companies Act, 2013, details the procedure for incorporation of a company.
Here is the procedure:
Filing of company registration papers with the registrar
To incorporate a company, the subscriber has to file the following company registration papers
with the registrar within whose jurisdiction the location of the registered office of the proposed
company falls.
1. The Memorandum and Articles of the company. All subscribers have to sign on the
memorandum.
2. The person who is engaged in the formation of the company has to give a declaration
regarding compliance of all the requirements and rules of the Act. A person named in the
Articles also has to sign the declaration.
3. Each subscriber to the Memorandum and individuals named as first directors in the
Articles should submit an affidavit with the following details:
i. Declaration regarding non-conviction of any offence with respect to the
formation, promotion, or management of any company.
ii. He has not been found guilty of fraud or any breach of duty to any company in the
last five years.
iii. The documents filed with the registrar are complete and true to the best of his
knowledge.
4. Address for correspondence until the registered office is set-up.
5. If the subscriber to the Memorandum is an individual, then he needs to provide his full
name, residential address, and nationality along with a proof of identity. If the subscriber
is a body corporate, then prescribed documents need to be provided.
6. Individuals mentioned as subscribers to the Memorandum in the Articles need to provide
the details specified in the point above along with the Director Identification Number.
7. The individuals mentioned as first directors of the company in the Articles must provide
particulars of interests in other firms or bodies corporate along with their consent to act as
directors of the company as per the prescribed form and manner.
Issuing the Certificate of Incorporation
Once the Registrar receives the information and company registration papers, he registers all
information and documents and issues a Certificate of Incorporation in the prescribed form.
Corporate Identity Number (CIN)
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The Registrar also allocates a Corporate Identity Number (CIN) to the company which is a
distinct identity for the company. The allotment of CIN is on and from the company‘s
incorporation date. The certificate carries this date.
Memorandum of Association & Articles of Association
Memorandum of Association (MOA)

Memorandum of Association (MOA) is the main, compulsory document required for the
incorporation of the company. It must be registered with the ROC (Registrar of Companies) at
the time of incorporation. It lays down the objects, scope, powers and area of operation of the
company, all of which the company can‘t transgress. Thus, it lays down it‘s the limits of the
company.It must be drafted very carefully as the company can‘t go against it later. Moreover, it
can only be amended by a difficult procedure in the Annual General Meeting with the knowledge
of the Central Government. It can‘t be amended retrospectively.It guides all relations within and
outside the company by laying guidelines and rules for the same and all the subordinate
documents and agreements follow from it. Also known as the ‗charter of the company‘, it must
lay down the following six conditions:
Name Clause
– It is meant to register the official name of the company with the CG (Central Government)
which must be original and must not, in any way, resemble that of a pre-existing one.
Situation Clause
– It deals with highlighting the name of the state in which the company‘s registered office is
located.
Object Clause
– The main and auxiliary objects of the company are specified here.
Liability Clause
– It specifies the liabilities of each member of the company.
Capital Clause
– It lays down the total capital of the company.
Subscription or Associate Clause

– It lays down in detail all information about subscribers and their shares.
Articles of Association (AOA)

