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 TABLE OF CONTENTS
1. Introduction 1 25. Council of Ministers 197
2. Salient features of our Constitution 11 26. State Legistature 201
3. The Nature of Indian Constitution 14 27. Supreme Court 213
4. Preamble 19 28. High Court 220
5. The Union & Its Territory 24 29. Subordinate Courts 225
6. Citizenship 30 30. Tribunals 237
7. Fundamental Rights 38 31. Public Interest Litigation (PIL) 244
8. Directive Principles of State Policy 68 32. Judicial Review 248
9. Fundamental Duties 82 33. Local Government 256
10. Amendment to the Constitution of India 85 34. Union Territories 276
11. Basic Structure 91 35. Scheduled and Tribal Areas 280
12. Parliamentary System 94 36. Jammu and Kashmir 282
13. Centre-State Relations 99 37. Special Provisions for some States 286
14. Inter-State Relations 116 38. Constitutional & Non-Constitutional
15. Emergency Provisions 121 Bodies 290
16. President 127 39. Co-Operative Societies 355
17. Vice President 139 40. Official Language 359
18. Prime Minister 143 41. Public Service 364
19. Council of Ministers (Union) 146 42. Political Parties 368
20. Parliament 152 43. Elections - Election Laws & Electoral
21. Parliamentary Committee 178 Reforms 373
22. Parliamentary Forums 185 44. Coalition Government 384
23. Governor 188 45. Anti-Defection Law 386
24. Chief Minister 195 46. Pressure Groups 390

I
 1 Introduction

State a common language, territory, ethnicity etc.

State is “a community of persons permanently occupying Difference between Nation and Country
a definite portion of territory, independent of external Parameters of
Nation Country
control, and possessing an organized government” Comparison
On the basis of this definition, we can say that there Etymology It means a ‘nacion’ It means a “contree”
are four elements of the State, which are given as below: – an old French – an old French
word meaning word meaning “a
Elements of the State- “place of origin”. remote area”.
A State stands identified with its four essential elements: Identity It is commonly It is commonly
recognized as a recognized as a
1. Population or community of person: Population cluster of individuals ‘state’ governed
is the first and most essential element for the who share the same by an authority.
existence of any state. Whether the state is ancient cultures and traditions.

or modern its physical existence depends on the State Not every nation In the concept of
has a state. Nation-State, every
groups of people. state has one nation.
2. Territory: Territory is next major element for the Example The Kurds The Russian Federation
existence of state. Population within undefined Alternative It can alternatively In an unsubstantial
be used in reference way, it can alternatively
or unspecified area cannot be called a state. For
to sovereign state be used in reference
instance, until twentieth century no one was ready and country. to any particular
to recognize the physical existence of Jews because region or area with no
governmental status.
they did not have any defined geographical area but
now their geographical area is specified or defined
therefore, they are recognized as a nation with Constitution
physical existence. Constitution means a document having a special legal
sanctity, which sets out the framework and principal
3. Government: The government is the most important
functions of the Government.
instrument of the State through which the latter
realizes its objectives. Through its three organs i.e.; Need and importance of the Constitution
the Legislature, the Executive and the Judiciary, it
r To establish Rule of Law.
makes laws and rules, implements them, maintains
peace and order in the Individual and the State r To provide a set of basic rules that allow for minimal
country and resolves clashes of interests. It also coordination amongst members of society.
tries to ensure territorial integrity or unity of the r To specify who has the power to make decisions
country. in a society. It decides how the government will be
4. Sovereignty: Sovereignty is one of the foremost constituted.
elements of any independent State. It means
r To set some limits on what a government can
absolute Independence, i.e., a government which
impose on its citizens. These limits are fundamental
is not controlled by any other power: internal or
in the sense that government may never trespass on
External. A country cannot have its own constitution
them.
without being sovereign like India.
Nation r To enable the government to fulfil the aspirations of
A nation is a community of people formed on the basis of a society and create conditions for a just society.

1
 Types of the constitution can be divided into two categories:
Unwritten Constitution Written Constitution m The Company Rule (1773–1858) is a set of rules
Unwritten constitution Written Constitution refers to the that governs how businesses were run during
refers to the constitution constitution codified and compiled the East India Company Rule.
not codified in a structured in a structured and cohesive manner
manner m The Crown Rule (1858–1947) was a period of
British rule that lasted from 1858 until 1947.
Unwritten Constitution Written constitutions have been r Colonial authorities adopted and devised
evolves over a long period properly framed and compiled in
with a new set of laws and a step-by-step manner with any techniques for dealing with Indian concerns, and
guidelines being added as subsequent changes being added India's constitution bears some of the British
time progresses almost instantaneously administration system's legacy.

Rigid, Flexible or Both Majorly Flexible, however, there can Historical Evolution of the Indian Constitution
be instances where even the written
Constitution is rigid There are various layers in the background of the Indian
Constitution:
The Parliament is supreme The Constitution is supreme
in a country where there is
r Regulating Act 1773
an unwritten constitution r Act of Settlement 1781
The judiciary has limited The Judiciary has more power r Pitt’s India Act 1784
powers in order to ensure constitutional r Charter Act of 1813
supremacy
r Charter Act of 1833
The Magna Carta can be The Constitution of the United
considered the earliest States of America is considered r Charter Act of 1853
form of the unwritten as the oldest written constitution, r Government of India Act 1858
constitution. It was a which is still in force. It was drafted
charter of rights signed on September 17th, 1787, ratified r Indian Councils Act 1861
by King John of England on June 21st, 1788 and, came into r India Councils Act 1892
on 15th June 1215. The effect on March 4th, 1789. James
charter promised to protect Madison, one of the founding fathers r Morley-Minto Reforms 1909
the rights of the nobility of the United States wrote the r Montague-Chelmsford Reforms 1919
from the interference of document that formed the model for
the crown. The Magna the Constitution
r Government of India Act 1935
Carter would eventually r Indian Independence Act 1947
evolve into the unwritten
Regulating Act, 1773-
constitution of the United
Kingdom r First time the British Parliament resorted to
Example – Britain Example – India, USA etc. regulating the affairs of the East India Company.
Are Constitutions Static in Nature? r The Governor of Bengal was made the Governor-
No, Change is the rule of nature and Constitutions also General of Bengal.
develop through amendments. The Constitution is the r An Executive Council of the Governor-General was
basic document of any nation. There is a need to bring created with 4 members.
in timely changes in it because of the social, political, r Centralised the administration with the Presidencies
economic, cultural and technological changes that take of Madras and Bombay being made subordinate to
place with the passage of time. The architects of the the Bengal Presidency.
Constitution have made provisions to make amendments
r Supreme Court was established at Calcutta as the
in the Constitution.
Apex Court in 1774.
r Prohibited company officials from engaging in
Indian Constitution private trade and from accepting gifts from Indians.
Historical Background – Act of Settlement 1781-
r Many regulations and legislation passed before r It exempted the Governor-General and the Council
India's independence can be traced back to the from the jurisdiction of the Supreme Court for the
Constitution. The Indian Constitution's evolution acts done by them in their official capacity. Similarly,

2
 it also exempted the servants of the company from r It deprived the Governor of Bombay and Madras of
the jurisdiction of the Supreme Court for their their legislative powers. The Governor-General of
official actions. India was given exclusive legislative powers for the
r It excluded the revenue matters and the matters entire British India.
arising in the collection of revenue from the r This act ended the commercial activities of
jurisdiction of the Supreme Court. the company and it was transformed into an
r It provided that the Supreme Court was to have administrative body.
jurisdiction over all the inhabitants of Calcutta. It Charter Act 1853
also required the court to administer the personal r The legislative and executive powers of the
law of the defendants i.e., Hindus were to be tried Governor-General’s Council were separated.
according to the Hindu law and Muslims were to be
r A Central Legislative Council was created of 6
tried according to the Mohammedan law.
members out of which 4 were appointed by the
r It laid down that the appeals from the Provincial provisional governments of Madras, Bombay, Agra
Courts could be taken to the Governor-General-in- and Bengal.
Council and not to the Supreme Court.
r The Indian civil service was opened as a means to
r It empowered the Governor-General-in-Council
recruit officers for administration through open
to frame regulations for the Provincial Courts and
competition.
Councils.
r It extended the Company’s rule and allowed it to
Pitt’s India Act 1784
retain the possession of Indian territories on trust
r Commercial and political functions of the company
separated. The Court of Directors managed the for the British Crown. But it did not specify any
commercial activities while the Board of Control particular period, unlike the previous Charters. This
managed political affairs. was a clear indication that the Company’s rule could
be terminated at any time by the British Parliament.
r The company territories in India were called ‘British
possession in India’. Government of India Act 1858
r After the revolt of 1857, the rule of the company
r Governor’s Councils were set up in Madras and
was ended and the British possessions in India
Bombay as well.
came directly under the British Crown.
Charter Act 1813
r The office of the Secretary of State for India was
r It abolished the trade monopoly of the company
created. He was assisted by a 15-member Council of
in India i.e., the Indian trade was thrown open to
India.
all British merchants. However, it continued the
monopoly of the company over trade in tea and r It changed the designation of the Governor-General
trade with China. of India to that of Viceroy of India. Viceroy was the
r It asserted the sovereignty of the British Crown direct representative of the British Crown in India.
over the Company’s territories in India. Lord Canning, thus, became the first Viceroy of
India.
r It allowed the Christian missionaries to come to
India for the purpose of enlightening the people. r It ended the system of dual Government by
abolishing the Board of Control and Court of
r It provided for the spread of western education
Directors.
among the inhabitants of the British territories in
India. Indian Council Act 1861
Charter Act 1833 r Indians were given representation in the Viceroy’s
r It made the Governor-General of Bengal as the Councils. Three Indians entered the Legislative
Governor- General of India and vested in him all civil Council.
and military powers. Thus, Lord William Bentick r Provisions were made for the entry of Indians in
(the then Governor-General of Bengal) became the the Viceroy’s Executive council also as non-official
first Governor-General of India. members.

3
r Portfolio system was recognised. The local bodies were to elect an electoral college,
r Decentralisation initiated with the presidencies of which in turn would elect members of provincial
Madras and Bombay being restored their legislative legislatures, who in turn would elect members of
powers. the central legislature.
Indian Council Act 1892 r It enlarged the deliberative functions of the
r It raised the number of (non-official) members legislative councils at both the levels. For example,
in the Central and Provincial Legislative Councils members were allowed to ask supplementary
while keeping the official majority. questions, move resolutions on the budget, and so
m Bombay – 8 on.
m Madras – 20 r It provided (for the first time) for the association of
m Bengal – 20 Indians with the executive Councils of the Viceroy
and Governors. Satyendra Prasad Sinha became the
m North-Western province -15
first Indian to join the Viceroy’s Executive Council.
m Oudh – 15
He was appointed as the law member. Two Indians
m Central Legislative Council minimum - 10, were nominated to the Council of the Secretary of
maximum 16 State for Indian Affairs.
r Members could now debate the budget without r It introduced a system of communal representation
having the ability to vote on it. They were also for Muslims by accepting the concept of ‘separate
barred from asking follow-up questions. electorate’. Under this, the Muslim members were
r The Governor-General in Council was given the to be elected only by Muslim voters. Thus, the Act
authority to set rules for member nomination, ‘legalised communalism’ and Lord Minto came to be
subject to the approval of the Secretary of State for known as the Father of Communal Electorate.
India.
r It also provided for the separate representation of
r To elect members of the councils, an indirect election presidency corporations, chambers of commerce,
system was implemented. Members of provincial universities and zamindars.
councils could be recommended by universities,
Government of India Act 1919 (Montague-Chelmsford
district boards, municipalities, zamindars, and
Reforms)
chambers of commerce.
Dyarchy
r Provincial legislative councils were given more r Introduction of dyarchy at the provincial level.
powers, including the ability to propose new laws Dyarchy means a dual set of governments where
or repeal old ones with the Governor General's one set of government was accountable while the
assent. other was not.
r In the event of the Central legislature, the Governor r Control over provinces was relaxed by demarcating
was given the authority to fill the seat, while in the subjects as ‘central subjects’ and ‘provincial subjects
case of the provincial legislature, the Governor was Division of Subjects
given the authority. r The provincial government's subjects were
Indian Council Act 1909 (Morley-Minto Reforms) separated into two divisions.
r It considerably increased the size of the legislative r The reserved subjects were under the supervision
councils, both Central and provincial. The number of the province's British governor, while the
of members in the Central Legislative Council was transferred subjects were assigned to the province's
raised from 16 to 60. The number of members in Indian ministers.
the provincial legislative councils was not uniform. r Local self-government, public works, sanitation,
r It retained official majority in the Central Legislative industrial research, and the establishment of new
Council but allowed the provincial legislative companies were all on the Transferred List.
councils to have non-official majority. r Justice Administration, Press, Revenue, Forests,
r The elected members were to be indirectly elected. Labour Dispute Settlements, Water, Agricultural

4
 Loans, Police, and Prisons were among the items on in terms of three lists- Federal list, provincial list
the Reserved List. and the concurrent list. Residuary powers were
r The Secretary of State and the Governor-General given to the Viceroy. However, this federation never
had the authority to intervene in things covered fructified since princely states did not join it.
by the reserved list, but only to a limited extent in r It abolished dyarchy in the provinces and introduced
matters covered by the transferred list. ‘provincial autonomy’ in its place
Legislative Changes r The act introduced responsible government in
r Legislature had no power to pass any bill without provinces, that is, the governor was required to
the assent of the Viceroy while on the contrary act with the advice of ministers responsible to the
Viceroy could enact a bill without the legislature
provincial legislature
assent
r It provided for the adoption of dyarchy at the centre.
r Bicameralism was introduced in the Central
However, this provision did not come into effect at
Legislature by this act. The lower house was the
all
Legislative Assembly, with 145 members serving
three-year terms and the upper house was the r Bicameralism was introduced in six provinces-
Council of States with 60 members serving five- Bengal, Bombay Madras, Bihar, Assam and the
year terms. United Provinces
r The legislators, under the new reforms, could now r Separate electorates were further extended to
ask questions, pass adjournment motions and vote depressed classes, women and labour
a part of the budget, but 75% of the budget was still r Council of India which was established as per the
not votable. 1858 act was abolished the Secretary of state was
r Composition of Lower House: The Lower House instead provided with a team of advisors.
would consist of 145 members, who were either r The act provided for setting up- Federal Public
nominated or indirectly elected from the provinces. Service Commission, Provincial Public Service
It had a tenure of 3 years. Commission, Joint Public Service Commission,
Electoral provision Federal Court, Reserve Bank of India.
r The communal representation was extended to Indian Independence Act 1947
include Sikhs, Europeans and Anglo-Indians. The r The British authorities left India on Fifteenth
franchise (Right of voting) was also granted but August, 1947.
only to a limited number of people. r India will be divided into two sovereign provinces
r There was a provision to provide reservation to of India and Pakistan and each of those states turns
the non-Brahmins in Madras and the depressed sovereign on this very day.
classes were also offered nominated seats in the r The powers formerly exercised through the British
legislatures. authorities in India could be transferred to each of
Other Provisions those states.
r The Act provided for the establishment of a Public r Punjab and Bengal will be divided and its boundary
Service Commission in India. will be separated by a boundary commission headed
r The number of Indians in the Executive Council was by Mr. Radcliffe.
three out of eight. r The Office of the Secretary of State for India will be
r It established an office of the High Commissioner abrogated.
for India in London. r Provision was made for the Governor-General for
Government of India Act 1935 every territory, who was to be named by the Queen
r It provided for the establishment of an All-India of England on the exhortation of the Dominion
federation consisting of provinces and princely government. He was not to act in his individual
states as units. judgment or circumspection however will act just
r It divided the powers between the centre and units as the constitutional head of the state.

5
r Each domain must have a sovereign legislature to Indian people, it comprised of representatives of all
set the rules. No legislation passed by the British sections of the society namely the Hindus, Muslims,
Parliament will automatically apply to India. Sikhs, Parsi, Anglo-Indian, Indian Christians, SCs/ STS,
r Both countries will have their own Constituent Backward Classes, and women belonging to all of these
Assembly, which will also act as a legislative body. sections.
r Until a constitution is formulated by a Constituent The structure of the Constituent Assembly was:
Assembly in any dominion, it will work as closely as r 292 members elected through the Provincial
possible with the 1935 Act. Legislative Assemblies;
r Provincial governors will act as constitutional heads r The Indian Princely States was represented by 93
of the provinces. members; and
r Reserving the posts of Secretary of State should be r The Chief Commissioners’ Provinces were
discontinued. Government personnel wishing to represented by 4 members.
resign after the transfer of power to both dominions Thus, the total membership of the Constituent
must do so. Assembly was to be 389. But the Mountbatten Plan
of 3rd June 1947 led to the partition of India thereby
r British domination of the states and tribal territories
of India will end on August 15, 1947. In this case, leading to a formation of a separate Constituent
power will be transferred not to dominions but Assembly for the newly made Pakistan. This ceased
left to the states to decide whether they want to some of the representatives of certain Provinces to be
participate in India or Pakistan. members of the Assembly, resulting in a reduction of the
membership to 299 members.
r From now on, the relationship of the UK government
with India will be managed through the Office of The total strength of the new Constituent Assembly
Commonwealth Affairs. was fixed at 299 which was inclusive of the strength of
the
r The King of England renounced the title of King and
r Indian provinces (229), and
Emperor of India.
r Princely States (70)
r Pakistani territories include East Bengal, West
The Assembly became a fully functioning sovereign
Pakistan, Sindh and British Baluchistan. In the
body, and by the means of the Act of 1947, any law
event that the NWFP decides to join Pakistan in a
made under the umbrella of the British Parliament with
referendum, this territory will also join Pakistan.
regards to India could be scrapped, altered, or modified.
Constituent Assembly The Assembly was majorly vested with two functions;
It was the Cabinet Mission that had put forth the
r Make a constitution for the free nation; and
idea of a Constituent Assembly and, therefore the
r Enacting laws for the country and its people to be
composition of the Assembly was made in line with the
Cabinet Mission scheme. governed by.
The Assembly functioned in many other ways beyond
This came up with certain traits from which it could
enacting laws and framing the Indian Constitution such
be inferred that the Constituent Assembly was supposed
as;
to be a body partly elected, and partly nominated
r Adoption of the national flag, national song, and
members. The elections to the Assembly that took place
in 1946 resulted in the Indian National Congress winning national anthem on 22nd July 1947, and 24th
a total of 208 seats, and the Muslim League securing 73 January 1950 respectively.
seats leaving behind 15 seats that were occupied by r In May 1949, the Assembly had ratified India’s
independents. The decision of the Princely States to not membership of the Commonwealth.
be involved in the Constituent Assembly left 93 seats r The Assembly on 24th January 1950, elected Dr.
vacated. Rajendra Prasad as its first President.
It is noteworthy that although members of the Committees of the Constituent Assembly
Constituent Assembly were not elected directly by the To avoid any kind of mismanagement, and taking into

6
account the load of work to be dusted off, the Constituent r Syed Mohammad Saadullah;
Assembly had formulated different committees working r N Madhava Rau (He replaced B L Mitter who
in specific areas of constitution-making. There were resigned due to ill-health);
eight major committees namely; r N Gopalaswamy Ayyangar;
r The Union Powers Committee presided over Pandit r Alladi Krishnaswamy Ayyar;
Jawaharlal Nehru. r T T Krishnamachari (He replaced D P Khaitan who
r The Union Constitution Committee presided over died in 1948).
Pandit Jawaharlal Nehru. B.N. Rau was also appointed as the constitutional
r The Provincial Constitution Committee presided adviser to the constitution. The Committee took a
over Sardar Patel. period of not beyond six months to prepare its first draft
r Drafting Committee presided by Dr. B.R. Ambedkar. which was subjected to changes by suggestions, public
r Advisory Committee on Fundamental Rights, comments, and various criticism thereafter the second
Minorities and Tribal and Excluded Areas presided draft was released in October 1948.
by Sardar Patel. This committee had the following The supreme law of democratic India was drafted
five sub-committees: by the Assembly from 1946 to 1950 and was finally
r Fundamental Rights Sub-Committee with J.B. adopted on 26th November 1949 with effect from 26th
Kripalani as the Chairman. January 1950 which has been celebrated as the Republic
r Minorities Sub-Committee with H.C. Mukherjee as Day of India.
the Chairman. The Constituent Assembly had precisely taken two
r North-East Frontier Tribal Areas and Assam years, eleven months, and seventeen days to complete
Excluded & Partially Excluded Areas Sub-Committee the historic duty of drafting the Indian Constitution.
with Gopinath Bardoloi as the Chairman. During this period, the Assembly held eleven sessions
r Excluded and Partially Excluded Areas (Other than spread over 165 days, among which 114 days were
those in Assam) Sub-Committee with A.V. Thakkar spent solely on consideration of the Draft Constitution.
as the Chairman. Timeline of Formation of ‘The Constitution of India’
r North-West Frontier Tribal Areas Sub-Committee. r 9 December 1946: Formation of the Constituent
r Rules of Procedure Committee presided over by Dr. Assembly (demanding a separate state, the Muslim
Rajendra Prasad. League boycotted the meeting.)
r States Committee (Committee for Negotiating with r 11 December 1946: President Appointed –
States) presided over Pandit Jawaharlal Nehru. Rajendra Prasad, vice-chairman H.C. Mukherjee
r The Steering Committee was presided over by Dr. and constitutional legal adviser B.N. Rau (initially
Rajendra Prasad. 389 members in total, which declined to 299 after
The remaining 13 committees were considered partition of India). Out of 389, 292 were from
minor committees. government provinces, 4 from chief commissioner
The Drafting Committee of the Constituent Assembly provinces and 93 from princely states)
Among all the committees mentioned above, a special r 13 December 1946: An 'Objective Resolution' was
mention of the Drafting Committee headed by Dr. B.R. presented by Jawaharlal Nehru laying down the
Ambedkar is required. Set up on 29th August 1947, underlying principles of the constitution, which
the Drafting Committee was vested with the main task later became the Preamble of the constitution.
of drafting the Constitution of India after taking into r 22 January 1947: Objective resolution unanimously
account proposals from different committees. He was adopted.
the first person to introduce a new draft of the Indian r 22 July 1947: National Flag adopted.
Constitution. This Committee comprised of seven r 15 August 1947: Achieved independence. India split
members of the Assembly namely; into Dominion of India and Dominion of Pakistan.
r Dr. B. R Ambedkar as the Chairman of the Committee;
r 29 August 1947: Drafting Committee appointed,
r Dr. K M Munshi; with B. R. Ambedkar as the Chairman.

7
r 16 July 1948: Along with H.C. Mukherjee, V. T. r 26 January 1950: The 'Constitution of India' came
Krishnamachari was elected as the second vice- in to force after 2 years, 11 months and 18 Days, at
president of the Constituent Assembly. a total expenditure of ₹6.4 million to finish.
r 26 November 1949: 'Constitution of India' passed r Ganesh Vasudev Mavalankar was the first speaker
and adopted by the assembly. when meeting the assembly of Lok Sabha, after
r 24 January 1950: Last meeting of the Constituent turning republic.
Assembly. 'Constitution of India' (with 395 articles, 8 Indian Constitution
schedules, 22 parts) was signed and accepted by all. Indian constitution consists of a Preamble, 470 articles

which are group into 25 parts with 12 Schedules.

List of Articles
Parts Subject matter Sub Parts Articles
I The Union and its Territory 1 to 4
II Citizenship 5 to 11
III Fundamental Rights 12 to 35
IV Directive Principles of State Policy 36 to 51
IV ‘A’ Fundamental Duties 51A
The Union 52 to 151
Chapter-1 The Executive 52 to 78
Chapter-II Parliament 79 to 122

V Chapter- III Legislative Powers of President 123

Chapter-IV The Union Judiciary 124 to 147

Comptroller and Auditor-

Chapter- V 148 to 151
General of India

The State Governments 152 to 237

Chapter-I General 152
Chapter-II The Executive 153 to 167
VI Chapter-III The State Legislature 168 to 212
Chapter –IV Legislative Powers of Governor 213
Chapter-V The High Courts 214 to 232
Chapter-VI Subordinate Courts 233 to 237
The States in Part B of the
VII 238
First Schedule (Repealed)
VIII The Union Territories 239 to 242
IX The Panchayats 243 to 243-O
IX-A The Municipalities 243-P to 243 –ZG
IX-B The Co-operative Societies 243-ZH to 243-ZT
X The Scheduled and Tribal areas 244 to 244-A
Relations between the
245 to 263
Union and the States
XI
Chapter-I Legislative Relations 245 to 255
Chapter-II Administrative Relations 256 to 263

8
 Finance, Property, Contracts and Suits 264 to 300-A
Chapter I Finance 264 to 291
Chapter-II Borrowing 292 to 293
XII
Property, contracts, Rights,
Chapter-III 294 to 300
Liabilities, Obligations and Suits
Chapter-IV Right to Property 300-A
Trade, Commerce and Intercourse
XIII 301 to 307
within the Territory of India
Services under the Union
308 to 323
and the States
XIV
Chapter-I Services 308 to 314
Chapter-II Public Service Commissions 315 to 323
XIV-A Tribunals 323-A to 323-B
XV Elections 324 to 329-A
Special Provisions relating
XVI 330 to 342-A
to Certain Classes
Official Language 343 to 351-A
Chapter-I Language of the Union 343 to 344
Chapter-II Regional Languages 345 to 347
XVII
Language of the Supreme Court,
Chapter-III 348 to 349
High Courts, and so on
Chapter-IV Special Directives 350 to 351
XVIII Emergency Provisions 352 to 360
XIX Miscellaneous 361 to 367
XX Amendment of the Constitution 368
Temporary, Transitional
XXI 369 to 392
and Special Provisions
Short title, Commencement,
XXII Authoritative Text in 393 to 395
Hindi and Repeals

9
 SCHEDULES OF THE CONSTITUTION
Numbers Subject Matter
r Names of the States and their territorial jurisdictions.
First Schedule
r Name of the Union Territories and their extent.
r Provisions relating to the emoluments, allowances, privileges, and so on of:
r The President and the Governors of the States
r The Speaker and the Deputy Speaker of the Lok Sabha
r The Chairman and the Deputy Chairman of the Rajya Sabha
Second Schedule
r The Speaker and the Deputy Speaker of the Legislative Assemblies in the States
r The Chairman and the Deputy Chairman of the Legislative Councils in the States
r The Judges of the Supreme Court and of the High Courts
r The Comptroller and Auditor-General of India
Forms of the Oaths or Affirmations for:
1. The Union Ministers
2. The candidates for election to the Parliament
3. The Members of the Parliament
4. The Judges of the Supreme Court
Third Schedule
5. The Comptroller and Auditor General of India
6. The State Ministers
7. The candidates for election to the State Legislature
8. The members of the State Legislature
9. The Judges of the High Courts
Fourth Schedule Allocation of the seats in the Rajya Sabha to the States and the Union Territories.
Provisions relating to the administration and the control of the Scheduled Areas and the Scheduled Tribes.
Fifth Schedule

Provisions relating to the administration of the Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
Sixth Schedule

Division of the powers between the Union and the States in terms of List 1 (the Union List), List II (the States List) and
Seventh Schedule
List III (the Concurrent List).
Includes the languages recognised by the Constitution. Originally, it had 14 but presently there are 22 languages.
They are: Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Nepali,
Eighth Schedule Oriya, Punjabi, Sanskrit, Sindhi, Tamil, Telugu and Urdu. Sindhi was added by the 21st Amendment Act of 1967, while
Konkani, Manipuri and Nepali were added by the 71st Amendment Act of 1992. The 92nd Amendment Act, 2003
added Bodo, Dogri, Maithili and Santhali.
Validation of certain Acts and regulations, mostly relating to the land reforms. There are 284 such Acts. This Schedule
Ninth Schedule was added to the Constitution by the First Amendment Act of 1951 which provided, that by incorporating any law into
it, the State would make it immune from judicial scrutiny.
Provisions relating to the disqualification of the legislators on grounds of defection. This Schedule was added by the
Tenth Schedule
52nd Amendment Act of 1985. It is also known as the Anti-defection Law.
Specifies the powers, authority and the responsibilities of the Panchayats. It has 29 matters. This schedule was added
Eleventh Schedule
by the 73rd Amendment Act of 1992.
Specifies the power, authority and the responsibilities of the Municipalities. It has 18 matters. This Schedule was
Twelfth Schedule
added by the 74th Amendment Act of 1992.

10
 Salient features of
2
our Constitution
m Parliamentary system of Government,
Introduction
m Rule of Law,
The Constitution of India is one of the finest-crafted m Prerogative writs
Constitutions in the World. The Constitution of India
c. Canada Constitution
is a very dynamic creation of our lawmakers. The
m Quasi Federal Government system,
Constitution of India is a supreme law of the country
and every citizen of our country has to abide by the m Appointment of Governors.
constitution. According to Granville Austin, “Indian d. Australia Constitution
Constitution is the first and foremost social document”. m Concurrent List,
Following are the salient features our Constitution: m Joint sitting of 2 houses of the Parliament,
1. Lengthiest written Constitution in the World: m Freedom of Trade.
The Constitution of India is the lengthiest written e. USSR
Constitution in the World. It is because not only
m Fundamental duties,
the essential rights are given under it but detailed
administrative instructions are also given under m Social, Economic and Political Justice.
it. Our constitution has given the place to various f. Ireland
organizations like Civil services (under Article 308- m Directive Principles of State Policy,
323). One of the other reasons why this Constitution m Election of President.
is so huge is because there is a single Constitution g. Germany
for entire India. India is a huge country and it
m Emergency provisions like Suspension of
needed detailed rules to be applied to various parts
Fundamental Rights during an emergency.
of the States. Due to this a massive constitution is
made. h. France:
2. Adopted from many different sources: Different m Republic
parts of our Constitution are adopted from various i. South Africa
countries. The maker of our Constitution took m Amendment of Constitution
the structural part of the Constitution from the m Election of members of Rajya Sabha.
Government of India Act, 1935.
j. Japan
Following are the various sources of Indian
m Procedure established by law.
Constitution:
3. Federal System with a Unitary Bias: Indian
a. United States of America
Constitution is that it is a federation with a strong
m Fundamental Rights,
centralizing tendency. The constitution of India is
m Independence of Judiciary,
neither federal nor unitary but is a mix of both.
m Judicial Review,
4. Blend of Rigidity and Flexibility: The Indian
m Impeachment of President and Supreme
Constitution is neither completely rigid nor
Court Judges.
completely flexible, but a mix of both. Article 368
b. United Kingdom provides for two types of amendments –
m Single Citizenship, m Amendment through a special majority, i.e. two-

11
 thirds majority of the members of each House principles while making any new legislation.
present and voting, and a majority (50%) of the m The Directive Principles of State Policy is similar
total membership of each House. to the ‘Instrument of Instructions’ that is in the
m Some other provisions can be amended by a Government of India Act 1935.
special majority of the Parliament and with the m They are basically instructions to the legislature
ratification by half the states. and executive that have to be followed while
5. Parliamentary Form of Government: The framers framing new legislation by the State.
of our Constitution preferred a Parliamentary system
9. Fundamental Duties
of government. Our newly christened democracy
r The Swaran Singh Committee of 1976 added a
could not afford any confrontations between the
executive and the legislature. This could happen list of 11 Fundamental Duties in the constitution
only when they were separate and independent of by adding a new Part-IVA and Article-51A in the
each other. The Council of Ministers is collectively constitution.
responsible to the Lok Sabha. The same is true of r Swaran Singh Committee was formed in 1976
the relationship between the Governors and the after the internal emergency of 1975 which
Council of Ministers in the States. recommended adding a list of Fundamental
6. Integrated and Independent Judiciary: The Duties which every citizen of India should abide
Judiciary ensures the proper functioning of the by.
constitution and the enforcement of various r The 11 Fundamental Duties act as a moral
provisions of the Constitution.The Constitution obligation on every citizen of India and these
makers ensured that the Judiciary had to be Fundamental Duties are non-justiciable in
independent and hence unbiased.There are various nature i.e., one cannot move to court if someone
provisions in the Constitution that ensure the is not obliging its duty as a citizen of India.
independence of the judiciary:
r The new Part IVA with Article 51A was added in
m The appointment of Judges is independent
the Constitution of India and it was inspired by
and there is no involvement of any executive
the Constitution of the USSR.
authorities.
10. Secularism
m The tenure of Judges is secured.
r The Constitution of India stands for a secular
m The removal of judges from their tenures must state, i.e. it gives equal importance to all
be also based on the constitutional provisions. religions.
7. Fundamental Rights: The Indian Constitution r It also does not uphold any particular religion as
guarantees 6 Fundamental Rights: the official state religion. The Western concept
1. Right to Equality (Article 14-18) of secularism connotes a complete separation
2. Right to Freedom (Article 19-22) between religion and the State.
3. Right against Exploitation (Article 23-24) r This concept is inapplicable in the Indian
situation where the society is multireligious.
4. Right to Freedom of Religion (Article 25-28)
r Hence, the Indian Constitution embodies
5. Cultural and Educational Rights (Article 29-30)
the positive concept of secularism, i.e. giving
6. Right to Constitutional Remedies (Article 32) equal respect to all religions and protecting all
8. Directive Principles: Directive Principles of State religions equally.
Policy 11. Universal Adult Franchise
m Part IV of the Indian Constitution deals with the r The concept of Universal Adult Franchise/
Directive Principles of State Policy. Adult suffrage allows every citizen of India
m It is the duty of every State to apply these who is above eighteen years the right to vote in

12
 democratic elections. r Article 326 of the Indian Constitution guarantees
r Any adult who is eligible to vote should not be this right.
discriminated against on the basis of gender, r The Constitution of India is a very dynamic
caste and religion. creation of our lawmakers. The Constitution
r This provision was added in the 61st amendment of India as we all know is a supreme law of the
which is also known as the Constitution Act, country and every citizen of our country has to
1988, which changed the voting age from 21 to abide by the constitution.
18.

13
 The Nature of Indian
3 Constitution
union and the states, and vests the residuary powers
Introduction
with the union. As such the mode of division of
Constitutions are either unitary or federal. In the powers can be different but it has to be essentially
unitary government, the powers of the government are affected in every federal state. It is the sign post of
centralised in the central government & the states are a federation.
subordinate to the centre. In the federal constitution, 2. Written Constitution: Since in a federal constitution
there is a division of power between the states & the there is to be affected a division of powers, it becomes
central government & both are independent in their essential to effect it in writing in order to make it
own spheres. definite and binding upon both the centre and the
There is a huge difference of opinion when it comes states. As such a written constitution is a must for
to the nature of the Indian Constitution. Some jurist a federation. The constitution is the deliberate and
like Kenneth C. Wheare, said that India is quasi-federal conscious act of political construction. It must be a
i.e. “similar to a federal system” because it has some written and enacted constitution only then can it
features of federal and some of the unitary Constitution. affect the division of powers in a clear and efficient
However, according to the makers of the Constitution, it way.
is federal in nature. Even Dr. B. R. Ambedkar defined it 3. Rigid Constitution: A federal constitution has also
as a federal Constitution, although the centre has certain to be a rigid constitution because it is to be kept
powers to override the provinces. immune from unilateral amendment efforts on part
What is a Federation? of The Centre Government or states. Only the central
A Federation is always characterised by the following government and the state governments together
essential features: can have the power to amend the constitution.
1. Division of Powers: Division of powers between the Further, in order to maintain stability of the federal
central government on the one hand and the state/ organisation, there is prescribed a special method
unit governments on the other is an absolutely of making the amendments in the constitution.
essential condition of a federation. In it one part of 4. Supremacy of the Constitution: In a federation
the authority and power of the state is vested with the constitution is the supreme law of land. Both
the central government and the rest is vested with the central government and the state governments
the state governments. Each works within a definite derive their powers from the constitution.
and defined sphere of functions. They always work within their own spheres as
There can be different ways in which the division demarcated by the constitution. No one can violate
of powers between the centre and states is affected the provisions of the constitution.
by different federal constitutions. As for example, 5. Special Role of the Judiciary: For protecting the
the US Constitution specifies the powers of the supremacy of the constitution. Such a judiciary is
federal government and vests the rest with the also essential for performing the role of an arbiter
state governments, while the Constitution of India of disputes between the centre and states or among
defines separately the powers of the union (federal the state governments in respect of their areas of
government), powers of the states and concurrent action and power.
powers which are available in common to both the The working of a federation always involves the

14
 possibility of rise of disputes of jurisdiction between population and resources. It is because of this
the centre and state governments and here there requirement that all states have been given seats in
must be present an umpire, a superior organisation one of the two houses of the central legislature and
capable of settling these disputes. An independent each enjoys equal rights and autonomy.
judiciary armed with the power of interpreting the These are the essential features of a federation. Any
constitution and of regular such central and state state which has all these features can be legitimately
laws as are found to be against the letter and spirit described as a federation.
of the constitution, is an essential condition of a What is a Confederation?
federation. A confederation is a system of governance, in which the
6. Dual Administration: A federation is characterised constituents (states or provinces) come together for
by dual administration— one, uniform political, economic, security or administrative reasons.
administration of the central government for all Entering a confederation is entirely voluntary and
the people of the federation and the other state depends on the government of every individual states –
administrations which are run by the governments or on the local authority in the case of provinces. Once
of federating units and which differ from state to entered the confederation, the constituents maintain their
state or region to region. Each citizen has to obey sovereignty and their powers (almost entirely), and there
two sets of law—the central laws and the laws of is no superior, unified, central government. Depending
the state of which he is the resident. on the structure of the confederation, there might be
7. Dual Citizenship: In an ideal federation, each a weak central body, appointed by all constituents,
individual gets a double citizenship—one common created to speed up bureaucratic processes and facilitate
uniform citizenship of the whole state (Federation) communication. In a confederation there is,
and the second of the province or state of which he i. Unitary budget;
is the resident. In the United States, each individual
ii. Common military;
enjoys both the citizenship of the United States as
iii. Common foreign policy strategy;
well as of the state of which he is the native resident.
India do not follow the feature of dual citizenship. iv. Common diplomatic representatives; and
8. Bicameral Legislature: In a federation, the v. Common legal system.
legislature of the federal government is made a The United States started as confederation and
bicameral legislature. In one house the people of later turned into a federation once the constitution
the federation are given representation while in the was created, signed and ratified by all members. The
other house the units of the federation are given concept of confederation is similar to the principles on
representation on the basis of equality. which international organizations stand. For instance,
In the United States, the people of the country the European Union has similar structure, even though
have been given representation in the House of it is not officially defined as such, in particular because
Representatives and the fifty states of the US there are legally binding documents that prevent states
federation have been given equal representation, to enter and exit the union as they please.
two seats to each state, whether big or small, in the Similarities between Federation and Confederation
upper house i.e. the Senate. The same is the case Despite their natural differences, federation and
in India where representation in second house or confederation have some aspects in common:
Upper house is on the basis of population of the r In both cases, various states, countries or provinces
state. come together to create a new entity for matters
9. Equality of all Federating States: One of the key of political, economic and security convenience.
underlying principles of the federation is to treat Federations and confederations only exist if there is
all states/units of the federation equal, without a common agreement among constituents. Indeed,
any consideration for the differences in their size, members need to adopt a common constitution

15
 to become part of the federation, while entering a stronger in the case of the federation. Indeed, in
confederation is not binding; and a confederation, states agree to come together
r In both cases, being part of the federation or the for various purposes, but they are not legally tied
confederation should benefit member states. In together and can technically back up or exit the
the first case, constituents give up part of their confederation whenever they want (depending
sovereignty in order to receive protection, security on the type of confederation). Conversely, in a
and economic or political advantages. In the second federation, there are binding legal agreements that
prevent states from leaving the union. Relations
case, states and provinces enter the confederation
among states within a federation are stronger as
to create a stronger entity and enjoy administrative
the different entities come together to create a new
and economic advantages without losing power or
nation state.
authority.
Main Federal Features of the Indian Constitution
Difference between Federation and Confederation
1. Written Constitution: The Indian Constitution
r Federation and confederation are political and
is a written document containing 395 Articles
strategical agreements among countries or and 12 schedules, and therefore, fulfils this basic
provinces, created in order to enable the constituents requirement of a federal government. In fact,
to enjoy political and economic benefits. In spite the Indian Constitution is the most elaborate
of some similarities, the two concepts are quite Constitution of the world.
different: 2. Supremacy of the Constitution: India’s Constitution
r Confederations were very popular in ancient Greece is also supreme and not the hand-made of either the
and during the Middle Age, but there are not many Centre or of the States. If for any reason any organ
examples of existing confederations. International of the State dares to violate any provision of the
organizations have a similar structure, but have Constitution, the courts of laws are there to ensure
legal treaties and enforcement mechanisms, while that dignity of the Constitution is upheld at all costs.
confederations were loose agreements with no 3. Rigid Constitution: The Indian Constitution is
written constitution. Conversely, federations are largely a rigid Constitution. All the provisions of
more common today, and many confederations the Constitution concerning Union-State relations
formed centuries ago evolved into federations; can be amended only by the joint actions of the
r The powers and responsibilities of the central State Legislatures and the Union Parliament. Such
authority vary greatly between the two. First of provisions can be amended only if the amend­ment
all, there is no central government as such in a is passed by a two-thirds majority of the members
confederation, but rather a weak body elected by present and voting in the Parliament (which must
member states, while the federal government has also constitute the absolute majority of the total
great power and influence over the constituents. membership) and ratified by at least one-half of the
In a confederation, the central government has no States.
power de facto, and it is only in place to facilitate
4. Division of Powers: In a federation, there should be
the decision-making process and speed up
clear division of powers so that the units and the
communication. Conversely, when states come
centre are required to enact and legislate within
together to create a federation, they create a new
their sphere of activity and none violates its limits
nation state, with a functioning and powerful
central government. The constituents lose part and tries to encroach upon the functions of others.
of their autonomy and authority, and the central This requisite is evident in the Indian Constitution.
government acquires the ability of making decisions The Seventh Schedule contains three Legislative
regarding national security, military, foreign policy Lists which enumerate subjects of administration,
and diplomacy; and viz., Union, State and Concurrent Legislative Lists.
r The ties among states and provinces are much The Union List consisted of 97 subjects, the more

16
 important of which are defence, foreign affairs, So, India, as a federal system, has a Central and State
railways, posts and tele­graphs, currency, etc. Government.
The State List consisted of 66 subjects, including, Unitary Features of the Indian Constitution
inter-alia public order, police, administration of 1. Strong Centre: The division of powers is in favour
justice, public health, education, agriculture etc. The of the Centre and highly inequitable from the
Concurrent List embraced 47 subjects including federal angle. Firstly, the Union List contains more
criminal law, marriage, divorce, bankruptcy, trade subjects than the State List. Secondly, the more
unions, elec­tricity, economic and social planning, important subjects have been included in the Union
etc. List. Thirdly, the Centre has overriding authority
The Union Government enjoys exclusive power to over the Concurrent List. Finally, the residuary
legislate on the subjects mentioned in the Union powers have also been left with the Centre, while
List. The State Governments have full authority in the USA, they are vested in the states. Thus, the
to legislate on the subjects of the State List under Constitution has made the Centre very strong.
normal circumstances. And both the Centre and 2. States Not Indestructible: Unlike in other
the State can’t legislate on the subjects mentioned federations, the states in India have no right
in the Concurrent List, the residuary powers have to territorial integrity. The Parliament can by
been vested in the Central Government. unilateral action change the area, boundaries or
5. Independent Judiciary: In India, the Constitution name of any state. Moreover, it requires only a
has provided for a Supreme Court and every effort simple majority and not a special majority. Hence,
has been made to see that the judiciary in India is the Indian Federation is “an indestructible Union of
independent and supreme. The Supreme Court destructible states”. The American Federation, on
of India can declare a law as unconstitutional or the other hand, is described as “an indestructible
ultra vires, if it contravenes any provisions of the Union of indestructible states”.
Constitution. In order to ensure the impartiality of 3. Single Constitution: Usually, in a federation,
the judiciary, our judges are not remov­able by the the states have the right to frame their own
Executive and their salaries cannot be curtailed by Constitution separate from that of the Centre. In
Parliament. India, on the contrary, no such power is given to the
6. Bicameral Legislature: A bicameral system is states. The Constitution of India embodies not only
considered essential in a federation because it is in the Constitution of the Centre but also those of the
the Upper House alone that the units can be given states. Both the Centre and the states must operate
equal representation. The Constitution of India also within this single-frame. The only exception in this
provides for a bicameral Legislature at the Centre regard was the case of Jammu and Kashmir which
consisting of Lok Sabha and Rajya Sabha. has its own (state) Constitution till 2019.
While the Lok Sabha consists of the elected 4. Flexibility of the Constitution: The process of
representatives of people, the Rajya Sabha mainly constitutional amendment is less rigid than what
consists of representatives elected by the State is found in other federations. The bulk of the
Legislative Assemblies. However, all the States have Constitution can be amended by the unilateral
not been given equal representation in the Rajya action of the Parliament, either by simple majority
Sabha. or by special majority. Further, the power to initiate
7. Dual Government Polity: In a federal State, an amendment to the Constitution lies only with
there are two governments—the national or the Centre. In US, the states can also propose an
federal government and the government of each amendment to the Constitution.
component unit. But in a unitary State there is only
5. No Equality of State Representation: The states
one government, namely the national government.
are given representation in the Rajya Sabha on the

17
 basis of population. Hence, the membership varies only the Central government but also those of the
from 1 to 31. In US, on the other hand, the principle states. But his appointment and removal are done
of equality of representation of states in the Upper by the President without consulting the states.
House is fully recognised. Thus, the American Hence, this office restricts the financial autonomy
Senate has 100 members, two from each state. This of the states. The American Comptroller-General,
principle is regarded as a safeguard for smaller on the contrary, has no role with respect to the
states. accounts of the states.
6. Emergency Provisions: The Constitution stipulates 11. Parliament’s Authority over State List: Even in
three types of emergencies—national, state the limited sphere of authority allotted to them, the
and financial. During an emergency, the Central states do not have exclusive control. The Parliament
government becomes all powerful and the states is empowered to legislate on any subject of the State
go into the total control of the Centre. It converts List if Rajya Sabha passes a resolution to that effect in
the federal structure into a unitary one without a the national interest. This means that the legislative
formal amendment of the Constitution. This kind of competence of the Parliament can be extended
transformation is not found in any other federation. without amending the Constitution. Notably, this
can be done when there is no emergency of any
7. Single Citizenship: In spite of a dual polity, the
kind.
Constitution of India, like that of Canada, adopted
the system of single citizenship. There is only Indian 12. Appointment of Governor: The governor, who is
Citizenship and no separate state citizenship. All the head of the state, is appointed by the President.
citizens irrespective of the state in which they are He holds office during the pleasure of the President.
born or reside enjoy the same rights all over the He also acts as an agent of the Centre. Through him,
country. The other federal states like US, Switzerland the Centre exercises control over the states. The
and Australia have dual citizenship, that is, national American Constitution, on the contrary, provided
citizenship as well as state citizenship. for an elected head in the states. In this respect,
India adopted the Canadian system.
8. Integrated Judiciary: The Indian Constitution has
established an integrated judicial system with the 13. Integrated Election Machinery: The Election
Supreme Court at the top and the state high courts Commission conducts elections not only to the
below it. This single system of courts enforces both Central legislature but also to the state legislatures.
the Central laws as well as the state laws. In US, on But this body is constituted by the President and the
the other hand, there is a double system of courts states have no say in this matter. The position is same
whereby the federal laws are enforced by the federal with regard to the removal of its members as well. On
judiciary and the state laws by the state judiciary. the other hand, US has separate machineries for the
9. All-India Services: In US, the Federal government conduct of elections at the federal and state levels.
and the state governments have their separate public 14. Veto Over State Bills: The governor is empowered
services. In India also, the Centre and the states to reserve certain types of bills passed by the state
have their separate public services. But, in addition, legislature for the consideration of the President.
there are all-India services (IAS, IPS, and IFS) which The President can withhold his assent to such bills
are common to both the Centre and the states. The
not only in the first instance but also in the second
members of these services are recruited and trained
instance. Thus, the President enjoys absolute veto
by the Centre which also possess ultimate control
(and not suspensive veto) over state bills. But in
over them. Thus, these services violate the principle
US and Australia, the states are autonomous within
of federalism under the Constitution.
their fields and there is no provision for any such
10. Integrated Audit Machinery: The Comptroller and
reservation.
Auditor-General of India audit the accounts of not

18
 4 Preamble

worship;
Introduction
EQUALITY of status and of opportunity;
The term Preamble means an introductory statement
And to promote among them all FRATERNITY
that sets out the guiding purpose, principles and
assuring the dignity of the individual and the unity and
philosophy of the Indian Constitution. A preamble gives
integrity of the Nation;
a brief introduction of documents by highlighting the
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth
principles and fundamental values of the document.
day of November, 1949, do HEREBY ADOPT, ENACT AND
It shows the source of the authority of the document.
GIVE TO OURSELVES THIS CONSTITUTION.
The American Constitution was the first Constitution in
the world to begin with Preamble. The Preamble of the Components of The Preamble
Indian constitution is based on the ‘Objective Resolution’ r SOURCE OF AUTHORITY: Preamble specifies that
moved by Jawaharlal Nehru in the Constituent Assembly Constitution of India derives its authority from the
which was adopted by the Constituent Assembly. people of India
The Constitution of India begins with a Preamble. r NATURE OF INDIAN STATE: Preamble declares
It is interesting to know that the Preamble, though the India as a Sovereign, Socialist, Secular, Democratic
Constitution starts with it, was not the first to come into and Republican state.
existence. It was the last piece of Drafting adopted by the r OBJECTIVES OF THE CONSTITUTION: Preamble
Constituent Assembly at the end of the first reading of specifies justice, liberty, equality and fraternity as
the Constitution and then placed at the beginning of the its objectives.
Constitution. Several amendments were suggested in r DATE OF ADOPTION: Preamble mentions 26-
the Preamble but they all were rejected. At the end, the November-1946 as its adoption date.
President of the Constituent Assembly moved the motion- Nature of Preamble
“That the Preamble stands part of the Constitution.” r In Keshavananda Bharti case (1972), the Supreme
Thus, Preamble was added to the Constitution. Court held that, Preamble is not the supreme power
The 42nd Amendment of 1976, changed the or source of any restriction or prohibition but it
description of India from a "sovereign democratic plays an important role in the interpretation of
republic" to a "sovereign, socialist secular democratic statutes and provisions of the Constitution.
republic", and also added the word ‘integrity’ to change, r In LIC case (1995), the Supreme Court held that,
“unity of the nation" to "unity and integrity of the nation". Preamble is non-justiciable, its provisions are not
Preamble embodies the basic philosophy and enforceable in the courts of law, but it helps in the
fundamental values-political, moral and religious on legal interpretation of the Constitution of India.
which it is based. Ideals Menntioned in the Preamble
Text of The Preamble Sovereign:
WE, THE PEOPLE OF INDIA, having solemnly resolved Sovereignty is one of the principleelements of any
to constitute India into a SOVEREIGN SOCIALIST SECULAR independent State. It means absolute independence,
DEMOCRATIC REPUBLIC and to secure to all its citizens: i.e., a government is not controlled by any other power,
JUSTICE, social, economic and political; be it internal or external. A country cannot have its
own constitution without being sovereign. India is a
LIBERTY of thought, expression, belief, faith and
sovereign country. The term ‘Sovereign’ mentioned in

19
the Preamble means that India has its own independent Comparison with Western Secularism:
authority and it is not a dominion of any other external Western Secularism Indian Secularism
power. In India, the legislature has the power to make In western society, secularism There’s no clear demarcation
laws which is subjected to certain limitations. As a refers to the complete between state and religion in
separation between the state India, positive intervention of
sovereign country, India can acquire foreign territory or
and religion and freedom of the state in religious affairs is
cede a part of it in favour of any country. It is free from religion for all people. not prohibited.
any external control. It can frame state policies on its
own. India is also free to formulate its own foreign policy The Western concept of In India, secularism manifests
Secularism does not believe itself by the creation of an
Socialist: in an open display of religion environment where every
Initially, the word socialist was not there in the Preamble. except for places of worship. religion is represented and its
In a country like France, the followers can freely practice the
It was added by the 42nd Amendment act 1976 in the
hijab is banned because the religion.
Preamble. The word ‘Socialism’ had been used in the external manifestation of All expression of Religion is
context of economic planning. It means commitment to religion is not appreciated in manifested equally with support
that society. from the state.
attain ideals like removal of inequalities, provision to
ensure minimum basic necessities to all, equal pay for In western society, laws are In India, the law seeks to
equal work. In the Directive Principles of the State Policy, made in isolation from religious incorporate the multiple religious
these ideals have been incorporated. It is basically a principles. principles that followers of
different religions comply to.
‘Democratic Socialism’- the term means the achievement
The state cannot give any The state provides all religious
of socialist ends through democratic means, that is financial support to educational minorities with the right to
followed in the mixed economy like India where both institutions run by religious establish and maintain their
private and public sectors co-exist side by side. communities. own educational institutions
which may receive assistance
Secular: from the state.
The term ‘secular’ was also added by the 42nd
Constitutional Amendment Act of 1976. In the context The State does not intervene in In Indian secularism, the state
the affairs of religion until the shall interfere in religion so as to
of secularism in India, ‘India is neither religious, nor time religion is working within remove evils in it.
irreligious nor anti- religious.’ It implies that in India the limits of the law.
there will be no ‘State’ religion – the ‘State’ will not A single uniform code of law In matters of law in modern
favour any particular religion out of public fund. This is used to dispense justice India, however, the applicable
regardless of religious code of law is unequal, and
has two implications, background. India's personal laws– on
i. every individual is free to believe in, and practice, matters such as marriage,
divorce, inheritance, alimony–
any religion he/ she belongs to, and, varies with an individual's
ii. State will not discriminate against any individual or religion.
Muslim Indians have Sharia-
group on the basis of religion.
based Muslim Personal Law,
The concept of secularism was already implicit in the while Hindu, Christian and Sikh
Indian Constitution. Articles 25 to 28 of the Constitution Indians live under common law.

guarantees every person the freedom of conscience and Focus is more on intrareligious Focusing both on interreligious
domination than interreligious and intra religious dominations
the right to profess, practice and propagate religion. due to religiously homogeneous because Indian society is not
Indian Constitution encompasses positive concept of nature of the State. homogenous rather it is multi-
religious that has numerous
secularism that all religion in India have the same status
religious denominations and
and support from the state. caste under each.
It is concerned with liberty and It not only ensures the religious
equality among the individuals freedom of individuals but
of the particular religion and also provides for the religious
often neglected the equality of freedom of minorities.
other religious minorities.

20
Democratic: of birth. It also means absence of any privileges to
As said by Abraham Lincoln, ‘Democracy is government any section of the society and also take necessary
of the people, by the people and for the people’. The steps to improve the conditions of SC/ ST, OBC’s and
term ‘Democratic’ implies that the Constitution of India women.
has an established form of Constitution which gets its r Economic Justice means no discrimination can
authority from the possession of supreme power by the be caused by people on the basis of their wealth,
people expressed in an election. This means that the income, and economic status. It means wealth
Government is elected by the people, it is responsible must be distributed on the basis of their work, not
and accountable to the people. The democratic principles with any other reason. Every person must be paid
are highlighted with the provisions of universal adult equally for an equal position and all people must
franchise, elections, fundamental rights, and responsible get opportunities to earn for their living. A blend
government. The term Democracy used in Preamble of social and economic justice is also known as
embraces not only political democracy but also social distributive justice.
and economic democracy. r Political Justice means that all citizens have equal
In views of Dr. Ambedkar, Political democracy rights in political participation. Indian Constitution
cannot succeed without social and economic democracy. provides for universal adult suffrage and equal value
For him, the best mode of achieving socio-economic for each vote, without any sort of qualification, e.g.
democracy is to achieve political democracy at the first education, property, social status.
instance. The importance of ideas of political social and The ideals of justice are taken from Russian
economic democracy lies in the fact that, rights cannot Revolution.
be enjoyed by the citizens of any nation in the absence Liberty:
of them. The coexistence of all three democracies is The idea of Liberty refers to the freedom on the
imperative to achieve the goals of equality and fraternity activities of citizens. This establishes that there are no
as enshrined in our Constitution in Preamble. unreasonable restrictions on Indian citizens in term of
Republic: what they think, their manner of expressions and the
India has a republic form of government as the head way they wish to follow up their thoughts in action.
of state is elected and not a hereditary monarch like a However, liberty does not mean freedom to do anything,
king or queen. It means the power to elect the head of and it must be exercised within the constitutional limits.
the state for a fixed term lies within the people. So, in The Preamble provides for the liberty of thought,
conclusion, the word ‘republic’ shows a government expression, belief, faith, and worship. The Indian
where the head of state is elected by the people rather Constitution guarantees six democratic freedoms to the
than any birth-right. individuals under Art. 19 and right to freedom of religion
under Arts. 25-28.
Justice:
Justice stands for rule of law, absence of arbitrariness The ideals of Liberty, Equality and Fraternity are
and a system of equal rights, freedom and opportunities taken from French Revolution.
for all in a society. Justice is to give people what they Equality:
are entitled for in terms of basic rights to food, clothing, The term 'equality' means the absence of special
housing, participation in the decision-making and living privilege to any section of society, and the provision of
with dignity as Human Beings. The Preamble covers adequate opportunity of all the individuals without any
all these dimensions of justice – social, economic and discrimination. Preamble ensures equality at- social,
political secured through various provisions of the political and economic front.
Fundamental and Directive Principles. r Constitution mentions few articles in Fundamental
r Social justice in the Preamble means equal rights to ensure equality in society:
treatment of all citizens without any discrimination m Prohibition of discrimination by the State only
on the grounds of race, religion, caste, sex or place

21
 on the basis of religion, caste, sex, or place of r As observed by the Supreme Court, the Preamble
birth (Art. 15). plays a limited and yet vital role in removing
m Equality of opportunity in terms of public the ambiguity surrounding the provisions of the
employment (Art. 16) Constitution.
m Abolishing untouchability (Art. 17) r The ideals are the means to achieve aspirations
m Abolishing titles of honour (Art. 18). Whether the Preamble is a part of the Constitution?
r In the Berubari Union case (1960), Supreme Court
m However, to bring the neglected/ backward
held that Preamble is not a part of the Constitution.
sections of the society into the national
However, it is a key to the mind of framers of
mainstream, the Parliament has passed certain
the Constitution and it reveals their intentions.
laws for the SCs, STs, OBCs and also, women
Preamble is in itself neither a source of any powers,
(Protective Discrimination).
nor a source of any restrictions. The preamble is an
r Article 39 of Directive principle of State policy important tool for interpretation of the Constitution.
ensures economic equality which states for
r The Supreme Court in the Kesavananda Bharati vs.
equitable distribution of wealth, equal pay for both
State of Kerala (1971) case overruled its earlier
men and women for equal work.
decision (Berubari case) of 1960 and made it clear
r Article 325 and article 326 of the Constitution that it is a part of the Constitution and is subject
enables political equality amongst the citizens by to the amending power of the Parliament as any
providing universal adult suffrage. other provisions of the Constitution, provided the
Fraternity: basic structure of the Constitution as mentioned in
r Fraternity as enshrined in the Constitution means the Preamble is not destroyed. However, it is not an
a sense of brotherhood prevailing amongst all the essential part of the Constitution.
sections of the people. However, fraternity is an r Minerva Mills V Union of India (1980), Supreme
evolving process and by the 42nd amendment, the Court held that any positive amendment in the
word 'integrity' was added, thus giving it a broader Preamble can certainly be made. Preamble can be
meaning. amended by procedure held in Article 368 of the
r Fundamental duties implicitly describe about Constitution.
fraternity as it talks about upholding and protecting r In the latest S.R. Bommai case, 1993 regarding the
the sovereignty, unity and integrity of India. dismissal of three Governments in MP, Rajasthan
r To ensure sense of brotherhood Indian Constitution and Himachal Pradesh, Justice Ramaswamy said,
have provision of single citizenship. "the Preamble of the Constitution is an integral part
Significance of the Preamble: of the Constitution. Democratic form of government,
r The Preamble to the Constitution embodies the federal structure, unity and integrity of the nation,
essence of the entire Constitution. secularism, socialism, social justice and judicial
r It sets out the main objectives, which the Constituent review are basic features of the Constitution".
Assembly intended to achieve. Why the two words were left out of original Preamble?
r As the Supreme Court has observed, the Preamble r As per the Constituent Assembly debate over word
is a key to unravel the minds of the makers of secular, Dr. B.R. Ambedkar refuted its inclusion
the Constitution. It also embodies the ideals and with a reason that there was no need to include the
aspirations of the people of India. term ‘secular’ as the entire Constitution embodied
the concept of secular state, which meant non-
r It can neither provide substantive power (definite
discrimination on grounds of religion and equal
and real power) to the three organs of the State,
rights and status to all citizens.
nor limit their powers under the provisions of the
Constitution. r On the inclusion of the term ‘socialist,’ he said it is

22
 against the very grain of democracy to decide in the upon the concepts crystallized in the Preamble. The
Constitution what kind of society the people of India 42nd amendment adds liveliness to the philosophy of
should live in. Dr Ambedkar said “It is perfectly the Constitution. It makes explicit what was implicit in
possible today, for the majority people to hold that the Constitution i.e., Positive Amendment.
the socialist organisation of society is better than Prime Minister Indira Gandhi re-introduced the
the capitalist organisation of society. But it would two words for political reasons in the 42nd Constitution
be perfectly possible for thinking people to devise Amendment of 1976. In the opinion of Constitutional
some other form of social organisation which expert Subhash Kashyap, “The word ‘socialist’ was
might be better than the socialist organisation of
added to send a message politically that she stood
today or of tomorrow. I do not see therefore why
for the poor. The word ‘secular’ was obviously meant
the Constitution should tie down the people to live
for the minorities in the context of the birth control
in a particular form and not leave it to the people
programmes of the emergency period. It was not as if
themselves to decide it for themselves”. His words
the Constitution was not secular or socialist before the
had influenced the final decision to omit the two
words were added. India has been secular before the
words.
42nd Amendment and continues to be secular after it.
The question arises as to why Preamble was amended?
By the 42nd amendment, the Preamble was amended to
include 'socialist', 'secular', 'integrity,' as it was assumed
that this amendment is clarificatory in nature.
The structure of the Constitution has been built

23
 5 The Union & Its Territory

Part (I) of the constitution comprises of 4 Articles 1. The power to admit into the Union new States
concerned with the territory of India. which are established and are already in existence.
Article 1: Name and Territory of the Union. i.e., The French Settlements of Pondicherry, etc.
Article 1(1) States that India, that is Bharat, shall be 2. The power to establish new States which were not
a Union of States. in existence before.
Why 'union' not 'federation'? Article 2-A. Sikkim to be associated with the Union.
r India has opted for the Federal form of Government (repealed)
due to its large size and socio-cultural diversities, r The 35thAmendment laid down a set of conditions
but the word 'Federation' does not find mention in that made Sikkim an "Associate State", a special
the Constitution. designation not used by any other state

r The term'Union' was suggested by Dr B.R. Ambedkar, r The 36th Amendment made Sikkim a full-fledged
State of the Indian Union and omitted the tenth
which indicates two things— first, Indian Union
schedule.
is not a result of agreement of independent and
sovereign states, and second, the Units/States do r The 36th Amendment Act was passed on 16th May
not have right to secede from the Union. 1975.
r Notably, Article 2 relates to the admission or
r The expression 'Union of India' needs to be
establishment of new states that are not part of the
distinguished from the expression 'Territory of
Union of India. Article 3, on the other hand, relates
India'.
to the formation of or changes in the existing states
r While the Union of India includes only the States of the Union of India. In other words, Article 3 deals
which share federal powers with the Centre, with the internal re-adjustment inter se of the
Territory of India includes the entire territory over territories of the constituent states of the Union of
which the sovereignty of the country is exercised. India.
Article 1(2) says that the States and the territories
will be specified in the First Schedule. Article 3: Formation of New States and Alteration of
Article 1(3) says that the territory of India will Areas, Boundaries or Names of Existing States.
comprise the following – r The Parliament can redraw the political map of
a) The territories of the States. India according to its will. Hence, the territorial
b) The Union territories mentioned in the First integrity or continued existence of any state is not
guaranteed by the Constitution. Therefore, India
Schedule; and
is rightly described as ‘an indestructible union of
c) Such other territories as may be acquired.
destructible states.
Article 2 - Admission or establishment of new States
r The Union government can destroy the states
According to the Article Parliament may by law admit whereas the state governments cannot destroy the
new States into the Union India or establish new States Union. In USA, on the other hand, the territorial
on such terms and conditions as it think. integrity or continued existence of a state is
Article 2 gives Parliament two powers guaranteed by the Constitution.

24
r The American Federal government cannot form territory of Ladakh.
new states or alter the borders of existing states r It was the first time in the history of India that a
without the consent of the states concerned. That state was demolished into a union territory. Also,
is why the USA is described as ‘an indestructible the Parliament passes a bill in Dec 2019 which
federation of indestructible states. changes the status of union territory of Daman and
Formation of new states Diu and Dadra and Nagar haveli into one unit.
Parliament may create new States in a number of ways, The Berubari Union and Exchange of Enclaves case
namely by 1960
F Separating territory from any State, r In the case of the Berubari Union, the President had
F Uniting two or more States, consulted the Supreme Court of India regarding the
F Uniting parts of States and Nehru-Noon Agreement signed between the Prime
F Uniting any territory to a part of any State. Minister of India and Pakistan.
Parliamentary procedure r The dispute was that the State Government of West
F Firstly, a bill calling for formation of new States
Bengal did not want to give any territory of Berubari
or alteration of the boundaries or names of the to Pakistan. The Central Government signed the
existing State shall be introduced in either House Nehru-Noon Agreement, which clearly states that
of Parliament only on the recommendation of the territory of Berubari will be equally distributed
the President. between India and Pakistan. Therefore, this matter
was finally taken to the Supreme Court of India.
F Parliament can form new States, and can alter
the area, boundaries or names of the existing r Supreme Court in 1969 ruled that, settlement of
States by a law passed by a simple majority. boundary dispute between India and any other
country doesn’t require constitutional amendment,
F Such a bill must be referred by the President to
it can be done by an executive action (govt action),
the concerned State Legislature for expressing
if it doesn’t involve cession of a territory.
its views to Parliament if it contains provisions
which affect the areas, boundaries or name of r The 100th Amendment in Indian Constitution
that State. Also, its opinion within a specified provides acquisition of territories by India and
time limit transfer of certain territories to Bangladesh. The
Constitution Act 2015 (100th amendment) ratified
F If the State Legislature does not give its opinion
the land boundary agreement between India and
within the specified time limit, the time limit
Bangladesh. The act amended the first schedule
may be extended.
of the Constitution in order to exchange the
F The Bill may be introduced even if the opinion
disputed territories occupied by both the nations
has not come
in accordance with Land Boundary Agreement of
F The Parliament is not bound to accept or act 1974 and its Protocol of 2011.
upon the views of the State Legislature. r For this purpose, this amendment act amended the
F It is not necessary to make fresh reference provisions relating to the territories of four states
to the State Legislature every time when an (Assam, West Bengal, Meghalaya and Tripura) in
amendment to the Bill is proposed and accepted. the First Schedule of the Constitution.
r Recent change has been in the status of Jammu and Article 4 - Laws made under Articles 2 and 3 to
Kashmir in the year 2019 by Jammu and Kashmir provide for the amendment of the First and the
reorganization act 2019. Through this act state of Fourth Schedules and Supplemental, Incidental and
Jammu and Kashmir was demolished into the union Consequential matters
territory of Jammu and Kashmir and the union Article 4(1) Any law referred to in Article 2 or Article

25
3 shall contain such provisions for the amendment of thought that if every such legislation is came
the First Schedule and the Fourth Schedule as may be under preview of Article 368 i.e. Amendment
necessary to give effect to the provisions of the law and of constitution then it will be very tedious and
may also contain such supplemental, incidental and complex work to acquire territories or rename
consequential provisions (including provisions as to states or create new state or merge any state to
representation in Parliament and in the Legislature or existing states.
Legislatures of the State or States affected by such law) Also it will become time consuming and difficult for
as Parliament may deem necessary. Parliament to function or proceed with foreign relations
Article 4(2) No such law as aforesaid shall be of country, So to minimize and simplify this problem,
deemed to be an amendment of this Constitution for the they made provision of Article 4.
purposes of Article 368-part II citizenship.
r So just because of Article 4 it is very handy for
Explanation: - Parliament to make laws regarding the alteration
r This Article explains that changes which are made local or international boundaries without
by Article 2 & 3 will not be termed as the amendment interference.
but will be termed as law for changes in First and
REORGANISATION OF STATES
Fourth schedule.
r At the time of independence in 1947, India consisted
r To understand Article 4, one must have knowledge of 571 disjointed princely states that were merged
of Article 368 that deals with amendment to together to form 27 states. The grouping of states
Constitution. at the time was done on the basis of political and
r Remember if Parliament wants to change any historical considerations rather than on linguistic
provision or Article or schedules mentioned or cultural divisions, but this was a temporary
Constitution, it has to propose amendment bill arrangement. On account of the multilingual nature
under Article 368. Second point is as mentioned and differences that existed between various states,
in Article 4, there is no necessity for Parliament to there was a need for the states to be reorganized on
initiate amendment bill under Article 368 in order a permanent basis
to pursue any bill propose under Article 2 or Article
r Initially as per constitution States are divided into 4
3.
parts- PART-A, B, C, D
r Remember Article 2 deals admission of any newly
r After 7th Constitutional amendment it was changed
acquired territory and its admission to Union of
to States and Union territories. The Constitution of
India (such as Sikkim 1975 or recent addition of
1950 categorized states in Four Parts.
some villages in Bangladesh to India)
r Part A had 9 states and these were the former
r Also, Article 3 deals with re mapping or creation
Governor Provinces of British India ruled by elected
of states or territories in existing in Union of India
Governor.
(such creation of State of Telangana).
r Part B had 8 states and these were former princely
r This is because after independence from British
states, governed by Rajpramukh (ruler of the state).
in 1947, there were approx. 357 princely states
which also got independence and they had right r Part C had 10 states and these were former Chief
to join either India or Pakistan or remain separate. Commissioner's provinces in British India governed
So, process of amalgamation of these territories by Chief Commissioner appointed by the President
to India was going on continuously from 1947 to of India.
till date also there were many complex problems r Part D had only 1 State administered by Lieutenant
created due to partition of India. Governor appointed by Central Government.
r Changes to Indian Union were inevitable and r This scheme was reorganized by States
continuous, due to which our founding fathers Reorganisation Act, 1956.

26
r In 1948, SK Dhar - a judge of the Allahabad High among Part A, B, and C states categorization. States
Court - was appointed by the government to head were reorganized largely on linguistic lines.
a commission that would look into the need for r Demand of states on linguistic basis was developed
the reorganization of states on a linguistic basis. even before independence of India under British
However, the Commission preferred reorganization
rule. Though that time Indian administrative regions
of states on the basis of administrative convenience
were identified as different provinces. Orissa was
including historical and geographical considerations
the first Indian state formed on linguistic basis in
instead of on linguistic lines.
the year 1936 due to the efforts of Madhusudan Das
r In December 1948, the JVP committee comprising and became Orissa Province. In Odisha linguistic
Jawaharlal Nehru, Vallabh bhai Patel and Pattabhi movement started in the year 1895 and intensified
Sitaramayya was formed to study the issue. The later years with the demand of separate province
Committee, in its report submitted in April 1949, from Bihar and Orissa Province.
rejected the idea of reorganization of states on
Why language was used as the criteria for the division
alinguistic basis but said that the issue could be
of states?
looked at afresh in the light of public demand.
r It would lead to the local people participating in the
r In 1953, the first linguistic state of Andhra for administration in larger numbers because of being
Telugu-speaking people was born. The government able to communicate in a common language.
was forced to separate the Telugu speaking areas
r Governance would be made easier in areas, which
from the state of Madras, in the face of a prolonged
shared linguistic and geographical features.
agitation and the death of Potti Sriramulu after a
56-day hunger strike. Consequently, there were r This would lead to the development of vernacular
similar demands for creation of states on linguistic languages, which had long been ignored by the
basis from other parts of the country. British.
r On December 22, 1953, Jawaharlal Nehru appointed r This would help replace the caste and religion-
a commission under Fazal Ali to consider these based identities with less controversial linguistic
new demands. The commission submitted report identities.
in 1955 and it suggested that the whole country be r Andhra State was the first state to be formed after
divided into 16 states and 3 centrally administered independence on linguistic basis in India on 1
areas. The government, while not agreeing with October 1953. On 1 November 1956, Andhra State
the recommendations entirely, divided the country was merged with the Telugu-speaking areas of the
into 14 states and 6 union territories under the Hyderabad State to form Andhra Pradesh.
State’s Reorganization Act 1956. The states were r In 1960, the state of Bombay was bifurcated to
Andhra Pradesh, Assam, Bihar, Bombay, Jammu and create the states of Gujarat and Maharashtra
Kashmir, Kerala, Madhya Pradesh, Madras, Mysore, following violence and agitation. In 1963, the state
Orissa, Punjab, Rajasthan, Uttar Pradesh and West of Nagaland was created for the sake of the Nagas
Bengal. The six union territories were Andaman and total number of states stood at 16.
and Nicobar Islands, Delhi, Himachal Pradesh,
r The areas of Chandernagore, Mahe, Yamen and
Laccadive, Minicoy and Amindivi Islands, Manipur
Karaikal from France, and the territories of Goa,
and Tripura. States Reorganization Act,1956
Daman and Diu from the Portuguese, were either
r The States Reorganization Act, 1956 was a major made union territories or were joined with the
reform of the boundaries of India's states and neighbouring states, after their acquisition.
territories and remains the single most extensive
r Based on the Shah Commission report in April
change in state boundaries since the independence
1966, the Punjab Reorganization Act was passed by
of India in 1947. The act abolished distinction

27
 the Parliament. Following this, the state of Haryana introduced in Lok Sabha on November 26, 2019. The
got the Punjabi-speaking areas while the hilly areas Bill provides for the merger of the Union Territories
went to the Union Territory of Himachal Pradesh. (UTs) of Dadra and Nagar Haveli, and Daman and
Chandigarh, which was made a Union Territory, Diu into a single UT.
would serve as the common capital of Punjab and Why the new states were created?
Haryana. r One main reason was cultural or social affiliations.
r In 1969 and in 1971, the states of Meghalaya and For instance, the state of Nagaland in the Northeast
Himachal Pradesh came into being respectively. was created taking tribal affiliations into account.
With the Union Territories of Tripura and Manipur r Another reason was economic development.
being converted into states, the total number of For instance, Chhattisgarh felt that the region
Indian states rose to 21. could grow economically only through separate
r Thereafter, Sikkim in 1975 and Mizoram, Arunachal statehood because the region’s development needs
Pradesh in February 1987 also acquired the were not being met by the state government. For
status of states. In May 1987, Goa became the an aggrieved region, there is a strong sense that
25th state of the Indian Union, while three new overall development will not come to them in the
states of Jharkhand, Chhattisgarh and Uttaranchal bigger state because of inequitable distribution of
were formed in November 2000. On June 2, 2014, resources and lack of adequate opportunities for
Telangana officially became India’s 29th state. growth.
r In 2019, the Central Government took an imminent r There is also a shift in power from the Centre to the
decision of reorganizing the fable state of Jammu states and with the growth of diverse communities,
and Kashmir. The decision of scrapping the special the existing federal structure is probably not
status bestowed to the state under Article 370 of sufficient to meet the aspirations of the rising
the Indian Constitution left the state in peril. Hence, numbers.
Jammu and Kashmir got divided into the Union r Also, parties tend to associate themselves with
Territory of Jammu and Kashmir and the Union identity politics to get attention on the national
Territory of Ladakh. stage and for gaining a vote bank. Hence, there is
r The Dadra and Nagar Haveli and Daman and an increasing demand for formation of new states
Diu (Merger of Union Territories) Bill, 2019 was based on social and cultural identities.

List of Union Territories

Union territories Capital Founded Year Official Languages
Andaman and Nicobar Islands Port Blair 1. Nov. 1956 Hindi, English
Chandigarh Chandigarh 1. Nov. 1966 English
Dadra and Nagar Haveli, Daman and Silvassa, daman 11. Aug. 1961 (Merged in Gujarati, Hindi, Marathi
Diu 2019)
Delhi New Delhi 9. May. 1956 Hindi, Punjabi, Urdu
Lakshadweep Kavaratti 1. Nov. 1956 English, Hindi
Puducherry Pondicherry 1. Nov. 1954 English, Tamil, Malayalam, Telugu

Jammu and Kashmir Srinagar (Summer), Jammu From 31 Oct 2019 Urdu
(Winter)
Ladakh Leh From 31 Oct 2019 Bhoti

NOTE: Goa, Puducherry, Dadra & Nagar Haveli and Sikkim were not a part of India at the time of independence. Goa was liberated from
Portuguese occupation in 1961, Puducherry along with Karaikal, Mahe and Yanam, was transferred to India in 1954 by the French, Dadra &
Nagar Haveli were liberated in 1954 from the Portuguese and Sikkim became a part of India in 1974.

28
 List of States
States Zone Capital Founded Year Official Languages
Andhra Pradesh Southern Amaravati (announced) 1. Nov. 1956 Telugu
Arunachal Pradesh North-Eastern Itanagar 20. Feb. 1987 English
Assam North-Eastern Dispur 26. Jan. 1950 Assamese
Bihar Eastern Patna 26. Jan. 1950 Hindi, Urdu
Chhattisgarh Central Naya Raipur 1. Nov. 2000 Hindi
Goa Western Panaji 30. May. 1987 Konkani, Marathi
Gujarat Western Gandhinagar 1. May. 1960 Gujarati
Haryana Northern Chandigarh 1. Nov. 1966 Hindi, Punjabi
Himachal Pradesh Northern Shimla 25. Jan. 1971 Hindi, English
Jharkhand Eastern Ranchi 15. Nov. 2000 Hindi, Urdu
Karnataka Southern Bangalore 1. Nov. 1956 Kannada
Kerala Southern Thiruvananthapuram 1. Nov. 1956 Malayalam
Madhya Pradesh Central Bhopal 1. Nov. 1956 Hindi
Maharashtra Western Mumbai 1. May. 1960 Marathi
Manipur North-Eastern Imphal 21. Jan. 1972 Meitei, English
Meghalaya North-Eastern Shillong 21. Jan. 1972 English, Khasi
Mizoram North-Eastern Aizawl 20. Feb. 1987 English, Hindi, Mizo
Nagaland North-Eastern Kohima 1. Dec. 1963 English
Odisha Eastern Bhubaneswar 26. Jan. 1950 Odia
Punjab Northern Chandigarh 1. Nov. 1956 Punjabi
Rajasthan Northern Jaipur 1. Nov. 1956 Hindi, English
Sikkim North-Eastern Gangtok 16. May. 1975 English, Bhutia, Nepali, Sikkimies, Lepacha,
Gurung, Limbu, Sherpa, Magar, Mukhia,
Newari, Rai, Tamang
Tamil Nadu Southern Chennai 26. Jan. 1950 Tamil, English
Telangana Southern Hyderabad 2. Jun. 2014 Telugu, Urdu
Tripura North-Eastern Agartala 21. Jan. 1972 Bengali, Kokborok, English
Uttar Pradesh Central Lucknow 26. Jan. 1950 Hindi, Urdu
Uttarakhand Central Dehradun 9. Nov. 2000 Hindi, Sanskrit
West Bengal Eastern Kolkata 1. Nov. 1956 Bengali, Hindi, Urdu, Gurumukhi, Nepali, Ol-
Chiki

29
 6 Citizenship

Citizenship: Concept Constitution.

The concept of citizenship is composed of three main At the commencement of this Constitution, every person
elements or dimensions. The first is citizenship as legal who has his domicile in the territory of India and—
status, defined by civil, political and social rights. Here, a. who was born in the territory of India; or
the citizen is the legal person free to act according b. either of whose parents was born in the territory of
to the law and having the right to claim the law’s India; or
protection. The second considers citizens specifically
c. Who has been ordinarily resident in the territory
as political agents, actively participating in a society’s
of India for not less than five years immediately
political institutions. The third refers to citizenship as
preceding such commencement, shall be a citizen
membership in a political community that furnishes a
of India.
distinct source of identity.
Power of Parliament to regulate the Rights of
Meaning of Citizenship
Citizenship by Law [Article 11]
Citizenship is a relationship between an individual and
r The Parliament has the right to make any provision
a state to which the individual owes allegiance and in
with regard to the acquisition and termination
turn is entitled to its protection. Citizenship implies the
of citizenship and any other matter relating to
status of freedom with accompanying responsibilities.
citizenship.
Citizens have certain rights, duties, and responsibilities
r Parliament, in exercise of the power given to it under
that are denied or only partially extended to aliens and
Article 11 of the Constitution has passed the Indian
other noncitizens residing in a country. In general, full
Citizenship Act, 1955. This Act provides for the
political rights, including the right to vote and to hold
acquisition and termination of Citizenship in India.
public office, are predicated upon citizenship. The usual
The Indian legislation has enacted the Citizenship
responsibilities of citizenship are allegiance, taxation,
(Amendment) Acts of 1986, 1992, 2003, 2005, 2015
and military service.
and 2019. Hence provisions made in the Citizenship
Constitutional provisions for Citizenship Act of 1955 must be read together with Part II of
PART II the Constitution in order to get a comprehensive
ARTICLES picture of the Law of Citizenship.
Article 5: Citizenship at the commencement of the
Acquisition of Indian Citizenship
Constitution. Parliament, in exercise of the power given to it under
Article 6: Rights of citizenship of certain persons Article 11 of the Constitution, has passed the Citizenship
who have migrated to India from Pakistan. Act, 1955, making provisions for the acquisition and
Article 7: Rights of citizenship of certain migrants termination of citizenship after the commencement of
to Pakistan. the Constitution. The Act provides for the acquisition
Article 8: Rights of citizenship of certain persons of of India citizenship after the commencement of the
Indian origin (PIO) residing outside India. Constitution in five ways, i.e., birth, descent, registration,
Article 9: Persons voluntarily acquiring citizenship naturalization and incorporation of territory.
of a foreign State not to be citizens. By birth:
Article 10: Continuance of the rights of citizenship. 1. A person born in India on or after 26th January
Article 11: Parliament to regulate the right of 1950 but before 1st July, 1987 is citizen of India by
citizenship by law. birth irrespective of the nationality of his parents.
Article 5: Citizenship at the commencement of the (Jus Soli).

30
2. A person born in India on or after 1st July, 1987 but r A person of Indian origin who has been a resident of
before 3rd December, 2004 is considered citizen of India for 7 years before applying for registration.
India by birth if either of his parents is a citizen of r A person of Indian origin who is a resident of any
India at the time of his birth. country outside undivided India.
3. A person born in India on or after 3rd December, r A person who is married to an Indian citizen and is
2004 is considered citizen of India by birth if both ordinarily resident for 7 years before applying for
the parents are citizens of India or one of the registration.
parents is a citizen of India and the other is not an r Minor children of persons who are citizens of India.
illegal migrant at the time of his birth. By naturalization:
a. An "illegal migrant" as defined in section 2(1) Citizenship of India by naturalization can be acquired
by a foreigner (not illegal migrant) who is ordinarily
(b) of the Act is a foreigner who entered India:
resident in India for twelve years (throughout the period
- Without a valid passport or other of twelve months immediately preceding the date of
prescribed travel documents: or application and for eleven years in the aggregate in the
- With a valid passport or other prescribed fourteen years preceding the twelve months) and other
travel documents but remains in India qualifications as specified in Third Schedule to the Act.
beyond the permitted period of time. By incorporation of territories: If any new
By descent: territory becomes a part of India, after a popular verdict,
r Broadly, a person born outside India on or after the Government of India shall specify the person of that
January 26, 1950, is a citizen of India by descent if territory to be the citizen of India.
his/her either of the parents is a citizen of India at r In India, there is single citizenship i.e., citizenship of
the time of that person's birth i.e. law of blood (Jus India.
Sanguine). r A citizen is an individual who enjoys all the rights
r A person born outside India on or after 3rd given by the law, available in the country.
December, 2004 shall not be a citizen of India, r Art. 11 says that the Parliament will regulate the
unless the parents declare that the minor does not right of citizenship by the Law.
hold passport of another country and his birth is Termination of Indian Citizenship
registered at an Indian consulate within one year The Citizenship Act, 1955, also lays down how the
of the date of birth or with the permission of the citizenship of India may be lost whether it was acquired
Central Government, after the expiry of the said under the Citizenship Act. 1955, or prior to it, under the
period. provisions of the Constitution. It may happen in any of
the three ways: (a) renunciation, or (b) termination, and
Citizenship of persons covered by the Assam Accord
(c) deprivation.
(1985):
Renunciation: It is a voluntary act by which a
As per this accord -
person, after acquiring the citizenship of another
r All those foreigners who had entered Assam
country, gives up his Indian citizenship. This provision is
between 1951 and 1961 were to be given full subject to certain conditions.
citizenship including the right to vote.
Termination: It takes place by operation of /when
r Those migrants those who had done so after 1971 an Indian citizen voluntarily acquires the citizenship of
were to be deported. another country. He automatically ceases to be an Indian
r Those who entered between 1961 and 1971 were citizen.
to be denied voting rights for ten years but would Deprivation: Deprivation is a compulsory
enjoy all other rights of citizenship. termination of citizenship of India. A citizen of India by
By registration: naturalization, or registration, may be deprived of his
Citizenship can also be acquired by registration with citizenship by an order of the Central Government if it
fulfil some condition,which is given below:

31
is satisfied that: adulthood, he/she loses the Indian citizenship.
r The citizen has obtained the citizenship by means r The reason for the denial of dual citizenship is that
of fraud, false representation or concealment of any citizenship entails certain duties like serving in the
material fact; army, if the need be.
r The citizen has shown disloyalty to the Constitution One Citizenship in India
of India; Our Constitution, though federal, provides for one
r The citizen has unlawfully traded or communicated citizenship only, namely, the citizenship of India. There
with the enemy during a war; is no separate citizenship for States. In some federal
r The citizen has, within five years after registration countries like the USA and Switzerland, there is dual
or neutralization, been imprisoned in any country citizenship, namely federal/national citizenship and
for two years; citizenship of the State where a person is born or
r The citizen has been ordinarily resident out of India permanently resides, and there are distinct rights and
for seven years continuously. obligations flowing from the two kinds of citizenship. In
India, however, the civic and political rights which are
Rights not available to Aliens
conferred by the Constitution upon the citizens of India
1. Right not to be discriminated against on grounds of
can be equally claimed by any citizen of India irrespective
race, caste, religion, sex or place of birth (Art 15)
of his birth and residence in any part of India.
2. Right to equality of opportunity in public
Permanent residence within a State may, however,
employment (Art 16)
confer certain advantages in two situations:
3. Right to six fundamental freedoms under Art 19
r Although in cases of employment under the Union,
4. Right to vote
there shall be no qualification for residence within
5. Cultural and educational rights conferred by Arts a particular territory, Union Parliament, under
29 & 30 Article 16(3) of the Constitution, is empowered
6. Rights to hold certain offices—President, Vice- to lay down such qualification with regard to any
President, Governor of States, Judges of Supreme particular class or classes of employment under
Court or High Courts, Attorney General of India, a State or a Union Territory: this is done basically
Comptroller and Auditor General, etc. for the sake of efficiency, insofar as it depends on
7. Right to contest election and get elected to either familiarity with local conditions.
House at the Centre or State. r Moreover, it is the Union Parliament which is the
Dual Citizenship sole authority to legislate in this matter and that
r The Indian Constitution, under Article 11, gives State Legislature shall have no voice.
power to the Indian Parliament to legislate on As Article 15(1), which prohibits discrimination
citizenship matters. Accordingly, Parliament on grounds only of race, religion, caste, sex or place
enacted the Citizenship Act in 1955. Article 9 of birth, does not mention 'residence', it is, therefore,
says that citizenship means full citizenship. The constitutionally permissible for a State to confer
Constitution does not recognize divided allegiance. special benefits upon its residents in [natters other
Section 10 of the Citizenship Act says that a person than those in respect of which rights are conferred by
cannot have allegiance to the Indian Constitution as the Constitution upon all citizens of India. In Joshi vs.
well as to the Constitution of another country. The State of Bombay (1955), Supreme Court has held that
Indian Courts have consistently ruled against dual since discrimination on grounds of residence is not
citizenship. prohibited by Article 15, it is permissible for a State to
r If an Indian citizen acquires citizenship of another offer a concession to its residents in the matter of fees
country, he loses the Indian citizenship. For example, for admission in its State Medical Colleges
if a child of parents, who are citizens of India, is NRI
born in another country and does not renounce An NRI is an Indian citizen who does not reside
the citizenship of that country on attainment of

32
within India for more than 120 days a year. Till the end deleting Fourth Schedule of the Citizenship Act,
of FY 2019-20 (i.e. financial year ended March 31, 2020), 1955.
NRIs (covers Indian citizens and Persons of Indian r The Constitution of India does not allow
Origin) included those individuals who being outside holding Indian citizenship and citizenship of a
India visited India for less than 182 days in a financial foreign country simultaneously. Based on the
year. The Finance Act 2020 reduced this period to 120 recommendation of the High-Level committee on
days in cases where the total taxable Indian income (i.e., Indian Diaspora, the Government of India decided to
income accruing in India) of such visiting individuals grant Overseas Citizenship of India (OCI) commonly
during the financial year is more than Rs 15 lakh. known as 'Dual Citizenship'.
An Indian Citizen who stays abroad for employment/ r A foreign national, who was eligible to become
carrying on business or vocation outside India or stays citizen of India on 26.01.1950 or was a citizen of
abroad under circumstances indicating an intention for India on or at any time after 26.01.1950 or belonged
an uncertain duration of stay abroad is a non-resident. to a territory that became part of India after
(Persons posted in U.N. Organizations and Officials 15.08.1947 and his/her children and grandchildren,
deputed abroad by Central/State Governments and provided his/her country of citizenship allows dual
Public Sector undertakings on temporary assignments
citizenship in some form or other under the local
are also treated as non-residents). Non - Resident
laws, is eligible for registration as Overseas Citizen
foreign citizens of Indian Origin are treated on par with
of India (OCI). Minor children of such person are
non-resident Indian Citizens (NRIs) for the purpose of
also eligible for OCI.
certain facilities.
r However, if the applicant had ever been a citizen of
Main categories of NRIs
Pakistan or Bangladesh, he/she will not be eligible
The following are the main three categories of NRIs: -
for OCI.
i. Indian citizens who stay abroad for employment or
r Persons registered as OCI have not been given
for carrying on a business or Vocation or any other
any voting rights, election to Lok Sabha/Rajya
purpose in circumstances indicating an indefinite
Sabha/Legislative Assembly/Council, holding
period of stay abroad. Constitutional posts such as President, Vice
ii. Indian citizens working abroad on assignment President, and Judge of Supreme Court/High Court
with foreign government agencies like United etc.
Nations Organization (UNO), including its affiliates, r Registered OCIs shall be entitled to following
International Monetary Fund (IMF), World Bank benefits:
etc. i. A person registered as OCI iseligible to apply
iii. Officials of Central and State Government and Public for grant of Indian citizenshipunder section
Sector undertaking deputed abroad on temporary 5(1) (g) of the Citizenship Act, 1955 if he/she
assignments or posted to their offices, including is registered as OCI for five years and has been
Indian diplomat missions, abroad. residing in India for one year out of the five
Overseas Citizenship of India (OCI) years before making the application.
r The Prime Minister of India in the Pravasi Bhartiya ii. The fee for application for registration as OCI
Divas, 2005 made a statement to extend the facility is US $ 275 or equivalent in local currency for
of Overseas Citizenship of India (OCI) to Persons of each applicant.
Indian origin (PIOs). iii. As per the provisions of section 5(1) (g) of the
Citizenship Act, 1955, a person who is registered
r In order to implement the PM's statement,
as OCI for 5 years and is residing in India for 1
Citizenship (Amendment) Ordinance, 2005 was
year out of the above 5 years, is eligible to apply
promulgated on 28th June 2005, which later became
for Indian Citizenship.
an Amendment Act. This Citizenship (Amendment)
PIO and OCI merger:
Act 2005 amends the Citizenship Act, 1955 by
r The PIO and OCI schemes were merged to maximize

33
 benefits and reduce immigration procedures for r North-east India has already suffered a lot due to the
non-resident Indians (NRIs) visiting India. The PIO problem of illegal migrants. The natives of North-
card was valid for travel, work, and residence in east India are against any move to allow citizenship
India for a period of 15 years. to illegal migrants - irrespective of their religion.
r The OCI card was implemented in 2005, carried The stand of the Government regarding CAA
more expansive benefits than the PIO card, and r The Central government is of the opinion that the
was valid for the holder’s lifetime.As a result of act is not discriminatory against Muslims. As the
the merger, former Indian citizens receive benefits Citizenship Amendment Act has not amended
from both PIO and OCI card schemes. the original provisions, any foreigner, including a
r Current PIO cardholders now receive greater work, Muslim, can still apply for Indian citizenship under
residence, andpolitical benefits andare no longer the normal process of naturalization. However, it
required to undergo registration protocols through may take 11 or more years to get Citizenship in this
Foreigner Regional Registration Offices (FRROs). route.
r The strong advocate of the Citizenship Amendment
Citizenship Amendment Act 2019 Act (CAA) 2019, Amit Shah, Home Minister of India,
What is Citizenship Amendment Act or CAA? connected the 2-nation theory which led to the
The Citizenship Amendment Act (CAA) is introduced division of India with the new act. As per him, as
by the Central Government in the Parliament of India in the two nations - India and Pakistan - are created on
2019 to primarily amend the Citizenship Act of 1955. the basis of religion, CAA turned a necessity now.
Purpose of the Citizenship Amendment Act (CAA) r Home Minister also cited the Nehru-Liaquat
2019 pact. As per him, Nehru-Liaquat pact failed to
r The main purpose of the act is to make certain achieve its objectives in protecting minorities in
religious communities of illegal migrants or Pakistan and Bangladesh. Pakistan, Bangladesh
refugees eligible for Indian citizenship - in a fast- and Afghanistan have declared Islam as their State
track manner. Religion. However, there are religious persecutions
r The Act, among other things, seeks to grant of minorities in these countries. Home Minister
citizenship to Hindus, Sikhs, Jains, Parsis, Buddhists pointed out the declining minority population in
and Christians who migrated to India till the end of the three neighbouring countries.
2014 from countries like Pakistan, Bangladesh and r The CAA legislation, as per the Union Government,
Afghanistan, due to reasons like persecutions. will give bring a new light into the lives of the
What makes the Citizenship Amendment Act people who were facing religious persecution in
Controversial? neighbouring countries.
r The Citizenship (Amendment) Act 2019, in effect, r As per the government, the act does not violate any
seeks to give Indian nationality only to the non-
provisions of the Constitution including Article 14.
Muslim refugees from Pakistan, Bangladesh and
Three flaws in the logic of the Central Government
Afghanistan.
r Even though Jinnah proposed 2-nation theory in
r Six religious’ communities- Hindus, Sikhs, Buddhists,
the 1940s, the result was never a Muslim Pakistan
Jains, Parsis and Christians- are considered eligible
and a Hindu India. While one nation (Pakistan) was
for Indian citizenship if they entered India on or
created on the basis of religion, the other nation
before 31 December 2014, but not Muslims.
was created on the basis of secular ideology (India).
r The countries from which minorities are allowed
r Secular India, citizenship was granted to members
include Afghanistan, Bangladesh and Pakistan, but
of all regions including Islam.
not Myanmar or Sri Lanka.
r Citizenship is granted by relaxing the requirement of r Only Pakistan and Bangladesh were part of Pre-
residence in India for citizenship by naturalization Partition India, Afghanistan was not even if the
from 11 years to 5 years for these migrants. government take moral responsibility to protect

34
 the minorities affected by the 2-nation theory, that protected from CAA. Additionally, the state has
logic is not applicable in the case of Afghanistan. three ADCs that are also protected under the Sixth
r If the intention of the CAA is to protect all minorities Schedule.
facing persecution in the neighbouring countries- r Manipur: Entire state gets new ILP protection. The
the act turns a blind eye on the minorities in state was not protected under either option, but
Myanmar (Rohingya Muslims) and Sri Lanka following the introduction of CAA in Parliament, the
(Tamils). government has introduced ILP in Manipur too.
r Thus clearly, the act is highly selective. CAA is Concerns of the North East Region of India
intended to select some communities and omit r Northeast people are immensely worried about
others. the possible demographic changes the Citizenship
Exclusions from the applicability of CAA: (Amendment) Act could cause in the region. The
r It shall not apply to tribal areas of Assam, Meghalaya, north east region has long battled migration from
Mizoram and Tripura (the sixth schedule of the Bangladesh.
Constitution). These tribal areas include Karbi The natives of North-east are fiercely opposed to
Anglong (in Assam), Garo Hills (in Meghalaya), any 'outsider' settling in. Protests have already broken
Chakma District (in Mizoram), and Tripura Tribal out over the fears that the Citizenship (Amendment) Act
Areas District. could end up destroying the culture and ethnicity of the
r Areas covered in the States of Arunachal Pradesh, region.
Mizoram and Nagaland that are protected by the Overseas Citizen of India (OCI) and CAA
Inner Line Permit (ILP) (notified under the Bengal r The Act also proposes to incorporate a sub-section
Eastern FrontierRegulation, 1873.) have also been (d) to Section 7, providing for cancellation of
excluded. Overseas Citizen of India (OCI) registration where
State by State Report: the OCI card-holder has violated any provision of
r Assam: The state has three Autonomous District the Citizenship Act or any other law in force.
Councils, two of which are geographically Conclusion
contiguous. While these are protected, CAA will be r The chief opposition to the Citizenship (Amendment)
in effect in a larger area. Act is that it discriminates on the basis of religion
r Meghalaya: This state too has three ADCs. Unlike by identifying only non-Muslims refugees as those
in Assam, the ADCs in Meghalaya cover almost the who would be eligible for Indian citizenship.
entire state. Only a small part of Shillong is not r While any foreigner can still apply for Indian
covered. CAA will be effective in that part of Shillong citizenship, he/she has to follow the normal process
while the rest of the state is protected. of naturalization - which takes 11 or more years.
r Tripura: One ADC covers around 70% of the state's r The CAA is seen by many as a quick move to change
area. However, the remaining 30% holds about the demographics and voters-profile in favour of
two-thirds of the population. CAA is effective in the the ruling party by selective admission of illegal
smaller, more densely populated regions. migrants.
r Arunachal Pradesh: Entire state covered under ILP r As per the critics, Citizenship (Amendment) act
regime, protected from CAA. violates Article 14 of the Indian Constitution - the
r Nagaland: Entire state covered under ILP regime, fundamental right which guarantees equality to
protected from CAA. So far, only Dimapur used to all persons. This is part of the basic structure of
be outside the regime. Now, Inner Line Permit (ILP) Constitution and hence cannot be reshaped by any
has been extended to Dimapur, too, so the whole Parliament laws.
state is now exempt. r It is yet to be seen if the Supreme Court allows the
r Mizoram: Entire state covered under ILP regime, selective fast- tracking for Indian Citizenship. The
apex court has power even to declare the bill as

35
 unconstitutional. it difficult to procure Indian identity documents.
r The policy towards illegal migrants and refugees Thus, cases of vote for money through fake identities
needs wider debates and deliberation. However, will reduce as persons whose names are not in list
religion can never be the basis of Indian Citizenship. will lose voting rights. Thus, it will strengthen our
National Register for Citizens (NRC) electoral process.
r NRC is a verified digital register having names and Issues related to National Register of Citizens being
basic demographic information about all Indian implemented at national level:
citizens in a digital format. 1. Law and order problem: the implementation of
r The names of all persons born in India or having NRC may lead to serious law and order problem in
Indian parentage or having resided in India for at India and also in neighbouring states.
least 11 years, will be mentioned as Indian Citizens 2. Loss of Right to Vote: Right to vote is a constitutional
in the National Register for Citizens right. People excluded from NRC would be barred
from voting. Thus, loosing right to vote.
Citizenship Amendment Act (CAA) vs National Register
for Citizens (NRC) 3. Fake Cases: There have been several cases of
r CAA is applicable for illegal migrants residing people having made fake official identity cards
in India and that not apply to any Indian citizen. such as Aadhaar, PAN card, ration card and even
NRC consists of a record of citizens of India only voter's identity card. This will legalise their illegal
excluding others. migration.
4. Loss of Properties: The left out whose names are
r NRC is not based on religion, while CAA is.
not in the list will not be able to buy land or a house
r The base-year of NRC is 1971 (in the case of Assam),
in the country. It will increase selling of benami
while the base-year of CAA is 2014.
properties especially by those who lose their
Benefit of NRC being implemented at national level: citizenship.
1. Ensure People's Right: A national NRC will clear
5. Judicial burden will increase: Since such
actual number of illegal migrants in Assam. It will 'non citizens' will go to judiciary for relief to
prevent further illegal migration that will ensure substantiate their citizenship claim. Thus, it will
rights of Indian citizens in a better way. lead to overburdening of judiciary which is already
2. Better policy measures and implementation: overburdened.
It will provide a verified database to implement NRC exercise makes sense in Assam because in 1971
targeted policies and calibrated policy measures for around 10 million people crossed over from Bangladesh
benefits of Indian citizen’s especially tribal people. to India and that caught the attention of authorities.
This will weed out fake beneficiaries. However, there is no need to get into this kind of
3. Enhance internal security: It will enhance internal exercise at national level, as it can lead to unintended
security of the nation by keeping a check on illegal consequences.
migration. Illegal migration led to terrorist threat, National Population Register (NPR)
counterfeit money etc. endangering security of our The National Population Register (NPR) is a
nation. comprehensive identity database maintained by the
4. Prevent future illegal migration: Publication of an Registrar General and Census Commissioner of India
NRC at national level would deter future migrants under Ministry of Home Affairs.
illegally. The publication of the draft NRC has r It is a Register of "usual residents of the country"
already created a perception that staying in Assam and will be prepared at the local, sub-district,
without valid documentation will attract detention/ district, state and national level.
jail term and deportation. r The NPR is being prepared under provisions
5. Will reduce fake voting: Illegal migrants will find of the Citizenship Act 1955 and the Citizenship

36
 (Registration of Citizens and issue of National (RGI) under the Home Ministry for Census 2021.
Identity Cards) Rules, 2003. It is mandatory for Only Assam will not be included, given the recently
every "usual resident of India" to register in the completed NRC.
NPR. Objectives & Benefits of the massive exercise of NPR
r As per section 14A of Citizenship Act 1955, it is r The objective of the NPR is to create a comprehensive
compulsory for every citizen of the country to identity database of every usual resident in the
register in the National Register of Indian Citizens country and to help in better utilization and
(NRIC). The creation of NPR is the first step towards implementation of the benefits and services under
preparations of NRIC. the government schemes, improve planning and
security in the country. The database would contain
demographic as well as biometric particulars.
r According to the Ministry of Home Affairs, "usual
resident of the country" is one who has been r It will provide solution to multifarious problems
residing in a local area for at least the last 6 months facing the country that range from effective
maintenance of law and order to efficient
or intends to stay in a particular location for the
implantation of welfare schemes like MGNREGS,
next six months.
food security and nutrition campaigns etc.
Citizens & Foreigners: Unlike the NRC, the National
r Updating of NPR will help in tracking criminal
Population Register will not only include citizens but also
activities, and better planning and execution of
foreigners as it would record even a foreigner staying in
government schemes. The NPR links biometric and
a locality for more than six months. The NPR database
demographic details of any ordinary resident, thus
would contain demographic as well as biometric details.
making it a comprehensive database of residents.
Seeding with Aadhaar: The government also plans
to seed Aadhaar database with the updated NPR. This Connection between NPR & Aadhaar
updated NPR database along with Aadhaar Number will r Data collected in NPR will be sent to Unique
become the mother database and can be used by various Identification Authority of India (UIDAI) for de-
government departments for selection of beneficiaries duplication and issue of Aadhaar number.
under their respective schemes. m So, the NPR will contain three elements of data:
Backdrop to NPR 1. Demographic Data,
r The data for the NPR were first collected in 2010 2. Biometric Data, &
along with the house listing phase of Census 2011. In 3. Aadhaar - UID Number
2015, this data was further updated by conducting
r A person who has register under Aadhaar still has
a door-to-door survey. Earlier, the roll out of NPR
to register under NPR. In NPR, certain processes
had slowed down due to overlapping with that of
like the collection of data at the doorstep of the
Aadhaar.
individual by authorized persons, collection of
r NPR will again be conducted in conjunction with biometrics after following a certain process,
the house listing phase from 1st April 2020 till 30th
authentication through social audit, verification by
September 2020 - the first phase of the Census
authorities etc is mandatory.
2021 - by the Office of the Registrar General of India

37
 7 Fundamental Rights

Part-III of India’ Bill proposed in 1925 reiterated Tilak’s

Article 12 to Article 35 demands.
The concept of rights or human rights, originates from r It was the first time in 1928, when Congress officially
the voice of the protest against oppression perpetuated created a committee for the development of
by the dominant group in society. Rights are meant to constitutional provisions for India. This committee
safeguard the individual from the irresponsible and was headed by Motilal Nehru (Nehru Committee).
arbitrary use of power by the ruling class. The British r The report of this committee was accepted by the
rulers deprived Indians of their human rights, so we
Congress in Karachi session (1931). This committee
Indians, well acquainted with the misuse of state
includes the provisions of Fundamental rights like
machinery, decided to provide safeguards against the
universal adult suffrage, women’s rights, minorities
state.
rights and so on. Soon after the independence
The inclusion of the Chapter of Fundamental rights Fundamental rights was incorporated in the
in the constitution of India is in accordance with the constitution.
trend of modern democratic thought, the idea being
Rights
to preserve that which is an indispensable condition
There are six fundamental rights are available in our
of a free society. The aim of having a declaration of
constitution-
fundamental rights is that certain elementary rights,
such as right to life, liberty, freedom of speech, freedom 1. Right to Equality (Article 14 to 18)
of faith and so on, should be regarded as inviolable 2. Right to Freedom (Article 19 to 22)
under all conditions and that the shifting majority in 3. Right against Exploitation (Article 23 to 24)
Legislature of the country should not have a free hand in 4. Freedom of Religion (Article 25 to 28)
interfering with these fundamental rights. 5. Cultural and Educational rights (Article 29 to 30)
Why these rights are called fundamental? 6. Right to constitutional remedies (Article 32)
These rights are regarded as fundamental because they
Article
are most essential for the attainment by the individual Sr.No. Subject
Number
or his full intellectual, moral and spiritual status under
1 Art 12 Definition of state.
all conditions. The negation of these rights will keep the
Art 13 Laws inconsistent with
moral and spiritual life stunted and his potentialities 2 or in derogation of the
underdeveloped. fundamental rights.
Sources of Inspiration for Fundamental Rights Art 14 Equality before law.
r The development of such constitutionally Art 15 Prohibition of discrimination
guaranteed fundamental rights in India was on grounds of religion, race,
3 caste,sex or place of birth.
inspired by the Bill of Rights of the USA.
Art 16 Equality of opportunity
r The first demand for fundamental rights came in Right to
in matters of public
the form of the “Constitution of India Bill, in 1895. Equality
employment.
In 1895, Bal Gangadhar Tilak presented the ‘Swaraj Art 17 Abolition of untouchability.
Bill’ to the British government. The bill asked for Art. 18 Abolition of titles.
the right to freedom of thought and expression and
equality under law. Annie Besant’s ‘Commonwealth

38
 Protection of certain
r Fundamental Rights are negative in nature that
Art 19 rights regarding freedom means they impose limitation on the government.
of speech, etc. r Fundamental rights are justiciable in nature.
Protection in respect of
4 Art. 20
conviction for offences.
r Fundamental rights are defended and guaranteed
by the Supreme Court. Hence, the aggrieved person
Right to Protection of life and
Art 21 can directly go to the Supreme Court, not necessarily
Freedom personal liberty.
Art 21 A Right to Education. by way of appeal against the judgement of the high
Protection against arrest and courts.
Art 22
detention in certain cases. r Fundamental rights are not permanent. They can be
Prohibition of traffic suspended by the Parliament during the operation
5 Art 23 in human beings and
of the National Emergency except the rights
forced labour.
Right Against guaranteed by Article 20 and 21.
Exploitation Prohibition of children
Art. 24
in factories etc. r Parliament can amend the provision of the
Freedom of conscience and Fundamental Rights by the way of a constitutional
Art. 25 free profession, practice amendment but it should not violate the basic
andpropagation of religion.
structure of the constitution (Keshavananda Bharti
Freedom to manage
Art. 26
religious affairs.
Case).
6.
Freedom as to payment Importance of the fundamental rights
Freedom of Art. 27 of taxes for promotion of Fundamental Rights are individual rights and without
Religion any particularreligion. them democracy is meaningless. The purpose of the
Freedom as to attendance rights is to impose restrictions on the State and establish
at religious instruction or
Art. 28
religiousworship in certain
a 'limited government'. Because ultimately human uses
educational institutions. the power of the state in the name of the government. An
7 Protection of interests individual cannot function freely without Fundamental
Art. 29
of minorities. Rights.
Cultural and Right of minorities to
Educational
In the historic judgement of Maneka Gandhi v. Union
Art. 30 establish and administer
rights educationalInstitutions. of India (1978), Bhagwati J. (the then Supreme court
8 Art. 31 Right to Property (Repealed) judge) stated: “These fundamental rights represent the
9 Remedies for enforcement of
basic values enshrined by the people of this country
Right to rights conferred by this part. (India) since the Vedic times and they are calculated
Art. 32
constitutional to protect the dignity of the individual and created
remedies
conditions in which every human being can develop his
Features of the Fundamental Rights- personality to the fullest extent. They weave a ‘pattern
The Fundamental rights guaranteed by the constitution of guarantee’ on the basic structure of human rights, and
are characterised by following: impose negative obligations on the State not to encroach
r Some of the Fundamental Rights are available to on individual liberty in various dimensions”.
only citizens of India like Article 15, 16, 19, 29 and Article12: The State includes the Government
30 while rest of the articles are available for both and Parliament of India and the Government and the
citizens and aliens. Legislature of each of the States and all local or other
r Fundamental Rights are not absolute in nature that authorities within the territory of India or under the
means State can impose reasonable restrictions on control of the Government of India.
them if needed. Explanation:
r Fundamental Rights acts against the arbitrary Article 12 of the Indian Constitution deals with the
actions of State. That means, they provide the term of ‘State’ as enshrined in the Fundamental Rights
safeguard to the individuals. Chapter.

39
 It includes- Local authorities
r Legislative and Executive Organs of the Union 2. R.D Shetty v. Airport Authority of India – Five
Government: points were mentioned by Justice P.N. Bhagwati to
1. Union Government understand if the ‘body’ in news is instrumental to
2. Parliament of India – President, Lok Sabha, be called as the ‘State’ under Article 12 or not:
Rajya Sabha m The ‘Body’ can be called as ‘State’ if its entire
r Legislative and Executive organs of the State shared capital is held by the Government of
Government: India.
1. State Governments m Such other authorities have a governmental
2. State Legislature – Governor, Legislative functional character.
Assembly, Legislative Council of State m The absolute control of such authorities lies
r All local authorities with the government.
1. Municipalities – Municipal Corporations, Nagar m Such authorities which have an element of
Palika, Nagar Panchayats command or authority.
2. Panchayats – Zila Panchayats, Mandal m The authorities discharging public service.
Panchayats, Gram Panchayats Article 13: Laws inconsistent with or in derogation of
3. District Boards the Fundamental rights.
4. Improvement Trusts, etc. Article 13(1): All laws in force in the territory of
r Statutory and Non-Statutory Authorities India immediately before the commencement of this
m Statutory Authorities: Constitution, in so far as they are inconsistent with
1. National Human Rights Commission the provisions of this part, shall, to the extent of such
inconsistency, be void.
2. National Green Tribunal
Article 13(2): The State shall not make any law
3. National Consumer Disputes Redressal
Commission which takes away or abridges the rights conferred by
this Part and any law made in contravention of this
4. Armed Forces Tribunal
clause shall, to the extent of the contravention, be void.
m Non-Statutory Authorities
Article 13(3): (a) "law" includes any Ordinance,
1. Lokpal and Lokayukta
order, bye-law, rule, regulation, notification, custom or
2. CBI usage having in the territory of India the force of law;
The actions performed by any of these bodies can (b) "laws in force" includes laws passed or made by a
be challenged in the courts as a violation of Fundamental Legislature or other competent authority in the territory
Rights. of India before the commencement of this Constitution
Article 12 of the Indian Constitution & ‘Other and not previously repealed.
Authorities’ Article 13(4): Nothing in this article shall apply
The ‘Other Authorities’ mentioned under Article 12 to any amendment of this Constitution made under
means all such authorities that lie within the territory Article 368.Inserted by the Constitution (Twenty-fourth
of India and are controlled by the government of India Amendment) Act, 1971.
through its acts and amendments.
Explanation-
1. Ujjain Bai v. State of Uttar Pradesh (UP)– Supreme r Article 13 declares that all laws that are inconsistent
Court observed that Article 12 winds up the list of with or in derogation of any of the fundamental
authorities falling within the definition by referring rights shall be void. In other words, it expressively
to “other authorities” within the territory of India provides for the doctrine of judicial review.
which cannot be read as ‘of or as the same kind’
r This power has been conferred on the Supreme
with either the Government or the Legislature or

40
 Court (Article 32) and the High Courts (Article 4. After omitting the invalid part, if what remains
226) that can declare a law unconstitutional and is very thin and what emerges out is something
invalid on the ground of contravention of any of the different, the entire law is invalid.
Fundamental Rights. The term ‘law’ in Article 13 has been given a wide
r Article 13 declares that a constitutional connotation so as to include the following:
amendment is not a law and hence cannot be a) Permanent laws enacted by the Parliament or
challenged. However, the Supreme Court held the state legislatures;
in the Keshavananda Bharati case (1973) that a b) Temporary laws like ordinances issued by the
Constitutional amendment can be challenged on president or the state governors;
the ground that it violates a fundamental right
c) Statutory instruments in the nature of delegated
that forms a part of the ‘basic structure’ of the legislation (executive legislation) like order,
Constitution and hence, can be declared as void. bye-law, rule, regulation or notification; and
Doctrine of Eclipse d) Non-legislative sources of law, that is, custom or
r It is dealt under Article 13(1) of the Indian usage having the force of law.
Constitution.
Thus, not only a legislation but any of the above can
r The doctrine of eclipse means that an existing be challenged in the courts as violating a Fundamental
law that is inconsistent with a fundamental right, Right and hence, can be declared as void.
although it becomes inoperative from the date of Article 14: Equality before law. The State shall
the constitution’s beginning, is not entirely dead. By not deny to any person equality before the law or
amending the constitution’s relevant fundamental the equal protection of the laws within the territory
rights, the conflict can be eliminated so that the of India Prohibition of discrimination on grounds of
eclipse vanishes and the entire law becomes valid. religion, race, caste, sex or place of birth.
The first case in which this doctrine was applied Explanation:
was Bhikaji vs State of Madhya Pradesh. Article 14 states that The State shall not deny to any
Rule of Severability person equality before the law or the equal protection of
r According to Art. 13(1) and 13 (2), any part of a the laws within the territory of India.
'law' which is inconsistent with the provisions of It has two connotations of equality i.e.
Part III of the Constitution shall be declared void to I. Equality before Law
the extent of such inconsistency.
II. Equal protection of Law
r The doctrine of severability lays down that, if the
Equality before law
valid sections of a law can be severed from the void
r This concept is adopted from the British
sections, and if such valid sections can be considered
Constitution.
to form an independent statute, these sections will
remain valid. r Equality before law is a negative concept.

r The Supreme Court summarises the rules relating r It means 'no man is above law and every person,
to doctrine of severability as follows: whatever is his/ her social status, is subject to the
jurisdiction of the courts.
1. The intention of the legislature is a factor-
whether the legislature enacted that law Equal Protection of law
knowing well that the rest of the statute is r This concept is adopted from the US Constitution.
invalid- to determine whether valid parts are r It only means that all persons in similar conditions/
separable or not. circumstances shall be treated alike.
2. If valid & invalid are so inextricably mixed up, The right is extended to all persons whether citizens
the whole law is declared void. or foreigners, statutory corporations, companies,
3. If valid and invalid form part of a single scheme, registered societies or any other type of legal person.
the whole law is declared invalid. Exceptions of Article 14

41
There are certain provisions in the Constitution which, with the provisions of the Constitution.
under certain circumstances, limit the effectiveness of Right to Equality is a Basic Structure of the Constitution
Article 14. r In M. Nagaraj Vs Union of India (2007) case, the
r Article 361 lays down that the President and Supreme Court held that Right to Equality under
the Governors are exempted from any criminal Article 14 form part of the 'Basic Structure' of the
proceedings during the tenure of their offices. Constitution.
r The scope of the Right to Equality under Article r The Supreme Court opined that "equality is the
14 has been considerably restricted by the 42nd essence of democracy"and accordingly, it is a basic
Amendment Act, 1976. The new Article 31-C added feature of the Constitution.
by the Amendment Act provides that laws made by r If Article 14 is withdrawn, the political pressure
the State for implementing the Directive Principles exercised by numerically large groups can tear the
contained in clause (b) or clause (c) of Article 39 country apart by leading the legislature to pick and
cannot be challenged on the ground that they are choose favoured areas and favourite classes for
violative of Article 14. Such laws will be exceptions preferential treatment.
to Article 14 of the Constitution.
Article 15: Prohibition of discrimination on
r Under the International Law, foreign sovereign, grounds of Religion, Race, Caste, Sex or Place of birth
ambassadors and diplomats, enjoy full immunity
Article 15(1): The State shall not discriminate
from any judicial process.
against any citizen on grounds only of religion, race,
r Article 359 (1) provides that where a Proclamation
caste, sex, place of birth or any of them.
of Emergency is in operation, the President may, by
Article 15(2): No citizen shall, on grounds only of
order, declare that the right to move to any Court for
religion, race, caste, sex place of birth or any of them,
the enforcement of such rights conferred by Part III
be subject to any disability, restriction or condition
(except Articles 20 and 21) shall remain suspended.
with regard to- Access to shops, public restaurants,
Thus, if the President of India issues an order,
hotels and places of public entertainment; or the use of
where a Proclamation of Emergency is in operation,
wells, tanks, bathing ghats, roads and places of public
enforcement of Art. 14 may be suspended for the
resort maintained wholly or partly out of State funds or
period during which the Proclamation is in force.
dedicated to the use of the general public.
Rule of Law
Article 15(3): Nothing in this article shall prevent
r The guarantee of Equality before Law is an aspect
the State from making any special provision for women
of, what Lord Dicey calls, the 'Rule of Law' that and children.
originated in England.
Article 15(4): Nothing in this article or in clause
r It means no man is above law and that every person, (2) of article 29 shall prevent the State from making any
whatever be his rank or status is subject to the special provision for the advancement of any socially
jurisdiction of ordinary Courts. and educationally backward classes of citizens or for the
r Also, it says that no person shall be subject to harsh, Scheduled Castes and the Scheduled Tribes.
uncivilized or discriminatory treatment even for Article 15(5): Nothing in this article or in sub-
the sake of maintaining law and order. clause (g) of clause (1) of article 19 shall prevent the
There are three basic meanings of 'Rule of Law' State from making any special provision, by law, for
r Absence of arbitrary power or supremacy of law- the advancement of any socially and educationally
"a man can be punished for a breach of law but he backward classes of citizens or for the Scheduled
cannot be punished for anything else". Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational
r Equality before law-no one is above law.
institutions including private educational institutions,
r The Constitution is the Supreme law of the land and whether aided or unaided by the State, other than the
all laws passed by the legislature must be consistent minority educational institutions referred to in clause

42
(1) of Article 30. but it has directed the central government to
Explanation: exclude the Creamy Layer' among the OBCs while
r Article 15 provides that the State shall not implementing the law.
discriminate against any citizen on grounds only of r The court said that the 93rd Amendment Act does
religion, race, caste, sex or place of birth. The two not violate the basic structure of the Constitution so
crucial words in this provision are ‘discrimination’ far as it relates to State maintained institutions and
and ‘only’. aided educational institutions. Article 15(5) of the
Constitution is constitutionally valid and Articles
r The word 'only' indicates that the discrimination
15(4) and 15(5) are not mutually contradictory.
cannot be made merely on the ground that one
belongs to a particular caste, religion, race etc. It r It agreed with the decision to exclude the minority
can be made on other grounds. institutions from Article 15(5). It does not violate
Article 14 as minority educational institutions are
r Article 15 does not provide the safeguards against
a separate class and their rights are protected by
foreigners. It is available to the ‘citizens’ only.
other constitutional provisions.
r The third clause empowers the State to make
r However, the court directed that a review of the
special provisions for the protection of women and
lists of backward classes be made after five years.
children.
Creamy Layer
r The fourth clause which was added by the 1st
The children of the following different categories of
Constitutional Amendment Act 1951 enables the
people belong to ‘creamy layer’ among OBCs and thus
State to make special provisions for the protection
will not get the quota benefit:
of the interests of the Backward Classes and is,
r Persons holding constitutional posts like President,
therefore, an exception to Article 15 and 29(2) of
Vice-President, Judges of SC and HCs, Chairman and
the Constitution.
Members of UPSC and SPSCs, CEC, CAG and so on.
What is the limit of Quotas?
r Group ‘A’ / Class I and Group ‘B’ / Class II Officers
r According to the Supreme Court, under Art 15 (4),
of the All India, Central and State Services; and
state can make special and not exclusive provisions
Employees holding equivalent posts in PSUs, Banks,
for backward classes. The state should not be
Insurance Organisations, Universities etc., and also
justified if advancement of communities is ignored
in private employment.
altogether. National interest would suffer if qualified
and competent people are ignored. r Persons who are in the rank of colonel and above in
the Army and equivalent posts in the Navy, the Air
93rd Amendment Act
The 93rd amendment to the Constitution came in 2006. Force and the Paramilitary Forces.
It added a clause in Article 15 of the Constitution in the r Professionals like doctors, lawyers, engineers,
form of Article 15(5). artists, authors, consultants and so on.
r The 5th clause of Article 15 empowers the centre r Persons engaged in trade, business and industry.
and the states to provide for quota to the candidates r People holding agricultural land above a certain
of other backward classes (OBCs) in the higher limit and vacant land or buildings in urban areas.
educational institutions. r Persons having gross annual income of more than 8
r Pursuant to the 93rd amendment, central lakh or possessing wealth above the exemption or
government in 2006 made Central Institutions possessing wealth above the exemption Limit.
(Quota in Admission) Act 2006 to provide quota Article 16: Equality of opportunity in matters of
to the OBC candidates in the central institutions publicemployment
including AIIMS and IITs. Article 16 (1): There shall be equality of opportunity
Latest judgement on 93rd Amendment for all citizens in matters relating to employment or
r The Supreme Court on April 10, 2008 upheld the appointment to any office under the State
constitutionality of the Central Institutions (quota Article 16 (2): No citizen shall, on grounds only of
in admission) Act 2006 and the 93rd amendment religion, race, caste, sex, descent, place of birth, residence

43
or any of them, be ineligible for, or discriminated against schemes of reservation.
in respect or, any employment or office under the State Judgement:
Exceptions: Apex Court struck down the second provision and
Article 16 (3): Nothing in this article shall prevent rejected the 10% reservation for economically backward
Parliament from making any law prescribing, in regard classes among higher. Following are the highlights of the
to a class or classes of employment or appointment judgement:
to an office under the Government of, or any local or
1. Creamy layer must be excluded from the backward
other authority within, a State or Union territory, any
classes.
requirement as to residence within that State or Union
territory prior to such employment or appointment 2. Article 16(4) grants characterization of backward
classes into backward & more backward classes.
Article 16 (4): Nothing in this article shall prevent
the State from making any provision for the reservation 3. A backward class of citizen can't be distinguished
of appointments or posts in favour of any backward just and solely with reference to financial criteria.
class of citizens which, in the opinion of the State, is not 4. Reservation should not exceed 50% limit.
adequately represented in the services under the State 5. Reservation can be made by the Executive Order.
Article 16 (5): Nothing in this article shall affect the
6. No reservation in promotion.
operation of any law which provides that the incumbent
of an office in connection with the affairs of any religious 7. Permanent Statutory body to examine complaints
or denominational institution or any member of the of over – inclusion /under – inclusion.
governing body thereof shall be a person professing 8. Disputes with respect to new criteria can only be
a particular religion or belonging to a particular raised in the Supreme Court.
denomination. The 76th Amendment Act of 1994 has placed the
Mandal Commission and Indra Sawhney Case Tamil Nadu Quotas Act of 1994 in the Ninth Schedule to
Background protect it from judicial review as it provided for 69 per
r On January 1, 1979, the Government headed by cent of quota, far exceeding the 50 per cent ceiling.
the Prime Minister Morarji Desai constituted the
103rd Constitutional Amendment Act
second Backward Classes commission under Article
The 103rd Constitutional Amendment Act provided 10
340 of the Constitution to research the SEBCs inside
per cent quota in government jobs and education to
the region of India and recommend measures to be
economically backward section in the general category.
taken for their progressions.
Economic quota in jobs and education is proposed to be
r The commission submitted its report in December
provided by inserting clause (6) in Articles 15 and 16 of
1980 and recognized 3743 castes as socially and
the Constitution
instructively in backward classes and recommended
a reservation of 27 % in Government employments. SR Sinho Commission (2006) on Economically
r Due to change in government the findings of the Backward Classes
report were not implemented. r The quotas in government jobs and education
r In 1990, then Prime Minister P.V. Narasimha Rao should be given to general category poor and a
declared reservation of 27% government jobs constitutional amendment is necessary with this
for the OBCs. Again in 1991, the Narasimha Rao respect. The commission highlighted that non-
Government introduced two changes: income tax payee general category people were
(a) preference to the poorer sections among the economically backward, at par with the OBCs, they
OBCs in the 27% quota, i.e., adoption of the should be treated like the latter.
economic criteria in granting reservation, and r EBC children should be made eligible for soft
(b) reservation of another 10% of jobs for poorer loans for higher education, scholarships, coaching
(economically backward) sections of higher for central and state civil services examinations,
castes who are not covered by any existing subsidized health facilities and government support

44
 in the housing sector and suggested establishing r Residential plot of 200 sq.yards and above in areas
a National Commission for providing financial other than the notified municipalities
assistance to EBCs. Judicial scrutiny of 103rdAmendment Act:
Background: r If the Supreme Court indeed agrees to lift the 50% cap,
r The past few years have seen influential castes like the all States of India can extend the quantum of quota
Marathas, Rajputs and Jats seeking quota benefits. and "upper castes" will stand to lose in State services.
r Though governments in states have tried to pass r If the Supreme Court rejects the idea of breaching
laws to meet such demands in the past, they are the 50% cap, EWS quotas can be provided only by
often struck down by the courts on the grounds of eating into the SC, ST and OBC quota pie, which will
the famous Indra Sawhney case, where the Supreme have social and political implications.
Court had set a cap of 50% on quotas. Supreme Court’s views on Quota:
r But in November 2018, the government in r Recently, the Supreme Court has ruled that quota
Maharashtra announced a 16% quota to the in the matter of promotions in public posts is not a
politically influential Marathas as a "social and fundamental right, and a state cannot be compelled
educationally backward class". to offer the quota if it chooses not to. The idea that
Constitutional provisions of 103rd Constitutional quota is not a right may be in consonance with the
Amendment Act: Constitution, however, the government is still under
r The Act amends Articles 15 and 16 of the the obligation to perform Quota for vulnerable
Constitution, by adding a clause which allows states sections of society.
to make "special provision for the advancement of r The Supreme Court held that Quota programmes
any EWS of citizens". allowed in the Constitution are derived from
r These "special provisions" would relate to "their "enabling provisions" and are not rights as such.
admission to educational institutions, including r In other words, it argued that there is neither a basic
private educational institutions, whether aided right to quotas nor a duty of the State government
or unaided by the state, other than the minority to provide it.
educational institutions". r The Supreme Court referred to Article 16(4)
r It also said the quota would be "in addition to the and 16(4A) while delivering its judgment in the
existing quotas and subject to a maximum of 10 per matter.It had been inferred from Article 16(4) and
cent of the total seats in each category". 16(4A), that these are exceptions to the equality
r According to the objects of the act, "The directive of opportunity in government jobs, which state
principles of state policy contained in Article 46 can exercise in order to provide social mobility to
of the Constitution enjoins that the State shall vulnerable classes.
promote with special care the educational and r Also, through this judgment, the court reiterated
economic interests of the weaker sections of the its stand in M. Nagraj case, which stated that the
people, and, in particular, of the Scheduled Castes state is not bound to provide quota in promotions,
and the Scheduled Tribes, and shall protect them but if it does so, it must be in favour of sections that
from social injustice and all forms of exploitation." are backward and inadequately represented in the
Who all are eligible for quota: services based on quantifiable data.
r To those who are not covered in existing quotas Amendments to ensure Right to Equality
r Family income below 8 lakhs a year or agricultural r 77th Amendment: It introduced Clause 4A to
land below 5 acres. the Constitution, empowering the state to make
provisions for quota in matters of promotion to
r Residential flat of 1000 sq.ft. and above
SC/ST employees if the state feels they are not
r Residential plot of 100 sq.yards and above in
adequately represented.
notified municipalities.
r 81stAmendment: It introduced Clause 4B, which

45
 says unfilled SC/ ST quota of a particular year, against members of Scheduled Castes and Scheduled
when carried forward to the next year, will be Tribes, leading to brutalities such as mass murder,
treated separately and not clubbed with the regular rape, arson, grievous injuries, etc. enactment of a
vacancies of that year to find out whether the special law for their protection was resorted to known
total quota has breached the 50% limit set by the as Scheduled Castes and Scheduled Tribes (Prevention
Supreme Court. of Atrocities) Act, 1989 to provide for strong punitive
r 82nd Amendment: It inserted a proviso at the measures which could serve as a deterrence.
end of Article 335 to enable the state to make any r The Act does not define 'untouchability'.According
provision for SC/STs "for relaxation in qualifying to the Supreme Court, 'untouchability' should not
marks in any examination or lowering the standards be understood in its literal or grammatical sense.
of evaluation, for quota in matters of promotion to It is to be understood as the 'practice as it had
any class or classes of services or posts in connection developed historically'.
with the affairs of the Union or of a State".
r Parliament has amended the SC/ST (Prevention of
r 85th Amendment: It said quota in the promotion
Atrocities) Act, 1979 in 2018.
can be applied with consequential seniority for the
r The Supreme Court has upheld the constitutional
SC/ST employee.
validity of Schedule Caste and Schedule Tribes
Article 335 (Prevention of Atrocities) Amendment Act of 2018
r Article 335 of the Constitution relates to claims of SCs and STs in which Supreme Court nullifies the conduct of a
to services and posts.
preliminary enquiry before registration of an FIR,
r It reads: "The claims of the members of the SC's and ST's shall
be taken into consideration, consistently with the maintenance or to seek approval of any authority prior to arrest
of efficiency of administration, in the making of appointments of an accused.
to services and posts in connection with the affairs of the Union
or of a State." Article 18: Abolition of Titles
Article 17: Abolition of Untouchability Article 18(1): No title, not being a military or academic
r "Untouchability" is abolished and its practice in any distinction, shall be conferred by the State.
form is forbidden. The enforcement of any disability Article 18(2): No citizen of India shall accept any
arising out of "Untouchability" shall be an offence title from any foreign State.
punishable in accordance with law. Article 18(3): No person who is not a citizen of India
r Untouchability: not to be understood in its literary shall, while he holds any office of profit or trust under
or grammatical sense; to be understood as the the State, accept without the consent of the President
practise as it has developed historically. any title from any foreign State.
r Civil Rights: Any right accruing to a person by Article 18(4): No person holding any office of profit
reason of the abolition of untouchability under Art or trust under the State shall, without the consent of the
17 of the Constitution. President, accept any present, emolument, or office of
r The Constitution itself does not prescribe any any kind from or under any foreign State.
punishment under this Article. Is Bharat Ratna a Violation of Article 18?
r The Parliament enacted the 'Untouchability r The conferment of titles of 'Bharat Ratna', 'Padma
(offences) Act, 1955' which prescribes the Vibhushan', 'Padmashree', etc. are not violative of
punishment for the practice of untouchability. Article 18. These awards merely denote the State's
This Act was amended by the 'Untouchability recognition of good work by citizens in various
(offences) Amendment Act, 1976', in order to make fields of activities. These fit in the category of
the untouchability laws more stringent. The name
academic distinctions.
of the original Act was changed to 'Civil Rights
r But they cannot be used as a title and cannot be
(Protection) Act, 1976'.
used as a suffix or prefix.
r Later, when there was spurt in physical violence

46
r It is necessary that there should be a system of and without arms.
awards and decorations to recognise the excellence r It includes the right to hold public meetings,
in performance of duties.So, these awards are not demonstrations and take out possessions.
violative of the provisions of Article 18. r This freedom can be exercised only on public land.
r Art 18 doesn't prescribe any punishment for the r This right does not include the Right to Strike.
offences. But Parliament is open to make a law for Article19 (1) (c): Right to form associations
punishments. r All citizens of India are given the right to form
Right to Freedom associations or co-operative societies, this includes
the right to the formation of political parties,
Article 19. Protection of certain rights regarding
companies, partnership firms, clubs, etc.
freedom of speech, etc.
r Is Right to strike a Fundamental Right?
(1) All citizens shall have the right-
m Strike is the most effective and final resort in the
a) to freedom of speech and expression; hands of workers to secure economic justice.
b) to assemble peacefully and without arms; m This meaning of strike has undergone various
c) to form associations or unions; changes across the world and most of the
d) to move freely throughout the territory of India; nations have given the right to strike to the
workers.
e) to reside and settle in any part of the territory
m The right to strike is a statutory right in India
of India; and
guaranteed under Section 22(1)(a) of the
f) The right to acquire hold and dispose of Industrial Disputes Act, 1957.
property. (Deleted by the 44th Amendment Act r Restrictions for Armed forces.
of 1978).
Article 19(1)(d): Right to freely move throughout the
g) to practise any profession, or to carry on any Indian territory
occupation, trade or business. r This right guarantees the freedom of movement
These freedoms are pillars of democracy. But state and entitles every citizen of India to move freely
can impose 'reasonable' restrictions on grounds of throughout the territory of India.
reasonable restrictions. r Every citizen of India has been given the right to
Restrictions: move freely from one state of the country to another.
1. the sovereignty and integrity of India, The purpose is to promote national feeling among
2. the security of the State, the citizens of the nation.
3. friendly relations with foreign States, Article 19(1)(e): Right to reside and settle also in any
4. public order, part of India
5. decency or morality r This right grant every citizen of India with the right to
6. in relation to contempt of court, defamations reside and settle in any part of the territory of India.
incitement to an offence. r Article is also subjected to reasonable restrictions.
Article19 (1) (a): Freedom of speech and expression Article 19(1)(g): Right to practice any kind of
meaning: profession or any occupation, trade, or business
r Right to express one's opinion freely and openly r All the citizens of India have been granted the
r Right to express other's opinion right to practise any profession or carry on any
r Right to have access to the opinion of other occupation or business of their wish. But this right
individuals. does not include the right to carry on a profession or
r But right to information is subject to Official Secrets business which involves anything which is immoral
Act. (such as trafficking) or dangerous in nature (drugs
Article 19 (1) (b): Right to assemble peacefully or explosives).
r Every citizen has the right to assemble peacefully

47
r Previously, Article 19 contained seven rights but by law in India" a criminal offence punishable with
later on the right to acquire, hold and dispose of the a maximum sentence of life imprisonment.
property was removed by the Amendment Act of r It is classified as "cognisable"- the investigation
1978. process (including the powers to arrest) can be
r The State can also impose reasonable restrictions on triggered merely by filing an FIR, without a judicial
the enjoyment of these rights which are mentioned authority having to take cognisance- and "non-
in Article 19 itself. bailable"- the accused cannot get bail as a matter of
Freedom of Press right, but is subject to the discretion of the sessions
judge.
r The Indian Constitution does not provide for the
freedom of press separately. Brief about the History of Section 124A
r Drafted by Thomas Macaulay, it was introduced
r It is implicit in Art. 19, which grants freedom of
in the 1870s, originally to deal with ‘increasing
speech and expression.
Wahabi activities between 1863 and 1870 that
r Freedom of expression includes not only expression posed a challenge to the colonial government’.
of one's own views but of others' as well.
r In the 19th and early 20th centuries, the law was
r The restrictions that limit the freedoms in the case mainly used against Indian political leaders seeking
of individuals apply to the press also. independence from British rule.
The laws that apply to press include:
r Mahatma Gandhi, who was charged with sedition,
r taxation; famously said the law was ‘designed to suppress the
r laws regulating industrial relations; liberty of the citizen’.
r regulations of the conditions of service of the r In 1962, the Supreme Court imposed limits on the
employees; use of the law, making incitement to violence a
r Defamation, contempt of House and Court etc. necessary condition.
r In its interpretation of Art. 19 in the 'airways case' Why section 124A of IPC is in debate?
(February, 1995), the Supreme Court reiterated
r It is often under debate because Centre and the
that the press would be bound by the rules of the
States have invoked the section against activists,
Government. expressed through an autonomous
detractors, writers and cartoonists seeking to
body.
silence political dissent by accusing dissenters of
Sedition Law Vs Freedom of Speech
promoting disaffection
Constitutional provisions:
r Article 19(1)(a) of the Constitution guarantees r According to the National Crime Records Bureau,
freedom of speech and expression, subject to 35 cases of sedition were reported in 2016. Many of
reasonable restrictions provided under article these cases did not involve violence or incitement
19(2) of the Constitution. to violence.
r Article 19(2) imposes "reasonable restrictions" on r The sedition law came into focus in 2016 after the
the limited grounds of interests of the sovereignty JNU row in which three students of the Jawaharlal
and integrity of India, the security of the state, Nehru University were arrested for allegedly raising
friendly relations with foreign states, public order, anti-national slogans. Critics of sedition law have
decency or morality or in relation to contempt of even demanded to scrape of the law by calling it a
court, defamation etc. "draconian law".
What is sedition?
Maneka Gandhi case, 1978:
Section 124 A of the IPC:
r In Maneka Gandhi judgement, Supreme Court stated
r This section defines sedition and makes every speech
that criticizing and drawing general opinion against
or expression that "brings or attempts to bring into
hatred or contempt, or excites or attempts to excite the government policies and decisions within a
disaffection towards the Government established reasonable limit that does not incite people to rebel

48
 and is consistent with the freedom of speech. Article 20 (2) No person shall be prosecuted and
r The judgment saved the citizens from punished for the same offence more than once.
unquestionable actions of Executive. Article 20 (3) No person accused of any offence
r Recently, in 2016 - The apex court held that criticism shall be compelled to be a witness against himself.
of government does not constitute sedition without Explanation:
incitement to violence. Article 20 of the Constitution of India allows
Right to protest: a fundamental right with restrictions protection against unreasonable and excessive
punishment to an accused individual, whether a citizen
r The Shahen Bagh protest was an iconic protest
of India or a citizen of any foreign nation or even a legal
launched in December of 2019 by women,
person like a company or a corporation.
children and senior citizens against the Citizenship
(Amendment) Act, 2019. a) Ex-post facto legislation
r The protest was in the form of a mass-sit in the r This means enacting a law and giving it a
Kalindi Kunj-Shaheen Bagh present in the north- retrospective (i.e. from a previous date /year)
eastern part of Delhi and resulted in the closure of effect.
the entire stretch of road. r This power has been conferred to the Parliament
Because of the block-in, numerous petitions were by the Constitution.
filed demanding a clearance of the road. The petition on r This is applicable only for civil legislations
which the Court decided to give its judgment was Amit while criminal legislations cannot be given
Sahni v. Commissioner of Police and Ors. (2020). retrospective effect.
r The Court held that even when the right to protest b) Double Jeopardy
was a fundamental right granted by the Indian r This means that an individual can be punished
Constitution, it had to be subjected to reasonable for a crime only once and also not beyond the
restrictions related to public order, sovereignty and period prescribed by the authority.
integrity of India and “regulation by the concerned r If a civil servant is dismissed on criminal charges,
police authorities in this regard”. his dismissal does not come under Double
r While recognizing the right to freedom of speech Jeopardy and he could be well prosecuted
and expression under Article 19(1)(a) and the further in the Court.
right to assemble peacefully without arms under c) Prohibition against self-incrimination
Article 19(1) (b), the Court held that public spaces
r No person, accused of an offence, shall be
could not be occupied, especially indefinitely.
compelled to be a witness against himself.
While “democracy and dissent went hand-in-hand”,
r The cardinal principle of criminal law is, an
dissent could take place only in designated places.
accused should be presumed to be innocent till
Shaheen Bagh could not be a designated place
the contrary is proved.
because it was a road used frequently by commuters
and the sit-in was causing a lot of inconvenience to r It is the duty of the prosecution to prove the
said commuters. offence.
Article 20: Protection in respect of conviction for Article21: Right to Life
offences “Protection of Life and Personal Liberty: No
Article 20 (1) No person shall be convicted of any person shall be deprived of his life or personal
offence except for violation of a law in force at the time liberty except according to procedure established
of the commission of the Act charged as an offence, nor by law.”
be subjected to a penalty greater than that which might r This fundamental right is available to every person,
have been inflicted under the law in force at the time of citizens and foreigners alike.
the commission of the offence. r Article 21 provides two rights:

49
 m Right to life under Article 19 as well. That means any procedure
m Right to personal liberty under law for the deprivation of life or liberty
r The fundamental right provided by Article 21 is one of a person must not be unfair, unreasonable or
of the most important rights that the Constitution arbitrary.
guarantees. r Francis Coralie Mullin vs. Union Territory of
r The Supreme Court of India has described this right Delhi (1981): In this case, the court held that any
as the ‘heart of fundamental rights. procedure for the deprivation of life or liberty of
a person must be reasonable, fair and just and not
r The right specifically mentions that no person
arbitrary, whimsical or fanciful.
shall be deprived of life and liberty except as per
the procedure established by law. This implies that r Olga Tellis vs. Bombay Municipal Corporation
this right has been provided against the State only. (1985): This case reiterated the stand taken earlier
State here includes not just the government, but that any procedure that would deprive a person’s
also, government departments, local bodies, the fundamental rights should conform to the norms of
Legislatures, etc. fair play and justice.

r Any private individual encroaching on these rights r Unni Krishnan vs. State of Andhra Pradesh
(1993): In this case, the Supreme Court upheld the
of another individual does not amount to a violation
expanded interpretation of the right to life.
of Article 21. The remedy for the victim, in this case,
would be under Article 226 or under general law. The Court gave a list of rights that Article 21 covers
based on earlier judgments. Some of them are:
r The right to life is not just about the right to survive.
It also entails being able to live a complete life of 1. Right to privacy
dignity and meaning. 2. Right to go abroad
r The chief goal of Article 21 is that when the right 3. Right to shelter
to life or liberty of a person is taken away by the 4. Right against solitary confinement
State, it should only be according to the prescribed 5. Right to social justice and economic empowerment
procedure of law. 6. Right against handcuffing
Interpretation of Article 21 7. Right against custodial death
Judicial intervention has ensured that the scope of Article
8. Right against delayed execution
21 is not narrow and restricted. It has been widening by
several landmark judgements. 9. Doctors’ assistance
A few important cases concerned with Article 21: 10. Right against public hanging
r AK Gopalan Case (1950): Until the 1950s, Article 11. Protection of cultural heritage
21 had a bit of a narrow scope. In this case, the 12. Right to pollution-free water and air
Supreme Court held that the expression ‘procedure 13. Right of every child to a full development
established by law’, the Constitution has embodied 14. Right to health and medical aid
the British concept of personal liberty rather than 15. Right to education
the American ‘due process’.
16. Protection of under-trials
r Maneka Gandhi vs. Union of India Case (1978):
Speedy Trial is a Constitutional Guarantee
This case overturned the Gopalan case judgement.
r Observing that speedy trial is a fundamental right
Here, the Supreme Court said that Articles 19 and
of an accused, the Supreme Court has directed
21 are not watertight compartments. The idea
the Centre and all State Governments to prevent
of personal liberty in Article 21 has a wide scope
unreasonable delay in disposal of criminal cases.
including many rights, some of which are embodied
The Article stands not merely for the right to life
under Article 19, thus giving them ‘additional
and personal liberty, but also for the right to dignity
protection’. The court also held that a law that comes
and all other attributes of human personality that is
under Article 21 must satisfy the requirements

50
essential for the full development of a person. Article r Even the custodial death in Army is a violation of
21 has become the 'Foundation Stone of Part III' of the Art 21 by the state.
Constitution. Procedure Established by Law and the Due Process of
r In some judgements, the Supreme Court held that Law
the right to clean and hygienic conditions of life is a r The procedure established by law means the uses
part of Right to Life. and practices as laid down in the statute or law.
r Article 21 protects an individual both against r Under this doctrine, the Court examines a law from
legislative and executive actions. the point of view of the Legislature's competence
r Domiciliary visit by police during night is an and sees whether the prescribed procedures have
invasion of personal liberty and hence Art 21. been followed by the Executive.The Court cannot go
r Flight to travel abroad: Part of personal liberty - behind the motive of the law and cannot declare it
hence part of Art 21. unconstitutional, unless the law is passed without
procedure established by law.
r Right to have primary education is a fundamental
right under Art 21. r Therefore, the Court relies more on the good sense
of the Legislature and strength of the public opinion.
r Art 21 includes the principles of Natural Justice.
This doctrine protects individual only against the
r Right to health and medical assistance: It is the executive actions.
professional obligation of all doctors, whether
r On the other hand, the phrase due process of law
government or private, to extend medical aid to
means that the court should examine the law,
the injured immediately to preserve life without
not only from the point of view of legislature's
waiting for legal formalities.
competence, but also from the broad view of the
r Right to get pollution free water & air: Protection of intention of the law.Thus, it provides greater power
ecology and environment come under Art 21. to the court.
r Right to free legal aid and speedy trial are guaranteed r The Constitution of India provides for the procedure
under Art 21. According to Supreme Court - "This is established by law.
the State's duty and not Government charity".
r But, the Supreme Court in the Maneka Gandhi case,
r Rights against hand-cuffing: There must be clear in 1978, interpreted Art. 21 to include the phrase
and present danger of escape—breaking out of "due process of law" in it.
police control—and for this there must be clear
r Thus, Art. 21 now protects an individual both
material evidence.
against legislative and executive actions.
r In Chakma migrants’ case, Supreme Court declared
that even non- citizens are entitled for right to life.
Right to Privacy
r Right against inhuman treatment. According to
Art 21, use of "third degree" method by police is What is privacy?
violative of Art 21. r A precise legal definition of 'privacy' doesn't exist.
Some legal experts define privacy as a human right
r Telephone tapping is an invasion on right to privacy,
and international charters, like the Article 12 of
hence violates Art 21.
the Universal Declaration of Human Rights, protect
Right against Custodial Death
persons against "arbitrary interference" with one's
r In Hemadhar Hazarika vs Union of India, 2007 case,
privacy.
the Guwahati High Court declared that every citizen
r Privacy can mean a range of things: the right to be
has a right to life and to live with human dignity
left alone, freedom to dissent or protection from
under Art 21 of the Constitution.
state surveillance.
r Since the death in police custody is a violation of the
Is privacy an Indian citizen’s, right?
fundamental right to life, the legal heirs can claim
r The Supreme Court's landmark judgment
compensation.

51
 unequivocally declares privacy a guaranteed owned enterprises that sell their products and
fundamental right. services online, especially those staffed by women
How is privacy protected in India? and home-based workers.
r Courts in India have interpreted that the constitution Is right to Internet access a Fundamental Right?
guarantees a limited right to privacy primarily r Internationally, the right to access to the Internet
through Article 21, the right to life and liberty. Such can be rooted in Article 19 of the Universal
court rulings protect citizens' rights in a range of Declaration of Human Rights which states that
matters: from freedom of movement to interception "everyone has the right to freedom of opinion and
of communication. expression. This right includes freedom to hold
Why does privacy matter? opinions without interference and to seek, receive
r The public debate about right to privacy arose and impart information and ideas through any
after the government started collecting biometric media and regardless of frontiers."
data of citizens for Aadhaar. The government is r The Human Rights Council of the United Nations
pushing for Aadhaar, saying it is necessary to plug resolution affirmed that the same rights that
leakages in subsidy schemes and to ensure benefits people have offline must also be protected online,
reach the right people. But critics say the move in particular, freedom of expression, which is
violates privacy, is vulnerable to data breaches and applicable regardless of frontiers and through any
potentially helps government spy on people. media of one's choice and includes the Internet.
Right to Internet Access Way Forward:
Recently, Citizens have witnessed a number of internet r The High Court of Kerala made a start to the
shutdown issues throughout the country whether it is domestic recognition of the right to Internet access
Delhi, Mangaluru, Assam, and Jammu. These bans are with its judgment in Faheema Shirin R.K. vs State of
imposed under various provisions like 144 of CrPC Kerala & Others which can be replicated pan India
and Section 5(2) of Indian Telegraph Act, 1885 etc. It's is opined.
imperative to understand the importance of the internet
r The time has come for the legislature and
and are bans justified under the right to internet access.
judiciary to recognize the right to internet access
Importance of internet:
as a fundamental right within our constitutional
r The Internet is certainly now not only the main
guarantees.
source of information & communication and access
Right to Education (Article 21A)
to social media but it is much more than that.
Art 21 A: The State shall provide free and compulsory
r Today, the internet has entered into all the walks of
education to all children of the age of six to fourteen
life of a person for example:
years in such manner as the State may, by law, determine.
r Thousands of delivery workers for Swiggy, Dunzo
r The Constitution (86th Amendment) Act 2002,
and Amazon and the cab drivers of Uber and Ola-
enacted in December 2002 seeks to make free and
depend on the Internet for their livelihoods and
compulsory education a Fundamental Right for all
affect the people involved in India's gig economy.
children in the age-group 6-14 years by inserting a
r It is a mode of access to education for students who
new Article 21A in Part III of the Constitution.
do courses and take exams online.
r It is intended to benefit India's 190 million 6 to
r Provides access to transport for millions of urban
14-year-olds, especially some 35 million, currently
and rural people.
not attending school.
r A mode to access health care for those who avail of
r The government is trying to target such children
health services online.
through a Sarva Shiksha Abhiyan and a series of
r More than anything, it is a means for business and measures and facilities - such as free mid-day meals,
occupation for thousands of small and individual- uniforms and textbooks.

52
r Steps are being taken to provide mobile schools 3. The detained person must have the earliest
to help certain students who are not staying long opportunity to present his case before the
enough at one address - construction workers' authority of law.
children, for instance - or giving examination on r If the government seeks to detain the arrested
demand to kids unable to meet regular schedules.
person beyond the period of three months, his
r Also, as per the Act, "the State shall endeavour to detention must be authorised by an 'Advisory body',
provide early childhood care and education for all which is purely judicial.
children until they complete the age of six years".
r The Parliament is given the power to determine
Article 22: Protection against arrest and detention in the maximum period for which a person can be
certain cases detained on the preventive grounds.
No person who is arrested shall be detained in custody
r India is one of the few countries in the world
without being informed, as soon as may be, of the
where laws allowing preventive detention enjoy
grounds for such arrest nor shall he be denied the right
constitutional validity even during peace time.
to consult, and to be defended by, a legal practitioner of
his choice. r Normally, preventive detention is resorted to against
enemy aliens in emergencies such as war when the
1. Every person who is arrested and detained in
evidence in possession of the detaining authority is
custody shall be produced before the nearest
not sufficient to secure the immediate conviction of
magistrate within a period of twenty- four hours
the detenu by the normal legal process.
of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the Supreme Court ruling on preventive detention
magistrate and no such person shall be detained r According to the Supreme Court judgement an
in custody beyond the said period without the order passed by a detaining authority under the
authority of a magistrate. preventive detention law cannot be set aside by
the High Court at the pre-arrest stage unless it is
Exceptions
satisfied that there are exceptional circumstances.
a) To any person who for the time being is an enemy
alien; or r The court must be conscious and mindful of the
fact that this is a 'suspicious jurisdiction'and action
b) To any person who is arrested or detained under
is taken 'with a view to preventing' a person from
any law providing for preventive detention.
acting in any manner prejudicial to certain activities
Preventive Detention enumerated in the relevant detention law.
r A person can be detained under preventive
r Interference by a court of law at that stage must
detention, if there is a suspicion or reasonable
be an exception rather than a rule and such an
probability of that person committing some act,
exercise can be undertaken by a writ court with
which is likely to cause harm to the society and
extreme care, caution and circumspection. A
endanger the security of the society. detenu cannot ordinarily seek a writ of mandamus
r Article 22 does not apply in the case of Preventive if he does not surrender and is not served
Detention. with an order of detention and the grounds in
r There are certain provisions in Article 22 for the support of it.
protection of such persons, they are: r The primary object of preventive detention is not to
1. A person detained on the ground of suspicion punish a person for having done something but to
shall be detained for a maximum period of three intercept him before he does it. It was not a penalty
months. for past activities of an individual but was intended
to pre-empt the person from indulging in activities
2. The detained person must be informed about
be prohibited by a relevant law and to prevent him
the reason of his arrest, as soon as possible.
from doing harm in future.

53
r Underlining the need for striking a balance between in the interests of the sovereignty and integrity of India.
personal liberty and security of the country, the Pursuant to the acceptance of recommendations of the
Bench said: "Liberty of an individual has to be Committee, the Constitution (Sixteenth Amendment)
subordinated, within reasonable bounds, to the good Act, 1963 was enacted to impose, by law, reasonable
of the people. Security of the state, maintenance restrictions in the interests of the sovereignty and
of the public order and services essential to integrity of India. In order to implement the provisions
the community, prevention of smuggling and of 1963 Act, the Unlawful Activities (Prevention) Bill
black-marketing activities, etc, demand effective was introduced in the Parliament.
safeguards in the larger interests of sustenance of a It enables Parliament to impose by law, reasonable
peaceful democratic way of life." restrictions in the interests of sovereignty and integrity
r The Bench said that without doubt, it is the duty of of India, on the:
the court to safeguard against any encroachment r Freedom of Speech and Expression;
on the life and liberty of individuals; at the same r Right to Assemble peaceably and without arms; and
time the authorities who have the responsibility r Right to Form Associations or Unions.
to discharge the functions vested in them under
The objective of this Bill was to make powers
the law of the country should not be impeded or
available for dealing with activities directed against the
interfered with without justification. integrity and sovereignty of India.
Right of an Accused to be Defended The most recent Amendment has been done in
Recently the Karnataka High Court observed that it 2019. It was amended allowing the government to
is unethical and illegal for lawyers to pass resolutions designate an individual as a terrorist without trial.
against representing accused in court. This is not
Right Against Exploitation
the first time that bar associations have passed such
Article 23: Prohibition of Traffic in Human Beings and
resolutions, despite a Supreme Court ruling that these
Forced Labour.
are "against all norms of the Constitution, the statute
and professional ethics". Article- 23 (1) Traffic in human beings and begar
and other similar forms of forced labour are prohibited
What does the Constitution say about the right of an
and any contravention of this provision shall be an
accused to be defended?
offence punishable in accordance with law.
r Article 22(1) gives the fundamental right to every
person not to be denied the right to be defended by Article- 23(2) Nothing in this article shall prevent
a legal practitioner of his or her choice. the State from imposing compulsory service for public
purposes, and in imposing such service the State shall
r Article 14 provides for equality before the law and
equal protection of the laws within the territory of not make any discrimination on grounds only of religion,
India. race, caste or class or any of them
r Article 39A, part of the DPSP, states that equal Explanation-
opportunity to secure justice must not be denied r Traffic in human beings and forced labour are
to any citizen by reason of economic or other prohibited and any contravention of this provision
disabilities, and provides for free legal aid. shall be an offence punishable in accordance with
Unlawful Activities Prevention Act law.
Unlawful Activities (Prevention) Act or UAPA Act is r Traffic in Human Beings: Selling and buying men
Indian law aimed at effective prevention of unlawful and women like goods and it includes immoral
activities associations in India. Its main objective was traffic in women and children for immoral and
to make powers available for dealing with activities other purposes.
directed against the integrity and sovereignty of India. r It is prohibited making a person to render service
The National Integration Council appointed a where he was lawfully entitled not to work or to
Committee on National Integration and Regionalisation receive remuneration of services rendered by him.
to look into, the aspect of putting reasonable restrictions

54
r No one shall not be forced to provide labour or r The Bill sets out penalties for several offences
services against his will even if remuneration is connected with trafficking. In most cases, the
paid. penalties set out are higher than the punishment
r If remuneration is less than minimum wages, it provided under prevailing laws.
amounts to forced labour under Art 23. Article 24: Prohibition of Employment of Children
Human Trafficking: This refers to the sale and in Factories, etc.
purchase of human beings mostly for the purpose of No child below the age of fourteen years shall be
sexual slavery, forced prostitution or forced labour. employed to work in any factory or mine or engaged
Begar: This is a form of forced labour which refers in any other hazardous employment.
to forcing a person to work for no remuneration. Explanation-
Other forms of forced labour: This includes other r Article 24 must be read with Article39(e) and
forms of forced labour in which the person works for Article39(f) of DPSP which provides for the
a wage less than the minimum wage. This includes protection of health and strength of children and
bonded labour wherein a person is forced to work to pay that the tender age of children should not be abused.
off his debt for inadequate remuneration, prison labour r This provision is in the interest of public health and
wherein prisoners sent in for rigorous imprisonment are safety of life of children.
forced to work without even minimum remuneration r M.C. Mehta Vs State of Tamil Nadu: The Supreme
etc. One shall not be forced to provide labour or services Court held that state authorities should protect
against his will even if remuneration is paid. economic, social and humanitarian rights of
Article 23 (2) also provides for an exception to this millions of children working illegally in public and
provision. It allows state to impose compulsory service private sectors.
for public purposes like military service or social service, Child Labour (Prohibition and Regulation)
for which state is not bound to pay. While imposing Amendment Act, 2016 amended the Child Labour
such services the state is not permitted to make any (Prohibition and Regulation) Act, 1986.
discrimination on grounds only of religion, race, caste or r The amendment act prohibited the employment
class or any of them. of children below 14 years of age in all occupation
The Trafficking of Persons (Prevention, Protection and industries except those runs by the child’s
and Rehabilitation) Bill, 2018 own family. Before the amendment employment
Highlights of the Bill of children below 14 years in domestic work was
r The Bill creates a law for investigation of all types of completely legal.
trafficking, and rescue, protection and rehabilitation r A complete prohibition has been imposed on the
of trafficked victims. employment of child labour (i.e. a person below
r The Bill provides for the establishment of the age of 14 years) in any establishment whether
investigation and rehabilitation authorities at the hazardous or not. A child is permitted to work only
district, state and national level. Anti-Trafficking to help the family in family enterprise after school
Units will be established to rescue victims and hours or during vacations.
investigate cases of trafficking. Rehabilitation r The act introduced a new category called adolescents
Committees will provide care and rehabilitation to which cover person between14-18years of age. The
the rescued victims. amendment permits the employment of adolescent
labour except in hazardous processes or occupation.
r The Bill classifies certain purposes of trafficking
as ‘aggravated’ forms of trafficking. These include r The number of hazardous occupations and
trafficking for forced labour, bearing children, processes has been reduced from 83 to only
begging, or for inducing early sexual maturity. 3-mining, explosives, occupations mentioned in
Aggravated trafficking attracts a higher punishment. the Factories Act,1948. It leaves children open

55
 to employment in all other kinds of hazardous manner he likes.
industries including construction, asbestos, brick r Profess: To declare freely and openly one's faith
kilns, glass factories and garbage picking. and belief.
r It provides for the setting up of the Child and r Practise: To perform the prescribed religious
Adolescent Labour Rehabilitation Fund in which duties, rites and rituals and to exhibit his religious
all the amounts of penalty have to be realized. This beliefs.
provision has been drawn from MC Mehta judgment. r Propagate: Spread and publicise his religious
r India finally ratified convention number 182 of the view for the edification of others. It only indicates
International Labour Organization which deals with persuasion and exposition without any element of
prohibition and elimination of worst forms of child coercion.
labour and provides that no child shall be employed Article 25 (2):
in a hazardous occupation. Interestingly, India is Article 25 also consists of two explanations:
one of the last countries to ratify the convention. r One, the wearing and carrying of kirpans shall be
Article 25 - Right to freedom of religion deemed to be included in the profession of the Sikh
Article 25 (1): Subject to public order, morality religion.
and health and to the other provisions of this Part, all r Two, Hindus shall be construed as including a
persons are equally entitled to freedom of conscience reference to persons professing the Sikh, Jain or
and the right to freely profess, practise and propagate Buddhist religion, and the reference to Hindu
religion. religious institutions shall be construed accordingly
Article 25 (2): Nothing in this article shall affect the Karnataka Hijab Issue:
operation of any existing law or prevent the State from r Six female students belonging to the Government
making any law: PU College for Girls in Udupi were not allowed
r Article 25 (2) (a): regulating or restricting any to attend classes wearing Hijab. State Government
economic, financial, political or other secular passed an order regarding the dress code for
activity which may be associated with religious students mentioning Karnataka Education Act.
practice; Students needed to follow the dress code decided
r Article 25 (2) (b): providing for social welfare and by their respective college Development Committee.
reform or the throwing open of Hindu religious In case of not having a uniform, students are not
institutions of a public character to all classes and allowed to wear any piece of clothing that affects
sections of Hindus. public law and order, equality and integrity.
r The Karnataka High Court upheld the ban on Hijab
Explanation- by the educational institutes. The court ruled that
Article 25 (1): Hijab is not an essential religious practice under
Islam and, hence, it is not protected by the Article
r India is a secular state. It is never considered as an
25 of the constitution setting out the fundamental
irreligious or atheistic state.
right to practice one's religion.
r It is the ancient doctrine in India that state protects
Restrictions on Freedom of Religion
all religions; but interferes with none.
Religious liberty is subject to public order, morality and
r The State is concerned with relations between man
health. For example: In the name of religion,
and man; not man and God.
r One cannot practise untouchability.
r Definition of Religion: A religion has its basis in "a
r There cannot be indecent dressing.
system of beliefs or doctrines which are regarded
by those who profess that religion as conducive to r One cannot forcibly convert another person. In
their spiritual wellbeing. order to ensure this, various states government has
implemented “Freedom of Religion” legislation to
r Conscience: Absolute inner freedom of the citizen
restrict religious conversions through force, fraud or
to mould his own relation with God in whatever

56
 allurement. Freedom of Religion laws are currently petitioner on the ground that:
enforced in Odisha, Madhya Pradesh, Arunachal r They infringe on the fundamental right under
Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Article 30 to establish and administer educational
Jharkhand and Uttarakhand. institutions.
The Supreme Court in Noise Pollution case, has r Rights of the Muslim minority under Article 25, 26,
given certain directions to be followed to control noise 29 were violated.
pollution in the name of religion: It was held by the Supreme Court that prior to
r Firecrackers: A complete ban on sound-emitting 1920 there was nothing that could prevent Muslim
firecrackers from 10 pm to 6 am. minorities from establishing universities. The Aligarh
r Loudspeakers: Restriction on the beating of drums, Muslim University was established under the legislation
tom-tom, blowing of trumpets, or any use of any (Aligarh Muslim University Act, 1920) and therefore
sound amplifier between 10 pm to 6 am except in cannot claim that the university was established by the
public emergencies. Muslim Community as it was brought into existence by
r Generally: A provision shall be made by the State the central legislation and not by the Muslim minority.
to confiscate and seize loudspeakers and such other Right to manage its own affairs in the ‘Matters of
sound amplifiers or equipment that creates noise Religion’
beyond the limit prescribed. r Matter of religion includes religious practices,
Article 26: Freedom to Manage Religious Affairs rituals, observances, ceremonies, mode and
Subject to public order, morality and health, every manner of worship, etc., regarded as the essential
religious denomination or any section thereof shall have and integral part of the religion.
the right- r For instance, in Acharaj Singh v. State of Bihar it
r To establish and maintain institutions for religious was held that, if Bhog offered to the deity is a well-
and charitable purposes; established practice of that religious institution, such
a practice should be regarded as a part of that religion.
r To manage its own affairs in matters of religion;
Taking over management of secular activities of the
r To own and acquire movable and immovable
temple: Bira Kishore Dev v. State of Orissa
property; and
r In this case, the validity of the Shri Jagannath
r To administer such property in accordance with Temple Act, 1954 was challenged on the ground
law. that the Act is discriminatory in nature and violates
Religious denomination Article 26 (d) of the Constitution. It was contended
The word ‘religious denomination’ is not defined in by the petitioner (Raja of Puri) that the temple was
the constitution. The word ‘denomination’ came to his private property and he had the sole right over
be considered by the Supreme Court in the case of management as well as superintendence of the
Commissioner, Hindu Religious endowment Madras v. temple.
Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In r The Act took away the sole management of the
this case, the meaning of ‘Denomination’ was picked out temple from the appellant and vested it with the
from the Oxford dictionary, “A collection of individuals Committee. Dismissing the appeal, the Supreme
classed together under the same name, a religious Court held that there was no violation of the
sect or body having a common faith and organization fundamental right of freedom of religion of the
designated by a distinctive name”. petitioner and the Act only dealt with the secular
Right to establish and maintain-institutions for management of the institution.
religious and charitable purposes: Azeez Basha v.
r Chardham Devasthanam Board: Recently
Union of India
Uttarakhand govt aimed to form an autonomous
In this case, certain amendments were made in the body Chardham Devastahanam Board to regulate
year 1951 and 1965 to the Aligarh Muslim University the Chardhams — Yamunotri, Gangotri, Badrinath
Act, 1920. These amendments were challenged by the

57
 and Kedarnath — along with 45 other temples Swamiar of Sri Shirur Mutt, the Madras legislature
affiliated to them in Uttarakhand. High court ruled enacted the Madras Hindu Religious and Charitable
out that the ownership of the temple properties Endowment Act, 1951 and contributions were levied
would vest in Chardham shrines and power of the under the Act. It was contended by the petitioner
board would be confined only to the administration that the contributions levied are taxes and not a fee
and management of the properties. and the state of madras is not competent to enact
such a provision. It was held by the Supreme Court
Right to administer property owned by denomination
that though the contribution levied was tax but the
r Article 26 (d) says that a religious denomination
object of it was for the proper administration of the
has the right to administer its own property but
religious institution.
it should be in accordance with Law. In Durgah
Committee Ajmer v. Syed Hussain Ali, the Supreme Article 28: Freedom as to attendance at religious
instruction or religious worship in certain educational
Court observed that if the religious denomination
institutions
never had the right to administer property or if it
has lost its right then such right cannot be created Article 28 (1) No religion instruction shall
under Article 26 and therefore cannot be invoked. be provided in any educational institution wholly
maintained out of State funds
r The Supreme Court in the case of State of Rajasthan
v. Sajjanlal Panjawat observed that even though the Article 28 (2) Nothing in clause (1) shall apply to
state has the power to administer or regulate the an educational institution which is administered by the
properties of a trust, but it cannot by law take away State but has been established under any endowment or
the right to administer such property and vest it in trust which requires that religious instruction shall be
such other authority that does not even comprise imparted in such institution
the denomination. This would certainly amount to Article 28 (3) No person attending any educational
a violation of Article 26(d) of the Constitution. institution recognised by the State or receiving aid out of
r The right to religion under Article 26 is subject to State funds shall be required to take part in any religious
certain limitations and not absolute and unrestricted. instruction that may be imparted in such institution or
If any religious practice is in contravention to any to attend any religious worship that may be conducted
public order, morality or health then such religious in such institution or in any premises attached thereto
practice cannot claim the protection of the state. unless such person or, if such person is a minor, his
guardian has given his consent thereto Cultural and
Article 27: Freedom from taxes for promotion of
any particular religion Educational Rights.

Article 27: No person shall be compelled to pay Explanation-

any taxes, the proceeds of which are specifically r In simpler words, religious instructions in
educational institutions are,
appropriated in payment of expenses for the
promotion or maintenance of any particular religion m Prohibited in institutions wholly maintained
or religious denomination. by state.
r The state would not spend the public money for the m Permitted in institutions administered by state,
promotion or maintenance of any particular religion. but established by trust
This provision prevents the state from favouring and m Voluntary in institutions receiving aid from
supporting one religion over another. Money from state and institutions recognised by state.
the taxes can be used for promotion or maintenance Cultural and Educational Rights– Article 29 & 30
of all religion. A fee can be levied on the pilgrims to Article 29: Protection of interests of minorities
provide them special or safety measures. Article 29(1) Any section of the citizens residing in
r In the case of Commissioner, Hindu Religious the territory of India or any part thereof having a distinct
Endowments, Madras v. Sri Lakshmindra Thirtha language, script or culture of its own shall have the right

58
to conserve the same. subject to reasonable restrictions in the interest of
Article 29(2) No citizen shall be denied admission the general public.
into any educational institution maintained by the State r Article 29(2) is an individual right given to citizen
or receiving aid out of State funds on grounds only of and not to any community. The present clause gives
religion, race, caste, language or any of them guarantee to an aggrieved person, who has been
Explanation: denied admission on the ground of his religion. If
Religious minorities: Article 29 and Article 30 of a person has the academic qualifications but is
the Constitution do not specify 'minorities' in India, refused admission only on the grounds of religion,
it is classified into religious minorities and linguistic race, caste, language or any of them, then there is
minorities. a clear breach of the fundamental right under this
Religious Minorities in India section.
The basic ground for a community to be nominated r Article 29 grants protection to both religious
as a religious minority is the numerical strength of minorities as well as linguistic minorities.
the community. For example, in India, Hindus are r This means only two types of minorities mentioned
the majority community. As India is a multi-religious in the constitution-
country, it becomes important for the government to m Religious
conserve and protect the religious minorities of the m Linguistic.
country.
r Not mention the caste, representation, or other
Section 2, clause (c) of the National Commission
types of the minority.
of Minorities Act, declares six communities as minority
r However, the Supreme Court held that the scope
communities. They are:
of this article is not necessarily restricted to
r Muslims
minorities only, as it is commonly assumed to be.
r Christians This is because of the use of the words ‘section of
r Buddhists citizens’ in the Article that includes minorities as
r Sikhs well as the majority. The Supreme Court also held
r Jains and that the right to conserve the language includes
r Zoroastrians (Parsis) the right to agitate (By maintaining Law and
Order) for the protection of the language. Hence,
Linguistic Minorities
the political speeches or promises made for the
Class or group of people whose mother language or
conservation of the language of a section of the
mother tongue is different from that of the majority
citizens does not amount to corrupt practice under
groups is known as the linguistic minorities. The
the Representation of the People Act, 1951.
Constitution of India protects the interest of these
linguistic minorities. Article 30: Right of minorities to establish and
r Every time minority has fear about losing their administer educational institutions
identity and culture, has been ensured by article 29. Article 30 (1) All minorities, whether based on religion
or language, shall have the right to establish and
r The first provision article 29(1) protects the right of
administer educational institutions of their choice
a group.
Article 30 (1A) In making any law providing for the
r While the second provision article 29(2) guarantees
compulsory acquisition of any property of an educational
the right of a citizen as an individual irrespective of
institution established and administered by a minority,
the community to which he belongs.
referred to in clause (1), the State shall ensure that the
r Article 29 (1) It is an absolute right for the
amount fixed by or determined under such law for the
minorities to preserve its language and culture
acquisition of such property is such as would not restrict
through educational institutions and cannot be
or abrogate the right guaranteed under that clause.

59
 Article 30 (2) The state shall not, in granting aid r Unaided MEI could have their own procedure
to educational institutions, discriminate against any for admission but the same had to be fair and
educational institution on the ground that it is under the transparent.
management of a minority, whether based on religion or There are three types of minority educational
language institutions –
Explanation: r Institutions that demand recognition and aid from
In a significant ruling in T.M.A. Pai Foundation versus the State.
State of Karnataka case, the Supreme Court laid down r Institutions that demand recognition from the State
the guidelines related to Article 29 and 30 of the and not aid.
Constitution. The religious and linguistic minorities shall r Institutions that neither demand recognition nor
be determined state-wise and not nationally. Regulation aid from the State.
around the proper functioning, well-being of students The institutions which demand recognition from
and teachers can be imposed by the government. the State and are aided or not from the State are bound
The government can impose standard regulations, to follow the rules of the State and these regulations are
they should not destroy the minority character of the related to the employment of teaching staff, discipline,
institution and the interference of the government academic standards, and sanitation, etc.
should be very limited in the minority educational And the institutions that neither demand
institution. recognition nor aid from the State are free to administer
Highlights: their rules but have to follow the general laws like
r All citizens have right to establish and administer labour law, contract, industrial law, etc. Furthermore,
educational institutions. these institutions have to follow the eligibility criteria
r The right to administer Minority Education prescribed by the state. They are free to appoint teachers
Institution (MEI) not absolute. only by the rational procedure.
r State can apply regulations to unaided MEIs to The judgment delivered in case of Malankara Syrian
achieve educational excellence. Catholic College (2006), the Supreme Court held that
r Aided MEIs should admit certain percentage of non- under Article 30 of the Constitution the right conferred
minority students. to minorities is to ensure equality with the majority
that does not mean to give the advantageous position to
r Percentage of non-minority students to be admitted
the minorities and the general laws will apply to all the
to an aided MEI to be decided by the State or
educational institutions.
university.
r Fees to be charged by unaided MEI cannot be Rights of Minority Institutes not Absolute: Supreme
regulated but no institution can charge capitation Court [ NEET Case]
fee. r Few colleges challenged the notifications issued by
the Medical Council of India (MCI) and the Dental
r State can prescribe minimum qualification for
Council of India (DCI) under Sections 10D of the
teachers and principal in an unaided MEI.
Indian Medical Council Act of 1956 and the Dentists
r Tribunal headed by District Judge should be Act of 1948 for uniform entrance examinations.
constituted for redressal of grievance of employees
r The management of such minority-run medical
of MEI.
institutions held that uniformly bringing them
r State can provide the manner of admission in case under the ambit of NEET would be a violation of
of an aided MEI to ensure that it is done on the basis their fundamental right to occupation, trade and
of merit. business [Article 19(1)(g)] and would violate their
r Merit could be determined through common fundamental rights of religious freedom and to
entrance test. manage their religious affairs (Article 25-28) and to

60
 administer their institutions (Article 30). by this Constitution
r The Supreme Court of India gave its judgement Explanation: The Supreme Court has been
on the admission criteria of minority institutions. constituted as a defender and guarantor of a fundamental
It held that National Eligibility cum Entrance Test right of the citizens. It has been vested with the ‘original’
(NEET) is mandatory for admission to all the medical and ‘wide’ powers of that purpose. Original, because an
colleges and the right of minority institutions is not aggrieved citizen can directly go to the Supreme Court.
absolute and is amenable to regulation. Wide, because its power is not restricted to issuing or
r The SC held that the fundamental and religious orders or directions but also writs of all kinds.
rights of minorities and rights available under Types of Writs
Article 30 are not violated by provisions carved There are five types of Writs as provided under
out in Section 10D of the MCI and Dentists Act. Article 32 of the Constitution:
The right to freedom of trade or business is not 1. Habeas Corpus: It is one of the important writs for
absolute. It is subject to reasonable restriction in personal liberty which says “You have the Body”.
the interest of the students' community to promote The main purpose of this writ is to seek relief from
merit, recognition of excellence, and to curb the the unlawful detention of an individual.
malpractices. A uniform entrance test qualifies the
It is for the protection of the individual from being
test of proportionality and is reasonable.
harmed by the administrative system and it is for
Article 31 Right to property repealed safeguarding the freedom of the individual against
Article 32: Right to Constitutional Remedies arbitrary state action which violates fundamental
Dr Ambedkar stated that: rights under Articles 19, 21 & 22 of the Constitution.
“If I was asked to name any particular article in this This writ provides immediate relief in case of
Constitution as the most important- an article without unlawful detention.
which this Constitution would be a nullity— I could not When can it be issued?
refer to any other article except this one. It is the ‘heart Writ of Habeas Corpus is issued if an individual
and soul’ of the Constitution.” is kept in jail or under a private care without any
Article 32: Remedies for enforcement of rights authority of law. A criminal who is convicted has the
conferred for this Part right to seek the assistance of the court by filing an
Article 32 (1) The right to move the Supreme Court application for “writ of Habeas Corpus” if he believes
by appropriate proceedings for the enforcement of the that he has been wrongfully imprisoned and the
rights conferred by this Part is guaranteed. conditions in which he has been held falls below
Article 32 (2) The Supreme Court shall have power minimum legal standards for human treatment. The
court issues an order against prison warden who is
to issue directions or orders or writs, including writs in
holding an individual in custody in order to deliver
the nature of Habeas Corpus, Mandamus, Prohibition,
that prisoner to the court so that a judge can decide
Quo-Warranto and Certiorari, whichever may be
whether or not the prisoner is lawfully imprisoned
appropriate, for the enforcement of any of the rights
and if not then whether he should be released from
conferred by this Part.
custody.
Article 32 (3) Without prejudice to the powers
2. Mandamus: Writ of Mandamus means “We
conferred on the Supreme Court by clause (1) and (2),
Command” in Latin. This writ is issued for the
Parliament may by law empower any other court to correct performance of mandatory and purely
exercise within the local limits of its jurisdiction all or ministerial duties and is issued by a superior court
any of the powers exercisable by the Supreme Court to a lower court or government officer. However,
under clause (2) this writ cannot be issued against the President
Article 32 (4) The right guaranteed by this article and the Governor. Its main purpose is to ensure
shall not be suspended except as otherwise provided for that the powers or duties are not misused by the

61
 administration or the executive and are fulfilled in excess of their jurisdiction. Also, it can be
duly. Also, it safeguards the public from the misuse issued if the court acts outside its jurisdiction.
of authority by the administrative bodies. The And after the writ is issued, the lower court is
person applying for Mandamus must be sure that bound to stop its proceedings and should be
he has the legal right to compel the opponent to do issued before the lower court passes an order.
or refrain from doing something. Prohibition is a writ of preventive nature.
Conditions for issue of Mandamus The principle of this is ‘Prevention is better
thancure’.
r There must rest a legal right of the applicant for
the performance of the legal duty. 5. Quo Warranto: Writ of Quo Warranto implies
r The nature of the duty must be public. thereby “By what means”. This writ is invoked in
cases of public offices and it is issued to restrain
r On the date of the petition, the right which is
persons from acting in public office to which he is
sought to be enforced must be subsisting.
not entitled to. Although the term ‘office’ here is
r The writ of Mandamus is not issued for different from ‘seat’ in legislature but still a writ
anticipatory injury.
of Quo Warranto can lie with respect to the post
3. Certiorari: Writ of Certiorari means to be certified. of Chief Minister holding an office whereas a writ
It is issued when there is a wrongful exercise of the of Quo Warranto cannot be issued against a Chief
jurisdiction and the decision of the case is based on Minister, if the petitioner fails to show that the
it. The writ can be moved to higher courts like the minister is not properly appointed or that he is
High Court or the Supreme Court by the affected not qualified by law to hold the office. It cannot be
parties. issued against an Administrator who is appointed by
There are several grounds for the issue of Writ of the government to manage Municipal Corporation,
Certiorari. Certiorari is not issued against purely after its dissolution. Appointment to public office
administrative or ministerial orders and that it can be challenged by any person irrespective of the
can only be issued against judicial or quasi-judicial fact whether his fundamental or any legal right has
orders. been infringed or not.
When is a writ of Certiorari issued? When can it be Issued?
r Either without any jurisdiction or in excess. r When the public office is in question and it is of a
r In violation of the principles of Natural Justice. substantive nature. A petition against a private
r In opposition to the procedure established by corporation cannot be filed.
law. r The office is created by the State or the Constitution.
r If there is an error in judgement on the face of it. r The claim should be asserted on the office by the
Writ of certiorari is issued after the passing of the public servant i.e., respondent.
order. Difference between the Writ Jurisdiction of the
4. Prohibition: It is a writ directing a lower court Supreme Court and High Courts
to stop doing something which the law prohibits r The Supreme Court issues the Writ (under Art. 32)
it from doing. Its main purpose is to prevent an only in cases of the violation of the Fundamental
inferior court from exceeding its jurisdiction or Rights, whereas the High Court (under Art. 226) can
from acting contrary to the rules of Natural Justice. issue the writs not only for the enforcement of the
When is the writ of Prohibition issued? Fundamental Rights but also for redressal of any
r It is issued to a lower or a subordinate court by other injury or illegality, provided certain conditions
the superior courts in order to refrain it from are satisfied. Thus, in a way, the writ jurisdiction of
doing something which it is not supposed to do the High Court is wider than the Supreme Court.
as per law. r Art. 32 imposes on the Supreme Court a duty to
r It is usually issued when the lower courts act issue the Writs, whereas no such duty is imposed

62
 on the High Court by Art. 226. limit or abolish the fundamental rights of members
r The jurisdiction of the Supreme Court extends all of the armed forces, paramilitary forces, police
over the country, whereas that of the High Court forces, intelligence agencies, and similar forces.
only to the territorial confines of the particular state The purpose of this provision is to ensure that
and the Union Territory to which its jurisdiction they carry out their duties properly and that they
extends. maintain discipline among themselves.
Limitations to Article 32 r Article 33 grants the power to make laws only to
There are certain circumstances during which the Parliament, not to state legislatures. Any such law
citizens do not get the privileges which they ought to get enacted by Parliament cannot be challenged in a
under Article 32 court of law on the basis of a violation of any of the
fundamental rights.
r Under Article 33, the Parliament is empowered to
make changes in the application of Fundamental r The Armed Forces have imposed restrictions on a
Rights to armed forces and the police are empowered limited number of fundamental rights, as specified
with the duty to ensure proper discharge of their in Articles 14, 15, and 19 of the Constitution. The
duties. provisions of these special acts (Army Act, Air Force
r During the operation of Martial law in any area, Act, or Navy Act) cannot simply be challenged on
any person may be indemnified by the Parliament, the grounds that they violate fundamental rights.
if such person is in service of the state or central This is because these acts are laws duly enacted by
government for the acts of maintenance or Parliament in the exercise of its plenary legislative
restoration of law and order under Article 34. jurisdiction, as stated in Article33 of the Indian
r The President can suspend the remedies provided Constitution.
under Art. 32 during the period of National r Aside from the three branches of the armed
Emergency. forces, these rights have been revoked in respect
r Article 359 confers the power to the President to of members of the police and paramilitary forces,
suspend Article 32 of the Constitution. The order is persons employed in intelligence or counter-
to be submitted to the Parliament. intelligence services, and communication systems
Article 33: Power of Parliament to modify the set up for the aforementioned organizations.
rights conferred by this Part in their application etc r The Central Government, in exercising its rule-
Parliament may, by law, determine to what extent making power under the Army Act of 1950 (as
any of the rights conferred by this Part shall, in their well as the Air Force Act), has limited the rights
application to to freedom of speech and expression, freedom of
Article 33(a) the members of the Armed Forces; or assembly, and freedom to form associations and
Article 33(b) the members of the Forces charged unions enshrined in Article 19 of the Constitution.
with the maintenance of public order; or r The Supreme Court has ruled that these rights can
Article 33(c) persons employed in any bureau or be limited even for members of the armed forces
other organisation established by the State for purposes who serve in non-combat roles.
of intelligence or counter intelligence; or Article 34: Restriction on rights conferred by
Article 33(d) persons employed in, or in connection this Part while martial law is in force in any area
with, the telecommunication systems set up for the Notwithstanding anything in the foregoing provisions
purposes of any Force, bureau or organisation referred of this Part, Parliament may by law indemnify any
to in clauses (a) to (c), be restricted or abrogated so as person in the service of the Union or of a State or
to ensure the proper discharge of their duties and the any other person in respect of any act done by him
maintenance of discipline among them. in connection with the maintenance or restoration of
Explanation: order in any area within the territory of India where
r Article 33 gives the Parliament the authority to martial law was in force or validate any sentence

63
passed, punishment inflicted, forfeiture ordered or clause (ii);
other act done under martial law in such area. Article 35(b) any law in force immediately before
r It provides for the restrictions on fundamental the commencement of this Constitution in the territory
rights while martial law is in force in any area within of India with respect to any of the matters referred to in
the territory of India. The expression ‘martial law’ sub clause (i) of clause (a) or providing for punishment
has not been defined anywhere in the Constitution for any act referred to in sub clause (ii) of that clause
but literally, it means ‘military rule’. shall, subject to the terms there of and to any adaptations
r There are also no specific provisions in the and modifications that may be made therein under
constitution that authorises the executive to Article 372, continue in force until altered or repealed
or amended by Parliament
declare martial law. However, it is implicit in Art
34 under which martial law can be declared in any Explanation:
area within the territory of India. The martial law r Powers of Parliament (only) to Make Laws:
is imposed under extraordinary circumstances like r Prescribing residence as a condition for certain
war, invasion, insurrection, rebellion, riot or any employment or appointments in a state/UT/local
violent resistance to law. or any other authority (Article 16).
r Article 34 empowers the Parliament to indemnify r Empowering courts other than the Supreme Court
(compensate) any government servant or any other and the high courts to issue directions, orders and
person for any act done by him in connection with writs for the enforcement of fundamental rights
the maintenance or restoration of order in any area (Article 32).
where martial law was in force. r Restricting or abrogating the application of
r The Act of Indemnity made by the Parliament Fundamental Rights to members of armed forces,
cannot be challenged in any court on the ground of police forces, etc (Article 33).
contravention of any of the fundamental rights. r Indemnifying any government servant or any other
r During the operation of martial law, the military person for any act done during the operation of
authorities are vested with abnormal powers to martial law in any area (Article 34).
take all necessary steps they impose restrictions r The Parliament has powers to make laws prescribing
and regulations on the rights of the civilians, can punishment for offences such as untouchability
punish them and even condemn them to death. (Article 17) and traffic in human beings and forced
labour (Article 23).
Article 35: It lays down that the power to make
laws, to give effect to certain specified fundamental r Article 35 extends the competence of the Parliament
rights shall vest only in the Parliament and not in the to make a law on the specified matters even those
state legislatures. matters which may fall within the sphere of the
state legislatures (i.e., State List).
Article 35: Legislation to give effect to the
Exceptions to Fundamental Rights
provisions of this Part Notwithstanding anything in this
Article 31A: Saving of Laws that provide for Acquisition
Constitution,
of Estates
Article 35(a) Parliament shall have, and the r Under Article 31A of the Constitution of India,
Legislature of a State shall not have, power to make laws five categories of laws have been defined from
Article 35(i) with respect to any of the matters being challenged on the grounds of violation of
which under clause (3) of Article 16, clause (3) of Article Fundamental rights granted by Article 14 and 19 of
32, Article 33 and Article 34 may be provided for by law the Constitution. These categories are related to
made by Parliament; and m Acquisition of estates and the rights related to it
Article 35 (ii) prescribe punishment for those by the State.
acts which are declared to be offences under this m An amalgamation of various corporations.
Part; and Parliament shall, as soon as may be after the
m Modification of mining leases or even
commencement of this Constitution, make laws for
Extinguishment.
prescribing punishment for the acts referred to in sub

64
 m Taking over the management of properties by judgment, this case ruled out that any amendment
the State. made in the IX Schedule before the Keshavananda
m Modification of the rights of the directors of Bharti case will not be challenged in the court but
various corporations. any amendments made after that, will be.
r Article 31A does not immunise a state law from Article 31C: Saving of laws that give effect to some
judicial review unless it has been reserved for the Directive Principles
president’s consideration and has received his Under Article 31C (which was inserted by the 25th
assent. Amendment Act of 1971), are contained two provisions,
r This article also provided for the payment of these are:
compensation at market values when the state i. It states that if there is a law which seeks to
acquires the land held by a person under his implement the socialistic directive principles
personal cultivation and the land is within the defined under Article 39(b) or 39(c) then it shall
statutory limit. not be declared void on the grounds of the violation
r Uttar Pradesh government put a ceiling on a large of the fundamental rights defined under the Article
number of permissible landholdings under the 14 and Article 19 of the Constitution of India.
Land Holdings Act, 1960. ii. And, if there’s a law which contains a declaration
r Also, under Section 3(17) of the land acquisition act, for giving effect to such a policy then it shall not be
only the ‘male’ was considered as the landholder called in question in the Court of law.
and owner whereas ‘unmarried female’ or Decisions given by court on the constitutionality of
‘woman whose husband is the landowner’, wasn’t Article 31C
considered as the owner of the land. Apart from the r The validity of the 25th Constitutional Amendment
acquisition part, many people have also looked at was questioned in Keshavananda Bharti v State of
this discriminatory side of the Act. The court upheld Kerala, Sikri C.J. held that since Parliament cannot
the constitutional validity of Article 31(1)(a). under Article 368 abrogate fundamental rights;
Article 31B: Validation of Some Acts and Regulations equally it cannot enable the legislature to abrogate
r Under Article 31B of the Constitution of India, the them. Therefore, Article 31C must be declared
Acts and the Regulations which are included in the unconstitutional. The second part of Article 31C
Ninth Schedule are protected from being challenged was held unconstitutional on the ground that it
on the grounds of violation of Fundamental right. ousted the jurisdiction of the Courts which is a basic
Article 31B immunises any law which is included in feature of the constitution and which cannot be
the Ninth Schedule from all the Fundamental rights done away with an amendment under Article 368.
and it does not matter if any of the laws included r Minerva Mills Ltd. v. Union of India, the extended
in the Ninth Schedule falls under any of the five version of Article 31C was struck down by the
categories which are defined under Article 31A. Supreme Court. The Court ruled that the extension
r Article 31B did not allow the government to make of the shield of Article 31C to all the Directive
provisions blatantly against the provisions of Principles was beyond the amending power of
the constitution but only which were fair with Parliament under article 368 because by giving
the provision of the constitution and which are primacy to all Directive Principles over the
inconsistent should be made void. This article Fundamental Rights in Articles 14 and 19, the basic
stood as a shield for the laws contained in the Ninth or essential features of the constitution viz., judicial
Schedule as it makes certain that no question arises review has been destroyed.
on any law contained in that schedule. r Waman Rao v. Union of India, The Supreme Court
r Waman Rao v. Union of India 1981, On 24th April maintained that Article 31C as it stood prior to the
1973, a famous case judgment laid down the 42nd Amendment Act made in 1978, was valid as its
Doctrine of the basic structure, Keshavananda constitutionality had been upheld in Keshavananda
Bharati v. the State of Kerala. In reference to that Bharti case.

65
r I.R. Coelho v. State of Tamil Nadu the Supreme Court They have been criticised for becoming a play
held that any law which infringes basic structure of tool in the hands of the politicians having
the Constitution can be struck down. Parliament majority support in the Parliament. Hence, they
has power to amend Part III so as to abridge or take lack permanency.
away fundamental rights but that power is subject r Suspended during Emergencies
to the limitation of basic structure doctrine. There m Fundamental rights are criticised on the basis
should be a balance between fundamental rights a of their temporary suspension during the
Directive Principles of State Policy. operation of a National Emergency (except for
Conditions for applicability of Article 31C the fundamental rights defined under Articles
There are two conditions which must be fulfilled for 20 and 21) all fundamental rights are suspended
the application of Article 31 C during an emergency.
r A law for giving effect to the policy of the state to r Preventive Detention
implement a Directive Principle in Article 39(b) or
m Provisions for the concept of Preventive
(c).
Detention are criticised by many and the reason
r The Legislature making a declaration to that effect. for this is said to be that it takes away the spirit
But the question that whether the act is intended and substance of fundamental rights as it
to secure the object contained in Article 39(b), (c) does confers arbitrary powers on the State.
not depend upon the declaration made by the legislature r Expensive Remedy
but upon the contents of the act as found by the court.
m The judicial processes are way too expensive
Criticism of Fundamental Rights and hinder the common man from getting
r Immoderate Limitations his rights enforced in the Courts as not every
m The Fundamental rights enshrined by the person has the money or even time to afford
Constitution are subjected to reasonable such proceedings.
restrictions as well as exceptions hence they are Significance of Fundamental Rights
criticised on this remark. m They form a defensive wall of individual liberty.
r Lack of Social and Economic Rights m They protect the interest of minorities.
m The list of Fundamental rights mainly consists m They ensure the dignity and respect of
of political rights. There are no provisions which individuals.
make important social and economic rights
m They constitute the basis of the democratic
such as the right to social security, the right to
system in the country.
work, right to employment, etc. Whereas the
Constitutions of other nations such as China m They strengthen the secular fabric of the Indian
provides for such rights. State.
r Lacks Clarity m Check the absoluteness of the authority of the
government.
m Many phrases and words used under the
definitions of various fundamental rights m Facilitate the participation of people in the
are found to be not clear or vague as their political and administrative process.
explanation is not given anywhere in the m Lays the foundation of social equality and social
Constitution of India. Words such as, ‘Public justice.
order’, ‘minorities’, reasonable restrictions’, etc. Some Rights that are mentioned in other parts of the
belong to this category. Constitution
r No Permanency Apart from the Fundamental Rights included in
Part III, there are certain other rights contained in other
m The Parliament can curtail or abolish the
parts of the Constitution. These rights are known as
fundamental rights. An example of this is the
constitutional rights or legal rights or non-fundamental
abolition of the fundamental right to property.