An article of Association (AOA) is a secondary document that is constituted only after the MOA.
It lays down the rules and regulations for the administration and management of the company.
The articles lay down the right, responsibilities, powers, duties, etc of the members along with
information regarding the accounts and audit of the company.
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It is mostly advisable for every company to have its own article but a company limited by shares
can adopt Table A for the same purpose. It is made to guide the working and governance inside
the company.
It follows the MOA and can‘t contradict it. It is easier to amend than MOA which can be done
without any restrictions. It can be amended retrospectively in the Annual General Meeting as per
the choice of the company.
Since both these documents sound similar, people often get confused between the two. You must
not make that mistake. Make sure you get legal help in order to understand the true dynamics of
both and to draft a copy for your company. In the meantime, here are some of the key differences
between the two you must keep in mind.
Differences between MOA and AOA
1. MOA is the supreme document without which the company can‘t function. All other
documents are subordinate to it and follow from it, including AOA.
2. MOA lays down the conditions for the registration of the company, whereas, AOA is a
document that contains the rules and regulations for the administration of the company.
3. MOA lays down the powers, objects and area of operation of the company, while AOA lays
down the rules for the management and administration of the same.
4. MOA defines the relationship between the company and the outside world, whereas AOA
defines relations within the company.
5. MOA is defined in Section 2 (28) while AOA is found under Section 2 (2) of the Indian
Companies Act 1956.
6. In case of any conflict between the two, MOA takes precedence.
7. Acts ultra vires the MOA are void, whereas acts beyond the AOA are simply irregular but
not void.
8. MOA has six compulsory clauses. AOA is framed arbitrarily as per the discretion of the
members of the company.
9. MOA is a compulsory document which must be registered with the ROC at the time of
incorporation of the company. On the other hand, AOA is not obligatory and in case of
limited shares, a company can use its Table A in its place.
10. MOA can only be amended prospectively and not retrospectively, that too in the Annual
General Meeting with the knowledge of the CG. Meanwhile, AOA can be amended
retrospectively in the Annual General Meeting as per the whims of the members.
Thus, these are the main differences between the two very important documents of a company
which every entrepreneur must be familiar with. DO consult an adept corporate lawyer for more
details and get legal help in drafting this very important document. ---------------------------
Concept of Prospectus under The Companies Act, 2013
The Companies Act, 2013 defines a prospectus under section 2(70). Prospectus can be defined as
―any document which is described or issued as a prospectus‖. This also includes any notice,
circular, advertisement or any other document acting as an invitation to offers from the public.
Such an invitation to offer should be for the purchase of any securities of a corporate body. Shelf
prospectus and red herring prospectus are also considered as a prospectus.
Essentials for a document to be called as a prospectus
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For any document to consider as a prospectus, it should satisfy two conditions.