66
rights. They are: Conclusion
r No tax shall be levied or collected except by authority r The fundamental rights have been included in the
of law (Article 265 in Part XII). Constitution because they were considered to be
r No person shall be deprived of his property save by essential for the development of the personality of
authority of law (Article 300-A in Part XII). each and every individual and are there to preserve
human dignity and respect. Most of these rights
r Trade, commerce and intercourse throughout the
are enforceable against the state by way of their
territory of India shall be free (Article 301 in Part
language while some of these rights can be directly
XIII).
enforced against both the state as well as, a private
r The elections to the Lok Sabha and the State individual.
Legislative Assembly shall be on the basis of adult
r One of the most important aspects of the fundamental
suffrage (Article 326 in Part XV).
rights is that it gives Judiciary clear criteria as to how
Though the above rights are also equally justiciable, the regulation of relations between the citizens and
they are different from the Fundamental Rights. In case the government will take place.
of violation of a Fundamental Right, the aggrieved person
r Another positive aspect of the Fundamental rights
can directly move the Supreme Court for its enforcement
is that these empower the young children of our
under Article 32, which is in itself a fundamental right.
nation as they are granted the right to receive free
But, in case of violation of the above rights, the aggrieved
education up to the age of 14. The fundamental rights
person cannot avail this constitutional remedy. He can
may have flaws but it does provide more protection
move the High Court by an ordinary suit or under Article
to the citizens of the nation than most of the flaws.
226 (writ jurisdiction of high court).

67
 Directive Principles
8
of State Policy
enforceable by the Courts like the 'Fundamental
Introduction
Rights', but which the State shall nevertheless aim
r Directive Principles are certain ideals, particularly at securing, by regulation of its legislative and
aiming at socio-economic justice, which according to administrative policy.
the framers of the Indian Constitution, Stateshould A Brief History of DPSP
strive for. The basic sources from which the directive principles of
r Dr B. R. Ambedkar described Directive Principles state policy have been derived are as follows.
as a “Novel Feature” of the Constitution. They are Constitution of Ireland
in the nature of general directions, instructions or r The Directive Principles of State Policy, which are
guidelines to the State. Directive Principles embody incorporated in Part IV of the Constitution of India,
the aspirations of the people, objectives and ideals are inspired and adopted by the Irish Constitution,
which Union and the State governments must bear which had copied it from the Spanish Constitution.
in mind while making laws and formulating policies.
r The Indian Constitution's drafting committee was
Nature
largely inspired by the Irish nationalist movement,
r Directive Principles of State Policy are positive in
and the principle of Directive Principles of State
nature as it requires the State to do certain things
Policy was derived from Article 45 of the Irish
as opposed to restricting State.
Constitution, which is Directive principles of social
r The directive principles ensure that the State shall policy.
strive to promote the welfare of the people by
Nehru report 1928
promoting a social order in which social, economic
r DPSP and Fundamental Rights have a common
and political justice is informed in all institutions of
origin. The Nehru Report of 1928 (chaired by
life.
Motilal Nehru) contained the Swaraj Constitution
r The State shall work towards reducing economic
of India which contained some of the fundamental
inequality as well as inequalities in status and
rights and some other rights such as the right to
opportunities, not only among individuals, but also
education which were not enforceable at that time.
among groups of people residing in different areas
or engaged in different vocations. Government of India Act, 1935
PART IV of the Constitution (Arts. 36-51) contains the r ‘Instrument of Instructions’ under Government
Directive Principles of State Policy. They are of the of India Act 1935 were instructions issued to
following classes: Governors of the colonies or Governor in general by
1. Certain ideals, particularly economic, which, British government.
according to the framers of the Constitution, the Thoughts of Famous Personalities
States should strive for. r Dr B.R Ambedkar:- The Directive Principles are the
2. Certain directions to the Legislature and the novel feature of the Indian Constitution.
Executive intended to show in what manner the r Granville Austin:- He described the DPSP as
State should exercise their legislative and executive “Conscience of the Constitution”. Directive Principles
powers. are aimed at furthering the goals of social revolution
3. Certain rights of the citizens which shall not be or to foster this revolution by establishing the
conditions necessary for the achievements.

68
r Sir B.N. Rau (constitutional advisor to the promotion of welfare of the people
constituent assembly):- Directive Principles are Article 38(1) The State shall strive to promote
intended as ‘moral precepts for the authorities of the welfare of the people by securing and protecting as
the State’. They have at least an educative value.
effectively as it may a social order in which justice, social,
r Jawaharlal Nehru’s statement in Parliament in economic and political, shall inform all the institutions
1955:- The responsibility for economic and social of the national life
welfare policies of the nation should lie with the
Article 38(2) The State shall, in particular, strive
Parliament and not with the Courts. In the case
to minimize the inequalities in income, and endeavour
of contradiction, it was for Parliament to remove
to eliminate inequalities in status, facilities and
the contradiction and make Fundamental rights
opportunities, not only amongst individuals but also
subserve the Directive Principles of State Policy
amongst groups of people residing in different areas or
(DPSP).
engaged in different vocations
Article 36: The State has the same meaning as in Part
Explanation:
III
Explanation: The current Article is the one that reflects the
As Part IV talks about the principles that a state needs characteristics embedded in the Preamble of the
to follow for proper governance, this Article explains Constitution, especially Justice and Equality.
what a state is. It holds the same meaning as a state does r Sub-clause (1) states that the ultimate goal of
under Part III of the Constitution. A state, therefore, the State is to secure justice in all forms – social,
consists of the following: political, and economic, across the country.
1. The Central Government and the State Governments, r Subclause (2) talks about how the state has to ensure
2. The Parliament at the Centre and the different state that there are low to nil inequalities among the
legislatures, public with relation to income, facilities, and services,
3. Any other local body or authority that is under the opportunities, etc. The 44th Amendment Act in the
control of India or is a part of its territory. year 1978 expanded sub-clause (2) to state that efforts
should be made to reduce inequalities not only among
Article 37: Application of the principles contained
in this Part. The provisions contained in this Part shall individuals but also among different groups of people
not be enforceable by any court, but the principles residing in different areas of the country.
therein laid down are nevertheless fundamental in This particular Article shows the socialist status of
the governance of the country and it shall be the duty the DPSP in which the main characteristic of a state is
of the State to apply these principles in making laws. that it is societal -welfare-oriented.
Explanation: Article 39: Certain principles of policy to be
r This Article talks about the non-enforceable nature followed by the State: The State shall, in particular,
of the Directive Principles of State Policy. DPSP direct its policy towards securing
cannot be enforced in a court of law; however, it Explanation:
does not mean that the states do not have a duty to This Article lays down some basic and general principles
follow through with the principles. that the DPSP proclaims. They are the following:
r They are mere guidelines that the states are a) Presence of equal means to a sufficient livelihood.
supposed to consider throughout their governance. Livelihood consists of food, clothing, medical
r The court emphasized that their non-enforceability facilities, education, etc.
does not make them any less important than the b) Ownership and authority over material resources
Fundamental Rights. should be distributed in a utilitarian manner.
Article 38: State to secure a social order for the c) There should not be any concentration of wealth

69
 in the hands of a few people/groups of people that village panchayats and endow them with such powers
might result in a detriment of the common good of and authority as may be necessary to enable them to
the public. function as units of self-government.
d) Presence of equal pay for equal work done, no
matter if it is a man, a woman, or any other gender. Explanation:
e) The health as well as the strength of the public This Article talks about the creation and
workers that can be man, woman, child, etc. should establishment of Panchayats. Under this, the state
not be abused. The people should not be compelled should grant the necessary powers for these Panchayats
to enter into vocations that are not suitable for that would result in them being self–governing units of
either their age or strength simply by economic small areas in the country.
necessity. r The Constitution (73rd Amendment) Act, 1992 has
f) As inserted by the 42nd Amendment, the state added a new part IX consisting of 16 Articles and
should ensure that children have a healthy the Eleventh Schedule to the Constitution.
environment around them for their holistic growth r The 73rd Amendment contains the Gram Sabha
and development into able adults in the future. as the foundation of the Panchayat Raj System to
Though given under Article39(d) of the Constitution, perform functions and powers entrusted to it by the
the concept of equal pay for equal work is not enforceable State Legislatures.
under a court of law. As stated in the case Harbans Lal v.
r The amendment provides for a three tier Panchayat
the State of H.P., (1989), this principle is not enforceable
Raj System at the village, intermediate and district
as a separate fundamental right. It can only be read with
levels.
Articles 14 and 16 of the Constitution that are subjected
Article 41: Right to work, to education and to public
to certain conditions.
assistance in certain cases. The State shall, within
Article 39A: The State shall secure that the the limits of its economic capacity and development,
operation of the legal system promotes justice, on a make effective provision for securing the right to
basis of equal opportunity, and shall, in particular, work, to education and to public assistance in cases
provide free legal aid, by suitable legislation of unemployment, old age, sickness and disablement,
or schemes or in any other way, to ensure that and in other cases of undeserved want
opportunities for securing justice are not denied to Explanation:
any citizen by reason of economic or other disabilities. r The State plays the role of a welfare government
Explanation: under this Article by focusing on the parts of society
r This Article was inserted by the 42nd Amendment that needs its help to flourish.
and talks about free legal aid that is provided by the r Therefore, issues such as unemployment, food
state to administer justice in the country by creating scarcity, old age, disability, etc. are looked after by
schemes, programs, and provisions and ensuring the government through schemes and programs
that people do not lose the opportunity to secure such as MGNREGA, Pension schemes, social
justice just because of economic disadvantages. assistance programs, etc.
r The court also stated that the state is duty- r The state also ensures that adequate education and
bound to provide a lawyer to an accused person job opportunities are available to the best of its
if circumstances of the case and needs of justice current economic abilities.
so require such as poverty, indigence, etc. as long Article 42: Provision for just and humane
as the accused does not object to the provision of conditions of work and maternity relief. The State
providing a lawyer. shall make provision for securing just and humane
conditions of work and for maternity relief
Article 40: The State shall take steps to organise

70
 Explanation: overall profits are derived.
r The Article talks about the working conditions of m The 97th Amendment Act of 2011 has inserted
the citizens. Article 43B so that the state would also promote
r The state needs to ensure that the conditions and the co-operative societies on their formation
fair, just, and humane to every employee. and functioning.
r The state also needs to ensure that people who can r Ministry of Cooperation
be pregnant are given maternity relief.Maternity m In a historic move, a separate ‘Ministry of Co-
Benefit Amendment Act, 2017 is an example of this operation’ has been created by the Government
directive principle. of India in 2021 for realizing the vision of
Article 43: Living wage, etc, for workers. The State ‘Sahkar-se-Samriddhi’.
shall endeavour to secure, by suitable legislation or m This ministry will provide a separate
economic organisation or in any other way, to all
administrative, legal and policy framework for
workers, agricultural, industrial or otherwise, work,
strengthening the cooperative movement in the
a living wage, conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social country.
and cultural opportunities and, in particular, the m It will help deepen co-operatives as a true
State shall endeavour to promote cottage industries people-based movement reaching up to the
on an individual or cooperative basis in rural areas grassroots.
Explanation: m In our country, a Co-operative based economic
r This goes back to the fair and equal wages principle development model is very relevant where each
under Article-39(d). member works with a spirit of responsibility.
r The state, under this Article, states that the wages m The Ministry will work to streamline processes
and salaries of people working in any kind of job for ‘Ease of doing businesses for co-operatives
– agricultural, industrial, etc. should be fair and and enable development of Multi-State Co-
enough to provide them with a decent standard of operatives (MSCS).
living and be able to enjoy the luxuries of their lives. m The Central Government has signalled its
r In particular, under this Article, the state should deep commitment to community based
give more focus and help to the cottage industries developmental partnership.
of the country either on its own or on a co-operative Article 44: Uniform civil code for the citizens.
basis. The State shall endeavour to secure for the citizens a
Article 43B: Promotion of co-operative societies. uniform civil code throughout the territory of India.
The State shall endeavour to promote voluntary Explanation:
formation, autonomous functioning, democratic r The Indian Constitution states that “the State shall
control and professional management of co-operative endeavour to secure for the citizens a uniform civil
societies. code (UCC) throughout the territory of India.”
Explanation: r The desirability of a uniform civil code is consistent
r Cooperative societies with human rights and the principles of equality,
m A Co-operative Society is an organization that fairness and justice.
is formed by a group of people whose primary Article 45:Provision for free and compulsory
objective is the promotion of the economic education for children. The State shall endeavour
interests of its members. This is achieved by to provide, within a period of ten years from the
the Cooperative sharing its profits amongst its commencement of this Constitution, for free and
members, in proportion to their contribution compulsory education for all children until they
to the Cooperative’s business, from which its complete the age of fourteen years.

71
 Explanation: nutrition to the poor and deserving, and also to
r The current Article was inserted by the 86th prohibit or limit the consumption of drinks and
Amendment. drugs that are injurious to public health.
r Through these steps, the state tries to promote the
r This Article talks about the right of children to
standard of living of people in the country.
obtain compulsory and free pre-school education
up to 6 years of age for their holistic growth and r Programs such as the National nutrition mission,
development. Mid-day meal scheme, National Health Mission, etc.
are already in function to achieve these objectives.
r It shall also provide free and compulsory education
up to 14 years of age within which the child would Article 48: Organisation of agriculture and
have basic education to survive. animal husbandry. The State shall endeavour to
organise agriculture and animal husbandry on
Article 46: Promotion of educational and
modern and scientific lines and shall, in particular,
economic interests of Scheduled Castes, Scheduled
take steps for preserving and improving the breeds,
Tribes and other weaker sections. The State shall
and prohibiting the slaughter, of cows and calves and
promote with special care the educational and
other milch and draught cattle
economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and Explanation:
the Scheduled Tribes, and shall protect them from r The current Article talks about the need of the
social injustice and all forms of exploitation state to engage in the promotion of agriculture
and animal husbandry through scientific lines and
Explanation:
methods.
r This Article is about the protection of the minority r Through this manner, the state shall also ensure
and weak communities of the country such as the that unnecessary slaughtering of cows, calves, and
SCs, STs, etc. against any exploitation. other milch and draught cattle is prohibited as well
r As they are the weaker sections of the society, they as take scientific steps to improve the breeds of the
may find it more difficult to prosper as compared to cattle.
their counterparts. r In the case of State of Gujarat v. Mirzapur Jamat,
r Therefore, the state needs to ensure that they are (2005), the court had held that the term ‘milch and
received with enough care and adequate economic draught cattle’ was used to distinguish other kinds
and educational opportunities are also available to of cattle that neither belong to milch or draught. It
them. is simply a form of classification.
Article 47: Duty of the State to raise the level of Article 48 A: Protection and improvement of
nutrition and the standard of living and to improve environment and safeguarding of forests and wild
public health. The State shall regard the raising of life The State shall endeavour to protect and improve
the level of nutrition and the standard of living of the environment and to safeguard the forests and
its people and the improvement of public health as wild life of the country
among its primary duties and, in particular, the Explanation:
State shall endeavour to bring about prohibition of r This article added by 42nd Amendment Act,
the consumption except for medicinal purposes of talks about the protection and safeguard of the
intoxicating drinks and of drugs which are injurious environmental surroundings as well as the flora
to health and fauna of nature.
Explanation: r The court had held that preservation and protection
r This Article brings about the duty of the state of open spaces such as parks are of vital interest to
to ensure that the country has moderate to high the public.
standards of nutrition and public health. r The state authorities are dutybound to act in
r Steps need to be taken by the state to provide trusteeship for common spaces such as air, water,
forests, etc.

72
 Article 49: Protection of monuments and places r The last directive principle is about the international
and objects of national importance. It shall be the dealings of the state.
obligation of the State to protect every monument r According to it, the state’s main international aim is
or place or object of artistic or historic interests, to maintain and preserve peace and security across
declared by or under law made by Parliament to be of borders, foster healthy relationships with other
national importance, from spoliation, disfigurement, states, respect international law and other treaty
destruction, removal, disposal or export, as the case obligations with another state, etc.
may be
Classification of Directive Principles
Explanation: r Socialist Principles:
r This Article talks about preserving and protecting m These principles contemplate the ideology
monuments and objects that are of national
of socialism and lay down the framework
importance from any sort of destruction,
of a democratic socialist state. The concept
disfigurement, etc.
envisages providing social and economic justice,
r It shall be the duty of the State to protect every
so that state should achieve the optimum norms
monument or place or any object of historic or artistic
of the welfare state
interest which has some national importance, from
r Gandhi’s principles:
any form of disfigurement, destruction, etc.
m These principles reflect the ideals of Gandhi
r Examples can be the Taj Mahal, Qutab Minar, etc. that
during the national movement of India. In order
hold the memories and history of Indian culture.
to fulfil the dreams of Gandhi, some of his ideas
Article 50: Separation of judiciary from executive.
were included in DPSP and they direct the state.
The State shall take steps to separate the judiciary
from the executive in the public services of the State r Liberal policy

Explanation: m The aim of these principles is to establish a liberal

socio-political system in India and to make the
r This is the only direct evidence of separation of
state an instrument of socio-economic welfare.
powers between at least two organs of the state
that is present in Part IV of the Constitution. r International Policies:
r It states that the state should ensure that the m Those principles which do not belong to any
executive and judiciary work as separate organs ideology and are of generic nature and also deal
concerning public services. with the formulation of foreign policy of India
and its role as member of the international
r In the case of S.P Gupta v. Union of India, 1981,
community come under this category.
the court had reiterated the importance of the
m In accordance with Article 51, the State of India
independence of the judiciary from executive
pressure and influence. shall endeavour to promote international peace
and security and to respect the treaty of law.
Article 51: Promotion of international peace and
security The State shall endeavour to Amendments in Directive Principles
r 42nd Amendment Act of 1976
Article 51(a)promote international peace and
security; Four new Directive Principles were added in the
42nd Amendment Act of 1976 to the original list.
Article 51(b) maintain just and honourable
They are requiring the state:
relations between nations;
1. An added clause in Article 39: To secure
Article 51(c) foster respect for international law
opportunities for the healthy development of
and treaty obligations in the dealings of organised
children
peoples with one another; and encourage settlement
of international disputes by arbitration PART IVA 2. An added clause in Article 39 as Article 39A: To
FUNDAMENTAL DUTIES promote equal justice and to provide free legal
aid to the poor

73
 3. An added clause in Article 43 as Article 43 A: that it may serve as a medium of expression of all
To take steps to secure the participation of the elements of the composite culture of India.
workers in the management of industries r The Directives contained Articles 335, 350A, 351
4. An added clause in Article 48 as Article 48A: To are not included in Part IV, Courts have given similar
protect and improve the environment and to attention to them on the application of the principle
safeguard forests and wildlife that all parts of the Constitution should be read
r 44th Amendment Act of 1978 together.
The 44th Amendment Act of 1978 necessitated DPSP under Preamble
the state to abate inequalities in income, status, r The Preamble of the Constitution is called the key to
facilities and opportunities under Article 38.
the mind of the drafters of the Constitution. It lays
m They have paved the way for confiscatory down the objectives that our Constitution seeks to
taxation and for equalising salaries and wages achieve.
for different vocations and different categories of
r Many scholars believe that DPSPs is the kernel of
work, which would usher in a socialistic society,
the Constitution. The Directive Principles of the
even without resorting to nationalisation of the
State Policy (DPSPs) lay down the guidelines for the
means of production.
state and are reflections of the overall objectives
r 86th Amendment Act of 2002
laid down in the Preamble of Constitution.
The 86th Amendment Act of 2002 made the
r The expression Justice- social, economic, political
elementary education a fundamental right under
is sought to be achieved through DPSPs. DPSPs
Article 21 A and modified the subject-matter of
are incorporated to attain the ultimate ideals
Article 45.
of preamble i.e., Justice, Liberty, Equality, and
The 86th Amendment Act necessitated the state to
Fraternity.
provide early childhood care and education for all
children until they complete the age of six years. r Moreover, it also embodies the idea of the welfare
r 97th Amendment Act of 2011 state which India was deprived of under colonial rule.

A new Directive Principle was added during 97th Comparison between Directive Principle

Amendment Act relating to co-operative societies. & Fundamental Rights

It necessitated the state to promote voluntary Fundamental Rights DPSP

formation, autonomous functioning, democratic The Fundamental Rights Part IV of the Indian
guaranteed to Indian people are Constitution contains the
control and professional management of co- included in Part IIIof the Indian Directive Principles. Articles
operative societies under Article 43B. Constitution. Fundamental 36-51 of the Indian Constitution
Rights are addressed in Articles contain these provisions.
Directives in other parts of the Constitution 12-35 of the Indian Constitution.
r (Article 335) instruct that the claims of the members Fundamental rights are rules The Indian constitution's
of the Scheduled Castes and the Scheduled Tribes within which the policy should Directive Principles are the
be framed and can be challenged rules that the government must
shall be taken into consideration, consistently with in court. follow when formulating policy.
the maintenance of efficiency of administration, in Fundamental Rights enshrined The Directive Principles of State
the making of appointments to services and posts in in the Indian Constitution Policy help to develop Economic
connection with the affairs of the Union or of a State. contribute to establish political and Social Democracy.
democracy in the country.
r (Article 350A) It is the duty of every state and Fundamental Rights promote Directive Principles are used to
its local administration to ensure that education the well-being of each and every promote the well-being of the
through mother tongue is provided to the minority individual. entire community.

community at the primary level Violations of Fundamental In contrast to violations of

Rights are penalised under the Fundamental Rights, violations
r (Article 351) enjoins the Union to promote the law. of Directive Principles are not
spread of the Hindi language and to develop it so penalised.

74
 Fundamental Rights are Directive Principles are not Rights and DPSP go hand in hand so this was there to
justiciable in the sense that they justiciable in the sense that avoid the situation of conflict while enforcing DPSP
can be lawfully enforced by the they cannot be enforced by the
courts if they are violated. courts if they are broken.
and Fundamental Rights. But still after applying the
If a law violates fundamental The courts do not have the
doctrines of interpretation, there is a conflict between
rights, the courts have the authority to declare a law Fundamental Right and DPSPs, then the former should
authority to declare it void and unlawful and unconstitutional be upheld.
unconstitutional. if it violates the Directive
Principles. r In Venkataraman vs State of Madras (1966), Court
Fundamental Rights are Directive Principles are gave precedence to Fundamental Rights over DPSPs.
sometimes viewed as a set guidelines for the government
of constraints placed on the to follow in order to attain
r In the Golaknath vs state of Punjab case 1967, the
government. specific goals. Court held that the Fundamental Rights cannot
During a national emergency, fundamental rights might be amended for implementation of the Directive
be suspended. However, Articles 20 and 21 protect rights Principles.
that cannot be interrupted. Under no circumstances r In Keshavananda Bharti (1973), The Apex Court
can the State Policy Directive Principles be suspended. placed the bedrock of basic structure. Supreme
According to Article 13 (2), the law against Court held that Parliament can amend any part of
fundamental rights can be repealed. Laws contrary to the Constitution but without destroying the basic
the directive policy of the state cannot be repealed. structure of the constitution. The second clause
Relationship with Fundamental Rights through of Article 31C was as declared as unconstitutional
various judgements and void as it was against the Basic Structure of the
The main objective behind both the Fundamental Rights Constitution propounded in this case itself.
and Directive principle is to secure the pleasure of social, r In the case of Pathumma vs. the State of Kerala,
economic and political Justice. It is not only used for the 1978, the Supreme Court emphasised the purpose
dignity of the citizen but also helps in the welfare of every of DPSP that is to fix some social-economic goals.
individual. They are complementary and supplementary r Ultimately in the case of Minerva Mills vs. Union
to each other. The basic feature of the constitution is to of India (AIR 1980 SC 1789), the question before
maintain harmony between fundamental rights and the court was whether the directive principles of
DPSP. The theme of fundamental rights must be made in State policy enshrined in Art IV can have primacy
light to DPSP. Here are few important judgements:- over the fundamental rights conferred by Part III of
r In the Champakam Dorairajan vs Madras case the Constitution. The court held that the doctrine
(1951), the Supreme Court ruled that in case of any of harmonious construction should be applied
conflict between the fundamentals right and the because neither of the two has precedence to each
Directive Principles, the Fundamental rights would other. Both are complementary therefore they are
prevail. needed to be balanced. the Supreme Court also
r Parliament made first Amendment Act (1951), the held that ‘the Indian constitution founded on the
Fourth Amendment Act (1955), and the Seventeenth bedrock of the balance between the Fundamental
Amendment Act (1964) to implement some of the Rights and the Directive Principles.
Directives. r In Ashok Kumar Thakur Vs. Union of India, 2008,
r In Kerala Education Bill (1957) Court said that in the Supreme Court said that no difference can be
case of conflict between Fundamental Right and made between the 2 sets of rights. Fundamental
DPSPs, the principle of harmonious construction Rights deal with Civil and political rights whereas
should be applied. DPSP deals with social and economic rights. DPSP
Doctrine of Harmonious Construction are not enforceable in a court of law doesn’t mean it
It says that you need to constitute the provision of is subordinate.
the constitution in such a way that Fundamental Conflicts between Directive Principles and

75
Fundamental Rights r It is also to be noted that outside these two
r It may be observed that the declarations made in fundamental rights [in Arts. 14 and 19], the general
Part IV of the Constitution under the head 'Directive proposition laid down in 1951 shall subsist. Thus,
Principles of State Policy' are in many cases of a by way or implementing the Directive in Art. 45, to
wider important than the declarations made in Part provide free and compulsory education to children,
III as 'Fundamental Rights'. -the State cannot override the fundamental right,
under Article 30(1), of minority communities to
r The question of priority in case of conflict between
establish educational institutions of their own
the two classes of provisions may easily arise. But
choice.
while the Fundamental Rights are enforceable by
r Present Order of Precedence
the Courts and the Courts are bound to declare as
void any law that is inconsistent with any of the What will prevail if dispute arises? The present
'Fundamental Rights', the Directives are not so order of precedence is as below:
enforceable by the Courts [Art. 37], and the Courts 1. FR except Article 14 and Article 19
cannot declare as void any law which is otherwise 2. DPSP except Article 39(b) and Article 39(c)
valid, on the ground that it Contravenes any of the This means that DPSP 39(b) and 39(c) has been
'Directives'. given precedence over Fundamental Right 14 (Right
r In case of any conflict between Parts III and IV of to Equality) and Fundamental Right 19 (Freedom of
the Constitution, the former should prevail in the Speech and Expression).
Courts. If any law is made to Implement any of the Enforceability of DPSPs
Directives contained in Part IV of the Constitution, it r Many times, the question arises that whether an
would be totally immune from unconstitutionality individual can sue the state government or the
on the ground of contravention of the fundamental central government for not following the directive
rights conferred by Arts. 14 and 19. principles enumerated in Part IV. The answer to this
r This attempt to confer a primacy upon the Directives question is in negative.
as against the Fundamental Rights has, however, r The reason for the same lies in Article 37 which
been foiled by the majority of the Supreme Court in states that:
the Minerva Mills case in two respects: m The provisions contained in this Part shall not
m It has struck down the widening of Art. 31C to be enforceable by any court, but the principles
include any or all of the Directives in Part IV, on therein laid down are nevertheless fundamental
the ground that such total exclusion of judicial in the governance of the country and it shall be
review would offend the 'basic structure' of the the duty of the State to apply these principles in
Constitution. In the result, Art. 31C is restored making laws.
to its pre-1976 position, so that a law would be m Therefore, by the virtue of Article 37 no
protected by Art. 31C only if it has been made provision of this part can be made enforceable
to implement the directive in Art. 39(b)-(c) and in the court of law thus these principles cannot
not any of the other Directives included in Part be used against the central government or the
IV. state government. This non-justiciability of
m It has been also held that there is a fine balance DPSPs make the state government or the central
in the Original Constitution as between the government immune from any actionagainst
Directives and the Fundamental Rights, them for not following these directives.
which should be adhered to by the Courts, by
r Another question arises that whether the Supreme
a harmonious reading of the two categories
Court or High Court can issue the writ of mandamus
of provisions, instead of giving any general
if the state does not follow the directive principles.
preference to the Directive Principles.
The literal meaning of mandamus is “to command.”

76
 It is a writ which is issued to any person or authority authority from Article 39(a) which talks about the
who has been prescribed a duty by the law. This right to adequate means of livelihood. Laws such
writ compels the authority to do its duty. as the Child Labour (Prohibition and Regulation)
m The Writ of mandamus is generally issued Act 1986 bolster the canons of Article 39(g) which
in two situations. One is when a person files deals with the protection of children.
writ petition or when the Court issues it suo r A large number of laws have been enacted to
moto i.e., own motion. As per Constitutional implement the directive in Art. 40 to organise
Principles, a Court is not authorized to issue village panchayats and endow them with powers
the writ of mandamus to the state when the of self-government. The panchayats, elected by the
Directive Principles are not followed because entire adult population in the villages, have been
the Directive Principle is a yardstick in the endowed with powers of civic administration such
hand of people to check the performance of as medical relief, maintenance of village roads,
government and not available for the courts. streets, tanks and wells, provision of primary
But the Court can take Suo moto action when education, sanitation and the like.
the matter is of utmost public importance and r For the promotion of cottage industries [Art 43],
affect the large interest of the public. which is a State subject, the Central Government
DPSP and Governance has established several Boards to help the State
r The Constitution itself affirms that they are Governments, in the matter of finance, marketing
fundamental to the governance of the nation. The and the like.
Directive Principles are the life-giving provisions r Legislation for compulsory primary education [Art.
of the Constitution. They constitute the stuff of the 45] has been enacted in most of the States and in
Constitution and its philosophy of social justice. Union Territories.
r Although the implementation of the principles laid r For raising the standard of living [Art. 47],
down in Part IV are not directly visible yet there are particularly of the rural population, the
Government of India launched Its Community
large and excessive of laws and government policies
Development Project in 1952. Later on, Integrated
which reflect the application of the principle of Part
Rural Development. Programme (IRDP) (1978-79),
IV. Though these Directives are not enforceable by
National Rural Employment Programme (NREP),
the Courts and ifthe Government of the day fails Rural Landless Employment Guarantee Programme
to carry out these objects no court can make the (RLEGP), Drought Prone Areas Programme (DPAP),
Government ensure them, yet these principles under National Skill Development Programme, Pradhan
Article 37 have been declared to be fundamental in Mantri Kaushal Vikas Yojana (PMKVY), Desert
the governance of the country and a government Development Programme (DDP) and some other
which rests on popular vote can hardly ignore them, schemes were launched.
while shaping its polity. "It shall be the duty of the r The legislation relating to prohibition of Intoxicating
State to apply these principles in making laws”. drinks and drugs (Art. 47) had taken place in some
r Though paucity of the financial resources of the of the provinces long before the Constitution came
States is the primary reason for the failure to fully into being, not much of effective work bad been
implement this Directive so far, it would be only done until, in pursuance of the Directive in the
Constitution, the Planning Commission took up
candid to record that ultimately, failure of the
the matter and drew up a comprehensive scheme
people to imbibe the Gandhian ideal of life is at the
through its Prohibition Enquiry Committee. Since
back of this failure.
then, prohibition has been introduced in several
r Policies like Mahatma Gandhi National Rural States in whole or in part.
Employment Guarantee Act(MGNREGA) get their r As to the separation of the executive from the

77
 Judiciary [Art. 50], the slow progress and diverse its legislative and executive acts’.
methods in the various States has been replaced by Problems in implementation of DPSP
a uniform system by Union legislation, in the shape There are several problems in implementation of DPSP
of the Criminal Procedure Code, 1973, which has as follows:
placed the function of judicial trial in the hands of
1. Historical factors: India was under control of
the Judicial Magistrates', who are members of the
Britishers for a long period of time. During this
judiciary and are under the complete control of the
time period, India became more and more poor.
High Court
Also, divisions in Indian society grew stronger.
r In case of refusal to comply with such directions
Thus, historical factors have further contributed to
issued by the Union, it may apply Art 365 against
economic and social factors.
such recalcitrant State. Otherwise, the Directives in
2. Social factors: Several social factors such as gender
Part IV shall ever remain
inequality, poverty, illiteracy, caste-based inequality,
r It would also be a potent weapon at the hands of
etc., inhibit implementation of some DPSP.
the Opposition -to discredit the Government on the
ground that any of its executive or legislative acts is m On account of gender inequality, equal pay for
opposed to the Directive Principles. equal work is difficult to be ensured.
r Even if the directive policies impose certain m On account of high poverty in India, adequate
responsibilities on the state, the state cannot pass means of livelihood are not available to everyone.
any law on the strength of the directive policy alone. Illiteracy hampers workers’ participation in
Importance of DPSPs for an Indian citizen management, etc.
r They facilitate stability and continuity in domestic 3. Economic factors: Some DPSP cannot be
and foreign policies in political, economic and social implemented because of lack of financial resources
spheres in spite of the changes of the party in power. with the State. For instance, right to work, education,
r They are supplementary to the fundamental and public assistance requires expenditure on
rights of the citizens. They are intended to fill in behalf of State.
the vacuum in Part III by providing for social and 4. Constitutional factors: As many subjects such as
economic rights. health, forest etc which are mentioned in state list
r Their implementation makes a favourable where the interference by centre can impact on
atmosphere for the full and proper enjoyment of federal structure of nation.
the fundamental rights by the citizens. Political Criticism of the Directive Principles
democracy, without economic democracy, has no
Many constitutional and political experts as well as
meaning.
members of the constituent assembly criticised the
r They enable the opposition to exercise influence Directive Principles on the following grounds:
and control over the operations of the government.
No Legal Force
The Opposition can blame the ruling party on
r The criticism of the Directive principles was mainly
the ground that its activities are opposed to the
the consequence of their non-justiciable nature.
Directives.
While K T Shah dubbed them as ‘pious superfluities’
r They serve as a crucial test for the performance
and compared them with ‘a cheque on a bank,
of the government. The people can examine the
payable only when the resources of the bank permit’.
policies and programmes of the government in the
r K.C Wheare called them as a manifesto of aims and
light of these constitutional declarations.
aspirations and suggested that they serve simply as
r They serve as common political manifesto. ‘A moral homily, and Sir Ivor Jennings observed them
ruling party, irrespective of its political ideology, only as pious aspirations.
has to recognise the fact that these principles are
r T.T Krishnamachari described the Directives as a
intended to be its guide, philosopher and friend in
veritable dust-bin of sentiments, whereas

78
Arrangement of DPSP The parties that form governments today are not
r According to the critics, the Directive Principles concerned with the well-being of the nation. They play
are not arranged in a sensible manner on the basis divisive politics for their betterment. They are concerned
of a consistent philosophy. The declaration blends with the furtherance of their ideologies that the nation
with the relatively insignificant issues with the may not even share. In this environment, the DPSPs is a
most important economic and social questions. It yardstick for the government’s performance and also a
combines rather inappropriately the modern with check on arbitrary legislation.
the old and provisions suggested by the reason and The current position of the Directives is balanced
science with provisions based purely on sentiment and desirable. But it is also recommended that they must
and prejudice. be made secular and free of morals that they impose on
Conservative citizens. They must incorporate the sentiments held
r Sir Ivor Jennings observed the Directives to be on the by the nation as a whole and not those held by only a
basis of the political philosophy of the 19th century particular class.
England. He remarked: ‘The ghosts of Sydney Webb Related Topic in News
and Beatrice Webb stalk through the pages of the Uniform Civil Code
text. Part IV of the Constitution expresses Fabian Uniform Civil Code or UCC, a single personal law for all
Socialism without the socialism’. He suggested that citizens irrespective of religion, sex, gender and sexual
the Directives are deemed to be suitable in India in orientation. Even the constitution says the state should
the middle of the twentieth century. "endeavour" to provide such a law to its citizens.
Constitutional Conflict Article 44as a Directive Principle of State Policy
r K Santhanam has stated that the Directive state about uniform civil code. It states that “The State
principles arise a constitutional conflict between shall endeavour to secure for the citizens a uniform civil
centre and state. According to him, the Centre can code throughout the territory of India”.
give directions to the states with respect to the
History
implementation of these principles, and in case of
Pre independent era
non-compliance, can dismiss the state government.
r The debate for a uniform civil code dates back
For instance, when the Prime Minister gets a bill during the colonial period in India. Prior to the
which is violating the Directive Principles and is passed British rule try to reform local social and religious
by the Parliament, the President may reject the bill on custom under the East India Company (1757-1858).
the ground that these principles are fundamental to the
r The Lex Loci Report of October 1840 emphasised
governance of the country and hence, the Ministry has
the importance and necessity of uniformity in
no right to ignore them. The same constitutional conflict
codification of Indian law, relating to crimes,
may arise at the state level between the Governor and
evidences and contract but it recommended that
the Chief Minister.
personal laws of Hindus and Muslims should be
Conclusion kept outside such codification.
Keeping in mind the arguments put forth above and
r This separation of Hindus and Muslims before law
the aim of the Constituent Assembly while creating the
was part of the Divide and Rule policy of the British
non-justiciable rights, it can be concluded that making
Empire that allowed them break the unity among
the DPSPs enforceable is unnecessary. The Assembly did
the various communities and rule over India.
not want to enforce the Directives because they feared
r According to their understanding of religious
that they would become out of date over time. Secondly,
divisions in India, the British separated this sphere
most of their provisions have been enforced through
which would be governed by religious scriptures
various legislations; those that are not enforceable have
and customs of the various communities (Hindus,
debatable relevance in today’s world.
Muslims, Christians and later Parsis).

79
r These laws were applied by the local courts or and seek to codify and reform age-old personal
panchayats when dealing with regular cases laws in accordance with current modernizing and
involving civil disputes between people of the integrative tendencies.
same religion; the State would only intervene in Implementing UCC
exceptional cases. r State of Goa is the first and the only State to
Post Independent Era implement a uniform civil code since its liberation
r Mohd. Ahmed Khan Vs Shah Bano case (1985) from the Portuguese in 1961.
r The discussion for the implementation of UCC m The Supreme Court has even hailed Goa as a
started with the Shah Bano case wherein the apex shining example where the uniform civil code
court called for the implementation of UCC. is applicable to all, regardless of religion except
r Here, Supreme Court observed that, “A common while protecting certain limited rights.
civil code will help the cause of national integration r The States of Uttar Pradesh and Uttarakhand have
by removing disparate loyalties to law which have also underscored upon the UCC being the need of
conflicting ideologies." the hour and how their state governments want
Need of Uniform civil code to take appropriate measures in furtherance of its
Ensuring equality for women implementation.
Across all religions, castes, and classes of society, UCC Challenges in the implementation of Uniform Civil
promoted the fundamental rights of women. Provides Code:
women’s an equal right to inheritance, decisions in r Diverse personal laws: India is a land where diverse
adoption, marriage, divorce, etc. This can bring in the culture custom practice is found. The customary
essential economic and social reforms in society and practices among communities differ a lot. The
ameliorate the situation of women in India. vast diversity of the personal laws, along with the
Promote Gender Justice allegiance to which they are adhered to, makes
r UCC will promote gender justice by separating the uniformity of any sort very difficult to attain. It
inbuilt discriminatory allocation of personal laws. is very tough to find a common ground between
r Under the Hindu law, the Mitakshara branch of various communities.
law refused to a Hindu daughter a right by birth in r False penetration: Many people still not aware,
the joint family estate and this proceeded logically what the uniform civil code really means. There are
from the fact that her place in the paternal family still false dissemination surrounding it, especially
was only provisional as she was belonged to her among the minorities, which make a various
husband’s family on marriage.
reasonable debate on its implementation quite
r Islamic law stipulated that generally a man’s share challenging.
of the inheritance is double that of a woman in the
r Encroachment on religious freedom: Many
same degree of relationship to the diminished.
communities, particularly minority communities
r Under Muslim law, the father is the sole protector of fear that a common code will restrict their traditions
the person and property of his minor child. and impose rules which will be mainly influenced
Important for national Integration by the majority religious communities
r Uniform Civil Code will distinguish religion from r Fundamental rights violation: There is an agitation
social relations and personal laws, securing equality that the uniform civil code may be in conflict with the
and thus create harmony in the society. fundamental rights of freedom of conscience of free
r It will help for the integration of India, as a lot of the profession, practice and propagation of religions
animosity is caused by favorable treatment by the under and the freedom to manage religious affairs
law of certain religious communities. This could in under Article 25 and Article 26 respectively.
time persuade custodians of faith to look inwards r Opposition from the different religious groups:

80
 This is one of the most insignificant and obvious r So that the prejudices and stereotypes can be
obstacles to bring up the Uniform Civil Code. The brought light for all the religions.
fundamentalism which is deep-rooted in numerous r In due course of time, they can test against the
religions in India doesn’t seem to end even in the fundamental rights in the constitution.
21st century. r It could help arrive at determined Universal

Way forward: principles.

1. Acknowledgement: Major realisation are needed r Instead of the imposition of UCC, these may
to reform current personal law to improve which facilitate prioritising equality.
should first be instituted by the communities Conclusion
themselves. The UCC provides protection to vulnerable sections
2. Progressive approach: The social transformation as contemplated by Ambedkar including women and
from various civil code to uniformity shall be religious minorities, while also encouraging nationalistic
fervour through unity.
progressive and cannot happen in a day. Therefore,
the government need to adopt a piecemeal All citizen will share the same set of personal
laws with the implementation of UCC. There will be no
approach.
scope of politicization of subjects of the discrimination
3. Recommendations of Law Commission: The
or concessions or remarkable privileges enjoyed by a
commission stresses on initiatives to adapt the
certain community on the basis of their specific religious
country’s diversity with universal debated on
personal laws.
human rights. It suggested codification of all
personal laws:

81
 9 Fundamental Duties

Mahatma Gandhi aptly stated that: obligations. In this scenario, if the fundamental duties
"The true source of right is duty. If we all discharge were enforced, it would have resulted in causing chaos
our duties, rights will not be far to seek. Rights accrue and harassment among people.
automatically to him who performs his duties. The right How did Fundamental Duties become part of the
to perform one’s duties is the only right worth living for Constitution?
and dying for. It covers all legitimate rights." r In 1976 Swaran Singh Committee was formed
The Fundamental Duties are defined as the moral to ‘formulate some proposals for inclusion in
obligations of all citizens to help promote a spirit of the Constitution certain fundamental duties and
patriotism and to uphold the unity of India. These obligations which every citizen owes to the nation.
duties set out in Part IV–A of the Constitution, concern The need and necessity of which was felt during the
individuals and the nation. operation of the internal emergency (1975–1977).
r The committee recommended the inclusion of a
Fundamental Duties
separate chapter on fundamental duties in the
Particulars Fundamental Duties
Constitution. It stressed that the citizens should
Covered Part IV A, Article 51 –A
become conscious that in addition to the enjoyment of
Inspired from USSR
rights, they also have certain duties to perform as well.
Amendment 42nd Amendment 1976, introduced Article
51 A in the constitution r By November 1976, both Houses of Parliament
Recommended by Swaran Singh Committee. passed the 42nd amendment. This amendment
Numbers Originally -10 duties Now -11 duties (added added a new part, namely, Part IVA to the
by 86th Amendment Act, 2002) Constitution, which included a new fundamental
List of 1. Abide by the Constitution and respect duties chapter to the Constitution containing 10
Fundamental national flag & National Anthem
Duties
duties.
2. Follow ideals of the freedom struggle
3. Protect sovereignty & integrity of India r In 2002, one more duty was added to the list. It said
4. Defend the country and render national that every citizen ‘who is a parent or guardian, to
services when called upon
5. Sprit of common brotherhood
provide opportunities for education to his child or,
6. Preserve composite culture as the case may be, ward between the age of six and
7. Preserve natural environment fourteen year’.
8. Develop scientific temper
9. Safeguard public property 11 Fundamental Duties in detail
10. Strive for excellence Only one Article that is Article -51A is there in
11. Duty of all parents/guardians to send Part-IV-A of the Indian Constitution that deals with
their children in the age group of 6-14
years to school
fundamental duties. It was added to the Constitution by
the 42nd Amendment Act, 1976. For the first time, a code
Nature
of 10 fundamental duties was provided to the citizens of
Neither there is a direct provision in the Constitution
India(11th Fundamental Duty was added later by 86th
for the enforcement of these duties nor there is hardly
Amendment Act of 2002). Article 51-A states that it is
any legal sanction in order to prevent violation of these
the duty of every citizen of India:
duties. These duties are obligatory in nature.
a) To abide by the Constitution and respect its
The reason for not making these duties enforceable
ideals and institutions, the National Flag and
is because the majority of the population being illiterate
the National Anthem.
in India, many are unaware of their Constitutional

82
 b) To cherish and follow the noble ideals which r These duties are a constant reminder to citizens to
inspired our national struggle for freedom. build a free, healthy, and responsible society and
c) To uphold and protect the sovereignty, unity, they are expected to not act as recklessly and not
and integrity of India. indulge in anti-social activities.
d) To defend the country and render national r For the growth of a democratic country like India,
service when called upon to do so. it is imperative that all fundamental duties are
followed by the citizens while respecting the
e) To promote harmony and the spirit of common
integrity and promotion of cultural harmony in the
brotherhood amongst all the people of India
country.
transcending religious, linguistic and regional
r These duties of an Indian citizen provide education
or sectional diversities; to renounce practices
to children, especially to children below 14 years
derogatory to the dignity of women.
of age, safeguards the human rights, and is a major
f) To value and preserve the rich heritage of our step towards the abolition of social injustice that is
composite culture. prevalent in the society today.
g) To protect and improve the natural environment r Environmental pollution has become a great cause
including forests, lakes, rivers, wildlife and to of concern, not only for Indians but for humanity
have compassion for living creatures. around the globe. Unless we all take the pledge to
h) To develop the scientific temper, humanism and keep our environment free from pollutants, there
the spirit of inquiry and reform. remains the threat of undesirable consequences.
i) To safeguard public property and to abjure Relationship between Fundamental Rights and
violence. Fundamental Duties
j) To strive towards excellence in all spheres r Fundamental rights and duties do not contradict
of individual and collective activity, so that each other. They are, on the other hand, extremely
the nation constantly rises to higher levels of compatible and even complementary to each other
endeavour and achievement. when it comes to announcing the rights and duties
of the citizens.
k) Who is a parent or guardian, to provide
r Even though fundamental duties are not legally
opportunities for education to his child, or as
enforceable before the Court unlike the fundamental
the case may be, ward between the age of six to
rights. The judiciary has time and again stated that
fourteen years.
the duties will not be taken for granted and strict
Need & Importance of Fundamental Duties implementation of these principles will be seen by
r Any ambiguous statute can be interpreted with the the Government.
help of fundamental duties.
r In the case of Chandra Bhawan Boarding v. State
r In case there is a violation of fundamental duties, of Mysore 1970, the court had opined that it is a
Article 51A of the Constitution categorizes it as grave mistake to think that the Constitution only
contempt of the constitution which is punishable primarily guarantees the Fundamental Rights and
under Prevention of Insults to National Honour Act, not the duties. The Supreme Court further stated
1971. that Part IV and Part IV A of the Constitution are
r The court can consider the law reasonable if it gives also present that aims at establishing Indian society
effect to any of the fundamental duties. In this way, as welfare – oriented society both nationally and
the court can save such law from being declared as internationally.
unconstitutional. r The Fundamental Duties have been defined as the
r These duties were drafted on the lines of moral, moral obligations of all the citizens to help promote
ethical, and cultural code of conduct which is to be the welfare of the country and to uphold the unity
followed by the people to uphold and protect the of the nation. These duties are set out in Part IVA of
sovereignty, unity, and integrity of our country. the Indian Constitution concerning the individuals

83
 and the nation. Just like the Directive Principles, cognizance in the matter to enforce and give effect to
these duties represent guidelines that the citizens these constitutional obligations. Under Article 51A
should obey for the welfare of a democratic nation. and as per the definition of fundamental duties, it’s the
The 11 fundamental duties are not merely the responsibility of the citizens to build a free and healthy
expression of morals or religion, as the courts can take society, where all citizens are treated equally.

84
 10 Amendment to the Constitution of India

the bill is passed in each House by a majority of the

AMENDMENT TO THE CONSTITUTION
total membership of that House present and voting, it
Change is rule of nature. It is in our human nature to
shall be presented to the President who shall give his
change. We do not stay in the same state for long time
and it is true for the society too. No generation has a assent to the bill and thereupon the Constitution shall
monopoly of wisdom nor has it a right to constrain future stand amended in accordance with the terms of the bill,
generations to mould the machinery of the government provided that if such amendment seeks to make any
according to their requirements.No constitution can
change in
provide for all eventualities that would occur in a
society. Constitution of India was drafted almost seven • Article 368(2) (a) Article 54, Article 55, Article 73,
decades back catering to the needs of the society of that Article 162 or Article 241, or
time. In order to adapt to the changing needs of new era • Article 368(2) (b) Chapter IV of Part V, Chapter V of
of technological advancements and circumstances of Part VI, or Chapter I of Part XI, or
growing people that would happen in future, framers of
• Article 368(2) (c) any of the Lists in the Seventh
our constitution have tried to make it flexible.
Schedule, or
Constitution is a document made by human beings
• Article 368(2) (d) the representation of States in
and may need reassessment, modification and re-
Parliament, or
examination. It is true that the constitution reflects
the dreams and aspirations of the society. It must also • Article 368(2) (e) the provisions of thearticle,
be kept in mind that the constitution is a framework the amendment shall also require to be ratified
for the democratic governance of the society. Article by the Legislature of not less than one half of the
368 of the Indian Constitution provides the procedure States by resolution to that effect passed by those
of Amendment. Making changes to the constitution, Legislatures before the bill making provision for
which is the governing law of the land, is known such amendment is presented to the President for
as a constitutional amendment.The constitution's assent.
amendment requires it to go through a specific Article 368(3) Nothing in Article 13 shall apply to
procedure, which includes passing it via both legislative any amendment made under the article
bodies (Lok Sabha and Rajya Sabha) before being sent to Article 368(4) No amendment of the Constitution
the President for final approval and signature.
(including the provisions of Part III) made or purporting
Article 368: Refers to the Power of Parliament to
amend the Constitution and procedure therefore to have been made under article whether before or after
Article 368(1) Notwithstanding anything in the commencement of Section 55 of the Constitution
the Constitution, Parliament may in exercise of its (Forty second Amendment) Act, 1976 shall be called in
constituent power amend by way of addition, variation question in any court on any ground.
or repeal any provision of the Constitution in accordance
Article 368(5) For the removal of doubts, it is hereby
with the procedure laid down in the Article368.
declared that there shall be no limitation whatever on
Article 368(2) An amendment of the Constitution the constituent power of Parliament to amend by way
may be initiated only by the introduction of a Bill for of addition, variation or repeal the provisions of the
the purpose in either House of Parliament, and when

85
Constitution under article 368 PART XXI TEMPORARY, • In case of a disagreement between the two Houses,
TRANSITIONAL AND SPECIAL PROVISIONS. there is no provision for holding a joint sitting of the
Explanation: two Houses.
The procedure for the amendment of the Constitution as • If the bill intends to amend the federal provisions
laid down in Article 368 is as follows: of the Constitution, it must also be ratified by the
legislatures of half of the states by a simple majority,
• An amendment of the Constitution can be initiated
that is, a majority of the members of the House
only by the introduction of a bill in either House of
present and voting.
Parliament (Lok Sabha & Rajya Sabha) and not in
• After duly passed by both the Houses of Parliament
the state legislatures. and ratified by the State legislatures, where necessary,
• The bill can be introduced either by a Minister or the bill is presented to the President for assent.
by a private member and does not require prior • The President must give his assent to the bill. He can
permission of the President. neither withhold his assent to the bill nor return the
• The bill must be passed in each House by a special bill for reconsideration of the Parliament
majority, that is, a majority (that is, more than 50 • After the President’s assent, the bill becomes an
per cent) of the total membership of the House Act (i.e., a Constitutional Amendment Act) and the
and a majority of two-thirds of the members of the Constitution stands amended in accordance with
House present and voting. the terms of the Act.
• Each House must pass the bill separately.

Types Of Majorities
There are Simple Majority,Absolute Majority, Effective Majority and Special Majority.

Simple Majority
This refers to the majority of more than 50% of the members present and voting.

Eg: On a particular day, out of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400
members were present and voting. Then the simple majority is 50% of 400 plus 1, ie. 201.

Effective Majority
Effective Majority of the house means more than 50% of the effective strength of the house. This implies that out of the total strength, we
deduct the vacant seats.
For example, in Rajya Sabha, out of the total strength of 245 members if there are 45 vacancies, then the effective strength of the house
is 200. Then the effective majority is 50% of 200 plus 1, ie 101.

Absolute Majority
It refers to a majority of more than 50% of the total membership of the house.
For example, as the total membership of Lok Sabha is 545, an Absolute majority in Lok Sabha means – 50% of 545 plus 1, ie. 273.
Special Majority
All types of majorities other than the absolute, effective or simple majority is known as the special majority. A special majority are of 4 types,
with different clauses.

• Type 1 – Special Majority as per Article 249.

ƒ Special majority as per article 249 requires a majority of 2/3rd members present and voting.

ƒ For example, if out of the 245 members in Rajya Sabha, if only 150 are present and voting, then the special majority required as
per article 249 would be 101.

ƒ It can be used to pass the Rajya Sabha resolution to empower the Parliament to make laws in the State list.

86
• Type 2 – Special Majority as per Article 368.
ƒ Special majority as per article 368 requires a majority of 2/3rd members present and voting supported by more than 50% of the
total strength of the house.

ƒ To pass a Constitution Amendment bill in Rajya Sabha, in addition to getting the support of 123 members, the bill should be
favoured by more than 2/3rd of the members presents and voting.

• Type 3 – Special Majority as per Article 368 + 50 percent state ratification by a simple majority.
ƒ Special majority as per article 368 plus state ratification requires a majority of 2/3rd members present and voting supported by
more than 50% of the State legislatures by a simple majority.
ƒ Example: the bill which introduced the National Judicial Appointments Commission (NJAC). It required the support of at least 15
state legislatures out of the 29 states.
¾ The Bill provided for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice
of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC), later it got
struck down by the judiciary stating the act as unconstitutional.
• Type 4 – Special Majority as per Article 61.
ƒ Special majority as per article 61 requires a majority of 2/3rd members of the total strength of the house. In Lok Sabha, the special
majority as per article 61 is 364 while in Rajya Sabha, the special majority as per Article 61 is 164

Types of Amendments in Indian Constitution • Rules of procedure in Parliament.

The list of types of amendments can be found below. • Privileges of the Parliament, its members and its
There are three ways in which the Constitution can be committees.
amended: • Use of the English language in Parliament.
• Amendment by simple majority of the Parliament • Number of puisne judges in the Supreme Court.
• Amendment by special majority of the Parliament • Conferment of more jurisdictions on the Supreme
• Amendment by special majority of the Parliament Court.
and the ratification of at least half of the state • Citizenship-acquisition and termination.
legislatures. • Elections to Parliament and State legislatures.
1. By Simple Majority of Parliament: A number of • Delimitation of constituencies.
provisions in the Constitution can be amended by • Union territories
a simple majority of the two houses of Parliament • Fifth Schedule-administration of scheduled areas
outside the scope of Article 368. These provisions and scheduled tribes.
include:
• Sixth Schedule-administration of tribal areas.
• Admission or establishment of new states. (Article
2. By Special Majority of Parliament: The majority
2)
of the provisions in the Constitution need to be
• Formation of new states and alteration of areas, amended by a special majority of the Parliament,
boundaries or names of existing states. (Article 3)
that is, a majority (that is, more than 50 percent) of
• Abolition or creation of legislative councils in states.
the total membership of each House and a majority
(Article 169)
of two-thirds of the members of each House present
• Second Schedule-emoluments, and voting. The expression ‘total membership’
• Allowances, privileges and so on of the President, means the total number of members comprising
the Governors, the Speakers, Judges, etc. the House irrespective of the fact whether there are
• Quorum in Parliament. vacancies or absentees.
• Salaries and allowances of the members of The special majority is required only for voting at
Parliament. the third reading stage of the bill but by way of abundant

87
caution, the requirement for the special majority has In Sajjan Singh v. the State of Rajasthan
been provided for in the rules of the Houses in respect • In this case, the validity of the Seventeenth
of all the effective stages of the bill. Amendment was challenged. The question raised
The provisions which can be amended by this way was that the Seventeenth Amendment puts a limit on
include (i) Fundamental Rights; (ii) Directive Principles the jurisdiction of the High Court and therefore rectified.
of State Policy; and (iii) All other provisions which are not • , the court disposed of the contention. But choose to
covered by the first and third categories of amendment deal with the 2nd contention i.e., the reconsideration
in the Constitution. of Shankari Prasad case, the court stated that,
3. By Special Majority of Parliament and Consent of even if the Article 368 does not expressly declare
States: Those provisions of the Constitution which the power of Parliament regarding amendment
are related to the federal structure of the polity can of Fundamental Rights, the Parliament could by a
be amended by a special majority of the Parliament suitable amendment assume those powers.
and also with the consent of half of the state In Golaknath v. the State of Punjab
legislatures by a simple majority. If one or some or • In this case, the validity of first, fourth and seventeenth
all the remaining states take no action on the bill, it amendment were challenged. This time from the
does not matter; the moment half of the states give eleven judges’ bench, the majority of six judges
their consent, the formality is completed. There is decided that the Parliament has no power to amend
no time limit within which the states should give Part III(Fundamental Rights)of the Constitution.
their consent to the bill. The following provisions • the other hand, the Court considered that the
can be amended in this way: Parliament has a duty to correct the errors in the
• Election of the President and its manner. law, therefore adopted the doctrine of prospective
• Extent of the executive power of the Union and the overruling through which the 3 Amendments
States. discussed were continued to be valid but in future,
the Parliament has no power to amend the Part III
• Supreme Court and High courts.
(Fundamental Rights)of the Constitution.
• Distribution of legislative powers between the
After the judgment of Supreme Court in Golaknath
Union and the States.
case the 24th Amendment was passed in 1971, and
• Any of the lists in the Seventh Schedule.
made a change in Article 13 and 368:
• Representation of states in Parliament.
A new clause added in Article 13 which says; Nothing
• Power of Parliament to amend the Constitution and in this article apply to amendment in the Constitution
its procedure (Article 368 itself). under Article 368.
New clauses were added in Article 368:
Supreme Court and the Amendment • A new heading was introduced as; Parliament’s
Power of Parliament power to amend the Constitution.
• Parliament may change, add and repeal any
In Shankari Prasad v. Union of India
provision of this Constitution in accordance with
• In this case, for the very first-time question was the procedure provided.
raised on the amendment of Fundamental Rights i.e., In Keshavananda Bharati v. State of Kerala
whether the Fundamental Rights can be amended • This case was considered as the landmark case,
under Article 368 or not. In this case the validity where for the first-time Supreme Court recognized
of the First Amendment through which Article 31A the basic structure concept. In this case, the validity
and 31B were added in the Constitution. of the 25th Amendment was challenged with the
• The five judges’ bench stated that Article 24th and 29th Amendment was also questioned.
368 provides general and strict power to • The court by majority overruled the judgement of
the Parliament to amend the Constitution by Golaknath case. It was held that even before the
following proper procedure. 24th Amendment the parliament has the limited

88
 power to amend the Constitution by following the • The Amendment must not alter the basic structure
proper procedure. of the Constitution. Some examples are Free and
• The Supreme Court also declared that Article 368 Fair Election, the nation’s Federal nature, Judicial
of the Constitution does not allow the Parliament Review, and Power Separation. It notes that some
to change, damage the basic structure of the basic legislative frameworks and founding values
Constitution. This landmark judgement changes the constitute the foundation of the Constitution. These
history of the Constitution. cannot be touched by anyone.
Current stance regarding Amendment Power of • An Amendment relating to the federal structure of
Parliament: the government can be made only with a special
majority and consent by half of the State legislatures.

Some Important Amendments

Amendment Changes Objective
1st 15, 19, 85, 87, 174, 176, 341, 342, Added special provision for the advancement of any socially and educationally
372 and 376. Insert articles 31A and backward classes or for the Scheduled Castes and Scheduled Tribes (SCs and
31B. Insert schedule 9.
STs). To fully secure the constitutional validity of zamindari abolition laws and to
place reasonable restriction on freedom of speech. A new constitutional device,
called Schedule 9 introduced to protect against laws that are contrary to the
Constitutionally guaranteed Fundamental Rights. These laws encroach upon
property rights, freedom of speech and equality before law.
4th Amend articles 31, 31A, and 305. Restrictions on property rights and inclusion of related bills in Schedule 9 of the
Amend schedule 9. constitution.
17th Amend article 31A. To secure the constitutional validity of acquisition of Estates and place land
Amend schedule 9 acquisition laws in Schedule 9 of the constitution.
24th Amend articles 13 and 368 Enable parliament to dilute Fundamental Rights through amendments to the
Constitution.
25th Amend article 31. Insert article 31C Restrict property rights and compensation in case the state takes over private
property. However, the Supreme Court quashed a part of Article 31C, to the
extent it took away the power of judicial review.

This was done in the landmark case of Keshavananda Bharati v. State of Kerala
(1973) 4 SCC 225 which for the first time enunciated the Basic structure doctrine.
29th Amend schedule 9 Place land reform acts and amendments to these acts under Schedule 9 of the
constitution.
42nd Amend articles 31, 31C, 39, 55, 74, Amendment passed during internal emergency by Indira Gandhi. Provides for
77, 81, 82, 83, 100, 102, 103, 105, curtailment of fundamental rights, imposes fundamental duties and changes to
118, 145, 150, 166, 170, 172, 189, the basic structure of the constitution by making India a "Sovereign Socialist
191, 192, 194, 208, 217, 225, 226, Secular Democratic Republic".
227, 228, 311, 312, 330, 352, 353, However, the Supreme Court, in Minerva Mills v. Union of India, quashed
356, 357, 358, 359, 366, 368 and the amendments to Articles 31C and 368 as it was in contravention with the
371F. basic structure of the Constitution.

Insert articles 31D, 32A, 39A, 43A,

48A, 131A, 139A, 144A, 226A, 228A
and 257A.

Insert parts 4A and 14A.

Amend schedule 7.

89
Conclusion: framework and the current government’s policies
• It may be said that Amenability is an absolute and programmes are in harmony.
necessity to make the Constitution a more relevant • Amendments should be confined to parts of the
document in light of changing circumstances, Constitution that do not comprise the core philosophy.
reality and match society’s evolving needs and
ambitions. It guarantees that the constitutional

90
 11 Basic Structure

What is the Basic Structure Doctrine of Indian can be struck down by the SC on the grounds that they
Constitution? distort the basic structure of the Constitution.
There is no mention of the term “Basic Structure” The concept of the basic structure of the constitution
anywhere in the Constitution of India. The idea that the evolved over time. Few Cases that helped in the evolution
Parliament cannot introduce laws that would amend of the doctrine of basic structure are as follows:
the basic structure of the constitution evolved gradually Shankari Prasad Case (1951)
over time and many cases. The idea is to preserve the • The Supreme Court contended that the Parliament’s
nature of Indian democracy and protect the rights and power of amending the Constitution under Article
liberties of people. This Basic Structure doctrine of the 368 included the power to amend the Fundamental
Indian Constitution helps to protect and preserve the Rights guaranteed in Part III as well.
spirit of the constitution document.
Sajjan Singh Case (1965)
It was the Keshavananda Bharati case that brought
• The Supreme Court held that the Parliament can
this doctrine into the limelight. It held that the “basic
amend any part of the Constitution including the
structure of the Indian Constitution could not be abrogated
Fundamental Rights.
even by a constitutional amendment”. The judgement
listed some basic structures of the Constitution as: • It is noteworthy to point out that two dissenting
judges, in this case, remarked whether the
• Supremacy of the Constitution
Fundamental Rights of citizens could become a
• Unity and sovereignty of India plaything of the majority party in Parliament.
• Democratic and republican form of government Golaknath Case (1967)
• Federal character of the Constitution • Supreme Court reversed its earlier stance that the
• Secular character of the Constitution Fundamental Rights can be amended.
• Separation of power • It said that Fundamental Rights are not amenable
• Individual freedom to the Parliamentary restriction as stated in Article
Over time, many other features have also been added 13 and that to amend the Fundamental rights a new
to this list of basic structural features. Some of them are: Constituent Assembly would be required.
• Rule of law • Also stated that Article 368 gives the procedure
• Judicial review to amend the Constitution but does not confer on
Parliament the power to amend the Constitution.
• Parliamentary system
This case conferred upon Fundamental Rights a
• Rule of equality ‘transcendental position’.
• Harmony and balance between the Fundamental • The majority judgement called upon the concept of
Rights and DPSP implied limitations on the power of the Parliament
• Free and fair elections to amend the Constitution. As per this view, the
• Limited power of the parliament to amend the Constitution gives a place of permanence to the
Constitution fundamental freedoms of the citizens.
• Power of the Supreme Court of India under Articles • In giving to themselves the Constitution, the people
32, 136, 142 and 147 had reserved these rights for themselves.
• Power of the High Court under Articles 226 and 227 In Keshavananda Bharati Case (1973)
Any law or amendment that violates these principles • This case was considered as the historical landmark

91
 case, where for the first-time Supreme Court repeal any part of the Constitution.
recognized the basic structure concept. In this case, • Thus, this amendment creates a question regarding
the validity of the 25th Amendment was challenged
the supremacy i.e., who is supreme Parliament or
with the 24th and 29th Amendment was also
Supreme Court? Through this Amendment, the
questioned. The court by majority overruled the
Parliament declared the concept of basic structure
judgement of Golaknath case.
invented by the Supreme Court is vague and unlawful.
• It was held that even before the 24th Amendment
In Minerva Mills Case (1980)
the Parliament has the limited power to amend the
Constitution by following the proper procedure. • In this case, the validity of the 42nd Amendment
The Supreme Court also declared that Article 368 was challenged, as it destroyed the basic structure
of the Constitution does not allow the Parliament of the Constitution and regarding clause 4 and 5 of
to change, damage the basic structure of the
Article 368.
Constitution. This landmark judgement changes the
history of the Constitution. • The Supreme Court by majority struck down the
In Indira Nehru Gandhi v. Raj NarayanCase (1975) clauses added by the 42nd Amendment and stated
• Under this case, once again the basic structure that the limited power of the Parliament is in the
concept was reaffirmed. The Supreme Court applied basic structure itself.
the same theory and struck down the 4th clause of Waman Rao Case (1981)
Article 329 A on the ground that the Amendment is • The SC again reiterated the Basic Structure doctrine.
beyond the power of the Parliament and it destroyed
• It also drew a line of demarcation as April 24th,
the basic structure of the Constitution. The
Amendment was made regarding the jurisdiction of 1973 i.e., the date of the Keshavananda Bharati
all courts including the Supreme Court, regarding the judgement, and held that it should not be applied
dispute of an election of the Prime Minister of India. retrospectively to re-open the validity of any
Article 329: Bar to interference by courts in electoral matters, amendment to the Constitution which took place
Notwithstanding anything in this Constitution prior to that date.
Article 329(a) the validity of any law relating to the delimitation • The Waman Rao case held that amendments
of constituencies or the allotment of seats to such constituencies,
made or purporting to be made under Article 327 or Article 328,
made to the 9th Schedule until the Keshavananda
shall not be called in question in any court; judgement are valid, and those passed after that
Article 329(b) No election to either House of Parliament or to the date can be subject to scrutiny.
House or either House of the Legislature of a State shall be called in Indra Sawhney and Union of India (1992)
question except by an election petition presented to such authority
and in such manner as may be provided for by or under any law
• SC examined the scope and extent of Article 16(4),
made by the appropriate Legislature which provides for the reservation of jobs in favour
42nd Amendment of backward classes. It upheld the constitutional
validity of 27% reservation for the OBCs with
• Immediately after the decision of the Supreme Court certain conditions (like creamy layer exclusion,
in Keshavananda Bharti and Indira Gandhi case, the no reservation in promotion, total reserved quota
Parliament introduced the 42nd Amendment and should not exceed 50%, etc.)
added the word Secular, Socialist and Integrity in • Here, ‘Rule of Law’ was added to the list of basic
the Preamble and add clause 4 and 5 to the Article features of the constitution.
368 of the Constitution. S.R. Bommai Case (1994)
• It indirectly declares that there is no limitation on the • The government at the Centre dismissed the State
power of the Parliament regarding the amendment. Government using Article 356, without giving
Even after the judgement of the Supreme Court, the Bommai a chance to prove his majority and imposed
President’s Rule.
Parliament has the unrestricted power to change or
• In this judgement, the Supreme Court tried to curb

92
 the blatant misuse of Article 356 (regarding the • There is no provision for a special body to change the
imposition of President’s Rule on states). Constitution, such as a Constitutional Convention (as
• In this case, there was no question of constitutional in the United States) or a Constitutional Assembly.
amendment but even then, the concept of basic • The Parliament has the authority to propose a
doctrine was applied. constitutional modification. Except in one situation,
• The Supreme Court held that policies of a state when passing a resolution seeking the creation or
government directed against an element of the basic elimination of Legislative Councils in the states,
structure of the Constitution would be a valid ground State Legislatures are unable to introduce any bill
for the exercise of the central power under Article 356. or proposal to modify the Constitution.
In L. Chandra Kumar Case (1997) • The majority of the Constitution can be changed by
Parliament alone, using either a special majority or
• Under this case, the validity of the Article 323A and
a simple majority. The assent of state legislatures
323B was challenged, both deals with the exclusion
is required only in a few circumstances, and even
of the High Court under Article 226 and 227 and the then, only in half of them.
Supreme Court under Article 32 was inserted by the
• The Constitution makes no provision for the State
42nd Amendment.
Legislatures to ratify or reject an amendment that
• The SC, in this case, declared both the provisions is presented to them. It is also silent on the question
unconstitutional and held that the power of judicial of whether nations can revoke their permission
review under Article 226, 227, and 32 were given after giving it.
by the basic structure and the Parliament has no
• If there is a deadlock over the passage of a
power to amend that.
constitutional change bill, there is no provision for
Articles 226 and 227 are the parts of the constitution which a joint sitting of both Houses of Parliament.
define the powers of the High Court
• The procedure for amending a document is
Article 226, empowers the High courts to issue, to any person or comparable to the procedure for enacting legislation.
authority, including the government (in appropriate cases), directions,
orders or writs, including writs in the nature of Habeas Corpus,
The constitutional amendment legislation must be
Mandamus, Prohibition, Quo Warranto, Certiorari or any of them. carried by Parliament in the same way as other laws,
Article 227 determines that every High Court shall have with the exception of the special majority requirement.
superintendence over all courts and tribunals throughout the • They give a lot of room for the courts to intervene.
territories in relation to which it exercises jurisdiction (except a
court formed under a law related to armed forces).
Conclusion
Evaluation of the various Judgements of Supreme Court Article 368 of the Indian Constitution provides the
procedure of Amendment. Indian Constitution is
The Supreme Court through Golaknath, Keshavananda
Bharti, S.R. Bommai and various other cases tried to put neither rigid nor flexible because under Article 368 the
an implied limitation on the amending powers of the Constitution can be amended.
Parliament, if we summarize the judgements of all the In 72 years of the Constitution, 105 Amendments
cases discussed in this Article, the court always tries to are already done. The 42nd Amendment is considered
pressurise on few things that are: as the mini-Constitution, the terms Socialist, Secular,
• Parliament has limited power to amend the Integrity was inserted through it. The First Amendment
Constitution. was done in the year 1950, itself.
• The Parliament cannot damage the basic structure The court by giving the judgements tries to
of the Constitution increase their powers and put express limitations on
• Article 368 does not provide the power to the the Parliament. The Article 368 is silent on the matter
Parliament regarding the amendment in Part III of
whether the Parliament has the power to amend the basic
the Constitution.
structure or not, but that also does not mean that the
• The Parliament by amending Article 368 cannot
increase its amendment powers. Article 368 put the limitation regarding the Amendment
Criticism of basic structure as well as Part III of the Constitution.

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 12 Parliamentary System

India chose a Parliamentary System for the • One of the key features that differentiate the
governance of the country after independence. It is Presidential and Parliamentary system is that in
so because the Constitution-makers in the country latter the executive is responsible to the legislature.
were greatly influenced by the Parliamentary system The Prime Minister and the Council of Ministers
prevalent in the United Kingdom. Also, seeing the are collectively answerable in Lok Sabha and
diverse and varied groups and their culture, religion and individually to the President. The executive loses its
behaviour somewhere forced our founding fathers to power when it loses confidence in the Lok Sabha.
accommodate this system keeping in mind the political Legislature makes the laws and then relies on the
setup.
executive for its implementation which practices
The principle of strict separation of power, being delegated legislation.
one of the key features of the Presidential System leads
Secrecy of the procedure
to a lot of problems between the legislature and the
• One of the prerequisites for this form of Government
executive. This hampers the effectiveness and efficiency
is the secrecy of the cabinet meetings and the
in work, which our country was not in a position to afford.
discussions held therein. In fact, even in the oath
The condition of India at the time of Independence was
taken by the Ministers, they promise to keep faith
such that it needed a system that was already tested and secrecy as given in Article 75 of the Constitution.
and successful, this also led the makers to choose this As per Article 75(2) of the Constitution, the
system. advice given by the Council of Ministers can be
In this kind of system, generally, the inquired in any court of India which ensures
Parliament is supreme and the executive is secrecy.
responsible to the legislature. It is also known
Dual executive
as ‘Cabinet form of Government’ or ‘Responsible
• India has a dual executive means it has two
Government’.
executives – the real and the titular. The titular
Features
or nominal executive is the head of the state i.e.,
Key features of the Parliamentary System are as follows:
the President or the monarch and the real head
The close relation between Executive and Legislature is the Prime Minister who is the real head of the
• In a Parliamentary form of Government, the Prime Government. Legally all the powers and privileges
Minister along with the Council of Ministers forms are conferred on the President as per different law
the executive. They are elected as the members and Constitution but in practice, all these powers
of the Parliament which means that the executive are enjoyed by the Prime Minister and Council of
emerges from the legislature. Only a member Ministers. The President in India works on the
of Parliament can be appointed as part of the aid and advice given by the Council of Ministers.
Executive. There is no strict separation of powers The President can return the suggestion for
between the executive and legislature as it is
reconsideration, but if the same suggestion is
present in the Presidential form of Government.
sent to him with or without changes, he is bound
Therefore, in a Parliamentary system, the executive
to accept it. This makes the President somewhere
and the legislature are so closely related that
bound by the advice given by the Ministers and
sometimes it becomes difficult to separate their
work according to them.
functions.
The Executive is responsible to the Legislature

94
The leadership of Prime Minister as follows:
• The leader in the Parliamentary form of Government Better coordination between executive and legislature
is the Prime Minister. He is the leader of the • In a Parliamentary system, the executive is
majority party in Lok Sabha. He is also the head of part of the legislature and usually, the majority
the Government and is selected through elections party has a stronghold in the Parliament which
held through universal adult franchise. makes it easier for the law and policies to be
No fixed tenure passed and implemented. We can see a lot more
• In a Parliamentary System, the term or the duration coordination in the Parliamentary system as
of the ruling Government is not fixed. They are compared to the Presidential system as the organs
dependent on confidence in the lower house. If
of the Government is strictly separated from each
anyone of the Council of Ministers resigns or the other. The possibility of disputes and conflict
majority party is not able to prove its confidence in is reduced as the party enjoys a majority in the
the house then the Government falls. After that new lower house.
election will be conducted and the party having a Responsible Government
majority of the members in Lok Sabha forms the • The Parliamentary form of Government is also
Government. In normal circumstances the tenure of known as ‘Responsible Government’. In the
the Government is for 5 years and after that election legislature, all other members raise questions
are held again. which are matters of public interest and national
Bicameral Legislature importance. Through this process, there can be
• ‘Bi’ means two and ‘camera’ means chamber. So checks on the activities of the Government. The
Bicameral Legislature is the system of having two opposition needs to be strong enough to point out the
legislative or judicial chambers. Generally, one of mistakes and inefficiency of the ruling Government.
the houses is more powerful than the other. Many
This makes the majority party accountable and
Parliamentary democracies have the practice to
follow bicameralism. hence responsible for their duties and actions in
general.
• In India, at the centre level, it has two houses (Rajya
Represents diversity
Sabha and Lok Sabha) to deliberate and discusses
• Many countries in the world have people living from
policies, laws, and issues of national importance. At
the state level, the institution equal to or performs different backgrounds, cultures, religions, races,
somewhat the same function is Vidhan Sabha (State and gender. The Parliamentary system is suited best
Legislative Assemblies) and Rajya Sabha is Vidhan to accommodate all these diverse groups as every
Parishad (State Legislative Council). Though not group is represented in the legislature. In this way,
all states in India have their respective Legislative the interests and demands of various groups can be
Council as many argue that just like the Rajya Sabha, discussed at a big platform and a solution can be
the State Council does not perform many functions found out more effectively. With a country like India
and poses stress on state finances. Till now, only which was in a very fragile state after independence,
6 states (Andhra Pradesh, Bihar, Maharashtra, it was important to adopt a system that was tried
Uttar Pradesh, Karnataka, and Telangana) have and tested and was familiar to the people. In our
Legislative Councils. country, we see people from various groups coming
Merits together in Parliament and discussing matters to
The advantages or merits of a Parliamentary System are promote and preserve the interests of all of them.

95
Flexibility They are not even qualified or rather properly
• The Prime Minister can be removed from power acquainted with their jobs. Most of them are not
very easily as compared to the Presidential system even familiar with the laws of their country.
in which generally the President serves the entire Instability
term and can be replaced only through impeachment • Parliamentary system is not stable as the
and incapacity which is a time-consuming process. Government may fall anytime as compared to the
If the demands that were promised by the ruling Presidential system. There is no fixed tenure of the
party before the elections are not fulfilled the Government. The moment no confidence motion
Parliament may pass a no-confidence motion and is passed in the house the Government will be
the Government can be replaced. replaced with a new Government. It can happen by
Prevents Authoritarianism a mere political disagreement between the party
members. Thus, the Prime Minister has to depend
• In the Presidential System, we see a concentration
on the support from the party members or any other
of power primarily with the President. He has the
party in the Parliament. Coalition Governments
authority to choose members of the cabinet. On
are mainly transitory and unstable. Therefore, the
the other hand, in the Parliamentary system power majority party concentrates more on having support
is divided among the council of ministers and the in the house rather than on the welfare of the
ruling party does not become all-powerful the society.
Government may resign if a vote of no confidence • It can hamper the implementation of laws and
is passed against them. There are many institutions policies as the policy started by the previous
that keep vigilance on the activities of the Government may not be much supported and
Government. carried on by the new Government in power.
Demerits Failure to taking a prompt decision
The demerits of the Parliamentary System are as follows: • This system’s instability somewhere forces the
No separation of powers Government to take prompt decisions in times of
need. The Government is scared to take bold and
• As there is no true separation of powers in this
long-term decisions. This may affect the welfare of
system, the legislature cannot always blame the
the nation and its people.
executive for the non-implementation of policies.
Party Politics
Especially when the Government has a majority
• In the Parliamentary system party, politics is very
in the legislature. Additionally, because of factors evident where politicians are motivated by self-
relating to anti-defection laws legislators cannot interest more than national interest. The Multi-
exercise their will power and vote as per their party system is more popular in the Parliamentary
understanding and opinions. They have to consider system than the Presidential system as they
and follow the party whip. use the method of proportional representation.
Many parties compete with each other in
Unqualified legislature
elections and each party has a chance of winning
• Many times, situations where people who just want the election.
to fill executive positions enter the legislature also.

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 Difference between the Parliamentary and Presidential forms of the Government
Basis Parliamentary Form of Government Presidential Form of Government
Meaning It is a form of Government where the legislature It is a system of Government in which the three organs of the
and executive are closely related to each Government –
other. It is a system in which the citizens elect • the executive,
representatives to the legislative Parliament.
• judiciary,
• legislature
work separately.
In it, the President is the chief executive and is elected
directly by the citizens.
Executive There is dual executive as leader of the state and There is a single executive as the leader of the state and the
leader of the Government are different. leader of the Government is the same.
Ministers The ministers belong to the ruling party and are The ministers can be chosen from outside the legislature,
Members of Parliament. No outsider is allowed to and are usually industry experts.
become a minister.
Accountability The Executive is accountable to the Legislature. The Executive is not accountable to the Legislature.

Dissolution of The Prime Minister can dissolve the lower house. The President cannot dissolve the lower house.
lower house
Tenure The tenure of the Prime Minister depends upon The tenure of the President is fixed.
the majority support in the Parliament, and is
thus, not fixed.
Separation of The principle of separation of powers is not The principle of separation of powers is strictly followed.
Powers followed strictly. There is concentration and Powers are divided and the Legislature, the Executive and
fusion of powers between the Legislative and the the Judiciary work separately.
Executive.
Party Discipline Party discipline is stronger and the system leans Party discipline is comparatively less and failure to vote
towards unified action, block voting and distinct with one’s party does not threaten the Government.
party platforms.
Autocracy This type of Government is less autocratic as This type of Government is more autocratic as immense
immense power is not given to only one person. power is concentrated in the hands of the President.

Reason for adoption for Parliamentary System in should be accountable to them.

India • The makers were reluctant to go for the Presidential
The makers of the Constitution wisely chose the system as it gives excessive powers to the President
Parliamentary model. The reasons for it lie in India's who works independently with the legislature.
colonial political legacy as well as India’s socio-political • The Presidential system is also prone to the
structure. The reasons for this were as follow: personality cult of the President.
• By the time of Constitution framing, India already • The makers of the Constitution wanted to have a
had some experience of the Parliamentary system strong executive branch but with strong safeguards
under the Government of India Act 1919 and 1935. to avert the risk of a personality cult.
So Indians were familiar with it. • In the Parliamentary system, there are several
• This experience also showed that the executives can mechanisms to make the executive more answerable
be effectively controlled by the representatives of to and controlled by the people’s representatives.
the people. • So, the Constitution adopted a Parliamentary
• The makers of the Constitution wanted to make the system for India.
Government responsible to people’s demands and

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 Comparison between United Kingdom and Indian Parliamentary Syste
United Kingdom India
Britain has a monarchical system. India is a republican country.
The head of state in Britain is King who enjoys the hereditary The head of state is the President who is elected on the basis of proportional
position and is not elected. representation.
In the UK, the Parliament is the supreme authority as they Indian Parliament is not very supreme as some restricted powers and is
follow the principle of Parliamentary sovereignty. limited due to the presence of a written Constitution, the federal system,
judicial review, and fundamental rights.
In Britain, the Prime Minister should be a member of the In India, the Prime Minister can be a member of any house Rajya Sabha or Lok
House of Commons (Lower House) of the Parliament. Sabha in the Parliament.
In Britain, usually, the members of Parliament only become But in India, a person who is not a member of any house can also become
Ministers. Minister but only for a maximum period of 6 months.
In Britain, the Minister also has legal responsibility also. In India, the ministers are only accountable for their legislative and executive
functions.
In Britain, ministers are required to countersign the official Ministers in India do not need to sign such a document.
acts of the Head of the state.
There is a concept of ‘Shadow Cabinet’ in the UK. The shadow There is no such concept as Shadow Cabinet in India.
Cabinet is basically a cabinet formed by the opposition who
keeps a check on the activities and policies of the ruling
Government and can replace it once the ruling party falls.

Every system whether it is Presidential or and a strong Constitution. It is considered as one of the
Parliamentary has its own pros and cons. It is upon the largest democracies in the world.
Government of a particular country to decide the system
There were some discussions that were made
which will be most suited for their country. Every country
regarding whether India needs a Presidential system.
is different in its structure, population and culture, it is
important to identify the needs of the country. But these debates were very academic. But then the
If we see a larger picture then there are mainly these concentration of power in a single hand will lead to abuse
two forms. Many nations in the world have chosen one of power which is very dangerous to our democracy.
of them with some changes. We also see new trends and Also, our Constitutional setup does not allow us to do
conventions. Many countries have changed their political so because of the basic structure doctrine. So, for now,
system from democratic to monarchy but it is remarkable the country will stick to the Parliamentary system which
that India even after 75 years of independence has suits our diversity.
stayed a democratic country having a republican head

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 13 Centre-State Relations

On the other hand, Parliament has the right to

Introduction
legislate “on all or part of India’s territory, which does not
The Constitution of India, being federal in structure, only include the States but also Indian Union territory.”
divides all powers (legislative, executive and financial) It also has the strength of extra-territorial laws that
between the Centre and the States. Federal structure of no State Legislature has. This means that the laws made
India is no longer a hindrance for better Centre-State by Parliament would apply not only to individuals and
relations but rather it has given new hope to the mixed territory but also to Indian subjects living anywhere in
efforts of the Centre and States which may be referred to the world.
as co-operative federalism. However, there are other limitations on Parliament’s
The Centre-State relations can be studied under territorial competence. Certain unique clauses of the
three heads: Constitution are subject to the plenary territorial
r Legislative relations. competence of Parliament. These are the following:
r Administrative relations. r The President can make regulations that are
equivalent to the laws of Parliament, some
r Financial relations
territories of the Union, such as the Andaman and
Part XI of the Indian Constitution specifically deals Lakshadweep Region, and these regulations may
with Centre-State relations. It has been bifurcated into revoke or amend a law adopted by Parliament on
legislative and administrative relations. Further, in Part the said territories (Article 240).
XII, provisions related to financial relations are laid
r Notifications can be issued by the Governor (Para 5
down.
of Schedule 5(3) of Indian Constitution) that prevent
Legislative Relations or change the application of the Acts of Parliament
The legislative ties between the centre and State to any programmed area of Government.
are governed by Article 245 to 255 of Part XI of the r Schedule VI says that, the Governor of Assam may
Constitution. It sets out a double division between the likewise direct that an act of Parliament does not
Union and the States with legislative powers i.e., in apply to a tribal area (autonomous district) in the
territorial recognition and relation to the subject. State or apply with specified modifications and
There are four aspects in the Centre-States exceptions. The President enjoys the same power
legislative relations, viz., with respect to tribal areas (autonomous districts)
r Territorial extent of Central and State Legislation; in Meghalaya, Tripura and Mizoram.
r Distribution of legislative subjects; The extent of laws made by Parliament and by the
legislatures of States
r Parliamentary legislation in the State List; and
The Constitution uses the Government of India Act,
r Centre’s control over State Legislation. 1935 as its basis and subdivides authority into three
Territorial extent of Central and State Legislation lists between the Union and the States. These are:
Article 245(1), requires a State Legislature to make law r The Union list,
for the entire or any part of the State to which it belongs,
r The State list, and
subject to the dispositions of this Constitution. Unless
the boundaries of the State itself are broadened by an r The Concurrent list.
act of the Parliament, a State Legislature cannot broaden There are 98 subjects on the Union List, over which
territorial jurisdiction in any circumstance. the Union has exclusive authority. The topics on the

99
Union list, for example, security and foreign relations, otherwise have ceased to operate. The law of
are of national significance, etc. Parliament, which Parliament should have been
There are 59 topics in the State List over which responsible for passing such a resolution by
countries have exclusive jurisdiction. The concerns Rajya Sabha, ceased to have any effect on the
listed on a State list, such as public order, police and expiry of a term of six months after the date on
public safety, are of local or national importance. which the resolution ceased to be in force, except
The Concurrent List contains 52 subjects like in the case of things done or omitted to be done
criminal and civil cases, marriage and divorce, economic before the expiry of that time. This provision
and special planning unions, money, media, magazines, allowed the Rajya Sabha, representing the
employment, management of the population and States, to place any matter of local significance
preparation of the families, etc. and both the Union and but national interest in the concurrent list. The
States can enact laws on this list but the federal rule Rajya Sabha can do so at any moment, whether
prevails over State law in the case of a dispute between emergency or not.
the Central and the State law. r Under Proclamation of National Emergency (Art.
The purpose of the Constitutional inclusion of the 250)
list was to ensure continuity in key legal principles m Article 250 notes that in the case of a declaration
across the country. Legislatures both in the Parliament of emergency, Parliament shall have the power
and in the State may make laws on matters mentioned to make law on any item on the State List.
above, but a preliminary and ultimate right of the centre This legislation shall extend in the case of a
is to legislate on established matters. In the event of a national emergency (Art. 352) and every State
conflict between the law of the State and the law of the in compliance with the Order of the President
Union on a subject in the Concurrent List, the law of the (Art. 356) or the event of a financial emergency
Parliament shall prevail. (Art. 360).
The power to make laws with respect to residuary m Under this time, the laws of the State or States
subjects (i.e., the matters which are not enumerated in shall remain inoperative to the degree that they
any of the three lists) is vested in the Parliament. This are contrary to the law of the centre (Art. 251).
residuary power of legislation includes the power to levy Thus, the Parliament as a whole will legislate
residuary taxes. on the subjects specified in the State List while
Parliament’s power to legislate on State List the National Emergency Declaration is in effect.
Although the Central Government does not have the However, the laws enacted by the Parliament
power in the common circumstances to legislate on according to this clause shall cease to affect the
matters mentioned in that State, the Parliament of the expiration of a period of six months after the
Union may only make laws on such matters under some termination of the Proclamation, except in the
special conditions. These special conditions are: case of items done or omitted to be done before
the expiration of that time.
r In the National Interest (Art.249)
r By Agreement between States (Art. 252)
m Article 249 States that, where Rajya Sabha has
declared, by a resolution approved by not less m Article 252, provides for regulation by
than two-thirds of the members present and invitation. If the Legislatures of two or more
voting, that it is required or reasonable, in the States adopt a resolution and order the centre
national interest for Parliament to lay down to make a law on a specific item of the State List,
laws in respect of any matter mentioned in it shall be legal for the Parliament to make a law.
the State List. For the time in question, such a m In the first place, such law shall apply to the
resolution was in place not for more than one States which have made such a request, unless
year. However, the Rajya Sabha could extend the any other State may subsequently follow it by
term of such a resolution for a further duration passing such a resolution. Such laws can only be
of one year from the date on which it would amended or repealed by Parliament.

100
 m The Parliament may also make laws about a he may declare exercisable by or under the
State subject if two or more States’ legislatures competence of the Parliament the powers of
agree that a Parliament is allowed to make laws the Legislature of that State.
concerning any issue mentioned in the State m Parliament must delegate the legislative
List concerning that Matter. power to the President, as provided for in
m Subsequently, any act passed by the Parliament Article 357. The President may also allow the
shall extend to those States and to any other Parliament to exercise the powers of the State
State which has passed such a resolution. Legislature during the Declaration of the Rule
Parliament also has the power to amend or of the President as a result of the collapse of
revoke any act of this kind. Constitutional machinery in the State.
m Some examples of laws passed under the above m Nevertheless, all such regulations passed by
provision are Prize Competition Act, 1955; Wild Parliament cease functioning six months after
Life (Protection) Act, 1972; Water (Prevention the declaration of the rule of the President is
and Control of Pollution) Act, 1974; Urban over.
Land (Ceiling and Regulation) Act, 1976; and
Centre’s control over State Legislation
Transplantation of Human Organs Act, 1994.
The Constitution empowers the Centre to exercise
r To Implement Treaties (Art. 253) control over the State’s legislative matters in the
m To implement treaties or international following ways:
conventions, Parliament shall have the power m The Governor can reserve certain types of bills
to legislate concerning any subject. In other
passed by the State Legislature for the consideration
words, even about a State issue, the usual
of the President. The President enjoys absolute veto
distribution of powers does not prevent
over them.
Parliament from passing legislation to satisfy its
foreign obligations or through such legislation m Bills on certain matters enumerated in the State
(Art 253). List can be introduced in the State Legislature only
with the previous sanction of the President. (For
m The Parliament may pass any treaty,
example, the bills imposing restrictions on the
international agreement or convention, with
freedom of trade and commerce).
any other country or State, or any decision taken
during an international conference, association m The Centre can direct the States to reserve money
or other entity, within the whole and any part of bills and other financial bills passed by the State
the territory of India. Legislature for the President’s consideration during
a financial emergency.
m Some examples of laws enacted under the above
provision are United Nations (Privileges and Administrative Relations
The administrative jurisdiction of the Union and the
Immunities) Act, 1947; Geneva Convention Act,
State Governments extends to the subjects in the Union
1960; Anti-Hijacking Act, 1982 and legislations
list and State list respectively. The Constitution thus
relating to environment and TRIPS.
defines the clauses that deal with the administrative
r Under Proclamation of President’s Rule (Art. relations between Centre and States.
356)
Articles 256 to 263 in Part XI of the Constitution
m By Article 356 and 357 of the Indian deal with the administrative relations between the
Constitution, the prevalence of Parliament was Centre and the States. In addition, there are various
further defined. other articles pertaining to the same matter
m Article 356 stipulated that if the President was Centre-State relations during normal time
satisfied that there existed a situation in which r Executive Powers of State be exercised in
the Government of the State cannot be enforced compliance with Union Laws: According to Article
according to the provisions of the Constitution,

101
 256, each State's executive power must be used to adequate facilities for instruction in the mother-
ensure adherence to all laws passed by Parliament tongue at the primary stage of education to children
and any other laws that apply in that State. The belonging to linguistic minority groups.
executive power of the Union also includes the r To ensure development of the Hindi language:
authority to give any directions to a State that the Union can direct the State Governments to ensure
Government of India deems necessary for achieving the development of the Hindi language.
this goal.
r To ensure Government of a State is carried on in
r Executive Powers of State not to interfere with accordance with the provision of the Constitution:
Executive Power of Union: According to Article 257 Union can direct the State Governments to ensure
of the Constitution, each State's executive power that the Government of a State is carried on in
must be used in a way that does not interfere with accordance with the provision of the Constitution.
or adversely affect the Union's executive power. If any State failed to comply with any directions
Union's executive power includes the ability to given by the Union in exercise of its executive
provide a State any instructions it deems necessary power, then President may hold that, a situation has
for that purpose. In short, the Union Government arisen in which the Government of the State cannot
can issue directions to the State Government even be carried on in accordance with the provisions of
with regard to the subjects enumerated in the State the Constitution. Thus, he may proclaim President’s
list. Rule in that State.
r Duty of the Centre to protect States: Article 355 r Delegation of Union’s function to State: The
imposes two duties on the Centre: President of India can entrust to the officers of the
(a) to protect every State against external aggression State certain functions of the Union Government.
and internal disturbance; and However, before doing so the President has to
(b) to ensure that the Government of every State is take the consent of the State Government. But the
carried on in accordance with the provisions of Parliament can enact law authorizing the Central
the Constitution. Government to delegate its function to the State
r Maintain means of communication of National Governments or its officers irrespective of the
or Military importance: The Union Government consent of such State Government. On the other
can give directions to the State with regard to hand, a State may confer administrative functions
construction and maintenance of the means of upon the Union, with the consent of the Union only.
communication declared to be of national or r Appointment and Removal of High Dignitaries:
military importance. Union has major say in appointment and removal of
r Protection of the Railways: Union can issue State Governor and appointment of Judges of High Court
Governments necessary directions regarding the and Members of State Public Service Commission.
measures to be taken for the protection of the The Governor of a State is appointed by the
railways within the jurisdiction of the State. It may President. He holds office during the pleasure of the
be noted that the expenses incurred by the State President.
Governments for the discharge of these functions The State Election Commissioner, though appointed
have to be reimbursed by the Union Government. by the Governor of the State, can be removed only
r To ensure welfare of Scheduled Tribes in the by the President
States: Union can direct the State Governments r All India Services: The presence of the All-India
to ensure execution of schemes essential for the Services - the Indian Administrative Services, Indian
welfare of the Scheduled Tribes in the States. Police Services - further accords a predominant
r To secure instruction in the mother-tongue at position to the Union Government. The members of
the primary stage of education: Union can direct these services are recruited and appointment by the
the State Governments to secure the provision of Union Public Service Commission. The members of

102
 these services are posted on key posts in the States, person serving in connection with the affairs of
but remain loyal to the Union Government. the Union including the Judges of the Supreme
r Union to adjudicate Inter-State River Water Court and High Courts. Union also requires all
Dispute: The Parliament has been vested with Money Bills or Financial Bills to be reserved for the
power to adjudicate any dispute or complaint with consideration of the President after they are passed
respect to the use, distribution or control of the by the Legislature of the State.
waters of, or in any Inter-State River or river-valley. It is thus, evident that in the administrative sphere
In this regard, the Parliament also reserves the right the States cannot act in complete isolation and have
to exclude such disputes from the jurisdiction of the to work under the directions and in cooperation
Supreme Court or other Courts. with the Centre
r Extra Constitutional Devices: There are extra- Financial Relation
Constitutional devices to promote cooperation and Indian Constitution has made elaborate provisions,
coordination between the Centre and the States. relating to the distribution of the taxes as well as non-tax
These include a number of advisory bodies and revenues and the power of borrowing, supplemented by
conferences held at the Central level. provisions for grants-in-aid by the Union to the States.
The non-Constitutional advisory bodies include Article 268 to 293 deals with the provisions of financial
the NITI Aayog, the National Integration Council, relations between Centre and States.
the Central Council of Health and Family Welfare, The Constitution divides the taxing powers between
the Central Council of Local Government, the Zonal the Centre and the States as follows:
Councils, the North Eastern Council, the Central r the Parliament has exclusive power to levy taxes on
Council of Indian Medicine, the Central Council of subjects enumerated in the Union List,
Homoeopathy, the Transport Development Council, r the State Legislature has exclusive power to levy
the University Grants Commission and so on. taxes on subjects enumerated in the State List,
Centre State Relations During Emergencies r both can levy taxes on the subjects enumerated
r Under President’s Rule: The State Governments in Concurrent List whereas residuary power of
cannot ignore the directions of the Union taxation lies with Parliament only.
Government, otherwise the President can take the GST Regime – 101st Amendment
action against the Government of the State stating 101st Amendment to the Constitution and the
that the administration cannot be carried on the introduction of GST in the Indian Economy has
accordance with the provisions of the Constitution significantly changed the landscape of financial relations
and thus can impose President's rule on the State. between the centre and States. Therefore, it is extremely
In such an eventuality the President shall assume important to have a basic knowledge of what GST is, its
to himself all or any of the functions of the State application and its different forms.
Government. Position before GST
r Under Proclamation of National Emergency: Before the introduction of GST, there were multiple taxes
During a Proclamation of National Emergency, the imposed by the centre and States separately and the
power of the Union to give directions extends to distribution of which was confusing and non-uniform.
the giving of directions as to the manner in with It included Service Tax, Central Excise, Customs duty
and State VAT etc. But after the GST, the principle of one
the executive power of the State is to be exercised
nation one tax was adopted.
relating to any matter.
Position after GST
r Under Proclamation of Financial Emergency:
GST is categorized into CGST, SGST or IGST depending
During a Proclamation of Financial Emergency,
on whether the transaction is Intra-State or Inter-State
Union can direct the State Governments to observe
supplies.
certain canons of financial propriety and to reduce
r Intra-State supply of goods or services: In these
the salaries and allowances of all or any class of

103
 kinds of transactions, the location of the supplier The biggest achievement of GST is that it introduced
and the place of supply are in the same State. a single uniform tax system with dual tax features where
r Inter-State Supply of Goods and Services: As per the the revenue is shared between both centre and State.
Section 7 of IGST act, 2017 it can be understood that The GST council as mentioned under Article 279
“Inter-State” trade or commerce basically means: A, shall make decisions in relation to the GST rate, inter
m when the supplier is located in some other State supply transactions and other matters related to GST etc.
or union territory and the place of the supply is Article 268- Duties levied by the Union but collected
in another State/UT, or and appropriated by the State
m when the supply of goods or services is made to To summarise it can be said that following are some key
or by a Special Economic Zone (SEZ) unit. elements of Article 268
r It imposes a certain types of stamp duties.
Central Goods and Services Tax (CGST)
r CGST is a tax imposed on Intra-State supplies of r It is levied by the centre but collected and
goods and services and is governed by the CGST Act. appropriated by the States.
Along with this SGST/UTGST will also be levied on r It forms a part of the Union list and does not form
the same transaction and shall be governed by the the part of the consolidated fund of India.
SGST/UTGST Act. r The scope of the revenue obtained under this
r It implies that in the case of Intra-State supplies Article is limited which has been further reduced by
of goods and services both CGST and SGST are the 101st Amendment.
combined which are collected simultaneously; Article 269 Taxes levied and collected by the Union
where CGST goes to the centre and SGST goes to the but assigned to the States
State. To summarise it can be said that following are some key
r The proportion of SGST and CGST is equal. elements of Article 269
r However, it must be noted that any tax levied on r It is a tax levied on all the Inter-State sale, purchase
Intra-State supplies of goods and/or services by the and consignment of goods (except on the goods
centre and State shall not exceed 14% each. mentioned under Article 269 A and newspapers).
State Goods and Services Tax (SGST) r The tax is collected and levied by the Central
r The SGST is a tax levied by the State on the Intra Government but appropriated by the State
State supplies of goods and/or services by the State Governments.
Government. r The amount collected from the Inter-State trade is
r It is governed by the SGST Act. appropriated to the consuming State.
r The power to lay down laws regarding the Inter-
r As already mentioned above it is levied and collected
State and commerce and the distribution of share
simultaneously with the CGST.
rests with the Parliament only.
r In the case of Union territories, it is called UTGST
r The tax collected under this article does not form
and governed by the UTGST Act.
the part of the consolidated fund of India.
Integrated Goods and Services Tax (IGST)
Article 269 (A) – Position in GST Regime
r IGST or Integrated Goods and Services Tax is a tax
Article 269A, relates to GST. It states that in case of inter-
levied on all Inter-State supplies of goods and/or
State supply, taxes i.e., IGST shall be levied and collected
services.
by the Central Government and will be distributed by
r It is governed by the IGST Act. the Centre to the States.
r IGST applies on any supply of goods and/or services With the latest 101st Amendment a new article
in case of both import into India and export from 269 A was inserted which brought some considerable
India. Though the exports will be zero-rated. changes.
r Tax obtained under IGST is shared between centre Subclause (1) of Article 269
and States as per Article 269 A Article 269A (1) basically involves the following aspects:

104
r Levying and collection of goods and services tax of GST wherein both the Centre and States are involved.
(GST). Article 270- Taxes levied and distributed between the
r It applies in the case of inter-State trade or Union and the States
commerce. Article 270 deals with taxes that are levied and
r The tax collected shall be appropriated between the collected by the Central Government and how they
States and the Union. are distributed between the central Government and
r The Parliament has the power to lay down the law the State Government according to a predetermined
regarding the sharing of taxes collected under this formula which is provided by the Finance Commission
article as per the recommendations of the Goods once every 5 years
and Services Tax (GST) Council. Article 270(1) lays down the procedure for the
The Parliament, in Section 17 of the IGST Act, 2017 appropriation of all taxes except,
in the exercise of its powers provided in Article 269A (1) r Taxes mentioned in Article 268
of the Constitution has provided the manner in which r Taxes mentioned in Article 269
integrated tax collected by the Union under the IGST Act
r Taxes mentioned in Article 269A
can be apportioned in between the Union and the States.
r surcharge on taxes and duties mentioned in Article
Import of goods is a tax on supply
271
Article 269A (1) is followed by an explanation that in the
r any cess levied for a specific purpose
context of India, all the imports of goods and services
in the course of inter-State trade, shall be deemed to These taxes are levied and collected by the Union
be considered as the part of the supply of goods and and shall be distributed between the States and the
services. Central Government.
Position after GST It may include taxes such as Excise Duty on Non-
This authorises the Central Government to levy IGST GST products, Income Tax, Basic Customs Duty etc.
instead of CVD (countervailing duty) on the import r The 101st Constitutional Amendment added
transactions after the 101st Amendment. Articles 270(1A) and 270(1B). Article 270(1A)
Position before GST provides that taxes collected under Article 246(1)
Before the introduction of GST, instead of IGST, Counter- are distributed between the Centre and the State.
Vailing Duty was applied in the case of inter-State trade Similarly, Article 270(1B) provides that tax collected
or commerce. This was a specific form of tax that was on Inter-State trade (IGST) is also distributed
imposed by the Government of India for the protection between Centre and State.
of domestic producers and to mitigate the adverse r Article 270(2) provides the manner of distribution
impact of import subsidies. of the collected taxes and it doesn’t become a part
Amount collected shall not form a part of of the Consolidated Fund of India.
Consolidated fund: Article 269A (2) further provides r According to Article 270(3), the President of India
that the amount appropriated to the State by the will prescribe the manner in which all central taxes
procedure contemplated under clause (1) will not form formed in one central pool shall be distributed as
a part of the Consolidated fund of India and shall directly per the Finance Commission recommendations.
be given to States. Article 271 – Surcharge on certain duties and taxes
Subclause (5) of Article 269(A)- Parliament will for purposes of the Union
make laws on the Inter-State trade and commerce: Article 271, has the following key elements:
Article 269A (5) deals with conferring the Parliament r Parliament has the power to increase any duty or
certain powers to determine the scope or to decide the tax anytime by levying a surcharge except in the
place of supply, as regards to when the supply of goods or case of GST mentioned under Article 246A.
services will constitute inter-State trade or commerce. r All the proceeds obtained from the surcharges will
This a reformative step as it follows dual structure be part of the consolidated fund of India.

105
r All the amount from such an increase in tax shall Constitution which provide the scope for Grants-in-aid.
be retained by the Parliament and it is not shared Under Article 275 and Article 282, the Parliament
amongst the States. may make grants-in-aid from the Consolidated Fund
r The Article has its basis to Section 137 and Section of India to such States as are in need of assistance,
136(1) of the Government of India Act, 1935. particularly for the promotion of the welfare of tribal
r Further, no authority has the power to prevent the areas, including a special grant to Assam.
Parliament from imposing a surcharge. Types of Grants
Article 272 repealed Essentially speaking there are two major types of grants
Article 273 – Grants in lieu of export duty on jute and that are Statutory grants and Discretionary grants.
jute products r Statutory grants are provided under Article 275 of
According to Article 273, the Government of India before the Constitution of India.
independence provided the provision regarding the r While discretionary grants are provided under
sharing of net proceeds of the jute export duty with the Article 282 of the Constitution of India.
jute growing provinces. But under the Constitution, the Article 275 – Statutory grants
States are not entitled to obtain any apportion of such These grants are given by the Parliament to the specific
duty. States who are in need of assistance. Under this, different
The Provision specifies that for a period of 10 years amounts of grants are fixed for different States. The
from the commencement of the Constitution, the jute amount is given out of the consolidated fund of India.
growing States of West Bengal, Bihar, Orissa and Assam r The Constitution also provides for specific grants
will receive grants-in-aid from the Union from the for promoting the welfare of the scheduled tribes in
share of the jute export duty. But as this provision was a State or for raising the level of administration of
applicable only up to 10 years after the commencement the scheduled areas in a State including the State of
of the Constitution, so now this Article does not hold any Assam.
relevance.
r Any order made by the Parliament regarding the
Article 274- Prior recommendation of President grants-in-aid shall need a prior recommendation of
required to Bills affecting taxation in which States are the Finance Commission.
interested
Further, it also lays down that the Finance
As per this article, any bill or amendment on the
Commission has the power to make recommendations
following listed subject matters cannot be moved or
other than those which are mentioned in provisions to
introduced in either house of the Parliament before a
clause (1).
prior sanction from the President which include bills/
amendments dealing with: Article 282- Discretionary Grants
Article 282 empowers both the Centre and the States
r The imposition or varying of any tax within which
to make any grants for any public purpose, even if it
the States are interested; or
is not within their respective legislative competence.
r It modifies or changes the meaning of the expression
Under this provision, the Centre makes grants to the
“Agricultural Income” as laid down in the Indian
States. These grants are also known as discretionary
Income-Tax Act; or
grants, the reason being that the Centre is under no
r It lays down, modifies or amends any principle by obligation to give these grants and the matter lies within
which money is distributed to the States; or its discretion. These grants have a two-fold purpose: to
r It levies a surcharge on the State taxes for the help the State financially to fulfil plan targets; and to give
purpose of the Union. some leverage to the Centre to influence and coordinate
Grants from the Union to certain States State action to effectuate the national plan.
Apart from the distribution of taxes between the Article 276- Taxes on professions, trades, callings and
Centre and the States, there are certain articles in the employments

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Article 276, empowers a State or other local authority category States.
to impose taxes on professions and trades. But the total r Laws on the model of GST, rules for determining
amount payable under any such tax shall not exceed two Inter-State supply transactions and determining
thousand and five hundred rupees per annum. the place of supply or any other matter.
Article 277 – Saving of Pre-Constitutional laws Further, the GST Council is also empowered to
According to Article 277, if any taxes, duties, cesses establish a mechanism to adjudicate any dispute between
or fees which were lawfully levied by the Government the Centre and the States or between any States.
of any State, municipality, or local bodies before the Finance Commission
commencement of the Constitution shall be continued For the purpose of allocation of certain sources of
even after the commencement. It will not be affected by revenue, between the Union and the State Governments,
the fact that the same subject is now a part of the Union the Constitution provides for the establishment of a
list. Though however, it will be continued only till the Finance Commission under Article 280. According to
Parliament does not make any law to the contrary. the Constitution, the President of India is authorized to
Article 278 Repealed set up a Finance Commission every five years to make
Article 279- Calculation of net proceeds recommendation regarding distribution of financial
Article 279 basically defines the net proceeds of a tax. As resources between the Union and the States.
per this article, all the earnings from the taxes excluding Functions
the cost of the collection will constitute the net proceeds The Finance Commission recommends to the President
of India. as to: -
Further, it provides that the net proceeds of a tax or r The distribution between the Union and the States
duty, in whole or in part or of any area will be certified of the net proceeds of taxes to be divided between
by the Comptroller and the Auditor General of India and them and the allocation between the States of
the decision of the CAG shall be final. respective shares of such proceeds;
Article 279 A- GST Council r The principles which should govern the grants-
Article 279A empowers the President of India to in-aid of the revenue of the States out of the
constitute a Council named Goods and Services Consolidated Fund of India;
Tax Council (GST Council) within 60 days after the r The measures needed to augment the Consolidated
commencement of the 101st Constitution Amendment Fund of a State to supplement the resources of the
Act, 2016. Panchayats and Municipalities in the State;
Objective r Any other matter referred to the Commission by the
It shall seek to ensure a uniform system of GST to avoid President in the interest of sound finance
any conflict or confusion, and the development of a Borrowing powers of Centre and State
harmonized national market for goods and services. Article 292 and Article 298 of the Constitution confer
Quorum and powers both the Centre and the States the power to borrow.
The council shall meet from which one half of its member However, there is a huge disparity between the scope of
will constitute a quorum, which will have the power to powers of the State and Centre. The borrowing powers
make decisions on the following listed matters: in the Constitution are similar to what was defined in
r Threshold exemption limit i.e., the turnover below the Government of India Act,1919 and Government of
which goods and services will be exempted from India Act, 1935.
GST. r The Central Government can borrow either
r Rate of GST to be levied, and special provisions within India or outside upon the security of the
with respect to the States of Arunachal Pradesh, Consolidated Fund of India or can give guarantees,
Jammu and Kashmir, Assam, Meghalaya, Manipur, but both within the limits fixed by the Parliament. So
Nagaland, Mizoram, Sikkim, Tripura, Himachal far, no such law has been enacted by the Parliament.
Pradesh and Uttarakhand, categorised as special- r Similarly, a State Government can borrow within

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 India (and not abroad) upon the security of ordinary functions of the Government and it
the Consolidated Fund of the State or can give would then not be taxable. Notably, the property
guarantees, but both within the limits fixed by the and income of local authorities situated within
legislature of that State. a State are not exempted from the Central
r The Central Government can make loans to any State taxation.
or give guarantees in respect of loans raised by any m Similarly, the property or income of corporations
State. Any sums required for the purpose of making and companies owned by a State can be taxed by
such loans are to be charged on the Consolidated the Centre. The Supreme Court, in an advisory
Fund of India. opinion (1963), held that the immunity granted
r A State cannot raise any loan without the consent of to a State in respect of Central taxation does
the Centre, if there is still outstanding any part of a not extend to the duties of customs or duties of
loan made to the State by the Centre or in respect of excise.
which a guarantee has been given by the Centre. In other words, the Centre can impose customs duty
Inter-Governmental Tax Immunities on goods imported or exported by a State, or an excise
Like any other federal Constitution, the Indian duty on goods produced or manufactured by a State.
Constitution also contain the rule of ‘immunity from Effect of Emergency on Centre-States Financial
mutual taxation’ and makes the following provisions in Relation
this regard: r During National Emergency: The President in
r Exemption of Central Property from State Taxation situations of Emergency can order that all grant-
m The property of Centre is exempted from all in- aids received by the States by the Union shall
taxes imposed by a State or any authority within remain suspended. However, such suspension is
a State like municipalities, district boards, only temporary in nature and cannot go beyond
panchayats and so on. But the Parliament is the expiration of the financial year in which the
empowered to remove this ban. Proclamation of Emergency ceases to operate.
m The word ‘property’ includes lands, buildings, r During Financial Emergency: The Centre-States
chattels, shares, debts, everything that has financial relations changes considerably in case
a money value, and every kind of property– if Financial Emergency is imposed as per Article
movable or immovable and tangible or 360 of the Indian Constitution. In such cases,
intangible. the Centre becomes so powerful and exercises
immense control over the States compelling them
m Further, the property may be used for sovereign
to observe certain norms of financial propriety and
(like armed forces) or commercial purposes.
other essential safeguards. The Union Government
The corporations or the companies created by
can give the following mentioned directions to the
the Central Government are not immune from
States-
State taxation or local taxation. The reason is
m It includes directions to State Governments
that a corporation or a company is a separate
regarding the reduction of the salary and
legal entity.
allowances of all the employees engaged in
r Exemption of State Property or Income from Central service of the State which even includes judges
Taxation of the High Courts.
m The property and income of a State is exempted m In situations of Financial Emergency, the
from Central taxation. Such income may be President has the power to make an alteration
derived from sovereign functions or commercial in the distribution and allocation of taxes from
functions. But the Centre can tax the commercial the Centre to the States and to direct the States
operations of a State if Parliament so provides. to observe principles of financial propriety as
m However, the Parliament can declare any laid down by the Parliament.
particular trade or business as incidental to the m Further directions can also be issued compelling

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 the States to reserve the consideration of the Commission (ARC) in 1966. Examining ties between the
President on all financial and money bills Centre and the State was one of its terms of reference.
even after they have been passed by the State The ARC formed a study team under M.C. Setalvad
Legislature. to thoroughly analysed many challenges in Centre-
Shift in Centre-State Relations State relations. The ARC completed its report and
Till 1967, the Centre-State relations by and large were submitted it to the Central Government in 1969 based
smooth due to one-party rule at the Centre and in most on the findings of this study team. Commission made
of the States. In 1967 elections, the Congress party 22 recommendations for improving the Centre-State
was defeated in nine States and its position at the relations. Some important recommendations are listed
Centre became weak. This changed political scenario below:
heralded a new era in the Centre-State relations. The r Establishment of an Inter-State Council under
non-Congress Governments in the States opposed the Article 263 of the Constitution.
increasing centralisation and intervention of the Central r Appointment of persons having long experience
Government. They raised the issue of State autonomy in public life and administration and non-partisan
and demanded more powers and financial resources to attitude as Governors.
the States. This caused tensions and conflicts in Centre-
r Delegation of powers to the maximum extent to the
State relations.
States.
Tension areas in Centre-State Relations
r Transferring of more financial resources to the
The issues which created tensions and conflicts between
States to reduce their dependency upon the Centre.
the Centre and States are:
r Deployment of Central armed forces in the States
r Mode of appointment and dismissal of Governor;
either on their request or otherwise.
r Discriminatory and partisan role of Governors;
No action was taken by the Central Government on
r Imposition of President’s Rule for partisan interests;
the recommendations of the ARC.
r Deployment of Central forces in the States to
maintain law and order; Rajmannar Committee (1969)
In 1969, the Tamil Nadu Government (DMK) appointed a
r Reservation of State bills for the consideration of
three-member committee, chaired by Dr. P.V. Rajamannar,
the President;
to investigate the entire issue of Centre-State relations.
r Discrimination in financial allocations to the States;
It wanted the committee to propose Constitutional
r Role of Planning Commission in approving State amendments to ensure the States' maximum autonomy.
projects;
In 1971, the committee delivered its report to
r Management of All-India Services (IAS, IPS, and the Tamil Nadu Government. The committee's key
IFS); recommendations are as follows:
r Use of electronic media for political purposes; r An Inter-State Council should be formed
r Appointment of enquiry commissions against the immediately.
chief ministers; r The Finance Commission should be made
r Sharing of finances (between Centre and States); permanent.
and r The Planning Commission should be disbanded and
r Encroachment by the Centre on the State List. replaced by a statutory body.
The issues in Centre-State relations have been under r Articles 356, 357, and 365 (concerning President's
consideration since the mid-1960s. In this direction, the Rule) should be deleted entirely.
following developments have taken place: r The provision stating that the State ministry holds
Administrative Reforms Commission office at the pleasure of the Governor should be
Under the leadership of Morarji Desai, the Central removed.
Government established the Administrative Reforms r Certain subjects from the Union List and the

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 Concurrent List should be transferred to the State formation of new States or reorganisation of
List. existing States
r Residuary powers should be devolved to the States. r 75 percent of the revenue raised by the centre
r All-India Services such as IAS, IPS, and IFS should should be allocated to the States
be phased out. r There should be only Central and State services and
The Central Government completely ignored the the All-India Services should be abolished.
recommendations of the Rajamannar Committee. The Central Government did not accept the demands
Anandpur Sahib Resolution 1973 made in the memorandum.
The working committee of the Shiromani Akali Dal Sarkaria Commission (1983)
constituted a 12-member sub-committee on December With a view to reviewing the working of the existing
11, 1972 to formulate comprehensive policies and arrangements between the Union and the States in the
programmes. The Anandpur Sahib Resolution, as changed socio-economic scenario, the Ministry of Home
it is commonly referred to, asked that the Centre's Affairs constituted a Commission in June 9, 1983 under
authority be limited to only defence, foreign affairs, the Chairmanship of Retd. Justice R.S. Sarkaria with Shri
communications, and money, and that all remaining B. Sivaraman and Dr. S.R. Sen as its members.
powers be given to the States. The Commission examined and reviewed the
It also demanded residuary powers for the State. working of the existing arrangements between the
In the decade 1980, as the regional parties became very Union and States in regard to powers, functions and
assertive, they put forth the demand for State autonomy responsibilities in all spheres and recommended such
in an organized manner. changes or other measures as may be appropriate.
Their ‘conclaves’ were held at Vijayawada, Delhi, The commission keep in view the social and
and Srinagar which raised the demand for redefining economic developments that have taken place over the
the Centre-States relations. Here also, the Central years and have due regard to the scheme and framework
Government did not accept these recommendations. of the Constitution which the founding fathers have so
It also called for equal authority and representation sedulously designed to protect the independence and
of the States at the Centre. It was argued, that the ensure the unity and integrity of the country which is
Constitution should be made truly federal, and all States of paramount importance for promoting the welfare of
should have equal access to power and representation at the people.
the federal level. Sarkaria Commission Report- Recommendations
West Bengal Memorandum The Commission submitted its report in October 1987
In December 1977, the Communist Government in with 247 recommendations.
West Bengal published a memorandum called the It out-rightly rejected the demand for curtailing
West Bengal memorandum, which made the following the power of Centre and stated that a strong Centre
recommendations: is essential to safeguard national unity and integrity.
r The word ‘Union’ in the Constitution should be However, it observed the over-centralization as an
replaced by the word ‘federal’ avoidable phenomenon.
r The centre’s jurisdiction to be restricted to only r A permanent Inter-State Council called the Inter-
defence, foreign affairs, communications, and Governmental Council should be set up under
economic coordination Article 263.
r Deletion of Articles 356, 357 and 360 r Article 356 (President’s Rule) should be used very
r Rajya Sabha to have equal powers with that of the sparingly, in extreme cases as a last resort when all
Lok Sabha the available alternatives fails.
r Abolition of All-India Services r The institution of All-India Services should be
r State’s consent should be made obligatory for further strengthened and some more such services
should be created.

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r The residuary powers of taxation should continue be activated.
to remain with the Parliament, while the other The Central Government has implemented 180 (out
residuary powers should be placed in the of 247) recommendations of the Sarkaria Commission.
Concurrent List. Some of the proposals, such as having the Governor
r When the President withholds his assent to the from outside the State, have been implemented. The
State bills, the reasons should be communicated to Supreme Court has often highlighted the importance of
the State Government. putting the Sarkaria commission's recommendations
r The National Development Council (NDC) should on Governor selection and appointment into action.
be renamed and reconstituted as the National Government has accepted a few recommendations of
Economic and Development Council (NEDC). the Sarkaria Commission of Articles 356 & legislative
r The zonal councils should be constituted afresh and matter. However, the name of the Inter-State Council
reactivated to promote the spirit of federalism. has not been changed to ‘Inter Governmental Council’ as
recommended by the Commission.
r The Centre should have powers to deploy its armed
It did not favour structural changes and regarded
forces, even without the consent of States. However,
the existing Constitutional arrangement and principles
it is desirable that the States should be consulted.
relating to the institution as sound. But it emphasized
r The Centre should consult the States before making
the need for the change in functional or operational
a law on a subject of the Concurrent List.
aspect.
r The procedure of consulting the Chief Minister in
National Commission to Review the Working of the
the appointment of the State Governor should be
Constitution (NCRWC) (2000)
prescribed in the Constitution itself.
The National Commission to Review the Working of
r The net proceeds of the corporation tax may be the Constitution (NCRWC), also known as the Justice
made permissibly shareable with the States. Manepalli Narayana Rao Venkata Chaliah Commission,
r The Governor cannot dismiss the Council of was established on February 22, 2000, by a resolution of
Ministers so long as it commands a majority in the the NDA Government of India, led by Atal Bihari Vajpayee,
assembly. for the purpose of suggesting possible Constitutional
r The Governor’s term of five years in a State should amendments. In 2002, it handed its report.
not be disturbed except for some extremely The National Commission to Review the Working
compelling reasons. of the Constitution (NCRWC) put forth its suggestions,
r No commission of enquiry should be set up against many of which were a reiteration of Sarkaria Commission
a State minister unless a demand is made by the recommendations. The following are few of the novel
Parliament. recommendations to improve Centre-State relations:
r The surcharge on income tax should not be levied m According to Article 307, a legislative organization
by the Centre except for a specific purpose and for a named the Inter-State Trade and Commerce
strictly limited period. Commission should be constituted.
r The present division of functions between the m A committee consisting of the Prime Minister, Home
Finance Commission and the Planning Commission Minister, Speaker of the Lok Sabha, and the Chief
is reasonable and should continue. Minister of the State in question shall nominate the
Governor.
r Steps should be taken to uniformly implement the
three-language formula in its true spirit. m The Concurrent List of the Seventh Schedule should
cover disaster and emergency management.
r No autonomy for radio and television but
decentralisation in their operations. m In the event of a political breakdown in a State, the
State should be given an opportunity to explain its
r No change in the role of Rajya Sabha and Centre’s
position and correct the situation before invoking
power to reorganise the States.
Article 356, to the extent possible.
r The commissioner for linguistic minorities should

111
m The 1990 Inter-State Council directive should on List III subjects, it is necessary that some broad
explicitly outline the topics that should be discussed agreement is reached between the Union and States
during the discussions. before introducing legislation in Parliament on
Consecutive Governments have refused to accept matters in the Concurrent List.
the proposals. r The Union should be extremely restrained in
Punchhi Commission (2007) asserting Parliamentary supremacy in matters
The Central Government constituted the Punchhi assigned to the States. Greater flexibility to States in
Commission in 2007 to examine Centre-State relations, relation to subjects in the State List and “transferred
along with the possibility of giving sweeping powers to items” in the Concurrent List is the key for better
the centre for suo moto deployment of Central forces Centre-State relations.
in States and investigation of crimes affecting national r The Union should occupy only that many of subjects
security. It was chaired by the former Chief Justice of in concurrent or overlapping jurisdiction which are
India, M.M. Punchhi. It submitted its recommendation in absolutely necessary to achieve uniformity of policy
2009. in demonstrable national interest.
Main Purpose of the Commission r There should be a continuing auditing role for the
r To examine the possible role, responsibility, Inter-State Council in the management of matters in
and jurisdiction of the Centre during major and concurrent or overlapping jurisdiction.
extended eruptions of communal/caste or other r The period of six months prescribed in Article 201
social violence or conflicts. for State Legislature to act when the bill is returned
r To review other areas of Centre-State relations by the President can be made applicable for the
including that of taxes and rivers’ linking. President also to decide on assenting or withholding
r To study if there is a need to set up a Central law assent to a State bill reserved for consideration of
enforcement agency to take up suo moto crimes the President.
investigation with Inter-State or international r Parliament should make a law on the subject of
ramifications with grave implications on national Entry 14 of List I (treaty making and implementing
security. it through Parliamentary legislation) to streamline
r To see the feasibility of suo moto deployment of the procedures involved. The exercise of the power
central forces in the States if needed. obviously cannot be absolute or unchartered in view
r To examine the role and responsibility of the centre of the federal structure of legislative and executive
with respect to the States in the effective devolution powers.
of autonomy and powers to the Panchayati Raj r Financial obligations and its implications on State
institutions and other local bodies. finances arising out of treaties and agreements
r To support independent planning and budgeting at should be a permanent term of reference to the
the district level and linking Central assistance of Finance Commissions constituted from time to
States to States’ performance. time.
r To examine the relevance of separate taxes for r While selecting Governors, the Central Government
freeing Inter-State trade to establish a unified should adopt the following strict guidelines as
domestic market. recommended in the Sarkaria Commission report
r To examine the role and removal procedures of and follow its mandate in letter and spirit:
Governors. (i) He should be eminent in some walk of life.
Recommendations of Punchhi Commission (ii) He should be a person from outside the State.
The Commission gave 312 recommendations in its (iii) He should be a detached figure and not too
report. Some of the major recommendations are given intimately connect with the local politics of the
below: State.
r To facilitate effective implementation of the laws (iv) He should be a person who has not taken too

112
 great at par politics generally and particularly including independents supporting the
in the recent past. Government from outside.
r Governors should be given a fixed tenure of five r On the question of dismissal of a Chief Minister,
years and their removal should not be at the sweet the Governor should invariably insist on the Chief
will of the Government at the Centre. Minister proving his majority on the floor of the
r The procedure laid down for impeachment of House for which he should prescribe a time limit.
President, mutatis mutandis can be made applicable r The Governor should have the right to sanction for
for impeachment of Governors as well. prosecution of a State Minister against the advice
r Article 163 does not give the Governor a general of the Council of Ministers, if the Cabinet decision
discretionary power to act against or without the appears to the Governor to be motivated by bias in
advice of his Council of Ministers. In fact, the area the face of overwhelming material.
for the exercise of discretion is limited and even in
r The convention of Governors acting as Chancellors
this limited area, his choice of action should not be
of Universities and holding other statutory
arbitrary or fanciful. It must be a choice dictated
positions should be done away with. His role should
by reason, activated by good faith and tempered by
be confined to the Constitutional provisions only.
caution.
r When an external aggression or internal
r In respect of bills passed by the Legislative Assembly
disturbance paralyses the State administration
of a State, the Governor should take the decision
within six months whether to grant assent or to creating a situation of a potential break down of the
reserve it for consideration of the President. Constitutional machinery of the State, all alternative
courses available to the Union for discharging
r On the question of Governor’s role in appointment
its paramount responsibility under Article 355
of Chief Minister in the case of a hung assembly, it
should be exhausted to contain the situation and
is necessary to lay down certain clear guidelines to
be followed as Constitutional conventions. These the exercise of the power under Article 356 should
guidelines may be as follows: be limited strictly to rectifying a “failure of the
Constitutional machinery in the State”.
(i) The party or combination of parties which
commands the wide support in the Legislative r On the question of invoking Article 356 in case
Assembly should be called upon to from the of failure of Constitutional machinery in States,
Government. suitable amendments are required to incorporate
(ii) If there is a pre-poll alliance or coalition, it the guidelines set forth in the landmark judgement
should be treated one political party and if of the Supreme Court in S.R. Bommai v/s Union
such coalition obtains a majority, leader of such of India (1994). This would remove possible
coalition shall be called by the Governor to f the misgivings in this regard on the part of States and
Government. help in smoothening Centre-State relations.
(iii) In case no party or pre-poll coalition has a r Given the strict parameters now set for invoking the
clear majority, Governor should select the Chief emergency provisions under Articles 352 and 356
Minister in the order preference indicated here. to be used only as a measure of “last resort”, and the
(a) The group of parties which had pre-poll duty of the Union to protect States under Article 355,
alliance commanding the largest number. it is necessary to provide a Constitutional or legal
(b) The largest single party staking a claim to framework to deal with situations which require
form the Government with the support of Central intervention but do not warrant invoking
others. the extreme steps under Articles 352 and 356.
(c) A post-electoral coalition with all partners Providing the framework for “localised emergency”
joining the Government. would ensure that the State Government can
(d) A post-electoral alliance with some parties continue to function and the Assembly would not
joining the Government and the remaining have to be dissolved while providing a mechanism

113
 to let the Central Government respond to the issue be Constitutionally defined through appropriate
specifically and locally. The imposition of local amendments.
emergency is fully justified under the mandate of r All future Central legislations involving States’
Article 355 read with Entry 2A of List I and Entry 1 involvement should provide for cost sharing
of List II of the Seventh Schedule. as in the case of the RTE Act. Existing Central
r Suitable amendments to Article 263 are required legislations where the States are entrusted with
to make the Inter-State Council a credible, powerful the responsibility of implementation should be
and fair mechanism for management of Inter-State suitably amended providing for sharing of costs by
and Centre-State differences. the Central Government.
r The Zonal Councils should meet at least twice r The royalty rates on major minerals should be
a year with an agenda proposed by States revised at least every three years without any delay.
concerned to maximise co-ordination and promote States should be properly compensated for any
harmonisation of policies and action having Inter- delay in the revision of royalty beyond three years.
State ramification. The Secretariat of a strengthened r The current ceiling on profession tax should be
Inter-State Council can function as the Secretariat completely done away with by a Constitutional
of the Zonal Councils as well. amendment.
r The Empowered Committee of Finance Ministers of
r The scope for raising more revenue from the taxes
States proved to be a successful experiment in inter-
mentioned in article 268 should be examined
State coordination on fiscal matters. There is need
afresh. This issue may be either referred to the next
to institutionalise similar models in other sectors
Finance Commission or an expert committee be
as well. A forum of Chief Ministers, chaired by one
appointed to look into the matter.
of the Chief Minister by rotation can be similarly
r To bring greater accountability, all fiscal legislations
thought about particularly to co-ordinate policies
of sectors like energy, food, education, environment should provide for an annual assessment by an
and health. independent body and the reports of these bodies
should be laid in both Houses of Parliament/State
r New All-India Services in sectors like health,
Legislature.
education, engineering and judiciary should be
created. r Considerations specified in the Terms of Reference
(ToR) of the Finance Commission should be even
r Factors inhibiting the composition and functioning
handed as between the Centre and the States. There
of the Second Chamber as a representative forum
should be an effective mechanism to involve the
of States should be removed or modified even
States in the finalisation of the ToR of the Finance
if it requires amendment of the Constitutional
Commissions.
provisions. In fact, Rajya Sabha offers immense
potential to negotiate acceptable solutions to the r The Central Government should review all the
friction points which emerge between Centre existing cesses and surcharges with a view to
and States in fiscal, legislative and administrative bringing down their share in the gross tax revenue.
relations. r Because of the close linkages between the plan and
r A balance of power between States inter se is non-plan expenditure, an expert committee may
be appointed to look into the issue of distinction
desirable and this is possible by equality of
between the plan and non-plan expenditure.
representation in the Rajya Sabha. This requires
amendment of the relevant provisions to give r There should be much better coordination
equality of seats to States in the Rajya Sabha, between the Finance Commission and the Planning
irrespective of their population size. Commission. The synchronisation of the periods
covered by the Finance Commission and the Five-Year
r The scope of devolution of powers to local bodies
Plan will considerably improve such coordination.
to act as institutions of self-Government should

114
r The Finance Commission division in the Ministry to the Centre than States which led to a financial
of Finance should be converted into a full-fledged crisis for many States. Moreover, the GST dues of
department, serving as the permanent secretariat States not being paid by the Centre added to the
for the Finance Commissions. problem.
r The Planning Commission has a crucial role in the r In terms of administrative relations, many States
current situation. But its role should be that of
felt that there has been discrimination by the Centre
coordination rather that of micro managing sectoral
in terms of distributing medical equipment and
plans of the Central ministries and the States.
vaccines, though the truth cannot be established.
r Steps should be taken for the setting up of an
Inter-State Trade and Commerce Commission r Further, as regards the legislative relations, States
under Article 307 read with Entry 42 of List-I. were not consulted in many matters which were
This Commission should be vested with both stipulated in the statutes; they were bound to
advisory and executive roles with decision making follow the orders of the Centre which strained the
powers. As a Constitutional body, the decisions of relations between the Centre and States.
the Commission should be final and binding on In India, the Centre-States relations constitute the
all States as well as the Union of India. Any party core elements of the federalism. The Central Government
aggrieved with the decision of the Commission may and State Government cooperate for the well-being and
prefer an appeal to the Supreme Court.
safety of the citizens of India. The work together in the
The Report of the Commission was circulated to field of environmental protection, terror control, family
all stakeholders including State Governments / UT
control and socio-economic planning.
Administrations and Union Ministries / Departments
concerned for their considered views on the The Indian Constitution aim at reconciling the
recommendations of the Commission. The comments national unity while giving the power to maintain State to
received from the Union Ministries / Departments and the State Governments. It is true that the Union has been
the State Governments / UT Administrations are under assigned larger powers than the State Governments,
the consideration of the Inter-State Council but this is a question of degree and not quality, since
Impact of COVID-19 on Centre-State Relations all the essential features of a federation are present in
The COVID-19 has severely strained federal relations in the Indian Constitution. It is often defined to be quasi-
certain aspects. federal in nature. Thus, it can be safely said that Indian
r In the context of finance, PM-CARES Fund was Constitution is primarily federal in nature even though
brought under the ambit of CSR, however, the same it has unique features that enable it to assume unitary
was not done for State-based funds. As a result, features upon the time of need. Federal but its spirit is
companies were more inclined to make donations unitary.

115
 14 Inter-State Relations

taking into account public Interest.

Introduction
Under the provisions of the act, the Central
For the purpose of successful functioning of the federal Government has enacted, River Boards Act (1956) and
system of the Indian Government, alongside the Centre- Inter-State Water Disputes Act (1956).
State relationship, there comes a need to maintain
r The River Board Act provides for the establishment
cooperation between the States inter se. The Parliament
of river boards for the regulation and development
of India has established Zonal Councils with the objective
of the Inter-State River and river valleys. Such a
of promoting Inter-State coordination such as the River
river board is established on the request of the State
Boards Act 1956, Inter-State Water Disputes Act, 1956,
Governments concerned.
and several others. Further, the Constitution of India has
r The Inter-State Water Dispute Act empowers the
also recognized the relevance of such relation which has
Central Government to set up an ad-hoc tribunal
been reflected by a list of provisions enshrined under
for the adjudication of a dispute between the two or
the Indian Constitution as follows;
more States in relation to the water of an Inter-State
r Adjudication of Inter-State Water Disputes under
River. The decision of the tribunal would be final
Article 262.
and binding. Furthermore, the act bars the Supreme
r Coordination through Inter-State Councils under Court and any other court to have jurisdiction in
Article 263. this matter.
Inter-State water disputes While the former statute calls for river boards to
The Indian Constitution has laid down the provision for be established for the purpose of the regulation, and
Inter-State Water Dispute under Article 262 which reads governance of Inter-State rivers, and river valleys, the
as, latter empowers the Central Government to form an ad-
Article 262 (1) Parliament may by law provide hoc tribunal that will adjudicate on Inter-State disputes
for the adjudication of any dispute or complaint with in relation to the river or river valleys.
respect to the use, distribution or control of the waters The Inter-State Water Disputes Act 1956, restrains
of, or in, any Inter-State River or river valley. the Supreme Court from any other court to have
Article 262 (2) Notwithstanding anything in this jurisdiction over water-related Inter-State disputes
Constitution, Parliament may by law provide that neither as to the same completely vests on the tribunal whose
the Supreme Court nor any other court shall exercise decisions will be considered to be final and binding on
jurisdiction in respect of any such dispute or complaint the parties to such dispute. The Central Government
as is referred to in clause (1). at present has set up nine Inter-State Water Dispute
Explanation: Tribunals namely;
Clause (2) ensures the functioning of Clause (1) r Krishna Water Disputes Tribunal: Set-up in 1969
which vests the power to make law, adjudicate disputes, and covers the States of Maharashtra, Karnataka
control issues related to water between any Inter- and Andhra Pradesh.
State on the Parliament entirely restricting the judicial r Godavari Water Disputes Tribunal: This Tribunal
Interference in totality. Entry 56 of the Union List vests was also set up in 1969 and has been covering the
power on the Union Government for the regulation and States of Maharashtra, Karnataka, Andhra Pradesh,
up-gradation of Inter-State rivers and river valleys only Madhya Pradesh and Odisha.
till the extent that has been declared by Parliament r Narmada Water Dispute Tribunal: This Tribunal

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 was established in 1969 for the States of Rajasthan, r Disputes Resolution Committee: Under the Bill,
Madhya Pradesh, Gujarat, and Maharashtra. when a State puts in a request regarding any water
dispute, the Central Government will set up a
r Ravi and Beas Water Disputes Tribunal: Set-up in
Disputes Resolution Committee (DRC), to resolve
1986, and covers the States of Punjab, Haryana and
the dispute amicably. The DRC will comprise of a
Rajasthan.
Chairperson, and experts with at least 15 years of
r Cauvery Water Disputes Tribunal: This Tribunal experience in relevant sectors, to be nominated by
was set up in the year 1990 for the States of the Central Government. It will also comprise one
Karnataka, Kerala, Tamil Nadu and Puducherry. member from each State (at Joint Secretary level),
r Second Krishna Water Disputes Tribunal: Set- who are party to the dispute, to be nominated by
up in the year 2004 for the States of Maharashtra, the concerned State Government.
Karnataka and Andhra Pradesh. m The DRC will seek to resolve the dispute through
r Vansadhara Water Disputes Tribunal: This negotiations, within one year (extendable by six
Tribunal obtained its structure in the year 2010 for months), and submit its report to the Central
the States of Odisha and Andhra Pradesh. Government. If a dispute cannot be settled by the
r Mahadayi Water Disputes Tribunal: Also set up DRC, the Central Government will refer it to the
in 2010, this Tribunal covers the States of Goa, Inter-State River Water Disputes Tribunal. Such
Karnataka and Maharashtra. referral must be made within three months from
the receipt of the report from the DRC.
r Mahanadi Water Disputes Tribunal: Set up in
2018, for the States of Chhattisgarh and Odisha r Tribunal: The Central Government will set up
an Inter-State River Water Disputes Tribunal, for
Many times, the Central Government legislation
the adjudication of water disputes. This Tribunal
failed to be implemented efficiently as has been reflected
can have multiple benches. All existing Tribunals
in the Godavari water dispute in 1962 followed by the
will be dissolved, and the water disputes pending
Cauvery water dispute in 1970. Formation of a tribunal
adjudication before such existing Tribunals will be
takes time which eventually defeats the purpose behind
transferred to the new Tribunal.
such formation and the concerned dispute which was
r Composition of the Tribunal: The Tribunal will
in hand. Such delays and possible loopholes must be
consist of a Chairperson, Vice-Chairperson, three
addressed and bill regarding amendment is proposed in
judicial members, and three expert members. They
the Parliament.
will be appointed by the Central Government on
Inter-State River Water Disputes (Amendment) Bill, the recommendation of a Selection Committee.
2019 Each Tribunal Bench will consist of a Chair-person
r The Inter-State River Water Disputes (Amendment) or Vice-Chairperson, a judicial member, and an
Bill, 2019 was introduced in Lok Sabha by the expert member. The Central Government may also
Minister of Jal Shakti. It amends the Inter-State appoint two experts serving in the Central Water
River Water Disputes Act, 1956. The Act provides Engineering Service as assessors to advise the
for the adjudication of disputes relating to waters of Bench in its proceedings. The assessor should not
Inter-State rivers and river valleys. be from the State which is a party to the dispute.
r Under the Act, a State Government may request the r Time frames: Under the Act, the Tribunal must
Central Government to refer an Inter-State River give its decision within three years, which may be
dispute to a Tribunal for adjudication. If the Central extended by two years. Under the Bill, the proposed
Government is of the opinion that the dispute cannot Tribunal must give its decision on the dispute within
be settled through negotiations, it is required to set two years, which may be extended by another year.
up a Water Disputes Tribunal for adjudication of the m Under the Act, if the matter is again referred to
dispute, within a year of receiving such a complaint. the Tribunal by a State for further consideration,
The Bill seeks to replace this mechanism.

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 the Tribunal must submit its report to the Explanation:
Central Government within a period of one Under Article 263 of the Constitution of India, if the
year. This period can be extended by the Central President believes that the establishment of an Inter-
Government. The Bill amends this to specify State Council would help in serving the public Interests,
that such extension may be up to a maximum of then it is lawful for the President to establish such
six months. Council by order. He shall also define the nature of duties
r Decision of the Tribunal: Under the Act, the to be performed by the Council, its organisation and the
decision of the Tribunal must be published by the procedure to be followed.
Central Government in the official gazette. This The President can charge the Council with the
decision has the same force as that of an order of the following duties:
Supreme Court. The Bill removes the requirement r To inquire into and advise upon disputes which may
of such publication. It adds that the decision of the have arisen between States;
Bench of the Tribunal will be final and binding on r To investigate and discuss subjects in which some
the parties involved in the dispute. The Act provided
or all of the States, or the Union and one or more of
that the Central Government may make a scheme to
the States display a common interest;
give effect to the decision of the Tribunal. The Bill is
r To make recommendations upon any subject and in
making it mandatory for the Central Government to
particular, to make recommendations for enhanced
make such scheme.
coordination of policy and action pertaining to that
r Data bank: Under the Act, the Central Government
subject.
maintains a data bank and information system
The Inter-State Council was established based on
at the national level for each river basin. The Bill
the recommendations of the Sarkaria Commission,
provides that the Central Government will appoint
1988. The Council was established in 1990 pursuant
or authorise an agency to maintain such data bank.
to a Presidential order. It functions as a permanent,
Inter-State Councils
independent, national forum for consultation. The Inter-
Article 263 of the Constitution of India provides for the
State Council comprises of the following members:
establishment of an Inter-State Council. The text of the
Article reads as under: r The Prime Minister of India as the Chairman of the
Council;
Article 263 Provisions with respect to an Inter-State
Council – If at any time it appears to the President that the r The Chief Ministers of every State as the members
public Interests would be served by the establishment of of the Council;
a Council charged with the duty of – r Chief Ministers of Union Territories having a
r Article 263 (a) inquiring into and advising upon Legislative Assembly and Administrators of Union
disputes which may have arisen between States; Territories not having a Legislative Assembly as
members of the Council;
r Article 263 (b) investigating and discussing subjects
in which some or all of the States, or the Union and r Six Ministers of Cabinet rank in the Union Council of
one or more of the States, have a common Interest; Ministers to be nominated by the Prime Minister as
or members of the Council.
r Article 263 (c) making recommendations upon any r Four Ministers of Cabinet rank as Permanent
such subject and, in particular, recommendations invitees Members
for the better co-ordination of policy and action The Council was recently reconstituted in 2019,
with respect to that subject. with the Prime Minister as its Chairperson.
it shall be lawful for the President by order to The decisions of this Council are advisory in nature,
establish such a Council, and to define the nature of the and not binding like the tribunals constituted for
duties to be performed by it and its organization and resolving Inter-State water disputes, and therefore, can
procedure. deal with both legal and non-legal disputes. The Council

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has been assisted by a secretariat known as the Inter- on the Parliament by means of its legislation. Another
State Council Secretariat which came into existence in feature of this provision is that it does not mandate
1991 and was headed by a secretary to the Government courts of one State to enforce the penal laws belonging
of India. The same has been functioning as the secretariat to another State thereby only being concerned with civil
of the Zonal Councils since 2011. jurisdiction.
The Councils which have been formed by the Freedom of Inter-State Trade, Commerce, and
President for better policy coordination between Intercourse
various States or the Centre and the States under this Article 301 specifically declares that, “Subject to
constitutional provision are; the other provisions of this Part, trade, commerce and
r Central Council of Health. Intercourse throughout the territory of India shall be
r Central Council of Local Government and Urban free.”
Development. It is important to note that the freedom guaranteed
r Four Regional Councils for Sales Tax for the by Article 301 extends to intra-State trade, commerce,
Northern, Eastern, Western and Southern Zones. and Intercourse as well as Inter-State trade, commerce,
and Intercourse. As a result, Article 301 supports
In the current crisis due to the enactment of the
the free movement of trade, business, and sexual
Citizenship Amendment Act, 2019, there is an increased
activity throughout the country, and it will be violated
distrust between the Centre and the States. In such times
if limitations are imposed on any State's border.
of constitutional crisis, it is essential that the Council
However, when the limits indicated below are applied in
meets to arrive at a harmonious solution.
accordance with Articles 302 to 305, Article 301 will not
Mutual recognition of Public Acts, Records, and be violated;
Judicial Proceedings
r When public interest is getting affected in some
Article 261 of the Indian Constitution lays down
way or the other, to reserve the same, reasonable
the provision for public acts, records, and judicial
restrictions on freedom of trade, commerce, and
proceedings which reads as,
Intercourse can be imposed;
“Article 261 (1) Full faith and credit shall be given
r On the grounds of public interest also, the Parliament
throughout the territory of India to public acts, records
can provide certain reasonable restrictions but a
and judicial proceedings of the Union and of every State
bill for such circumstances has to be introduced in
Article 261 (2) The manner in which and the the legislature with the President’s sanction;
conditions under which the acts, records and proceedings
r Goods imported can be taxed by the legislature
referred to in clause (1) shall be proved and the effect
provided the same does not turn out to be
thereof determined shall be as provided by law made by
discriminatory;
Parliament
r The freedom provided under Article 301 of the
Article 261 (3) Final judgments or orders delivered
Constitution is subjected to nationalisation laws.
or passed by civil courts in any part of the territory of
India shall be capable of execution anywhere within that In order to implement these restrictive provisions,
territory according to law Disputes relating to Waters.” the Parliament can appoint a competent authority but
till now nothing of such sort has taken place.
The purpose of this provision is to erase the difficulty
of recognizing acts and records of one State by the Zonal Councils
others which results because the jurisdiction of a State The States Reorganisation Act of 1956 divides India into
is confined to its territory only. The full faith and credit five zones namely Northern, Central, Eastern, Western
clause enable providing public acts, records and judicial and Southern thereby providing a zonal council for
proceedings of the Centre and every State throughout each zone. While forming these zones, several factors
the Indian territory thereby vesting the burden of have been taken into account which include: the natural
providing a manner and regulating such providence divisions of the country, the river systems and means of
communication, the cultural and linguistic affinity and

119
the requirements of economic development, security r Increase cooperation between Centre and the
and law and order. States on social and economic concerns by means
Thus, these Zonal Councils are statutory bodies of exchanging views;
composed of: r Promotion of economic development in the States;
r Home Minister of the Union Government as the r Maintaining political equilibrium between different
common Chairman, regions of the democratic nation.
r Chief Ministers of all the States in that zone, Inter-State relations as having been discussed
r Two ministers from each State in the zone, in this article holds immense relevance in today’s
r and an Administrator of each Union territory in that time when diplomatic relations are increasing among
zone. different nations. In order to deal with the internal
issues of a nation effectively, Inter-State relations need
The subject matters that are majorly taken up by
to be established effectively.
the Zonal Councils for discussions include economic
and social planning, disputes associated with borders, Though India being a vast nation spread over
Inter-State transportation, linguistic minorities, and so 28 States and 7 Union Territories are facing different
on. The objectives that are taken up by these Councils problems associated with different regions, maintenance
include: of unity among the States and between the Centre and
the State has been the only way to bringing about logical
r Promote emotional integration within the country
solutions to such problems.
by harmonizing one State with the other and
between the Centre and the States;

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 15 Emergency Provisions

Article 359: Suspension of the enforcement of the

Introduction
rights conferred by Part III during emergencies.
India is a federal country of “its own kind”. It acquires Article 360: Provisions as to Financial Emergency.
unitary features during an Emergency. Due to this National Emergency
reason, Dr B.R Ambedkar called the Indian Federal Article 352 of the Constitution provides for the
system as unique because it becomes entirely unitary provision of National Emergency which can be applied
during an Emergency. Part- XVIII of Indian Constitution if any extraordinary situation arises that may threaten
deals with the Emergency provisions i.e., Articles 352 to the security, peace, stability and governance of the
360. During an Emergency, as Constitutional machinery country. Whenever any of the following grounds occur,
fails, the system converts itself into a unitary feature. an emergency can be imposed:
The Emergency is a period of depression where all
r War
Fundamental Rights of a person is taken away except
r External aggression
Article 20 and 21.
r Internal rebellion.
Types of Emergencies
There are three types of Emergencies mentioned in the Article 352 provides that if the President is ‘satisfied’
on the grounds that the security of India is threatened
Constitution. The power of imposing all three types of
due to outside aggression or armed rebellion, he can
Emergencies is vested upon the President of India. The
issue a proclamation to that effect regarding the whole
concept of Emergency was borrowed from the Weimar
of India or a part thereof.
Constitution of Germany. The three types are as follows
– Parliamentary Approval and Duration
r Article 352(3) states that when a written advice is
r Article 352 – National Emergency
given by the Union Cabinet to the president then
r Article 356 – President’s Rule only the President can make such a proclamation.
r Article 360 – Financial Emergency r The proclamation of emergency must be placed
Constitutional Provisions for Emergency before each House of the Parliament and approved
Article 352: Proclamation of Emergency. within one month of the declaration of the
Article 353: Effect of Proclamation of Emergency. proclamation otherwise it will expire.
Article 354: Application of provisions relating to r However, if the proclamation of emergency is issued
the distribution of revenues while a proclamation of at a time when the Lok Sabha has been dissolved
emergency is in operation. or the dissolution takes place during the period of
Article 355: Duty of the Union to protect States one month without approving the proclamation,
against external aggression and internal disturbance. then the proclamation survives until 30 days from
the first sitting of Lok Sabha after its reconstitution,
Article 356: Provisions in case of failure of
provided the Rajya Sabha has in the meantime
constitutional machinery in State.
approved it.
Article 357: Exercise of legislative powers under
r If approved by both the houses, the Emergency
Proclamation issued under Article 356.
continues for 6 months and can be extended to an
Article 358: Suspension of provisions of Article 19 indefinite period with an approval of the Parliament
during Emergencies. for every six months.

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r Until 44th Amendment 1978, if Parliament judiciary hampering the basic structure of the Indian
approves proclamation of National Emergency, Constitution.
then it remains in operation on pleasure or desire Under Article 352, the amendment had substituted
of cabinet or executive. the ground of ‘Internal Disturbance’ with ‘Armed
r Any of the above resolution related to proclamation Rebellion’. The President is allowed to impose emergency
or renewal of National Emergency must be passed only when the Union Cabinet communicates to him in
by both houses of Parliament by a special majority writing about their decision.
(i.e., the majority of the total membership of that The Proclamation is required to be approved by
house or not less than 2/3rd of members presents both the houses of Parliament by resolution within a
and voting). This provision is added by 44th month instead of two months by a total majority of the
Amendment 1978 and before that such resolution membership of each house of Parliament and by the
can be passed by simple majority i.e., more than ratification of not less than 2/3rd members present and
total members present and voting.
voting in each house instead of a simple majority.
Furthermore, it is not necessary that for the
Under Article 356, the period for extension of a
proclamation of National emergency, external aggression
Proclamation from one month has been amended to six-
or armed rebellion should actually happen. Even if there
months. Proclamation in the first instance can only be
is a possibility that such a situation can arise, a National
exceeded for six months.
Emergency can be proclaimed.
Effects of Proclamation of Emergency
In Minerva Mills vs Union of India, it has been held
There are serious consequences, once emergency
that there can be no bar to judicial review of determining
is proclaimed. It results in adverse effects on the
the validity of the proclamation of emergency issued by
enforcement of fundamental rights of people.
the President under Article 352(1). The court’s powers
Consequences of proclamation of emergency are
are limited only to examining whether the limitations
explained below:
conferred by the Constitution have been observed or
not. It can check if the satisfaction of President is on valid 1) Executive: While a Proclamation of Emergency is
grounds or not. If the President is satisfied that grounds in operation, Union can use its executive power to
for national emergency exist but the same is based on the extent of giving directions to the State relating
absurd, mala-fide or irrelevant grounds then it won’t be to the manner in which the executive powers shall
considered that the President is ‘satisfied’. be exercised by the State. The Constitution (42nd
Procedure for revoking emergency Amendment) Act 1976 made a consequential
If the situation improves then the President can revoke change in Article 353.
the emergency through another proclamation. The It states that the executive power of the Union to give
44th Amendment of the Constitution provides that a directions and to make laws shall extend to other
requisition for the meeting can be made by ten per cent States too apart from the state where an emergency
or more members of the Lok Sabha and in that meeting; has been proclaimed and is in operation. The above-
it can disapprove or revoke the emergency by a simple mentioned power shall be exercised if the security
majority. The emergency will immediately become of India or any part of its territory is threatened by
inoperative in such a case. the activities in the part of the territory of India in
Territorial Extent of Proclamation which emergency has been proclaimed and is in
The President may make a Proclamation of Emergency operation.
in respect of the whole India or any part of India, as In normal times, the power of the executive does not
required. extend to giving such directions subject to certain
44th Constitutional (Amendment) Act, 1978 exceptions.
The imposition of Emergency stressed the legislature
2) Legislative: When an emergency has been
to think again about the Constitutional provisions
proclaimed, the Parliament shall have the power to
that provide power to the executive to supersede the

122
 legislate as regards to State List (List II) as well. The Emergency. Thus, remedial measures
emergency suspends the distribution of legislative are suspended and not the Fundamental
powers between the Union and State and not the Rights.
State Legislature. m The suspension of enforcement relates to
3) Financial: The centre is empowered to alter the only those Fundamental Rights that are
distribution of revenue between the Union and the specified in the Presidential Order. The
State. suspension could be for the period during
the operation of emergency or for a shorter
While a Proclamation of Emergency is in operation, period. The Order should be laid before
the President may, by order define the financial each House of Parliament for approval.
arrangement between the State and the Union as
m The 44th Amendment Act mandates that
provided by Articles 268 to 279. Such order shall be
the President cannot suspend the right
laid before each House of Parliament and when the
to move the court for the enforcement of
Proclamation of Emergency ceases to operate, such
Fundamental Rights guaranteed by Article
order shall to come to an end.
20 and 21.
4) Extension Life of Lok Sabha: The normal life of State Emergency
Lok Sabha can be extended while a proclamation of As per Article 356, if the President after receiving a report
emergency is in operation. Such an extension can be from the Governor of a State or otherwise is satisfied that
done by the Parliament for a period not exceeding such a situation exists where the Government of a State
one year at a time and not beyond a period of six cannot be carried in accordance with the provisions of
months in any case after the Proclamation has the Constitution, he may issue a Proclamation.
ceased to operate. Approval and Duration
5) Suspension of Fundamental Rights guaranteed When a Proclamation is issued under Article 356, it shall
by Article 19: Articles 358 and 359 describes the be first laid before each House of the Parliament. Such
effect of a National Emergency on the Fundamental Proclamation shall remain in operation for 2 months
Rights. These two provisions are explained below: unless before the expiry of the said period it has been
r Suspension of Fundamental rights under Article approved by both Houses of the Parliament according to
19: Article 356(3).
m According to Article 358, when a Suppose in a case where the Lok Sabha has been
proclamation of National Emergency is dissolved during the issuance of a proclamation of
made, the six fundamental rights under emergency or its dissolution takes place within the
Article 19 are automatically suspended. above said period of two months and the Rajya Sabha
Article 19 is automatically revived after the has approved the Proclamation but the Lok Sabha has
expiry of the emergency. not approved it.
m The 44th Amendment Act laid out that In such a case, the said proclamation shall not
Article 19 can only be suspended when the operate unless before the expiry of 30 days it has also
National Emergency is laid on the grounds been passed by the Lok Sabha after its reconstruction.
of war or external aggression and not in The Proclamation will remain in operation for 6 months
the case of armed rebellion. after it has been approved by the Parliament. The
duration of an emergency can be extended for 6 months
r Suspension of other Fundamental Rights:
at a time but it cannot remain in operation for more than
m Under Article 359, the President is 3 years.
authorised to suspend, by order, the right
Revocation
to move any court for the enforcement of
By a subsequent proclamation, State Emergency can be
Fundamental Rights during a National
revoked.

123
Effects observed in various times.
State Emergency shall have the following effects: For example, Indira Gandhi as Prime Minister has a
r The President shall have all the powers that are record of imposing President rule the greatest number
exercisable by the Governor in the State. of times and in 90% circumstances, it was imposed in
r The President shall declare that the State shall states that were ruled by opposition parties or in states
exercise its Legislative powers by or under the that didn’t run in accordance with her party interests.
authority of the Parliament. S.R. Bommai was the Karnataka’s Chief Minister
r If the President deems fit those necessary between August 1988 and April 1989. He led a Janata
provisions shall be made to serve the purpose of the Dal government, which was dismissed on 21st April
Proclamation, then he may make such provisions. 1989 when President’s Rule (Article 356) was imposed
President’s rule: Political tool in Karnataka. Until that time, imposing Article 356 on
The main intention of Constitution makers in view States ruled by the opposition parties (to the one at the
of Article 356 was that it must be used solely as an Centre) was a common practice.
‘emergency power’ and it must be invoked only in the In this particular case, the Bommai-led government
event of “failure of constitutional machinery” in the was dismissed on the grounds that he had lost his
state. Dr. Ambedkar wished that Article 356 would majority because of several defections. Even though
continue to be a “dead letter.” However, the reality is Bommai presented the then Governor P Venkata Subbiah
entirely different. President’s rule was imposed one with a copy of the resolution passed by the Janata Dal
hundred and seven times till date in various states. Well- Legislature Party, he was denied an opportunity to prove
functioning state governments were collapsed to pave his majority in the house.
the way for the Union government’s party to acquire Bommai first went to the Karnataka High Court
power in the state. against the Governor’s decision. However, his writ
According to the nature and scope of Article petition was dismissed by the High Court. Then, Bommai
356, it has been observed that there are two essential moved to the Supreme Court of India. In March 1994,
components of Article 356. a nine-judge constitutional bench of the Supreme Court
r Firstly, the President can impose President rule in a gave the landmark judgement, which would go on to
state based on a report sent by the Governor of the become one of the most widely cited one with respect
concerned state or it can be also imposed in other to Article 356 and its arbitrary usage by the Central
circumstances that deem fit to the President on the Government.
aid and advice of the council of ministers to protect Disputes raised due to S.R. Bommai case
the state. The same can be reflected in the use of the The SR Bommai case raised questions on the
word ‘otherwise’ in Article 356. proclamation of President’s rule in a state. The Supreme
r Secondly, President rule can be applied in a state Court had to discuss the grounds and the extent of the
when there is a failure of Constitutional machinery. imposition of President’s rule in a State. Questions were
Failure of Constitutional machinery refers to a also raised whether the imposition of President’s rule is
situation when the state government can’t carry challengeable.
out its functions following provisions of the
Bommai Case Judgement
Constitution.
This landmark verdict put restrictions on the centre for
The courts can examine the subject matter of
imposing the President’s Rule on states.
the Governor’s report that has attracted ‘President’s
satisfaction’. Governor acts under the pleasure of r It said that the power of the President to dismiss a
President and President acts on aid and advice of the Government of a State is not absolute.
council of ministers belonging to the ruling party at r It said that the President should use this power only
the centre. Therefore, there is a great probability of the after his proclamation (of imposing President’s
Governor’s report being influenced by the ruling party’s Rule) has been approved by both Houses of the
interests and agendas at the centre and it has also been Parliament.

124
r Until then, the President can only suspend the During this emergency, the Centre’s relation undergoes a
Legislative Assembly. Centre’s relation undergoes a modification only with the State
modification with all the States. under the President’s Rule.
r In case the proclamation does not get the approval of
There is no delegation of law- President may make laws for
both the Houses, it lapses at the end of a period of two
making power of Parliament the state after consulting with
months, and the dismissed Government is revived. under the State list. the Members of Parliament
r The suspended Legislative Assembly also gets from that State.

reactivated. Financial Emergency

r The Supreme Court also stated that the proclamation As per Article 360, a proclamation of Financial Emergency
of the imposition of Article 356 is subject to judicial may be issued, if the President is of the opinion that such
review. a situation exists where the financial stability of India or
r The verdict also stated in no uncertain terms that any part of the territory is threatened.
the test of majority of the government should be Duration
done in the floor of the Assembly and is not subject The proclamation of Financial Emergency shall cease to
to the Governor’s opinion. operate after 2 months unless it has been approved by
r The Supreme Court held that policies of a State both the Houses of Parliament. In a case where during
Government directed against an element of the the issuance of proclamation the Lok Sabha has been
basic structure of the Constitution would be a valid dissolved or its dissolution takes place within the said
ground for the exercise of the central power under period of 2 months and the Rajya Sabha has approved
Article 356. the proclamation but the Lok Sabha has not approved
Difference between Articles 352 and 356 it. Then, such a proclamation shall not operate unless
National Emergency President’s Rule (Article 356) before the expiry of 30 days Lok Sabha has passed a
(Article 352)
resolution approving proclamation.
National Emergency is State Emergency is proclaimed
proclaimed under Article 352 under Article 356 when the Revocation
on the ground of war, external State Government cannot be By a subsequent proclamation, Financial Emergency can
aggression and armed rebellion. carried out according to the be revoked.
Constitutional provisions.
Effects
State Executive and legislature State Executive powers
perform their power as get vested in the Central. Financial Emergency has the following effects:
mentioned in List II of Schedule Governor works in the state r The executive authority of the Union shall give
VII. Concurrent List power vests on the advice of the President.
directions to the State regarding the maintenance
in the Central Government. State Legislative Assembly is
dissolved or suspended. of financial stability.
The Proclamation may be The maximum period up to r It may include provisions for reduction of salaries
continued for an indefinite which State Emergency may and allowances of all or any class of persons serving
time as no maximum period is continue is three years after
in the State. This includes Judges of the High Court
prescribed but it is subject to which it will cease but it may
renew every six months. be further continued after the and the Supreme Court.
Constitutional Amendment. r The Money Bills shall be reserved for the approval
Fundamental Rights are There was no effect on the of the President.
suspended during National Fundamental Rights of the
Emergency except Article 20 & 21. people of the State. List of National Emergencies
Resolution for the continuation Resolution can be passed
National Emergency was invoked three times from 1962
of the proclamation of with a simple majority in the to 1977.
emergency must be passed with Parliament. r First National Emergency was invoked in October
a special majority.
1962 during Indo-China war. This Emergency
The resolution for the Resolution for revocation of the
revocation of the proclamation proclamation can be passed by
remained in force till January 1968. It was imposed
can be passed by Lok Sabha. President in his discretion. by the then President of India Shri. Sarvepalli
Radhakrishnan. The reason for imposing this

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 emergency was the Chinese attack in Arunachal Criticism of Emergency Provisions
Pradesh (North-East Frontier Agency). External r It destroys the federal character of the Constitution.
Aggression was ground for invoking the Emergency. r Union executive can become all-powerful vis-à-vis
r The second Emergency was invoked in December state.
1971 during the Indo-Pak war. This Emergency r It could lead to President becoming a dictator.
remained in force till March 1977. This Emergency
r Financial autonomy of the states could be
was imposed by the then President of India Mr. V.V.
threatened.
Giri. The reason for imposing Emergency was war
in Bangladesh. Ground for imposing this Emergency r It seriously imperils the observance of Fundamental
was External Aggression, the Indian military was Rights in the country.
clashing with the military of Pakistan to provide r No modern democratic country has these provisions
independence to East Pakistan. included in their Constitution.
r The period of the war was 11 days and considered as Having dealt with all emergency provisions, it is
the shortest war in the World. But, in the meantime, easy to understand the purpose behind the enforcement
the third emergency was imposed in India. The of such provisions. But it is important to note that even
third emergency continued the second emergency when these provisions are provided for the nation’s
until 1977. security and protection of the people, the provisions
r The third Emergency was invoked in June 1975 in themselves give drastic discretionary powers in the
due to an internal disturbance in the Central hands of the Executive. This affects the federal structure
Government. It remained in force till March 1977. of the nation and essentially turns it into a unitary one.
This Emergency was imposed by the then President Therefore, the courts should be given the power to
of India Fakhruddin Ali Ahmed. It was imposed when expand the powers of the Centre, as the same will act
the second Emergency was already in existence. The as a built-in mechanism to check if the discretionary
real cause behind this Emergency was to secure the powers are being used arbitrarily by the Parliament and
seat of the then Prime Minister of India Mrs. Indira the Executive.
Gandhi who was found guilty in corrupt practices
during her constituency campaign by the Allahabad
High Court.

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 16 President

Introduction members of the legislature are not allowed to vote for

In India, the Constitution of India establishes a President. The following group of people is not involved
Parliamentary form of government, which means Head in electing the President of India:
of the State is the Constitutional head and real executive r Nominated Members of Rajya Sabha (12)
powers are vested in the Council of Ministers. Articles r Nominated Members of State Legislative Assemblies
52 to 78 in Part V of the Constitution deals with Union r Members of Legislative Councils (Both elected and
Executive. Union Executive consists of President, Vice- nominated) in bicameral legislatures
President, Prime Minister and Council of Minister. r Nominated Members of union territories of Delhi
Art 52 of the Constitution says that there shall be the and Puducherry
President of India. He is the Head of the State. Art 53 of the Article 55: Manner of election of President
Constitution says that the executive power of the Union Article 55(1) As far as practicable, there shall be
shall be vested in the President and shall be exercised uniformity in the scale of representation of the d different
by him either directly or through officer’s subordinate States at the election of the President
to him in accordance with this Constitution. Art 73 the
Article 55(2) For the purpose of securing such
executive power of the Union shall extend to the matters
uniformity among the States inter se as well as parity b
with respect to which Parliament has power to make
between the States as a whole and the Union, the number
laws; and includes the exercise of such rights, authority
of votes which each elected member of Parliament and
and jurisdiction as are exercisable by the government
of the Legislative Assembly of each State is entitled to
of India by virtue of any treaty on agreement. Thus, the
cast at such election shall be determined in the following
Executive power of President is co-existent with the
manner:
legislation.
r Article 55(2)(a) every elected member of the
Election of President:
Legislative Assembly of a State shall have as many
Article 54: The President shall be elected by the members votes as there are multiples of one thousand in the
of an electoral college consisting of the elected members quotient obtained by dividing the population of the
of both Houses of Parliament; and the elected members State by the total number of the elected members of
of the Legislative Assemblies of the States. the Assembly;
Explanation: r Article 55(2)(b) if, after taking the said multiples
The election of President is done by indirect election. of one thousand, the remainder is not less than five
Article 54 provides the manner of election of the hundred, then the vote of each member referred to
President. This article provides that there should be an in sub clause (a) shall be further increased by one;
Electoral college r Article 55(2)(c) each elected member of either
Electoral college for President’s election includes:— House of Parliament shall have such number of votes
r The Elected Members of the Houses of Parliament as may be obtained by dividing the total number of
r The Elected Members of the State Legislative votes assigned to the members of the Legislative
Assemblies Assemblies of the States under sub clause (a) and
r The Elected Members of the Union Territories of (b) by the total number of the elected members of
Delhi and Puducherry having Legislative Assemblies both Houses of Parliament, fractions exceeding one
(this part was added later by the 70th amendment half being counted as one and other fractions being
Act; for inclusion of Jammu and Kashmir Union disregarded
Territory similar amendment will be needed). Article 55(3) The election of the President shall
Thus, in the Electoral College, the nominated be held in accordance with the system of proportional

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representation by means of the single transferable vote the system of single transferable vote. In this system,
and the voting at such election shall be by secret ballot. electors rank the candidates in the order of their
Explanation: preference. The winning candidate must secure more
The system of proportional voting is adopted for this than half of the total value of valid votes to win the
election, in which the number of votes is provided in election. This is known as the quota.
proportion to the population of the state in case of State Assuming that each elector casts his vote and that
Legislature. Members and the Members of Parliament each vote is valid:
get their number of votes by dividing the total votes of
the State Legislature with the total number of elected
members of Parliament.
Calculation of votes:
There is a single transferable vote which is cast by
The Presidential election uses a special voting to tally the
every elected member of the legislature through a secret
votes. A different voting weightage is assigned to an MP
ballot. The counting of votes takes place in rounds. In
and an MLA. The value of each MLA's vote is determined
Round 1, only the first preference marked on each ballot
based on the population of their state and the number of is counted. If any of the candidates secures the quota at
MLAs. For instance, an MLA from UP has a value of 208 this stage, he or she is declared the winner.
while an MLA from Sikkim has 7. Due to a Constitutional
If no candidate secures the quota in the first round,
Amendment passed in 2002, the population of the state then another round of counting takes place. In this round,
as per the 1971 census is taken for the calculation. the votes cast to the candidate who secures the least
The value of an MP's vote is the sum of all votes number of votes in Round 1 are transferred. This means
of MLAs across the country divided by the number of that these votes are now added to the second preference
elected MPs candidate marked on each ballot. This process is repeated
For e.g., to find the number of votes for the members till only one candidate remains.
of Legislature of a State, the total population of the State The anti-defection law which disallows MPs from
will be divided by the number of elected members. crossing the party line does not apply to the Presidential
The quotient which will be obtained will be divided by election. This means that the MPs and MLAs can keep
1000 to find out the multiples of 1000. If the quotient is their ballot secret.
10,55,000 then after dividing it by 1000, we get 1055. Note that it is not compulsory for an elector to mark
his preference for all candidates. If no second preference
So, each member of the Legislature will get 1055 votes. is marked, then the ballots are treated as exhausted
Similarly, to get the votes for Members of Parliament, the ballots in Round 2 and are not counted further.
total votes of all the State legislature will be divided by
Article 71: Disputes regarding the election of the
the total number of members of Parliament who have
President
been elected.
Article 71 deals matters relating to the election of the
The value of an MP’s vote will change from 708 in
President. It states that any dispute arising with respect
2017 to 700 in 2022. As Jammu and Kashmir is not a state
to the election of the President will be adjudicated by the
now, Jammu and Kashmir’s MLAs cannot participate in
Supreme court and its decision will be considered final.
the voting process hence the value will drop from 708 to
700. If the election of a person as President is declared
void, acts done by him in the exercise of the powers of
the office of President will not be considered invalid by
reason of the order of the Supreme Court.
Parliament can formulate any law regarding the
election of a President in consonance with the provisions
Note that the value of an MP’s vote is rounded off
of the Constitution.
to the closest whole number. This brings the combined
value of the votes of all MPs to 543,200 (700 x 776). The election of a person as President or Vice
President shall not be called in question on the ground of
What is the number of votes required to win?
the existence of any vacancy for whatever reason among
The voting for the Presidential elections is done through
the members of the electoral college electing him.

128
Term of Office of President: r is qualified for election as a member of the House of
Article 56(1) The President shall hold office for a the People.
term of five years from the date on which he enters upon r A person can be disqualified for election as President
his office: Provided that if he holds any office of profit under
r Article 56(1)(a) the President may, by writing under m the Union of India or;

his hand addressed to the Vice President, resign his m the Government of any State or;
office; m under any local or other authority subject to the
r Article 56(1)(b) the President may, for violation control of any Government of India.
of the Constitution, be removed from office by Office Of Profit: The law does not clearly define what
impeachment in the manner provided in Article 61 constitutes an office of profit but the definition has
r Article 56(1)(c) the President shall, notwithstanding evolved over the years with interpretations made in
the expiration of his term, continue to hold office various court judgments. An office of profit has been
until his successor enters upon his office interpreted to be a position that brings to the office-
holder some financial gain, or advantage, or benefit.
Article 56(2) Any resignation addressed to the Vice
The amount of such profit is immaterial.
President under clause (a) of the proviso to clause (1)
shall forthwith be communicated by him to the Speaker In 1964, the Supreme Court ruled that the test for
of the House of the People. determining whether a person holds an office of profit is
Explanation: the test of appointment. Several factors are considered
in this determination including factors such as:
Article 56 defines the term of the office of the
President to be of five years unless: i. whether the government is the appointing
r A new President enters the office, the incumbent
authority,
President shall hold it; ii. whether the government has the power to
terminate the appointment,
r President resigns before the expiry of the term by
iii. whether the government determines the
writing it to the Vice President;
remuneration,
r The President is removed from his office, for violation
iv. what is the source of remuneration, and;
of the Constitution, by the process of impeachment
v. the power that comes with the position.
provided under article 61.
Conditions of President’s Office:
The article also states that any resignation
Article 59 talks about the condition of the President’s
made by the President to the Vice President must be Office:
communicated to the Speaker of the Lok Sabha by the Article 59 (1) The President shall not be a member
Vice President himself. of either House of Parliament or of a House of the
Legislature of any State, and if a member of either House
Article 57: Eligibility for re-election: A person who of Parliament or of a House of the Legislature of any State
holds, or who has held, office as President shall, subject be elected President, he shall be deemed to have vacated
his seat in that House on the date on which he enters
to the other provisions of this Constitution, be eligible for
upon his office as President.
re-election to that office.
Article 59 (2) The President shall not hold any other
Explanation: In India, there is no restrictions on office of profit.
number of terms the person can become President. In
Article 59 (3) The President shall be entitled without
USA a person can be President for a maximum of two
payment of rent to the use of his official residences and
terms.
shall be also entitled to such emoluments, allowances
Qualifications: and privileges as may be determined by Parliament by
Article 58 talks about the eligibility of a person to law and, until provision in that behalf is so made, such
become President of India. It says that a person is eligible emoluments, allowances and privileges as are specified
for election as President if he: in the Second Schedule.
r is a citizen of India; Article 59 (4) The emoluments and allowances of
r has completed the age of thirty-five years; the President shall not be diminished during his term.

129
Explanation: In India, the impeachment is used in two contexts.
The Constitution lays down the following condition for r Impeachment of President of India
President’s office: r Impeachment of the Supreme Court Judge
r The President cannot be a member of either House of Article 61: Procedure for impeachment of the President
Parliament or of any other House of the Legislature Article 61(1) When a President is to be impeached
of any State. for violation of the Constitution, the charge shall be
r If he is a member of either House of Parliament or a preferred by either House of Parliament.
member of a House of the Legislature of any State, he
Article 61(2) No such charge shall be preferred
will need to vacate his seat in that House on the date
unless
of entering into his office as President.
r Article 61(2)(a) the proposal to prefer such charge
r The President shall not hold any other office of profit.
is contained in a resolution which has been moved
r The President shall be authorized to the use of his
after at least fourteen days’ notice in writing signed
official residences without rent.
by not less than one fourth of the total number of
r He shall be also authorized to emoluments,
members of the House has been given of their
allowances, and privileges determined by Parliament.
intention to move the resolution, and
r The emoluments and allowances of the President
r Article 61(2)(b) such resolution has been passed
cannot be diminished or reduced during his term of
by a majority of not less than two thirds of the total
office.
membership of the House.
Official residence, emoluments, and allowances of
Article 61(3) When a charge has been so preferred
President by either House of Parliament, the other House shall
The President of India is also entitled to certain investigate the charge or cause the charge to be
allowances and privileges, as he is the first citizen of the investigated and the President shall have the right to
country. The President of India is entitled to rent-free appear and to be represented as such investigation.
accommodation, allowances, and privileges by law. He is Article 61(4) If as a result of the investigation a
also entitled to: resolution is passed by a majority of not less than two
r Free medical facilities; thirds of the total membership of the House by which
r Free accommodation; the charge was investigated or cause to be investigated,
r Free treatment for life; declaring that the charge preferred against the President
r The official state car of the President. has been sustained, such resolution shall have the effect
r The salary of the President has undergone several of removing the President from his office as from the
changes since independence-in 2016, the salary was date on which the resolution is so passed.
increased to Rs. 5,00,000.
Explanation:
r Rashtrapati Bhavan is the President’s official
r No President has so far faced impeachment
residence.
proceedings. However, the procedure has been laid
Oath by the President:
down by the law of the land. The President may be
Article 60: Any person holding the office of the President removed before his tenure through impeachment for
or delivering the functions of the President must, before violating the Constitution of India by the Parliament
entering into the office of the President, be made to of India. The process may begin in either of the two
subscribe in the presence of the Chief Justice of the Houses of the Parliament.
country or any other senior-most judge of the Supreme r A House starts by levelling charges against the
Court, to an oath or affirmation in the name of God to President. The charges are present in a notice which
faithfully execute the office of President of India and to must be signed by at least a quarter of the total
preserve, protect and defend the Constitution and the members of that House. The notice is then sent up
law to the best of his abilities and that he would devote to the President and taken up for consideration after
himself to serve the people of India and ensure their 14 days.
well-being.
r An impeachment resolution on the President must
Impeachment of the President be made by a two-thirds majority (special majority)

130
 of the total members of the originating House, to An election to fill the vacancies must be done as soon
be later sent to the other House. The other House as possible. The elections, in any case, must be conducted
conducts an investigation of the charges made. within a time period of six months from the date of
r Meanwhile, the President can defend himself through occurrence of the vacancy. The new person elected to the
an authorised counsel. But if the second House also office of the President will be subject to all the provisions
approves the charges levelled by a special majority, of Article 56 and will hold his office for a five-year term
the President stands impeached. Consequently, he is from the date of entering into the office
deemed to have vacated his office from the date of When vacancy occurs in the office of President, Vice
passing the resolution. President discharges his functions until the President
r In another instance, the Supreme Court inquires and resumes his office. In case the office of Vice President is
decides disputes or ambiguities about the election vacant, the Chief justice of India (if his office is also vacant,
of a President as per Article 71(1) of the Indian then the senior most judge of Supreme Court available)
Constitution. The Supreme Court can remove the acts as a President and discharges the functions of the
President for the electoral misconducts or upon President.
becoming ineligible for Lok Sabha member as laid When any person is acting as a President, he enjoys
under the Representation of the People Act, 1951. all the powers and immunities of the President and is
Time of holding the election on expiry of the term and entitled to get the emoluments, privileges and allowances
filling casual vacancies as the President.
Article 62. Time of holding election to fill vacancy in Powers and Duties of President
the office of President and the term of office of person
elected to fill casual vacancy Legislative powers of the President of India
r According to Article 85 of the Indian Constitution,
Article 62 (1) An election to fill a vacancy caused by
the expiration of the term of office of President shall be the President of India can summon, prorogue and
dissolve the house-either before its complete term or
completed before the expiration of the term
after the completion of the term, in either case fresh
Article 62 (2) An election to fill a vacancy in the office general elections will have to take place to appoint
of President occurring by reason of his death, resignation new members to the house.
or removal, or otherwise shall be held as soon as possible
r The President can adjourn a house sine dine which
after, and in no case later than six months from, the date
means it is adjourned for an indefinite period and
of occurrence of the vacancy, and the person elected to
the next date to assemble or appear hasn’t been
fill the vacancy shall, subject to the provisions of Article
56, be entitled to hold office for the full term of five years announced.
from the date on which he enters upon his office r According to Article 108, The President of India can

Explanation: call both Houses for a joint meeting in the presence

of the speaker of Lok Sabha. Such meetings are
Art 62 provides for the filling up of the vacancy to the
conducted to clear the conflict between both the
office of the President. It defines the terms of office of the
person filling the casual vacancy as well as the time of Houses which arises over passing of a bill.
holding elections to fill the vacancy. r According to Article 87, the President gives a special
opening address to both the Houses of the Parliament
It states that an election to fill the vacancies must be
assembled during, the first session after each general
fulfilled before the expiration of the term of the office of
election to both the House of the people, after all
the President.
the members have taken their oath and the Speaker
A vacancy at the President’s office can occur in any
of the following ways: has been elected. And also, at the beginning of the
r Expiry of his tenure of five years first session every year where both the Houses are
r Resignation present together. In this session, the President talks
r Removal by the impeachment process. about the various policies and programmes of the
r Death ruling government and also highlights the important
r Becomes disqualified to hold office or when his works that were done by them in the previous year.
election is declared void. r According to Article 86(1), the President is bestowed

131
 with the right to summon both the Houses of the make rules when the assembly is dissolved and
Parliament separately or for a joint meeting at any suspended.
time. This meeting is different from the special r He appoints Speaker, Deputy Speaker of Lok Sabha,
opening address that he makes at the first session of Chairman and Deputy chairman of Rajya Sabha
each year and at the first session after every general r He consults the Election Commission of India on
election. This right is termed as the ‘Right to address’ questions of disqualifications of MPs.
which can be exercised by him at any time of the year. Executive Powers of the President
r He also has the right to nominate 12 members in the As the Executive Head of the State, the President
Council of States from the field of Arts, Literature, enjoys many executive powers.
Science, Social Science etc. r All the actions and decisions of the Government are
r The President of India while holding the office has taken in the name of the President.
to present several reports in front of the Parliament r He may/may not make rules to simplify the
from time to time, those reports are- transaction of business of the Central government.
m Under Article 112(1)– The President has to r He seeks administrative information from the Union
present reports in front of both the Houses that government
includes a statement of receipts and expenditure r He requires Prime Minister to submit, for
of Government of India for that year. consideration of the Council of Ministers, any matter
on which a decision has been taken by a minister
m According to Article 112(2), President shows
but, which has not been considered by the Council.
separate reports of the sum of total expenditure
r He can declare any area as a scheduled area and
that was said to be charged from Consolidated
has powers with respect to the administration of
fund of India and the actual expenditure spent.
scheduled areas and tribal areas
m Under Article 151(1)– The Annual Audit
of expenditures of the funds of the Indian Power of the President to make appointments
Government, these reports are prepared by the The President has the power to appoint many
Auditor-General of India. Constitutional officers and the members of the Union
m Under Article 323(1)– Annual report of the Government. They include:
Union Public Service Commission, these reports r The Prime Minister
contain the details about the work done by UPSC r Chief Justice of India and other judges of Supreme
in that year and also some interesting facts about Court and High Courts.
the civil examinations that are held every year, r Attorney General of India and determines his
like for example, the total number of candidates remuneration.
belonging to different fields of subject who r Comptroller and Auditor General of India
appeared in the examination.
r Governors of State
m Under Article 281– Reports of Finance
r Chairman and members of UPSC
Commission explaining the details in written
r Chairman and members of Finance Commission
form about the actions taken by the commission.
r Chairman of National Human Rights Commission
m Reports of Special officers of Scheduled Castes
r Chief Election Commissioners and other Election
(SC) and Scheduled Tribes (ST).
Commissioners
m Reports of Special officers of Linguistic
r Administrators of Union Territories.
Minorities and Backward Classes.
r He appoints National Commissioners of:
r Under Article 239, The President has the power to
formulate special rules for the Union Territories. m Scheduled Castes

r In certain circumstances, the President can make m Scheduled Tribes

rules for the peace, progress, and good governance m Other Backward Classes
of the Union Territories of Andaman and Nicobar r He appoints Inter-State Council
Islands, Lakshadweep, Dadra and Nagar Haveli, Military powers of the President
Daman and Diu and Puducherry. r He is the commander in chief of all the Indian armed
r In the case of Puducherry, the President can only

132
 forces. the country is in danger. A proclamation declaring
r He has the power to declare war or maintain peace financial emergency must be approved by both the
with any nation on the advice of the ministers and Houses within 2 months from the date of its issue.
the Prime Minister. Judicial powers of President
r All kinds of treaties with other nations are signed in The President enjoys the following privileges as his
the name of the President of the nation. judicial powers:
Financial powers of the President r He can rectify the judicial errors;
r The Contingency Funds of India are at the disposal of r He exercises the power of grant of pardons and
the President to meet any unforeseen expenses. reprieves of punishments;
r He also causes the presentation of audits in the r President can seek the advice of Supreme Courts on:
Parliament. m Legal matters,
r No demand of grant can be made without President’s m Constitutional matter,
recommendation. m Matters of national importance. However, the
r Money bills can be introduced in the Parliament only advice tendered by the Supreme Court is not
with his prior recommendation. binding on the President.
r Lays before the Parliament the annual Financial Article 72: Power of President to grant pardons, etc,
Statement.
and to suspend, remit or commute sentences in certain
r Constitutes Finance Commission to recommend the
distribution of revenues between Centre and States. cases
Diplomatic powers Article 72 (1) The President shall have the power to grant
The President forms the face of Indian diplomacy and pardons, reprieves, respites or remissions of punishment
helps the nation to maintain cordial relationships with or to suspend, remit or commute the sentence of any
countries across the globe. person convicted of any offence
r All the Ambassadors and high commissioners in Article 72 (1) (a) in all cases where the punishment
foreign nations are his representatives; or sentence is by a court Martial;
r He receives the credentials of the Diplomatic Article 72 (1) (b) in all cases where the punishment
representatives of other nations; or sentence is for an offence against any law relating
r Prior to ratification by Parliament, the treaties and to a matter to which the executive power of the Union
agreements with other nations, are negotiated by extends;
the President. Article 72 (1) (c) in all cases where the sentence is
Emergency related powers of the President a sentence of death
The President can exercise emergency powers in Article 72(2) Noting in sub clause (a) of Clause (1)
following cases – shall affect the power to suspend, remit or commute a
r National Emergency (Article 352(1))- On the request sentence of death exercisable by the Governor of a State
made by the cabinet of ministers, the President can under any law for the time being in force.
declare national emergency if he gets convinced that When can the President use his Pardoning Powers?
the national security or any part of the country is The President shall have the power to grant pardon to
threatened by war or external aggression, or armed any person convicted of any offence in all cases:
rebellion.
r State Emergency (Article 356 and Article 365)- r Where the punishment was given by a Court Martial
It is also known as President’s Rule. If the state r Where the sentence is a death sentence
administrative body collapses due to any reason r Where the punishment is for an offence which is
or if it is found that the State government cannot related to a matter which can be decided by the
govern the state according to the provisions of the executive power of the Union
Constitution, then the President can declare an r The President cannot act as per his wishes while
emergency. granting a pardon. He must be guided by the Home
r Financial Emergency (Article 360)- It is imposed Minister and the Council of Ministers before taking
by the President if he reckons financial stability of any decision. The President must act on the advice

133
 provided by the ministers under Article 74 of the The power is wider in scope. The scope of powers is narrower.
Constitution. The powers of pardon extend to Power cannot interfere with cases
Five types of pardons can be granted under Article cases of Court Martial as well. of Court Martial.
72 of the Indian Constitution, as stated below: Allows President to grant pardon Governor cannot grant pardon in
in cases of death sentence. cases of death sentence.
Pardon
Ordinance making powers of the President
When the person is granted a pardon by the President,
Article 123 deals with the ordinance making power of
the conviction, sentence, and all the restrictions on him
the President. President has many legislative powers and
are removed. After being granted pardon, it appears that
this power is one of them.
there was no criminal record on the person, and he is
free to live in society. Article 123: Power of President to promulgate
Commute Ordinances during recess of Parliament
When the President uses this power, one form of Article 123 (1) If at any time, except when both Houses
of Parliament are in session, the President is satisfied
punishment is substituted with another. For example,
that circumstances exist which render it necessary for
rigorous imprisonment can be commuted to simple him to take immediate action, he may promulgate such
imprisonment. The conviction will stay on the record of Ordinance as the circumstances appear to him to require;
the accused. Article 123 (2) An Ordinance promulgated under
Respite this article shall have the same force and effect as an Act
of Parliament, but every such Ordinance;
Respite which means reducing the quantum or degree of
r Article 123 (2) (a) shall be laid before both House
punishment of the convicted person considering to some
of Parliament and shall cease to operate at the
special circumstances of the convict, such as physical
expiration of six weeks from the reassemble of
disability or pregnancy of the offender.
Parliament, or, if before the expiration of that period
Reprieve resolutions disapproving it are passed by both
When the President uses this power, the punishment Houses, upon the passing of the second of those
or the sentence is delayed for a temporary period. It is resolutions; and
done so that the President can have time to decide about r Article 123 (2) (b) may be withdrawn at any time by
pardoning the sentence. the President;
Remission Explanation Where the Houses of Parliament are
When the President uses this power, the type of summoned to reassemble on different dates, the period
of six weeks shall be reckoned from the later of those
punishment remains the same, but the period of
dates for the purposes of this clause
punishment is reduced. Rigorous imprisonment of ten
Article 123 (3) If and so far as an Ordinance under
years can be reduced to five years under this power. It this article makes any provision which Parliament would
states that the appropriate government with or without not under this Constitution be competent to enact, it
conditions may at any time accept, suspend or remit shall be void.
the punishment for an offence wholly or any part of the Explanation:
punishment. Ordinance is a type of law that is promulgated by
the President when both of the Houses are not in
Pardoning Power of President and Governor: session or when either of them is not in session. The
Article 161 grants the power to the Governor of the state recommendation of the Union Cabinet is a must for the
to suspend, remit or commute sentences of the offenders promulgation of the Ordinance. Ordinance can only be
in certain cases relating to a violation of provisions or issued on the matters on which Parliament can legislate.
laws to which the executive power of the state extends. The President with the issuance of the Ordinance
can amend or repeal an act of the Parliament, but this will
Article 72 Article 161
be prevalent only for a short duration of time, because
Grants power to the President of Grants powers to the Governor of Ordinances are issued for a shorter term itself.
India. state.
The President though has the power of promulgating

134
the ordinances but it cannot be done unless he is satisfied A.K. Roy vs. Union In A.K. Roy vs. Union of India (1982) while
that there are circumstances that require him to take of India (1982) examining the Constitutionality of the
immediate action. National Security Ordinance, 1980, which
Once the ordinance has been passed it requires sought to provide for preventive detention
to be approved by the Parliament within six weeks in certain cases, the Court argued that the
President’s Ordinance making power is not
of reassembling. The same will cease to operate if
beyond the scope of judicial review.
disapproved by either House. Hence President lays before
However, it did not explore the issue
the Parliament the ordinance issued by him during the further as there was insufficient evidence
recess of the Parliament. If Parliament does not take any before it and the Ordinance was replaced
action, then ordinance ceases to operate on the expiry of by an Act. It also pointed out the need to
exercise judicial review over the President’s
six weeks from the reassembly of Parliament. decision only when there were substantial
The President may withdraw an ordinance at any grounds to challenge the decision, and not
time. However, he exercises his power with the consent at “every casual and passing challenge”.
of the Council of Ministers headed by the Prime Minister. T. Venkata Reddy In T Venkata Reddy vs. State of Andhra
vs. State of Andhra Pradesh (1985), while deliberating on
Where the Houses of Parliament are summoned to Pradesh (1985) the promulgation of the Andhra Pradesh
reassemble on different dates, the period of six weeks Abolition of Posts of Part-time Village
shall be counted from the later of those dates. Officers Ordinance, 1984 which abolished
certain village level posts.
The maximum life of an ordinance can be six months The Court reiterated that the Ordinance
and six weeks, in case of non-approval by the government making power of the President and the
(six months being the maximum gap between the two Governor was a legislative power, comparable
to the legislative power of the Parliament and
sessions of the Parliament).
state legislatures respectively.
The Ordinances may have retrospective effect and This implies that the motives behind the
may modify or repeal any act of Parliament or other exercise of this power cannot be questioned,
ordinances. It may be used to amend a tax law but it can just as is the case with legislation by the
Parliament and state legislatures.
never amend the Constitution.
D.C. Wadhwa vs. It was argued in D.C. Wadhwa vs. State of
Legislative State of Bihar (1987) Bihar (1987) the legislative power of the
Argument
Development executive to promulgate Ordinances is to be
R.C. Cooper vs. Union The Supreme Court, while examining the used in exceptional circumstances and not
of India (1970) Constitutionality of the Banking Companies as a substitute for the law-making power of
the legislature.
(Acquisition of Undertakings) Ordinance,
Here, the court was examining a case
1969 which sought to nationalise 14 of
where a state government (under the
India’s largest commercial banks, held that
authority of the Governor) continued
the President’s decision could be challenged to re-promulgate ordinances, that is, it
on the grounds that ‘immediate action’ was repeatedly issued new Ordinances to
not required; and the Ordinance had been replace the old ones, instead of laying them
passed primarily to by-pass debate and before the state legislature.
discussion in the legislature. A total of 259 Ordinances were re-
38th Constitutional Inserted a new clause (4) in Article 123 promulgated, some of them for as long as
14 years. The Supreme Court argued that if
Amendment stating that the President’s satisfaction
Ordinance making was made a usual practice,
Act, 1975 while promulgating an Ordinance was final creating an ‘Ordinance raj’ the courts could
and could not be questioned in any court on strike down re-promulgated Ordinances.
any ground.
S.R. Bommai v. In this case the scope of Judicial Review
Union of India was expanded as to where the court told
44th Constitutional Deleted clause (4) inserted by the 38th that where the action by the President is
Amendment CAA and therefore reopened the possibility taken without the relevant materials, the
same would be falling under the category of
Act,1978 for the judicial review of the President’s “obviously perverse” and the action would
decision to promulgate an Ordinance. be considered to be in bad faith.
The Supreme Court held that the
exercise of power by the President under
the Article 356(1) to issue proclamation is
Justiciable and subject to Judicial Review to
challenge on the ground of mala-fide.