1.The document should invite the subscription to public share or debentures, or it should invite
deposits.
2.Such an invitation should be made to the public.
3.The invitation should be made by the company or on the behalf company.
4.The invitation should relate to shares, debentures or such other instruments.
Types of the prospectus as follows.
 Red Herring Prospectus
 Shelf Prospectus
 Abridged prospectus
 Deemed Prospectus
Shelf Prospectus
Shelf prospectus can be defined as a prospectus that has been issued by any public financial
institution, company or bank for one or more issues of securities or class of securities as
mentioned in the prospectus. When a shelf prospectus is issued then the issuer does not need to
issue a separate prospectus for each offering he can offer or sell securities without issuing any
further prospectus.
The provisions related to shelf prospectus have been discussed under section 31 of the
Companies Act, 2013.
The regulations are to be provided by the Securities and Exchange Board of India for any class
or classes of companies that may file a shelf prospectus at the stage of the first offer of securities
to the registrar.
The prospectus shall prescribe the validity period of the prospectus and it should be not be
exceeding one year. This period commences from the opening date of the first offer of the
securities. For any second or further offer, no separate prospectus is required.
While filing for a shelf prospectus, a company is required to file an information memorandum
along with it.
Information Memorandum [Section 31(2)]
The company which is filing a shelf prospectus is required to file the information memorandum.
It should contain all the facts regarding the new charges created, what changes have undergone
in the financial position of the company since the first offer of the security or between the two
offers.
It should be filed with the registrar within three months before the issue of the second or
subsequent offer made under the shelf prospectus as given under Rule 4CCA of section
60A(3) under the Companies (Central Government’s) General Rules and Forms, 1956.
When any company or a person has received an application for the allotment of securities with
advance payment of subscription before any changes have been made, then he must be informed
about the changes. If he desires to withdraw the application within 15 days then the money must
be refunded to them.
After the information memorandum has been filed, if any offer or securities is made, the
memorandum along with the shelf prospectus is considered as a prospectus.
Red herring prospectus
Red herring prospectus is the prospectus which lacks the complete particulars about the quantum
of the price of the securities. A company may issue a red herring prospectus prior to the issue of
prospectus when it is proposing to make an offer of securities.
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This type of prospectus needs to be filed with the registrar at least three days prior to the opening
of the subscription list or the offer. The obligations carried by a red herring prospectus are same
as a prospectus. If there is any variation between a red herring prospectus and a prospectus then
it should be highlighted in the prospectus as variations.
When the offer of securities closes then the prospectus has to state the total capital raised either
raised by the way of debt or share capital. It also has to state the closing price of the securities.
Any other details which have not been included in the prospectus need to be registered with the
registrar and SEBI.
The applicant or subscriber has right under Section60B(7) to withdraw the application on any
intimation of variation within 7 days of such intimation and the withdrawal should be
communicated in writing.
Abridged Prospectus
The abridged prospectus is a summary of a prospectus filed before the registrar. It contains all
the features of a prospectus. An abridged prospectus contains all the information of the
prospectus in brief so that it should be convenient and quick for an investor to know all the
useful information in short.
Section33(1) of the Companies Act, 2013 also states that when any form for the purchase of
securities of a company is issued, it must be accompanied by an abridged prospectus.
It contains all the useful and materialistic information so that the investor can take a rational
decision and it also reduces the cost of public issue of the capital as it is a short form of a
prospectus.
Deemed Prospectus
A deemed prospectus has been stated under section 25(1) of the Companies Act, 2013.
When any company to offer securities for sale to the public, allots or agrees to allot securities,
the document will be considered as a deemed prospectus through which the offer is made to the
public for sale. The document is deemed to be a prospectus of a company for all purposes and all
the provision of content and liabilities of a prospectus will be applied upon it.
In the case of SEBI v. Kunnamkulam Paper Mills Ltd., it was held by the court that where a
rights issue is made to the existing members with a right to renounce in the favour of others, it
becomes a deemed prospectus if the number of such others exceeds fifty.
Process for filing and issuing a prospectus
Application forms
As stated under section 33, the application form for the securities is issued only when they are
accompanied by a memorandum with all the features of prospectus referred to as an abridged
prospectus.
The exceptions to this rule are:
 When an application form is issued as an invitation to a person to enter into underwriting
agreement regarding securities.
 Application issued for the securities not offered to the public.
Contents
For filing and issuing the prospectus of a public company, it must be signed and dated and
contain all the necessary information as stated under section 26 of the Companies Act,2013:
1. Name and registered address of the office, its secretary, auditor, legal advisor, bankers,
trustees, etc.
2. Date of the opening and closing of the issue.
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3. Statements of the Board of Directors about separate bank accounts where receipts of issues are
to be kept.
4. Statement of the Board of Directors about the details of utilization and non-utilisation of
receipts of previous issues.
5. Consent of the directors, auditors, bankers to the issue, expert opinions.
6. Authority for the issue and details of the resolution passed for it.
7. Procedure and time scheduled for the allotment and issue of securities.
8. The capital structure of the in the manner which may be prescribed.
9. The objective of a public offer.
10. The objective of the business and its location.
11. Particulars related to risk factors of the specific project, gestation period of the project,
any pending legal action and other important details related to the project.
12. Minimum subscription and what amount is payable on the premium.
13. Details of directors, their remuneration and extent of their interest in the company.
14. Reports for the purpose of financial information such as auditor‘s report, report of profit
and loss of the five financial years, business and transaction reports, statement of compliance
with the provisions of the Act and any other report. -----------------------------------------
Company Shares: Definition, Types and Classification

Share may be defined as an interest in the company entitling the owner thereof to receive
proportionate part of the profits, if any, and, at the‘ same time, proportionate part of the assets of
the company in case of liquidation.
It can also be expressed as certain invisible units of a fixed amount, i.e., the units are known as
‗shares‘. It is the interest of a shareholder in the company measured, by a sum of money for the
purpose of liability in the first place, and of interest in the second but also consisting of a series
of mutual covenants entered into-by all the shareholders.
Types of Shares:
1. Equity Shares:
The holders of such shares participate in divisible profits only after the claims are met of the
preference shareholders, i.e., they actually do not enjoy any preferential right either in respect of
dividend or in respect of repayment of capital. They are entitled to receive dividend
recommended by the directors and declared by the company in general meeting.
The characteristics of Equity Shares are:
(a) It does not have any maturity date.
(b) It does not saddle the company with a legal requirement about the payment of dividend.
(c) Equity share financing relieves the company from certain restrictions given by the preference
shareholders or the creditors.
(d) Payment of dividend to issue by shareholders is subject to dividend tax @ 10% as per Income
Tax Act, 1961.
(e) It enjoys the voting rights.
2. Preference Shares:
Sec. 85(1) notes that a preference share is one which satisfies the following:
a. They have a preferential right to be paid dividend during the lifetime of the company, and
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b. They have a preferential right to the return of capital if the company goes into liquidation.
Moreover, the preference shareholders are entitled to receive a fixed rate of dividend before the
dividend is received by the equity shareholders in the event of liquidation.
The characteristics of Preference Shares are:
(a) It consists of a part of share capital of a company.
(b) Since it is not considered as a debt, no collateral security/mortgage is required.
(c) As per. Sec. 87 of the Companies Act, it enjoys limited voting rights.
(d) It enjoys a fixed rate of dividend.
(e) Preference dividend is a charge against appropriation of profit.
(f) It enjoys a priority income distribution of income and, at the same time, on assets distribution.
(g) It enjoys the cumulative rights to receive dividends.
(h) It is redeemable after the period of 20 years from the date of issue.
(i) It may or may not be converted into equity shares.
(j) It can be transacted (i.e. purchased/sold) through Stock Exchange
Advantages of Preference Share Financing:

(i) Less Costly than Equity Shares:
The cost of capital of preference shares is found to be less than equity share as a source of
financing
(ii) No control and ownership in management:
Usually the preference shareholders do not enjoy any voting rights or enjoy little voting rights,
they cannot take part in, or create any problem to, the management.
(iii) Trading on Equity:
If the company can earn a rate of return which is more than the cost of capital of preference
shares, it increases the EPS by trading on equity.
(iv) Provides hedge against inflation:
Financing by preference shares may provide a hedge against inflation due to the fixed financial
commitment which is not affected by inflations,
(v) No legal compulsion to pay dividend:
A company does not face liquidation or any legal proceedings even if it fails to pay dividend. ----
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Position, Appointment & Powers of Directors under the Companies Act, 2013
A corporation is an artificial person which is intangible and invisible. For making any decision
and to have knowledge and intention, a living person has a mind and hands by which he carries
out his actions. But a corporate body being an artificial person has none of these. So it needs to
act through a living person. The company‘s business is entrusted in the hands of directors.
Position of Directors
The position held by the directors in any corporate enterprise is a tough subject to explain as held
in the case of Ram Chand & Sons Sugar Mills Pvt. Ltd.v. Kanhayalal Bhargava. The position
of a director has been cited by Bowen LJ in the case of Imperial Hydropathic Hotel
Co Blackpool v. Hampson as a versatile position in a corporate body. Directors are sometimes
described as trustees, sometimes as agents and sometimes as managing partners. These
expressions are from indicating point by which directors are viewed in particular circumstances.
Are directors servant of the company?
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The directors are the professional men of the company who are hired to direct the affairs of the
company. They are the officers of a company and not a servant. In the case of Moriarty v.
Regent’s Garage Co, it was held that a director is not a servant of the company, but a
controller of the affairs of a company.
Directors as agents
In the landmark case of Ferguson v. Wilson, it was clearly recognised that the directors are
the agents of a company in the eyes of law. The company being an artificial person can act only
through the directors. Regarding this, the relation between the directors and the company is
merely like the ordinary relation of principal and agent.
The relation between the directors and the company is similar to the general principle of
agency. When a director signs on behalf of the company, it is a company that is held liable and
not the director. Also, like agents, they have to declare any personal interest if they have in a
transaction of the company.
One of the important points to be noted is that they are not agents of its individual members.
They are the agents of the institution.
In the case of Indian Overseas Bank v. RM Marketing, it has been held that the directors of a
company could not be made liable merely because he is a director if he has not given any
personal guarantee for a loan taken by the company,
Directors as Trustees
In a strict sense, the directors are not the trustees, but they are always considered and treated as
trustees of money and properties which comes to their hand or which is under their control. As
observed by the Madras High Court in the case of Ramaswamy Iyer v. Brahamayya & Co.,
regarding their power of applying funds of the company and for the misuse of power, the
directors are liable as trustees and after their death, the cause of action survives against their
legal representative.
Another reason due to which the directors are described as trustees is because of their nature of
the office. Directors are appointed to manage the affairs of the company for the benefit of
shareholders. But, the director of a company is not exactly a trustee, as a trustee of will or
marriage settlement. He is a paid officer of a company.
As per the principles laid down in the case of Percival v. Wright, directors are not the trustees of
the shareholders. They are trustees of the company. The same principle was repeated again in the
case of Peskin v. Anderson that the directors are not trustees for shareholders and hold no
fiduciary duty to them.
Directors as organs of Corporate body.
In the case of Bath v. Standard Land Co. Ltd., Neville J. stated that the board of directors are
the brain of the company and a company does act only through them.
A corporation has no mind or body and its action needs to be done by a person and not merely as
an agent or trustee but by someone for whom the company is liable as his action is the action of
the company itself. If we consider a company as a human body, the directors are the mind and
the will of the company and they control the actions of the company
Appointment of Directors
The appointment of Directors of a company is strictly regulated by the Company‘s Act, 2013.
Company to have Board of Directors
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Every company is required to have a Board of directors and it should be consisting of individuals
as directors and not an artificial person. Section 149 lays down the minimum number of directors
required in a company as follows:
1. Public Company– At least 3 directors
2. Private company- At least 2 directors
3. One person company– Minimum 1 director
There can be a maximum of 15 directors. A company may appoint more than 15 directors after
passing a special resolution.
The Central Government may prescribe a class or classes of a company have a minimum one
women director. Every company is also required to have a minimum of one director who has
stayed in India in the previous year for a period of 182 days or more.
Independent Directors
The provisions of Independent Directors has been laid down under section 149(4) of the
Companies Act, 2013. This section lays down that at least one-third of the total number of
directors should be independent directors in every listed company The Central Government may
prescribe the minimum number of independent directors in public companies.
Who is an independent director?
Sub-section (6) of section 149, defines that an independent director stands for a director other
than a managing director, whole-time director or a nominee director:
1. Who is a person with integrity and has relevant expertise and experience.
2. Who has not been a promoter of the company, its subsidiary or holding company either in
past or present.
3. Who himself or his relative has no pecuniary relationship with the company, its holding
or subsidiary company, directors or promoters.
4. Who himself or his relative, do not hold the position in key managerial personnel, or not
an employee of the company.
The independent director has to declare his independence at the first meeting of the Board and