135
 An ordinance would be made open to challenge on Example- In 1954, an Absolute veto was exercised
the following grounds: by Dr. Rajendra Prasad as a President when he withheld
r It constitutes colourable Legislation. the assent for the PEPSU Appropriation bill.
r It violates any of the Fundamental Rights as The reason was that the Bill was passed by the
mentioned in our Constitution. Parliament during the President’s rule in the state of
r It is violative of substantive provisions of our
PEPSU. However, by the time of Presidential assent, it
Constitution such as an article 301. was revoked.
r Its retrospectively enforcement is unconstitutional. Suspensive Veto:
r President uses a suspensive veto when he returns the
Veto Power of President
bill to the Indian Parliament for its reconsideration.
Constitutional Provision: Article 111 of the Constitution
r If the Parliament resends the bill with or without
provides guidelines for the use of the Presidential veto in
different situations. amendment to the President, he has to approve the
bill without using any of his veto powers.
Article 111 says that “When a Bill has been passed r Exception: The President cannot exercise his
by the Houses of Parliament, it shall be presented to the suspensive veto in relation to Money Bill.
President, and the President shall-
Pocket Veto:
r Give his assent to the Bill or
r The bill is kept pending by the President for an
r Withholds his assent or
indefinite period when he exercises his pocket veto.
r Returns the Bill (except Money Bill) to the Parliament
r He neither rejects the bill nor returns the bill for
with a message for reconsideration of the Bill reconsideration.
Types of Veto Powers available to the President r Unlike, the American President who has to resend
The power of Veto is basically the power of the executive the bill within 10 days, the Indian President has no
(through President) to override any act of the legislature. such time-rule.
The veto powers can be classified into four categories- Example- The Indian President Giani Zail Singh
r Absolute Veto had exercised a pocket veto for the Indian Post Office
r Suspensive Veto
(Amendment) Bill. The reason was that the Bill was
facing criticism for violating the right to freedom of
r Pocket Veto
speech of the press. In the end, the Bill became dead
r Qualified Veto
when Parliament decided not to move forward with it.
Veto powers available to President of India: The
Qualified Veto:
President of India has Suspensive Veto, Pocket Veto and
r President can withhold the assent but it can be
Absolute Veto but does not have Qualified Veto (unlike
overridden by the legislature with a higher majority.
USA President).
Veto over State Bills:
Absolute Veto:
r The Governor is empowered to reserve certain
r It refers to the power of the President to withhold
types of bills passed by the State Legislature for the
his assent to a bill passed by the Parliament. The bill consideration of the President.
then ends and does not become an act. r The President can withhold his assent to such bills
r Used in following two cases: not only in the first instance but also in the second
m When the bill passed by the Parliament is a instance.
Private Member Bill. r Thus, the President enjoys absolute veto (and not
m When the cabinet resigns before the President suspensive veto) over state bills.
could give his assent to the bill. The new cabinet r Further, the President can exercise pocket veto in
may advise the President to not give his assent respect of state legislation also.
to the bill passed by the old cabinet.
Few important points:
Note: President does not use Absolute veto power
r Veto powers of the President are not available
on his discretion. The President shall act on the advice of
against the money bill and the Constitutional
the Council of the Minister.
amendment bill of the Parliament.

136
r Pocket veto of the President is his/her situational if either House of Parliament designates or appoints
discretionary power and has not been mentioned on any court tribunal or any other body to investigate the
the Constitution. charges under Article 61.
Privileges of the President: But it does not prevent any person from bringing
Article 361: Protection of President and Governors any valid proceeding against the Governor or President
and Rajpramukhs
The Article immunes the President against all types
Article 361 (1) The President, or the Governor or
of criminal proceedings during the term of his office.
Rajpramukhs of a State, shall not be answerable to any
No issuance of any order relating to the arrest and
court for the exercise and performance of the powers
imprisonment of the President can be made by any court
and duties of his office or for any act done or purporting
to be done by him in the exercise and performance of during his term of office.
those powers and duties: Provided that the conduct of A civil proceeding can be constituted against the
the President may be brought under review by any court, President during his term of office if:
tribunal or body appointed or designated by either House r The act is done or alleged to have been done, whether
of Parliament for the investigation of a charge under before or entering the office of the President, by him
Article 61: Provided further that nothing in this clause was in his personal capacity;
shall be construed as restricting the right of any person
r Two months prior notice is provided, to the President
to bring appropriate proceedings against the Governor of
India or the Government of a State. or was sent to his office, stating:
Article 361 (2) No criminal proceedings whatsoever r The nature of the proceeding;
shall be instituted or continued against the President, or r The cause of action;
the Governor of a State, in any court during his term of r The details of the other party including name,
office. description, and place of residence;
Article 361 (3) No process for the arrest or r The relief claimed by the other party
imprisonment of the President, or the Governor of a
Position of the President
State, shall issue from any court during his term of office.
Article 361 (4) any civil proceedings in which relief The position of the President has changed, with
is claimed against the President, or the Governor of a respect to his discretion to use his power, has changed
State, shall be instituted during his term of office in any since the inception of the Constitution. The two major
court in respect of any act done or purporting to be done changes came through the 42nd and 44th Amendment
by him in his personal capacity, whether before or after Act of the Constitution.
he entered upon his office as President, or as Governor of Prior to the 42nd Amendment Act of 1976
such State, until the expiration of two months next after
notice in writing has been delivered to the President or Prior to the 42nd amendment to the Constitution,
Governor, as the case may be, or left at his office stating the President was free to make decisions based on his
the nature of the proceedings, the cause of action therefor, wisdom. He may also consider the Council of Ministers
the name, description and place of residence of the party for their advice on the action. As the Constitution at
by whom such proceedings are to be instituted and the that time talks about constituting a Council of Ministers
relief which he claims. with a Prime Minister, as its head, to aid and advise the
Explanation: President in carrying out his duties.
Under Article 361, the President is protected from After the 42nd Amendment Act, 1976
being answerable to any court for: Later, the Constitution was amended to add the
r For exercise and performance of his powers and phrase that the President shall act on the aid and advice
duties of his office; of the council of ministers. But the provision was still
r For doing any act or claimed of doing any act in the ambiguous whether the advice given by the Council of
exercise of those powers and duties; Ministers is binding on the President or not.
The conduct of the President can be reviewed only

137
44th Amendment Act, 1978 This position of the President is the same as the King
This amendment was brought it to swipe off of England and thus the Statement that the President is
the ambiguity created by the 42nd amendment. This the Nominal or Titular Head of the State is true and the
provision said that: Prime Minister is the actual head.
r President can send back the advice to the Council of Conclusion
Ministers for reconsideration once; In India, the President is called the Executive head
r If the same advice is sent again without modifications but he is only a titular head. Even though the President
by the Council, then President is bound to accept it. is given many powers, many of them are not very
Is the President a Titular head? effective for e.g., even if the President sends a bill back
From the various positions, it can be seen that the to the Houses of Parliament for some modifications, the
President has been vested with many powers under Parliament can resend it without any modifications and
the Constitution and all the decisions and actions of the the President is bound to give his assent.
Government are taken in his name. But while there are Also, the President does not play an active role in the
many powers which are enjoyed by the President, many affairs of the State and the real Executive power is vested
of them are in actual practice, residing with the Council in the Council of Ministers headed by the Prime Minister.
of Ministers which is headed by the Prime Minister. So, the Prime Minister is the real head of the state and
the President is the head only in name.

138
 17 Vice President

Introduction functions until the date on which the President resumes

Art 63 mentions about the office of Vice President of his duties.
India. Office of Indian Vice President is modelled on the Article 65 (3): The Vice President shall, during,
lines of American Vice -President. The second-highest and in respect of, the period while he is so acting as,
constitutional office in India, rank only next to the or discharging the functions of, President, have all the
office of President of India in order of precedence. Vice powers and immunities of the President and be entitled
President is a member of neither Lok Sabha nor Rajya to such emoluments, allowances and privileges as may
Sabha. be determined by Parliament by law and, until provision
VP is also ex-officio chairperson of Rajya Sabha in that behalf is so made, such emoluments, allowances
(Art.64). The original Constitution provided that the and privileges as are specified in the Second Schedule.
Vice- President would be elected by the two Houses Power And Functions of The Vice-President
of Parliament assembled at a joint meeting. This r The Vice-President acts as the ex-officio Chairman
cumbersome procedure was done away by the 11th of the Rajya Sabha and his powers and functions are
Constitutional Amendment Act of 1961. similar to those of the Speaker of the Lok Sabha.
First Vice President of India – Dr. S. Radhakrishnan r In the event of the President's inability to work due to
(1952) any reason or a vacancy in the office of the President
Present Vice President of India – Venkaiah Naidu due to any reason, he can act as the President. The
(Since 2017) office was created to maintain continuity in the
Article 64: The Vice President to be ex officio Indian state; however, this is only for 6 months till
Chairman of the Council of States. The Vice President the next President is elected.
shall be ex officio chairman of the counsel of States r While the Vice-President is acting and discharging his
and shall not hold any other office of profit: Provided functions as a President, he shall have all the powers
that during any period when the Vice President acts as and immunities of the President and be entitled to
President or discharges the functions of the President such emoluments, allowances and privileges.
under Article 65, he shall not perform the duties of the r The Vice President while discharging duty as
office of chairman of the council of States and shall not President, should not preside over Rajya Sabha.
be entitled to any salary or allowance payable to the During this period the duties are performed by the
chairman of the council of States under Article 97 Deputy Speaker.
Duties of Vice President Vice President – Election
Article 65: The Vice President to act as President or Article 66: Election of Vice President
to discharge his functions during casual vacancies in the Article 66 (1) The Vice President shall be elected
office, or during the absence, of President.
by the members of an electoral college consisting of the
Article 65 (1): In the event of the occurrence of
any vacancy in the office of the President by reason of members of both Houses of Parliament in accordance
his death, resignation or removal, or otherwise, the Vice with the system of proportional representation by
President shall act as President until the date on which a means of the single transferable vote and the voting at
new President elected in accordance with the provisions such election shall be by secret ballot.
of this Chapter to fill such vacancy enters upon his office.
Article 66 (2) The Vice President shall not be a
Article 65 (2): When the President is unable to member of either House of Parliament or of a House of
discharge his functions owing to absence, illness or the Legislature of any State, and if a member of either
any other cause, the Vice President shall discharge his House of Parliament or of a House of the Legislature of

139
any State be elected Vice President, he shall be deemed seat in that House on the date on which he enters upon
to have vacated his seat in that House on the date on his office as Vice President.
which he enters upon his office as Vice President. The election of the next Vice-President is to be held
Article 66 (3) No person shall be eligible for election within 60 days of the expiry of the term of office of the
as Vice President unless he outgoing Vice-President.
r is a citizen of India; Art 66(3) Minimum Qualification
r has completed the age of thirty-five years; Minimum Qualification for the election of the Vice-
r is qualified for election as a member of the Council of President
States r He should be a citizen of India.
Article 66 (4) A person shall not be eligible for r He should be minimum 35 years of age.
election as Vice President if he holds any office of profit r He should have qualified for the election as a member
under the Government of India or the Government of any of the Rajya Sabha.
State or under any local or other authority subject to the r He should not hold any office of profit under the
control of any of the said Governments. Explanation For Union government or any State Government or any
the purposes of this article, a person shall not be deemed local authority or any other public authority.
to hold any office of profit by reason only that he is the
For the nomination for election to the office of Vice-
President or Vice President of the Union or the Governor
President, a candidate must be subscribed by at least 20
of any State or is a Minister either for the Union or for
electors from Members of Parliament as proposers and
any State.
20 electors as seconders.
Explanation:
Article 67: Terms of Office
The Vice-President is indirectly elected. He is
r The Vice President holds office for five years from
elected by the members of an electoral college consisting
the date of his inauguration.
of the members of both the Lok Sabha and Rajya Sabha.
r The Vice President can resign at any time by sending
It does not include the members of the state legislative
assemblies. a letter of resignation to the President.
For the election of Vice President system of r He can hold office beyond his terms of five years

proportional representation by means of the single until his successor takes office.
transferable vote and the voting done by secret ballot. r He also has the right to be re-elected to this position
Election to the office of the Vice-President is conducted for any number of terms.
by the Election Commission of India. Article 68: Time of holding election to fill vacancy in
All doubts and disputes in connection with the the office of Vice President and the term of office of
election of the Vice- President are inquired into and person elected to fill casual vacancy
decided by the Supreme Court whose decision is final. r An election to fill a vacancy caused by the expiration
The election of a person as Vice-President cannot be of the term of office of Vice President shall be
challenged on the ground that the electoral college was completed before the expiration of the term
incomplete (i.e., the existence of any vacancy among the r An election to fill a vacancy in the office of Vice
members of the electoral college). President occurring by reason of his death,
If the election of a person as Vice-President is resignation or removal, or otherwise shall be held as
declared void by the Supreme Court, acts done by him soon as possible after the occurrence of the vacancy,
before the date of such declaration of the Supreme Court and the person elected to fill the vacancy shall, be
are not invalidated (i.e., they continue to remain in force). entitled to hold office for the full term of five years
The Vice President shall not be a member of either from the date on which he enters upon his office.
House of Parliament or of a House of the Legislature of Article 69: Oath or Affirmation
any State, and if a member of either House of Parliament Before entering his office, the Vice-President has to
or of a House of the Legislature of any State be elected make and subscribe to an oath or affirmation. In his oath
Vice President, he shall be deemed to have vacated his Vice-President swears:

140
r To bear true faith and allegiance to the Constitution r However, one must remember that the office of the
of India; President and the Vice President cannot be combined
r To faithfully discharge the duties of his office. in one person, as per the Constitution of India.
The President of India or any person appointed on Comparison between Indian and American Vice-President
behalf of him administers the oath of office to the Vice- Indian Vice-President American Vice-President
President. Indian Vice-President does American Vice-President
Conditions of Office not assume the office of the succeeds to the presidency
President when it falls vacant when it falls vacant, and remains
r He should not be a member of either House of for the unexpired term. He President for the unexpired term
Parliament or a House of the state legislature. merely serves as an acting of his predecessor.
President until the new
r In the event that any such individual is chosen Vice- President assumes charge.
President, he is considered to have vacate his seat in Indian Vice-President can American Vice-President
that House on the date on which he enters upon his become President for a becomes President for the
office as Vice-President. maximum of six months. remaining term.
The office of Indian Vice- American Vice-President
r He shouldn't hold any other office of profit.
President was created to endowed with significant power
Vacancy maintain political continuity. and functions.
A vacancy in the Vice-President’s office can occur in Comparison between President and Vice President
any of the following ways: President Vice President
r When he completed the tenure of five years. Elected by an Electoral College Elected by an Electoral College
r When he resigned. consisting of elected members consisting of the members
r When he was removed by parliament resolution. of both the Houses of the of both the Houses of the
Parliament-the Lok Sabha and Parliament i.e., the Rajya Sabha
r When he died while serving the office.
the Rajya Sabha and of the and the Lok Sabha (elected &
r When his election is declared void and become
Legislative Assemblies of the nominated both).
disqualified to hold office. States.
Removal Of Vice-President The election is held in The election is held in accordance
r He can also be removed from the office before the accordance with the system of with the system of proportional
completion of his term. proportional representation by representation by means of a
means of a single transferable single transferable vote
r No ground has been mentioned in the Constitution
vote
for the removal of Vice President.
No person shall be eligible for No person shall be eligible for
r A formal impeachment is not required for the
election as the President unless election as the Vice-President
removal of Vice President. he is a citizen of India and has unless he is a citizen of India and
r Resolution for removal can be introduced only in the completed the age of thirty-five has completed the age of thirty-
Rajya Sabha and not in the Lok Sabha, with at least years. five years.
14 days’ advance notice has been given. To become the President, a To become the Vice-President,
r Resolution for removal should be passed in the Rajya person should also be qualified a person should be qualified to
to become a member of the become a member of the Council
Sabha by an effective majority (the majority of all
House of the People of States.
the then members of the Rajya Sabha) and in the Lok
A person shall not be eligible A person shall not be eligible for
Sabha by a simple majority. for the election as the President election as the Vice-President
r In such cases, when a temporary vacancy in the if he holds any office of profit if he holds any office of profit
under the Government of India under the Government of India
office of the Vice President is created, the Deputy or the Government of any or the Government of any
Chairman of the Rajya Sabha takes over the role of State. However, the office of the State. However, the office of the
the Chairman of the Rajya Sabha. President, the Vice-President or President, the Vice-President or
the Governor or the Minister of the Governor or the Minister of
r In other words, the role of the Vice President is to the Union or of any State shall the Union or of any State shall
assist the President in being the nominal head of the not be considered as office of not be considered as office of
profit. profit.
Republic of India.

141
The term of the office is for five The term of the office is for five The President exercises the The Vice-President is the ex-
years from the date of entering years from the date of entering executive powers of the Union officio Chairman of the Council of
upon the office upon the office on the advice of the Council of States and acts as the President
Ministers. in his absence
The President may resign his The Vice-President may
office by writing his resignation resign his office by writing his
to the Vice-President resignation to the President
The President may be removed The Vice-President may be
from his office by a resolution removed from his office by a
of impeachment passed by a resolution passed by the Council
majority of not less than two- of States by a simple majority
thirds of the total members and agreed to by the House of
in both the Houses of the the People
Parliament, separately

142
 18 Prime Minister

Introduction of yielding a profit or pecuniary gain.

In the scheme of the Parliamentary system of government  Holding an office under the Central or
provided by the Constitution, the President is the State Government to which the salaries,
nominal executive authority (de jure executive) and remuneration, allowances are paid amounts
Prime Minister is the real executive authority (de facto to hold the office of profit.
executive). Prime Minister is the leader of the executive r Unsound Mind
system of Government of India and also the head of the m The Prime Minister and other members
Council of Ministers. Prime Minister is the real custodian disqualify if he/she is of unsound mind and
of all the executive authority stands so declared by the competent Court.
Article 75: Appointment r Not a citizen of India
The Constitution does not contain any specific procedure m The Prime Minister disqualifies if he/she is not
for the selection and appointment of the Prime Minister. a citizen of India or has voluntarily acquired the
Article 75 says only that the Prime Minister shall be citizenship of the foreign state.
appointed by the President. r Other Disqualification
The salary and allowances of the Prime Minister are m If he is an undischarged insolvent.
determined by the Parliament from time to time. He/ m Disqualified under any law made by Parliament.
she gets the salary and allowances that are payable to a m Disqualified for being a member of either House
member of Parliament. of Parliament.
Article 84: Eligibility Tenure
r Must be a citizen of India. r The full term of the office of Prime Minister is five

r Must be the member of either of the Houses of the years but they can hold their office only if they enjoy
the majority in the Parliament and the term can
Parliament i.e The Lok Sabha and The Rajya Sabha.
end sooner if loses the vote of confidence in the Lok
r Should complete 25 years of age if he is a member of
Sabha. Once they lose their majority, the period of
the Lok Sabha and 30 years of age if he is a member holding their office also comes to an end.
of the Rajya Sabha.
r The Indian Parliamentary system does not follow
Disqualifications the democratic system of US where if the President
Following are the disqualifications of Prime Minister: holds his office twice and has completed his office,
r Office of Profit he/she cannot again hold their position. In India this
m Article 102(1)(a) of The Indian Constitution system is not followed, here the President, Prime
which bars the Prime Minister to hold the office Minister can hold their office many times till they
of profit. Office of profit is defined as the financial attain their discharge period.
amount which is given to the occupant to gain m Atal Bihari Vajpayee, The 13th Prime Minister of

a financial advantage in the form of salaries, India. His first tenure as a Prime Minister was
perks and other benefits. The office of profit has from 16th May 1996-1st June 1996, he held
not been defined in the Constitution of India or the office for 13 days but due to loss of support
under the Representation of People’s Act, 1951. from the other parties to obtain the majority, he
resigned. Then again, he was chosen as a Prime
m In Jaya Bachchan v. Union of India
Minister with a full majority from 19th March
 The Office of Profit is defined as follows:
1998- 22nd May 2004.
 Office of Profit is an office which is capable

143
 m Pandit Jawaharlal Nehru held the office in a row the lower house decides the agenda of the House.
as a Prime Minister for 4 times from 15th August Aid and Advice the President
1947-27th May 1964. r Prime Minister is the Chief Advisor of the President.
r Thus, in India, the Ministers can hold their office for r The Prime Minister advises the President in all the
many times till they enjoy their vote of confidence in matters of the state.
the Lok Sabha r Prime Minister informs the President regarding all
Deputy Prime Minister of India the decisions taken in the Cabinet Meeting.
r The post of Deputy Prime Minister of India is not r The Prime Minister advises and gives all the
technically a constitutional post, nor is there any information to the President regarding the emergency
mention of it in an Act of Parliament. But historically, situation or any changes in the foreign policy.
on various occasions, different governments have r Prime Minister advises the President to take
assigned one of their senior ministers as the deputy necessary steps in the economic, financial, political
prime minister. and developmental situations of the country.
r There is neither constitutional requirement for Power as the Chairman of the Cabinet
filling the post of deputy Prime Minister, nor does the r The Prime Minister is the Leader of the Cabinet.
post provide any kind of special powers. Typically, r The Prime Minister presides over the meetings and
senior cabinet ministers like the finance minister or decides the agenda of the meetings.
the Home Minister are appointed as Deputy Prime r All the decisions of the Cabinet meetings are decided
Minister. The post is considered to be the senior by the approval and consent of the Prime Minister.
most in the cabinet after the prime minister and r The reject or accept of the proposal of the Cabinet
represents the government in his/her absence. discussions is in the hand of the Prime Minister.
r Generally, Deputy Prime Ministers have been appointed r The Prime Minister guides, directs, controls and
to strengthen the coalition governments. The first coordinates all the activities of the Minister.
holder of this post was Vallabhbhai Patel, who was also r The Prime Minister allocates various portfolios and
the Home Minister in Jawaharlal Nehru's cabinet. ministries among the Ministers.
r In case of any wrongdoing and difference in the
Powers and Functions of the Prime Minister
opinion, the Prime Minister can ask a Minister to
Power to appoint the Authorities resign or advise the President to dismiss the Power
r Prime Minister has the right to give advice to the
of the Minister.
President in relation to the appointment of the r Chairman of the NITI Aayog National Development

Government Authorities. Council, National Integration Council, Inter-State

Council, National Water Resources Council.
r Such authorities include the Comptroller and Auditor
General of India, Attorney General of India, Solicitor Power to Remove the Minister
General of India, Election Commissioners, Chairman r The Minister remains in the office according to the
and Members of the Finance Commission. pleasure of the Prime Minister.
r Prime Minister also has the right to give advice to r The Prime Minister can demand resignation from
the President on the appointment of the Council of any Ministers at any time and the Minister is duty
Ministers and the Cabinet Ministers. bound to accept it.
Power as the Leader of the House of Parliament r In April 2010 when Manmohan Singh was the Prime

r Prime Minister is the Leader of the Lower House of Minister, Shashi Tharoor, the Minister of State for
Parliament i.e the Lok Sabha. External Affairs had to resign from his office under
r He advises President with regard to the summoning
the allegation of the corruption in the IPL case.
of the sessions of the Parliament. Emergency Powers
r The Prime Minister can recommend the President r The President declares the emergency only under
for the dissolution of the Lok Sabha. the advice of the Prime Minister.
r Prime Minister in consultation with the Speaker of r Under Article 352 of the Indian Constitution, the

144
 President can declare an emergency on the basis of Head of State may advise the Prime Minister on one
the written request by the Prime Minister. issue or the other. He or she may draw the attention
r In the year 1975-1977, the then President Fakhruddin of the Prime Minister to certain pertinent issues
Ali Ahmed with the written request and consent
confronting the country. In that sense, the Head of
from the then Prime Minister Indira Gandhi imposed
State serves as a limitation to the Prime Minister.
emergency. The reason behind this was threat to
National Security and bad economic conditions. r Public opinion: The Prime Minister could be
r Thus, the Prime Minister has the power to impose an influenced by the public. This may happen when
emergency when the situation is as such. he leads the introduction of a policy that the public
Coordinating Power thinks are inimical to their interest. Also, the Prime
r The Prime Minister is the chief coordinator between Minister counselling may not want to be in the news
the President and the Cabinet. for the wrong reasons. In that sense, he is limited by
r The Prime Minister communicates the President the opinions of the public.
all the decisions of the Cabinet and puts before the Misuse of Power by Prime Minister
Cabinet the decisions of the President, thus acting as r Shah Commission Report: It was a commission of
the medium of the communication.
inquiry appointed by the Government of India in
r It is the responsibility of the Prime Minister to 1977 to inquire into all the excesses committed in
coordinate the activities of all the department and to the Indian Emergency (1975 - 77).
secure the cooperation among the ministers.
r The commission stated that the decision to impose
Other Powers Emergency was made by Prime Minister Indira
r Prime Minister is the Leader of the Nation. The general Gandhi alone, without consulting her cabinet
elections of the country are fought in his name. colleagues, and was not justified.
r Plays a key role in determining Indian Foreign Policy r To check the misuse of power by Prime Ministers,
and relations with other countries. the Lokpal has been provided the jurisdiction to
r Power to allocate and change the department of the inquire into allegations of corruption against anyone
Ministers. who is or has been Prime Minister. But there is a
Limitations To the Power of Prime Minister problem that it cannot inquire into any corruption
r Vote of no confidence: Under the Parliamentary charge against the Prime Minister if the allegations
system of government, the Prime Minister is not are related to international relations, external and
performing to the satisfaction of the Members of internal security, and public order, unless a full
Parliament and not meeting the aspirations for Bench of the Lokpal, consisting of its chair and all
which he was put there, they could pass a vote of no members, considers the initiation of a probe, and at
least two-thirds of the members approve it.
confidence in him. Under such a situation, the Prime
Minister must resign. The fear of being pushed out of Conclusion:
power serves as a limitation to his powers. India follows the Quasi Federal democracy where
r Toeing the party line: The party, to which the the Prime Ministers are elected for the people, of the
people and by the people. The Prime Minister plays a
Prime Minister belongs, has an ideology and policies
very significant and highly crucial role in the politico-
manifesto they would like to implement. The Prime
administrative system of the country. As Dr. B.R. Ambedkar
Minister can, therefore, not act outside the policies
stated, ‘If any functionary under our constitution is to be
that the party professes.
compared with the US president, he is the Prime Minister
r Advice from the head of State: From time to time, the and not the President of the Union’.

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 19 Council of Ministers (Union)

Introduction advice.
India has been ornamented with the Parliamentary r A Minister is supposed to hold his office the way the
system of government which includes the Prime President wants.
Minister, and his Council of Ministers being vested r The Central Council of Ministers is collectively
with the responsibility of the executive of the nation responsible to the House of People, or the Lok Sabha.
to govern India’s administrative structure. The Central r The responsibility of administering oaths of office,
Council of Ministers plays a key role in helping the ruling and of secrecy of the Ministers according to the
government to function in a better way taking into procedure provided in the Third Schedule vests of
account the increasing complexities of democracy. the President.
With a country of 2nd largest population in the world, r For a Minister to be part of the Central Council
India is governed by its supreme law, the Constitution of of Ministers, has to be a member of either of the
India, 1950 which expressly lays down provisions for the Houses of Parliament for a minimum period of six
Council of Ministers under Articles 74, and Article 75 consecutive months. Absence of which will cease the
providing with the status of the Council of Ministers, and individual to be a Minister.
their appointment, tenure, responsibility, qualification, The salaries and allowances of Ministers shall
oath and salaries and allowances respectively. be such as Parliament may from time to time by law
Article 74 of the Indian Constitution determine and, until Parliament so determines, shall be
Article 74 of the Constitution of India deals with the as specified in the Second Schedule.
function of the Council of Ministers which is to aid and The 91st Amendment Act, 2003 brought in two
advise the President of the nation. The provision reads additions to Article 75 namely:
as: r The Prime Minister, and the Council of Ministers,
r The Prime Minister along with the Council of Ministers constituting the total number of Ministers shall not
will provide aid and advise to the President will act exceed 15% of the total strength of the Lower House
in accordance with such advice in order to execute of the Parliament.
his/her functions. Provided that the President r Members of a political party who have been
may require the Council of Ministers to reconsider disqualified on grounds of defection will be
such advice, either generally or otherwise, and the disqualified to be designated as a Minister,
President shall act in accordance with the advice irrespective of whichever House of the Parliament
tendered after such reconsideration. the member belongs to.
r Any confusion concerning the first point will not be a Article 77 of the Indian Constitution
subject-matter of the courts.
r The provision for the conduct of the business of the
r It is to be noted that although the Council of
Government of India has been incorporated under
Ministers can assist the President in executing his Article 77 of the Indian Constitution that provides
functions, such advice or assistance is subject to primary focus on the President of India who has the
reconsideration if asked by the President.
power to have his name on every executive action
Article 75 of the Indian Constitution taken by the Indian government.
Article 75 of the Indian Constitution concerns other r Clause 3 of Article 77, states that it is the President
provisions associated with the Council of Ministers who will be responsible for preparing governing
consisting of six clauses namely: rules for business transactions and allocating such
r While the President appoints the Prime Minister, business transactions among the Ministers as, and
the Council of Ministers is to be appointed by the however the President feels.
President in alignment with the Prime Minister’s

146
Article 78 of the Indian Constitution greater value. Ministers are appointed on two grounds:
The duties of the Prime Minister have been envisaged r They are members of either of the Houses of the
in Article 78 of the Constitution of India. The duties of the Parliament;
Prime Minister have been listed hereunder: r If they are not members of the Parliament Houses,
r It is the responsibility of the Prime Minister to keep then within a span of six months he/she must become
the President well informed about the decisions a member by means of nomination, or election.
undertaken by the Council of Ministers in association Oath and Salary of Ministers
with administrative matters with legislation proposals. It is the President who administers oaths of office,
r The Prime Minister shall furnish certain and secrecy for the Council of Ministers where the latter
administrative information concerning Union affairs swears before the former:
to the President as and when he demands. r To bear true faith and allegiance to the Constitution
r If the President so requires, to submit for the of India,
consideration of the Council of Ministers any matter r To uphold the sovereignty and integrity of India,
on which a decision has been taken by a Minister but r To faithfully and conscientiously discharge the duties
which has not been considered by the Council. of his office, and
Article 88 of the Constitution of India r To do right to all manner of people in accordance
Article 88, of the Indian Constitution talks about with the Constitution, and the law, without fear or
the rights of the Ministers with respect to the Houses of favour, affection or ill will.
Parliament. Every Minister and Attorney General of India
The Indian Parliament determines the salaries and
shall have the right to speak in, and otherwise participate
allowances of the Council of Ministers which varies from
in, the proceedings of either House, any joint sitting of
the Houses, and any committee of Parliament to which he time to time. The salary of a Minister is the same as a
may be named a member, but shall not be entitled to vote member of the Parliament which is accompanied by free
for Officers of Parliament by virtue of this article. accommodation, travel allowance, medical facilities in
Nature of advice by Ministers accordance with the rank he holds.
It is by the nature of the advice provided by the Removal
Council of Ministers that the relationship between the r Upon death.
President and the former can be determined. Article r Upon self-resignation, or resignation or death of
74 of the Indian Constitution lays down that the Prime Prime Minister.
Minister with his Council of Ministers is to aid and advise r Upon dismissal by the President for Minister's
the President to execute his functions. unconstitutional acts per Article 75(2).
Further, by the 42nd and the 44th Constitutional r Upon direction from the Judiciary for committing
Amendment Act, this advice was made binding on the violation of law.
President. The nature of advice has been excluded from r Upon ceasing eligibility to be a member of Parliament.
judicial review as well. All of these reflect on the fact that Under the provision of "Collective Responsibility"
the relationship between the President and the Council under Article 75, the Prime Minister and the entire
of Ministers is confidential by nature. The language of Council of Ministers resign if a Vote of No Confidence
Article 74 is mandatory by nature, and therefore the is passed in the Lower House (Lok Sabha) of the Indian
President has to follow the advice given by the Prime Parliament.
Minister, and the Council of Ministers, in order to function. The Council of Ministers comprises of three categories
Appointment And Composition of Ministers of Ministers namely:
Prime Minister and the Council of Ministers are r The Cabinet Ministers: Responsible for important
done by the President of India. It is only in the latter’s ministries of the government such as defence,
case that the President has to consult the Prime Minister. education, health, textile, etc, and deciding on
Therefore, in the case of the appointment of the Council policies thereby assisting the Prime Minister.
of Ministers, the Prime Minister’s recommendation holds r Ministers of State: This class of Ministers is further

147
 divided into two classes namely independent, and r The Council of Ministers is a much wider body in
attached to the Cabinet Ministers. In both the cases, comparison to the Cabinet. While the former might
the State Ministers work’ in accordance to the consist of 70 to 80 members, the latter is concise
guidance, and advice by the Cabinet Ministers. These with not beyond 20 Ministers.
Ministers are restricted from attending Cabinet r The Cabinet is a part of the Council of Ministers which
meetings unless specially invited. includes two other categories of Ministers namely
r Deputy Ministers: This rank of Ministers is attached the Ministers of State, and the Deputy Ministers.
to either the Cabinet Ministers, or the Ministers of r While the Cabinet is vested with collective functions,
State, and is responsible for assisting them with no such things exist with respect to the Council of
duties ranging from administrative to political. Ministers.
Along with these three classes of Ministers, the r While the Cabinet makes decisions, the Council of
parliamentary secretaries are considered to be another Ministers is responsible for implementing the same.
group of Ministers who are attached to the senior group The Cabinet also looks after the application of its
of Ministers and function as an assistant to them to decision by the Council.
discharge parliamentary duties. While the Council of Ministers is collectively responsible
Responsibility of Ministers towards the Lok Sabha, the Cabinet is responsible for
The responsibilities of the Council of Ministers can enforcing such responsibility on the Council.
be categorized into three categories namely:
Powers of Cabinet Ministers
r Collective Responsibility: Collective responsibility
is considered to be the underlying principle on Power to formulate the policies
the basis of which the parliamentary system as a r The Cabinet Ministers formulates both external and
whole function. Put simply, collective responsibility domestic policies and are considered as the policy-
refers to Ministers owning joint responsibility for making organ of the government.
their actions to the House of People, the Lok Sabha.
r The Cabinet takes decisions on the various matters
Another interpretation of the principle of collective
responsibility is that the Cabinet Ministers are bound such as defence, economic policy, industrial policy,
by the Cabinet’s decision irrespective of whether the formulation of new states and the President’s rule in
former accept it or not. the state.
r Individual Responsibility: Article 75 of the r The decisions made by the Cabinet are communicated
Constitution lays down both the concept of collective to the Deputy Minister and Minister of the state
responsibility and individual responsibility. While which helps the cabinet ministers in managing the
the former has been discussed previously, the latter business of the government jointly.
signifies as the Ministers holding office on the wish of r The members of the Planning Commission are
the President, they can be removed by the President appointed by the Cabinet.
whenever he feels the need. Power over the Executive
r No legal responsibility: The Ministers are not r The Cabinet Ministers have the supreme control
vested with any kind of legal responsibility which is over the Executives.
reflected in the absence of provisions ensuring the r The real functionaries in the executive authority are
same in the Indian Constitution. Followed by this, the Cabinet Ministers.
the Indian courts are also barred from reviewing r The Cabinet Ministers presides over the Ministries of
the advice given by the Council of Ministers to the the Government and carries out the policies and gets
President. approved by the Parliament.
The Council of Ministers vis a vis a Cabinet Power as the Coordinator
One often gets confused by the fact as to whether the r The Cabinet Ministers act as the coordinator of the
Council of Ministers and the Cabinet is the same thing various department of the government.
or different. The major differences between the two have
r Various Ministries of the government are coordinated
been listed below:
by the cabinet ministers.

148
Financial Powers It meets, as a body, frequently It does not meet, as a body,
r It is the responsibility of the Cabinet Ministers to and usually once in a week to to transact government
look after the expenditure of the Government. deliberate and take decisions business. It has no collective
regarding the transaction of functions.
r The Finance Minister of the Cabinet prepares the annual government business. Thus, it
budget which contains the estimated incomes for the has collective functions.
ensuing year and also has the power to introduce the It exercises, in practice, the It is vested with all powers
money bill with the consent of the President. powers of the council of but in theory.
r It is the responsibility of each cabinet ministers to ministers and thus, acts for the
latter.
see that the proposals of his ministry are approved
in the house. It enforces the collective It is collectively responsible
responsibility of the Council of to the Lower House of the
r The Cabinet and the administrative departments Ministers to the Lower House of Parliament.
take the initiative of preparing, defending and Parliament.
presenting the bill in the Parliament. It supervises the It implements the decisions
Power of Making Appointments implementation of its decisions taken by the Cabinet.
by the Council of Ministers.
r The President appoints the high-power authorities
on the recommendation of the Cabinet Ministers. Kitchen Cabinet
r Such important authorities include Ambassadors, It is an informal body made up of the Prime Minister and
High Commissioners, Attorney General of India, two to four influential colleagues in whom he has faith
Governors of the States, Supreme Court and High and with whom he can discuss any issue.
Court Judges and the members of the Union Public
Service Commission. Every Indian Prime Minister has had an 'Inner
Other Powers Cabinet'–a circle within a circle. The 'Inner Cabinet,' also
known as the 'Kitchen Cabinet,' was particularly powerful
r Cabinet Ministers provide information to the public
during Indira Gandhi's tenure.
by answering questions put to them by the members
Role And Significance
of the Lok Sabha.
r It is a much more efficient decision-making body
r The special address of the President to the Parliament
than a large cabinet because it is a smaller unit.
is prepared by the Cabinet.
r It can meet more frequently and conduct business
r The Cabinet Ministers is responsible for planning and
implementing of Amendments to the Constitution. much more quickly than the large cabinet.
Differences between Cabinet and Council of Ministers r It aids the Prime Minister in maintaining secrecy
when making important political decisions.
Cabinet Council of Ministers
r It advises the Prime Minister on key political and
The cabinet consists of many senior They consist of Cabinet
administrative issues and assists him in making
ministers who hold important Ministers, Deputy Ministers
portfolios such as defence, home and Ministers of State. critical decisions.
affairs, education etc. The Council of Ministers usually r It is made up of cabinet Ministers as well as outsiders
The size of the cabinet is about consists of about 60 to 70 such as the Prime Minister's friends and family
15-20 Ministers. ministers of the Government. members.
It was conferred the status of It is a Constitutional body. Constitutional Status
a constitutional body after the
r The Kitchen Cabinet does not have constitutional
passing of the 44thConstitutional
Amendment Act of 1978. status.
The Cabinet consists of some of It is up to the Prime Minister r It acts as an extra-constitutional body to take
the most experienced ministers. to consult with the Council decisions and improve the overall efficiency of the
Thus, the Prime Minister seeks of Ministers or not when it Council of Ministers.
their advice on important matters. comes to making important
The decisions of the Cabinet are decisions.
binding to all ministers.

149
 r It also examines economic and political issues that
Cabinet committees
require a wider perspective but have no internal or
Features external security implications.
r They are extra-constitutional in emergence. That is, r Cabinet Committee on Economic Affairs.
they are not mentioned in the Constitution. However, r It is supposed to review economic trends, problems
the Rules of Business provide for their establishment. and prospects for evolving a consistent and
r They are of two types – Standing and Ad hoc. The integrated economic policy, coordinate all activities
former is permanent while the latter is temporary. requiring policy decisions at the highest level, deal
with fixation of prices of agricultural produce and
r The ad hoc committees are constituted from time to
prices of essential commodities.
time to deal with special problems.
r It considers proposals for investment of more
r They are set up by the Prime Minister according to
than Rs 1,000 crore, deals with industrial licensing
the exigencies of the time and requirements of the
situation are disbanded after their task is completed. policies and reviews rural development and the
Hence, their number, nomenclature, and composition Public Distribution System.
vary from time to time. Appointments Committee of the Cabinet:
r The membership of cabinet committees varies from r It makes appointments to posts of the three service
three to eight and usually include only Cabinet chiefs, Director General of Military Operations, chiefs
Ministers. However, the non-cabinet Ministers are of all Air and Army Commands, Director General of
not debarred from their membership. Defence Intelligence Agency, etc.
r They not only include the Ministers in charge of
r It decides on all important empanelment’s and shifts
subjects covered by them but also include other
of officers serving on Central deputation.
senior Ministers.
r They are mostly headed by the Prime Minister.
Cabinet Committee on Security:
Sometimes other Cabinet Ministers also act as r It deals with issues relating to law and order, internal

their chairman. But, in case the Prime Minister is a security and policy matters concerning foreign affairs
with internal or external security implications and
member of a committee, he invariably presides over
also goes into economic and political issues related
it.
to national security.
r They not only sort out issues and formulate
r It considers all cases involving capital defence
proposals for the consideration of the Cabinet but expenditure more than Rs 1,000 crore and also
also take decisions. However, the Cabinet can review issues related to the Department of Defence
their decisions. Production and the Department of Defence Research
List of Cabinet Committees and Development, Services Capital Acquisition plans
At present there are 8 Cabinet Committees: and schemes for procurement of security-related
equipment.
r Cabinet Committee on Political Affairs.
Cabinet Committee on Parliamentary Affairs.
r Cabinet Committee on Economic Affairs.
r It draws the schedule for Parliament sessions and
r Appointments Committee of the Cabinet.
monitors the progress of government business in
r Cabinet Committee on Security. Parliament.
r Cabinet Committee on Parliamentary Affairs. r It scrutinises non-government business and
r Cabinet Committee on Accommodation. decides which official Bills and resolutions are to be
r Cabinet Committee on Investment and Growth. presented.
r Cabinet Committee on Employment and Skill Cabinet Committee on Accommodation:
Development. r It determines the guidelines or rules with regard to
the allotment of government accommodation.
Cabinet Committees - Functions
r It also takes a call on the allotment of government
Cabinet Committee on Political Affairs: accommodation to non-eligible persons and
r It addresses problems related to Centre-state organizations as also the rent to be charged from
relations. them.

150
r It can consider the allotment of accommodation The Cabinet Committees except for Cabinet
from the General Pool to Members of Parliament. Committee on Accommodation and Cabinet Committee
r It can consider proposals for shifting existing Central on Parliamentary Affairs is headed by Prime Minister.
Government Offices to locations outside the capital. Currently, the Cabinet Committee on Accommodation
Cabinet Committee on Investment and Growth: is headed by the Home Minister and the Cabinet
r It will identify key projects required to be Committee on Parliamentary Affairs is the Defence
implemented on a time-bound basis, involving Minister.
investments of Rs 1,000 crore or more, or any other Of all the Cabinet Committees, the most powerful
critical projects, as may be specified by it, with regard
is the Political Affairs Committee, often described as a
to infrastructure and manufacturing.
Super-Cabinet.
r It will prescribe time limits for giving requisite
approvals and clearances by the ministries Criticism
concerned in identified sectors and will also monitor r Sometimes, they are established on very trivial
the progress of such projects. issues.
Cabinet Committee on Employment and Skill r Non-cabinet ministers are rarely appointed
Development: and memberships depend more on political
r It is supposed to provide direction to all policies, considerations.
programs, schemes and initiatives for skill Conclusion
development aimed at increasing the employability
The relevance of the Central Council of Ministers
of the workforce for effectively meeting the emerging
requirements of the rapidly growing economy and cannot be ground on the grounds that it is only with
mapping the benefits of demographic dividend. the help of this set of Ministers that the actual head of
r It is required to enhance workforce participation,
the democratic nation, the Prime Minister can function,
foster employment growth and identification, and fulfil his roles, and duties for the country and its
and work towards the removal of gaps between people effectively. This article, therefore, aimed towards
requirements and availability of skills in various throwing light towards this set of Ministers whose
sectors. contribution often goes neglected under the greater
r It will set targets for expeditious implementation of designation of the Prime Minister.
all skill development initiatives by the ministries and
periodically review the progress in this regard.

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 20 Parliament

Introduction Permanent House and Representation of States

Article 79 to 122 in part V deals with the organisation, r The Rajya Sabha is not subject to dissolution.
composition, duration, officers, procedures, privileges Members of Rajya Sabha are elected in such a manner
and powers of Union Parliament at the centre level. It is that they do not complete their tenure altogether;
the highest law-making body in the country. It is said to rather after every two years, one-third member
be a place where elected representatives from different complete their term and elections are held for those
regions sit together and make laws for the country with one-third seats only. Rajya Sabha never gets fully
proper debates and discussions. dissolved and hence, it is known as the permanent
Composition of Parliament House of the Parliament.
r In the U.S.A, every state has equal representation
Union Parliament is made up of:
in the Senate irrespective of size and population of
r Council of States which is also known as Rajya Sabha.
the states, but in India, it is not the same. In India,
r House of the People which is also called Lok Sabha. states with larger size of population get more
r The President of the country. representatives than states with smaller population.
For example, Uttar Pradesh (the most populated
Rajya Sabha
state) sends 31 members to Rajya Sabha; on the
Strength of the House other hand, Sikkim (the least populated state) sends
r The Constitution provides that the Rajya Sabha only one member to Rajya Sabha.
shall consist of 250 members, of which 12 members r The number of members to be elected from each
shall be nominated by the President from amongst State has been fixed by the fourth schedule of the
persons having special knowledge or practical Constitution.
experience in respect of such matters as literature, Representation of Union Territories
science, art and social service; and not more than r Representative of each Union territory in the Rajya
238 representatives of the States and of the Union Sabha are indirectly elected by the members of
Territories. the electoral college specially constituted for this
r Rajya Sabha, at present, has 245 seats. Of these, purpose. This election is also held in accordance
233 members represent the States and the Union with the system of proportional representation by
Territories, and 12 members are nominated by the means of single transferable vote.
President. r Out of the eight union territories, only three
How members are elected and their tenure (Delhi, Puducherry and Jammu & Kashmir) have
r Elections to the Rajya Sabha are indirect; members representation in Rajya Sabha. The population of
representing States are elected by elected members other five Union territories are too small to have any
of legislative assemblies of the States in accordance representation in the Rajya Sabha.
with the system of proportional representation by Representation of Nominated Members
means of the single transferable vote, and those r President nominates 12 members to the Rajya Sabha
representing Union Territories are chosen in such from people who have special knowledge in the field
manner as Parliament may by law prescribe. of Arts, Literature, Science and Social Service.
r Apart from the elected members, the President
appoints 12 members from the fields of literature, Lok Sabha
science, art, and social service.
Strength of the House
r Members of the Rajya Sabha are elected for a term of
r The maximum strength of the House envisaged by the
six years and then they can be re-elected.
Constitution is now 552 of which, 530 members to

152
 represent States, 20 to represent Union Territories, representation in:
and not more than two members of the Anglo-Indian (a) between the different states, and
community to be nominated by the President, if, (b) between the different constituencies in the same
in his opinion, that community is not adequately state.
represented in the House. “Population” is ascertained at the preceding census
r The total elective membership of the Lok Sabha is of which the relevant figures have been published.
distributed among States in such a way that the ratio r The ratio between no. of seats in Lok Sabha and the
between the number of seats allotted to each State population of each state, is the same for all states (it
and population of the State is, as far as practicable, does not apply to a state having a population of less
the same for all States. than 6mn).
r The Lok Sabha at present consists of 545 members. r Each state is divided into territorial constituencies
Of these, 530 members are directly elected from the in a manner that the ratio between the population of
States and 13 from Union Territories, while two are each constituency and the no. of seats allotted to it is
nominated by the President to represent the Anglo- the same throughout the state.
Indian community.
Readjustment after each Census
r After coming into effect of the Constitution (One
r After every census, a readjustment is to be made in (a)
Hundred and Fourth Amendment) Act, 2019, the
provision of special representation of the Anglo- division of each state into territorial constituencies, and
Indian community in the House of the People by (b) allocation of seats in the Lok Sabha to the states.
nomination has not been extended further. r The Delimitation Commission Acts were enacted by

r Following the Constitution 84th Amendment Act, the

the Parliament, in 1952, 1962, 1972 and 2002 for
total number of existing seats as allocated to various this purpose.
States in the Lok Sabha on the basis of the 1971 r The 42nd Amendment Act of 1976 froze the allocation
census, shall remain unaltered till the first census to of seats in the Lok Sabha to the states and the division
be taken after the year 2026. of each state into territorial constituencies till the
year 2000 at the 1971 level.
Election of members and tenure
r The voting age was reduced from 21 to 18 years by
r The Lok Sabha is composed of representatives of
the 61st Constitutional Amendment Act, 1988.
people chosen by the people from the territorial
constituencies through direct election on the basis Delimitation
of adult suffrage. The members of Lok Sabha and the r Under Article 82 of the Constitution, the Parliament
State Legislative Assemblies are directly elected by by law enacts a Delimitation Act after every census.
the people for the period of five years.
r The ban on readjustment was extended for
r However, before the completion of tenure, if the Lok
another 25 years (i.e., up to year 2026) by the 84th
Sabha is dissolved (no party forms government with
Amendment Act of 2001, with the same objective of
majority), a fresh election will be conducted again.
encouraging population limiting measures. It also
Dissolution of House empowered the govt to undertake readjustment and
r The term of the Lok Sabha, unless dissolved rationalisation of territorial constituencies in the
earlier, is five years from the date appointed for states on the basis of the population figures of 1991
its first meeting. However, while a proclamation census.
of emergency is in operation, this period may be r Later, the 87th Amendment Act of 2003 provided
extended by Parliament by law for a period not for the delimitation of constituencies on the basis
exceeding one year at a time, and not extending in of 2001 census and not 1991 census. However, this
any case, beyond a period of six months after the can be done without altering the number of seats
proclamation has ceased to operate. Seventeen Lok allotted to each state in the Lok Sabha.
Sabha’s have been constituted so far. r Delimitation of boundaries has been done 4 times
till now i.e. in 1952, 1963, 1973 and 2002
System of elections to Lok Sabha
Reservation of Seats for SCs and STs
Territorial constituency r The reservation for SCs & STs in the Lok Sabha, is on
r The Constitution ensures uniformity of the basis of population ratios.

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r Originally, this reservation was to operate for 10 r If he/she is an undischarged insolvent;
years (ie, up to 1960), but it has been extended r If he/she is not a citizen of India anymore;
continuously since then by 10 years each time. r If he/she is disqualified by virtue of any law passed
r Under the 95th Amendment Act of 2009, this by the Parliament of India.
reservation is to last until 2020. Disqualifications under the Representation of Peoples
r SCs & STs, are elected by all the voters in a Act
constituency, without any separate electorate. A
r A member of Parliament can also be disqualified
member of SC & ST is not debarred from contesting a
under the Representation of Peoples Act, 1956. This
general seat.
act was passed by the Parliament under Article 327
r The 84th Amendment Act of 2001 provided for
of the Indian Constitution, which provides for the
refixing of the reserved seats on the basis of the procedure and the conduct to be followed during the
population figures of 1991 census. election to Parliament and state legislatures.
r Later, the 87th Amendment Act of 2003 provided
Following are the grounds:
for the refixing of the reserved seats on the basis of
2001 census and not 1991 census. r If he/she is convicted for indulging in corrupt
practices during the election or any other election-
Qualification for Membership of Parliament
related offenses.
Article 84, prescribes qualification to be chosen as a r If he/she is convicted under certain acts of Indian
member of Parliament, Penal Code, Unlawful Activities Prevention Act,
r a person must be a citizen of India Prevention of Terrorism Act 2002, etc.
r not less than 30 years of age in the case of Rajya r If he/she is convicted under any law that results for
Sabha at least two years of imprisonment and will remain
r not less than 25 years of age in the case of Lok Sabha. disqualified for a further 6 years after his release.
r he/she need to comply with other such qualifications r He must not be a director or managing agent nor
as prescribed in any law by the Indian Parliament. hold an office of profit in a corporation in which the
The Parliament has laid down the following government has at least 25 per cent share.
additional qualifications in the Representation of People r If he/she is convicted under any law relating to drugs
Act (1951). or dowry prevention.
1. He must be registered as an elector for a r Dismissal from the government due to disloyalty or
parliamentary constituency. This is same in the involvement in corrupt practices.
case of both, the Rajya Sabha and the Lok Sabha. In r If he/she fails to lodge their election expenses.
2003, the requirement that a candidate running for On the question whether a member is subject to any
the Rajya Sabha from a specific state must also be of the above disqualifications, the President’s decision
an elector in that state was dropped. In 2006, the is final. However, he should obtain the opinion of the
Supreme Court upheld the constitutional validity of election commission and act accordingly.
this change.
Disqualification on Ground of Defection
2. If he wishes to contest for a seat designated for
someone from a Scheduled Caste or Scheduled Tribe The Constitution also lays down that a person shall be
in any State or Union Territory, he must belong to disqualified from being a member of Parliament if he
one of those groups. A member of a Scheduled Caste is so disqualified on the ground of defection under the
or Scheduled Tribe, however, may also contest for a provisions of the Tenth Schedule. A member incurs
seat that is not assigned to them. disqualification under the defection law:
Disqualification • if he voluntary gives up the membership of the
political party on whose ticket he is elected to the
Article 102, lays the grounds on which a legislator
House;
can be disqualified as a member of the Parliament.
• if he votes or abstains from voting in the House
Those grounds are:
contrary to any direction given by his political party;
r If he/she holds any office of profit under the
• if any independently elected member joins any
Government of India or any of the states;
political party; and
r If he/she is declared of unsound mind by a Court;

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• if any nominated member joins any political party 4. Absence
after the expiry of six months. • A House can declare the seat of a member vacant if
The question of disqualification under the Tenth he is absent from all its meetings for a period of sixty
Schedule is decided by the Chairman in the case of Rajya days without its permission.
Sabha and Speaker in the case of Lok Sabha (and not by • In calculating the period of sixty days, no account
the president of India). In 1992, the Supreme Court ruled shall be taken of any period during which the House
that the decision of the Chairman/ Speaker in this regard is prorogued or adjourned for more than four
is subject to judicial review. consecutive days.
Vacating of the Seats 5. Other cases
Article 101 deals with a member of Parliament vacating • A member has to vacate his seat in the Parliament:
his seat, in the following cases:  if his election is declared void by the court;
1. Double Membership  if he is expelled by the House;
• A person cannot be a member of both Houses of  if he is elected to the office of President or Vice-
Parliament at the same time. Thus, the Representation President; and
of People Act (1951) provides for the following:  if he is appointed to the office of governor of a
a. If a person is elected to both the Houses of state.
• If a disqualified person is elected to the Parliament,
Parliament, he must intimate within 10 days
the Constitution lays down no procedure to declare
in which House he desires to serve. In default the election void.
of such intimation, his seat in the Rajya Sabha • This matter is dealt by the Representation of the
becomes vacant. People Act (1951), which enables the high court to
b. If a sitting member of one House is also elected declare an election void if a disqualified candidate
to the other House, his seat in the first House is elected. The aggrieved party can appeal to the
becomes vacant. Supreme Court against the order of the high court in
c. If a person is elected to two seats in a House, he this regard.
should exercise his option for one. Otherwise,
both seats become vacant. Presiding officers of the Parliament
• Similarly, a person cannot be a member of both the Each House of Parliament has its own presiding officer.
Parliament and the state legislature at the same There is a Speaker and a Deputy Speaker for the Lok
time. If a person is so elected, his seat in Parliament Sabha and a Chairman and a Deputy Chairman for the
becomes vacant if he does not resign his seat in the Rajya Sabha.
state legislature within 14 days.
2. Disqualification Speaker
• If a member of Parliament becomes subject to any Historical Background
of the disqualifications specified in the Constitution, r The institutions of Speaker originated in India in
his seat becomes vacant. 1921 under the provisions of the Government of India
• Here, the list of disqualifications also includes Act of 1919 (Montague-Chelmsford Reforms) and at
the disqualification on the grounds of defection that time, the Speaker was called the President.
under the provisions of the Tenth Schedule of the r The Government of India Act of 1935 changed
Constitution. the nomenclatures of the President of the Central
3. Resignation Legislative Assembly to the Speaker. However, the
• A member may resign his seat by writing to the old nomenclature continued till 1947 as the federal
Chairman of Rajya Sabha or Speaker of Lok Sabha, as part of the 1935 Act was not implemented.
the case may be. r G.V. Mavalankar had the distinction of being the first
• The seat falls vacant when the resignation is Speaker.
accepted. However, the Chairman/ Speaker may not Election and Tenure
accept the resignation if he is satisfied that it is not r Article 93 of the Indian Constitution provides for the
voluntary or genuine. election of both the Speaker and the Deputy Speaker.

155
r The Speaker is elected by the Lok Sabha from r He/she adjourns the House or suspends the meeting
amongst its members and whenever the office falls in absence of a quorum. The quorum to constitute
vacant, the Lok Sabha elects another member to fill a meeting of the House is one-tenth of the total
the vacancy.
strength of the House.
r The date of election of the Speaker is fixed by the
President. r He/she does not vote in the first instance but can
r Usually, the Speaker remains in office during the life exercise a casting vote in the case of a tie.
of the Lok Sabha. However, he has to vacate his office r He/she presides over a joint sitting of the two Houses
earlier in any of the following three cases: of Parliament and can allow a secret sitting of the
m If he ceases to be a member of the Lok Sabha. House at the request of the Leader of the House.
r He/she decides whether a bill is a money bill or
m If he resigns by writing to the Deputy Speaker.
not and his decision on this question is final. When
m If he is removed by a resolution passed by a a money bill is transmitted to the Rajya Sabha for
majority of all the members of the Lok Sabha. recommendation and presented to the President for
r Such a resolution can be moved only after giving 14 assent, the Speaker endorses on the bill his certificate
days’ advance notice and when such a resolution for that it is a money bill.
the removal of the Speaker is under consideration r He/she decides the questions of disqualification of
of the House, he cannot preside at the sitting of the a member of the Lok Sabha, arising on the ground of
House, though he may be present. defection under the provisions of the Tenth Schedule.
r However, he can speak and take part in the r He/she acts as the ex-officio chairman of the Indian
proceedings of the House at such a time and vote Parliamentary Group which is a link between the
in the first instance, though not in the case of an Parliament of India and the various Parliaments of
equality of votes. the world.
r Whenever the Lok Sabha is dissolved, the Speaker r He/she appoints the chairman of all the Parliamentary
does not vacate his office and continues till the committees of the Lok Sabha and supervises their
newly-elected Lok Sabha meets. functioning and also is the chairman of the Business
Role of Speaker Advisory Committee, the Rules Committee, and the
r The Speaker is the head of the Lok Sabha, and its General-Purpose Committee.
representative and is the guardian of powers and Independence and Impartiality
privileges of the members, the House as a whole, and r He/she is provided with security of tenure and can
its committees. be removed only by a resolution passed by the Lok
r He/she is the principal spokesman of the House, and Sabha by a special majority.
his/her decision in all Parliamentary matters is final. r The salaries and allowances of the Speaker are fixed
r The Speaker of the Lok Sabha derives the powers and by Parliament and are charged on the Consolidated
duties from three sources, that is, the Constitution of Fund of India and thus are not subject to the annual
India, the Rules of Procedure and Conduct of Business vote of Parliament.
of Lok Sabha, and Parliamentary Conventions r The Speaker's work and conduct cannot be
(residuary powers that are unwritten or unspecified discussed and criticized in the Lok Sabha except on a
in the Rules).
substantive motion.
Power and Duties
r The Speaker’s powers of regulating procedure or
r He/she maintains order and decorum in the House
conducting business or maintaining order in the
for conducting its business and regulating its
proceedings, which is the primary responsibility and House are not subject to the jurisdiction of any
has final power in this regard. Court.
r He/she is the final interpreter of the provisions of r Casting Vote makes the position of Speaker impartial.
the Constitution of India, the Rules of Procedure r He/she is given a very high position in the order of
and Conduct of Business of Lok Sabha, and the precedence (placed at seventh rank, along with the
Parliamentary precedents, within the House. Chief Justice of India).

156
Recent Controversies r However, if he is a member of a Parliamentary
r Recently, the Supreme Court has ruled that the committee then he automatically becomes the
wisdom of the legislature in entrusting Speakers chairman of the committee.
(of the state assembly or Parliament) with the Election:
responsibility of ruling on the disqualification of r Usually, the Deputy Speaker is elected in the first
lawmakers who defect (shift parties) needs to be meeting of the Lok Sabha after the General elections
revisited. A panel has been constituted by the Lok from amongst the members of the Lok Sabha.
Sabha Speaker on the issue. r It is by convention that position of Deputy Speaker is
Pro tem Speaker offered to opposition party in India.
r The Speaker of the legislative assembly vacates the Tenure and removal:
office immediately before the first meeting of the r They hold office until either they cease to be a
newly elected house. Hence, President appoints the member of the Lok Sabha or they resign.
pro-tem Speaker to preside over the sittings of the
r They can be removed from office by a resolution
house.
passed in the Lok Sabha by an effective majority of
r Usually, the senior most member is elected as the
its members.
pro-tem Speaker
r He resigns by writing to the Speaker.
r The President will administer the oath of the office
for the pro-tem Speaker Panel of Chairpersons of Lok Sabha
r There is a constitution-mandated panel of 10
r The main duty of the pro-tem Speaker is to administer
the oath to the newly elected members. Pro-tem also members to preside over the proceedings of the Lok
enables the house to elect the new Speaker. Sabha in the absence of Speaker.
r Under the Rules of Lok Sabha, the Speaker nominates
r When the house elects the new Speaker the office of
the pro-tem Speaker ceases to exist. from amongst the members a panel of not more than
ten chairpersons.
r Hence the office of the pro-tem Speaker is a
r Any of them can preside over the House in the
temporary one which will be in existence for few
days. absence of the Speaker or the Deputy Speaker
and has the same powers as the Speaker when so
Deputy Speaker presiding. He/she holds office until a new panel of
chairpersons is nominated.
r Article 93 of the Constitution provides for the
r When a member of the panel of chairpersons is also
election of both the Speaker and the Deputy Speaker.
not present, any other person as determined by the
r The constitutional office of the Deputy Speaker of
House acts as the Speaker.
the Lok Sabha is more symbolic of Parliamentary
r But a member of the panel of chairpersons cannot
democracy than some real authority.
preside over the House, when the office of the
r There is no need to resign from their original party
Speaker or the Deputy Speaker is vacant.
though as a Deputy Speaker, they have to remain
r During such time, the Speaker’s duties are to be
impartial.
performed by such members of the House as the
r Both the Speaker and the deputy Speaker don’t take
President may appoint for the purpose.
any oath for office.
r Ananthasayanam Ayyangar was the first Deputy Chairman of Rajya Sabha
Speaker of the Lok Sabha.
Article 89 of the Constitution of India provides
Roles and functions: provision for the Chairman and the Deputy Chairman of
r They act as the presiding officer in case of leave of the Rajya Sabha. It states that the Vice- President of India
absence caused by death or illness of the Speaker of shall be ex officio Chairman of the Council of States.
the Lok Sabha. Power & function
r When he is the presiding officer of the house in
r The Chairman of the Rajya Sabha is empowered to
absence of Speaker, he has same powers as the
adjourn the House or to suspend its sitting in the
Speaker. He isn’t subordinate to the Speaker but
event of the absence of quorum.
directly responsible to the house.

157
r The Tenth Schedule of the Constitution empowers Who can be a deputy chairman?
the Chairman to determines the question as to r The Deputy Chairman is elected by the Rajya Sabha
disqualification of a member of the Rajya Sabha on itself from amongst its members.
the ground of defection;
r Whenever the office of the Deputy Chairman falls
r He does not take part in the deliberations of the vacant, the Rajya Sabha elects another member to fill
House except in the discharge of his duties as the the vacancy.
Presiding Officer.
r The Deputy Chairman vacates his office in any of the
r The Chairman may likewise, in the event that he following three cases:
thinks fit, call a sitting of the House before the date
m if he ceases to be a member of the Rajya Sabha;
or hour to which it has been suspended, or whenever
m if he resigns by writing to the Chairman;
after the House has been adjourned sine die, however
m if he is removed by a resolution passed by a
not prorogued by the President.
majority of all the members of the Rajya Sabha.
r The Chairman's consent is needed to raise a question
Such a resolution can be moved only after giving
of breach of privilege in the House.
14 days’ advance notice.
r Parliamentary Committees, regardless of whether
set up by the Chairman or by the House, work under Functions:
the direction of the Chairman. r The Deputy Chairman performs the duties of the
r He nominates members to different Standing Chairman’s office when it is vacant or when the
Committees and the Department-related Vice-President acts as President or discharges the
Parliamentary Committees. He is the Chairman of the functions of the President.
Business Advisory Committee, the Rules Committee r He also acts as the Chairman when the latter is absent
and the General Purposes Committee. from the sitting of the House. In both the cases, he
r It is the duty of the Chairman to interpret the has all the powers of the Chairman.
Constitution and rules so far as matters in or relating r The Deputy Chairman also plays a critical role in
to the House are concerned, and no one can enter ensuring the smooth running of the House.
into any argument or controversy with the Chairman Powers:
over such interpretation. r The Deputy Chairman is not subordinate to the
r The maintenance of order in the House is the primary Chairman. He is directly responsible to the Rajya
responsibility of the Chairman and, in accordance Sabha.
with the rules, he has been given all the necessary r The Deputy Chairman is entitled to a regular salary
disciplinary powers for this purpose. and allowance which are fixed by Parliament and are
r When a Bill is passed by the Houses and is in control charged on the Consolidated Fund of India.
of the Rajya Sabha, the Chairman confirms the Bill Election Procedure:
with his signature prior to introducing it to the r For electing the Deputy Chair any Rajya Sabha MP can
President for consent. submit a motion proposing the name of a colleague
r Under the Press Council Act, 1978, the Chairman is for this constitutional position. The motion has to be
one of the individuals from the Committee which seconded by another MP.
chooses the Chairman of the Press Council. r Additionally, the member moving the motion has to
r The Chairman may also, if there is a general submit a declaration signed by the MP whose name
consensus in the House, make an inquiry into a s/he is proposing stating that the MP is willing to
matter which was raised on the floor of the House or serve as the Deputy Chairperson if elected. Each MP
appoint a Committee of the House in respect thereof. is allowed to move or second only one motion.
Deputy Chairman r Then the majority of the House decides who gets

r It is a constitutional position created under Article elected as the Deputy Chairperson.

r However, if the political parties arrive at a consensus
89 of the Constitution, which specifies that Rajya
candidate, then that MP will be unanimously elected
Sabha shall choose one of its Member of Parliament’s
as the Deputy Chair.
to be the Deputy Chairman as often as the position
Panel of Vice-Chairmen:
becomes vacant.
r The Chairman shall, from time to time, nominate

158
 from amongst the members of the Council a panel bipartisanship and neutrality to the appointments
of not more than six Vice-Chairmen, any one of in institutions of accountability and transparency –
whom may preside over the Council in the absence CVC, CBI, CIC, Lokpal etc.
of the Chairman and the Deputy Chairman when so Reforms that are needed
requested by the Chairman, or in his absence, by the r There arises a problem when no party in opposition
Deputy Chairman. secures 55 or more seats. In such situations, the
r A Vice-Chairman nominated under sub-rule (1) shall numerically largest party in the opposition should
hold office until a new panel of Vice-Chairmen is have the right to have a leader recognised as leader
nominated. of the opposition by the speaker.
Leaders in Parliament r Besides, the 10% formulation is inconsistent with
the law ‘Salaries and Allowances of Leaders of
Leader of the House Opposition in Parliament Act, 1977’ which only says
The term "Leader of the House" is defined in the Lok that the largest opposition party should get the post.
Sabha and Rajya Sabha Rules of Procedure. The Leader Whip
of the House is usually a Minister nominated by the r The concept of the whip was inherited from colonial
Government to oversee the administration of government British rule. It is used in parliamentary parlance
business in the Legislative Assembly. The Leader of the often for floor management by political parties in the
House in the Rajya Sabha is the majority party’s leader legislature.
and parliamentary chairperson and is usually a cabinet r A whip is a written order that political party issue to
minister or another nominated minister. its members for being present for an important vote,
r The Leader of the House is in charge of scheduling or that they vote only in a particular way.
government meetings and conducting business in r They are crucial in maintaining the links between
the House. the internal organisation of the party inside the
r The Rajya Sabha Rules do not allow for this office, Parliament. A whip is also an important office-bearer
which is not enshrined in the constitution. of the party in the Parliament.
r Leader of the House in Lok Sabha is the Prime Minister r In India, all parties can issue a whip to their members.
by default if she/he is a member of the Lok Sabha. Parties appoint a senior member from among their
r The Leader of the House also acts as the majority House contingents to issue whips. This member
party’s parliamentary chairperson. is called a Chief Whip, and he/she is assisted by
r If the Prime Minister is not a member of Parliament’s additional Whips.
Lower House, she or he might appoint another Constitutional status: The office of ‘whip’, is
minister to serve as Leader of the House. mentioned neither in the Constitution of India nor in
Leaders of Opposition the Rules of the House nor in a Parliamentary Statute.
r The Leaders of Opposition is leader of the largest It is based on the conventions of the parliamentary
party that has not less than one-tenth of the total government.
strength of the house. Non-applicability of Whip: There are some cases
r It is a statutory post defined in the Salaries and such as Presidential elections where whips cannot direct
Allowances of Leaders of Opposition in Parliament a Member of Parliament (MP) or Member of Legislative
Act, 1977. Assembly (MLA) on whom to vote.
Significance of the office:
Types of Whips
r Leaders of Opposition is referred to as the ‘shadow
Prime Minister’. r The One-line whip to inform the members about
r She/he is expected to be ready to take over if the a vote. It allows a member to abstain in case they
government falls. decide not to follow the party line.
r The Leaders of Opposition also plays an important r The Two-line whip is issued to direct the members
role in bringing cohesiveness and effectiveness to to be present in the House at the time of voting.
the opposition’s functioning in policy and legislative No special instructions are given on the pattern of
work. voting.
r Leaders of Opposition plays a crucial role in bringing r The Three-line whip is issued to members directing

159
 them to vote as per the party line. It is the strictest of r Monsoon Session
all the whip. m The monsoon session is held in July to September
Functions of Whip every year.
r The whip plays a crucial role in ensuring the smooth m This is after a break of two months after the
and efficient conduct of business on the floor of the budget session.
House. m In this session, matters of public interest are
r He is charged with the responsibility of ensuring the discussed.
attendance of his party members in large numbers r Winter Session
and securing their support in favour of or against a m The winter session of Parliament is held in mid-
particular issue. November to mid-December every year.
r He ensures discipline among party members in the m It is the shortest session of all.
House. m It takes up the matters that could not be
r He identifies the signs of discontent among MPs and considered upon earlier and makes up for
informs the respective leaders of their party. the absence of legislative business during the
r He or she acts as a binding force in the party and second session of the Parliament.
responsible for maintaining the internal party How is a Parliament Session convened?
organisation in the Parliament. r The Constitution provides that the President shall
Violation of whip: If an MP violates his party’s from time to time summon each House of Parliament
whip, he faces expulsion from the House under the Anti to meet at such time and place as he thinks fit. There
Defection Act. The only exception is when more than a should not be a gap of more than six months between
third of legislators vote against a directive, effectively two Sessions of the Parliament.
splitting the party. r The fixation of dates of summoning and prorogation
Sessions of the Parliament of the two Houses of Parliament is one of the
functions assigned to the ministry of parliamentary
r A Session is the period of time between the meeting affairs under the Government of India (Allocation of
of a Parliament and its prorogation. During the Business) Rules made by the President.
course of a Session, either House may adjourn to r After assessing the time likely to be required
such date as it pleases. for transaction of government business and for
r In general, the sessions are as follows: discussion on topics of public interest as may
m Budget session (February to May) be demanded from time to time by members of
m Monsoon session (July to September) Parliament, the ministry of parliamentary affairs
m Winter session (November to December) places a note before the Cabinet Committee on
r Budget Session Parliamentary Affairs for making a recommendation
as to the date of the commencement of a Session of
m The budget session was usually held from
Parliament and its likely duration.
February to May every year.
r The recommendation, if approved by the Prime
m It is considered to be a highly crucial session of
Minister, is submitted by the ministry to the President
the Parliament.
for approval of the commencement of a Session.
m The Budget is usually presented on the last
r The President summons the House exercising the
working day of the month of February.
powers conferred upon him by clause (1) of Article
m Here, the members discuss the various
85 of the Constitution. It states that: “The President
provisions of the budget and matters concerning shall from time to time summon each House of
taxation, after the finance minister presents the Parliament to meet at such time and place as he
budget. thinks fit, but six months shall not intervene between
m The budget session is generally split into two its last sitting in one session and the date appointed
periods with a gap of one month between them. for its first sitting in the next session.”
r Following this, the Secretary-General issues a
m This session every year starts with the
President’s Address to both Houses. summons to each member of the House.

160
 Terminologies Used in Parliamentary Sessions m Automatic dissolution: On the expiry of its
tenure of five years or the terms as extended
Summoning of Parliament: during a national emergency.
r Summoning is the process of calling all members m Order of President: If President is authorized
of the Parliament to meet. The President summons by Council of Ministers, he can dissolve Lok
each House of the Parliament from time to time. The Sabha, even before the end of the term. He may
gap between two sessions of the Parliament cannot also dissolve Lok Sabha if Council of Ministers
exceed 6 months, which means the Parliament meets loses confidence and no party is able to form the
at least two times in one year. government. Once the Lok Sabha is dissolved
Adjournment: before the completion of its normal tenure, the
dissolution is irrevocable.
r Adjournment terminates the sitting of the House
which meets again at the time appointed for the next Note: When the Lok Sabha is dissolved, all business
sitting. The postponement may be for a specified including bills, motions, resolutions, notices, petitions
time such as hours, days or weeks. and so on pending before it or its committee’s lapse.
r If the meeting is terminated without any definite
The position with respect to lapsing of the Bill are
time/date fixed for the next meeting, it is called as follows:
Adjournment sine die. When does a Bill lapse?
r The power of adjournment as well as adjournment r A Bill that originates in the Lok Sabha and remains
sine die lies with the presiding officer (speaker or pending in the Lower House itself is considered
Chairman) of the House. lapsed with the dissolution of the House.
Prorogation: r A Bill that originates and is passed by the Rajya

r Prorogation is the end of session and not the

Sabha, but is pending in the Lok Sabha also lapses
dissolution of the house (in case of Lok Sabha, as with the dissolution of the Lower House.
Rajya Sabha does not dissolve). It is done by the r Bills that originate and are passed in the Lok
President of India. Sabha but are pending in the Rajya Sabha are also
considered lapsed.
Recess:
r Bill that originates and is passed in the Rajya Sabha
r The period between the prorogation of Parliament
but is returned with amendments to the Upper
and its reassembly in a new Session is termed as a
House by the Lok Sabha and then does not get the
recess.
Quorum: clearance of the Rajya Sabha is considered to have
r Quorum refers to the minimum number of the
lapsed on the date of dissolution of the Lower House.
members required to be present for conducting a When does a Bill not lapse?
meeting of the house. There are instances when certain Bills, despite the
r The Constitution has fixed one-tenth strength as dissolution of the Lower House, are not considered to
quorum for both Lok Sabha and Rajya Sabha. have lapsed.
r Thus, to conduct a sitting of Lok Sabha, there should
r A Bill that is pending in the Rajya Sabha but is not
be at least 55 members present while to conduct a
sitting of Rajya Sabha, there should be at least 25 passed by the Lok Sabha.
members present. r Bills that have cleared both the Houses but are
Dissolution pending assent from the President.
r A dissolution ends the very life of the existing r If the president has notified the holding of a joint
House, and a new House is constituted after general sitting before the dissolution of Lok Sabha.
elections are held. r A bill passed by both Houses but returned by the
r Rajya Sabha, being a permanent House, is not subject to president for reconsideration of Rajya Sabha.
dissolution. Only the Lok Sabha is subject to dissolution. r Pending bills and all pending assurances that are
r The dissolution of the Lok Sabha may take place in to be examined by the Committee on Government
either of two ways: Assurances.

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Joint Session of Parliament (Article 108): r For Instance, Ministers who are elected to the Lok
r The Constitution of India provides for the joint Sabha participate in the discussion in Rajya Sabha and
sitting of the Parliament’s two Houses, the Lok Sabha certain Parliamentary committees. However, they are
and the Rajya Sabha, in order to break any deadlock not entitled to vote where they are not authorized to.
between the two. Lame-Duck Session
r The joint sitting is called by the President. Such a In Parliament a lame duck session is conducted after
session is presided over by the Speaker, and in his/ election of new members but before they are installed.
her absence, by the Deputy Speaker of the Lok Sabha. This refers to a session in which the members participate
r In the absence of both, it is presided over by the for last time because of failure to re-election. Members
Deputy Chairman of the Rajya Sabha. of existing Lok Sabha who could not get re-elected to
r If any of the above are not present, any other member the new Lok Sabha are called Lame Ducks. The word is
of the Parliament can preside by consensus of both widely used in USA.
the Houses. Devices of Parliamentary Proceedings
Voting in the House Parliament is divided into two major bodies, they are
All decisions in Parliament are taken by voting by Rajya Sabha and Lok Sabha. Apart from these two houses
MPs, whether it relates to extending working hours or we also have President as the head assisted by the Prime
passing a Bill. Minister and his council of ministers. The functioning of
r Voice voting is the preferred method of decision the Rajya Sabha is divided into majorly pre-lunch and
making by Indian Parliament. MPs in favour of post-lunch sessions which again have two parts each.
a decision call out “Ayes” and those opposed say The pre-lunch session includes the Zero Hour and the
“Noes”. question hour while the post-lunch session includes the
r The Speaker then takes a call on which voices were Debates and the Legislative business meetings which
louder and conveys the decision of the House. includes all kinds of discussions relating to the national
r The rules of procedure of Lok Sabha do not mandate
and the state needs.
recording of votes of MPs for every decision taken. The Zero Hour
Voice voting does not reveal the individual positions r Zero hour is the hour in which the most important and
taken by MPs. urgent matters are raised and addressed. The MPs have
Language in Parliament (Article 120) to give notice before 10 am to the chairman on the day
r Constitution of India has declared that business in of the sitting about such a question that needs to be
Parliament shall be transacted in Hindi or in English. raised. The notice that is given by the MP should also
r Presiding officers may permit any member who state the subject and the urgency to be raised in the
cannot adequately express himself in Hindi or in zero hours. After this, the Chairman decides whether to
English to address the House in his mother-tongue. allow the matter to be raised or not.
Rights of Ministers and Attorney General r Zero Hour is an Indian parliamentary innovation.
Article 88 states that: Every Minister and the The phrase does not find mention in the rules
Attorney-General of India shall have the right to speak in, of procedure. The concept of Zero Hour started
and otherwise to take part in the proceedings of, either organically in the first decade of Indian Parliament,
House, any joint sitting of the Houses, and any committee when MPs felt the need for raising important
of Parliament of which he may be named a member, but constituency and national issues.
shall not by virtue of this article be entitled to vote. r Although Zero Hour is not specified in any Rule
Every Minister and Attorney General of India shall Book, presiding officers of both houses have worked
have the right to speak in and otherwise participate in: to control it and make it more effective throughout
r the proceedings of either House the years.
r any joint sitting of the Houses r The Presiding officers in the Parliament regulate the
r any committee of Parliament to which he may be zero by setting rules to streamline the process.
named a member r In the Lok Sabha, Question Hour comes first, followed
r But by virtue of this article, he/she shall not be by Zero Hour, however in the Rajya Sabha, it is the
entitled to vote in the discussions. other way around.

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r The Difference between Zero Hour and Question the House and no supplementary question can be
Hour is the Ministers are not bound to reply in the asked thereon. The list of these questions is printed
Zero Hour. in white colour.
The Question Hour (iii) Short Notice Questions- A member may give a notice
r The question hour is the transparency technique of question on a matter of public importance and
of the parliamentarians. This question hour is from of urgent character for oral answer at a notice less
12 pm to 1 and it is used to hold the government than 10 days prescribed as the minimum period of
accountable for their actions. Everything relating notice for asking a question in ordinary course. Such
to the policies, and the other details have to be put a question is known as ‘Short Notice Question’. The
up in this hour so that there remains the essence of list of these questions is printed in light pink colour.
democracy while the policies are framed and also (iv) Questions to Private Members- A Question may also
remains the accountability and the transparency be addressed to a Private Member (Under Rule 40 of
and accountability among the members of the the Rules of Procedure and Conduct of Business in
parliament. Lok Sabha), provided that the subject matter of the
r During question hour, Members of Parliament ask question relates to some Bill, Resolution or other
questions from ministers and hold them accountable matter connected with the business of the House for
for the functioning of their ministries. which that Member is responsible. The procedure in
r The questions that MPs ask are designed to elicit
regard to such questions is same as that followed in
information and trigger suitable action by ministries. the case of questions addressed to a Minister with such
variations as the Speaker may consider necessary.
r The first hour of every parliamentary sitting is
termed as Question hour. Debates
r It is mentioned in the Rules of Procedure of the r This part of the procedure and the functioning of the
House. parliament is the essence of the parliament functioning.
r During this time, the members ask questions and the The intellectual phase of the parliamentarians begins
ministers usually give answers.
here at this stage. The parliamentarian’s debate
r The questions can also be asked to the private
members (MPs who are not ministers). regarding the policies to be made for the future
r Question Hour in both Houses is held on all days prospects and the ongoing policies.
of the session. But there are two days when an Types of Debates-
exception is made:
m There is no Question Hour on the day the r In the post-lunch session, there are types of debates
President addresses MPs from both Houses in that take place such as the short-term discussions,
the Central Hall. half an hour discussions and the special mention
m Question Hour is not scheduled on the day the
discussions and the motions afterwards are the key
finance minister presents the Budget. to the Indian Parliament.
Members have a right to ask questions to elicit Legislation and the Law-Making Process
information on matters of public importance within r Legislation is an important part of the
the special cognizance of the Ministers concerned. The Parliamentarians and Legislations are the reason for
questions are of four types: — the law being in force. This is also an important part
(i) Starred Questions- A Starred Question is one of the parliamentary function.
to which a member desires an oral answer from r The Law-Making Process- all the bills and the
the Minister in the House and is required to be ordinances will be formed and discussed in the house
distinguished by him/her with an asterisk. Answer to of the parliament and once the bills are approved by
such a question may be followed by supplementary both the houses, the act is formed and then the law
questions by members. The list of these questions is comes into being.
printed in green colour. Motions in Parliament
(ii) Unstarred Questions- An Unstarred Question is one r The term 'motion' in its wide sense means any
to which written answer is desired by the member proposal made for the purpose of eliciting a decision
and is deemed to be laid on the Table of the House of the House. In order to ascertain the will of the
by Minister. Thus, it is not called for oral answer in House in regard to a matter before it, every question

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 to be decided by the House must be proposed by a to some future date.
member in the form of a motion. (c) Amendment: A subsidiary motion which
r Motions are, in fact, the basis of all Parliamentary interposes a new process of question and
proceedings. Any matter of importance/public decision between the main question and its
interest can be the subject-matter of a motion. decision. Amendments may be to the clause of a
Bill, to a Resolution or to a Motion. The objective
All motions moved in the House are classified into
of an amendment is either to modify a question
three broad categories: before the House with a view to increasing
(1) Substantive Motion — It is a self-contained its acceptability, or to present to the House a
independent proposal submitted for the approval of different proposition as an alternative to the
the House and drafted in such a way as to be capable original question.
of expressing a decision of the House. For example,
General Rules for Parliamentary Motions
all Resolutions are substantive motions. The conduct
of persons in high authority can only be discussed As per Rules of Procedure and Conduct of Business
on a substantive motion drawn in proper terms. of the Houses: -
Motions for the election of the Deputy Chairman in r No discussion on a matter of general public
Rajya Sabha, Motion of Thanks on the President’s importance can take place except on a motion made
Address are examples of substantive motions. with the consent of the Speaker/Chairman as the
(2) Substitute Motion — Motions moved in substitution case may be.
of the original motion for taking into consideration r Notice of motion must be given in writing addressed
a policy or situation or statement or any other to the Secretary-General.
matter. Amendments to substitute motions are not r There are certain parameters for the admissibility of
permissible. the motion.
(3) Subsidiary Motion — It is a motion which depends r The Chairman/Speaker decides the admissibility of
upon or relates to another motion or follows upon the motions as per the parameters.
some proceedings in the House. By itself it has no r Motions on matters pending before tribunals or
meaning and is not capable of stating the decision of commissions are not admitted.
the House without reference to the original motion r The Chairman/Speaker allots time for discussion on
or proceedings of the House. Subsidiary Motions are the matter raised in the motion.
further divided into three: r On the allotted day the Chairman/Speaker may put
(a) Ancillary Motion: A motion which is recognised every question necessary to determine the decision
by the practice of the House as the regular way of the House on the original question.
of proceeding with various kinds of business. r The Speaker/Chairman may prescribe a time limit
The following are examples of ancillary motions: for speeches on the motion.
(i) That the Bill be taken into consideration. Types of motions in Indian Parliament
(ii) That the Bill be passed. There are various types of motions which are as
(b) Superseding Motion: A motion which, though under: -
independent in form, is moved in the course r Censure Motion
of debate on another question and seeks to
r No Confidence Motion
supersede that question. In that class fall all the
r Confidence Motion
dilatory motions. The following motions are
superseding motions in relation to the motion r Call-Attention Motion
for taking into consideration a Bill: r Adjournment Motion
(i) That the Bill be recommitted to a Select r Cut Motions
Committee. r Privilege Motion
(ii) That the Bill be recommitted to a Joint r Motion of Thanks
Committee of the Houses.
r Dilatory Motion
(iii) That the Bill be re-circulated for eliciting
further opinion thereon. r No-Day-Yet-Named Motion

(iv) That the consideration of the Bill or the Censure motion

debate on the Bill be adjourned sine die or r Censure motion is moved by the opposition against a

164
 specific policy of the government or against a minister identify another person who enjoys the confidence
or against the whole council of ministers. It can be of the Lok Sabha.
moved only in the lower house of the parliament. Call attention motion
The motion should be specific and self-explanatory r A member may, with the previous permission of the
so as to record the reasons of the censure precisely Speaker, call the attention of a Minister to any matter
and briefly. of urgent public importance by moving a motion.
r No leave of the House is required to move a censure The Minister may make a brief statement or ask for
motion. If it is passed, the Council of Minister is time to make a statement at a later hour or date. The
bound to seek the confidence of the Lok Sabha as number of call-attention motion is restricted to two
early as possible. motions by one member in a single sitting.
No Confidence motions Adjournment motion
r This motion is introduced in the Lok Sabha by r A motion for an adjournment of the business of the
the opposition. It is a motion expressing want of House for the purpose of discussing a definite matter
confidence in the Council of Ministers. No-confidence of urgent public importance may be made with the
motions are subject to following restrictions, consent of the Speaker.
namely:— r The Adjournment motion if admitted leads to
m leave to make the motion shall be asked for by setting aside the normal business of the House for
the member when called by the Speaker; discussing the matter mentioned in the motion. The
m the member asking for leave shall, that day give motion shall be restricted to a specific matter of
to the Secretary-General a written notice of the recent occurrence involving the responsibility of the
motion which such member proposes to move. Government of India.
r If the Speaker is of opinion that the motion is in order, Cut motions
he shall read the motion to the House and request
r A cut motion is a special power vested in members of
those members who are in favour of leave being
the Lok Sabha to oppose a demand being discussed
granted to rise in their places. At least fifty members
for specific allocation by the government in the
are required to rise if the leave is to be granted. The
Finance Bill as part of the Demand for Grants.
motion has to be taken up within 10 days from the
r If the motion is adopted, it amounts to a no-
date on which leave is asked for. After the discussion,
the Speaker puts every question necessary to confidence vote, and if the government fails to jot up
determine the decision of the House on the motion. numbers in the lower House, it is obliged to resign
A Government can be dismissed by passing a direct according to the norms of the House.
vote on a no-confidence motion. r A motion may be moved to reduce the amount of a
demand in any of the following ways:
Confidence motion
m Policy Cut Motion: It is moved so that the amount
r It is also called “trust vote”. Confidence motions
of the demand be reduced to Re.1 representing
have evolved as a counter by the government when disapproval of the policy underlying the
it wants to demonstrate its majority. There is no demand. The discussion shall be confined to the
special provision in the rules for a confidence motion specific point or points mentioned in the notice
— such a motion is moved as an ordinary motion. In and it shall be open to members to advocate an
recent times, when no party has had a clear majority, alternative policy.
the President has appointed a prime minister who
m Economy Cut Motions: It is moved so that the
he believed had the majority support. This person is
amount of the demand will be reduced by a
expected to prove his majority through a confidence
specified amount representing the economy that
motion.
can be affected. Such specified amount may be
r If both, the motion for no-confidence and a motion
either a lump sum reduction in the demand or
for confidence are tabled, the speaker is to give omission or reduction of an item in the demand.
precedence to government business and take the
m Token Cut Motions: It is moved so that the amount
motion of confidence.
of the demand is reduced by Rs.100 expresses a
r If the prime minister loses a motion of confidence, he
specific grievance which is within the sphere of
is obliged to resign, and the President should try to the responsibility of the Government of India.

165
 The discussion on this motion is confined to the A point of order should relate to the interpretation or
particular grievance specified in the motion. enforcement of the Rules of the House or such articles of
r It can be moved only in Lok Sabha. the Constitution that regulate the business of the House
Privilege motion and should raise a question that is within the cognizance of
r The Constitution grants certain powers, privileges the Speaker. It is usually raised by an opposition member
and immunities to the Parliament, its members in order to control the government. It is an extraordinary
and committees. Such powers and privileges are device as it suspends the proceedings before the House.
regulated as per laws made by the House.
No debate is allowed on a point of order.
r A privilege motion is introduced by the opposition
against a minister in case the minister has misled the Note: Motions such as No Confidence Motion,
House by providing false information. Its purpose is Adjournment Motion and Censure Motion are
to censure the concerned minister. admissible only in Lok Sabha.
r A privilege motion can be moved against a non- Legislative Process in Parliament
member as well as a member.
The basic function of Parliament is to make laws.
Motion of Thanks All legislative proposals have to be brought in the form
r A formal motion moved in the House expressing its of Bills before Parliament. A Bill is a statute in draft and
gratitude for the Address delivered by the President cannot become law unless it has received the approval
under Article 87(1) of the Constitution to both of both the Houses of Parliament and the assent of the
Houses of Parliament assembled together. President of India.
r It provides an opportunity for the discussion of the The process of law making begins with the
matters referred to in the Address. Members can introduction of a Bill in either House of Parliament. A
move amendments to the Motion of Thanks. Bill can be introduced either by a Minister or a member
r The discussion on the Motion of Thanks is concluded other than a Minister. In the former case, it is called a
by the reply of the Prime Minister or any other Government Bill and in the latter case, it is known as a
Minister. Private Member's Bill.
Dilatory Motion A Bill undergoes three readings in each House, i.e.,
r A motion for the adjournment of the debate or a
the Lok Sabha and the Rajya Sabha, before it is submitted
motion to retard or delay the progress of the business to the President for assent.
under consideration of the House. The debate on a Parliament makes laws in skeletal form and the
dilatory motion must be restricted to the matter of executive has to make detailed rules and regulations
such motion. within framework of the law. This is called delegated
r If the Chairman is of opinion that such a motion is
legislation; executive legislation or subordinate
an abuse of the Rules of the House, he may either legislation
forthwith put the question thereon from the Chair or Types of Bills
decline to propose the question. There are four different kinds of Bills that are passed
No Day Yet Named motion in the Parliament of India. They can be classified as:
r If the Speaker admits notice of a motion and no date r Ordinary Bills
is fixed for the discussion of such motion, it is called r Money Bills
No-Day-Yet-Named motion. r Finance Bill
r The Speaker may, after considering the state of r Constitutional Amendment Bills
business in the House and in consultation with the Ordinary Bills
Leader of the House or on the recommendation of These are the bills that are concerned with any
the Business Advisory Committee allot a day or days matters related to the law, which does not include
or part of a day for the discussion of any such motion. matters related to finance. There are five stages through
which an ordinary bill becomes a law.
Point of Order
First reading: Member asks for the leave of the
A member can raise a point of order when the proceedings
house to introduce the bill. If the leave is granted, he
of the House do not follow the normal rules of procedure. introduces title and objectives, the bill is published in the

166
gazette of India. If bill is published before its introduction Joint sitting is an extraordinary machinery provided
leave of the house isn’t needed. No debates or voting by the Constitution aimed to maintain a much-needed
takes place. synergy between the two houses of the Parliament.
Second reading: The Second Reading involves President of India may after consultation with the chair
detailed scrutiny of bill which consists of following steps: of the Rajya Sabha and the Speaker of Lok Sabha may
(A) Stage of General Discussion: Here printed copies of make rules for procedure of joint session of parliament.
the bill are given to all house members. The house Occasions when Joint Session of Parliament is
can take the bill for immediate consideration or at a summoned:
fixed date. It can be referred to a select committee or As per Article 108 of Constitution, a Joint session of
a joint committee of both houses. It can be circulated Parliament can be summoned in the following situation:
for public opinion. r To resolve deadlock when any house of the
(B) Committee Stage: A committee scrutinizes the bill Parliament passes a bill and when the other House
and amends it if needed. A detailed clause by clause rejects this bill, or
review is done. Committee submits report to the r The houses do not agree on the amendments made
house. to the bill, or
(C) Consideration Stage: The house examines the bill r More than six months elapsed with the bill being
in detail. Each clause is examined and voted upon. received by the other House without it being passed.
Amendment if succeeded is added to the bill. However, in calculating the period of six months, those
Third reading: The entire bill is discussed and days are not considered when house is prorogued or
voted; no amendments are allowed at this stage. If the adjourned for more than 4 consecutive days.
bill is passed by a simple majority, then it’s authenticated
Reason for holding joint session:
by the presiding officer and goes to the second house.
The makers of the Constitution of India anticipated
Bill in the Second House: In the second house also,
situations of deadlock between the Rajya Sabha and the
the bill passes through all the three stages. Second house
Lok Sabha. Therefore, the Constitution of India provides
has following alternatives:
for Joint sitting of both Houses to resolve this deadlock.
r Pass as sent by first House (the bill can be either
Further, joint session reflects the importance of Rajya
passed without amendment);
Sabha as a check on hasty legislations by the government.
r pass with amendments to the first house for
Since 1950, the provision regarding the joint sitting of
reconsideration; the two Houses has been invoked only thrice. The bills
r rejects the bill altogether; that have been passed at joint sittings are:
r no action is taken. r Dowry Prohibition Bill, 1960.
If the first house rejects the amendments or second r Banking Service Commission (Repeal) Bill, 1977.
house rejects bills or no action is taken for six months r Prevention of Terrorism Bill, 2002.
then a deadlock is deemed to have taken place and a joint
Joint sitting is notified by the president after which
sitting is called by the president. A bill needs to be passed
no house can proceed on the bill. Speaker or in his absence
by a simple majority.
deputy speaker or in his absence deputy chairman of RS
Assent of the President: After being passed by both presides over the joint sitting. If he is also absent the any
the house the bill is sent to the President for his assent. member in the joint sitting can preside as chosen by the
Here the president has following alternatives: members present. Joint sitting can’t be done for money
r Give his assent bills or constitution amendments.
r Withhold his assent In a joint sitting no new amendments can be made
r Send bill for reconsideration. except
If the President gives assent, then bill becomes an
i. if these amendments have caused disagreement
Act. If president withhold his assent, the bill ends. If the
president returns the bill for reconsideration, if both between the two houses OR
houses pass it again with or without amendments then ii. have been made necessary due to the delay in passing
this time the president must have to give his assent. the bill.
Joint Sitting A bill needs to be passed by a simple majority.
Exceptions to Joint Session: According to the Indian

167
Constitution, there are two exceptions when a joint sitting the Parliament at the expiry of the 14 days in the same
cannot be summoned. They are for the following bills: form it was passed by the Lok Sabha. And then it goes to
r Money Bill: Under the Constitution of India, money the president for his assent. The Speaker of the House,
bills require approval of the Lok Sabha only. Rajya certifies a bill as a Money Bill, and the decision of the
Sabha can give suggestions to Lok Sabha, which it is speaker becomes the final verdict and cannot be changed
not required to accept. Even if Rajya Sabha doesn’t or challenged in the court.
pass a money bill within 14 days, it is deemed to Finance Bill I
have been passed by both the Houses of Parliament Finance Bill- I under Article 117 (1) can contain
after expiry of the above period. Therefore, there is matters of money bills [all or some] but have to also
no need of summoning a joint session in the case of contain provisions of general legislation.
money bills. A financial bill (I) is similar to a money bill as
r Constitution Amendment Bill: As per Article 368,
r both of them can be introduced only in the Lok
the Indian Constitution can be amended by both Sabha and not in the Rajya Sabha and
houses of parliament by 2/3rd majority. In case of
r both of them can be introduced only on the
disagreement between both houses, there is no
recommendation of the president.
provision to summon joint session of parliament.
In all other respects, a financial bill (I) is governed by
Financial Bills
the same legislative procedure applicable to an ordinary
They are of three types: bill. Hence, it can be either rejected or amended by the
r Money bills (Article 110) Rajya Sabha except that an amendment other than for
r financial bills – I (Article 117(1)) reduction or abolition of a tax cannot be moved in either
r Financial bills – II(Article 117(2)) House without the recommendation of the president.
Money Bills In case of a disagreement between the two Houses
These are the bills that deal with the matter related over such a bill, the president can summon a joint sitting
to the money under Art 110 of the Constitution of India. of the two Houses to resolve the deadlock.
This Article states that any provision that deals with Finance Bill II
r Provisions of taxation; Finance Bill II under Article 117(2) contains
r Borrowing by the union government; provisions involving expenditure from the Consolidated
r appropriation of funds from the consolidated fund of Fund of India, but does not include any of the matters
India; mentioned in Article 110.
r Payment into or withdrawal from consolidated fund It is treated as an ordinary bill and in all respects;
it is governed by the same legislative procedure which
or contingency fund of India; is applicable to an ordinary bill. Hence, financial bill II
r Declaration of amount charged on consolidated fund can be introduced in either House of Parliament and
or increasing this amount; recommendation of the President is not necessary for its
r Audit of accounts of union or states; introduction.
r receipts of money on account of consolidated fund The only special feature of this bill is that it cannot be
or public account of India or custody or issue of such passed by either House of Parliament unless the President
money; is deemed to be a money bill. has recommended to that House the consideration of the
Money bills can be introduced only in Lok Sabha bill.
and only after the president’s recommendation. It is a Constitutional Amendment Bills
government bill and can be introduced only by a minister. The power vested by the Constitution to the
When it is passed by the Lok Sabha and transmitted Parliament to amend the Bills gives the right to make
to the Rajya Sabha. The Rajya Sabha has to pass the amendments in the Constitution. These can be introduced
Money Bill to the Lok Sabha in a period of 14 days in both the houses of the Parliament. The power vests
from its receipt date. It may return it with or without in the parliament for its introduction, but not in the
recommendations. The Lok Sabha can accept or reject legislatures of the States. These Bills can be introduced
the recommendations. If the Rajya Sabha fails to return by a Minister or a Private Member and do not require the
the Bill after the completion of 14 days, the Bill will recommendation of the President. There are three kinds
be deemed to have been passed by both the Houses of of constitutional amendment bills:

168
r Bills that the Parliament needs to pass by a simple Affairs in the Finance Ministry is the nodal body
majority. responsible for preparing the Budget.
r Bills that the Parliament needs to pass by a special r Presentation of Budget
majority. r General discussion
r Bills that the Parliament needs to pass by a special r Scrutiny by Departmental Committees
majority but also needs to be ratified by the State r Voting on Demands for Grants
Legislatures by not less than one half of them. r Passing of Appropriation Bill and Finance Bill.
Annual Financial Statement or Budget A. Presentation of budget: Conventionally the budget
The term ‘Budget’ is not mentioned in Indian is presented by the finance minister in the Lok
Constitution; the corresponding term used is ‘Annual Sabha on last working day of February. Since 2017
Financial Statement’. According to Article 112 of the the presentation of budget has advanced to 1st of
Indian Constitution, the Union Budget of a year is referred February. The budget can be presented in parts,
to as the Annual Financial Statement (AFS). and each part shall be dealt with as if it were a
It is a statement of the estimated receipts and budget. Finance minister gives a budget speech
expenditure of the Government in a financial year (which and at the end of it; the budget is laid before both
begins on 01 April of the current year and ends on 31 houses. Rajya Sabha can only discuss it and has no
March of the following year). power to vote on the demands for grants. Economic
The Railway budget was separated form the general survey is presented one day or few days before the
budget in1924 on the recommendations of Acworth presentation of the budget.
Committee Report (1921), but in 2017 the central B. General discussions: Only the general principles of
government merged the railway budget into the general budget or the budget as a whole can be discussed.
budget. Hence there is now only one budget for the No motions of reduction of grants or votes can be
Government of India. made. Finance minister has the right of reply at end
What are the constitutional requirements which make of discussion. This happens in both houses.
Budget necessary? C. Scrutiny by dept committees: An in-depth scrutiny
of demand for grants by department is made by each
Article 265: provides that ‘no tax shall be levied or
departmental standing committee of parliament.
collected except by authority of law’. [ie. Taxation needs
Three to four weeks are given for this and the house
the approval of Parliament.]
remains in recess. The standing committees make a
Article 266: provides that ‘no expenditure can be
incurred except with the authorisation of the Legislature’ report to the house at the end.
[ie. Expenditure needs the approval of Parliament.] D. Voting on the demand for grants: The Member
Article 112: President shall, in respect of every of Parliament of Lok Sabha study and vote on each
financial year, cause to be laid before parliament, an demand for grant. The Lok Sabha only can vote on
Annual Financial Statement. demand for grants and no voting is allowed on the
The Budget Contains: expenditure charged on the consolidated fund of
r Estimates of revenue and capital receipts, India. Member of Parliament can move motion for
r Ways and means to raise the revenue, reduction of a grant called CUT Motions
r Estimates of expenditure,
Cut Motion
r Details of the actual receipts and expenditure of the
r Policy cut: Reduces allocation of grant to Re. 1 to
closing financial year and the reasons for any deficit
indicate disapproval to a policy.
or surplus in that year, and
r Token cut: Reduce amount by Rs.100 to ventilate
r The economic and financial policy of the coming
specific grievance
year, i.e., taxation proposals, prospects of revenue,
r Economy cut: Reduction by specific amount to
spending program, and introduction of new
suggest economic use of funds.
schemes/projects.
26 days are allotted for discussions and voting of
In Parliament, the Budget is enacted through six
the demand for grants at the last day all remaining
stages: demands are put to vote and disposed. This is
The Budget Division of the Department of Economic

169
 referred to as “Guillotine”. grant of a token sum may be submitted to the vote of
E. Appropriation bill and Finance bills: The the House and, if the House assents to the demand,
appropriation bill contains voted demand for grants funds may be so made available.
and also expense charged on the consolidated fund of Supplementary, additional, excess and exceptional
India. No amendments can be made on these in any grants and vote of credit follows the same procedure as
house. After the bill receives assent of the president the enactment of the budget.
it becomes appropriation act. This allows expense Demand for grants can be made only on
from the consolidated fund. recommendation of the president.
Finance bill is also presented containing provisions Funds
for taxation. It is like a money bill however amendment The constitution provides for three types of funds
can be moved seeking to reduce or remove a tax. This for the central government. These are:
allows taxes to be levied. The Finance Act legalises the
1. Consolidated Fund of India (Article 266): It is a
income side of the budget and completes the process of
fund of the government of India, in which all receipts
the enactment of the budget.
are credited and all payments are debited. It includes
Other Grants: (i) All revenues received by the Government of
1. Supplementary grant: It is granted if the amount India
authorized by the parliament through the (ii) All loans raised by the government by the issue
appropriation act to be expended for a particular of treasury bills, loans or ways and means
service for the current financial year is found to be advances
insufficient for the purpose of that year.
(iii) Money received by the Government in repayment
2. Additional Grant: It is granted when a need of loans
has arisen during the current financial year for
No money out of the Consolidated Fund of India shall
supplementary or additional expenditure upon some
be appropriated except in accordance with law and
new service not contemplated in the Budget for that
for the purposes and in the manner provided in this
year. In additional grant, extra amount is needed that
Constitution. That means, the payment can be made
wasn’t dealt with earlier.
out of the Consolidated Fund of India only with
3. Excess Grant: It is granted when money has been approval of the parliament.
spent on any service during a financial year in excess
2. Public Account of India (Article 266): All other
of the amount granted for that year. The demands
public money received by or on behalf of the
for excess grants are made after the expenditure has
actually been incurred and after the financial year to Government of India shall be entitled to the public
which it relates, has expired. All cases involving such account of India. The payment out of this account
excesses are brought to the notice of parliament by can be made without parliament appropriation as
the Comptroller and Auditor General through his it is operated by executive action. Public account
report on the appropriation accounts. The excesses includes provident fund deposits, saving bank
are then examined by the Public Accounts Committee deposits, judicial deposits etc.
which makes recommendations regarding their
3. Contingency Fund of India (Article 267): The
regularisation in its report to the House.
constitution provides the parliament to establish
4. Vote of Credit: It is granted for meeting an unexpected a Contingency Fund of India. The parliament
demand upon the resources of India when on account established Contingency Fund of India in 1950. This
of the magnitude or the indefinite character of the fund is placed at the disposal of the president to enable
service the demand cannot be stand with the details advances to be made by him out of such fund for the
ordinarily given in an annual financial statement. purposes of meeting unforeseen expenditure pending
5. Exceptional Grants: It is granted for an exceptional authorisation of such expenditure by the parliament.
purpose which forms no part of the current service This fund is operated by executive action.
of any financial year.
Changes Introduced Recently
6. Token Grant: It is granted when funds to meet
r Advancement of Budget presentation to February
proposed expenditure on a new service can be made
1 (earlier presented on the last working day of
available by re-appropriation, a demand for the
February)

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r Merger of Railway Budget with the General Budget r Amending Powers
r Doing away with plan and non-plan expenditure. r Electoral Powers and Functions
m Plan Expenditure: All expenditures done in r Other powers and functions.
the name of planning (i.e., Five Year Plans) Legislative Powers and Functions
were called plan expenditures. For example, r The Parliament legislates on all matters mentioned
expenditure on electricity generation, irrigation, in the Union List and the Concurrent List.
and rural developments, construction of roads,
r In the case of the Concurrent List, where the
bridges, canals, etc.
state legislatures and the Parliament have joint
m Non-plan Expenditure: All expenditures other
jurisdiction, the union law will prevail over the
than plan expenditure were known as non-plan states unless the state law had received the earlier
expenditure. For example, interest payments, presidential assent. However, the Parliament can
pensions, statutory transfers to States and Union any time, enact a law adding to, amending, varying
Territories governments, etc. or repealing a law made by a state legislature.
Expenses r The Parliament can also pass laws on items in the
r Expenditure on revenue account should be separated State List under the following circumstances:
from other expenditure. Also, expenditure charged r If Emergency is in operation, or any state is placed
on the consolidated fund should be separated from under President’s Rule (Article 356), the Parliament
the expense made from the fund. can enact laws on items in the State List as well.
r Parliament can reduce or abolish a tax but can’t r As per Article 249, the Parliament can make laws
increase it. on items in the State List if the Rajya Sabha passes
r Demand for grants can be made only on a resolution by ⅔ majority of its members present
recommendation of the president. and voting, that it is necessary for the Parliament to
r Expenditures are of two types make laws on any item enumerated in the State List,
m charged upon the Consolidated Fund of India in the national interest.
(non-votable, only discussed) r As per Article 253, it can pass laws on the State List
m made from the Consolidated Fund of items if it is required for the implementation of
India(votable) international agreements or treaties with foreign
Charged expense is non votable but can only be powers.
discussed by parliament. r According to Article 252, if the legislatures of two or
Expense charged upon the Consolidated Fund of India: more states pass a resolution to the effect that it is
desirable to have a parliamentary law on any item
It includes salaries, pensions or expenses of
listed in the State List, the Parliament can make laws
President, UPSC, CAG, Supreme Court judge, Pensions of
for those states.
High Court judges, Presiding or deputy presiding officer
of Lok Sabha and Rajya Sabha, debt of the Govt of India, Financial Powers and Functions
amounts to satisfy any judgments, expense declared by r No tax can be levied or collected and no expenditure
parliament to be charged on the fund. can be incurred by the Executive except under the
authority and with the approval of Parliament.
Multifunctional Role of Parliament Hence, the budget is placed before the Parliament
In the ‘Indian politico-administrative system’, for its approval. The enactment of the budget by the
the Parliament occupies a central position and has a Parliament legalises the receipts and expenditure of
multifunctional role. It enjoys extensive powers and the government for the ensuing financial year.
performs a variety of functions towards the fulfilment r The Parliament also scrutinises government
of its constitutionally expected role. Its powers and spending and financial performance with the help of
functions can be classified under the following heads: its financial committees.
r Legislative Powers and Functions r These include public accounts committee, estimates
r Financial Powers and Functions committee and committee on public undertakings.
They bring out the cases of illegal, irregular,
r Executive Powers and Functions
unauthorised, improper usage and wastage and
r Judicial Powers and Functions
extravagance in public expenditure.

171
r Therefore, the parliamentary control over the courts, chief election commissioner, comptroller and
Executive in financial matters operates in two stages: auditor general to the president.
r Budgetary control, that is, control before the r It can punish its members or outsiders for the breach
appropriation of grants through the enactment of of its privileges or its contempt.
the budget; and
r The Parliament has the power to amend the
r Post-budgetary control, that is, control after the
appropriation of grants through the three financial Constitution of India. Both Houses of the Parliament
committees. have equal powers as far as amending the
r The budget is based on the principle of annuity, that
Constitution is concerned. Amendments will have to
is, the Parliament grants money to the government be passed in both the Lok Sabha and the Rajya Sabha
for one financial year. for them to be effective.
r If the granted money is not spent by the end of the Electoral Functions
financial year, then the balance expires and returns r The Parliament takes part in the election of the
to the Consolidated Fund of India. This practice is President and the Vice President.
known as the ‘rule of lapse’. It facilitates effective r The electoral college that elects the President
financial control by the Parliament as no reserve comprises of, among others, the elected members of
funds can be built without its authorisation. However,
the observance of this rule leads to heavy rush of both Houses.
expenditure towards the close of the financial year. r The President can be removed by a resolution passed
This is popularly called as ‘March Rush’. by the Rajya Sabha agreed to by the Lok Sabha.
Executive Functions (Control over the Executive) Other Powers
In the parliamentary form of government, the r Issues of national and international importance are
executive is responsible to the legislature. Hence, the discussed in the Parliament. The opposition plays an
Parliament exercises control over the executive by important role in this regard and ensures that the
several measures. country is aware of alternate viewpoints.
r By a vote of no-confidence, the Parliament can r A Parliament is sometimes talked of as a ‘nation in
remove the Cabinet (executive) out of power. It can miniature’.
reject a budget proposal or any other bill brought by r In a democracy, the Parliament plays the vital
the Cabinet. A motion of no-confidence is passed to function of deliberating matters of importance
remove a government from office. before laws or resolutions are passed.
r The MPs (Members of Parliament) can ask r The Parliament has the power to alter, decrease or
questions to the ministers on their ommissions increase the boundaries of states/UTs.
and commissions. Any lapses on the part of the r The Parliament also functions as an organ of
government can be exposed in the Parliament. information. The ministers are bound to provide
r The Parliament appoints a Committee on Ministerial information in the Houses when demanded by the
Assurances that sees whether the promises made by members.
the ministers to the Parliament are fulfilled or not. Ineffectiveness of Parliamentary Control
r Other devices that are used to have a control over the The parliamentary control over government and
executive are as follows: administration in India is more theoretical than practical.
r Adjournment motions In reality, the control is not as effective as it ought to be.
r Censure Motions The following factors are responsible for this:
r Cut motions r The Parliament has neither time nor expertise to
Judicial Powers and Functions control the administration which has grown in
volume as well as complexity.
The judicial powers and functions of the Parliament
include the following: r Parliament’s financial control is hindered by the
technical nature of the demands for grants. The
r It can impeach the President for the violation of the
parliamentarians being laymen cannot understand
Constitution.
r It can remove the Vice-President from his office.
them properly and fully.
r It can recommend the removal of judges (including r The legislative leadership lies with the Executive and
chief justice) of the Supreme Court and the high it plays a significant role in formulating policies.

172
r The very size of the Parliament is too large and r Selection of ministers including the Prime Minister.
unmanageable to be effective. Under the Constitution, the ministers including the
r The majority support enjoyed by the Executive in the Prime Minister can be members of either House.
Parliament reduces the possibility of effective criticism.
However, irrespective of their membership, they are
r The financial committees like Public Accounts
Committee examines the public expenditure after responsible only to the Lok Sabha.
it has been incurred by the Executive. Thus, they do r Approval of proclamation of all three types of
post mortem work. emergencies by the President.
r The increased recourse to ‘guillotine’ reduced the
r Enlargement of the jurisdiction of the Supreme
scope of financial control.
r The growth of ‘delegated legislation’ has reduced the
Court and the Union Public Service Commission.
role of Parliament in making detailed laws and has r Consideration of the reports of the constitutional
increased the powers of bureaucracy. bodies like Finance Commission, Union Public Service
r The frequent promulgation of ordinances by
Commission, comptroller and auditor general, etc.
the president dilutes the Parliament’s power of Special Powers of the Lok Sabha-
legislation. r The Rajya Sabha cannot remove the council of
r The Parliament’s control is sporadic, general and ministers by passing a no-confidence motion. This
mostly political in nature. is because the Council of ministers is collectively
r Lack of strong and steady opposition in the responsible only to the Lok Sabha. But, the Rajya
Parliament, and a setback in the parliamentary Sabha can discuss and criticise the policies and
behaviour and ethics, have also contributed to activities of the government
the ineffectiveness of legislative control over r The responsibility with the collective note is a
administration in India. thing to be considered and the Lok Sabha enjoys
Position of Rajya Sabha special powers with respect to the “Collective
Responsibility” of the government in the financial
The Constitutional position of the Rajya Sabha (as
matters.
compared with the Lok Sabha) can be studied from three:
r A Money Bill can be introduced only in the Lok Sabha
r Where Rajya Sabha is equal to Lok Sabha.
and not in the Rajya Sabha.
r Special Powers of the Lok Sabha-
r Rajya Sabha cannot amend or reject a Money Bill.
r Special Powers of the Rajya Sabha-
It should return the bill to the Lok Sabha within
Equal Status with Lok Sabha 14 days, either with recommendations or without
In the following matters, the powers and status of recommendations.
the Rajya Sabha are equal to that of the Lok Sabha: r A financial bill, not containing solely the matters of
r Introduction and passage of financial bills involving Article 110, also can be introduced only in the Lok
expenditure from the Consolidated Fund of India. Sabha and not in the Rajya Sabha. But, with regard to
r Introduction and passage of ordinary bills. its passage, both the Houses have equal powers.
r Introduction and passage of Constitutional r The Lok Sabha can either accept or reject all or any
amendment bills. of the recommendations of the Rajya Sabha. In both
r Election and removal of the Vice-President. However, the cases, the money bill is deemed to have been
Rajya Sabha alone can initiate the removal of the passed by the two Houses.
vice-president. He is removed by a resolution passed r The Speaker of Lok Sabha presides over the joint
by the Rajya Sabha by an effective majority (which is sitting of both the Houses.
a type of special majority) and agreed to by the Lok r The final power to decide whether a particular bill
Sabha by a simple majority. is a Money Bill or not is vested in the Speaker of the
r Election and impeachment of the president. Lok Sabha.
r Making recommendation to the President for the r The Lok Sabha with greater number wins the battle
removal of Chief Justice and judges of Supreme Court in a joint sitting except when the combined strength
and high courts, chief election commissioner and of the ruling party in both the Houses is less than
comptroller and auditor general. that of the opposition parties.
r Approval of ordinances issued by the President. r A resolution for the discontinuance of the national

173
 emergency can be passed only by the Lok Sabha and Background
not by the Rajya Sabha. r The origins of Parliamentary powers in India can
r Rajya Sabha can only discuss the budget but cannot be traced back to 1833 when the governor-council
vote on the demands for grants (which is the generals were expanded to include a fourth member
exclusive privilege of the Lok Sabha). following the 1833 Charter Act. A new form of
legislative apparatus was created. This created the
r All the financial bills and the money bills are passed
groundwork for an institution that, through time,
by the Lok Sabha and not the Rajya Sabha. evolved into a full-fledged legislative body.
r The Indian Constitution provides that the Council of r After the Indian Councils Act of 1909 permitted
Ministers shall be collectively responsible to the Lok for indirect election to the legislature, the official
Sabha and the power to control the finances also lies opposition to the assembly's privileges was lessened.
with the Lok Sabha.
r Freedom of speech in the legislature was guaranteed
Special Powers of Rajya Sabha under the Government of India Act of 1935.
The Rajya Sabha has been given four exclusive or r Some of Parliament's privileges, as well as those of
special powers that are not enjoyed by the Lok Sabha: its members and committees, are now enshrined in
r It can authorise the Parliament to make a law on a the Constitution, and certain legislation and rules
subject enumerated in the State List (Article 249). of procedure govern the House; others are still
r It alone can initiate a move for the removal of the Vice- dependent on House of Commons precedents.
President. In other words, a resolution for the removal r The primary articles of India's Constitution dealing
of the vice-president can be introduced only in the
with Parliamentary privileges are 105 and 122,
Rajya Sabha and not in the Lok Sabha (Article 67).
while the state-specific provisions are 194 and 212.
r It can authorise the Parliament to create new All-
India Services common to both the Centre and states Sources
(Article 312). The five sources of the privileges are:
r If a proclamation is issued by the President for r Constitutional provisions
imposing national emergency or president’s rule or r Various laws made by Parliament
financial emergency at a time when the Lok Sabha
r Rules of both the Houses
has been dissolved or the dissolution of the Lok
r Parliamentary conventions
Sabha takes place within the period allowed for its
approval, then the proclamation can remain effective r Judicial interpretations
even if it is approved by the Rajya Sabha alone Parliamentary Privileges
(Articles 352, 356 and 360). r Parliamentary privileges (Art 105 & 194) are special
An analysis of the above points makes it clear that rights, immunities, exemptions enjoyed by the
the position of the Rajya Sabha in our constitutional members of the two houses of Parliament and their
system is not as weak as that of the House of Lords in
committees.
the British constitutional system nor as strong as that
of the Senate in the American constitutional system. r These rights are also given to those individuals
Except in financial matters and control over the council who speak and participate in any committee of the
of ministers, the powers and status of the Rajya Sabha in Parliament, which includes the Attorney General of
all other spheres are broadly equal and coordinate with India and the Union Ministers.
that of the Lok Sabha. r President, who is integral part of the parliament,
Parliamentary Privileges (Article 105) does not enjoy these.
Parliamentary privilege is the total of specific rights r Article 105 (3) was amended by the Constitution
enjoyed by each House collectively and by members of
44th Amendment and now has two aspects.
each House individually, which outweigh those owned by
other groups or persons and without which they could m Powers, privileges and immunities of each
not execute their tasks. Houses of Parliament, its Members and
Some privileges are based purely on Parliamentary Committees shall be such as may be defined by
law and custom, while others are governed by statute. Parliament by law in time.

174
 m Till such powers, privileges and immunities are decline to give evidence and testify in court.
defined by Parliament, shall be the same as that Freedom of Publication - Article 361-A
enjoyed by the House of Commons as on 26th r Article 361-A was added by the Constitution 44th
January 1950. Amendment which says that no person shall be liable
Types of Parliamentary Privileges in India to any proceedings, civil or criminal in any Court of
law in respect of any publication in a newspaper
Collective Privileges of a substantially true report of any proceedings of
The privileges belonging to each House of Parliament either House of Parliament or Legislative Assembly,
collectively are: unless the publication is proved to have been made
r The ability to publish reports, debates, and with malice. A similar immunity is extended to
proceedings, as well as the ability to prevent others broadcast on air. Newspapers were not immune to
from doing so. It can publish truthful reports of publications of parliamentary proceedings prior to
Parliamentary proceedings without the House's 44th Amendment Act.
authorization under the freedom of the press. r In the famous Searchlight case, the Supreme Court
However, in the case of a House meeting held in ruled that publication of inaccurate or mashed
secret, this right of the press does not apply. versions of speeches delivered in the House or
r Keep strangers out of the gathering and organize misreporting the proceedings amounts to breach of
covert sessions to address vital issues. privilege.
r Make rules to govern its own procedure and
r The Court held that publication of those parts of
commercial activity, as well as to adjudicate on such
proceedings by a newspaper which were expunged
issues.
r Right to immediate notification of a member's arrest,
by the House amounts to breach of privilege of the
custody, conviction, imprisonment, and release. House and the offending party can take action in
r Initiate inquiries and compel a person's attendance. spite of protection from Article 361A.
r The courts are not allowed to investigate a House's r The Supreme Court also held that the House can
or its committees' proceedings. impose a prohibition on publication of any debates,
r Without the consent of the Presiding officer, no one proceedings even if such prohibitions amounted to
(whether a member or an outsider) can be arrested, violation of freedom of speech and expression under
and no legal process (civil or criminal) can be served Article 19 (1)(a).
within the House's boundaries. Parliamentary Privileges - Provisions related Internal
Individual Privileges Autonomy
The privileges belonging to the members individually r Article 122 (1) grants immunity on the same lines
are: to internal functioning of the House. The validity of
r During the session of Parliament, from 40 days any proceedings in Parliament cannot be called into
before the beginning to 40 days after the finish, question on the ground of alleged irregularity or
no member may be arrested. This privilege is only procedure.
granted in civil matters; it is not granted in criminal r Article 122 (2) further says that officers of
or preventive detention situations. Parliament who regulate its procedure and maintain
r In Parliament, members have the right to free order are not subject to the jurisdiction of any court
expression. No member of Parliament or its while exercising those powers. Thus, the House
committees is accountable in any court for anything of Parliament is free from judicial control in its
said or voted in Parliament or its committees. functioning.
This independence is limited by the Constitution's r Speaker cannot be sued for damages for any action
provisions as well as the norms and standing orders taken against a member including that of arrest. A
that govern Parliament's functioning. High Court or Supreme Court cannot issue a writ
r Members of Parliament are exempt from jury duty under Article 226 or Article 32 to restrain the
when Parliament is in session. They have the right to functioning of the House or legislation even though
the subject of legislation is ultra vires. Only when a

175
 Bill becomes a law after the President's assent, the the leader of his party in a parliamentary system of
Courts can decide upon its constitutionality. government, the prime minister is loyal to his party
r Thus, the House enjoys immunity from judicial rather than the people of the country. As a result, he
process and such courtesy is also extended to the will be more loyal to his party than to his people.
Committee of the House as a committee is one of its
parts through which a House functions. However, r Without a doubt, in a parliamentary system of
illegality or unconstitutionality of a procedure can government, the prime minister's tenure is always
be inquired into by a Court of Law. in doubt because the parliament can fire him at any
What is a breach of privilege? time with a "vote of no confidence." This could result
A breach of privilege is a violation of any of the in a crisis, segregation, or governance instability.
privileges of MPs/Parliament. Among other things, any r Members of the cabinet may be overburdened
action 'casting reflections' on MPs, parliament or its with double duties as a result of the convergence
committees could be considered a breach of privilege. of legislative and executive powers, and certain
This may include publishing of news items, editorials or
ministers may be unable to cope.
statements made in newspaper/magazine/TV interviews
or in public speeches r Finally, while the parliamentary system necessitates
Advantages of Parliamentary Privileges persons to perform both legislative and executive
r It lowers tensions, fosters goodwill, and encourages tasks, it is crucial to remember that a minister's lack
collaboration between the two branches of of specialty may result in inefficiencies in one arm of
government: The parliamentary system of government's control.
governance is beneficial because it fosters Measures need to be taken
cooperation between the executive and legislative
branches of government. Need to Codify Parliamentary Privileges - Thus,
r Faster and more efficient decision-making: The there is a stringent need to codify privileges, powers,
legislative and executive branches of government, as and immunities of the House. It will provide proper
well as the parliamentary system, are linked together guidelines to be followed and remove uncertainties that
to allow for faster and more efficient decision-making. currently prevail. In a democracy, free speech and rule of
r The fusion of the legislature and the executive to run law should be the norm, not the exception.
a cabinet system of government in a parliamentary
system of government means that less personnel Special Powers of the Parliament
and cost are required. Unlike a presidential system,
Parliamentary Group
where all the arms of government are separated and
occupied by different sets of people. The Indian Parliamentary Group is an autonomous
body formed in the year 1949 in pursuance of a motion
r It encourages good governance: The Parliamentary
adopted by the Constituent Assembly (Legislative) on
form of government also promotes good governance
16th August, 1948.
for the successful management of the country
because the individual and collective duty provided Composition of the Indian Parliamentary Group
to the parliament would inspire all members r All members of the Parliament are eligible to join the
of the cabinet to work hard. Accountability and IPG.
transparency are also ensured.
r Former members of Parliament can join the
Issues with Parliamentary privileges
organisation as associate members. Associate
r While a parliamentary system may appear to
members, on the other hand, have limited rights.
constantly support good governance, it can also
They do not have the right to be represented
make parliamentarians overly strong and arrogant,
at International Parliamentary Union (IPU) and
which can lead to political power abuse. Members of
Commonwealth Parliamentary Association (CPA) meetings
parliament will become supreme and untouchable
and conferences. They are also ineligible for travel discounts
as a result of the legislative system.
offered by certain CPA branches to members.
r Because he is directly elected as Prime Minister as

176
r The Group's ex-officio president is the Speaker of the r Under the aegis of the IPG, visiting chiefs of state and
Lok Sabha. governments of foreign nations deliver addresses
r The ex-officio vice-presidents of the Group are the to members of Parliament, as well as speeches by
Deputy Speaker of the Lok Sabha and the Deputy renowned people.
Chairman of the Rajya Sabha. The Group's ex-officio r On a national and international level, legislative
secretary-general is the secretary-general of the Lok seminars and symposia are held on a regular basis.
Sabha. r Members of the Group are provided letters of
introduction to the Secretaries of the IPU National
Objectives
Groups and Secretaries of the CPA branches when
The aims of the IPG are as follows: they travel overseas. The Indian Mission at the
r To encourage personal contact between members of counters is likewise well-informed, allowing them to
India's Parliament. provide assistance and common courtesy.
r To research issues of public interest that are likely r The Indian Parliamentary Delegations may only
include members of the Parliament Group who
to be brought before the legislature; to organise
have served for at least six months at the time of the
seminars, talks, and orientation courses; and to delegation's formation.
publish information for the Group's members.
Significance
r Members of the parliament will give lectures on r In today's globalised society, inter-parliamentary
political, defence, economic, social, and educational connections are extremely important. The world
issues. today is troubled by various issues, and the
r Arrange for a few members of the committee to go challenges that a parliament faces now may be
to other countries in order to create links with other replaced by other ones tomorrow.
r As a result, it is critical that a link exists between
parliaments throughout the world.
various parliaments around the world to allow for
Functions open and honest debate.
The functions of the Indian Parliamentary Group are r India maintains this contact by exchanging
as follows: delegations, goodwill missions, documents, and
r The group serves as a link between the Indian other items with foreign parliaments through the
Indian Parliamentary Group's machinery (IPG).
Parliament and other parliaments throughout the
r The IPG serves as the Indian Branch of the
world. This contact is maintained with foreign Commonwealth Parliamentary Association (CPA),
parliaments through goodwill missions, delegations, which is part of the Commonwealth of Nations, as
and other means. well as the National Group of the Inter-Parliamentary
Union (IPU).

177
 21 Parliamentary Committee

A good deal of legislative business is transacted by m Committee on subordinate Legislation

Committees of the House, known as Parliamentary m Committee on Papers laid on the table
Committees. Parliamentary Committee means a m Committee on the welfare of SC’s and ST’s
Committee which is appointed or elected by the House m Committee on Empowerment of Women
or nominated by the Speaker and which works under the m Joint Committee on Offices of Profit
direction of the Speaker and presents its report to the r Committees relating to the day-to day business of
House or to the Speaker and the Secretariat for which is the House
provided by the Lok Sabha Secretariat.
m Business Advisory Committee
Parliamentary Committees are of two kinds: m Committee on Private Members’ Bills and
m Standing Committees Resolutions
m Ad hoc Committees m Rules Committee
Standing Committees are permanent and regular m Committee on the absence of members
Committees which are constituted from time to time 6. Service Committees or Housekeeping Committees
in pursuance of the provisions of an Act of Parliament m General Purposes Committee
or Rules of Procedure and Conduct of Business in Lok
m House Committee.
Sabha. The work of these Committees is of continuous
m Library Committee
nature. Whereas ad-hoc Committee are temporary one
m Joint Committee on Salaries and Allowances of
and cease to exist on completion of the task assigned to
them. Members
The Financial Committees, DRSCs and some other Ad Hoc Committee
Committees come under the category of Standing Ad hoc Committees are Committees that are
Committees. Ad hoc Committees are appointed for a appointed for a limited time to meet specific goals.
specific purpose and they cease to exist when they finish Ad Hoc Committees are of two types:
the task assigned to them and submit a report. The m Inquiry Committee
principal Ad hoc Committees are the Select and Joint m Advisory Committee - to report on specific bills
Committees on Bills.
Financial Committees
Standing Committees
There are six standing Committees on the basis of 1. Public Accounts Committee
their function Historical Background
r Financial Committees
r The Montague-Chelmsford Reforms or Government
m Public accounts Committee
of India act 1919 prompted the creation of the
m Estimates Committee Committee on Public Accounts in 1921.
m Committee on Public undertakings r With the enactment of the Constitution on January
r Departmental related standing Committee 26, 1950, the Committee became a Parliamentary
r Committees to inquire Committee, accountable to the Speaker and led by
m Committee on petitions a non-official Chairman nominated by the Speaker
m Committee on privileges from among the Lok Sabha Members elected to the
m Ethics Committee Committee.
r Committee to scrutinize and control r Until 1966-67, the Chairman of the Committee
m Committee on government assurances belonged to the ruling party.

178
r Since 1967 a convention has developed, the bodies, and the CAG report on them.
Chairman of the Committee is selected invariably r To examine any money spent on any service
from the opposition. throughout a fiscal year in excess of the amount
Composition and tenure granted by the Lok Sabha for that purpose.
r The Committee consists of 22 members (15 from the 2. Estimates Committee
Lok Sabha and 7 from the Rajya Sabha) The Committee on Estimates, constituted for the first
r The members are elected by the Parliament every time in 1950, is a Parliamentary Committee consisting
year from amongst its members according to the of 30 members, elected every year by the Lok Sabha
principle of proportional representation by means from amongst its members. The Chairperson of the
of a single transferable vote. Committee is appointed by the Speaker from amongst
r The term of office of members is one year its members. A Minister cannot be elected as a member
r A minister cannot be elected as a member of the of the Committee and if a member after selection to the
Committee. Committee is appointed a Minister, the member ceases
r The Chairman of the Committee is appointed by the to be a Member of the Committee from the date of such
speaker from amongst the members. appointment.
Term of Office
Functions
The term of office of the Committee is one year.
The functions of the Public Accounts Committee are: Functions
r Its job is to keep a vigil on the spending and The functions of the Estimates Committee are:
performance of the government, to bring to light r to report what economies, improvements in
inefficiencies, wasteful expenditure, and indiscretion organisation, efficiency or administrative reform,
in the implementation of policies approved by consistent with the policy underlying the estimates
Parliament. may be affected;
r To make recommendations to streamline the r to suggest alternative policies in order to bring about
administration for efficient, speedy and economical efficiency and economy in administration;
implementation of policy. r to examine whether the money is well laid out within
r The function of the Committee is to examine the the limits of the policy implied in the estimates; and
audit reports of Comptroller and Auditor General of r to suggest the form in which the estimates shall be
India (CAG), annually. presented to Parliament.
r The report laid before the Parliament by the The Committee does not exercise its functions in
president relation to such Public Undertakings as are allotted to
r The CAG submits three reports, the Committee on Public Undertakings by the Rules of
Procedure and Conduct of Business of Lok Sabha or by
m Audit report on appropriation accounts
the Speaker.
m Audit report on finance accounts
3. Public Undertakings
m Audit report on public undertakings
r The Committee examines public expenditure not only
Composition and tenure:
from a legal and formal point of view but also from The Committee on Public Undertakings is a
the economic point of view to reduce inefficiency Parliamentary Committee consisting of 22 Members,
and extravagance. fifteen of whom are elected by the Lok Sabha every year
from amongst its members according to the principle
r To examine the union government's appropriation
of proportional representation by means of a single
and finance accounts, as well as any other accounts
transferable vote and seven Members to be nominated
laid before the Lok Sabha.
by Rajya Sabha for being associated with the Committee.
r To examine the accounts of state corporations,
The Chairman is appointed by the Speaker from
trading concerns and manufacturing projects and
amongst the Members of the Committee. A Minister is
the CAG reports on them.
not eligible to become a Member of the Committee. If a
r To examine the accounts of and semi-autonomous
member after his election to the Committee is appointed

179
a Minister, he ceases to be a Member of the Committee Functions of Department-related Parliamentary
from the date of such appointment. The term of the Standing Committee:
Committee does not exceed one year. r To consider the Demands for Grants of the related
Functions: Ministries/Departments and report thereon. The
The functions of the Committee on Public report shall not suggest anything of the nature of cut
Undertakings are— motions;
r To examine Bills, pertaining to the related Ministries/
(a) to examine the reports and accounts of Public
Departments, referred to the Committee by the
Undertakings.
Chairman or the Speaker, as the case may be, and
(b) to examine the reports, if any, of the Comptroller and report thereon;
Auditor General on the Public Undertakings. r To consider the annual reports of the Ministries/
(c) to examine in the context of the autonomy and Departments and report thereon; and
efficiency of the Public Undertakings whether the r To consider national basic long term policy
affairs of the Public Undertakings are being managed documents presented to the Houses, if referred to
in accordance with sound business principles and the Committee by the Chairman or the Speaker, as
prudent commercial practices. the case may be, and report thereon
(d) such other functions vested in the Committee on Significance of Department - related Parliamentary
Public Accounts and the Committee on Estimates Standing Committees
in relation to the Public Undertakings as are not r Emphasis on long-term plans, policies guiding the
covered by clauses (a), (b) and (c) above and as may working of the Executive, these Committees are
be allotted to the Committee by the Speaker from providing necessary direction, guidance and inputs
time to time. for broad policy formulations and in achievement of
NB: The Committee does not, however, examine the long-term national perspective by the Executive.
matters of major Government policy and matters of day- r It is easier to examine a topic in depth by a committee
to-day administration of the Undertakings. of 30 than by an assembly of 700.
r The work put in by the total 24 DRSCs in examining
Department-related Standing Committees (DRSCs) the Demands for Grants of all the ministries equals
30 days of functioning of the Parliament.
Composition and Tenure
r They enable input from experts and those
There are 24 Department-related Standing who may be directly affected by a policy or
Committees (DRSCs). Each of these Committees have 31 legislation.
members – 21 from Lok Sabha and 10 from Rajya Sabha. r Being outside direct public glare allows members
The 17 Departmentally Related Standing Committees to discuss issues and reach consensus without
were formally constituted with effect from April, 1993. worrying about constituency or party pressures.
After experiencing the working of the DRSC system for r Overall, secure more accountability of the executive
over a decade, the system was restructured in July, 2004 towards the legislature.
wherein the number of DRSCs was increased from 17 to
Committees to Inquire
24.
These members are to be nominated by the Speaker This Committee can be divided into three categories.
of Lok Sabha or the Chairman of Rajya Sabha respectively. Committee on Petitions:
The term of office of these Committees does not exceed r This Committee examines all the petitions referred
one year. to it and also reports on specific complaints and
These Committees are serviced either by Lok Sabha suggests remedial measures.
secretariat or the Rajya Sabha secretariat depending on r The Committee on Petitions of Lok Sabha is
who has appointed the Chairman of that Committee.
one of the oldest Committees of the House,
There are 24 standing Committees as 16 which was first constituted on 20 February,
departmental standing Committees in Lok Sabha and 8 1924 by the President of the Central Legislative
departmental standing Committees in Rajya Sabha. Assembly

180
Committee of Privilege: it by the constitution and delegated by the Parliament.
Composition Committee on Papers laid on the table: The
r This Committee consists of 15 members nominated Committee consists of 15 Members, nominated by the
by the Speaker Speaker, Lok Sabha. The Chairperson of the Committee is
Functions appointed from amongst the Members of the Committee.
The Committee shall hold office for a term not exceeding
r Its function is to examine every question involving
one year.
breach of privilege of the House or of the members
of any Committee thereof referred to it by the House Functions
or by the Speaker. r The functions of the Committee, as per Rule 305B,
r It determines with reference to the facts of each case shall be to examine all papers laid on the Table of the
whether a breach of privilege is involved and makes House by the Ministers and to report to the House
suitable recommendations in its report on:
r They examine issues relating to the violation of m whether there has been compliance of the
privilege either of the House or the members of any provisions of the Constitution, Act, rule or
Committee. They also look into specific situations regulation under which the paper has been laid;
to analyse the violation of privilege and suggest
m whether there has not been any unreasonable
recommendations accordingly.
delay in laying the paper;
Committee on Ethics:
m if there has been such delay, whether a statement
Composition: explaining the reasons for delay has been laid
r The ethics Committee in Lok Sabha has 15 MPs. In on the Table of the House and whether those
Rajya Sabha this number stands at 10. reasons are satisfactory;
Function: m whether both Hindi and English versions of the
r It formulates Code of Conduct for members and paper have been laid on the Table; and
suggest amendments to it from time to time. m whether a statement explaining the reasons for
r It also oversees moral and ethical conduct of not laying the Hindi version has been given and
Members. whether such reasons are satisfactory. [Rule
r It examines complaints related to any unethical 305B (1)]
conduct by members of Lower House of Parliament. r The Committee shall perform such other functions
r It can also initiate suo- motu investigation into in respect of the papers laid on the Table as may be
matters related to unethical conduct of a member assigned to it by the Speaker from time to time.
and make recommendations, as it may deem fit. Committee on the welfare of SC’s and ST’s:
Committee to scrutinize and control Composition:
Committee on government assurances: The r Committee on the welfare of SC’s and ST’s consists
functions of the Committee on Government Assurances of 30 members- of this 30 as many as 20 members
are to scrutinize the Assurances, promises, undertakings are from Lok Sabha and the remaining 10 are from
etc., given by the Ministers, from time to time on the floor Rajya Sabha elected by the Presiding Officer every
of the House and to report on: year from amongst its members.
m the extent to which such Assurances, promises, Function:
undertakings etc., have been implemented; and r It considers the reports of the National Commission
m where implemented, whether such for SC’s and National Commission for ST’s.
implementation has taken place within the r To examine all matters relating to the welfare of
minimum time necessary for the purpose. Scheduled Caste and Schedule Tribes.
Committee on subordinate Legislation: This Committee on Empowerment of Women:
Committee scrutinizes and reports to the legislature Composition:
whether the executive is utilizing its powers of making r Committee on the welfare of women consists of
rules and laws efficiently which have been conferred to 30 members- of this 30 ,20 members are from Lok

181
 Sabha and the remaining 10 are from Rajya Sabha Committee on Private Members’ Bills and Resolutions:
elected by the Presiding Officer every year from Composition
amongst its members.
r This Committee consists of 15 members of Lok
Function:
Sabha and the Deputy Speaker is its Chairman when
r They analyse and scrutinize the reports of the
nominated as a member of the Committee.
National Commission for Women.
r The Committee is nominated by the Speaker.
r To examine all measures taken by the Government to
secure status, dignity and equality for women in all Functions
fields. r The functions of the Committee are to allot
Joint Committee on Offices of Profit: time to Private Members’ Bills and Resolutions,
to examine Private Members’ Bills seeking to
Composition:
amend the Constitution before their introduction
r This Committee consists of 15 members- of this 15
in Lok Sabha, to examine all Private Members’
,10 members are from Lok Sabha and the remaining
5 are from Rajya Sabha elected by the Presiding Bills after they are introduced and before they
Officer every year from amongst its members. are taken up for consideration in the House
and to classify them according to their nature,
Function:
urgency and importance into two categories
r This Parliamentary Committee examines the
and also to examine such Private Members’ Bills
composition and nature of Committees and bodies,
where the legislative competence of the House is
also ensures the eligibility of people in a position in
challenged.
these organizations.
r The Committee, thus, performs the same function in
Committees relating to the day-to- relation to Private Members’ Bills and Resolutions as
day business of the house the Business Advisory Committee does in regard to
Government Business.
Business Advisory Committee: r The Committee holds office for one year.
Composition Rules Committee:
r It consists of 15 members in Lok Sabha headed by the
Composition
Speaker and 11 members in Rajya Sabha headed by
r The Committee consists of 15 members including
the ex-officio Chairperson. Members are nominated
the Chairman. The Speaker is the ex-officio
by the Speaker or Chairman in Lok Sabha and Rajya
Chairman. The Speaker nominates members to the
Sabha respectively proportional to party strength.
Committee. If the Deputy Speaker is not a member of
r Ministers can’t be members of this Committee. the Committee, he is invited to all the sittings of the
r The Committee usually meets at the start of each Committee.
Session and then as needed after that. Tenure
r The Committee makes its decision unanimous in r No fixed term of Office is laid down for the Committee.
character. It continues in Office till it is reconstituted by the
Functions Speaker.
r To recommend the amount of time to be considered Functions
for government bills and other matters that the r To consider matters of procedure and conduct of
Speaker, in agreement with the Leader of the House, business in the Lok Sabha and recommend any
may direct to be referred to the Committee. amendments or additions to the Rules as may be
r The Committee may also recommend to the deemed necessary.
Government that specific topic be brought forward r It looks after the proper conduct of the business
for consideration in the House and that time be set in the House and ensures that Rules of Procedure
aside for such discussions. are upheld. It also makes necessary amendments
r The Business Advisory Committee was first wherever necessary.
constituted in 1952. Committee on the absence of members:

182
Composition: r The library of the Parliament and assists the member
r Special Committee of Lok Sabha and consists of 15 in utilising the library services.
members. No such Committee in Rajya Sabha and all Joint Committee on Salaries and Allowances of
such matters are dealt by the House itself. Members:
Function: Composition:
r It examines the leave application of the members of r This Committee was constituted under the salary,
the Houses. Allowances and Pension of Members of Parliament
r Examines the cases of members who have been Act, 1954. It consists of 15 members, of which 10
absent for a period of 60 days or more without from Lok Sabha and 5 from Rajya Sabha
permission. Function:
Service Committees or Housekeeping Committees r This Committee looks after the salaries and
These Committees are concerned with the Provision allowances of the members of the House.
of Facilities and Services to the members.
Ad Hoc Committee
General Purposes Committee:
Inquiry Committee
Composition
An Inquiry Committee is formed from time to time to
r The Committee shall consist of the Chairman, the
look into specific incidents. For instance, the Committee
Deputy Chairman, Members of the Panel of Vice-
on Food Management in Parliament House Complex is
Chairmen, Chairmen of all Standing Parliamentary
one such Committee to look at the revision of rates at
Committees of Rajya Sabha, Leaders of recognised
the Parliamentary canteen. The rules of operation are
Parties and Groups in Rajya Sabha and such other
mentioned in the Rules of Procedure of the Parliament.
Members as may be nominated by the Chairman.
The Chairman shall be the ex-officio Chairman of the Examples of some of the Inquiry Committees are
Committee. mentioned below:
r Committee on Food Management in Parliament
r The Committee nominated under Sub-rule(I) shall
hold office until a new Committee is nominated. House Complex
r Committee on Installation of Portraits/Statues of
r Casual vacancies in the Committee shall be filled by
the Chairman. National leaders and Parliamentarians
r Committee on Provision of Computers to Members
Function
of Lok Sabha
r The functions of the Committee are to work towards
r Joint Committee on Security in Parliament House
the affairs, and matters that are referred from time
Complex
to time by the Speaker of the House.
r Railway Convention Committee
r This Committee takes up issues that do not fall under
r Committee to Inquiry into the Improper Conduct of a
the purview of any other Parliamentary Committee.
Member
House Committee:
r Joint Committee on Maintenance of Heritage
Composition: Character and Development of Parliament House
r Both houses have their respective House Committees. Complex
It consists of 12 members.
Advisory Committee
Function:
These Committees report on particular bills. Select
r The facilities that are given to the members of the
or Joint Committees on bills are included in these
House, for instance, medical aid, food, etc. are looked
Committees. They follow a procedure distinct from the
after by this Committee.
Inquiry Committees, as the procedure to be followed
Library Committee: by them is laid down in the Rules of Procedure and the
Composition: Directions provided by the speaker/Chairman. Whenever
r Consists of 9 members, of which 6 are from Lok a particular Bill is introduced in any House, the House
Sabha and 3 from Rajya Sabha refers it to the Select Committee to study the Bill clause
Function: by clause.

183
 Advisory Committees are formed to report on r The maximum membership of a Committee is 30 and
specific bills referred to it. For instance, the Joint the minimum is 10.
Committee on the Personal Data Protection Bill, 2019 is Functions
one such Advisory Committee to analyse the draft bill. r These Committees are attached to various ministries/
The Rules of procedure and functioning of these departments of the Central Government.
Committees are determined by the Speaker of Lok Sabha r The Minister/Minister of State in charge of the
or chairperson of Rajya Sabha. Ministry concerned acts as the Chairman of the
Other Important Features consultative Committee of that ministry.
Composition: It consists of members nominated r These provide a forum for informal discussions
by the Speaker and Chairman in Lok Sabha and Rajya between the ministers and the members of Parliament
Sabha respectively. The exact number of members is on policies and programmes of the government and
determined by the Speaker and Chairman. the manner of their implementation.
Chairman: The Chairman of the Committee is r The Consultative Committees are not Parliamentary
appointed by the Speaker or Chairman among its Committees.
members. The Committees submit the report to the A Parliamentary Committee means a Committee that:
respective ministries and disintegrate. m Is appointed or elected by the House or
Consultative Committees nominated by the Speaker or Chairman.
m Works under the direction of the Speaker or
Formation Chairman.
r These Committees are constituted by the Ministry of m Presents its report to the House or to the Speaker
Parliamentary Affairs. or Chairman.
r These are normally constituted after the new Lok m Has a secretariat provided by the Lok Sabha or
Sabha is constituted. Rajya Sabha.
r This implies that these Committees stand dissolved m Parliamentary Committees draw their authority
upon dissolution of every Lok Sabha and thus, are from Article 105 (on privileges of Parliament
reconstituted upon constitution of each Lok Sabha. members) and Article 118 (on Parliament’s
Composition authority to make rules for regulating its
r The guidelines regarding the composition, functions procedure and conduct of business).
and procedures of these Committees are formulated Parliamentary Committees are an essential
by the Ministry of Parliamentary Affairs. component of the Indian Parliamentary system. They
r The same Ministry also makes arrangements for provide better analysis and scrutiny of important issues
holding their meetings both during the session and These Parliamentary Committees play an important role
the intersession period of Parliament. in influencing the policies of the government and also act
r These consist of members of both the Houses of as an interface between the government and the people.
Parliament. Most importantly, it makes the executive accountable to
r However, the membership of these Committees is
the legislature
voluntary and is left to the choice of the members
and the leaders of their parties.

184
 22 Parliamentary Forums

The Parliamentary Forums have been constituted forum) including 21 members from the Lok Sabha
with the objective of equipping members with and 10 members from the Rajya Sabha.
information and knowledge on specific issues of national r 15th Lok Sabha had 8 forums, which are described
concern and in assisting them to adopt a result-oriented below:
approach towards related issues. These forums provide
Functions of the Forums
a platform to members to have interaction with the
Ministers concerned, experts and key officials from the 1. Parliamentary Forum on Water Conservation and
nodal Ministries. Management
The Objectives behind the Constitution of The functions of the Parliamentary Forum on Water
Parliamentary Forums are: Conservation and Management are:
r To provide a platform to the members for interaction r To identify problems relating to water and make
and discussion with the ministers concerned, experts recommendations for consideration and taking
and key officials from the nodal ministries on critical appropriate action by the government/organizations
issues with a result-oriented approach for speeding concerned
up the implementation process. r To identify ways of involving members of parliament

r To sensitize the members about the key areas of

in conservation and augmentation of water resources
in their respective states/constituencies
concern and also about the ground level situation
r To organize seminars/workshops to create
and equip them with the latest information,
awareness of conservation and efficient management
knowledge, technical know-how and valuable inputs
of water.
from experts both from the country and abroad for
enabling them to raise these issues effectively on 2. Parliamentary Forum on Children
the floor of the House and in meeting of various The functions of the Parliamentary Forum on
parliamentary committees. Children are:
r To prepare a data base on critical issues coming r To enhance awareness and attention of
under the ambit of each parliamentary forum after parliamentarians towards critical issues affecting
culling out relevant information from different children’s well being
sources such as the ministries concerned, United r To provide a platform to parliamentarians to
Nations, NGOs, internet, newspapers etc and exchange ideas, views, experiences, expertise,
circulation thereof to the members so that they can practices in relation to children through workshops,
meaningfully participate in the discussions held in seminars, orientation programmes etc.
r To provide parliamentarians an interface with
the meeting of the forums.
the civil society for highlighting children’s issues
Composition of Parliamentary Forums:
including, inter alia, the voluntary sector, media and
r The Speaker is the ex-officio President of all the corporate sector
parliamentary forums except the Parliamentary r To enable parliamentarians to interact with
Forum on Population and Public Health where the specialized UN agencies and other comparable
chairman of Rajya Sabha is the ex-officio President multilateral agencies on expert reports, studies,
and the Speaker of the Lok Sabha is ex-officio Co- news and trend analysis etc. Worldwide.
President. 3. Parliamentary Forum on Youth
r Each forum consists of not more than 31 members
The functions of the Parliamentary Forum on Youth
(excluding the President and vice Presidents of the are:

185
r To have focused deliberations on strategies to warming and climate change.
leverage human capital among the youth for r To identify ways of involving members of parliament
accelerating development initiatives. to spread awareness to prevent global warming and
r To build greater awareness amongst public leaders climate change.
and at the grass-root level on the potential of youth 6. Parliamentary Forum on Disaster Management
power for effecting socio-economic change.
The functions of the forum are:
r To interact on regular basis with youth representatives
r To identify problems relating to disaster management
and leaders in order to better appreciate their hopes,
aspirations, concerns and problems. and make recommendations for consideration and
appropriate action by the government/organizations
r To consider ways for improving parliament’s
concerned to reduce the effects of disasters
outreach to different sections of youth, in order to
r To identify ways of involving members of
reinforce their faith and commitment in democratic
institutions and encourage their active participations parliament to interact with specialist of national
r To hold consultations with experts, national and
and international bodies working on disaster
international academicians and government management with increased effort to develop new
agencies concerned redesigning of public policy in technologies to mitigate the effects of disasters
the matter of youth employment. r To organize seminars/workshops to create

4. Parliamentary Forum on Population and Public awareness about the causes and effects of disasters
Health 7. Parliamentary Forum on Artisans and Craftspeople
The functions of the forum are: The functions of the forum are:
r To have focused deliberations on strategies relating r To further enhance awareness and attention of
to population stabilization parliamentarians towards critical issues affecting
r To discuss and prepare strategies on issues artisans and craftspeople
concerning public health r To provide a platform to parliamentarians to exchange
r To build greater awareness in all sections of the ideas, views, experiences, expertise, practices
society, particularly at the grass-root level, regarding in relation to artisans and craftspeople through
population control and public health workshops, seminars, orientation programmes etc.
r To hold comprehensive dialogue and discussion r To enable parliamentarians to interact with
in the matter of population and public health with representatives of various union ministries,
experts at the national and international levels government organizations like Khadi Village
and to have interaction with the multilateral Industries Commission (KVIC), Coir Board, and
organizations like WHO, United Nations Population the Council for Advancement of People’s Actions
Fund, academicians and government agencies. and Rural Technology (CAPART) and other related
5. Parliamentary Forum on Global Warming and organizations/bodies
Climate Change r To hold comprehensive dialogue and discussion
The functions of the forum are: on the matters relating to preservation of art and
r To identify problems relating to global warming traditional craft and the promotion of artisans and
and climate change and make recommendations craftspeople with organizations at the national and
for consideration and appropriate action by the international levels
government/organizations concerned to reduce 8. Parliamentary Forum on Millennium Development
global warming. Goals
r To identify ways of involving members of The functions of the forum are:
parliament to interact with specialist of national and r To review and enhance awareness and attention
international bodies working on to mitigate global of parliamentarians towards critical issues which
warming and climate change by developing new have bearing on achievement of targets set under
technologies. Millennium Development Goals by 2015
r To organize seminars/workshops to create r To provide a platform to parliamentarians to
awareness about the causes and effects of global exchange ideas, views, experiences, expertise,

186
 practices in relation to implementation of Millennium r To enable parliamentarians to interact with
Development Goals specialized UN agencies and other comparable
r To provide parliamentarians an interface with multilateral agencies, expert report, studies, news
the civil society for highlighting issues related and trend analysis etc.
Millennium Development Goals.

187
 23 Governor

Introduction time President deems it fit and he can be removed

Part VI of the Constitution of India deals with the State by him at any time.
executive. The State executive consists of the Governor, r The Governor also has the power to resign from his
the Chief Minister, the Council of Ministers and the office during his term. He can resign by addressing
advocate-general of the State. In India, the President his intention to do so in writing to the President.
and Governor are regarded as a titular head of the State. r Unless the Governor resigns from his office or
Appointment of a Governor has been specified in article the President removes him, the normal term of a
153 of the Indian Constitution. Therefore, the Governor Governor is provided for a period of 5 years from the
has been made just a nominal head at the State level; the date of him entering his office. (Article 156 (3)
real official comprises the Council of Ministers headed by
the Chief Minister. Qualification
For a person to become a Governor he has to fulfil some
Appointment of Governors requirements. According to Article 157, a person is
According to Article 155, the Governor is appointed by eligible for appointment as the Governor if:
the President under his hand and seal. Thus, in case
of Governor, no elections are held and he is selected r He is a citizen of India
directly, unlike the President who is chosen by election, r He has completed the age of 35 years
and a person can be appointed as the Governor by the Conventions that have developed while appointing a
authority of the President. Governor
Reason for adopting this system of appointment of r He should be not from a State where he is appointed
Governor: r While appointing the Governor, the President is
r Direction elections would be incompatible with the required to consult the Chief Minister of the State
Parliamentary system established in the States. concerned
r Direction election could create conflicts. Conditions of the Governor’s office
r Direction election would be a costly affair. Some conditions are also attached to the office of
r An elected Governor could be a non-neutral person. Governor which have to be observed. These conditions
r The system of Presidential nomination enables the have been provided under Article 158 of the Constitution
centre to maintain its control over the States. which are:
Keeping in mind, the above-mentioned reasons, the
r He should not be member of either house of
appointment form of appointing the Governor was taken
Parliament or a house of the State Legistature. If any
(This model is followed in Canada)
such person is elected as Governor, he is deemed to
The Supreme Court in 1979 said that the office
have vacated his seat in that house on the date which
of Governor is not an employment under the central
he enters upon his office
government. It is an independent constitutional office
and is not under the control of or subordinate to the r He should not hold an office of profit
central government. r He is entitled, without payment of rent, to the use of
Term of Office of Governor his official residence
The provisions for the term of the Office of the Governor r He is entitled to such emoluments, allowances and
have been provided in Article 156 of the Constitution. privileges as may be determined by Parliament
Under this article the following terms are provided: r His emoluments and allowances cannot be
diminished during his term of office
r The Governor holds his office at the pleasure of the
r If he is appointed as the Governor of two or more
President. It means that a Governor serves till the
States, his salary and allowances payable to him

188
 are shared by the States in such proportion as matters and portfolios of the legislature of the State
determined by the President for its allotment among Ministers.
Term of Governor’s office r He has been entitled with the privilege to look for
data from the Chief Minister, and the Chief Minister
r He holds the office for a term of five years
of the State must notify and answer him regarding
r However, his term is subjected to the pleasure of the all choices of his service and can likewise require the
President Chief Minister to present any individual Minister’s
r The Constitution has not laid down any grounds for choice for the thought of the Council of Ministers.
the removal of the Governor by President r The Governor may/may not generate rules for
r A Governor can also hold office beyond his term until simplification of transactions of the business of the
his successor assumes charge State government.
Oath of the Governor r Chief Ministers and other Ministers of the States are
The Governor on being appointed has to undertake an appointed by the Governor himself.
oath before entering the Office. The oath of the Governor r It is the responsibility of the Governor to appoint
is observed under Article 159 of the Constitution. Tribal Welfare Minister in the following States of:
The oath is adMinistered by the Chief Justice of the m Chhattisgarh
High Court of the concerned State and in case the Chief m Jharkhand
Justice is not present, then the senior most judge of the m Madhya Pradesh
High Court adMinisters the oath and he/she addresses m Odisha
his resignation to President of India. r The Governor appoints the advocate general of
Immunity States and determines their remuneration.
r He enjoys personal immunity from legal liability for r He appoints the people for the following posts:
his official acts m State Election Commissioner
r During his term of office, he is immune from any m Chairman and Members of the State Public
criminal proceedings, even in respect of his personal Service Commission
acts. He cannot be arrested or imprisoned m Vice-Chancellors of the universities in the State
r However, after giving two months’ notice civil r The Governor seeks information from the State
proceedings can be instituted against him during his government.
term of office in respect of his personal acts r A constitutional emergency in the State is
Powers of Governor recommended by the Governor to the President.
The Governor by being the Executive head of the State r The Governor enjoys extensive executive powers
has been given many powers which can be broadly as an agent of the President during the time of
categorized into several categories. The powers of the President’s rule in the State.
Governor are similar to those of the President. These Judicial Powers
categories of the powers of Governor are as follows: The Governor is also provided with some judicial
Executive powers powers under the Constitution. Under Article 161 of the
Constitution, the Governor has been granted this power.
Article 154 of the Indian Constitution talks about the
executive power of the State being vested in the hands r Just like the President, the Governor also has the
of the Governor which shall be exercised by him either power to grant pardon. By allowing the request of
directly or indirectly, through officers’ subordinate to pardon, the Governor can allow a person to be free
him in accordance with this Constitution. from any punishment even if the Court finds him
guilty of the offence. The power to grant pardon
The following comes under his executive powers:
is discretionary and is not a right which can be
r Every executive action that the State government exercised by every offender and thus the Governor
takes, is to be taken in the name of the Governor of has the right to decide in which cases he wants to
that State. grant pardon to a person and in which cases he does
r The Governor specifies the rules and instructions for not want to grant such pardon.
how an order that has been taken up in his name is r He also has the power to reprieve, commute, respite
to be authenticated. or remit the punishment of a person. Thus, in many
r The Governor makes rules for the exchange of the

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 cases, the Governor can overturn the decision of r The Governor constitutes the State Finance
the High Court but this power has to be exercised Commission and also beholds the authority to make
wisely because it can lead to a conflict between the advances out of the Contingency Fund of the State in
Executive and Judiciary. situations leading to unforeseen circumstances.
r In consultation with the State High Court, Governor r All bills passed by the Legislative Assembly become
looks after the appointments, postings, and a law, only after the approval of the Governor of the
promotions of the district judges. State. In case it is not a money bill, the Governor
r In consultation with the State high court and State upholds the right to send it back to the Legislative
public service commission, the Governor also Assembly for reconsidering it. But if the Legislative
appoints persons to the various judicial services. Assembly sends back the Bill to the Governor again,
he is bound to sign it.
Legislative Powers
r The Governor has full competency to promulgate
Even though the Governor is part of the Executive branch
an ordinance when the Legislative Assembly is not
in the State, he has been given certain Legislative powers
in session, and a law is necessitated to be brought
as well. These powers are as follows: into effect immediately. However, the ordinance
r The Governor of a State is said to be a part of the State is presented in the State Legistature in the next
Legistature, and so he has the right to address and session, and remains operative for a total number of
send messages, summon, defer and even dissolve six weeks, unless it is approved by the legislature.
the State Legistature, just like the President has, in r If the speaker and the deputy speaker of the
adherence to the Parliament. Although these are legislative assembly, both are absent, then Governor
formal powers, in reality, the Governor is guided by is empowered to appoint a person for the purpose of
the Chief Minister along with his Council of Ministers presiding over the session.
before making and executing such decisions. r Governor appoints ⅙ of the total members of the
r The Governor inaugurates the State Legistature, legislative Council from the fields of:
in the first session every year, and addresses the m Literature
Assembly, emphasizing on the new administrative m Science
policies of the ruling government.
m Art
r He may adjourn the Houses or either House and
m Cooperative Movement
break up the Legislative Assembly. For instance,
on12th of March, 1967, the Governor of Punjab, m Social Service
Dr D.C. Pavate, had prorogued the State Legislative r The Governor has the right to consult Election
Assembly (Legislative Assembly) which was Commission for the disqualification of members.
deferred by the Speaker for two months on March r With respect to the bill introduced in the State
7, 1967, preceding the House could think about the Legistature, the Governor can give assent, withhold
Budget. This was an initial play towards an answer his assent, Return the bill or even reserve the bill for
of established emergency that captivated the State. the President’s consideration.
The disintegration of the Assembly has been finished Financial Powers
by the Governors numerous periods. The Governor enjoys the following financial powers
r The Governor can address either or both of the under the Constitution:
Houses, amassed together at the beginning of the first
r The demand for a grant can be made by the State
session after each General Election and furthermore,
only on the recommendation of the Governor.
at the initiation of the main session every year.
r The Governor can ask the State Legistature
r He is engaged in saving specific Bills for the consent
for additional grants under Article 205 of the
of the President like the Bills which accommodate
Constitution.
obligatory procurement of the property or
r To introduce a Money bill in the State Assembly, the
diminishing the forces of the High Court has to be
prior recommendation of the Governor is necessary
saved for President’s assent.
and, in its absence, no money bill can be presented in
r The Governor puts forth before the State Legistature,
the Assembly.
the annual financial Statement and also makes
r The Contingency Fund of the State can be used by the
demands for grants and recommendation of ‘Money
Governor at his disposal. He can use the fund to meet
Bills’.

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 any unforeseen expenditure if the State Legistature President, no such provision has been made with
approves it. respect to Governor so far
r The recommendations of the Governor are essential Provisions in Article 163
for making amendments regarding financial matters. r There shall be a Council of Ministers, led by the Chief
r The Governor has the authority to ensure that the Minister, to assist and advise the Governor in the
annual budget is laid before the House(s) and is also exercise of his functions, except where he is required
passed by it. to exercise all or any of them at his discretion.
Emergency powers r If there is any doubt as to whether a matter is within
r While the President and the Governor have the Governor's discretion or not, the Governor's
been provided with similar powers under the decision shall be final, and the validity of anything
Constitution, a Governor does not have the power to done by the Governor shall not be called into
declare emergency in a State because this power is question on the grounds that he ought or ought not
to have acted in his discretion.
only vested in the President.
r The advice given to the Governor by Ministers shall
r But the Governor still plays a great role in the
not be investigated in any court.
proclamation of emergency in a State. Under
The Governor has constitutional discretions in the
Article 356 the Governor has the power to send a
following cases:
report to the President when he is satisfied that
r Can dissolve the Legislative Assembly if the Chief
the Constitutional machinery in the State has failed
Minister advices him to do following a vote of no
and the State Government can no longer function confidence. Following which, it is up to the Governor
according to the provisions of the Constitution. what he/ she would like to do.
r Thus, the Governor plays an advisory role in the r Can recommend the President about the failure of
proclamation of Emergency in a State and in many the constitutional machinery in the State.
cases even though President’s rule is imposed in the r Can reserve a bill passed by the State Legistature for
States, it is the Governor who assumes the function President ’s assent.
of the State Government by working as an agent of r Can appoint anybody as Chief Minister. If there is
the President. no political party with a clear-cut majority in the
assembly.
Ordinance making power
r Determines the amount payable by the Government
Under Article 213, the Governor can issue an ordinance of Assam, Meghalaya, Tripura and Mizoram to
if the circumstances compel him to do so, when either an autonomous Tribal District Council as royalty
house of the Legislative Assembly are not in session. accruing from licenses for mineral exploration.
However, there are two circumstances under which the r Can seek information from the Chief Minister with
Governor cannot issue an ordinance. They are: regard to the administrative and legislative matters
r If the ordinance has certain provisions which the of the State.
Governor would have reserved for the President in r Can refuse to sign to an ordinary bill passed by the
case it was a Bill. State Legistature.
r If the State Legistature has an act with similar Special Responsibilities of Governor
provisions and the same would be declared invalid The constitution has also laid down certain special powers
without the President’s assent. and functions possessed by the Governor in particular
Constitutional position of the Governor differs from States which have to be exercised in consultation with
the President in the following ways: the Council of Ministers in State. These include:
r While the constitution envisages the possibility r Establishment of two different development boards
of the Governor (Art 163) acting at times in his for Vidarbha and Marathwada in the State of
discretion, no such possibility has been envisaging Maharashtra (Article 371).
for the President r Establishment of two separate development boards
r After the 42nd constitutional amendment act, for Saurashtra and Kutch in Gujarat (Article 371).
Ministerial advice was made binding on the r The Governor of Nagaland has a distinctive

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 responsibility with regard to the law and order in An ordinance issued by him is An ordinance issued by him is
the State of Nagaland for so long as in his opinion subject to the same restrictions subject to the same restrictions
internal disturbances and disputes occurring in the as a Parliamentary act. This as a State Legistature act. This
Naga Hills-Tuensang Area immediately before the means that any ordinance he means that any ordinance he
issues will be null and void to issues will be null and void
formation of that State has been continued. (Article the extent that it makes any to the extent that it makes
371A) provision that Parliament any provision that the State
r Special powers with respect to administration of cannot make. Legistature cannot make.
tribal areas in the State of Assam (Article 371B). He has the right to withdraw an He has the right to withdraw an
r Special powers with respect to Manipur in relation ordinance at any time. ordinance at any time.
to administration of hill areas in Manipur (Article His ordinance -making authority His ordinance-making authority
371C) is not discretionary. This means is not discretionary. This
that he can only issue or means that he can only issue or
r For peace and wellbeing and to ensure social and withdraw an ordinance with the withdraw an ordinance on the
economic advancement of the different sections of advice of the prime Minister's advice of the Council, which is
the population in Sikkim (371F). Council of Ministers. chaired by the Chief Minister.
r With respect to law and order in the State of When Parliament reconvenes, an When the Legislative Assembly
ordinance issued by him should or both Houses of the State
Arunachal Pradesh (371H). be laid before both Houses. Legistature (in the case of
Comparison of Ordinance Issuing Power of President a bicameral legislature)
reconvene, an ordinance issued
and Governor by him must be laid before the
President Governor Legislative Assembly or both
Houses of the State Legistature
He may issue an ordinance only He can only promulgate
(in the case of a bicameral
when both Houses of Parliament an ordinance when the
legislature).
are not in session, or when one of Legislative Assembly is not
in session (in the case of a An ordinance issued by An ordinance issued by him
him becomes ineffective six becomes ineffective six weeks
the two Houses is not in session. unicameral legislature) or weeks after the reassembly of after the State Legistature
The second provision implies when both Houses of the State Parliament. It may be terminated reconvenes. It may be
that an ordinance can be Legistature are not in session earlier than the six-week period terminated earlier than the six-
promulgated by the President (in the case of a bicameral if both Houses of Parliament week period if the Legislative
even when only one House is in legislature) or when either of pass resolutions opposing it. Assembly passes a resolution
session, because a law has to be the two Houses of the State opposing it and the legislative
passed by both Houses, not just Legistature is not in session. The Council agrees (in case of a
one. final provision implies that an bicameral legislature).
ordinance can be promulgated
He doesn't need any instructions He cannot issue an ordinance
by the Governor even if only one
to make an ordinance. without the President's
House (in the case of a bicameral
instructions in the following
legislature) is in session, three cases:
because a law can be passed by
both Houses, not just one. • If a bill containing the same
provisions would have
He can only issue an He can only issue an required the President's
ordinance if he is convinced ordinance if he is convinced prior approval before
that circumstances exist that that circumstances exist that being introduced in the
necessitate immediate action on necessitate immediate action on State Legistature.
his part. his part. • If he thought it necessary
His ordinance-making authority His ordinance-making authority to reserve a bill with the
is coextensive with Parliament's is coextensive with the State same provisions for the
legislative authority. This means Legistature's legislative President's consideration.
that he can only issue ordinances authority. This means that • If a State Legistature
on subjects that the Parliament he can only issue ordinances act containing the same
can legislate on. on subjects that the State provisions would have
Legistature can legislate on. been invalid if it had not
received the President's
An ordinance issued by him has An ordinance issued by him has assent.
the same legal force and effect as the same legal force and effect as
a Parliamentary act. a State Legistature act. Concerns related to office of Governor
r Appointment of Governor: Article 155 says that
Governor should be appointed (not elected) from
amongst persons of high status with eminence in

192
 public. The elected government at the State is not new government comes to power at Centre.
even consulted while making appointment of the Major recommendations to improve Governor’s office
Governors. Further successive governments have in federal polity of India:
reduced this important constitutional office to a r Appointment of Chief Minister during hung
sinecure and resting place for loyal and retired /
assembly: Recent Karnataka case, 2018: Supreme
about to retired / about to retire politicians apart
Court observed that Governor’s discretion cannot be
from docile bureaucrats.
arbitrary or fanciful.
r Appointment and dismissal of the Chief Minister:
r SR Bommai vs. Union of India, 1994: The case
Governor appoints Chief Minister, other Ministers,
was about the limits to the Governor’s powers in
Advocate General, Chairmen and members of the
State Public Service Commission in the State. After dismissing a State government under Article 356
elections in the State, there is a convention to invite of the Constitution. The floor of the Assembly is
the largest party to form government in the State. the only forum that should test the majority of
This convention has been flouted many times at the the government of the day, and not the subjective
whim of the Governor. E.g.: the recent episode of opinion of the Governor.
Karnataka after 2018 hung assembly elections. r Rameshwar Prasad Case, 2006: Supreme Court
r Reservation of Bills for Consideration of President: was called upon to pronounce its verdict on the
As per Article 200 of the Constitution, the Governor validity of the proclamation of President ’s Rule and
can reserve certain types of bills passed by the the dissolution of the Assembly in Bihar in 2005. The
State Legistature for the President ’s consideration. SC held that the Governor could not decide based on
The President can either give assent to it or ask the his subjective assessments.
Governor to send it back for the State Legistature to r On removal of Governor: BP Singhal vs Union of
reconsider it, along with his comments. The chief India: The Supreme Court ruled that even though
intent of this provision is for the centre to keep a the President could dismiss a Governor without
tab on the legislation in the interest of the nation. having to provide reasons for doing so, this power
However, the central government, through the office could not be exercised in an “arbitrary, capricious or
of the Governor, has used this provision to serve unreasonable manner”
partisan interests. r Sarkaria Commission Report (1988): Important
r Misuse of Article 356: Article 356 is the most recommendations- Governor should be a detached
controversial article of the Constitution. It provides figure without intense political links or should not
have taken part in politics in recent past, Governors
for State emergency or President ’s rule in State if the
must not be removed before completion of their
President, on receipt of report from the Governor of
five-year tenure, except in rare and compelling
a State or otherwise, is satisfied that a situation has
circumstances
arisen in which the Government of the State cannot
be carried on in accordance with the provisions of r Venkatachaliah Commission (2002): Important
the Constitution. The duration of such emergency recommendations: Governor’s appointment should
be entrusted to a committee comprising the prime
is six months and it can be extended further. In the
Minister, the home Minister, the speaker of the Lok
Constituent Assembly, Ambedkar had made it clear
Sabha and the Chief Minister of the concerned State,
that the Article 356 would be applied as a last resort.
if Governor to be removed before completion of
He also hoped that” such articles will never be called
term, the central government should do so only after
into operation and that they would remain a dead
consultation with the Chief Minister.
letter.”
r Punchhi Commission (2010): The phrase “during
r Removal of the Governor: Article 156 says that the the pleasure of the President” should be deleted
Governor will hold office during the pleasure of the from the Constitution; Governor should be removed
President for five years. President works on aid and only by a resolution of the State Legistature.
advice of the Council of Ministers under Article 74. The Governor of a State isn’t just a figurehead. He can
In effect it is the central government that appoints practice a few powers in his prudence, and free of the
and removes the Governors. The Governor has no suggestions made by the Chief Minister. Governor is
security of tenure and no fixed term of office. E.g.: The anything but a pointless height. The Governor goes
mass changing of the Governors of State whenever a

193
about as the connection between the Union and the The Governor relies on his prudence in informing the
State. He goes about as the operator of the President in President for the declaration concerning an emergency
the country both when he goes nearly as the nominal in the State. He can make a decision concerning whether
and constitutional head of the State in typical occasions there has been a breakdown of constitutional machinery
just as when he goes about as the whole head of the State in the State or not. Thus, the Governor plays an important
amid the time of President’s rule operates in the State. in the governance of a State in the country.

194
 24 Chief Minister

Introduction Minister.
As a real executive authority, the Chief Minister is called r According to the Constitution, the Chief Minister
the head of the government. He is assisted by his Council may be a member of any of the two Houses of a State
of Ministers who are a part of State executive along with Legistature.
Governor and Advocate-General of State. Similar to Prime r Usually, Chief Ministers have been selected from
Minister who is the head of the government at the centre, the Lower House (legislative assembly), but, on a
the Chief Minister is the head of the government at the number of occasions, a member of the Upper House
State level. (legislative Council) has also been appointed as Chief
Appointment Of Chief Minister Minister.
The Constitution does not contain any specific procedure r CM occupies position at the Governor’s pleasure but
for the selection and appointment of the Chief Minister. the Governor can’t dismiss him till he has a majority
Article 164 only specifies that Chief Minister shall be in the house
appointed by the Governor. Oath:
r This does not imply that the Governor is free to The Governor adMinisters to him the oaths of office and
appoint any one as the Chief Minister. In accordance secrecy.
with the conventions of the Parliamentary system of Term:
government, the Governor has to appoint the leader
r Not fixed and he holds office during the pleasure of
of the majority party in the State legislative assembly
as the Chief Minister. the Governor.
r But, when no party has a clear majority in the r However, this does not mean that the Governor can
assembly, then the Governor may exercise his dismiss him at any time.
personal discretion in the selection and appointment r He cannot be dismissed by the Governor as long
of the Chief Minister The Governor appoints the as he enjoys the majority support in the legislative
leader of the largest party of the house or leader assembly.
chosen by the largest coalition to become the Chief r But, if he loses the confidence of the assembly, he
Minister. must resign or the Governor can dismiss him.
r The Constitution does not require that a person must Salary and Allowances:
prove his majority in the legislative assembly before Determined by the State Legistature.
he is appointed as the Chief Minister. He may ask a
leader to become Chief Minister and then prove his Powers and Functions of Chief Minister
majority on floor of the house within a reasonable
period. The powers and functions of the Chief Minister can be
r The Governor may have to exercise his individual studied under the following heads:
judgement in the selection and appointed of the In Relation to Council of Ministers
Chief Minister when the Chief Minister in office dies
The Chief Minister enjoys the following powers as head
suddenly and there is no obvious successor.
of the State Council of Ministers:
r However, on the death of a Chief Minister, the ruling
party usually elects a new leader and the Governor r The Governor appoints only those persons as
has no choice but to appoint him as Chief Minister. Ministers who are recommended by the Chief
r A person who is not a member of the State Legistature Minister.
can be appointed as Chief Minister for six months, r He allocates and reshuffles the portfolios among
within which time, he should be elected to the State Ministers.
Legistature, failing which he ceases to be the Chief r He can ask a Minister to resign or advise the Governor

195
 to dismiss him in case of difference of opinion. m State Election Commissioner and so on.
r He presides over the meetings of the Council of In Relation to State Legistature
Ministers and influences its decisions. The Chief Minister enjoys the following powers as the
r He guides, directs, controls and coordinates the leader of the House:
activities of all the Ministers. r He advises the Governor with regard to the
r He can bring about the collapse of the Council of summoning and proroguing of the sessions of the
Ministers by resigning from office. Since the Chief State Legistature.
Minister is the head of the Council of Ministers, his
r He can recommend the dissolution of the legislative
resignation or death automatically dissolves the
Council of Ministers. assembly to the Governor at any time.
r The resignation or death of any other Minister, on r He announces the government policies on the floor
the other hand, merely creates a vacancy, which the of the house.
Chief Minister may or may not like to fill. Other Powers and Functions
In Relation to the Governor In addition, the Chief Minister also performs the following
The Chief Minister enjoys the following powers in functions:
relation to the Governor: r He is the chairman of the State Planning Board.
r He is the principal channel of communication r He acts as a vice-chairman of the concerned zonal
between the Governor and the Council of Ministers. Council by rotation, holding office for a period of one
It is the duty of the Chief Minister: year at a time.
r To communicate to the Governor of the State all r He is a member of the Inter-State Council and the
decisions of the Council of Ministers relating to the Governing Council of NITI Aayog, both headed by the
administration of the affairs the State and proposals prime Minister.
for legislation; r He is the chief spokesman of the State government.
r To furnish such information relating to the
r He is the crisis manager-in-chief at the political level
administration of the affairs of the State and
during emergencies.
proposals for legislation as the Governor may call
for; and r As a leader of the State, he meets various sections
r if the Governor so requires, to submit for the of the people and receives memoranda from them
consideration of the Council of Ministers any matter regarding their problems, and so on.
on which a decision has been taken by a Minister but r He is the political head of the services.
which has not been considered by the Council Thus, he plays a very significant and highly crucial role
r He advises the Governor with regard to the in the State administration. However, the discretionary
appointment of important officials like powers enjoyed by the Governor reduces to some extent
m Advocate General the power, authority, influence, prestige and role of the
m Chairman and members of the State Public Chief Minister in the State administration.
Service Commission,

196
 25 Council of Ministers

Introduction the Governor’s discretion or not, decision of the

The States, or the other half of Indian federalism, are Governor shall be final, and the validity of anything
addressed within Part VI of the Constitution. Articles done by the Governor shall not be called in question
152-237 deal with various State-related provisions. on the ground that he ought or ought not to have
It encompasses the State's executive, legislative, and acted in his discretion.
judicial bodies. Articles spanning from 163 to 177 in Part r The advice tendered by Ministers to the Governor
VI broadly deals with State Council of Minister. shall not be inquired into in any court.
Article 163 deals with the status of the Council of Article 164: Other Provisions as to Ministers
Ministers while Article 164 deals with the appointment, r The Chief Minister shall be appointed by the
tenure, responsibility, qualifications, oath and salaries Governor and the other Ministers shall be appointed
and allowances of the Ministers Article 166 deals with by the Governor on the advice of the Chief Minister.
the Conduct of Business of the Government of a State. r The Ministers shall hold office during the pleasure of
Qualifications the Governor.
To be a Minister of a State Council, one should be a r The Council of Ministers shall be collectively
member of the State Legistature, if he is not a member of responsible to the State Legislative Assembly.
State Legistature while becoming a member of the State r A Minister who is not a member of the State
Legistature, he has to become one within the period of Legistature for any period of six consecutive months
six months from the date of entering the office. shall cease to be a Minister.
Further, the qualifications needed to be a member of In the States of Chhattisgarh, Jharkhand, Madhya Pradesh
the State Legistature are: and Odisha, there shall be a Minister in charge of tribal
(a) He must be a citizen of India. welfare who may in addition be in charge of the welfare
(b) He must bear true faith and allegiance to the of the Scheduled Castes and backward classes or any
Constitution of India. other work. The State of Bihar was excluded from this
provision by the 94th Amendment Act of 2006.
(c) He must be not less than 30 years of age in the case
of the legislative Council. Article 166: Conduct of Business of the Government of
(d) He must not be less than 25 years of age in the case a State
of the legislative assembly. r All executive action of the Government of a State
Appointment of Ministers shall be expressed to be taken in the name of the
r The Chief Minister is appointed by the Governor. Governor.
r The other Ministers are appointed by the Governor r Orders and other instruments made and executed in
on the advice of the Chief Minister, implies that the the name of the Governor shall be authenticated in
Governor can appoint only those persons as Ministers such manner as may be specified in rules to be made
who are recommended by the Chief Minister. by the Governor.
r Moreover, the validity of an order or instrument
Important articles regarding Council of Ministers which is so authenticated shall not be called in
question on the ground that it is not an order or
Article 163: Conduct of Business of the Government of
instrument made or executed by the Governor.
a State
r The Governor shall make rules for the more
r There shall be a Council of Ministers with the Chief
convenient transaction of the business of the
Minister as the head to aid and advise the Governor
government of the State, and for the allocation
in the exercise of his functions, except in so far as he
among Ministers of the said business.
is required to exercise his functions in his discretion.
r If any question arises whether a matter falls within

197
Article 167: Duties of Chief Minister legislature.
It shall be the duty of the Chief Minister of each State- r No person shall be retained as a member of Council, if
r To communicate to the Governor of the State all the Chief Minister want to dismiss a sitting member.
decisions of the Council of Ministers relating to r If he loses elections.
the administration of the affairs of the State and r Cannot gets elected or nominated (in case of
proposals for legislation. Legislative Council) within 6 months.
r To furnish such information relating to the
Functions of State Council of Ministers
administration of the affairs of the State and
proposals for legislation as the Governor may call for. Formulation of Policies
r If the Governor so requires, to submit for the r Ministers are in charge of formulating the
consideration of the Council of Ministers any matter government's policies.
on which a decision has been taken by a Minister but r The Cabinet makes decisions on all key issues,
which has not been considered by the Council. including public health, disability and unemployment
Article 177: Rights of Ministers as Respects the Houses benefits, plant disease control, water storage,
Every Minister shall have the right to speak and take land tenures and production, and the supply and
part in the proceedings of the Assembly (and also the distribution of goods.
Council where it exists) and any Committee of the State r The appropriate department implements the policy
Legistature of which he may be named a member. But he when it has been developed.
shall not be entitled to vote.
r Administration and Maintenance of Public Order
91st Constitutional Amendment Act r The executive power must be used in a way that
r The total number of Ministers, including the Chief ensures that State laws are followed.
Minister, in the Council of Ministers in a State shall r The Governor is empowered by the Constitution
not exceed 15 per cent of the total strength of the to create -rules for the more efficient conduct of
legislative assembly of that State.
government activities.
r However, the number of Ministers, including the
r The Council of Ministers advises on all such
Chief Minister, in a State shall not be less than 12.
regulations.
r A member of either House of State Legistature
belonging to any political party who is disqualified Appointments
on the ground of defection shall also be disqualified r The Governor has the authority to appoint
to be appointed as a Minister. the Advocate-General and State Public Service
Nature of advice tendered by the Council of Ministers Commission members.
r The nature of advice tendered by Ministers to the r The Governor appoints the Vice-Chancellors of the
Governor cannot be enquired by any court. State Universities, as well as members of numerous
r This provision emphasises the intimate and the Boards and Commissions. These appointments
confidential relationship between the Governor and cannot be made at the Governor's discretion. On
the Ministers. the advice of his Ministers, he must carry out these
r The Indian courts are barred from inquiring into the duties.
nature of advice rendered by the Ministers to the Legislative duties
Governor. r The majority of the bills voted by the legislature are
Removal / Disqualifications government bills drafted by ministries.
r A Minister hold office during the pleasure of r The Ministers introduce, explain, and defend them
Governor. Actually, this pleasure is the consent of before the State Legistature. Each year, before
Chief Minister. the start of the first session of the Legislature, the
Cabinet prepares the Governor's Address, in which it
r It is the Chief Minister who select the members of
lays out its legislative agenda.
his team. This power is given to the Chief Minister
Control over the State Exchequer
to uphold the Collective Responsibility in the
r The finance Minister presents the State Legistature

198
 with the State budget, which includes estimates of assembly's confidence.
revenue and expenditure for the coming year. r The Governor, on the other hand, can only remove a
r In the case of a Money Bill, the Legislature cannot Minister on the advice of the Chief Minister.
take the initiative. r In the event of a disagreement or unhappiness with
r Only a Minister can introduce such a Bill, which must a Minister's performance, the Chief Minister may ask
be recommended by the Governor. The Executive him to quit or advise the Governor to remove him.
does have the initiative regarding financial matters. Cabinet
Execution of Central Laws and Decisions of the Union Cabinet: A Smaller body called cabinet is the nucleus of
Government the Council of Ministers. It consists of only the cabinet
r In certain situations, the Union Government has the Ministers. It is the real centre of authority in the State
authority to issue directives to State governments. government. It is steering wheel of the State government.
r States should use their executive power to guarantee It is the Cabinet and not the Council of Ministers who
that the laws passed by Parliament are followed. advises the Governor of the State.
r They should not do anything that might jeopardize Advantage of Cabinet
the Union's executive power. r It is easier to build consensus among various
Types of Responsibilities of Council of Ministers stakeholders.
r More effective discussion and efficient time
There are two types of responsibilities:
utilization
r Collective responsibility r Less burden on public exchequer – Economic
r Individual responsibility efficiency
Collective Responsibility: r More priority to secrecy
Article 164 clearly States the Council of Ministers is r More rational division of work – Large size Council
collectively responsible to the legislative assembly of the of Ministers ties up too many tongues and less
State. viewpoint is available.
r This means that all Ministers have shared Functions of the Cabinet
responsibility for all their actions of omission and r It is the highest decision-making authority in the
commission before the legislative assembly. politico- administrative system of a State.
r They operate together as a team and sink or swim as r It is the chief policy formulating body of the State
a unit. r It is the supreme executive authority of the State
r When the legislative assembly approves no- government.
confidence motions against the Council of Ministers, r It is the chief coordinator of State administration.
all Ministers, including those on the legislative r It is an advisory body to the Governor.
Council, are required to resign. r It is the chief crisis manager and thus deals with all
r The notion of collective responsibility also indicates emergency situations.
that a cabinet decision binds all cabinet Ministers r It deals with all major legislative and financial
(and other Ministers), even if they deferred in matters.
cabinet. r It exercises control over higher appointments like
r It is the responsibility of all Ministers to support constitutional authorities and senior secretariat
cabinet decisions both inside and outside the State administrators.
Legistature. A Minister must resign if he disagrees
with a cabinet decision. Cabinet Committees
Individual responsibility The cabinet works through various committees called
Individual accountability is likewise enshrined in Article cabinet committees. They are of two types:
164. The Ministers serve at the Governor's leisure, r Standing committees – permanent nature
according to the law. r Ad Hoc – temporary nature.
r This means that the Governor can dismiss a Minister They are set up by the Chief Minister according to the
if the Council of Ministers has the legislative exigencies of the time and requirements of the situation.

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Hence, their number, nomenclature and composition Council that makes the State progress on the path of
vary from time to time. development faster and safer. The Expansion of the
They not only sort out issues and formulate government arm in the improvement of the lives of
proposals for the consideration of the cabinet but also people of the State begins with the Council of Ministers.
take decisions. However, the cabinet can review their It goes down the history line of democratic India how the
decisions. strong legislation and its implementation is responsible
The Council of Ministers decides the State legislative for changing lives. The State Council of Ministers can be
agenda and takes the lead in introducing and passing treated as the backbone of the government.
government legislation. It’s the strong State legislative

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 26 State Legistature

Introduction
Composition of the Houses
The Legislative Assembly, also called the Vidhan Sabha
is analogous to Lok Sabha in the country, the Legislative Article 170 of the Indian Constitution talks about the
Assembly functions in the same manner in a State as the configuration of the Legislative Assemblies. On the other
Lok Sabha functions in the Parliament. hand, the configuration of the Legislative Council is giv-
en in Article 171 of the Indian Constitution.
Organisation of State Legistature
Legislative Assembly
Article 168: Constitution of Legislatures in States.
(1) For every State there shall be a Legislature which Qualifications [Article 173]
shall consist of the Governor, and To become a Member of Legislative Assembly a person
a. in the States of Andhra Pradesh, Telangana, must:
Uttar Pradesh, Bihar, Maharashtra, Karnataka r be a citizen of India;
two Houses;
r have attained the age of 25 years;
b. in other States, one House.
r must not hold any office of profit.
(2) Where there are two Houses of the Legislature of a
Accordingly, the Parliament has laid down the
State, one shall be known as the Legislative Council
following additional qualifications in the Representation
and the other as the Legislative Assembly, and where
of People Act (1951):
there is only one House, it shall be known as the
Legislative Assembly. (a) A person to be elected to the legislative council must
There is no uniformity in State Legistatures. There be an elector for an assembly constituency in the
are 6 States with bicameral Legislature out of 28 States concerned state and to be qualified for the governor’s
in India: nomination, he must be a resident in the concerned
r Andhra Pradesh state.
r Telangana (b) A person to be elected to the legislative assembly
r Maharashtra, must be an elector for an assembly constituency in
r Karnataka, the concerned state.
r Uttar Pradesh, (c) He must be a member of a scheduled caste or
r Bihar scheduled tribe if he wants to contest a seat reserved
State Legistature consist of à Governor, legislative for them. However, a member of scheduled castes or
assembly and legislative Council (in case of bicameral). scheduled tribes can also contest a seat not reserved
Article 169: Abolition or creation of Legislative for them.
Councils in States. Composition of Legislative Assembly [Article 170]
State Legistature can abolish a Legislative Council or r The Legislative Assembly of State can have at most
create it, if the legislative assembly of the concerned State 500 constituencies and at least 60 constituencies.
passes a resolution by a Special Majority to that effect. r These constituencies would be represented by
This Act of State Legistature is not to be deemed as an the members who would be selected through the
amendment of the Constitution for the purposes of Art. process of direct election.
368 and is passed like an ordinary piece of legislation (by r However, the division of territorial constituencies
Simple Majority). would be determined in such a manner that it

201
 becomes dependent on the population of that Composition of Legislative Council [Article 171]
constituency. Here by the term “population” we r The Legislative Council of a State Comprises not
mean population which has been published in the
more than one-third of the total number of members
precedent census.
in the Legislative Assembly of the State and in no
r The composition of the Legislative Assembly in
case less than 40 members.
any State can change according to the change in
the population of that State. It is determined by the r However, in Jammu and Kashmir, the strength is only
census of population. 36.
r The territorial constituencies demarcation should be r The system of the composition of the Council as
done as far as possible, such that the ratio between provided for in the Constitution is not final. The final
the population of each constituency and the number power is given to the State Legistature of the Union.
of seats allotted to it is the same all over the State. r Legislative Council is a partly nominated and partly
r Apart from these general provisions, there are also elected body, the election being an indirect one and
special provisions with respect to the representation in accordance with the principle of proportional
of Scheduled Caste and Scheduled Tribes. representation by the single transferable vote. The
r The Constitution provided for the reservation of members being drawn from various sources, the
seats for scheduled castes and scheduled tribes in Council shall have a variegated composition.
the assembly of each State on the basis of population r Broadly speaking 5/6 of the total number of
ratios. Originally, this reservation was to operate members of the Council shall be indirectly elected
for ten years (i.e., up to 1960). But this duration has and 1/6 will be nominated.
been extended continuously since then by 10 years m one-third of the total number of members of
each time. Now, under the 95th Amendment Act of the Council would be elected by electorates
2009, this reservation is to last until 2020. consisting of members of local bodies like the
r However, there are several exceptions to the municipalities and the district boards.
composition of the Legislative Assembly. For m one-twelfth of the members would be elected
example, Mizoram, Sikkim, and Goa which has less by electorates comprising of graduates of
the standing of three years dwelling in that
than 60 constituencies.
particular State.
Tenure
m one-twelfth of the members would be elected
The tenure or duration of the Legislative Assembly is by electorates consisting of teachers who have
mentioned in Article 172 of the Indian Constitution. been in the teaching profession for at least 3
r The Legislative Assembly should work for a time years in educational institutes in that State,
period of five years. Its tenure starts from the day of which are not lower than secondary schools in
its first meeting. the standard.
r However, it can be dissolved earlier by the special m one-third would be elected by members of the
procedure established by the law. Legislative Assembly from amongst people who
are not Assembly members.
r There can be an extension in the tenure of the
m The rest would be nominated by the Governor
Legislative Assembly. This can be done during the from persons having knowledge or practical
National Emergency. experience in matters like science, literature,
r During the period of the National Emergency, cooperative movement, art and social service.
the State Legistature can extend the tenure of the Tenure:
Legislative Assembly for a period of maximum one r The Legislative Council, like Legislative Council is a
year. Also, this extension should not be more than six permanent House. It is never dissolved.
months after the proclamation has ceased to operate. r The tenure of its members is six years.