subsequently every year at the first meeting of the Board in the financial year.
An independent director holds office for a term of five years on the Board. He is also eligible for
being reappointed after passing a special resolution, but no independent director is to hold the
office for more than two consecutive terms.
Election of Independent Directors
The independent directors are to be selected from a data bank which contains certain information
such as name, address and qualifications of persons who are eligible and willing to act as an
independent director. The data bank is maintained by anybody, institute or association with
expertise in the creation and maintenance of data bank and notified by the Central Government.
A company has to pick up a person with due diligence, as stated in section 150.
The appointment has to be approved by the company in general meeting, and the manner and
procedure for selection of independent directors who fulfil the qualification stated under section
149 may be prescribed by the Central Government.
Appointment of directors through election by small shareholders
A listed company is required to have one director who should be elected by small shareholders as
per section 151 of the Companies Act, 2013. Small shareholders in this context are referred to
shareholders holding shares of the value of maximum Rs. 20,000.
First Directors
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The subscribers of the memorandum appoint the first directors of a company. They are generally
listed in the articles of the company. If the first director is not appointed, then all the individuals,
who are subscribers become directors. The first director holds the office only up to the date of
the first annual general meeting, and the subsequent director is appointed as per the provisions
laid down under section 152.
Appointment at the general meeting
Section 152 lays down the provision that directors should be appointed by the company in the
General Meetings. The person so appointed is assigned with a director identification number. He
also has to make sure in the meeting that he is not disqualified from becoming a director.
The individual appointed has also to file his consent to act as a director within 30 days with the
registrar.
Annual rotation
The retirement of the directors by annual rotation can be prescribed by the company in the
Articles. If not so, only one-third of the directors can be given a permanent appointment. The
tenure of the rest of them must be determined by rotation.
At an annual general meeting, one-third of such directors will go out, and the directors who were
appointed first and has been in the office for the longest period will retire in the first place. When
two or more directors have been in the office for an equal period of time, their retirement will be
determined by mutual agreement, or by a lot.
Reappointment [section 152]
The vacancies created should be filled up at the same general meeting. The general meeting may
also adjourn the reappointment for a week. When the meeting resembles and no fresh
appointment is made neither there is any resolution for the appointment, then the retiring
directors are considered to be reappointed.
The exception to this practice is that the retired directors will not be considered to be
reappointed when:
1. The appointment of that director was put to the vote but lost.
2. If the director who is retiring has addressed to the company and its board in writing that
he is unwilling to continue.
3. If he is disqualified.
4. When an ordinary or special resolution is required for his appointment.
5. When a motion for appointment of two or more directors by a single resolution is void
due to being passed without unanimous consent under section 162.
Fresh Appointment
When it is proposed that a new director should be appointed in the place of retiring director, then
the procedure laid down under section 160 of the Companies Act, 2013 is followed:
1. A written notice for his appointment as a director should be left at the office of the
company at least 14 days prior to the date of the meeting along with a deposit of
Rs.1,00,000.
2. That amount should be refunded to the person if he is elected as a director, or
3. He gets more than 25% of the total valid votes cast.
Appointment by nomination
The appointment of Directors can also be made with respect to the Company‘s articles and not
only through the general meetings. When an agreement between the shareholders has been
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included in the articles that entitles every shareholder with more than 10% share to be appointed
as a director, then they can be nominated as director.
Also, subject to the articles of the company, the Board can appoint any nominated person by an
institution in pursuance of law, as a director.
Appointment by voting on an individual basis
The appointment of a director is made by voting at the general meeting as laid down
under section 162 of the Companies Act, 2013. The candidates have to vote individually and the
wishes of the shareholders regarding each proposed director are required.
As held in the case of Raghunath Swarup Mathur v. Raghuraj Bahadur Mathur, when two or
more directors are appointed on the basis of single resolution and voting then it is considered to
be void in the eyes of law.
Appointment by proportional representation
As per section 163 of the Companies Act, 2013, the article of a company can enable the
appointment of directors through the system of voting by proportional representation. This
system of voting is used to make effective minority votes. This system of proportional
representation can be followed by a single transferable vote or by the system of cumulative
voting or other means.
Appointment of Directors by Board
Generally, the appointment of the directors is done in the annual general meeting of the
shareholders but there are two instances when the Board can also appoint a new director:
1. If the article empowers the Board to appoint additional directors along with prescribing
the maximum number.
2. Section 161 of the Act also authorises the directors to fill casual vacancies.
Appointment by Tribunal
Under section 242(j) of the Companies act 2013, the Company Law Tribunal has the power to
appoint directors.
Disqualifications
The minimum eligibility requirement for the appointment of directors has been laid down
under section 164 of the Companies Act, 2013. The disqualification for a person to be appointed
as a director are:
1. Unsoundness of mind.
2. If he is an undischarged insolvent.
3. When is applied to be declared as insolvent and such application is pending.
4. When he is sentenced for imprisonment for an offence involving moral turpitude for a
period of a minimum of 6 months.
5. If the Tribunal or court has passed an order disqualifying him for being appointed as a
director.
6. If he has not paid his calls in respect to any shares of the company.
7. When he is convicted of an offence which deals with related party transaction.
8. When he has not complied with the requirements of Director Identification Number.------
Meetings under Company Law