Legislative Council r One-third of its members retire after every two

years.

202
r The retiring members are eligible for re-election. In r He must not be a director or managing agent nor
case of vacancy arising out of resignation or death hold an office of profit in a corporation in which the
by-election is held for the remaining period of such government has at least 25 per cent share.
members’ tenure. r If he/she is convicted under any law relating to
drugsor dowry prevention.
Qualifications [Article 173]
r Dismissal from the Government due to disloyalty or
To become a member of the Legislative Council the involvement in corrupt practices.
person concerned should r If he/she fails to lodge their election expenses.
r be a citizen of India: Vacation of Seats
r have attained the age of 30 years; According to Article 190, in the following cases, a member
r not hold any office of profit. of the state legislature vacates his seat:
Disqualifications (Article 191) : 1. Double Membership:
According to the constitution, a person shall be A person cannot be a member of both Houses of
disqualified as Member of Legislative Assembly (MLA) state legislature at one and the same time. If a person
or Member of Legislative Council (MLC) if: is elected to both the Houses, his seat in one of the
Houses falls vacant as per the provisions of a law
r he holds any office of profit under the Government of made by the state legislature.
India or a State or an office declared by a law of the
2. Disqualification:
State,
If a member of the state legislature becomes subject
r any competent court declares any member to be of
to any of the disqualifications, his seat becomes
unsound mind,
vacant.
r he is charge-sheeted, bankrupt or insolvent,
3. Resignation:
r he is not a citizen of India,
A member may resign his seat by writing to the
r has voluntarily acquired the citizenship of a foreign
Chairman of legislative council or Speaker of
State or is under any acknowledgement of allegiance legislative assembly, as the case may be. The seat
or adherence to a foreign State. falls vacant when the resignation is accepted.
According to Schedule 10 (Anti-Defection Act), a 4. Absence:
person shall be disqualified as Member of Legislative A House of the state legislature can declare the seat
Assembly (MLA) or Member of Legislative Council (MLC) of a member vacant if he absents himself from all
if: its meeting for a period of sixty days without its
r an elected member voluntarily gives up his permission.
membership of a political party, 5. Other Cases:
r an elected member votes or abstains from voting in A member has to vacate his seat in the either House
such House contrary to any direction issued by his of State Legislature,
political party or anyone authorised to do so, without r if his election is declared void by the court,
obtaining prior permission. r if he is expelled by the House,
According to Representation of the People (RP) r if he is elected to the office of President or office
Act, 1951 a person shall be disqualified as Member of of Vice-President and
Legislative Assembly (MLA) or Member of Legislative
r if he is appointed to the office of Governor of a
Council (MLC) if:
State.
r If he/she is convicted for indulging in corrupt
Oath (Article 188)
practices during the election or any other election-
related offenses. Every member of either House of State Legistature,
before taking his seat in the House, has to make and
r If he/she is convicted under certain acts of Indian
subscribe an oath or affirmation before the Governor or
Penal Code, Unlawful Activities Prevention Act,
some person appointed by him for this purpose. In this
Prevention of Terrorism Act 2002, etc.
oath, a member of the State Legistature swears:
r If he/she is convicted under any law that results for
at least two years of imprisonment and will remain r to bear true faith and allegiance to the Constitution
disqualified for a further 6 years after his release. of India;
r to uphold the sovereignty and integrity of India; and

203
r to faithfully discharge the duty of his office. r He can allow a secret sitting of the house at the
Under Article 193, Unless a member takes the oath, request of the leader of the house.
he cannot vote and participate in the proceedings of the r He decides the questions of disqualification of a
House and does not become eligible to the privileges and member of the assembly, arising on the ground of
immunities of the State Legistature. A person is liable defection under the provisions of the Tenth Schedule
to a penalty of ₹500 for each day he sits or votes as a of the Constitution.
member in a House: r He appoints the Chairman of all the committees of
r before taking and subscribing the prescribed oath or the assembly and supervises their functioning. He
affirmation; or himself is the Chairman of the Business Advisory
r when he knows that he is not qualified or that he is Committee, the Rules Committee and the General-
disqualified for its membership; or Purpose Committee.
r when he knows that he is prohibited from sitting r He has the power to suspend or to expel the member
or voting in the House by virtue of any law made by for his/ her unruly behaviour.
State Legistature or the State Legistature. r Within the assembly, the Speaker is the master. He
Members of a State Legistature are entitled to has the power to decide whether the Bill is a Money
receive such salaries and allowances as may from time to Bill or not.
time be determined by the State Legistature. Deputy Speaker
r Like the speaker, the Deputy Speaker is also elected
Presiding Officers of State Legistature by the assembly itself from amongst its members.
The Speaker r He is elected after the election of the Speaker has
Article 178 gives the power to the Speaker to preside taken place.
over the sessions of the Legislative Assembly of the State. r He vacates his office earlier in any of the following
Similar powers are given to the Speaker of the Legislative three cases:
Assembly, as mentioned in Article 93 of the Indian m If he ceases to be a member of the assembly.
Constitution. The Speaker is elected by the assembly m If he resigns by writing to the speaker.
itself from amongst its members and remains in office m If he is removed by a resolution passed by a
during the life of the assembly. majority of all the members of the assembly.
However, he vacates his office earlier in any of the Such resolution can be moved only after giving
following three cases: 14 days advance notice.
r If he ceases to be a member of the assembly. The Deputy Speaker performs the duties of the
r If he resigns by writing to the deputy speaker. Speaker’s office when it is vacant. He also acts as the
r If he is removed by a resolution passed by a majority Speaker when the latter is absent from the sitting of
of all the members of the assembly. Such resolution
assembly. In both the cases, he has all the powers of the
can be moved only after giving 14 days advance
notice. Speaker.
The decision of the Speaker cannot be challenged in The Speaker nominates from amongst the members
a court of law. a panel of chairman. Any one of them can preside over
the assembly in the absence of the Speaker or the Deputy
Functions/ Powers of the Speaker are as follows: Speaker. He has the same powers as the speaker when so
r The most important function of the Speaker is to presiding. He holds office until a new panel of chairman
preside over the sessions of the Legislative Assembly is nominated.
and also to maintain discipline and order in the
Chairman of the Legislative Council
assembly He/she does not participate in the debate
of the assembly. The working of the Legislative Council is quite complex.
The process of membership, the appointment of its head
r Only votes when there is a condition of a tiebreak.
and the power of the Legislative Council is also quite
r He sees whether there is a necessary quorum. He
difficult to understand.
adjourns the assembly or suspends the meeting in
the absence of a quorum and maintains order and According to Article 182 of the Indian Constitution,
decorum in the assembly for conducting its business the Legislative Council must choose its two members as
and regulating its proceedings. Chairman and Deputy Chairman.

204
 The Chairman is elected by the Council itself from Difference between Legislative Assembly
amongst its members. It also mentions that the Legislative and Legislative Council
Council must choose the Chairman and Deputy Chairman Criteria Legislative Assembly Legislative Council
of the Legislative Council as soon as their office becomes Number of Minimum: 60 Minimum: 40 members;
vacant. members members Maximum: There has
The offices of Chairman and Deputy Chairman Maximum:500 been no upper limit set
members here.
become vacant very often. However, the reason for their
removal/ resignation is mentioned in Article 183 of the Dissolution It is dissolved every 5 It cannot be dissolved
years. as it is permanent in
constitution. The reasons are as follows: nature.
r If he ceases to be a member of the assembly. Composition It is in accordance It is in accordance with
r If he resigns by writing to the Deputy Chairman. with Article 170 of the Article 171 of the Indian
r If he is removed by a resolution passed by a majority Indian Constitution. Constitution.
of all the members of the assembly. Such resolution House It is the lower house It is the upper house of
can be moved only after giving 14 days advance of the State Legistat- the State Legistature.
ure.
notice.
Election Members are directly Members are
Power of Chairman of Legislative Council elected through elected indirectly
r His powers and functions are comparable to the universal suffrage and through proportional
Speaker of the Assembly with few exceptions. The secret ballot. representation and
speaker has one special power which is not enjoyed nomination by the
by the Chairman. The speaker decides whether a Governor.
bill is a Money Bill or not and his decision on this Presiding Speaker is the presid- Chairman is the presid-
question is final. officer ing officer. ing officer.
Deputy Chairman of Legislative Council Presence Every Indian State Only six Indian States
and union territory have a legislative
r Like the Chairman, the Deputy Chairman also elected (except the ones Council- Bihar,
by the Council itself from amongst its members. governed directly Maharashtra, Karnataka,
r He is elected after the election of the Chairman has by the Union Uttar Pradesh, Andhra
taken place. Government) have a Pradesh and Telangana.
legislative assembly.
r He vacates his office earlier in any of the following
Age Must be 25 years or Must be 30 years or
three cases: above. above.
m If he ceases to be a member of the assembly. Age Must be 25 years or Must be 30 years or
m If he resigns by writing to the Chairman. above. above.
m If he is removed by a resolution passed by a Tenure MLA’s bear office for a MLC’s bear office for a
majority of all the members of the assembly. term of 5 years. term of 6 years.
Such resolution can be moved only after giving Article 174: Sessions of the State Legistature,
14 days advance notice. prorogation and dissolution
Powers of Deputy Chairman of Legislative Council
1. The Governor shall from time to time summon the
According to Article 184 of Indian Constitution
House or each House of the Legislature of the State
r While the office of Chairman is vacant, the duties of
the office shall be performed by the Deputy Chairman to meet at such time and place as he thinks fit, but six
or, if the office of Deputy Chairman is also vacant, by months shall not intervene between its last sitting in
such a member of the Council as the Governor may one session and the date appointed for its first sitting
appoint for the purpose. in the next session.
r During the absence of the Chairman from any sitting 2. The Governor may from time to time-
of the Council the Deputy Chairman or, if he is also
a. prorogue the House or either House;
absent, such person as may be determined by the
rules of procedure of the Council, or, if no such person b. dissolve the Legislative Assembly.
is present, such other person as may be determined Summoning of State Legistature:
by the Council, shall act as Chairman. r Summoning is the process of calling all members
of the State Legistature to meet. The Governor

205
 summons each House of the State Legistature from Assembly, even before the end of the term. He
time to time. The gap between two sessions of the may also dissolve Legislative Assembly if Council
State Legistature cannot exceed 6 months, which of Ministers loses confidence and no party is able
means the State Legistature meets at least two times to form the government. Once the Legislative
in one year. Assembly is dissolved before the completion of
Adjournment: its normal tenure, the dissolution is irrevocable.
r Adjournment terminates the sitting of the House Note: When the Legislative Assembly is dissolved, all
which meets again at the time appointed for the next business including bills, motions, resolutions, notices,
sitting. The postponement may be for a specified petitions and so on pending before it or its committee’s
time such as hours, days or weeks. lapse.
r If the meeting is terminated without any definite According to Article 196, the position with respect
time/date fixed for the next meeting, it is called to lapsing of the Bill are as follows:
Adjournment sine die. When does a Bill lapse?
r The power of adjournment as well as adjournment r A Bill that originates in the Legislative Assembly
sine die lies with the presiding officer (speaker or and remains pending in the Lower House itself is
Chairman) of the House. considered lapsed with the dissolution of the House.
Prorogation: r A Bill that originates and is passed by the Legislative
r Prorogation is the end of session and not the Council (in bicameral State), but is pending in the
dissolution of the house (in case of Legislative Legislative Assembly also lapses with the dissolution
Assembly, as Legislative Council does not dissolve). of the Lower House.
It is done by the Governor of State. r Bills that originate and are passed in the Legislative
Recess: Assembly but are pending in the Legislative Council
r The period between the prorogation of State (in bicameral State) are also considered lapsed.
Legistature and its reassembly in a new Session is r Bill that originates and is passed in the Legislative
termed as a recess. Council (in bicameral State) but is returned with
Quorum: amendments to the Upper House by the Legislative
r Quorum refers to the minimum number of the Assembly and then does not get the clearance of the
members required to be present for conducting a Legislative Council is considered to have lapsed on
meeting of the house. the date of dissolution of the Lower House.
r The Constitution has fixed one-tenth strength as When does a Bill not lapse?
quorum for both Legislative Assembly and Legislative There are instances when certain Bills, despite the
Council. dissolution of the Lower House, are not considered to
Dissolution have lapsed.
r A Bill that is pending in the Legislative Council (in
r A dissolution ends the very life of the existing
bicameral State) but is not passed by the Legislative
House, and a new House is constituted after general
Assembly.
elections are held.
r Bills that have cleared both the Houses (in bicameral
r Legislative Council, being a permanent House, is not
State) but are pending assent from the Governor.
subject to dissolution. Only the Legislative Assembly
r A bill passed by legislative Assembly or both Houses
is subject to dissolution.
(in bicameral State) but returned by the Governor
r The dissolution of the Legislative Assembly may take for reconsideration of Legislative Council.
place in either of two ways:
r Pending bills and all pending assurances that are
m Automatic dissolution: On the expiry of its to be examined by the Committee on Government
tenure of five years or the terms as extended Assurances.
during a national emergency.
Article 175: Right of Governor to address and send
m Order of Governor: If Governor is authorized by messages to the House or Houses.
Council of Ministers, he can dissolve Legislative
1. The Governor may address the Legislative Assembly

206
 or, in the case of a State having a Legislative Council, 1965).
either House of the Legislature of the State, or r In case of Himachal Pradesh, Manipur, Meghalaya
both Houses assembled together, and may for that and Tripura, this time limit is twenty-five years and
purpose require the attendance of members. that of Arunachal Pradesh, Goa and Mizoram, it is
2. The Governor may send messages to the House or forty years.
Houses of the Legislature of the State, whether with Rights of Ministers and Advocate General
respect to a Bill then pending in the Legislature or Article 177 States that: Every Minister and the Advocate-
otherwise, and a House to which any message is General of India shall have the right to speak in, and
so sent shall with all convenient despatch consider otherwise to take part in the proceedings of, either
any matter required by the message to be taken into House, any joint sitting of the Houses, and any committee
consideration. of State Legistature of which he may be named a member,
Article 176: Special address by the Governor. but shall not by virtue of this article be entitled to vote.
1. At the commencement of the first session after each Every Minister and Advocate General of India shall
general election to the Legislative Assembly and at have the right to speak in and otherwise participate in:
the commencement of the first session of each year,
the Governor shall address the Legislative Assembly r the proceedings of either House
or, in the case of a State having a Legislative Council, r any committee of State Legistature to which he may
both Houses assembled together and inform the be named a member
Legislature of the causes of its summons. r But by virtue of this article, he/she shall not be
2. Provision shall be made by the rules regulating entitled to vote in the discussions.
the procedure of the House or either House for r For instance, Ministers who are elected to the
the allotment of time for discussion of the matters Legislative Assembly participate in the discussion
referred to in such address. in Legislative Council and certain State Legistature
Voting in the House (Article 189) committees. However, they are not entitled to vote
r All matters at any sitting of either House are decided where they are not authorized to.
by a majority of votes of the members present and Legislative Procedure in the State Legistature
voting excluding the presiding officer.
r Only a few matters which are specifically mentioned Ordinary Bills
in the Constitution like removal of the speaker of the r With regards to ordinary bills, the procedure is same
assembly, removal of the Chairman of the Council as Parliament. The bills go through three readings
and so on require special majority, not ordinary and if it is passed by a simple majority, it goes
majority. directly to the Governor [unicameral legislature] or
to the second chamber [bicameral legislature]. With
r The presiding officer (i.e., Speaker in the case of
respect to ordinary bills, the legislative assembly is
assembly or chairman in the case of Council or the highly powerful than the Lok Sabha.
person acting as such) does not vote in the first
r If the legislative Council rejects the bill or passes it
instance, but exercises a casting vote in the case of
with amends or takes no action for three months, the
an equality of votes. bill goes to the legislative assembly again.
Language in State Legistature (Article 210) r The assembly may pass it again with or without
r Constitution of India has declared that business in amends. Then the bill goes to the legislative Council
State Legistature shall be transacted in Hindi or in where, Legislative Council has following alternatives:
English. m Accept the bill, or
r Presiding officers may permit any member who m Reject the bill, or
cannot adequately express himself in Hindi or in m Amend the bill or
English to address the House in his mother-tongue. m Take no action on bill
r The State Legistature is authorised to decide r After one month bill is sent back to legislative
whether to continue or discontinue English as a floor assembly. But this time the bill is deemed to have
language after the completion of fifteen years from been passed in the form passed by the legislative
the commencement of the Constitution (i.e., from assembly in the second time.

207
r Ordinary bill, after it is passed by the assembly or by r The assembly may reject or accept such
both the Houses in case of a bicameral legislature, is recommendations. The bill is then given to Governor
presented to the Governor for his assent. There are for assent.
four alternatives before the Governor: r When a Money Bill is presented to the Governor, he
m he may give his assent to the bill; has following alternatives:
m he may withhold his assent to the bill;
m he may return the bill for reconsideration of the m he may either give his assent, or
House or Houses; and m withhold his assent, or
m he may reserve the bill for the consideration of m reserve the bill for Presidential assent but
the President.
cannot return the bill for reconsideration of the
r If the Governor gives his assent to the bill, the bill
becomes an Act. If the Governor withholds his assent State Legistature.
to the bill, the bill ends and does not become an Act. If r Normally, the Governor gives his assent to a money
the Governor returns the bill for reconsideration and bill as it is introduced in the State Legistature with
if the bill is passed by the House or both the Houses his prior permission.
again, with or without amendments, and presented r President can do the following with the bill sent to
to the Governor for his assent, the Governor must him by the Governor:
give his assent to the bill. Thus, the Governor enjoys m give his assent or
only a suspensive veto. m withhold his assent
r When a bill is reserved by the Governor for the r But neither Governor nor President can return the
consideration of the President, the President has
bill for reconsideration.
following alternatives:
m either give his assent to the bill or Constitutional Amendment referred for ratification by
m withhold his assent to the bill or States:
m return the bill for reconsideration of the House r If constitutional amendment bill is referred to State
or Houses of the State Legistature. Legistatures for assent, it is considered by both
r When a bill is so returned, the House or Houses have houses of State Legistature.
to reconsider it within a period of six months. The r In this case, will of the legislative assembly prevails.
bill is presented again to the Presidential assent after It the legislative Council rejects the amendment; the
it is passed by the House or Houses with or without assembly can pass it again as in case of ordinary bill.
amendments. It is not mentioned in the Constitution r Governor in the matter of constitutional amendment
whether it is obligatory on the part of the President
referred for ratification by States has following
to give his assent to such a bill or not.
alternatives with him:
r There is no provision for joint sittings to resolve
m give his assent, or
deadlocks. Thus, the legislative Council can only
withhold a bill for 4 months [3 months in first m withhold his assent, or
instance and 1 month in second]. Also, if a bill passed m send the bill back to State Legistature for
by legislative Council is disapproved by legislative reconsideration, or
assembly, then the bill ends. m send it for President’s consideration.
Money Bill r If the bill sent for reconsideration is passed by both
r No money bill can be introduced without the houses with or without amendments the Governor
Governor’s recommendation. has to give his assent to it [Suspensive veto].
r Such a bill is a government bill and can be introduced r If the bill is reserved for President’s assent, but is
only by a Minister. No private member can introduce returned to State Legistature for reconsideration
money bill. and the State Legistature pass it again, it isn’t
r According to Article 198, money bill can be obligatory for the President to give his assent to the
introduced only in legislative assembly. The bill if bill. President can return a State bill any number of
passed goes to the legislative Council. The Council times.
can only discuss it and make recommendation. It has r Approval of ordinances of the Governor also has the
to return bill in 14 days. domination of legislative assembly.

208
 14 days with, or without, its recommendations.
Powers and Functions of the State Legistature
r The Legislative Assembly may either accept or
Law Making Function
reject its recommendations. The bill is deemed to
r The primary function of the State Legistature, like have been passed by both Houses. After this stage,
the Union Parliament, is law-making. The State
the bill is sent to the Governor for his assent. The
Legistature is empowered to make laws on State List
and Concurrent List. Governor cannot withhold his assent, as money bills
r The Parliament and the Legislative Assemblies have are introduced with his prior approval.
the right to make the laws on the subjects mentioned Control over the Executive
in the Concurrent List. But in case of contradiction
between the Union and State law on the subject the r Like the Union Legislature, the State Legistature
law made by the Parliament shall prevail. keeps control over the executive. The Council of
r Bills are of two types- Ministers is responsible to Legislative Assembly
m Ordinary bills and
collectively and remains in the office so long as it
m Money bills.
enjoys the confidence of the Legislative Assembly.
r Ordinary bills can be introduced in either of the
Houses (if the State Legistature is bicameral), but r The Council of Ministers is removed if the Legislative
Money bill is first introduced in the Legislative Assembly adopts a vote of no-confidence, or when it
Assembly. After the bill is passed by both Houses, it rejects a government bill.
is sent to the Governor for his assent. The Governor r In addition to the no-confidence motion, the
can send back the bill for reconsideration. When this Legislature keeps checks on the government by
bill is passed again by the Legislature, the Governor
asking questions and supplementary questions,
has to give his assent.
moving adjournment motions and calling attention
r The Governor can issue an Ordinance on the State
subjects when legislature is not in session. The notices.
Ordinances have the force of law. The Ordinances Electoral Functions
issued are laid before the State Legistature when r The elected members of the Legislative Assembly
it reassembles. It ceases to be in operation after are members of the Electoral College for the election
the expiry of six weeks, unless rejected by the
of the President of India. Thus, they have their say
Legislature earlier. The Legislature passes a regular
bill, to become a law, to replace the ordinance. This in the election of the President of the Republic. The
is usually done within six weeks after reassembly of members of the Legislative Assembly also elect
Legislature. members of the Rajya Sabha from their respective
Financial Powers States.
r The State Legistature keeps control over the finances r One-third members of the Legislative Council (if it
of the State. A money bill is introduced first only in is in existence in the State) are also elected by the
the Legislative Assembly. members of the Legislative Assembly. In all these
r The money bill includes authorisation of the elections, members of the Legislative Assembly cost
expenditure to be incurred by the government, their votes in accordance with single transferable
imposition or abolition of taxes, borrowing, vote system.
etc. The bill is introduced by a Minister on the Constitutional Functions
recommendations of the Governor. The money bill r An Amendment requires special majority of each
cannot be introduced by a private member. House of the Parliament and ratification by not less
r The Speaker of the Legislative Assembly certifies than half of the States relating to Federal subjects.
r The resolution for the ratification is passed by
that a particular bill is a money bill. After a money State Legistatures with simple majority. However, a
bill is passed by the Legislative Assembly, it is sent to constitutional amendment cannot be initiated in the
the Vidhan Parishad. It has to return this bill within State Legistature.

209
 Comparison between Legislative Procedure in Parlia- If a bill is introduced and If the Legislative Council originates,
ment and State Legistature passed in the Rajya Sabha, enacts, and forwards a Bill to the
it has equal power in the Legislative Assembly, and the
With Regard to other Bills except Money Bill case of ordinary bills and Legislative Assembly either rejects
Parliament State Legistature constitution amendment bills. the Bill or makes amendments that
are unacceptable to the Legislative
Bills may be proposed by Bills may be proposed by either
Council, the Bill is terminated
either House of Parliament. House of State Legistature.
immediately.
A Minister or a private A Minister or a private member
member may present it. may present it. With Regard to Money Bill
has to go through first, second It has to go through first, second With Regard to other Bills except Money Bill
and third reading in the and third reading in the originating Parliament State Legistature
originating House. House.
Only the Lok Sabha can introduce Only the Legislative Assembly
Only when both Houses In case of disagreement between
it, not the Rajya Sabha. can introduce it, not the
agree to it, with or without two houses, the will of the
amendments, it is considered Legislative Assembly takes Legislative Council.
as passed by Parliament. precedence. As a result, there is no It can only be introduced on the It can be introduced only on the
In the event of a deadlock provision of Joint sitting to resolve President's recommendations. Governor's recommendations
between the two Houses, deadlock.
only a joint sitting of the two It can only be proposed by a It can only be proposed by a
Houses, summoned by the Minister and not by a private Minister and not by a private
President, can resolve the member. member.
deadlock. The Rajya Sabha cannot reject The Legislative Council cannot
The deadlock may occur if The deadlock may occur if it or amend it. Within 14 days, reject it or amend it. Within 14
• one house passes the • one house passes the bill and it should be returned to the Lok days, it should be returned to the
bill and the other house the other house rejects it, or Sabha, either with or without Legislative Assembly, either with
rejects it, or • one house proposes recommendations. or without recommendations.
• one house proposes amendments that the other
amendments that the house does not agree with. The Lok Sabha can accept or The Legislative Assembly
other house does not reject all or any of the Rajya can accept or reject all or any
agree with. Sabha's recommendations. of the Legislative Council's
• If the house does not pass recommendations.
the Bill within six months If the Lok Sabha accepts any If the Legislative Assembly
of receiving it. suggestions given by the Rajya accepts any suggestions given
In the Rajya Sabha, the In the Legislative Council, the time Sabha, the bill is considered to by the Legislative Council, the
time limit for passing a Bill limit for passing a Bill received have been passed in its modified bill is considered to have been
received from the Lok Sabha from the Legislative Assembly is form by both Houses. passed in its modified form by
is six months. three months. both Houses.
In the event of disagreement, a In the event of a disagreement, If the Lok Sabha rejects a If the Legislative Assembly
joint sitting of the two Houses passage of the Bill by the Legislative proposal, the bill is considered rejects a proposal, the bill is
is the only way to resolve Assembly for a second time is to have been passed in the same considered to have been passed
the deadlock. However, if the sufficient for passage by the State form by both Houses. by both Houses in the same form
President does not convene a Legistature. as passed by the Legislative
joint sitting at his discretion, Assembly.
If the Bill is transmitted to the
the Bill becomes null and void, Legislative Council again after it
and Rajya Sabha thus has the has been passed, the Council's
Limitation on the Powers of the State
effective capacity to block a only option if it is not in agreement Legistature by Parliament
Bill from being passed. with the bill is to withhold it for
one month from the date of its The powers of law-making by the Legislature are limited
reception on its second journey. in the following manner:
If the Council rejects the Bill r State Legistature can make a law on the subjects
again or suggests revisions that listed in the State List and also the Concurrent
the Legislative Assembly rejects,
or allows one month to pass
List. But in case, the State law on a subject in the
without passing the Bill, the Bill is Concurrent list is in conflict with the Union law, the
presumed to have been passed by law made by the Parliament shall prevail.
the State Legistature in the form in r The Governor of the State may reserve his assent to a
which it is passed for the second
time by the Legislative Assembly.
bill passed by the State Legistature and send it for the
consideration of the President. It is compulsory in

210
 case the powers of Structure of Government the High Unequal with the Legislative Assembly
Court are being curtailed. In some other cases, prior In the following matters, the powers and status of the
approval of the President for introducing the bill in Council are unequal to that of the assembly:
the Legislature is essential such as, for imposition of
r The Council does not participate in the election of
restriction on the freedom of trade and commerce
the President of India and representatives of the
within the State or with other States.
State in the Rajya Sabha.
r The Parliament has the complete control on the
r The Council has no effective say in the ratification of
entire State List at the time when the national
a constitutional amendment bill.
emergency has been declared (under Art. 352),
r A Money Bill can be introduced only in the assembly
although the State Legistature remains in existence
and not in the Council.
and continues to perform its functions. In case of
breakdown of constitutional machinery (under Art. r The Council cannot amend or reject a money bill.
356) after fall of popular Government in the State, It should return the bill to the assembly within 14
the President’s rule is imposed. The Parliament then days, either with recommendations or without
acquires the power to make laws for that State, for recommendations.
the period of constitutional emergency. r The assembly can either accept or reject all or any
r The Parliament can also make laws on a subject of of the recommendation of the Council. In both the
the State list in order to carry on its international cases, the money bill is deemed to have been passed
responsibility. If the Rajya Sabha adopts a resolution by the two Houses.
by two-thirds majority to this effect, on its own or r The final power to decide whether a particular bill
at the request of two or more States, the Parliament is a money bill or not is vested in the Speaker of the
can enact laws on a specified subject of the State list. assembly.
r Fundamental rights also impose limitations on the r The final power of passing an ordinary bill also lies
powers of the State Legistature. It cannot make with the assembly. At the most, the Council can detain
laws which violate the rights of the people. Any law or delay the bill for the period of four months–three
passed by the State Legistature can be declared void months in the first instance and one month in the
by the High Court or Supreme Court if it is found second instance.
unconstitutional as violate of the fundamental rights. r The Council can only discuss the budget but cannot
vote on the demands for grants (which is the
Position of Legislative Council
exclusive privilege of the assembly).
Equivalent to the Legislative Assembly r The Council cannot remove the Council of Ministers
In the following matters, the powers and status of the by passing a no-confidence motion. This is because,
Council are broadly equal to that of the assembly: the Council of Ministers is collectively responsible
only to the assembly.
r Introduction and passage of ordinary bills. However, r When an ordinary bill, which has originated in the
in case of disagreement between the two Houses, the Council and is sent to the assembly, if rejected by the
will of the assembly prevails over that of the Council. assembly, the bill ends and becomes dead.
r Approval of ordinances issued by the Governor. r The existence of the Council depends on the assembly.
r Selection of Ministers including the Chief Minister. The Council can be abolished by the Parliament on
Under the Constitution the, Ministers including the recommendation of the assembly.
the Chief Minister can be members of either House Rajya Sabha v/s Legislative Council
of the State Legistature. However, irrespective of r The position of the Legislative Council is much
their membership, they are responsible only to the weaker than the position of the Rajya Sabha.
assembly.
r The Rajya Sabha has equal powers with the Lok
r Consideration of the reports of the constitutional Sabha in every matters except financial matters and
bodies like State Finance Commission, State public control over the Government.
service commission and Comptroller and Auditor
r The Legislative Council is subordinate to the
General of India.
assembly in all respects. Thus, the dominance of the
r Enlargement of the jurisdiction of the State public
assembly over the Council is fully established.
service commission.

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 r Though both the Council and the Rajya Sabha are
second chambers, the Constitution of India has given Privileges of State Legistatures
the legislative Council lesser power compared to Article 194 of the Indian constitution talks about the
Rajya Sabha due to the rationale mentioned below: powers, privileges, etc, of the House of Legislatures and
m The Rajya Sabha consists of the representatives of the members and committees thereof.
of the States and thus reflect the federal element Collective Privileges
of the polity. By defending State interests from The privileges belonging to each House of Parliament
the Centre’s excessive involvement, it helps collectively are:
to keep the federal system balanced. It must r The ability to publish reports, debates, and
therefore function as an efficient revising body proceedings, as well as the ability to prevent others
rather than only an advising or ineffective entity from doing so. It can publish truthful reports of
like the Legislative Council. On the other hand, a Parliamentary proceedings without the House's
Legislative Council's matter does not involve the authorization under the freedom of the press.
question of federal significance. However, in the case of a House meeting held in
m The Council is made up of a variety of people. It secret, this right of the press does not apply.
is made up of variously elected members who r Keep strangers out of the gathering and organize
represent various interests, as well as some covert sessions to address vital issues.
nominated members. Its ineffectiveness as a r Make rules to govern its own procedure and
revising body is a result of its very makeup, which commercial activity, as well as to adjudicate on such
weakens its position. The Rajya Sabha, on the issues.
other hand, has a uniform makeup. It is made up r Right to immediate notification of a member's arrest,
primarily of elected members and only represents custody, conviction, imprisonment, and release.
the States (only 12 out of 250 are nominated). r Initiate inquiries and compel a person's attendance.
m The position given to the Council is consistent r The courts are not allowed to investigate a House's
with democratic ideals. The popular house of or its committees' proceedings.
the legislature should prevail over the legislative r Without the consent of the Presiding officer, no one
Council. (whether a member or an outsider) can be arrested,
The Council has been referred to as a "secondary and no legal process (civil or criminal) can be served
chamber," "costly ornamental luxury," "white elephant," within the House's boundaries.
etc. by detractors who have taken into account its Individual Privileges
weakness and less important position and role. The
The privileges belonging to the members individually
Legislative Council, according to the opponents, has
are:
functioned as a haven for individuals who lost the
r During the session of Parliament, from 40 days
assembly elections. Despite having fewer authority than
before the beginning to 40 days after the finish, no
the assembly, the usefulness of legislative Council can be
member may be arrested in a civil proceeding. If he
justified by the following:
is arrested, he must be released to let him attend the
1. By including provisions for review and consideration, Session. But a member can be arrested in a criminal
it checks the assembly's rushed, flawed, reckless, proceeding, but the detaining authority must notify
and poorly thought-out legislation. the House the reason, time, place of his detention.
2. It makes it easier for prominent specialists and r In Parliament, members have the right to free
professionals who are ineligible for direct elections expression. No member of Parliament or its
to be represented. To represent these people, committees is accountable in any court for anything
the Governor proposes one-sixth of the Council said or voted in Parliament or its committees.
members. This independence is limited by the Constitution's
The Legislative Council nevertheless commands provisions as well as the norms and standing orders
a higher calibre due to its indirect election system and that govern Parliament's functioning.
nomination of individuals with specialised knowledge, r Members of Parliament are exempt from jury duty
and even with its dilatory power, it serves to check hasty when Parliament is in session. They have the right to
legislation by drawing attention to the flaws or defects of decline to give evidence and testify in court.
any ill-considered measure.

212
 27 Supreme Court

give final decisions on all the matters of the law.

Introduction
Its judgments are binding on all the lower courts.
In order to ensure transparency and fair work in the It has the power of judicial review through which
system, the constitution-makers kept these three organs it can review the action of the executive and the
independent of each other. The Judiciary is the ultimate legislature.
interpreter of the rights while it acts as a guardian of the
Constitutional Provisions
Constitution. It can also conduct checks on the legislature
The Indian Constitution provides for a provision of
and the executive and ensure that no one goes beyond
their ambit of power. The Constitution ensures that the Supreme Court under Part V (The Union) and Chapter 6
judiciary remains even-handed in all circumstances. (The Union Judiciary). Articles 124 to 147 in Part V of the
The Supreme Court of India is the highest judicial court Constitution deal with the organisation, independence,
and the final court of appeal under the Constitution of jurisdiction, powers and procedures of the Supreme
India, the highest constitutional court, with the power Court.
of judicial review. India is a federal State and has a single Article 124 of the Constitution,
and unified judicial system with three tier structure, i.e., r The first part of this Article provides for the setting
Supreme Court, High Courts and Subordinate Courts. up of the Supreme Court which will be composed
History of the Supreme Court of India of one Chief Justice of India and only seven Judges
r The Supreme Court of Judicature in Calcutta was until the Parliament by law prescribes any more
constituted as a Court of Record with full jurisdiction Judges.
and authority with the adoption of the Regulating r The second part of this Article states that the Chief
Act of 1773. Justice of India will be appointed by the President
r The Supreme Courts at Madras and Bombay were after consulting other Judges whom he thinks
formed by King George - III in 1800 and 1823, suitable and will hold the office until he attains the
respectively. age of 65 years. Whereas the President will have to
r The India High Courts Act of 1861 established High take into account the Chief Justice’s opinion when
Courts in a number of provinces and as well as the he appoints the other Judges.
Supreme Courts in Calcutta, Madras, and Bombay.
r This Article in its part 2(a) says that a judge can by
r These High Courts had the distinction of being writing to the President, resign from his position,
the highest Courts for all cases till the creation of whereas,
Federal Court of India under the Government of
r this Article in its part 2(b) says that the judge can be
India Act 1935. The Federal Court had the authority
removed under the provision contained in clause 4.
to hear appeals against decisions from High Courts
and resolve issues between provinces and federal r The Jurisdiction of the Supreme Court of India can
states. broadly be categorised into original jurisdiction,
appellate jurisdiction and advisory jurisdiction.
r After Independence, Supreme Court of India was
established, and its inaugural session took place on However, there are other multiple powers of the
January 28, 1950. Supreme Court.

r It’s the highest authority and the final interpreter Composition of Supreme Court
of the law which means that it has the power to With respect to Article 124(2), the number of Judges

213
 was only limited to seven but the Parliament by law sure that it should not happen as it states further that,
prescribed & amended that the number of Judges should the Parliament should not enact any law which will
be increased to thirty-one, i.e., thirty Judges and the stand as a disadvantage to the position of the judge after
Chief Justice of India. he has been appointed.
This was done with a rationale that seven-Judges Oath or Affirmation
will not be able to suffice the work, the Judiciary A person appointed as a judge of the Supreme Court,
undertakes. In order to work efficiently, the number of before entering upon his office, has to make and
Judges should be increased otherwise the cases will keep subscribe to an oath or affirmation before the President,
on piling up and there will be more scenes of injustice. or some other person appointed by him for this purpose.
The Parliament is authorised to regulate them. In his oath, a judge of the Supreme Court swears:
Earlier, the Supreme Court consists of thirty-one r to bear true faith and allegiance to the Constitution
Judges (one Chief Justice and thirty other Judges). of India;
Recently, Supreme Court (Number of Judges) Bill, 2019 r to uphold the sovereignty and integrity of India;
added four Judges. It increased the judicial strength r to duly and faithfully and to the best of his ability,
from 31 to 34, including the Chief Justice of India. knowledge and judgement to perform the duties of
Qualification of Judges the Office without fear or favour, affection or ill-will;
Article 124 in its clause (4), provides a checklist for the and
qualification of the Judges of Supreme Court which is as r to uphold the Constitution and the laws.
follows-
Seat of the Supreme Court
The person, Article 130, of the Constitution declares Delhi as the seat
r Should be a citizen of India, of the Supreme Court. It also authorises Chief Justice
r Should have been a judge of the High Court or of of India to appoint other place or places as seat of the
at least two courts in succession, for a span of five Supreme Court.
years, He can take decision in this regard only with the
r Should have been an advocate of the High Court or approval of the President. This provision is only optional
at least two courts in succession, for a span of 10 and not compulsory. This means that no court can give
years, any direction either to the President or to the Chief
r And should be a distinguished jurist. Justice to appoint any other place as the seat of the
Supreme Court.
Salaries and Allowances
Article 125, talks about the salaries and allowances to be Other Temporary Judges
given to the Judges of the Supreme Court. Acting Chief Justice (Article 126)
The President can appoint a judge of the Supreme Court
r In clause (1), it was mentioned that the Judges of the
as an acting Chief Justice of India when:
Supreme Court will be paid the salaries determined
by the Parliament by law. This is present in the r the office of Chief Justice of India is vacant; or
second schedule until any other law regarding the r the Chief Justice of India is temporarily absent; or
salaries is made. r the Chief Justice of India is unable to perform the
r In clause (2), it was further mentioned that the duties of his office.
Judges will get privileges, allowances, and rights Ad-hoc Judge (Article 127)
regarding leave of absence and pension with respect r When there is a lack of quorum of the permanent
to the law prescribed by the Parliament. judges to hold or continue any session of the
Now, the Parliament by law can alter the rights that Supreme Court, the Chief Justice of India can appoint
may hamper the judge’s position. But this Article makes a judge of a High Court as an Ad-hoc judge of the

214
 Supreme Court for a temporary period. He can do of the Supreme Court as the Chief Justice of India. This
so only after consultation with the Chief Justice of established convention was violated in 1973 when
the High Court concerned and with the previous A. N. Ray was appointed as the Chief Justice of India
consent of the President. by superseding three senior Judges. Again in 1977, M.
U. Beg was appointed as the Chief Justice of India by
r The judge so appointed should be qualified for
superseding the then senior-most judge.
appointment as a judge of the Supreme Court. It
is the duty of the judge so appointed to attend the This discretion of the Government was curtailed by
the Supreme Court in the Second Judges Case (1993),
sittings of the Supreme Court, in priority to other
in which the Supreme Court ruled that the senior most
duties of his office. While so attending, he enjoys all
judge of the Supreme Court should alone be appointed
the jurisdiction, powers and privileges of a judge of
to the office of the Chief Justice of India.
the Supreme Court.
Second Judges’ case
Retired Judges (Article 128)
The court reversed its earlier ruling and changed the
At any time, the Chief Justice of India can request a
meaning of the word consultation. Hence, it ruled that
retired judge of the Supreme Court or a retired judge of
the advice tendered by the Chief Justice of India is
a high court (who is duly qualified for appointment as
binding on the President in matters of appointment of
a judge of the Supreme Court) to act as a judge of the the Judges of the Supreme Court. but the Chief Justice
Supreme Court for a temporary period. would tender his advice on the matter after consulting
He can do so only with the previous consent of the two of his senior most colleagues.
President and also of the person to be so appointed. Third Judges’ case
Such a judge is entitled to such allowances as the The court held that the consultation process to be
President may determine. He will also enjoy all the adopted by the Chief Justice of India requires consultation
jurisdiction, powers and privileges of a judge of the of plurality Judges. Sole opinion of Chief Justice of
Supreme Court. But he will not otherwise be deemed to India does not constitute the consultation process. He
be a judge of the Supreme Court. should consult a collegium of four senior most Judges of
Supreme Court and even if two Judges give an adverse
Appointment of Judges
opinion, he should not send the recommendation to the
The Judges of the Supreme Court are appointed by the
Government the court held that the recommendation
President. The Chief Justice of India is appointed by the made by the Chief Justice of India without complying
President after consultation with such Judges of the with the norms and requirements of the consultation
Supreme Court and High Courts as he deems necessary. process are not binding on the Government.
The other Judges are appointed by the President National Judicial Appointments Commission (NJAC)
after consultation with Chief Justice of India and such The 99th Constitutional Amendment Act of 2014 have
other Judges of the Supreme Court and the High Courts replaced the collegium system of appointing Judges to
as he deems necessary. The consultation with the Chief the Supreme Court and High Court with a new body
Justice is obligatory in the case of appointment of a judge called the National Judicial Appointments Commission
other than Chief Justice of India. (NJAC). After this amendment, under Article 124(2),
Controversy over consultation every judge of the Supreme Court shall be appointed by
The Supreme Court has given different interpretation of the President by warrant under his hand and seal on the
the word consultation. recommendation of the National Judicial Appointment
In first Judges case Commission referred to in Article 124 A.
The court held that consultation does not mean NJAC, as provided by Article 124 (A), consisted of
concurrence and it only implies exchange of view. r Chief Justice of India;
Appointment of Chief Justice From 1950 to 1973: r two other senior Judges of the Supreme Court;
The practice has been to appoint the senior most judge
r Union Law Minister

215
 r 2 eminent people’ to be nominated by the committee is not guilty.
consisting of the Prime Minister, Chief Minister of r If the President is satisfied with motion addressed
India and the leader of opposition. to him, he may issue an order to remove the judge.
The above composition clearly states that NJAC has Judge should be proved incapable or guilty of
both judicial as well as executive the representatives. his act. It can be proved through the procedure for
Thus, the 99th Amendment Act which brought NJAC the investigation regarding the same matter and the
held that the established wisdom of appointment of following procedure has to be laid down by the law of
Judges can be shared with the political executive. This the Parliament. This right is given to the Parliament
was a huge change in the methodology used to appoint a under Article 124(5).
Judge of the Supreme Court. Judges (Inquiry) Act, 1968 [Inquiry Committee]
But thereafter, in Supreme Court Advocates on In this, the procedure for the investigation into the
Record Association v. Union of India (Fourth Judges charges against the Judges was laid down.
case), the Supreme Court struck down NJAC act as The Judge can only be removed after proven
‘unconstitutional and void’. The Court declared that the
misbehaviour or incapacity. This Act further specified
‘NJAC’ act altered the basic features of the constitution
that it will consist of the following people-
as it impairs the ‘independence of the judiciary’ and
r Any judge of the Supreme Court, or the Chief Justice
the ‘separation of powers’ by conferring arbitrary and
of the Supreme Court,
uncharted powers on various authorities under the
statute. Therefore, the amendment cannot be sustained. r Any Chief Justice of the High Court, and
As a result of this discussion, the position as it stood prior r Any person who is a distinguished jurist in the
to the constitution 99th Amendment Act i.e., ‘collegium opinion of the Speaker.
system’ got revived. These members will unanimously frame charges
Tenure and Removal of Judges against the judge and will investigate it.
According to Article 124(2), the Judges of the Supreme Independence of Supreme Court
Court will hold their office until they reach the age of 65 The Supreme Court is a federal court, the highest court
years. However, the tenure of the judge can be shortened of appeal, the guarantor of the fundamental rights of the
on the following conditions: citizens and guardian of the Constitution. Therefore, its
r If he resigns (Article 124(2)) independence becomes very essential for the effective
discharge of the duties assigned to it. It should be free
r If he dies during his tenure.
from the encroachments, pressures and interferences of
r If he is impeached the executive and the Legislature. It should be allowed
Procedure of Impeachment to do justice without fear or favour.
A judge of the Supreme Court stands removed if: The Constitution has made the following provisions
r A motion is signed by the 50 members of Rajya to safeguard and ensure the independent and impartial
Sabha and 100 members of the Lok Sabha. functioning of the Supreme Court:
r Mode of appointment
r An inquiry committee under Judges Inquiry
Act,1968 is constituted for the investigation of the r Security of tenure
charges. r Fixed service conditions
r If the inquiry committee proves the charges, then it r Expenses charged on the consolidated fund
is addressed in both the house of Parliament. r Conduct of judges cannot be discussed
r If the motion is passed with two-third majority in r Ban on practice after retirement
both houses then the motion is addressed to the r Power to punish for its contempt
President. r Freedom to appoint its staff
r The judge has the right to in order to prove that he r Its jurisdiction cannot be curtailed

216
r Separation from Executive rights. Under Article 32, a court an issue orders
Jurisdiction and Powers of the Supreme Court or writs (habeas corpus, certiorari, mandamus,
Supreme Court of India is the apex judicial authority prohibition, quo-warranto) for the enforcement of
in India. Under Article 141 it has been stated that the the fundamental rights of an aggrieved citizen.
decision of the Supreme Court is binding upon all the In this regard, the Supreme Court has original
other courts. It tends to regulate the judicial system jurisdiction in the sense that an aggrieved citizen can
of the country in order to maintain public peace and go directly to the Supreme Court, not necessarily by
protect it from any external transgression. Therefore, way of appeal. However, the writ jurisdiction of the
it possesses a very wide range of powers and functions Supreme Court is not exclusive. The High Courts are
which are discussed below: also empowered to issue writs for the enforcement
r Original Jurisdiction: Under Article 131 of the of the Fundamental Rights.
Indian constitution, the Supreme Court has original As the Supreme Court is the highest judicial
jurisdiction in the following cases: authority it protects the fundamental rights of an
individual from any kind of infringement.
m If there is a dispute between the Government of
India and one or more States r Appellate Jurisdiction: The Supreme is the
m Between the Government of India and any state apex judicial authority of appeals and enjoys
or states on the one side and one or more States constitutional, civil as well as criminal appeals.
on the other side m Constitutional Appeal: Under Article 132 of
the constitution, it has been stated that appeal
m Between two or more States
for any final judgement of the High Court
Even the dispute arising in the election of the whether of civil or criminal nature for which
President and Vice President is dealt with by the the High Court issues a certificate stating that
Supreme Court. In these matters, the Supreme it contains a substantial question of law as
Court has original jurisdiction to exercise its power to the interpretation of the provisions of the
without the intervention of any other judicial constitution lies in the Supreme Court. Even if
authority. the High Court refuses to issue the certificate,
This jurisdiction of the Supreme Court is subjected the Supreme Court has the power to grant
to certain limitations. special leave petition in these matters.
m A dispute arising out of any pre-Constitution m Civil Appeals: Cases of civil nature shall lie in

treaty, agreement, covenant, the Supreme Court if the High Court is satisfied
with the following conditions and certifies that:
m engagement, sanad or another similar
F The matter involves a substantial question
instrument.
of law
m A dispute arising out of any treaty, agreement,
F If the High Court thinks that this case needs
etc, which specifically provides that the said
jurisdiction does not extend to such a dispute. to be decided by the Supreme Court
m Criminal Appeals: under Article 134(1) a
m Inter-state water disputes.
criminal appeal shall lie in the Supreme Court
m Matters referred to the Finance Commission.
under the following circumstances:
m Adjustment of certain expenses and pensions
F If the High Court in an appeal has reversed
between the Centre and the States.
the judgment of the lower court and
m Ordinary dispute of Commercial nature between
sentenced death penalty to the accused who
the Centre and the States. has been acquitted.
m Recovery of damages by a State against the F In the second situation when the High
Centre. Court itself has withdrawn a case from a
r Writ Jurisdiction: Under Article 32 it has given lower court and then sentenced the accused
the right to an individual to approach the Supreme person death penalty.
Court if there is any violation of his fundamental

217
 F If a case is certified by the High Court that court basically means hampering the proceedings of
it is fit for the appeal in the Supreme Court. the court neglecting its order, defying its authority
Sometimes the Supreme Court is conferred which ultimately results in disrespect of the court.
with powers by the parliament in order to The consequences arising out of it includes both
deal with certain cases decided by the High the civil or criminal penalties depending upon the
Court. gravity of the consequences. Civil contempt means
m Special Leave Petition: The Supreme Court has wilful disobedience to any judgment. Criminal
the jurisdiction to grant special leave petition to contempt means doing any act which lowers the
the final judgement given by any lower courts authority of the court or causing interference in
except for the courts or tribunal which has been
judicial proceedings.
formed by the law relating to armed forces.
However, if the judgement or order is given by 2. Judicial review: If any law is passed by the
a High Court (single judge bench) then the no Parliament or the State Legislature which does
appeal for that matter will be entertained in the not comply with the provisions of the Indian
Supreme Court. constitution or is passed with the jurisdiction which
they even do not possess will be declared void by
Under Article 138 of the Indian Constitution the
the Supreme Court through judicial review.
law expands the jurisdiction of the Supreme Court
in respect of subjects contained under the union 3. Custodian of the fundamental rights: It is the
list and shall also have jurisdiction over any other custodian of the fundamental rights. Under Article
subject for which the consent of state has been 32 every citizen of India has the Locus Standi to
obtained. move to court in order to seek legal remedy if there
r Advisory Jurisdiction: Article 143 authorises the is any kind of infringement to the fundamental
President of India to seek an advisory opinion from rights.
the Supreme Court in the two categories of matters: 4. The Supreme Court is conferred with the power
a. matters of public importance to make rules for carrying out its practice and
b. of any question arising out of pre-constitution, procedure.
treaty, agreement, engagement, Sanad or other 5. Appointment of Ad-hoc Judges: Article 127 states
similar instruments. that if at any time there is a lack of quorum of
Also, Article 144 states that all authorities civil and Judges of Supreme Court, the Chief Justice of India
judicial in the territory of India shall act in aid of the may with the previous consent of the President and
Supreme Court. Chief Justice of High Court, concerning request in
r Courts of record: Under Article 129 of the Indian writing the attendance of Judge of High Court duly
constitution, it has been stated very clearly that the qualified to be appointed as Judge of the Supreme
Supreme Court of India is a court of record and has Court.
the power to punish for contempt itself. A court of 6. Appointment of retired Judges of the Supreme
record means the proceedings, decisions or acts of Court or High Court: Article 128, states that the
a court which are enrolled for the evidential matter Chief Justice of India any time with the previous
and for the interminable and testimonial purposes. consent of the President and the person to be
They are unquestionable when presented before so appointed can appoint any person who had
any other court. previously held the office of a Judge of Supreme
Miscellaneous Powers and Functions Court.
Apart from the powers mentioned above Supreme Court 7. Appointment of Acting Chief Justice: Article 126,
has following powers too: states that when the office of Chief Justice of India
1. Power to punish for contempt: Supreme Court vacant or when the Chief Justice is by reason of
under Article 129 has the power to punish a person absence or otherwise unable to perform duties of
if found guilty of contempt of court. Contempt of the office, the President in such case can appoint

218
 Judge of the court to discharge the duties of the Article 129, Supreme Court is the court of record.
office. Its judgment is unquestionable and are accepted
8. Revisory Jurisdiction: The Supreme Court under by all the lower courts as precedents. Under Article
Article 137, has the power to review its own 141 the decision of the High Court is considered to
judgement be final and binding upon all the lower courts and
a. If new evidence is found. regarded as law.

b. If a fact which is related to the records of the 10. Appeals under The Peoples Representation Act,
came to the light. 1951 can be filed in the Supreme Court.

c. If there are enough reasons to suffice for a 11. Deciding authority regarding the election of
review Supreme Court itself states that nothing President and Vice President.
can restrain it from reviewing its own decisions 12. Enquiring authority in the conduct and behaviour
if it is satisfied with its effects over the general of UPSC members.
public. 13. Withdraw cases pending before High Courts and
9. Supreme Court as a Court of Record: Under dispose of them themselves.

219
 28 High Court
he is transferred to another High Court or is elevated
Introdution
to the Supreme Court.
The first High Court was the Calcutta. The Bombay and Appointment of Judges
Madras High Court was established in the year of 1862. Article 217 talks about the appointment, qualification
There are 25 High Courts in the country. Most recent is and conditions of the office of a Judge of a High Court.
the High Court built in Amaravati. Out of them, only three r The judges and the Chief Justice of the High Courts
High Courts have jurisdiction over more than one state. are appointed officially by the President.
Delhi is the only Union Territory which has a separate r The Chief Justice is appointed by the President in
High Court (since 1966). The Union Territories of Jammu consultation with Chief Justice of India and Governor
and Kashmir and Ladakh have a common High Court. of the state which the High Court’s jurisdiction falls
The other Union Territories fall under the jurisdiction of under.
different state High Courts. The Parliament can extend r For the appointment of other judges of the High
the jurisdiction of a High Court to any union territory or Court, they are appointed by the President on the
exclude the jurisdiction of a High Court from any union advice of the Chief Justice of India, the Governor of
territory. that state and the Chief Justice of the High Court.
Articles 214 to 231 in Part VI of the Constitution Qualifications to become a High Court Judge
deal with the organisation, independence, jurisdiction, A person who is to be appointed as a judge of a High
powers, procedures and so on of the High Courts. Court must possess the following qualifications:
Composition (Article 216) r He must be a citizen of India.
The head of the High Court is the Chief Justice of the High r He should have ten years of experience as a judge or
Court. There is one Chief Justice. Every High Court of a
r He should be a practising advocate for a period of
state or states consists of a Chief Justice appointed by
ten years in the High Court.
the President with the consultation of the Chief Justice
No age limit is prescribed for the appointment of
of India and the Governor of that State.
judges of the High Court.
Along with the Chief Justice, other judges are
But unlike the Supreme Court, any eminent jurist is
appointed by the President as per the requirement
not eligible for becoming a High Court judge.
of work. There is no specific limit prescribed for the
appointment of judges in a High Court. It may vary from Oath of Office (Article 219)
time to time. r The Chief Justice of the High Courts and judges of
the High Court take an oath before the Governor of
Tenure of High Court Judges
state or some person appointed by him.
r A judge of the High Court holds the office until the
age of 62 years. r While their appointment and removal are done
by the President, they take an oath in front of the
r A High Court judge gives his resignation to the
Governor.
President in writing.
Transfer of Judges (Article 222)
r If the President desires so and on the r The President can transfer a High Court judge after
recommendation of Parliament, he may remove any consultation with the Chief Justice of India.
High Court judge.
r In 1994, the Supreme Court held that judicial review is
r A High Court judge is said to vacate his office when necessary to check arbitrariness in transfer of judges.

220
r In third judges’ cases, it was opined that the Chief will submit its report to the Speaker or Chairman,
Justice of India should consult an addition of who will then lay the report before the relevant
collegium of four senior-most judges of the Supreme House of Parliament. If the report records a finding
Court, Chief Justice of the two High Courts involved of misbehaviour or incapacity, the motion for
in the process before taking any final decision. removal will be taken up for consideration and
Removal of High Court Judges (Article 218) debated.
Article 218 talks about the removal of High Court judges. r The motion for removal is required to be adopted
The removal of the judge of a High Court can be based on by each House of Parliament by:
two grounds: m a majority of the total membership of that
i. Misbehaviour House; and
ii. Incapacity to hold office. m a majority of at least two-thirds of the members
The procedure for impeaching a High Court judge is of that House present and voting.
quite similar to that of a Supreme Court judge. r If the motion is adopted by this majority, the motion
Process of Removal of Judges will be sent to the other House for adoption.
The Constitution provides that a judge can be removed r Once the motion is adopted in both Houses, it is
only by an order of the President, based on a motion sent to the President, who will issue an order for
passed by both Houses of Parliament. The procedure for the removal of the judge.
removal of judges is elaborated in the Judges Inquiry Act, Comparison between the Supreme
1968. The Act sets out the following steps for removal Court and the High Court
from office: Supreme Court High Court
r Under the Act, an impeachment motion may The Supreme Court is the apex The High Court is the highest
court of Justice. court of authority in the state its
originate in either House of Parliament. To initiate jurisdiction falls under.
proceedings: Headed by Chief Justice of India Headed by Chief Justice of the
m at least 100 members of Lok Sabha may give a High Court.
signed notice to the Speaker, or Supreme Court has supreme The High Court has supreme
power over all the courts in power over only the tribunal
m at least 50 members of Rajya Sabha may give a India. and other subordinate courts in
signed notice to the Chairman. its state.

r The Speaker or Chairman may consult individuals The Chief Justice of India is The Chief Justice of India is
appointed by the President appointed by the President on
and examine relevant material related to the notice. and the other judges of the the recommendation of Chief
Based on this, he or she may decide to either admit Supreme Court are appointed Justice of India and Governor
by the President on the of the state. The judges of the
the motion or refuse the motion. recommendation of the Chief High Court are appointed by
r If the motion is admitted, the Speaker or Chairman Justice of India. the President of India after
consulting the Chief Justice of
(who receives it) will constitute a three-member India, the governor of that state
committee to investigate the complaint. It will and the Chief Justice of the High
comprise: Court.
The judges of the Supreme The judges of the High Court
m a Supreme Court judge; Court retire at 65. retire at 62.
m Chief Justice of a High Court; and The Supreme Court is the The judgement of the High
highest court of appeal and Court can plead to the Supreme
m a distinguished jurist. there is no other court above it. Court.
r The Committee will frame charges based on which There is one Supreme Court in There is a total of 25 High Courts
the investigation will be conducted. A copy of the India. in India.
charges will be forwarded to the judge who can Other temporary judges:
present a written defence. Acting Chief Justice (Article 223)
r After concluding its investigation, the Committee r The President can appoint a High Court judge as
acting chief justice in case the vacancy of office of

221
 Chief Justice or Chief Justice is temporarily absent is not connected to the legislature or the executive.
or unable to perform his duties. r Tenure of the Judges: High Court judges enjoy the
r President can appoint additional judges for a security of tenure till the age of retirement, which is
period of two years if additional work load is seen 62 years. A High Court cannot be removed except by
or to clear arrears. The appointees should be duly an address of the President.
qualified. r Salaries and allowances: The High Court judges
r For Acting judges, the President can appoint duly enjoy good salaries, perks and allowances and these
qualified people till the judge is temporarily absent cannot be changed to their disadvantage except in
or unable to perform his duty. case of a financial emergency. The expenses of the
Additional Judges [Article 224(1)] High Court are charged on the Consolidated Fund
r If by reason of any temporary increase in the of the State, which is not subject to vote in the State
business of High Court or by reason of arrears of Legislature.
work therein, it appears to the President that the
r Powers: The Parliament and the State Legislature
number of the Judges of that Court should be for the
cannot cut the powers and jurisdiction of the High
time being increased, the President may appoint
Court as guaranteed by the Constitution.
duly qualified persons to be additional Judges of the
Court for such period not exceeding two years as he r Conduct of judges: Unless a motion of impeachment
may specific. has been moved, the conduct of the High Court
r Can hold office till the age of 62 years. judges cannot be discussed in the Parliament.

Acting Judge [Article 224 (2)] r Retirement: After retirement, High Court judges
r An Acting judge can be appointed when any Judge, cannot hold an office of emolument under the
other than the Chief Justice, is unable to perform Government of India or that of a State. There is an
his duties due to absence or otherwise, or when a exception to this clause, however, when, with the
permanent Judge of the High Court is appointed as consent of the Chief Justice of India, retired judges
its acting Chief Justice. can be nominated to a temporary office, and in the
r An Acting judge holds office until the permanent situation of emergencies.
Judge resumes his duties but cannot hold office Jurisdiction and Powers of High Court
beyond the age of 62 years. A High Court is the highest appellate authority in a state.
Retired judges (Article 224 (A)) It enjoys many powers like:
r The Chief Justice of a High Court, can request a Original Jurisdiction
retired High Court Judge to shit and act as a Judge of r It means the High Court has the power to hear a
the High Court for a temporary period. case in the first instance as an original court, not by
r He can take this step after getting consent from the way of appeal.
President of India and also of the person to be so r High Courts are empowered to issue writs in order
appointed. to enforce fundamental rights.
r The appointed person in this case will receive r Matters of admiralty, will, marriage, divorce,
such salary and allowances as determined by the company laws and contempt of Court.
President of India. r Disputes relating to the selection of members of
Autonomy of High Courts parliament and state legislatures.
The autonomy of the High Courts can be summarised by r Regarding revenue matter or an act ordered or
the points given below: done in revenue collection.
r Appointment of Judges and other staffs: The r Cases ordered to be transferred from a subordinate
appointment of judges, other officials and staffs of court involving the interpretation of the constitution
the High Court’s lies within the judiciary itself and to its own file.

222
r Election petitions can be heard by the High Courts. the subordinate courts.
r The High Courts of Calcutta, Bombay and Madras r In criminal matters: it extends to cases decided by
have original jurisdiction in criminal and civil cases Sessions and Additional Sessions Judges.
arising within these cities. m If the sessions judge has awarded imprisonment
r An exclusive right enjoyed by these High Courts for 7 years or more.
is that they are entitled to hear civil cases which m If the sessions judge has awarded capital
involve property worth over Rs.20000. punishment.
Writ Jurisdiction r The jurisdiction of the High Court extends to all
r Article 226 of Constitution empowers a High Court cases under the State or federal laws.
to issue writs including Habeas Corpus, Mandamus, r In constitutional matters, an appeal can be made
Certiorari, Prohibition and Quo-Warranto for if the High Court certifies that a case involves a
the enforcement of the fundamental rights of the substantial question of law.
citizens and for any other purpose. The phrase Supervisory Jurisdiction
“any other purpose” refers to the enforcement of an r According to Article 227 of the Constitution, the
ordinary legal right. High Court works as a supervisory body in a state.
It has to supervise all the courts and tribunals in a
r A writ is a discretionary remedy and the High Court
state that come under its territorial jurisdiction.
can refuse it on the Ground of acquiescence, delay,
r The power of the High Court is not unlimited to
available alternate remedy and no benefit to the
have unnecessary control over subordinate courts.
party.
But this power must be used by the High Court in
r The scope of issuing a writ under Article 226 to the rare cases and sparingly.
High Court is wider than that of the Supreme Court. r A High Court has the power of superintendence
High Courts in India have the power to issue writs over all Courts and Tribunals functioning in its
for the enforcement of fundamental rights as well territorial jurisdiction. Thus, it may:
as legal rights. Whereas the Supreme Court issues m Call for returns from them;
only on enforcement of fundamental rights.
m Make and issue, general rules and prescribe
r The writ jurisdiction of the High Court is not an
forms for regulating the practice and
exclusive but concurrent with the writ jurisdiction of
proceedings of them;
the Supreme Court. It means, when the fundamental
rights of a citizen are violated, the aggrieved party m Prescribe forms in which books, entries and
has the option of moving either the High Court or accounts are to be kept by them; and
the Supreme Court directly. m Settle the fees payable to the sheriff, clerks,
Appellate Jurisdiction officers and legal practitioners of them.
r The High Court is the topmost court in terms of Court of Record
hierarchy in a state. It is subordinate to the Supreme
r The High Court is a court of record under Article
Court but controls all subordinate courts.
215 of the Constitution. All the judgements and
r The High Court of a state has appellate jurisdiction
orders which the concerned High Court pass shall
in following matters – civil, criminal and
be kept as the court of record for future references.
constitutional.
These judgments act as precedents for the lower
r In civil matters, an appeal can be made directly
and subordinate courts.
from the subordinate or lower courts if the case
involves a value higher than Rs. 5000. It may be filed r The High Court has the power to punish for the
for an appeal on both question of law and question contempt of court:
of fact. The second appeal lies only when there is a m If any person disregards or disobeys the High
question of law in the judgement or order passed by Court’s judgment, or

223
 m Attempts to scandalise the authority of the r It can enquire into the records or other connected
court, or documents of any subordinate court.
m In any manner, tries to obstruct the proceedings r It can appoint its administration staff and determine
their salaries and allowances, and conditions of
of the court.
service.
Judicial Review
Control over Subordinate Courts:
r Judicial review means examining the correctness of r Article 235 of Constitution of India talks about
the legislative acts of the legislature and executive control of High Court over subordinate courts.
orders of both the central government and state r In addition to its appellate jurisdiction and
government. supervisory jurisdiction over the subordinate
r If the High Court’s find it to be against the spirit of Courts as mentioned above, a High Court has an
the Constitution or violative of fundamental rights administrative control and powers over them.
These include the following:
or made by an authority incompetent to make it,
m It is consulted by the Governor in the matters of
then it is declared void.
appointment, posting and promotion of district
r The 42nd Amendment of 1976 curtailed the power Judges and in the appointment of persons to the
of judicial review of the High Court. But then 43rd judicial service of the state.
Amendment 1977 restored the position of High m It deals with the matters of posting, promotion,
Court for judicial review. grant of leave, transfers and discipline of the
Administrative Powers members of the judicial service of the State.
r It superintends and controls all the subordinate m It can withdraw a case pending in a subordinate
courts in its territorial jurisdiction. Court if it involves substantial question of
r It can ask for details of proceedings from subordinate law that require the interpretation of the
courts. constitution.
r It issues rules regarding the working of the m Its law is binding on all subordinate Courts
subordinate courts. functioning with its territorial jurisdiction
r It can transfer any case from one court to another in the same sense as the law declared by the
and can also transfer the case to itself and decide Supreme Court is binding on all Courts in India.
the same.

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 29 Subordinate Courts

the State.
Introduction
The following qualifications should be present in
The states establish the organisational structure, legal anyone seeking to be appointed as a district judge:
authority, and nomenclature of the subordinate judiciary.
r He/she should not already be in the service of the
As a result, they vary slightly amongst states. Under the
Central or the State Government.
High Court, there are, generally speaking, three tiers of
r He/she should have been an advocate or a pleader
civil and criminal courts.
for seven years.
r He/she should be recommended by the High Court
for the appointment.
Appointment of persons other than District Judges
[Article 234]
Appointment of persons (other than district judges) to
the judicial service of a state are made by the Governor
of the state after consultation with the State Public
Service Commission and the high court
Control over Subordinate Courts [Article 235]
The control over district courts and other subordinate
In each district of India there are various types courts including the posting, promotion and leave of
of subordinate or lower courts. They are civil courts, persons belonging to the judicial service of a state and
criminal courts and revenue courts. These Courts hear
holding any post inferior to the post of district judge is
civil cases, criminal cases and revenue cases, respectively.
vested in the high court.
r Civil cases pertain to disputes between two or more
Interpretation of the terms [Article 236]
persons regarding property, breach of agreement or
The expression ‘district judge’ includes judge of a city
contract, divorce or landlord – tenant disputes. Civil
civil court, additional district judge, joint district judge,
Courts settle these disputes. They do not award any
punishment as violation of law is not involved in assistant district judge, chief judge of a small cause court,
civil cases. chief presidency magistrate, additional chief presidency
magistrate, sessions judge, additional sessions judge
r Criminal cases relate to violation of laws. These
and assistant sessions judge. The expression ‘judicial
cases involve theft, dacoity, rape, pickpocketing,
physical assault, murder, etc. These cases are filed service’ means a service consisting exclusively of persons
in the lower court by the police, on behalf of the intended to fill the post of district judge and other civil
state, against the accused. In such cases the accused, judicial posts inferior to the post of district judge.
if found guilty, is awarded punishment like fine, Application of the above Provisions to Certain
imprisonment or even death sentence. Magistrates [Article 237]
r Revenue cases relate to land revenue on agriculture The Governor may direct that the above-mentioned
land in the district. provisions relating to persons in the state judicial service
Appointment of District Judges [Article 233] would apply to any class or classes of magistrates in the
The Governor of the State, in consultation with the High state
Court, appoints, posts, and promotes district judges in Subordinate Courts- Structure and Jurisdiction

225
 The States define the subordinate judiciary's overturn them.
organizational structure, jurisdiction, and terminology. Panchayat Courts hear petty civil and criminal
As a result, they vary slightly from State to State. cases in several states. Nyaya Panchayat, Gram Kutchery,
Generally, underneath the High Court, there are three Adalati Panchayat, Panchayat Adalat, and so on are some
tiers of civil and criminal courts. of the names given to them.
District Judge National Legal Services Authority
The district judge is the district's highest judicial Evolution of free legal aid in India
authority with original and appellate authority in both Article 39A of the Indian Constitution assures
civil and criminal issues. underprivileged and weaker sections of society free
To put it another way, the district judge also serves legal help as well as fair justice for all.
as the sessions judge. He/she is known as the district The State must also ensure equality before the law
judge when dealing with civil issues and the sessions and a judicial system that promotes justice on an equal
judge when dealing with criminal cases.
footing for all citizens, according to Articles 14 and 22(1)
Both judicial and administrative authorities are of the Constitution.
exercised by the district judge and also have supervisory
authority over all of the district's subordinate courts. Since 1952, the Indian Government has addressed
the issue of legal aid for the underprivileged at a number
The High Court hears appeals against his/her
directives and judgments. Any penalty, including life of conferences of law ministers and law commissions.
imprisonment and capital punishment, can be imposed The Government issued rules for legal aid schemes
by the session’s judge (death sentence). However, in 1960 and plans were proposed by Legal Aid Boards,
whether or not there is an appeal, any capital punishment Societies, and Law Departments in several states. Under
he/she imposes must be confirmed by the High Court. the Chairmanship of Justice P.N. Bhagwati, then a Judge
Lower Courts of the Supreme Court of India, a national committee was
On the civil side, the Subordinate Judge’s Court is formed in 1980 to oversee and regulate legal assistance
located below the District and Sessions Court, while on
programs across the country.
the criminal side, the Chief Judicial Magistrate’s Court is
located beneath the District and Sessions Court. Legal Services Authorities Act was enacted by
Parliament in 1987 and came into force on November
In civil cases, the subordinate judge has unrestricted
pecuniary jurisdiction while the chief judicial magistrate 9, 1995, to create a nationwide uniform network for
rules on criminal matters that carry a maximum sentence delivering free and competent legal services to the
of seven years in jail. weaker parts of society on an equal footing.
The Court of Munsiff, on the civil side, and the National Legal Services Authority (NALSA)
Court of Judicial Magistrate, on the criminal side, are the The National Legal Services Authority (NALSA) was
lowest levels. founded in 1995 under the Legal Services Authorities
The munsiff has limited jurisdiction and only Act of 1987 to monitor and review the effectiveness of
decides minor civil issues of the low monetary stake legal aid programs and to develop rules and principles
while a judicial magistrate is a person who hears criminal for providing legal services under the Act.
proceedings which are punishable by a sentence of up to
It also distributes funding and grants to State Legal
three years in jail.
Services Authorities and non-profit organizations to
On the civil side, there are city civil courts (chief
judges) in various metropolitan cities, and on the criminal help them execute legal aid systems and initiatives.
side, there are courts of metropolitan magistrates. Who is eligible?
Small Causes Courts have been established in The conditions for providing legal assistance to qualified
several States and presidential towns. These courts people are outlined in Section 12 of the Legal Services
make quick decisions in civil matters with low stakes. Authorities Act of 1987.
Their decisions are final, although the High Court can Every person who has to file or defend a lawsuit

226
under this Act shall be entitled to legal assistance if such Government Departments, Statutory Authorities,
person is: and Public Sector Undertakings for the pre-litigation
r a member of a Scheduled Caste or Scheduled Tribe. resolution of pending issues and disputes;
r Accreditation of NGOs for Legal Literacy and Legal
r a human trafficking victim or beggar, as defined in
Awareness campaign;
Article 23 of the Constitution.
r Appointment of "Legal Aid Counsel" in all of the
r a child or a woman.
country's courts of Magistrates;
r a person who is mentally ill or otherwise impaired.
r Disposal of cases through Lok Adalat’s on old pattern;
r a person who is a victim of unjustified poverty, such
r Publicity to Legal Aid Schemes and programs to
as a mass disaster, ethnic violence, caste atrocities,
make people aware about legal aid facilities;
flood, drought, earthquake, or industrial calamity.
r Emphasis on competent and quality legal services
r a factory worker, etc
to the aided persons;
r Disabled persons
r Legal aid facilities in jails;
r Persons in custody
r Establishing Counselling and Conciliation Centres
r Persons whose annual income does not exceed in all of the country's districts;
₹1 lakh (in the Supreme Court Legal Services
r Educating Judicial Officers on Legal Services
Committee the limit ₹1,25,000/-)
Schemes and Programs;
Objective
r Publication of "Nyaya Deep", the official newsletter
To develop an inclusive legal system that provides of NALSA;
marginalized and disadvantaged people with fair and
r Increase the income ceiling for legal help before the
meaningful justice.
Supreme Court of India to Rs.1,25,000/- per annum
Structural Organization under Legal Services and to Rs.1,00,000/- per annum for legal aid up to
Authority Act the High Courts; and
As a result of the Legal Services Act, a National Legal r Steps to take to draught guidelines for the return of
Services Authority (NALSA) was established as the apex court fees and the execution of Lok Adalat Awards.
body for regulating the legal aid provisions. State Legal State Legal Service Authority
Services Authority (SLSA) handles the implementation r A State Legal Services Authority is established
of NALSA’s powers at the state level, which delegates in each state to carry out the Central Authority's
further to a number of organizations. policies and orders, provide legal services to the
NALSA is considered to be an alliance between people, and conduct Lok Adalat’s.
the State, Social Action Groups, individuals, and non- r The State Legal Services Authority is led by the Chief
profit organizations that have their presence from the Justice of the State High Court, who also serves as
grassroots level to the state level. its Patron-in-Chief, and its Executive Chairman is a
After the constitution of NALSA, the following serving or retired High Court Judge.
schemes and measures have been envisaged and r The purpose of each District Legal Services
implemented by the Central Authority: Authority is to carry out the District's Legal Aid
r Establishing permanent and continuous Lok Programs and Schemes. The District Judge serves
Adalat’s in all districts of the country for the pre- as its ex-officio Chairman.
litigation resolution of pending concerns and r Taluk Legal Services Committees are also formed
conflicts; for each Taluk or Mandal, or for a group of Taluks
r Separate permanent and continuous Lok Adalat’s for or Mandals, to coordinate legal services activities
in the Taluk and organize Lok Adalat’s. Every Taluk

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 Legal Services Committee is chaired by an ex-officio Provided that any matter relating to an offence not
Chairman who is a senior Civil Judge who works compoundable under the law shall not be settled in Lok
within the Committee's jurisdiction. Adalat.
Lok Adalat Which Lok Adalat to be approached?
NALSA along with other Legal Services Institutions As per the Act, a Lok Adalat shall have jurisdiction to
conducts Lok Adalats. Lok Adalat is one of the alternative determine and to arrive at a compromise or settlement
dispute redressal mechanisms, it is a forum where between the parties to a dispute in respect of -
disputes/cases pending in the court of law or at pre- r Any case pending before; or
litigation stage are settled/ compromised amicably. Lok r Any matter which is falling within the jurisdiction
Adalats have been given statutory status under the Legal of, and is not brought before, any court for which
Services Authorities Act, 1987. the Lok Adalat is organised.
Nature and Scope: Provided that the Lok Adalat shall have no
Generally speaking, Lok Adalat is not a court in its jurisdiction in respect of matters relating to divorce or
accepted connotation. The difference between Lok matters relating to an offence not compoundable under
Adalat and law court is that the law court sets at its any law.
premises where the litigants come with their lawyers
How to get the case referred to the Lok Adalat for
and witnesses goes to the people to delivers justice at
Settlement?
their door step. Lok Adalat is a forum provided by the
r Case pending before the court.
people themselves or by interested parties including
social activities or social activist legal aiders, and public- r Any dispute at pre-litigative stage.
spirited people belonging to every walk of life. It is just The State Legal Services Authority or District
a forum provided by the people themselves for enabling Legal Services Authority as the case may be on receipt
the common people to ventilate their grievances against of an application from any one of the parties at a pre-
the state agencies or against other citizens and to seek a litigation stage may refer such matter to the Lok Adalat
just settlement if possible. for amicable settlement of the dispute for which notice
The basic philosophy behind the Lok Adalat is to would then be issued to the other party.
resolve the people dispute by discussion, counselling, Levels and Composition of Lok Adalats:
persuasion and conciliation so that it gives speedy and At the State Authority Level
cheap justice, mutual and free consent of the parties. In r The Member Secretary of the State Legal Services
short it is a party’s justice in which people and judges Authority organizing the Lok Adalat would constitute
participate and resolve their disputes by discussion, benches of the Lok Adalat, each bench comprising
persuasion and mutual consent. of a sitting or retired judge of the High Court or a
Lok Adalats is deemed to be a decree of a civil court sitting or retired judicial officer and any one or both
and is final and binding on all parties. of- a member from the legal profession; a social
worker engaged in the upliftment of the weaker
Nature of cases to be referred to Lok Adalat
sections and interested in the implementation of
The types of cases dealt with generally are:
legal services schemes or programmes.
r Mutation of land cases.
At High Court Level
r Compoundable criminal offences. r The Secretary of the High Court Legal Services
r Family disputes. Committee would constitute benches of the Lok
r Encroachment on forest lands. Adalat, each bench comprising of a sitting or retired
r Land acquisition disputes. judge of the High Court and any one or both of- a
r Motor accident claim, and member from the legal profession; a social worker
engaged in the upliftment of the weaker sections
r Cases which are not sub-judice.
and interested in the implementation of legal

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 services schemes or programmes. r Further, the award of the Permanent Lok Adalat is
At District Level final and binding on all the parties.
r The Secretary of the District Legal Services r The jurisdiction of the Permanent Lok Adalats is
Authority organizing the Lok Adalat would up to Rs. Ten Lakhs. Here if the parties fail to reach
constitute benches of the Lok Adalat, each bench to a settlement, the Permanent Lok Adalat has the
comprising of a sitting or retired judicial officer and jurisdiction to decide the case.
any one or both of either a member from the legal Mobile Lok Adalats
profession; and/or a social worker engaged in the Mobile Lok Adalats are also organized in various parts
upliftment of the weaker sections and interested of the country which travel from one location to another
in the implementation of legal services schemes to resolve disputes in order to facilitate the resolution of
or programmes or a person engaged in para-legal disputes through this mechanism.
activities of the area, preferably a woman. Resources and achievement of Lok Adalat:
At Taluk Level Lok Adalat can only expect gratitude of the people in
r The Secretary of the Taluk Legal Services distress in return. They must devote time for the cause
Committee organizing the Lok Adalat would of social justice and dedicate their service for its success.
constitute benches of the Lok Adalat, each bench Lok Adalats are generally organized in the premises of
comprising of a sitting or retired judicial officer and courts. Lok Adalat can work as substitutes for setting
any one or both of either a member from the legal cases which are pending in superior courts. Encouraged
profession; and/or a social worker engaged in the by the response that Lok Adalat have been receiving at
upliftment of the weaker sections and interested the district level, the state legal aid boards have started
in the implementation of legal services schemes organizing Lok Adalats for cases pending in the High
or programmes or a person engaged in para-legal Courts.
activities of the area, preferably a woman. The Lok Adalat has also been organized even for the
National Lok Adalat cases pending in the Supreme Court.
National Level Lok Adalats are held for at regular
Organization of Lok Adalat
intervals where on a single day Lok Adalats are held
The State authority or district authority or the High
throughout the country, in all the courts right from the
Court legal services committee or as the case may be;
Supreme Court till the Taluk Levels wherein cases are
Tehsil legal services committee may organize Lok Adalat
disposed of in huge numbers. From February 2015,
at such intervals and places and for exercising such
National Lok Adalats are being held on a specific subject
jurisdiction and for such areas as it thinks fit. Every
matter every month.
Lok-Adalat organized for an area shall consist of such
Permanent Lok Adalat number of;
The other type of Lok Adalat is the Permanent Lok
r Serving or retired on judicial officer, and
Adalat, organized under The Legal Services Authorities
Act, 1987. r Other person of the area as may be specified by the
state authority or the district authority or the High
r Permanent Lok Adalats have been set up as
Court legal services committee or as the case may
permanent bodies with a Chair-man and two
be, the Tehsil legal services committee organizing
members for providing compulsory pre-litigative
such Lok Adalats.
mechanism for conciliation and settlement of cases
relating to Public Utility Services like transport, The experience and qualifications of persons for Lok
postal, telegraph etc. Adalats shall be such as may be prescribed by the
r Here, even if the parties fail to reach to a settlement, government in consultation with the chief justice of the
the Permanent Lok Adalat gets jurisdiction to High Court.
decide the dispute, provided, the dispute does not Procedure of Lok-Adalats
relate to any offence. r The Lok Adalats are generally organized by state

229
 legal aid and advice boards or the district legal aid Award of Lok-Adalat
committees etc. Lok Adalats shall have jurisdiction r Every award of the Lok Adalat shall be deemed to be
to determine and arrive at a compromise or a decree of civil court. Award made by a Lok Adalat
settlement between the parties to a dispute in shall be final and binding on all the parties to the
respect of; dispute and no appeal shall lie to any court against
m Any case pending before the court; or the award.
m Any matter which is falling within the r If the parties are not satisfied with the award of
jurisdiction of and is not brought before any the Lok Adalat though there is no provision for an
court for which the Lok Adalat is organized. appeal against such an award, but parties are free
to initiate litigation by approaching the court of
r The Lok Adalat shall not have jurisdiction in respect
appropriate jurisdiction by filing a case by following
of any matter or case relating to an offence not
the required procedure.
compoundable under any law.
r There is no court fee payable when a matter is filed
r The date and place of holding a Lok Adalat are fixed
in a Lok Adalat. If a matter pending in the court
about a month in advance by the Legal Aid Board.
of law is referred to the Lok Adalat and is settled
The date so fixed is generally a Saturday or Sunday subsequently, the court fee originally paid in the
or some other holiday. court on the complaints/petition is also refunded
r Information about holding a Lok Adalat is given back to the parties.
wide publicity through press, posters, radio, TV, etc. r The Lok Adalat shall not decide the matter so
r Before a Lok-Adalat is held, its organizers request referred at its own instance, instead the same
the presiding officers of the various local courts to would be decided on the basis of the compromise
examine cases pending in their courts where in their or settlement between the parties. The members
opinion, conciliation is possible. Once the cases are shall assist the parties in an independent and
identified, parties to the dispute are motivated by impartial manner in their attempt to reach amicable
the judges of the Lok Adalats to settle their cases settlement of their dispute.
through Lok Adalat. Generally, senior judicial Powers of Lok Adalat
officers are invited to inaugurate a Lok Adalat. The Lok-Adalat shall have the same powers as are vested
r The team of Lok Adalat generally consist of in a civil court under the code of civil procedure 1908
retired judges, senior local officers, members of while trying a suit in respect of the following matters
the Bar, spirited public-men, active women social namely;
worker, elders of the locality and voluntary social
r The summoning and enforcing the attendance of
organizations. The members of the Lok Adalat are
any witness and examining him on oath.
called conciliators. The number of conciliators is
r The discovery and production of any document.
usually three.
r The reception of evidence on affidavits.
r If conciliation result in a settlement of a dispute, a
compromise deed is drawn up and after obtaining r The requisitioning of any public record or document
the signatures of the parties to the disputes and their or copy of such record or document from any court
advocates, it is presented to the presiding officer of of office and
the competent court who is normally present at the r Such other matters as may be prescribed.
place where the Lok Adalat is organized. Every Lok Adalat shall have the requisite powers to
r The judge (Presiding officer) after examining the specify its own procedure for the determination of any
fairness and legality of compromise and satisfying dispute coming before it.
himself that the compromise has been arrived at All proceedings before the Lok Adalat shall be
by the free will and mutual consent of the parties, deemed to be judicial proceedings and every Lok-Adalat
passes a decree. shall deemed to be civil Court.

230
Gram Nyayalaya must be eligible to be appointed as a Judicial
Gram Nyayalayas are village courts for speedy and easy Magistrate of the first class.
access to the justice system in the rural areas of India. r While appointing a Nyayadhikari, representation
The establishment of Gram Nyayalayas in India can shall be given to the members of the Scheduled
be traced to the Gram Nyayalayas Act, 2008 passed by Castes, the Scheduled Tribes, women and such
the Parliament of India. other classes or communities
Need for Gram Nyayalayas Jurisdiction
r The Constitution of India under Article 39-A r Gram Nyayalayas have jurisdiction over an area
mandates for free legal aid to the poor and weaker specified by a notification by the State Government
sections of society. in consultation with the respective High Court.
r The Law Commission of India in its 114th r Nyayadhikari can hold mobile courts and conduct
report recommended the establishment of Gram proceedings in villages.
Nyayalayas for providing speedy, substantial and
r Gram Nyayalayas has both civil and criminal
inexpensive justice to the common man.
jurisdiction over the offences.
r Subsequently, the Parliament of India passed
r They can try criminal offences specified in the
the Gram Nyayalayas Act, 2008 providing for its
First Schedule and civil suits specified in Second
establishment.
Schedule to the Act.
Salient features of the Gram Nyayalayas Act
r The Central as well as the State Governments have
The Gram Nyayalayas Act defines its establishment,
been given the power to amend the First Schedule
jurisdiction, and procedure in civil and criminal cases.
and the Second Schedule of the Act.
Establishment of Gram Nyayalaya
r The pecuniary jurisdiction of the Nyayalayas is fixed
r The State Government, after consultation with
by the respective High Courts.
the High Court, may establish one or more Gram
Nyayalayas r High Courts can transfer eligible cases from the
district court to the Gram Nyayalayas.
m for every Panchayat at intermediate level or
r The Court shall try to settle disputes via conciliation
m a group of contiguous Panchayats at the
between the parties and the court can make use of
intermediate level in a district or
the conciliators to be appointed for this purpose.
m where there is no Panchayat at intermediate
Working
level in any State, for a group of contiguous
r The Gram Nyayalayas are is not bound by the Indian
Gram Panchayats
Evidence Act and follow the principle of natural
r The Gram Nyayalayas established shall be in justice.
addition to the courts established under any other
r The Gram Nyayalaya shall exercise the powers of
law for the time being in force.
a Civil Court with certain modifications and shall
r The headquarters of every Gram Nyayalaya shall follow the special procedure as provided in the Act.
be located at the headquarters of the intermediate
r The Gram Nyayalaya shall endeavour to settle the
Panchayat in which the Gram Nyayalaya is
disputes by bringing about conciliation between
established or such other place as may be notified
the parties as far as possible and it shall make use
by the State Government.
of the conciliators appointed for this purpose.
Appointments r The Gram Nyayalaya shall follow the summary
r The State Government shall, in consultation with procedure in case of criminal cases. A summary
the High Court, appoint a Nyayadhikari for every procedure is a legal procedure for enforcing the
Gram Nyayalaya right that takes effect faster and more efficiently
r A person qualified to be appointed as a Nyayadhikari than ordinary methods.

231
 Nature of Judgement r Setting up of legal services institutions at Taluk
r The judgements/orders passed by the Gram level reducing the dependency on Gram Nyayalayas.
Nyayalaya are deemed to be a decree Criticisms on Gram Nyayalayas
r Appeals r The number of disputes settled by Gram Nyayalayas
m Appeal in Civil cases– Appeals in civil cases are negligible and most are referred to District
shall lie to the District Court which shall hear forums by appeal. Hence, they are not effective in
and dispose it within six months from the date reducing the burden of District Courts.
of filing of such appeal. r Absence of a regular cadre of Gram Nyayadhikari.
m Appeal in Criminal Cases– Appeals in criminal r Ambiguities regarding jurisdiction due to the
cases shall lie to the court of session which shall parallel existence of alternate dispute mechanisms,
hear and dispose it within six months from the tribunals, Adalats etc.
date of such appeal.
r Some Gram Nyayalaya is located at cities and towns
Importance of Gram Nyayalayas which doesn’t provide any utility to villagers.
r Access to justice for the poor and marginalized
r Inadequate awareness amongst various
remains a perennial problem in India.
stakeholders.
r Various measures such as simplifying procedural
How to improve the functioning of Gram Nyayalayas?
laws, establishing alternate dispute redressal
r A separate cadre of Nyayadhikaris can be created
mechanisms, setting up fast track courts and
so that Gram Nyayalayas has its dedicated cadre of
providing free legal aid to the poor are undertaken
Nyayadhikaris.
in this regard.
r Only the creation of separate cadre will not
r Despite these measures, access to justice and faster,
suffice. Appropriate training should be provided
inexpensive settlement of disputes at the grass-
to Nyayadhikaris about legal procedures, local
roots level are yet to materialize.
languages, etc.
r Gram Nyayalayas can greatly help in
r Separate buildings, its own staff, and other
m devolving justice delivery to the fourth tier
infrastructure must be made available and for those
m ensuring equal access to justice appropriate budgetary measures must be taken.
m reducing the burden of district courts r Avoiding situations of parallel jurisdiction and
m delivering speedier justice duplicity of jurisdiction may go a long way in the
m reducing the costs associated with litigation for success of Gram Nyayalayas.
the common man r Scientific assessment of performance must be
m reducing dependency on extra-constitutional done periodically by respective High courts, and
forums of justice policy institutions like NITI Aayog can put things in
Why Gram Nyayalayas is not operational? perspective.
r Lack of infrastructure like buildings, office spaces r Awareness generation campaigns through print
and related equipment. and digital media and through panchayat raj
r Lack of man-power resources, notaries, stamp institutions must be held to make people aware
vendors etc. at sub-district level. about the importance and ease of Gram Nyayalaya
procedures so that they grow willingness to use the
r Inadequate Central assistance.
platform.
r Lack of awareness among lawyers, police officials.
Family Court
r Non-cooperation of enforcement agencies. Family courts are specialized courts that were
r The reluctance of state functionaries to invoke the established with the goal of preserving the welfare of the
jurisdiction of Gram Nyayalayas. family through the use of a multi-disciplinary approach

232
to resolving family problems within the framework of r He must have worked for a term not less than seven
the law. years in a Judicial Office in India or in the office of a
These courts aim to protect individuals' legal Member of a Tribunal or any post under the Centre
rights on the one hand, and to serve as a guide, helper, or a State which requires special knowledge of law;
and counsellor on the other, to help families deal with or
problems and restore family harmony. r He must have worked as an advocate of a High Court
To provide speedy settlement with fewer expenses or two or more courts of succession for a term not
and formalities, in disputes relating to marriage and less than seven years; or
family and to make an agreement between the parties r He must possess such qualifications as prescribed
by the Central government after consulting with the
for their conciliation, the Family Courts Act,1984
Chief Justice of India; or
was enacted by the parliament. Through this act, the
r He must have not attained the age of sixty-two
Family Courts were set up in the states through which
years.
reasonable efforts for an agreement are made before
In this process of selection of judges, it must be
beginning a trial in other Courts.
ensured that the person selected must know how to
Important provisions of the Family Courts Act, 1984 settle a dispute by way of conciliation and counselling, to
Establishment of family courts in India protect the marriage and to promote the welfare of the
According to this act, the State government, after children by their reason and experience. While selecting
consultation with the High Court shall establish the the judges, it must also be ensured that the preference
Family Court in every area of the state where the shall be given to the women.
population is exceeding 1 million or in the area where The salary or honorarium, other allowances payable
the State government deem necessary. and other terms and conditions of the judges of the
The State government, after consultation with the Family Court will be decided by the State Government
High Court, shall specify the limits of the area till where after consulting with the High Court.
the jurisdiction of the Family Court extends. It may also Jurisdiction
reduce, increase, or alter such limits of the jurisdiction Act confers those power and jurisdiction on the
family courts which are exercised by the District Court or
of the Family Court.
Subordinate Civil Courts in their suits and proceedings.
Appointment of the Judges
r proceeding for the decree of nullity of marriage, or
The state government has the power to appoint one or
restitution of conjugal rights, or for the dissolution
more persons as the judges of the Family Court after of the marriage between the parties;
consulting with the High Court.
r proceeding for determining the validity of a
The state government, after consulting with the marriage or matrimonial status of a person;
High Court, may also appoint any of the judges as the r matter related to the properties between the parties
Principal Judge and any other judge as to the Additional to a marriage;
Principal Judge.
r injunction or order arising out of a marriage;
The main function of the Principal Judge is to
r declaring the legitimacy of a person;
distribute the business of the court among the various
r proceeding for maintenance;
judges and the Additional Principal Judge is appointed
r proceeding for the guardianship of the person, or
to exercise the powers of the Principal Judge in his
custody of any minor.
absence or when he is not able to do so due to illness or
any other cause. Significance of Family Court
r It attempts to effect reconciliation or a settlement
Qualification
between the parties to a family dispute.
Qualifications which are required for appointing as
r During the conciliation stage, it provides for the
judge of the Family Court:

233
 association of social welfare agencies, counsellors, Code of Civil Procedure in suits or proceedings,
and so on, as well as the service of medical and it makes it difficult for the average person to
welfare experts. understand the complex law.
r The parties to a dispute before a Family Court are r The act did not create any simplified rules that a
not entitled to be represented by a legal practitioner layperson could understand.
as a matter of right. However, in the interest of r The act also prohibits the presence of lawyers in a
justice, the Court may seek the assistance of a legal family court suit or proceeding, making it difficult
expert as an amicus curiae. for the average person to understand the court's
r The rules of evidence and procedure are simplified procedure and formalities.
so that a dispute is dealt with effectively. r In such cases, the parties to a suit must rely on the
r Only one right of appeal is provided which is to the clerks and peons of the court.
High Court. r The act was enacted to establish family courts
r In order to reduce and simplify legal formalities, across the country with a conciliatory approach
they take a multidisciplinary approach to ensure a to ensure quick relief to the parties, but it failed to
fair trial and the expeditious resolution of cases at a ensure gender justice and equality due to judges'
low cost. orthodox thinking and counsellor’s patriarchal
r In order to simplify proceedings, family courts have attitudes.
the authority to establish their own procedures for Nyaya Panchayat
settlement through rules developed in consultation Nyaya Panchayats are considered as a unit of the
with the High Courts. Panchayati Raj System of India. They function at the
r Thus, expertise and expeditious disposition are two village or district level to deliver justice and thus are
major factors for establishing such a court. considered as the most basic level of the Indian Judiciary.
r It also aimed to provide an inexpensive remedy and Reasons for setting up Nyaya Panchayats
to have the flexibility and an informal atmosphere The rationale behind setting up the Nyaya Panchayat is:
in the conduct of proceedings. r Democratic decentralisation.
Criticism of Family Court r Easy access to justice.
r The term "family," has not been defined in the Act,
r Speedy disposal of cases.
and a result of which matters arising from economic
consequences that affect the family in various ways r Inexpensive justice system.
are not covered by the family court. r Revival of traditional village community life.
r The family court only hears cases involving r Combination of judicial system and local self-
marriage, maintenance, and divorce. government.
r When the counsellors and other authorities kept r Reduction in pressure on Civil Courts.
changing, the situation deteriorated.
However, according to the latest reports, this
r If a suit lasted a long time and the counsellors was institution is functioning only in handful of states.
changed in the middle of it, it became difficult for
Composition of Nyaya Panchayat
the parties, particularly women, to convey their
Every Panchayat that comes under the jurisdiction
problems again.
of Nyaya Panchayat elects a member for such Nyaya
r Despite the fact that it is mandatory for state Panchayat. The elected member must be –
governments to establish family courts in cities with
r 30 years old or above,
populations of over a million people in consultation
with the High Court, only a few states have done so. r He must be a registered voter in the concerned
Panchayat,
r Since the family court follows the provisions of the

234
r He must be literate to read and write in the r They provide protection to the local customs and
concerned State’s language, and traditions.
r He must not be debarred from being elected to the r Panchayat System has a great educative value for
Panchayat under any law in force. the villagers.
Whoever is elected as the Nyaya Panch shall not Disadvantages of Nyaya Panchayats
hold the office of Sarpanch, or a Parishad, or of a member r They are faction ridden institutions manned by
of Samithi, or a State Legislature or Union Parliament laymen. Justice provided by them is based on caste,
simultaneously. community, personal or political considerations.
Jurisdiction of Nyaya Panchayats Therefore, chances of injustice cannot be ignored.
r It has judicial functions both in civil as well as in r It has been seen that panchs are often corrupt,
criminal fields. partial and behave improperly or rudely.
r It can deal with several minor offences) like simple r They are laymen, therefore ignorant of law and they
hurt, wrongful restraint, theft etc, and punish an often give arbitrary and irrational decisions.
accused to pay fine. r One cannot ignore that casteism and groupings
r In civil matters nyaya panchayat have jurisdiction are major features of rural India and therefore the
in cases like suits for money and goods etc. The influence of these shades on the justice cannot be
pecuniary limit of such cases is very low. According to 77th Report of the Law Commission,
Procedure in Nyaya Panchayats wherein it observed that, it will be a backward step
r The procedure laid down for trial of cases has to revert to the primitive method of administration
been so designed as to avoid delays and technical of justice by taking out disputes to a group of
difficulties. Therefore, procedure followed in nyaya ordinary laymen ignorant of modern complexities
panchayats is very simple and informal. of life and not conversant with legal concepts and
r The procedure codes like Code of Civil Procedure, procedures.
Criminal Procedure Code and Indian Evidence Act The Mehta Committee opposed the combination
apply to the nyaya panchyats. of judicial and executive functions in one body and also
r But they have power to call witnesses and the recommended qualified judges to preside over nyaya
parties for recording their evidence or producing panchayat.
any relevant document or fact. Suggestive Measures
r Unlike courts, they have the power to investigate Law Commission in its 114th Report concluded with the
the facts to find out the truth and at the same time safeguards designed to ensure nyaya panchayats proper
they have the power to punish for its contempt. working and improvement. These courts are capable
Lawyers cannot appear before a nyaya panchyats in of playing a very necessary and useful part in the
any of its proceedings. administration of justice in the country. Law Commission
Advantages of Nyaya Panchayats over the regular presented a new model for the establishment of nyaya
courts panchayats.
r They provide an inexpensive and expeditious The suggested model is as follows:
mechanism to settle disputes. r There should be a panchayat judge and two lay
r They provide relief to the ordinary courts as they judges in a Nyaya Panchayat. Where the panchayat
lift the part of burden of judicial work on their judge should be legally trained person belonging to
shoulders. In a way, they are emerged on solution to the cadre of judges to be specifically set up for the
the problem of mounting arrears of cases before the purpose.
courts. r In order to select legally trained judge for nyaya
r They provide justice at the door steps for the village panchayats the state shall constitute a special cadre
folks.