Annual General Meeting
An Annual general meeting refers to the meeting which is held annually by the companies. It is
important for every type of company whether it is a private company or a public company,
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limited by shares or guarantee to conduct an annual general meeting once in a year. There
shouldn‘t be a gap of more than 15 months between two annual general meetings. An exception
is given when a company is incorporated, in such a case the company may not conduct an annual
general meeting in the year at all. After incorporation, the company needs to conduct an annual
general meeting within 18 months.
Extraordinary General Meeting
The matter which constitutes to be the ordinary business of the company is discussed in a
statutory meeting and annual general meeting. To discuss the matters apart from ordinary
business i.e. special business extraordinary general meeting is called for. Any meeting which is
called apart from statutory meeting and annual general is called an extraordinary meeting.
Extraordinary general meeting is usually called for discussing matters which are urgent and can‘t
wait to be discussed in the annual general meeting. The extraordinary general meeting can be
called by the directors of the company as well as by the shareholders who hold at least one-tenth
of the paid-up share capital of the company. Shareholders can make a requisition to the board of
directors of the company to call a meeting. If the meeting is not arranged for even after
requisition by Shareholders then the Shareholders may convene the meeting.
Procedure of Meetings
It is the responsibility of the director of the company to ensure that the procedure followed for
conducting the meetings of the company is valid and in accordance with the Companies Act. The
decisions that are taken in the meeting should be according to the sections of the Companies Act.
It is the duty of the director to ensure that the members of the meeting are notified of the details
of the meeting like the place, time and date of the meeting, type of the meeting, the business that
will be considered at the meeting and the notice should also include motions and resolutions that
will be put forward to the members during the meeting.
Notice
A notice of a meeting is served to all the members of the meeting to discuss the business at the
meeting. A notice is to be served to the members of the meeting in a manner which is prescribed
under the Companies Act. Notice for the general meetings must also be served to directors,
auditors, and to any such member who is entitled to a share in case a member of the meeting
dies. In case, a company accidentally fails to serve a notice to a person who is entitled to receive
it, the meeting would not be considered invalid. All the members of the meeting are entitled to
vote in the matters raised in the meeting
Contents of notice
The notice must contain the following contents:
 Place where the meeting will be conducted

 Date, day and time on which the meeting will be conducted
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 The business which will be discussed in the meeting

 Brief of business
 The date on which notice is served
 Signature of the convener of the meeting ------------------------------------
Winding up of a Company
Winding up of a company is defined as a process by which the life of a company is brought to an

end and its property administered for the benefit of its members and creditors. In words of
Professor Gower, ―Winding up of a company is the process whereby its life is ended and its
Property is administered for the benefit of its members & creditors. An Administrator, called a
liquidator is appointed and he takes control of the company, collects its assets, pays its debts and
finally distributes any surplus among the members in accordance with their rights.‖
Voluntary Winding-Up
1. By Ordinary Resolution: A company may wound up voluntarily if the given period or

duration of the company has expired. Such period should be mentioned in the articles of the
company or if there is any mentioning in the articles, that company shall dissolve on the
occurrence of a particular event and if such event occurs then the company, by passing an
ordinary resolution can start the process of winding-up.
2. By Special Resolution: A company may wound up voluntarily after getting 75% majority
from its shareholders and board of directors. The process will only start when the special
resolution has been passed. After the resolution has passed the same has to be published in the
Official Gazette and in leading newspapers of that district/city within 14 days.
Compulsory Ground (By court i.e. NCLT)
1. Inability to pay debts (this has been shifted to Insolvency & Bankruptcy code 2016)
1.Failure to pay demand: If a company is holding loan of more than 1lakh and creditor sends
notice to pay the amount then in such a case, a formal notice has to be given by the creditor. If
within 21 days of such notice, the company is not able to pay or doesn‘t reply or doesn‘t
deposit the security, neither is it trying to restructure the debt then it is known as failure to pay
demand.
2.Decreed Debt: Failure to do the execution of the court‘s demand. It means the court has given
the order to pay and there is a failure of obeying of the court‘s order, can also be known as
contempt of court/violation of court‘s order/ failure of satisfaction of the decree/ company is
not able to satisfy the decree of the court.
3.Commercial Insolvency: Auditors feel that there is increase in liability and, assets are not
increasing. Therefore, they feel that the company is becoming detrimental to the interest of the
public. The financial structure is such that liability is increasing and assets are not increasing.
There is a likelihood of the happening of the event of insolvency. At this point the company is
not insolvent but before such event happen company thinks to declare insolvency so that they
can pay the shareholder, creditors/ pay their taxes & etc.
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2. Special Resolution Resolved: 75% of majority shareholders pass the resolution for winding up
of the company but execution takes place by NCLT/discretion of NCLT to govern the winding
up.
3. When the company acts against the interest of sovereignty of India & integrity of India,
friendly relation with the foreign state, decency, morality, public, security of the state.
4. Affairs of the company are conducted in a fraudulent manner.
1. Formed for unlawful purposes.

2. Management guilty of fraud.
5. Company has failed to file the return with the registrar of the company for 5 consecutive
years.
6. When NCLT thinks it‘s just and equitable to wind up the company.
Company Liquidator
When a company goes into insolvency or declares insolvency a company liquidator is appointed
by the NCLT. He is appointed so that he can understand the current position of the company and
take measures to complete the ongoing projects. He also looks into the finances of the company
so that all the creditors, shareholders, debenture holders & etc can be paid.
Powers & Duties of Company Liquidator
 The company liquidator has the power & duty to carry on the business. He has to
complete/effort to complete the subsisting contract.
 To do all acts and execute all documents, deeds, receipts & other documents.
 Deal with the movable/ immovable property.
 Sell the whole undertaking as a going concern. (After the order of winding up is given the
boards of directors have no role. All the powers are given to liquidator and if after notice of
winding up somebody wants to buy the company, the liquidator is in the position/power to sell
it without taking further permission.)
 Prosecution
 Invite and settle the claims of different creditors.
 Inspect the records/ financial statements of the company.
 Negotiable Instrument: cheque, promissory note, bill of exchange. All such negotiable
instrument has to be signed by the liquidator (earlier board of director used to do it with the
seal of the company) i.e. draw, accept endorse the negotiable instrument.
 Professional assistance: He can call for the help of an expert if he finds difficulties i.e
Lawyers, CA & etc.
 He can take actions related to signature, execution and verification of any documents,
application, bond, petition which are necessary for winding up. He can also take actions
related to the distribution of assets and all such actions are done under the control of NCLT.
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The extent of control of NCLT is different for company liquidator & provisional liquidator.
There are some actions for which company liquidator doesn‘t require the permission of NCLT
(except for selling of undertaking) but provisional liquidator can‘t exercise any power & duty
without the permission of NCLT.
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CONSTITUTION OF INDIA, LAW AND ENGINEERING (PRADIP SIR)

Module 1--Introduction and Basic Information about Indian Constitution

The Making of Written Constitutions

Constitution of India: Historical Background

The Government of India Act, 1919

The Government of India Act, 1935

The Indian Independence Act of 1947

Features of the Indian Constitution

2. Drawn from Different Sources

3. Federal System and Unitary Features

5. Parliamentary Sovereignty and Judicial Supremacy

6. Independent and Integrated Judicial System

8. Rigid and Flexible

Introducing the Indian Constitution – Preamble

The Preamble and its Initial Articles

It secures to its entire citizen with the following:

What are the Fundamental Rights?

Why are they called Fundamental Rights?

List of Fundamental Rights

1. Right to Equality (Articles 14 – 18)

2. Right to Freedom (Articles 19 – 22)

 Freedom to practise any profession

3. Right against Exploitation (Articles 23 – 24)

4. Right to Freedom of Religion (Articles 25 – 28)

5. Cultural and Educational Rights (Articles 29 – 30)

6. Right to Constitutional Remedies (32 – 35)

 Fundamental rights can be amended by the Parliament by a constitutional amendment but

What are the Directive Principles of State Policy?

Directive Principles of State Policy – Classification

Criticism of Directive Principles of State Policy

Golaknath Case (1967)

Kesavananda Bharti Case (1973)

Minerva Mills Case (1980)

Amendments of the Indian Constitution – What is Article 368?

Types of Amendments in Indian Constitution

1. By Simple Majority of Parliament

 Citizenship-acquisition and termination.

2. By Special Majority of Parliament

3. By Special Majority of Parliament and Consent of States

Effects of Financial Emergency

Module 2-Union Executive and State Executive:

Composition of the Rajya Sabha:

Qualifications for the membership of Rajya Sabha:

Powers and Functions of the Rajya Sabha:

What is Lok Sabha and who are Lok Sabha members?

Composition of Lok Sabha:

Composition of Lok Sabha

Maximum Strength – 552 530 represent the States

20 are the representatives of Union Territories

2 are nominated by the President from Anglo-Indian

Current Strength – 545 530 represent States

13 represent Union Territories

2 are nominated from the President from Anglo-Indian

Lok Sabha Elections

Representation of States in Lok Sabha:

 Eligibility to Vote: Any Indian Citizen of/above 18 years of age

Representation of Union Territories in Lok Sabha:

Representation of Nominated Members in Lok Sabha:

Who is Lok Sabha Speaker?

Powers and Functions of the President