235
 of Judges that is Panchayati Raj cadre of judges. r In criminal trials, the Code of Criminal Procedure,
r The judges should be nominated not elected. 1973 is to be applied but Indian Evidence Act, 1872
should not applicable.
r The-local jurisdiction of the Gram Nyayalaya would
be over villages comprised in a Taluka/Tehsil. r Lawyers should be permitted to appear before the
Nyaya Panchyats.
r There would be no monetary ceiling on its
jurisdiction. A broad civil jurisdiction should be r No appeal shall lie in civil cases from the decisions
given, and the criminal jurisdiction should be equal of the Nyaya Panchayats. But a revision petition lies
to that of a judicial magistrate of first class. to correct errors of law which may have affected
the decision of the Nyaya Panchayats to the district
r The Nyaya Panchayat would follow a simple
courts.
procedure to dispose the cases.
r In criminal case, an appeal would lie to the session’s
r Neither the Code of Civil Procedure, 1908, nor the
courts against the decisions of the Nyaya Panchayats
Indian Evidence Act, 1872 is to be applied in its
in which it was imposed a substantive sentence of
procedure.
imprisonment.

236
 30 Tribunals

tribunals.
Introduction
Categories of Administrative Tribunals
Tribunals are judicial or quasi-judicial institutions There are diverse forms of tribunals which are governed
established by law. They intend to provide a platform for by the statues, rules and regulations by the central
faster adjudication as compared to traditional courts, as government as well as the state government.
well as expertise on certain subject matters. Pendency
Administrative Tribunals for service matter [Article
of cases in courts is one of the key challenges faced by
323A]
the judicial system. The 42nd Amendment Act of 1976
Article 323A provides the establishment of
added a new Part XIV-A to the Constitution. This part is
administrative tribunals by law made by Parliament for
entitled as ‘Tribunals’ and consists of only two Articles–
the adjudication of disputes and complaints related to
Article 323 A dealing with administrative tribunals and
the recruitment and conditions of service of Government
Article 323 B dealing with tribunals for other matters.
servants under the Central Government and the State
Characteristics of Administrative Tribunals
Government. It includes the employees of any local or
The following are the few attributes of the administrative
other authority within the territory of India or under the
tribunals which make them quite different from the
control of the Government of India or of a corporation
ordinary courts:
owned or controlled by the Government.
r Administrative tribunals must have statutory origin
The establishment of such tribunals must be at the
i.e., they must be created by any statute.
centre and state level separately for each state or for two
r They must have some features of the ordinary or more states. The law must incorporate the provisions
courts but not all. for the jurisdiction, power and authority to be exercised
r An administrative tribunal performs the quasi- by tribunals; the procedure to be followed by tribunals;
judicial and judicial functions and is bound to act the exclusion of the jurisdiction of all other courts except
judicially in every circumstance. the Supreme Court of India.
r They are not adhered by strict rules of evidence and Tribunals for other matters [Article 323B]
procedure. Article 323B empowers the Parliament and the State
r Administrative tribunals are independent and not Legislature to establish tribunals for the adjudication
subject to any administrative interference in the of any dispute or complaint with respect to the matters
discharge of judicial or quasi-judicial functions. specified under clause (2) of Article 323B. Some of the
r In the procedural matters, an administrative matters given under clause (2) are a levy, assessment,
tribunal possesses the powers of a court to summon collection and enforcement of any tax; foreign exchange
witnesses, to administer oaths and to compel the and export; industrial and labour disputes; production,
production of documents, etc. procurement, supply and distribution of foodstuffs; rent
r These tribunals are bound to abide by the principle and its regulation and control and tenancy issues etc.
of natural justice. Such a law must define the jurisdiction, powers of such
r A fair, open and impartial act is the indispensable tribunals and lays down the procedure to be followed.
requisite of the administrative tribunals. In the landmark Chandra Kumar case, the court
r The prerogative writs of certiorari and prohibition reached various conclusions as to jurisdictional powers
are available against the decisions of administrative of the tribunal constituted under Articles 323A and

237
 323B. The Supreme Court struck down clause 2(d) abolished.
of Article 323A and clause 3(d) of Article 323B on the Joint Administrative Tribunals (JAT)
ground that they excluded the jurisdiction of the High This can be established on the request of two or
Courts and the Supreme Court under Article 226, 227 more states collectively, which exercise administrative
and 32 respectively. control over two or more states. For instance, there are
The Supreme Court ruled that the tribunals created various tribunals such as:
under Article 323A and 323B would continue to be the r National Green Tribunal (NGT)
courts of the first instance in their respective areas for
r Income Tax Appellate Tribunal (ITAT)
which they are constituted. The litigants are not allowed
to approach the High Court’s directly by overlooking the r Water Dispute Tribunal
jurisdiction of the concerned tribunal. Objective for the establishment of Administrative
No appeal for the decision of the tribunal would lie Tribunals
directly before the Supreme Court under Article 136 but The main purpose of the introduction of this act was:
instead, the aggrieved party would be entitled to move r To relieve congestion in courts or to lower the
the High Court under Article 226 and 227 and after the burden of cases in courts.
decision of the Division Bench of the High Court, the r To provide for speedier disposal of disputes relating
party may approach the Apex Court under Article 136. to the service matters.
The Administrative Tribunals Act, 1985 Applicability of the Act
In pursuance of the provisions in Article 323A, According to the Administrative Tribunals Act, 1985, the
Parliament passed the Administrative Tribunal Act, act applies to all Central Government employees except
1985, providing for all the matters falling within the –
clause 1 of Article 323. The Act has prescribed for r The members of the naval, military or air force or
following types of tribunals:
any other armed forces of the Union.
Central Administrative Tribunal (CAT)
r Any officer or servant of the Supreme Court or any
It has the jurisdiction to deal with the service
High Courts.
matters about the employees of Central Government,
r Any person appointed to the secretariat staff of
any Union Territory, Local Government or any other
either House of the Parliament.
Central Government, corporate-owned or controlled by
the Central Government. Composition of the Tribunals and Bench
State Administrative Tribunals (SAT) r Act describes the composition of the tribunals and
These tribunals can be established by the Central bench. Each tribunal shall consist of a Chairman, Vice
Government and the Parliament. Chairman, Judicial and Administrative members.
Like the CAT, the SATs exercise original jurisdiction r Every bench must include at least one judicial and
in relation to recruitment and all service matters of one administrative member.
state government employees. Similarly, we see the State r The benches of the Central Tribunal shall ordinarily
Legislature under Article 323 B for various matters like sit at New Delhi, Allahabad, Calcutta, Madras,
levy, assessment, collection and enforcement of any tax Bombay and such other place as the Central
matters connected with the land reforms covered under Government specifies.
Article 31 A. r The Chairman may transfer the Vice Chairman or
other members from one bench to another bench.
So far, the SATs have been set up in the nine states of
Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Qualification and Appointment of Members
Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal The Administrative Tribunals Act, 1985, lays the
provisions specifying the qualifications and appointment
and Kerala. However, the Madhya Pradesh, Tamil Nadu
of the members of tribunals.
and Himachal Pradesh Tribunals have since been

238
r Chairman: r The Chairman, Vice-Chairman and other members
m To be appointed as a chairman, a person must of the State Tribunal shall be appointed by the
have the following qualifications- President after consultation with the Governor of
m He is or has been a judge of a High Court or the concerned state.
m He has held the office of Vice Chairman for two r The chairman and members of a Joint Administrative
years or Tribunal are appointed by the President after
consultation with the Governors of the concerned
m He has held the post of secretary to the
states
Government of India or
m He has held any other post carrying the scale Term of Office
pay of secretary. According to the Act, the Chairman, Vice-Chairman and
other members of the tribunal shall hold the office for a
r Vice-Chairman:
term of 5 years or until he attains-
m A person is qualified for the post of Vice-
r Age of 65 years, in the case of the Chairman or Vice-
Chairman if he-
Chairman
m Is or has been a judge of the High Court or
r Age of 62 years in the case of other members
m Has for 2 years held the post of Secretary to the
Government or holding any other post carrying Resignation and Removal
the same pay scale under the Central or State The Act prescribes the procedure of resignation by any
Governments or member and removal of any member.
m Has held for 5 years the post of an Additional r The Chairman, Vice-Chairman or other members
Secretary to the Government of India or may resign from his post by writing to the President.
any other post carrying the scales of pay of r They shall be removed from their office only by
Additional Secretary. an order made by the President on the ground of
proved misbehaviour or incapacity after an enquiry
r Judicial Member:
made by a judge of the Supreme Court.
m A person to be appointed as a judicial member
r They shall have the right to be informed of the
must-
charges against them and shall be given a reasonable
m Be or have been a judge of the High Court or opportunity of hearing. The Central Government
m Have been a member of Indian Legal Service may make rules to regulate the procedure for the
and has held a post in Grade I of the service for investigation of the charges against them.
at least 3 years. Jurisdiction of Central Tribunal
r Administrative Member: The Act states that, the Central Tribunal from the day
m A person to be appointed as an administrative of the appointment shall exercise all the jurisdiction,
member must- powers and authority in relation to the following
m Have held the post of an Additional Secretary to matters which were within the jurisdiction of other
the Government of India or another equivalent courts (except the Supreme Court) before the enactment
post for at least 2 years, or of this Act:
m Have held the post of a Joint Secretary to the r Recruitment of any civil service of Union or All India
Government of India or other equivalent post, service or civil post under the Union or civilian
or employees of defence services;
m Have adequate administrative experience. r All service matters of the above-mentioned
r The Chairman, Vice-Chairman and other members employees, and also of employees of any local or
shall be appointed by the President. The Judicial other authority within the territory of India or
Members shall be appointed by the President with under the control of the Government of India or any
the consultation of the Chief Justice of India. corporation or society owned or controlled by the
Government;

239
 r All service matters of such persons whose services informal and easy-going procedure.
have been placed by the State Government or any r Speedy Justice: The core objective of the
local or other authority or any corporation at the administrative tribunal is to deliver quick and
disposal of the Central Government. quality justice. Since the procedure here is not so
Procedure and Powers of Tribunals complex, so, it is easy to decide the matters quickly
The Administrative Tribunals Act, 1985 lays down the and efficiently.
powers and procedure of tribunals discussed below-
r Less Expensive: The Administrative Tribunals
r A tribunal is not bound to follow the procedure laid take less time to solve the cases as compared to
down by the Civil Procedure Code, 1908. It has the the ordinary courts. As a result, the expenses are
power to regulate its own procedure but must abide reduced. On the other hand, the ordinary courts
by the principle of natural justice. have cumbrous and slow-going, thus, making the
r A tribunal shall decide the applications and litigation costly. Therefore, the administrative
cases made to it as rapidly as possible and every tribunals are cheaper than ordinary courts.
application shall be decided after scrutinizing the r Quality Justice: Considering the present scenario,
documents and written submissions and perceiving the administrative tribunals are the best and the
the oral arguments. most effective method of providing adequate and
r Tribunals have the same powers as vested by the quality justice in less time.
civil courts under the Code of Civil Procedure, 1908, r Relief to Courts: The system of administrative
while trying a suit, with regard to the following
adjudication has lowered down the burden of the
subject-matter-
cases on the ordinary courts.
m Summoning and enforcing the attendance of
Drawbacks of Administrative Tribunals
any person and examining him on oath;
Although, administrative tribunals play a very crucial
m Production of documents; role in the welfare of modern society, yet it has some
m Receiving evidence on affidavits; defects in it. Some of the criticisms of the administrative
m Ask for any public record or document from any tribunal are discussed below-
office r Against the Rule of Law: It can be observed that the
m Issuing commissions for the examination of establishment of the administrative tribunals has
witnesses and documents; repudiated the concept of rule of law. Rule of law
m Reviewing its decisions; was propounded to promote equality before the law
and supremacy of ordinary law over the arbitrary
m Deciding the case ex-parte;
functioning of the government. The Administrative
m Setting aside any order passed by it; Tribunals somewhere restrict the ambit of the rule
m Any other matter prescribed by the Central of law by providing separate laws and procedures
Government; for certain matters.
m Leading Case Laws r Lack of specified procedure: The administrative
Advantages of Administrative Tribunals adjudicatory bodies do not have any rigid set of
The concept of administrative tribunals was introduced rules and procedures. Thus, there is a chance of
because it has certain advantages over ordinary courts. violation of the principle of natural justice.
Few of them are mentioned below- r No prediction of future decisions: Since the
r Flexibility: The introduction of administrative Administrative Tribunals do not follow precedents,
tribunals engendered flexibility and versatility in it is not possible to predict future decisions.
the judicial system of India. Unlike the procedures r Scope of Arbitrariness: The civil and criminal courts
of the ordinary court which are stringent and work on a uniform code of procedure as prescribed
inflexible, the administrative tribunals have a quite under Civil Procedure Code and Criminal Procedure

240
 Code respectively. But the administrative tribunals Composition of the Tribunal
have no such stringent procedure. They are allowed The tribunal shall consist of the following:
to make their own procedure which may lead to r An eligible chairperson as per defined in the
arbitrariness in the functioning of these tribunals. National Green Tribunal Bill, 2009 which should be
r Absence of legal expertise: It is not necessary that a full-time Chairperson
the members of the administrative tribunals must r Ten to Twelve full-time judicial members or as per
belong to a legal background. They may be the the Central government notification
experts of different fields but not essentially trained r The Chairperson has the power of calling the
in judicial work. Therefore, they may lack the
specialised person who has a particular experience
required legal expertise which is an indispensable
to the tribunal for assistance.
part of resolving disputes.
r The Central Government can notify about the
National Green Tribunal territorial jurisdiction falling under a particular
Article 323(B) of the constitution the Indian Constitution place of sitting.
provides for the establishment of tribunals in the
r The central government with the consultation of
country. The National Green Tribunal is not bound by
Chairperson, can make rules and regulations in
either the Civil Procedure code or the Evidence Act but
relation to the Tribunal.
works on the principles of natural justice.
Qualifications of the members
The working of the NGT is guided by two basic
r The Chairperson should be qualified as a judge of
principles-
the supreme court or the Chief Justice of the High
r ‘The polluter pays’ principle and Court.
r ‘Sustainable development’ principle. r The member of the tribunal should have a
The National Green tribunal was established on qualification in relation to the judge of High Court
18 October 2010 through National Green Tribunal Act, as a judicial expert.
2010.
r As the non-judicial expert, one should have the
Objectives
degree of masters in science or doctorate degree or
The NGT was formed with the objective of a special
with a master’s degree in engineering.
focus on environmental related incidents including the
protection of forest and natural resources. Following are Appointment of Chairperson, Judicial Member and
the major objectives of the tribunal: Expert member
r The manner of appointment in which the
r To ensure that environment related laws are obeyed
and act as a watchdog in case of any violations. Chairperson and other members including Judicial
members and Experts are given in the Act.
r To ensure the safety and conservation of forest and
forest animals. r The Chairperson, Judicial members and Expert
members of the Tribunal shall be appointed by
r To prevent the harm caused to the environment due
to government or private actions. the Central Government. The Chairperson shall
be appointed by the Central Government after
r To ensure proper implementation of environmental
consulting with the Chief Justice of India. The
related laws as listed in Schedule I of NGT Act
Judicial members and Experts of the Tribunal shall
r To provide compensation to those who are victims
be appointed by the Selection Committee in the
of environmental degradation and who have
manner as may be prescribed.
suffered damages as a result of it.
Resignation
r To work towards spreading awareness about
various environment related laws and the issues The manner of resigning from the Tribunal is given in
prevalent in the society. the Act.
r In order to resign from their office, the Chairperson,

241
 Judicial Member and Expert member can give or resignation, a Judicial Member of the Tribunal as
a notice in writing addressing the Central the Central Government may think fit to act on the
Government. Chairperson’s behalf, shall be appointed as the acting
Salaries & Allowances Chairperson until a new Chairperson is appointed
The salaries and other allowances to the members of the according to the provisions mentioned under the Act.
tribunal are given in the Act. Application to the Tribunal
r The salaries and allowances payable to the An application to the Tribunal can be filed by anyone
Chairperson, Judicial Member and Expert Member who:
of the Tribunal and other terms and conditions r Has sustained the injury
which include pension, gratuity and other benefits, r Is the owner of the property damaged?
shall be such as may be prescribed. r Is the legal representative of the deceased person
r Neither the salary and allowances nor the other r Is an agent authorized by the person affected?
terms and conditions shall be varied to their r Is a person aggrieved and it also includes a
disadvantage after the appointments. representative body or an organization?
Removal and Suspension r The Government/ CPCB /SPCBs /PCCs or any other
The process of removal and suspension of the environmental authority constituted under the
Chairperson, Judicial Member and Expert is mentioned Environment Act.
in the Act. The application or appeal has to be decided quickly
The Central Government, in consultation with the after hearing both the parties which a period of 6 months
Chief Justice of India, can remove a member from the from the date of filing that appeal or application.
office of the Chairperson, Judicial Member and Expert Jurisdiction of the Tribunal
Member of the Tribunal if: The National Green Tribunal has the power to hear all
r He is an insolvent; or civil cases relating to environment that are linked to the
r He has been convicted for anything which involves implementation of all the laws listed in Schedule I of the
moral turpitude. Act. These are mentioned below:
r He has become mentally or physically incapable. r The Water (Prevention and Control of Pollution)
r He has acquired a financial interest or any other Act,1974
interest which is likely to affect his functions r The Water (Prevention and Control of Pollution)
prejudicially. Cess Act,1977
r He has abused his position as to render his r Forest Conservation Act, 1980
continuance to the public interest prejudicially. r The Air (Prevention and Control of Pollution)
No member can be removed from his office without Act,1981
an order made by the Central Government after an r Environment Protection Act, 1986
inquiry by a Judge of the Supreme Court related to the
r The Public Liability Insurance Act, 1991
ground on which he is getting removed from his position.
Such a person must be informed of the charges against r Biological Diversity Act, 2002
him and should be given a reasonable chance of being Powers of the Tribunal
heard in respect of the charges against him. The Tribunal shall have the power that would be
Vacancy required to regulate its own procedure. The powers of
The provisions regarding vacancy are given in the Act. the tribunal are as follows:
In the case of any vacancy in the Office of the r Power to relief by issuing the compensation to
Chairperson of the Tribunal by reason of his death the aggrieved person after analysing the matter

242
 in a scientific manner with a properly researched A Court of law is vested with It deals with service matters
report. general jurisdiction over all the and is vested with limited
matters. jurisdiction to decide a
r Issuance of the commission for witnessing the particular issue.
documents. It is strictly bound by all the It is not bound by the rules of
rules of evidence and by the the Evidence Act and the CPC
r Reviewing the decision of a particular case. procedure of the Code of Civil unless the statute which creates
Procedure. the tribunal imposes such an
r It has a power of dismissing the application if it is obligation.
considered to have defaulted or it’s decided to be ex It is presided over by an officer It is not mandatory in every
parte. expert in the law. case that the members need to
be trained and experts in law.
r Granting the interim orders are considered as
The decision of the court is The decision is subjective i.e., at
a power to the tribunal and it can be done after objective in nature primarily times it may decide the matters
based on the evidence and taking into account the policy
hearing both the parties. materials produced before the and expediency.
r Power to give an order regarding the prevention of court.
a person from further committing or violating the It is bound by precedents, the It is not obligatory to follow
enactments specified in the Schedule I. principle of res judicata and the precedents and principle of
principle of natural justice. res judicata but the principle
r The tribunal has the power to pass any order or of natural justice must be
award in relation to the substantial development. followed.
It can decide the validity of It cannot decide the validity of
r Decisions which are taken by the majority of the legislation. legislation.
members in the tribunal are considered as binding The courts do not follow Many tribunals perform
on the aggrieved parties. investigatory or inquisition investigatory functions as well
functions rather it decides the along with its quasi-judicial
Difference between Courts and Tribunals case on the basis of evidence. functions.

Courts Administrative Tribunal 'Res Judicata' means a case or suit involving a particular issue
between two or more parties already decided by a court.
A Court of law is a part of the The administrative tribunal is
traditional judicial system. an agency created by a statue
endowed with judicial powers.

243
 31 Public Interest Litigation (PIL)
r PIL is a critical tool for social reform, preserving the
Introduction
rule of law, and accelerating the balance of law and
A Public Interest Litigation also known as PIL is a form justice.
of litigation that is filed to safeguard or enforce public r The introduction of PILs ensures increased public
interest. Public Interest is the interest belonging to a interest in judicial review of administrative action.
particular class of the community affects their legal
Who can file a PIL?
rights or liabilities. It may include pecuniary interest.
r Any individual or organisation can file a PIL either
PIL has not been defined in any Indian statute. However,
in his/her/their own standing i.e., to protect or
Courts have interpreted and defined PIL.
enforce a right owed to him/her/them by the
History of Public Interest Litigation (PIL) in India government or on behalf of a section of society who
In 1979, Kapila Hingorani filed a petition and secured is disadvantaged or oppressed and is not able to
the release of almost 40000 undertrials from Patna’s enforce their own rights.
jails in the famous ‘Hussainara Khatoon’ case. Hingorani
r The concept of “Locus Standi” has been relaxed in
was a lawyer. This case was filed in the SC before a Bench
the case of PILs so as to enable the Hon’ble Court to
led by Justice P. N. Bhagwati. Hingorani is called the
look into grievances that are filed on behalf of those
‘Mother of PILs’ as a result of this successful case. The
who are poor, illiterate, deprived or disabled and
court permitted Hingorani to pursue a case in which she
are unable to approach the courts themselves.
had no personal locus standi making PIL’s a permanent
fixture in Indian jurisprudence. r However, only a person acting in good faith and
who has sufficient interest in the proceeding will
Justice Bhagwati did a lot to ensure that the concept
have the locus standi to file a PIL. A person who
of PILs was clearly enunciated. He did not insist on the
approaches the Hon’ble Court for personal gain,
observance of procedural technicalities and even treated
private profit, political or any oblique consideration
ordinary letters from public-minded individuals as writ
will not be entertained.
petitions. Justice Bhagwati and Justice V. R. Krishna Iyer
were among the first judges in the country to admit PILs. r Suo moto cognizance may also be taken by the
Court.
Objectives of Public Interest Litigation (PIL):
r PILs were created with the aim of making justice Ambit of the PILs in India
more available to the disadvantaged and oppressed. The PILs in India, as discussed, are mainly concerned
with the public interest at large. In many years of its
r It is a critical tool for bringing human rights to those
history, it has seen litigations on road safety, prisoner’s
who have been denied them.
rights, road safety, environment, etc. Broadly, the
r It improves everyone's access to justice. Any person following are the cases in which PILs are filed:
or organisation that is capable of doing so can file
r Violation of the basic human rights of the poor
petitions on behalf of those who are unable or lack (litigations for protection of fundamental rights,
the resources to do so. mainly Article 21)
r It aids in the judicial oversight of state facilities r Content and conduct of the government and its
such as jails, asylums, and protective homes, among policymaking
others.
r Labour exploitation issues
r It's a crucial method for judicial review.

244
r Women rights in regard to PIL. These are:
r Caste and religious issues r The Constitution of India under Articles 32 and
r Governance issues and the working of public 226, allows the Court to entertain a petition filed
bodies: Local, state and the union by any public interested person in the welfare of
r Environmental issues the people who are in a disadvantaged position and
thus cannot access the court. The Courts are bound
r The issues of culture and heritage
to protect the fundamental rights of these people.
r Other matters of public importance
r Whenever injustice is meted out to a large number
r Neglected Children
of people, the court will not hesitate to invoke
r Non-payment of minimum wages to the workers. article 14 and 21 of the Indian Constitution as well
r Atrocities on women, in particular, rape, murder, as the International Convention on Human Rights
kidnapping and harassment of bride. which provide for a fair trial.
r Food adulteration r When the Court is prima facie satisfied that there
r Petitions from jail regarding inhuman treatment, has been a violation of any constitutional right
death in jail, speedy trail. to a group of people belonging to the backward
r Petitions from Riot-Victims. category, it may not allow the state to question the
maintainability of the petition.
r Harassment of villagers by co-villagers or police.
Exceptions- The cases that do not fall under the r Even though procedural laws are applied on PIL
category that will be entertained as PIL are: cases, the question as to whether the principles
of res judicata or principles analogous thereto
r Service matter pertaining to pension and gratuity.
would apply depends on the nature, facts and
r Admission to medical or other educational
circumstances of the petition.
institution.
r Dispute between two groups purely in the realm of
r Complaints against Central and State Government
private law would not be allowed to be agitated as
and Local Bodies.
PIL.
r Petitions for early hearing of the cases that are
pending in the High Courts or Subordinate Courts. r In cases, where the petitioner has moved the court
for his private interest and the redressal of personal
r Landlord-tenant matter.
grievances, the Court in furtherance of public
Procedure to file PIL in India
interest, may treat it as a PIL.
Any Indian citizen or organisation can move the court
for a public interest/cause by filing a petition: r The Court shall not transgress into a policy. It shall
take utmost care to not transgress its jurisdiction
r In the Supreme Court under Article 32
while protecting the rights of the people.
r In the High Courts under Article 226
Guidelines for Admitting PIL
The court can treat a letter as a writ petition and
PIL has become as important part in the administration
take action on it. The court has to be satisfied that the
of law. With the advent of PIL, they have been misused
writ petition complies with the following: the letter is
for personal gains which has led to frivolous litigation
addressed by the aggrieved person or a public-spirited
on unnecessary issues. Hence, the Supreme Court has
individual or a social action group for the enforcement laid down the guidelines for checking the misuse of PIL.
of legal or constitutional rights to any person who, upon
r The Court should encourage bona fide PIL and
poverty or disability, are not able to approach the court
effectively discourage the PIL filed for extraneous
for redress. The court can also take action on the basis of
considerations.
newspaper reports if it is satisfied with the case.
r Every High Court should formulate a set of rules
Principles of PIL
for encouraging the genuine PIL that are filed and
The Supreme Court laid down the following principles

245
 discourage PIL filed for reasons relating to personal r Chhetriya Pardushan Mukti Case.
gains. m The Court held that there have to be real
r Each Court should prima facie verify the credentials intention to safeguard the right of the public for
of every petitioner before acknowledging the PIL. filing the PIL.
r The Court should be prima facie satisfied with the m In this case, there was a lack of public interest,
contents of the PIL before acknowledging it. it was mention by the court that the PIL filed
r The Court should be satisfied with the fact that the by NGO was a conflict between the mill and
PIL involves a substantial public interest. organization and there is no real intention.
r The PIL should involve a large public interest, the r S.P. Gupta Case
gravity and urgency of which must be given priority. m In this case, P.N. Bhagwati sets some procedures
r The Court must ensure that the PIL aims to redress to defend the misuse of PIL. Justice Bhagwati
public injury and that no personal gain is involved first defines the concept of PIL in Indian
in it. background. It was held that case related to
socio- economic crime no PIL would be filed
Some landmark judgements in the history of PIL in
and also no PIL will be filed in the case related
India:
to women offence.
r Kamagar Sabha vs. Abdul Thai, Justice Krishna Iyer
sowed the seeds of public interest litigation for the r Sanganmal Panday Case
first time in India in 1976. m In the case, construction was going on from
r Hussainara Khatoon vs. State of Bihar (1979), the Kanshiram to Jail Road, the Court stops the
first recorded case of PIL, focused on the inhumane activity of construction due to PIL was filed for
conditions of prisons and under trial prisoners, and affecting of green belt by the construction.
resulted in the release of over 40,000 under trial m The Court rejected the appeal and allows filing
prisoners. the same in High Court under Article 226 of the
r M.C. Mehta v/s. Union of India: In a Public Indian Constitution.
Interest Litigation brought against Ganga water Problems of PIL
contamination in order to avoid further pollution of These are the following problems of PIL: -
the Ganga. The Supreme Court ruled that petitioner, r Publicity under the veil of PIL
despite not being a riparian owner, is entitled to m There are various cases in which it has been
petition the court for the compliance of statutory noticed that the people filed the PIL for publicity
provisions because he is concerned about the lives not for public or people. People used it as an
of those who use Ganga water. instrument for gaining publicity. It is one of the
major problems, rather used it in a beneficial
r Sexual assault was accepted as a violation of the
way, use it as a means to get popular or to come
basic constitutional rights of Article 14, Article 15,
into attention.
and Article 21 in Vishakha v/s State of Rajasthan,
r Judicial Adventurism
the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act of m Judicial overreach is when the judiciary starts
2013 was also addressed in the guidelines. interference in the functioning of the legislature
and executive organs of the government. It is
Misuse of PIL considered undesirable in the democracy. It
There is significant issue related to the misuse of Public also said that judicial overreach means judiciary
Interest Litigation while people abusing it. In India, crosses its own function and enter the executive
there are several cases of misuse of PIL. People filed PIL or legislature function.
for their private interest not for public interest which
r Symbolic Justice
came into publicity. There are several cases which set
m Sometimes the direction and guidelines issued
the guidelines for the filing of PIL.

246
 in the PIL is not implementing or followed. PIL in law.
PIL reflects the “Symbolic Justice”. This is not r Tremendous increase in litigation
enactment of direction damage the creditability m Due to simple and flexible process of filing a PIL,
of the Judiciary. the filing of unsystematic petition creates lots of
m The Apex Court provided direction related pressure on Judiciary and sometime delays the
to issues like offence against women, sexual process of disposal of bona fide petition.
harassment, processes of Court etc. but often it r Institutional limitation
is unable to check its consent.
m There is an urgent need for structural change in
r Obscure Motives of the Litigants the operation of the PIL institutions.
m This is the general principle of law that “One Public Interest Litigation has had astonishing
should come with clean heads to the Courts” results since its introduction. PIL has developed a new
but sometimes the personal critics or political jurisprudence of the accountability of the state for
motive hidden behind the PIL. This type of PIL legal violations affecting the interests of the backward
was rejected by the Court and should begin category. However, the Judiciary must be cautious in the
to further move with them. There are many application of PILs to avoid overreach which violates the
judgments through which the guidelines of PIL principle of separation of power.
were laid down. There is no proper definition of

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 32 Judicial Review

Introduction Keshavananda Bharati that judicial review has become

The doctrine of judicial review originated in the USA. It an inherent element of our constitution, and the High
was first propounded in the case of Marbury vs Madison Courts and the Supreme Court have been entrusted with
in 1803. The Constitution of India confers the power of the power to determine the legislative competence of
judicial review on the Supreme Court as well as High statutory provisions.
Courts. Judicial review has been declared as one of the The scope of judicial review before Indian courts
basic structures of the Constitution by the Supreme has emerged in three dimensions –
Court. m firstly, to establish fairness in administrative action,
Meaning of Judicial Review m secondly, to protect the guaranteed constitutional
Judicial review is the power of courts to examine the fundamental rights and
legislative enactments and executive orders of the
m lastly, to rule on questions of legislative competence
Central as well as State Governments to check its between the centre and the states.
constitutionality. If such enactments or orders are
In Keshavananda Bharati vs State of Kerela, the
found to be in violation of the Constitution, they shall be
court held:
declared null and void.
‘As long as some fundamental rights exist and are
Justice Syed Shah Mohamed Quadri, in judicial
a part of the Constitution, the power of judicial review
review of administrative action, has classified judicial has also to be exercised with the view to see that the
review into the following three categories: guarantees afforded by these rights are not contravened.’
r Judicial review of Constitutional Amendments Features of Judicial Review
r Judicial review of legislation of Parliament and r Power of judicial review can be exercised by
State Legislatures and subordinate legislations both the Supreme Court and High Courts: Under
r Judicial review of administrative action of the Union Article 226 a person can approach the High Court
and State and its authorities. for violation of any fundamental right or for any
The Supreme Court of India has repeatedly legal right. Also, under Article 32 a person can
move to the Supreme Court for any violation of the
acknowledged the authority of judicial review, saying
fundamental right or for a question of law. But the
that this power is inherent in a written Constitution.
final power to interpret the constitution lies with the
Such judicial review powers are granted to maintain a
apex court i.e., Supreme Court. The Supreme Court
balance of power among the legislature, executive, and
is the highest court of the land and its decisions are
judiciary. Articles 13, 32, 226, 141, 142, and 144 of the
binding all over the country.
Constitution specifically grant the power of judicial
r Judicial Review of both state and central laws:
review in light of a wide range of jurisdictions, authorities,
Laws made by centre and state both are the subject
and responsibilities, as well as Constitutional purposes.
to the judicial review. All the laws, order, bye-
There have been various instances in India laws, ordinance and constitutional amendments
wherein the Supreme Court has delivered landmark and all other notifications are subject to judicial
judgments using the power of judicial review. These review which are included in Article 13(3) of the
instances include Shankari Prasad, Indira Gandhi, constitution of India.
Keshavananda Bharati, Sajjan Singh, Minerva Mills, and r Judicial review is not automatically applied: The
many more cases. The Hon’ble Court stated in the case of concept of judicial review needs to be attracted and

248
 applied. The Supreme court cannot itself apply for the interpretation given by the Supreme Court
judicial review. It can be used only when a question becomes the law honoured by all courts of the land.
of law or rule is challenged before the Hon’ble court. r Article 137 gives a special power to the Supreme
r Principle of Procedure established by law: Judicial Court to review any judgment pronounced or order
Review is governed by the principle of “Procedure made by it. An order passed in a criminal case can
established by law” as given in Article 21 of the be reviewed and set aside only if there are errors
Indian Constitution. The law has to pass the test of apparent on the record.
constitutionality if it qualifies it can be made a law.
On the contrary, the court can declare it null and Judicial review of the ninth schedule
void. r Article 31B saves the acts and regulations included
in the Ninth Schedule from being challenged and
Constitutional Provisions for Judicial Review
invalidated on the ground of contravention of any
There is no direct and express provision in the
of the Fundamental Rights.
constitution empowering the courts to invalidate laws,
but the constitution has imposed definite limitations r However, in a significant judgment delivered in
upon each of the organs, the transgression of which the I.R. Coelho case (2007), the Supreme Court
would make the law void. ruled that there could not be any blanket immunity
from judicial review of laws included in the Ninth
The court is entrusted with the task of deciding
Schedule.
whether any of the consti¬tutional limitations has been
transgressed or not. r The court held that judicial review is a ‘basic feature’
of the Constitution and it could not be taken away
Some provisions in the constitution supporting the by putting a law under the Ninth Schedule.
process of judicial review are:
It said that the laws placed under the Ninth Schedule
r Article 372 (1) establishes the judicial review of the after April 24, 1973, are open to challenge in court if
pre-constitution legislation. they violated Fundamental Rights guaranteed under the
r Article 13 declares that any law which contravenes Articles 14, 15, 19, and 21 or the ‘basic structure’ of the
any of the provisions of the part of Funda¬mental Constitution
Rights shall be void. Grounds for Judicial Review
r Articles 32 and 226 entrusts the roles of the r Constitutional Amendment: All those amendments
protector and guarantor of fundamental rights to which are in violation of Fundamental Rights are
the Supreme and High Courts. declared void and it is held to be unconstitutional
r Administrative Actions: The administrative actions
r Article 251 and 254 states that in case of
of the legislature are judged by various parameters.
inconsistency between union and state laws, the
These parameters are as follows:
state law shall be void.
sm Illegality: The acts and decisions can be made
r Article 246 (3) ensures the state legislature’s
illegal if legislature fails to follow the law
exclusive powers on matters pertaining to the State
properly. Therefore, an action can be made
List.
illegal if the public body has no power to make
r Article 245 states that the powers of both Parliament decisions on its own or if they have acted
and State legislatures are subject to the provisions beyond the powers.
of the constitution.
m Irrationality: The courts can also interfere
r Articles 131-136 entrusts the court with the to quash a decision if they think that it is
power to adjudicate disputes between individuals, unreasonable as it makes it “irrational” or
between individuals and the state, between the “perverse” on the part of the decision maker.
states and the union; but the court may be required
m Procedure used: The decision-makers should
to interpret the provisions of the constitution and
act fairly in making their decisions. It is the

249
 principle which applies only to the matters judgment may be influenced by personal or selfish
of procedure rather than the substance of motives.
decision. r Repeated interventions of courts can diminish
Types of Judicial Review: the faith of the people in the integrity, quality, and
r Reviews of Legislative Actions: efficiency of the government.
m This review implies the power to ensure that Application of Judicial review
laws passed by the legislature are in compliance r The Supreme Court used the power of judicial
with the provisions of the Constitution. review in various cases, for example, the Golaknath
case (1967), the Bank Nationalisation case (1970),
r Review of Administrative Actions:
the Privy Purses Abolition case (1971), the
m This is a tool for enforcing constitutional
Keshavananda Bharati case (1973), the Minerva
discipline over administrative agencies while
Mills case (1980), and so on.
exercising their powers.
r In 2015, the Supreme Court declared both the 99th
r Review of Judicial Decisions:
Constitutional Amendment, 2014 and the National
m This review is used to correct or make any
Judicial Appointments Commission (NJAC) Act,
change in previous decisions by the judiciary
2014 as unconstitutional and null and void.
itself.
Judicial Activism
Importance of Judicial Review:
Judicial Activism means the proactive role played by the
r It is essential for maintaining the supremacy of the
judiciary in the protection of the rights of citizens and in
Constitution.
the promotion of justice in the society. In other words, it
r It is essential for checking the possible misuse of
is the role played by the judiciary to force the other two
power by the legislature and executive.
organs of the government (legislature and executive) to
r It protects the rights of the people.
discharge their constitutional duties.
r It maintains the federal balance.
It is an effective tool for upholding citizens’ rights
r It is essential for securing the independence of the and implementing constitutional principles when the
judiciary. executive and legislature fail to do so and counters the
r It prevents tyranny of executives. opinion that the Judiciary is a mere spectator.
Problems with Judicial Review: The practice of Judicial Activism originated and
r It limits the functioning of the government. developed in the USA, and historian Arthur Schlesinger,
r It violates the limit of power set to be exercised by Jr. coined the term in 1947.
the constitution when it overrides any existing law. Judicial Activism in India
m In India, a separation of functions rather than of In India, Judicial Activism has played an important
powers is followed. role in keeping democracy alive. The Indian Judiciary
m The concept of separation of powers is not is considered the guardian and protector of the Indian
adhered to strictly. However, a system of check Constitution, and citizens look up to the Judiciary as the
last hope for protecting their rights.
and balances have been put in place in such a
manner that the judiciary has the power to According to the Indian Constitution, Article 13
when read with Articles 32 and 226, provides the power
strike down any unconstitutional laws passed
of judicial review to the higher judiciary to declare any
by the legislature.
executive, legislative or administrative action void if it is
r The judicial opinions of the judges once taken for in contravention with the Constitution.
any case becomes the standard for ruling other Judicial Activism evolved through the process of
cases. Judicial Review, which can be pursued from Britain's
r Judicial review can harm the public at large as the unwritten constitution. In India, the foundation of

250
Judicial Activism was laid down by Justice V.R. Krishna r This is done by the apex courts to ensure the citizens
Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy, of their rights.
and Justice D.A. Desai. r International Law is referred to by Supreme Court's
In India, multiple times, Judicial Activism has led judgments in many cases. Example: Recently,
to a controversy concerning the supremacy between Supreme Court reaffirmed the rights of disabled
Parliament and Supreme Courts. person to live with dignity in Jeeja Ghosh v. Union of
Source of Judicial activism India. The court underlined the Vienna Convention
Through Judicial Review on the law of treaties, 1963 which requires India's
r Judicial review is the doctrine under which internal legislation to comply with international
legislative and executive actions are subject to commitments.
review by the judiciary. Importance of Judicial activism in Indian democracy:
r Judicial review is an example of check and balances r Judicial activism allows judges to adjudicate in
in a modern governmental system. favour of progressive and new social policies
helping in social engineering.
r Judicial review is adopted in the Constitution of
India from the Constitution of the United States of r In a modern democratic set up, judicial activism
America. act as a mechanism to curb legislative adventurism
and executive tyranny by enforcing Constitutional
r It gives power to the Supreme Court to examine
limits.
the constitutionality of any law and if such a law
is found to be inconsistent with the provisions of r Judicial activism helps in protecting or expanding
the Constitution, the Court can declare the law as individual rights. Where the legislature and the
unconstitutional. executive fail to protect the basic rights of citizens,
Through PIL (Public Interest Litigation) like the right to live with dignity, judicial activism
r Public interest litigation means a suit filed in a court plays an important role.
of law for the protection of public interest. r Failure of Legislature and Executive to discharge
r Judicial activism in India acquired importance due their respective functions results in erosion of
to public interest litigation. It is not defined in any the confidence in the Constitution and democracy
statute or act. amongst the citizens. Judicial activism helps in
upholding faith of citizens in constitution and
r In India, PIL initially was resorted to towards
judicial organs.
improving the lot of the disadvantaged sections of
the society who due to poverty and ignorance were r Judicial activism helps in ensuring freedom of
not in a position to seek justice from the courts. citizens and help in providing social justice to
r Justices P.N. Bhagwati and V.R. Krishna Ayer has suffering masses.
played a key role in promoting this avenue of r Judicial activism fills Legislative vacuum i.e., areas,
approaching the apex court of the country. which lack proper legislation. This help country to
Through Constitutional Interpretation: meet the changing social needs.
r Constitutional interpretation comprehends r In case of a ‘hung’ legislature when the government
the methods or strategies available to people is weak and insecure, judicial activism play an
attempting to resolve disputes about the meaning
important role in ensuring social justice.
or application of the Constitution.
r Sometime politicians afraid of taking honest and
r The possible sources for interpretation include
hard decisions for fear of losing power. Judicial
the text of the Constitution, its "original history,"
including the general social and political context. activism helps in plugging such active political
lacunae.
Through access to international statutes for ensuring
Constitutional rights: r Judicial activism helps in enhancing administrative
r The court refers to various international statutes in efficiency and help in good governance.
its judgements. r Judicial activism sometimes helps in balancing

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 powers among various organs of government concerned authorities
through judicial control over discretionary powers.
r The Supreme Court rolled out a blanket ban on
r Judicial activism allows participation of judiciary in firecrackers in the Delhi – NCR area with certain
advancement of country and upholding democracy exceptions in 2018.
by extending the standard rules of interpretation r The Supreme Court invoked terror laws against
in achieving economic, social and educational alleged money launderer Hasan Ali Khan.
objectives.
Demerits of Judicial Activism
Examples of Judicial Activism in India r Exceeding Power: Judges are supposed to exercise
Judicial Activism, in simple words, means when judges judgement in interpreting the law, according to the
interrupt their personal feelings into a conviction or Constitution. But sometimes they appear to exceed
sentence instead of upholding the existing laws. Judicial their power in deciding cases before the Court.
Activism in India started in 1973 when the Allahabad r Hampering Spirit of Constitution: It destroys the
High Court rejected the candidature of Indira Gandhi. spirit of the constitution as democracy stands on
The other examples of Judicial Activism in India include: the separation of powers between the organs.
r A.K. Gopalan Case: The Indian Supreme Court r Tyranny of Unelected: Results in tyranny of the
rejected the argument that to deprive a person of unelected as Judges assumes central role in day-to-
his life or liberty, not only the procedure prescribed day decision making.
by law for doing so must be followed but also that r Personal Agenda: Judicial activism describes
such procedure must be fair, reasonable and just. judicial rulings suspected of being based on
personal or political considerations rather than on
r Golaknath Case (1967): The Supreme Court
existing law.
declared that Fundamental Rights enshrined in
Part 3 are immune and cannot be amended by the r Trust Deficit: It diminishes the trust of the people
legislative assembly. in public institutions which can be dangerous for
democracy.
r Kesavananda Bharati case (1973): The Supreme
Issues related to Judicial activism:
Court of India declared that the executive had
The line between Judicial activism and Judicial Overreach
no right to intercede and tamper with the basic
is very narrow. When Judicial activism crosses its limits,
structure of the constitution. The concept of judicial it led to Judicial Overreach.
activism started gaining more power from here.
r It may interfere with the proper functioning of the
r Hussainara Khatoon Case (1979): The inhuman legislative or executive organs of government.
and brutal conditions of the undertrial prisoners r It destroys the spirit of separation of powers.
were published in the newspaper. Under article 21 Thus, damage balance between various organs of
of the Indian Constitution, the SC accepted it and government.
held that the right to a speedy trial is a fundamental r Judicial activism may lead to inactivity of legislature
right and directed the state authorities to provide and executive, leading to running away from duties
free legal facilities to the under-trial inmates to get and responsibilities which they hold for people of
justice bail or final release. India.
r Sheela Barse Case (1983): A letter by a journalist Judicial Overreach
addressing the custodial violence of women The distinction between judicial activism and overreach
prisoners in jail was addressed to the Supreme is very narrow. Judicial Overreach is what happens when
Court. The Court treated the letter as a writ petition judicial activism oversteps its bounds and becomes
and took cognizance of that matter. The Supreme judicial adventurism. When the court exceeds its
Court issued the appropriate guidelines to the jurisdiction, it risks interfering with the legislative and
executive branches of government's functions.

252
Judicial overreach power originates from? contempt of court.
Judicial overreach power originates from nowhere. In r The court appointed a commission that looked into
any democracy, Judicial overreach is undesirable. The it, and finally, the commission ordered four cuts in
spirit of separation of powers is shattered by judicial the film and also asked the CBFC to recertify the
overreach. film.
Examples of Judicial Overreach: r This was in violation of the Cinematograph Act,
Imposition of Patriotism in National Anthem Case. which does not give courts any power to certify or
r The Supreme Court on December 2016, passed its modify films.
judgment in the case of Shyam Narayan Chouksey v.
The cancellation of telecom licenses in the 2G case
Union of India, which makes it mandatory, that:
r The Supreme Court ordered the cancellation of
r All the cinema halls in India shall play the National 122 telecom licenses and spectrum awarded to
Anthem before the feature film starts. eight businesses after the CBI filed an FIR against
r To show respect during the National Anthem, employees of the Department of Telecom in the 2G
everyone in the room is required to stand. scam case.
r Before the National Anthem is performed or sung r The Supreme Court ruled that the allocation
in the movie hall, the entry and exit doors must be mechanism was faulty. It also told the administration
closed so that no one can cause a disturbance. After that national resources would only be allocated
the National Anthem has been performed or sung, through auctions.
the doors can be opened.
Issues with Judicial Overreach
r While the National Anthem is being played in the r It contradicts the spirit of the constitution because
hall, the National Flag should be displayed on the democracy is based on the division of powers
screen. among the organs.
Ban of Firecrackers r It creates a divide between the legislative and
r In November 2020, during the 80th All India judicial branches of government.
Presiding Officers' Conference, the Vice-President
r It erodes people's faith in government institutions,
of India called the Supreme Court's prohibition
which is potentially disastrous for democracy.
on firecrackers during Diwali "judicial overreach."
Aspirants should be aware that there are differing r Unelected judges play a central role in day-to-day
perspectives on the Supreme Court's actions, thus decision-making, resulting in the tyranny of the
they must learn to critically evaluate ideas. unelected.
r The 99th Constitutional Amendment and the NJAC r Allowing all PILs to be heard overburdens the
bill judiciary, which could otherwise be used to resolve
r The National Judicial Appointments Commission pending matters in the courts.
(NJAC), which was constituted by the 99th Difference between Judicial Activism and Judicial
Constitutional Amendment, was declared unlawful Overreach
by the Supreme Court. This was supposed to take r The boundary between judicial activism and judicial
the place of the collegiate system. overreach is very thin, when activism exceeds that
Censorship of the Film Jolly LLB 2 threshold and becomes judicial adventurism, it
r After the movie Jolly LLB 2 was certified by the becomes judicial overreach.
Central Board for Film Certification (CBFC), a r The impression of the individuals determines
petition was filed that claimed that this film violated whether the action is activism or excess.
Section 5B of the Cinematograph Act, 1952. r The judiciary, on the other hand, has always claimed
r Section 5B deals with the prevention of the that due to legislative and executive overreach, they
certification of films that involve defamation or must intervene and issue the orders.

253
 Judicial Restraint Agriculture of the Union of India to update and
Judicial Restraint is a theory of judicial interpretation amend the Drought Management Manual. The apex
that encourages judges to limit the exercise of their court also guided the state to constitute a National
power. It is the antithesis of Judicial Activism and Disaster Mitigation Fund within three months.
encourages the judiciary to respect the laws or rules in Source of Judicial Restraint
the Constitution. Through referring to the original intent of the makers of
Whereas, when the judiciary starts interfering with the Constitution:
the proper functioning of the legislative or executive
r Judges look to the original intent of the makers of
organs of the government and breaches the principle of
the Constitution.
separation of power, it is termed Judicial Overreach.
r Judges refer to the intent of the legislatures that
Some instances when the mechanism of Judicial
wrote the law and the text of the law in making
Activism turned to Judicial Overreach are:
decisions.
r The case of State of Rajasthan vs Union of India
r Any changes to the original Constitution language
(1977) is a landmark judgement where the Court
can only be made by Constitutional Amendments.
decided not to indulge into this matter as it involved
Through Precedent:
political inquiry, thereby adhering to the principle
r Precedent means past decisions in earlier cases.
of judicial restraint.
r Judicially-restrained judges respect stare-decisis,
r In S.R. Bommai vs Union of India, the Supreme
the principle of upholding established precedent
Court held that the case pertained to political
handed down by past judges.
inquiry and so, the Courts ought not to meddle.
Through leaving the legislature and executive to
r In Almitra H. Patel vs Union of India, the Supreme decide policies:
Court observed that it was not the duty of the court r Judicial Restraint is practised when the court leaves
to direct the Municipality about the manner in policy making to others.
which their tasks have to be performed unless there r The courts generally refer to interpretations of
is a clear violation. The court is empowered to only the Constitution by the Parliament or any other
direct the authorities to conduct their activities as Constitutional body.
is laid down by the law.
Comparison between Judicial Activism
r Lodha Committee report on the Board of and Judicial Restraint
Control for Cricket in India: To bring law and Judicial Activism Judicial Restraint
order back into the BCCI, a committee was set up. Judicial Philosophy of going Judicial Philosophy of showing
beyond the traditional role of restraint from striking down a
The recommendations were treated as Judicial
just checking the legality of the law or stopping interfering in
Overreach as BCCI is an independent body, not law. the working of the other organs
controlled by any state or central government. So, Judicial activism means of the government.
interpretation of the Judicial restraint means limiting
the Lodha committee had no authority to declare constitution to advocate the powers of the judges to
such recommendations. contemporary values and strike down a law.
conditions.
r Christian Medical College, Vellore & Others v.
Not defined in the Constitution Not defined in the Constitution
Union of India and Others: The Supreme Court
When there is the scope of When there is scope to maintain
barred the states from conducting separate judicial intervention to correct separation of powers and
entrance exams for medical courses and ruled that things. other grievance redressal
mechanisms are available.
undergraduate admissions to medical courses can
The introduction of PIL, the Expressing restraint from not
only be done through the NEET. courts taking up suo moto involving in Speakers actions in
cases, Banning the sale of liquor deciding anti-defection law.
r Swaraj Abhiyan-(I) v. Union of India & Others.:
on Highways
The Supreme Court instructed the Ministry of

254
Judicial activism has a great role Judicial restraint helps in Each organ of our democracy must function within its
in formulating social policies preserving a balance among the own sphere and must not take over what is assigned to
on issues like protection of the three branches of government,
the others. Judicial activism must also function within
rights of an individual, civil judiciary, executive, and
rights, public morality, and legislative. the limits of the judicial process because the courts are
political unfairness. the only forum for those wronged by administrative
r Golaknath Case 1967 r State of Rajasthan vs Union excesses and executive arbitrariness. Hence legislation
r Keshavananda Bharti Case of India 1977 enacted by Judiciary must be in the rare cases as
1973 r SR Bommai vs Union of
r The 2G Scam verdict India 1980 mentioned above.
cancelling telecom licenses r Almitra H. Patel vs Union of
India 1998

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 33 Local Government

Principle of State Policy is not legally binding on the

Panchayati Raj
governments.
The Central government cannot oversee the minute The first organized effort to tackle the problem of
workings of all the smallest units in the country. rural India was made through Community Development
Therefore, one of the salient features of a good Programme in 1952 and National Extension Service
representative government is the percolation of the self- in 1953. The programme was based on an integrated
rule mechanism to the grassroots level, leading to more approach to the various aspects of rural development.
effective decision-making and greater accountability. The objectives were to promote self-help and self-
Keeping this in mind, our Constitution has provided reliance among the rural people, to generate a process
for the creation of Panchayats, Municipalities and of integrated social, economic and cultural change with
Cooperative Societies to manage the affairs of the the aim of transforming social and political life of the
villages and urban localities in India. villagers. Community Development Programme was
Gandhiji famously stated, “If India is not to perish, launched in 55 selected blocks.
we have to begin with a lower rung of the ladder. If that The programme was based on an integrated
was rotten, all work done at the top of the intermediate approach to the various aspects of rural development.
level was bound to fall ultimately.” Gandhiji advocated The programme made provisions for appointing
the need for decentralisation and liberation of the Block Development Officers (BDO) and Village Level
villages from exploitation. Workers (VLW). This programme was intended to bring
Panchayati Raj in Independent India socio economic development of the rural masses on
The task of Panchayati Raj system fell on the Indian democratic lines, but failed to take off along the expected
government formed after Independence. It was clear lines due to the absence of an effective instrument for
that India a country of villages had to strengthen village people's participation.
Panchayats to strengthen democracy. Mahatma Gandhi Important Committees regarding Panchayati Raj in
who strongly believed in Grama Swaraj pleaded for the India
transfer of power to the rural masses. According to him Balwant Rai Mehta Committee (1957): The first was the
the villages should govern themselves through elected Balwant rai Mehta Commission in 1957. The committee
Panchayats to become self-sufficient. believed that community development would only
But surprisingly, the draft Constitution prepared be effective when the community was involved in the
in 1948 had no place for Panchayati Raj Institutions. planning, decision, and implementation process. The
Gandhi severely criticized this and called for immediate committee suggested that the basic unit of democratic
attention. It is thus, that Panchayat finds a place in the decentralization was to be at the block (samiti) level
Directive Principles of the State Policy. since the area of jurisdiction of the local body should
Article 40 of the Directive Principles of the State neither be too large nor too small.
Policy states that 'the states shall take steps to organize The block was large enough for efficiency and
village Panchayats and endow them with such powers economy of administration, and small enough for
and authority as may be necessary to enable them sustaining a sense of involvement in the citizens. Further,
function as units of self-governments'. The most the Zilla Parishad (ZP) should play an advisory role.
important aspect to strengthen grass root democracy The committee laid down few fundamental
was neglected by the Constitution makers as Directive principles:

256
r There should be three tier structures of local self- who cornered a major share of the benefits of the
government bodies from village to the district level various welfare schemes,
and these bodies should be linked together. r the lack of capability at the local level, and
r There should be genuine transfer of power and r the absence of political will of the grassroots
responsibility to these bodies to enable them to leaders.
discharge their responsibility
K. Santhanam Committee (1963): The K. Santhanam
r Adequate resources should be transferred to Committee in 1963 was appointed to look solely at the
these bodies to enable them to discharge their issue of PRI finances.
responsibilities.
Its recommendations have influenced the thinking
r All welfare and developmental schemes and and the debate to date on this issue:
programmes at all three levels should be channelled
r The Panchayats should have special powers to levy
through these bodies, and
special tax on land revenues, home tax, etc;
r The three-tier system should facilitate further
r all grants and subventions at the state level should
devolution and disposal of power and responsibility
be consolidated and untied; and
in future.
r A Panchayat Raj Finance Corporation should be set
r The committee envisaged three tier system of
up which would look into the financial resources of
Panchayats known as Gram Panchayat at village
level (direct election), Panchayat Samiti at the block PRIs at all three levels, provide loans and financial
level and Zila Parishad at the district level (indirect assistance to these grassroots level governments
election). and also provide support for non-financial
requirements of villages.
r District Collector to be the chairman of Zila Parishad
and recommended encouragement of peoples' Ashok Mehta Committee (1977): In this backdrop in
participation in community work, promotion of 1977, the Janata government appointed a Committee
agriculture and animal husbandry, promoting the with Ashok Mehta as Chairman and was entrusted with
welfare of the weaker sections and women through the task of enquiring into the causes responsible for the
the Panchayats. poor performance of Panchayati Raj Institutions. It was
also asked to suggest measures to strengthen Panchayati
The existent National Development Council
accepted the recommendations. However, it did not Raj Institutions.
insist on a single, definite pattern to be followed in the The committee suggested two tier system of
establishment of these institutions. Rather, it allowed Panchayati Raj consisting of Zilla Parishads at the district
the states to devise their own patterns, while the broad level and Mandal Panchayats at the grass root level
fundamentals were to be the same throughout the as against three tier system suggested by the Balwant
country. rai Mehta Committee. The committee recommended
The PRI structure was introduced in most parts of constitutional protection to the Panchayati Raj
the country as a result of the Balwantrai Mehta Report. Institutions and further decentralization of power at all
Rajasthan (1959) adopted the system first, followed by levels.
Andhra Pradesh in the same year. Some states even went A noteworthy feature of the report is that it
ahead to create four-tier systems and Nyaya Panchayats, recommended regular elections to these bodies and
which served as judicial bodies. open participation of political parties.
However, it did not develop the requisite democratic The Ashok Mehta Committee suggested:
momentum and failed to cater to the needs of rural r The 3-tier model suggested by Balwant Rai Mehta
development. Reasons for this were: committee to be replaced by the 2-tier model. The
r Political and bureaucratic resistance at the state upper tier should be the Zila Parishad, which will
level to sharing of power and resources with the be at the district level and the lower tier should
local level institutions, be Mandal Panchayat, which would be at the block
r the takeover of these institutions by the rural elite level, which should be a Panchayat of group of

257
 villages covering a population of 15000 to 20000. and the customs of the people including their
r The committee recommended that the base of cultural identity, community resources and
the Panchayati Raj system should be a Mandal customary mode of dispute resolution.
Panchayats. Each Mandal Panchayat should contain m Mandatory recommendation by Gram Panchayat
15 members directly elected by the people. The before any areas is granted for mining lease.
head of the Mandal Panchayat should be elected m The right to enforce prohibition or to regulate
among the members themselves. or restrict the sale and consumption of any
r Zila Parishad should be the executive body and intoxicant.
made responsible for planning at the district level. The G.V.K. Rao Committee gave following
The Zila Parishad members should be elected as recommendations:
well as nominated. The MLA and MPs of the area r The Zila Parishad should be the basic unit for
should have the status of ex-officio chairman of the
the policy planning and for the programme
Zila Parishads. Development functions should be
implementation. It should also be the pivotal body
transferred to the Zila Parishad and all development
for this scheme of democratic decentralisation.
staff should work under its control and supervision.
r The state planning functions should be transferred
r There ought to be Nyaya Panchayat as separate
to the Zila Parishad for effective decentralised
bodies, different from that of development
planning.
Panchayats and should be presided over by a well-
qualified judge. L.M. Singhvi Committee (1986): The committee was
constituted in 1986, a year after the GVK Rao Committee.
r Reservation of seats for the weaker sections
The committee was set up in the prime ministership of
r Two seats for women
Rajiv Gandhi and under the chairmanship of L.M. Singhvi.
r Adequate financial resources for the Panchayats The Gram Sabha (village assembly) was considered the
r Requirement of Constitutional sanctions base of decentralized democracy. The PRIs were to be
To extend people's participation in developmental viewed as institutions of self- government which would
activities. facilitate the participation of the people in the process of
Due to the fall of the Janata government, the planning and development.
Ashok Mehta Committee recommendations were not According to the L.M. Singhvi committee, the decline
implemented. Karnataka and West Bengal formulated of the Panchayati Raj institutions was because of three
new legislation on the basis of the recommendations reasons:
of this Committee. Both the Committees overlooked the r Absence of clear concept
importance of Panchayats as units of self-government.
r absence of political will
G.V.K. Rao Committee (1985): The G.V.K. Rao Committee
r lack of research, evaluation and political planning.
was constituted in the year 1985. The committee was
Few of the important recommendations by the
appointed just before the 7th five-year plan in order
to give recommendations on the issues of growth and committee were:
poverty alleviation. The committee was shouldered with r The Panchayati Raj institutions should be recognised,
the task of: protected and preserved constitutionally.
r Look into the existing infrastructure for rural r Free and fair elections in the Panchayati Raj
development and lay down the key functions on institutions.
revenue resources of the Panchayati Raj institutions. r There should be optional and compulsory levies
r What steps the government should take in order to interested in the Panchayats. The government may
promote growth and for poverty alleviation. also disburse money to the Panchayats in the time
r To recommend and revitalise the Panchayati Raj of needs.
institutions. r Establishment of judicial tribunals in the state,
m Power to safeguard and preserve the traditions which would address the election controversies in

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 the Panchayati Raj institutions. r Reservations for women, Scheduled Caste and
r Local self- government should be constitutionally Scheduled Tribes.
recognized, protected and preserved by the r A Finance commission in each state to lay criteria
inclusion of a new chapter in the Constitution. and guidelines for financial devolution.
Sarkaria Commission: r The District Collector should be the CEO of the Zila
r Constitutional status for PRIs was opposed by Parishad.
the Sarkaria Commission. But the idea gained Gadgil Committee (1988): The Committee on Policy
momentum in the late 1980s especially because of and Programmes was constituted in 1988 by the
the endorsement by the late Prime Minister Rajiv Congress party under the chairmanship of V.N. Gadgil.
Gandhi who introduced the 64th Constitutional This committee was asked to consider the question of
Amendment Bill in 1989. “how the Panchayati Raj institutions could be made
effective”
r Rajiv Gandhi's commitment to the PRI route to
rural development seems to have emerged through Recommendations of Gadgil Committee:
a series of workshops he had as Prime Minister r The Panchayati Raj institutions should be given
with District Collectors, where he got a sense of constitutional status.
the insensitivity of District Administration and of r Panchayati Raj is a three-tiered structure with
wastage of funds for rural development. Panchayats at the village, block, and district levels.
r The 64th Amendment Bill caused much anxiety r Panchayati Raj institutions should be given a five-
among opposition parties because they perceived it year term.
to support the partisan agenda of Rajiv Gandhi and r At all three levels, members of the Panchayats
it was defeated in the Rajya Sabha. should be directly elected.
Thungon Committee (1988): In 1988, a sub-committee r Women, SCs, and STs should have a reservation.
of the Consultative Committee of Parliament was r The preparation and implementation of socio-
constituted under the chairmanship of P.K. Thungon economic development plans should be the duty of
to examine the political and administrative structure Panchayati Raj authorities. A list of subjects should
in the district for the purpose of district planning. be established in the constitution for this purpose.
This committee suggested for the strengthening of the
r Taxation and duties should be levied, collected, and
Panchayati Raj system.
appropriated by Panchayati Raj entities.
Recommendations of Thungon Committee:
r The creation of a State Finance Commission to
r Constitutional recognition must be granted for
oversee the distribution of funds to the Panchayats.
Panchayati Raj.
r Suggested a 3-tier system with village, block and r Establishment of a State Election Commission to
district levels. oversee the conduct of Panchayat elections.
r Zila Parishad plays an important role and acts as a 73rd Amendment Act (1992)
planning and development agency in the district. Rajiv Gandhi the then Prime Minister of India, introduced
r Panchayati Raj must have a fixed tenure of 5 years. the 64th Amendment bill on local government on the
15th May, 1989 in the Parliament, but it failed to get
r The maximum time for supersession of a body must
not be greater than 6 months. the required support. A second attempt was made in
September 1990 to pass the bill in the Parliament. The
r A Planning and coordination committee at the
bill however was not even taken up for consideration.
state level with the Presidents of Zila Panchayat as
members and minister of planning as the Chairman In September 1991, a fresh bill on Panchayati Raj was
must be set up. introduced by the Congress government under P. V
Narasimha Rao, the then Prime Minister. It was passed
r The subjects for the Panchayats to administer must
be incorporated in the constitution on schedule 7 in 1992 as the 73rd Amendment Act 1992 with minor
lines. modifications and came into force on 24th April 1993.

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 Constitutional Provisions of 73rd Amendment Act Institution. Article 243A of the Indian Constitution
r Local governments were provided constitutional empowers the Gram Sabha to perform the functions
sanction through the 73rd Amendment Act of 1992 at its village level as is provided by the law or State
which was enforced on 24th April 1993. Legislature.
r The Panchayats are elected for a tenure of 5 years. Three-tier system
r The 11th Schedule was added in the Constitution r Article 243B of the Indian Constitution provides for
through this amendment which contained 29 a three-tier system in the Panchayati Raj Institution
subject matters of the Panchayats. where Panchayats shall be constituted at the village,
r This act also added Part IX to the Constitution which intermediate, and district levels in every state.
contained provisions from Articles 243 to 243O. r Panchayats at the intermediate level may not be
r This amendment brought the state governments constituted in a State having a population not
under constitutional obligation to adopt the new exceeding twenty lakhs.
system of Panchayati Raj in accordance with the Composition of the Panchayats
provisions of the act. r According to Article 243C, the composition of
Objectives of the 73rd Constitutional Amendment Act, the Panchayats shall be as decided by the State
1992 legislature. The number of seats at any level of a
r The main objective of the 73rd Constitutional Panchayat shall be according to the population of
Amendment Act, 1992 was to provide constitutional that territory.
status to the Panchayats. r All the seats in a Panchayat shall be filled by
persons chosen by direct election from territorial
r It aimed at democratic decentralisation of power
constituencies in the Panchayat area.
and resources among the central government and
r Further, the chairperson of Panchayats at the
local bodies such as PRIs. This will create more
intermediate and district levels shall be elected
engagement of the public in governance.
indirectly–by and from amongst the elected
r Article 40 of the Indian Constitution states that it members thereof. However, the chairperson of
is the duty of the government to establish village a Panchayat at the village level shall be elected in
Panchayats and give them adequate power and such manner as the state legislature determines.
authority so that they can function as a unit of self- Reservation of seats
government. The government came up with this r Article 243D, provides for the provision of
amendment to provide an implementation of this reservation of seats which specifies the reservation
Article. of seats for Scheduled Castes and Scheduled Tribes
r The Amendment was based upon the Gandhian according to the proportion of their population.
principle that advocates for 3-tier governance r The Article also provides for one-third of the total
where the third level of government can directly seats to be reserved for women that belong to
deal with the public and solve their issues and the Scheduled Castes or Scheduled Tribes. This
problems at the grass-root level. Article empowers the State Legislature to make any
Essential features of the 73rd Constitutional provision relating to the reservation of backward
Amendment Act, 1992 class.
Gram Sabha Duration of Panchayats
r Gram Sabha is defined under Article 243(b) which r Article 243E, specifies the duration of Panchayats to
states that a Gram Sabha is a body that consists of be for a term of 5 years if it does not get dissolved
persons registered on the electoral rolls relating to before the completion of its tenure.
the village that falls under the area of Panchayat at a r If the Panchayat gets dissolved then the other
village level. It is the foundation of the Panchayati Raj Panchayat which was constituted would function

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 till the remaining period of the dissolved Panchayat. Panchayats
Disqualifications Finance Commission
r According to Article 243F, a person shall be r Under Article 243I, the Finance Commission
disqualified for being chosen as or for being a is constituted by the Governor of the State to
member of Panchayat if he is so disqualified, review the financial position of the Panchayats, to
recommend the principles for the distribution of
m under any law for the time being in force for
taxes between the State and Panchayats.
the purpose of elections to the legislature of the
r The Finance Commission also determines the
state concerned, or
taxes, duties, tolls, and fees that will be assigned or
m under any law made by the state legislature. appropriated to the Panchayats.
r However, no person shall be disqualified on the Audit of accounts
ground that he is less than 25 years of age if he has r Under Article 243J, the State Legislature is
attained the age of 21 years. Further, all questions of empowered to make provisions for the Panchayats
disqualifications shall be referred to such authority to maintain and audit the accounts of Panchayats.
as the state legislature determines. Manner of election
Duties and power of the Panchayats r According to Article 243K, the election of members
r Article 243G, puts State Legislature under an of Panchayats of village, intermediate, and district
obligation to make laws so as to provide such power levels shall be done through direct election by
and authorities to the Panchayats so that they can the people. The elections of chairman of the
function as a unit of self-government. intermediate and district level Panchayat will be
r It is the duty of the Panchayats to prepare a plan elected indirectly by the elected members of the
for economic development and social justice for Panchayats.
the people. The Article provides authority to the r State Election Commission is constituted in every
state government to give power and authority to state for the superintendence, maintenance, control,
the Panchayats on all the 29 subjects prescribed and preparation of electoral rolls. The Commission
under the Eleventh schedule for local planning and also handles the elections of Panchayats.
implementing schemes, i.e., implementing NREGA Application to Union Territories
which is one of the largest employment generating r According to Article 243L, the provisions of this
schemes. Part are applicable to the Union territories. But
r Panchayats implement the schemes made by the the President may direct that they would apply to
central and state governments for the betterment a Union territory subject to such exceptions and
of people at the ground level. Panchayats have the modifications as he may specify.
authority to increase employment facilities and Exempted States and Areas
work upon the development of the area. r Under this Article 243M, the act does not apply to
Powers to impose taxes by, and Funds of, the the states of Nagaland, Meghalaya and Mizoram and
Panchayats certain other areas. These areas include,
r Under Article 243H, the State Legislature by law m the scheduled areas and the tribal areas in the

may authorise the Panchayats to levy and collect states

tax, duties, tolls, or fees. m the hill areas of Manipur for which district

r The Panchayats may be assigned with the tax, councils exist; and
duties, fees, or tolls that are collected by the state m Darjeeling district of West Bengal for which

government to carry out specific work. Darjeeling Gorkha Hill Council exists
r The Panchayats are provided with a grant-in-aid r However, the Parliament may extend the provisions
from the Consolidated Fund of the State. of this Part to the scheduled areas and tribal areas
subject to such exceptions and modifications as it
r The State Legislature may also constitute a fund for
may specify.
crediting and withdrawal purposes by or for the
r Under this provision, the Parliament has enacted

261
 the “Provisions of the Panchayats (Extension to the The reservation provisions are not applicable to
Scheduled Areas Act”, 1996, popularly known as the Arunachal Pradesh.
PESA Act or the Extension Act. Provisions under 73rd Amendment Act (1992)
Continuance of Existing Laws and Panchayats The provisions mentioned in the 73rd amendment act
r According to Article 243N, all the state laws relating can be grouped into two i.e.,
to Panchayats shall continue to be in force until the r Mandatory Provision
expiry of one year from the commencement of this r Discretionary Provision
act. Mandatory provisions of the act
r In other words, the states have to adopt the new r Organization of Gram Sabha in villages
Panchayati Raj system based on this act within the r Panchayat is an establishment at three levels, i.e.,
maximum period of one year from 24 April, 1993, Village, Intermediate, and District level.
which was the date of the commencement of this r Direct election to all the seats of the Panchayats.
act. r Indirect election to the post of Chairman at the
r However, all the Panchayats existing immediately intermediate and district level.
before the commencement of act shall continue r Voting rights of the chairperson and other members
till the expiry of their term, unless dissolved by the of a Panchayat elected directly or indirectly.
state legislature sooner. r The minimum age to contest a Panchayat election is
r Consequently, majority of states passed the decided to be 21 years.
Panchayati Raj acts in 1993 and 1994 to adopt r Reservation of seats for Scheduled Caste-
the new system in accordance with the 73rd Scheduled Tribes (according to population) and
Constitutional Amendment Act of 1992. women(1/3rd).
Bar to Interference by Courts in Electoral Matters r The tenure of the Panchayats has been fixed for five
r Under Article 243O, the act bars the interference by years.
courts in the electoral matters of Panchayats. r Establishment of State Finance Commission after
r It declares that the validity of any law relating to the every five years to review the financial position of
delimitation of constituencies or the allotment of Panchayats.
seats to such constituencies cannot be questioned r Reservation of seats for Scheduled Caste &
in any court. Scheduled Tribes (according to population) and
r It further lays down that no election to any Women (1/3rd seats) at all three levels.
Panchayat is to be questioned except by an election r The tenure of the Panchayats has been fixed for five
petition presented to such authority and in such years and fresh elections will be held within six
manner as provided by the state legislature. months in the event of supersession of any Panchayat.
Provisions of Panchayats shall be applicable to the r Establishment of a State Election Commission for
conducting elections to the Panchayats.
Union Territories in the same way as in case of the states
but the President by a public notification may make any Discretionary Provisions of the Act
modifications in the applications of any part. r Allocating representation to MPs and MLAs
in Panchayats at different levels within their
The provisions of part IX are not applicable to:
constituency.
r Entire states of Nagaland, Meghalaya and Mizoram r To provide reservation of seats for backward classes
r Hill areas in the State of Manipur for which District in Panchayats at all levels.
Councils are in place.
r To grant power and authority to Panchayats so that
r The district level provisions shall not apply to the they can function as institutions of self-governance.
hill areas of the District of Darjeeling in the State of
r Granting financial power to Panchayats and
West Bengal which affect the Darjeeling Gorkha Hill
authorizing them to levy, collect, and appropriate
Council.
taxes, duties etc.

262
r Giving the Gram Sabha village-level powers and 6. Social forestry and farm forestry
functions.
7. Minor Forest produce
r Choosing the method for electing the village 8. Small-scale industries, including food processing
Panchayat's chairperson. industries
r Giving representation to the chairpersons of village 9. Khadi, village and cottage industries 10. Rural
Panchayats in intermediate Panchayats or, in the housing
absence of intermediate Panchayats in a state, in
11. Drinking water
district Panchayats.
12. Fuel and fodder
r Representing the chairpersons of intermediate
Panchayats in district Panchayats. 13. Roads, culverts, bridges, ferries, waterways and
other means of communication
r Members of the Parliament (both Houses) and the
state legislature (both Houses) are represented in 14. Rural electrification, including distribution of
Panchayats at various levels that fall within their electricity
constituencies. 15. non-Conventional energy sources
r Reservation of seats (both members and 16. Poverty alleviation programme
chairpersons) in Panchayats at any level for 17. Education, including primary and secondary
backward classes. schools
r Granting Panchayats powers and authority to enable 18. Technical training and vocational education
them to function as self-governing institutions (in 19. Adult and non-formal education
brief, making them autonomous bodies).
20. Libraries
r Devolution of powers and responsibilities to
21. Cultural activities
Panchayats to prepare plans for economic
development and social justice, as well as to 22. Markets and fairs
perform some or all of the 29 functions listed in the 23. Health and sanitation including hospitals, primary
Constitution's Eleventh Schedule. health centres and dispensaries
r Granting Panchayats financial powers, that is, 24. Family welfare
allowing them to levy, collect, and appropriate 25. Women and child development
taxes, duties, tolls, and fees.
26. Social welfare, including welfare of the handicapped
r Taxes, duties, tolls, and fees levied and collected by and mentally retarded
the state government are assigned to a Panchayat.
27. Welfare of the weaker sections, and in particular, of
r Making grants-in-aid to Panchayats from the state's the scheduled castes and the scheduled tribes
consolidated fund. 28. Public distribution system
r Providing for the establishment of funds for 29. Maintenance of community assets
crediting all Panchayat funds.
Panchayat Extension to Scheduled Areas
11th Schedule
The provisions of Part IX of the constitution relating to
It contains the following 29 functional items placed
within the purview of Panchayats: the Panchayats are not applicable to the Fifth Schedule
areas. However, the Parliament may extend these
1. Agriculture, including agricultural extension
provisions to such areas, subject to such exceptions and
2. Land improvement, implementation of land
modifications as it may specify. Under this provision, the
reforms, land consolidation and soil conservation
Parliament has enacted the “Provisions of the Panchayats
3. Minor irrigation, water management and watershed (Extension to the Scheduled Areas) Act”, 1996, popularly
development known as the PESA Act or the Extension Act.
4. Animal husbandry, dairying and poultry Based on Dilip Singh Bhuria Committee report,
5. Fisheries it was enacted on 24 December 1996 to extend the

263
 provisions of Part IX of the Constitution to Scheduled to obtain from the Gram Sabha a certification of
Areas, with certain exceptions and modifications. utilisation of funds by that Panchayat for the plans,
At present, ten states have Fifth Schedule Areas. programmes and projects.
These are: Andhra Pradesh, Telangana, Chhatisgarh, r The reservation of seats in the Scheduled Areas
Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, at every Panchayat shall be in proportion to the
Maharashtra, Odisha and Rajasthan. All the ten states population of the communities in that Panchayat
have enacted requisite compliance legislations by for whom reservation is sought to be given under
amending the respective Panchayati Raj Acts. Part IX of the Constitution;
The PESA Act conferred the absolute powers m Provided that the reservation for the Scheduled
to Gram Sabha, whereas state legislature has given Tribes shall not be less than one-half of the total
an advisory role to ensure the proper functioning of number of seats;
Panchayats and Gram Sabhas. The power delegated to m Provided further that all seats of Chairpersons
Gram Sabha cannot be curtailed by a higher level, and
of Panchayats at all levels shall be reserved for
there shall be independence throughout.
the Scheduled Tribes.
Section 4 (i) of PESA provides the right to Gram
r The State Government may nominate persons
Sabhas to be consulted before land acquisition. The
belonging to such Scheduled Tribes as have no
consent of the Panchayats or the Autonomous Districts
representation in the Panchayat at the intermediate
Councils shall be obtained in cases where the Gram
level or the Panchayat at the district level; Provided
Sabha does not exist or has not been constituted.
that such nomination shall not exceed one-tenth of
Features/provisions of the PESA Act, 1996 are -
the total members to be elected in that Panchayat.
r A State legislation on the Panchayats that may be
r The Gram Sabha or the Panchayats at the
made shall be in consonance with the customary
appropriate level shall be consulted before making
law, social and religious practices and traditional
management practices of community resources. the acquisition of land in the Scheduled Areas for
development projects and before resettling or
r A village shall ordinarily consist of a habitation or
rehabilitating persons affected by such projects
a group of habitations or a hamlet or a group of
in the Scheduled Areas; the actual planning and
hamlets comprising a community and managing its
implementation of the projects in the Scheduled
affairs in accordance with traditions and customs.
Areas shall be coordinated at the State level.
r Every village shall have a Gram Sabha consisting of
persons whose names are included in the electoral r Planning and management of minor water bodies
rolls for the Panchayat at the village level. in the Scheduled Areas shall be entrusted to
Panchayats at the appropriate level.
r Every Gram Sabha shall be competent to safeguard
and preserve the traditions and customs of the r The recommendations of the Gram Sabha or the
people, their cultural identity, community resources Panchayats at the appropriate level shall be made
and the customary mode of dispute resolution. mandatory prior to grant of prospecting license or
mining lease for minor minerals in the Scheduled
r Every Gram Sabha shall –
Areas.
m approve of the plans, programmes and projects
r The prior recommendation of the Gram Sabha or
for social and economic development before
the Panchayats at the appropriate level shall be
such plans, programmes and projects are taken
made mandatory for grant of concession for the
up for implementation by the Panchayat at the
exploitation of minor minerals by auction.
village level
r While endowing Panchayats in the Scheduled
m be responsible for the identification or selection
Areas with such powers and authority as may be
of persons as beneficiaries under the poverty
necessary to enable them to function as institutions
alleviation and other programmes.
of self-government, a State Legislature shall ensure
r Every Panchayat at the village level shall be required that the Panchayats at the appropriate level and the

264
 Gram Sabha are endowed specifically with – compromised.
m the power to enforce prohibition or to regulate r Non-Assertive Institution: The councils, with the
or restrict the sale and consumption of any Chief Minister as their chairperson, have evolved
intoxicant; into a non-assertive institution amid the tactics of
m the ownership of minor forest produce upper-class politics, and its representatives hardly
m the power to prevent alienation of land in the speak against the State Governments’ policies.
Scheduled Areas and to take appropriate action r The Governors, in order to have friendly relations
to restore any unlawfully alienated land of a with the Chief Ministers, have desisted from getting
Scheduled Tribe; involved in tribal matters. Tribal activists have
m the power to manage village markets by constantly complained that there is not even a single
whatever name called; instance where the Governors have responded
m the power to exercise control over money to their petitions for interventions in threatening
lending to the Scheduled Tribes; crises, such as deepening clashes over land, mining
m the power to exercise control over institutions
or police excesses.
and functionaries in all social sectors; r Lack of coordination at Centre: Even if one were
m the power to control over local plans and to expect proactive intervention from the Centre,
resources for such plans including tribal sub- PESA would get entangled in bureaucratic shackles.
plans. Two different ministries, the Ministry of Panchayati
r The State Legislations that may endow Panchayats Raj and the Ministry of Tribal Affairs, have an
overlapping influence on the implementation
with powers and authority as may be necessary
of PESA and they function almost without any
to enable them to function as institutions of self-
coordination.
government, shall contain safeguards to ensure
that Panchayats at the higher level do not assume r Lack of operationalisation: In most of the state
the powers and authority of any Panchayat at the the enabling rules are not in place more than eight
lower level or of the Gram Sabha. years after the adoption of the Act suggests that the
state governments are reluctant to operationalise
r The State Legislature shall endeavour to follow the
the PESA mandate.
pattern of the Sixth Schedule to the Constitution
while designing the administrative arrangements r Poor Infrastructure: A large number of Gram
in the Panchayats at district levels in the Scheduled Panchayats in the country do not have even full
Areas. time Secretary. Around 25 percent of the Gram
Panchayats do not have basic office buildings. The
r At the expiry of one year from the date on which
database for planning, monitoring etc., are lacking
this Act receives the assent of the President, any
in most of the cases.
provision of any law (relating to Panchayats in the
Scheduled Areas) which is inconsistent with the r Ignoring the spirit of PESA: The state legislations
provisions of this Act shall cease to be in force. have omitted some of the fundamental principles
without which the spirit of PESA can never be
r But all the Panchayats existing immediately before
realized. For instance, the premise in PESA that state
such date shall continue till the expiration of
legislations on Panchayats shall be in consonance
their duration unless sooner dissolved by state
with customary laws and among other things
legislature.
traditional management practices of community
Challenges of PESA resources is ignored by most of the state laws
r Dilution of role of Tribal Advisory Councils: PESA
r Ambiguous definitions: No legal definition of the
comes under the Fifth Schedule, which mandates
terms like minor water bodies, minor minerals
Tribal Advisory Councils to oversee tribal affairs
etc. exist in the statute books. The states in their
and also gives extrajudicial, extra constitutional
conformity legislations have also not defined
powers to the Governors of each State to intervene
the term leading to ambiguity and scope of
in matters where they see tribal autonomy being

265
 interpretation by the bureaucracy. as traditional dwellers then become a part of
In recent years, many reports ‘The Report of Expert Group management of the protected forests.
of the Planning Commission on Development Challenges About Forest Rights Act 2006:
in Extremist Affected Areas’ (2008), ‘The Sixth Report r The symbiotic relationship between forests and
of the Second Administrative Reforms Commission’ forest-dwelling communities found recognition in
(2007), ‘The Balchandra Mungekar Committee Report’ the National Forest Policy, 1988.
(2009), etc. have clearly underlined the dismal situation
r The policy called for the need to associate tribal
of the implementation of PESA.
people in the protection, regeneration and
Forest Rights Act
development of forests.
Historical Background
r A large number of people especially the scheduled r The Scheduled Tribes and Other Traditional Forest
tribes have lived in and around forests for a long Dwellers (Recognition of Forest Rights) Act, 2006,
period in symbiotic relationship. was enacted to protect the marginalised socio-
r This relationship has led to formalized or informal economic class of citizens and balance the right to
customary rules of use and extraction, often environment with their right to life and livelihood.
governed by ethical beliefs and practices that have Provisions of the 2006 Act
ensured that forests are not too degraded. r The Act recognizes that tribal and other traditional
r During the colonial time the focus shifted from forest-dwelling communities would be hard put to
the forests being used as a resource base for provide documentary evidence for their claims.
sustenance of local communities to a state resource r Rule 13 of the Act, therefore, stipulates that the Gram
for commercial interests and development of land Sabha should consider more than one evidence in
for agriculture. determining forest rights.
r Several Acts and policies such as the 3 Indian Forest
r The rule sanctions a wide range of evidence,
Acts of 1865, 1894 and 1927 of Central Govt and
including “statements by village elders”, “community
some state forest Acts curtailed centuries‐old, rights” and “physical attributes such as houses, huts
customary‐use rights of local communities. and permanent improvements made to land such as
r This continued even after independence till much levelling, bunds and check dams”
later until enactment of The Scheduled Tribes and
Features of the Act
Other Traditional Forest Dwellers (Recognition of
r The act recognizes and vest the forest rights
Forest Rights) Act, 2006. and occupation in Forest land in forest Dwelling
Why are forest rights important for tribals? Scheduled Tribes (FDST) and Other Traditional
r Aimed at undoing the “historic injustice” meted Forest Dwellers (OTFD)who have been residing in
out to forest-dependent communities due to such forests for generations.
curtailment of their customary rights over forests,
r The act also establishes the responsibilities and
the FRA came into force in 2008.
authority for sustainable use, conservation of
r It is important as it recognises the community’s right biodiversity and maintenance of ecological balance
to use, manage and conserve forest resources, and of FDST and OTFD.
to legally hold forest land that these communities
r It strengthens the conservation regime of the
have used for cultivation and residence.
forests while ensuring livelihood and food security
r It also underlines the integral role that forest of the FDST and OTFD.
dwellers play in the sustainability of forests and in
r It seeks to rectify colonial injustice to the FDST
the conservation of biodiversity.
and OTFD who are integral to the very survival and
r It is of greater significance inside protected forests sustainability of the forest ecosystem.
like national parks, sanctuaries and tiger reserves

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r The act identifies four types of rights: traditionally utilized the forest resource for
m Title rights sustainable development.
F It gives FDST and OTFD the right to r This act in a way protects intellectual property
ownership to land farmed by tribals or rights and the traditional knowledge related to
forest dwellers subject to a maximum of 4 cultural diversity and biodiversity
hectares. r It expands the mandate of the 5th & 6th Schedules
F Ownership is only for land that is actually of the Constitution that protect the claims of
being cultivated by the concerned family indigenous communities over tracts of land or
and no new lands will be granted. forests they inhabit.
m Use rights r The displaced communities’ rights are secured by
F The rights of the dwellers extend to the forest rights act 2006. The alienation of tribes
extracting Minor Forest Produce, grazing was one of the factors behind the Naxal movement,
areas, to pastoralist routes, etc. which affects states like Chhattisgarh, Odisha and
Jharkhand. The Act through identifying Individual
m Relief and development rights
Forest Rights and Community Forest Rights tries to
F To rehabilitation in case of illegal eviction
provide inclusion to tribes.
or forced displacement and to basic
r The rights of marginal and tribal communities over
amenities, subject to restrictions for forest
developmental activities are also recognized and
protection
secured by Forest Rights Act, 2006
m Forest management rights
r Forest rights can also be claimed by any member or
F It includes the right to protect, regenerate
community who has for at least three generations
or conserve or manage any community
(75 years) prior to the 13th day of December,
forest resource which they have been
2005 primarily resided in forest land for bona fide
traditionally protecting and conserving for
livelihood needs.
sustainable use.
r The act will ensure that people get to manage
Significance of Forest Rights Act (FRA) 2006
their forest on their own which will regulate the
The act is significant for the following reasons:
exploitation of forest resources by officials, improve
r Community rights and rights over common property forest governance and better management of tribal
resources (CPR) have been recognized for the first rights.
time
Land and its management fall under the exclusive
r Individual rights of the tribal and marginal legislative and administrative jurisdiction of States
communities have been highlighted by this act as provided under the Constitution of India. The
along with other rights too land reforms are monitored by the Ministry of Rural
r The concept of revenue villages has surfaced as the Development (MoRD) and Department of Land
act talks about the conversion of all forest villages, Resources (DoLR) which is the nodal Ministry at the
old habitation, un-surveyed villages and other Centre.
villages into these. Criticism of Forest Rights Act (FRA) 2006
r It ensures the livelihood and food security of the The act has been criticized on the following lines:
Forest Dwellers Scheduled Tribes and Other Forest Administrative Apathy:
Dwellers and strengthens the conservation regime r As tribals are not a big vote bank in most states,
of the forest. governments find it convenient to subvert FRA
r Community Forest Resources are monitored or not bother about it at all in favour of monetary
and managed in a way that protects marginal gains.
communities’ traditional linkages with these. It Lack of Awareness:
is known how these communities have always r Unawareness at the lower level of forest officials who

267
 are supposed to help process forest rights claims is India permitting the formation of local committees to
high and majority of the aggrieved population too make better provisions for public health. Lord Mayo’s
remains in the dark regarding their rights. resolution of 1870 made arrangements for strengthening
r The forest bureaucracy has misinterpreted the the municipal institutions and increasing the association
of Indians in these bodies.
FRA as an instrument to regularise encroachment
instead of a welfare measure for tribals. Yet, it was Lord Ripon’s Resolution of 18 May 1882
that was hailed as the Magna Carta of government
Dilution of Act: and got Lord Ripon the title of “Father of local self-
r Certain sections of environmentalists raise the government in India.”
concern that FRA bends more in the favour of
The Government of India Act 1919 introduced the
individual rights, giving lesser scope for community
system of diarchy and the local self-government became
rights.
a transferred subject under the charge of powers of local
r Community Rights effectively gives the local people bodies, lowered the franchise, reduced the nominated
the control over forest resources which remains a element and extended the communal electorate to a
significant portion of forest revenue making states larger number of municipalities.
wary of vesting forest rights to Gram Sabha. Post-Independence in India
Reluctance of the forest bureaucracy to give up The Constitution of India, which came into force on 26
control: January 1950, directs the state through Article 40 to
r The forest bureaucracy fears that it will lose the organize panchayats but does not give a corresponding
enormous power over land and people that it duty to the state with regard to the creation of urban
currently enjoys, while the corporates fear they may bodies.
lose the cheap access to valuable natural resources.
The only reference to urban self-government was to
Institutional Roadblock: be found in two entries:
r Rough maps of community and individual claims are
prepared by Gram Sabha which at times often lack r Entry 5 of List 11 of the Seventh Schedule and
technical knowhow and suffers from educational r Entry 20 of the Concurrent List.
incapacity. The Five-Year Plans also periodically highlighted
The 73rd Amendment Act is an attempt to restructure the problems of the municipal bodies and the inability
the Panchayati Raj to reach the grassroot level. The bill of these bodies to meet the growing demands of
for the first time gave constitutional status to Panchayati urbanisation.
Raj institutions and it became mandatory on all state In 1985, the National Commission on Urbanization
governments to implement it. This Amendment brought was appointed by the Central government which gave its
about uniformity in structure, composition, powers and report in 1988. Commission was set up to study and give
functions of Panchayats. It gave impetus to Panchayati
suggestions on all aspects of urban management.
Raj to promote social and economic development and
improvement in living condition of rural India. Purpose for Urban Local Bodies
r Urban Local Bodies were set up to provide urban
Municipalities / Urban Local Government services efficiently, effectively and equitably.
r Urban Local governments also plan for economic
Historical background and social development.
The roots of municipal administration in India can be r They regulate the use of land and the construction
traced to 1687, when a Municipal Corporation was set of buildings.
up at Madras with a view to transfer the financial burden
r They regulate the supply of water for domestic,
of local administration to the local City Council. Later,
industrial and commercial purposes.
the Royal Charter of 1720 established a Mayor’s Court in
each of the three Presidency towns of Madras, Bombay r They maintain public health, sanitation conservation
and Calcutta. and solid waste management.
In 1850, an Act was passed for the whole of British r They administer various laws and regulations.

268
r They implement central government plans at the r Under Article 243Q, act provides for the constitution
grassroots level. of the following three types of municipalities in
r They are doing the job of reducing poverty. every state.
The 65th Constitutional Amendment Bill, 1989 m A Nagar panchayat (by whatever name called)
The 65th Constitutional Amendment Bill brought by for a transitional area.
the then Prime Minister, Rajiv Gandhi, sought to ensure m A Municipal Council for a smaller urban area.
municipal bodies being vested with necessary powers m A Municipal Corporation for a larger urban
and removing their financial constraints to enable them area.
to function effectively as units of local government. r But there is one exception. If there is an urban area
Three types of Nagar Palikas were envisaged; where municipal services are being provided by an
r Nagar panchayat for a population between 10,000 industrial establishment, then the Governor may
and 20,000; specify that area to be an industrial township. In
such a case, a municipality may not be constituted.
r Municipal Council for urban areas with a population
between 20,000 and 3,00,000 and r The Governor has to specify a transitional area, a
smaller urban area or a larger urban area, keeping
r Municipal Corporation for urban areas with a
in view the following factors:
population exceeding 3,00,000.
It made provisions for elected Ward Committees, m Population of the area.

adequate representation for women and SC/ST in m Density of the population therein.
the urban bodies, conduct of elections by the Central m Revenue generated for local administration.
Election Commission, setting up Finance Commissions m Percentage of employment in non-agricultural
in the states to ensure soundness of local body finances, activities.
audit of accounts by the Comptroller and Auditor
m Economic importance.
General of India and creation of district level committees
to coordinate the plans of Nagar Palikas and Panchayats. m Such other factors as he may deem fit.

It also envisaged granting of urban bodies with a Composition

constitutional status. Though passed in the Lok Sabha, r Under Article 243R, all the members of a
the bill was defeated in the Rajya Sabha in October 1989. municipality shall be elected directly by the people
74th Amendment Act of the municipal area. For this purpose, each
This Act has added a new Part IX-A to the Constitution municipal area shall be divided into territorial
of India. This part is entitled as ‘The Municipalities’ and constituencies to be known as wards.
consists of provisions from Articles 243-P to 243-ZG. In r The State Legislature may provide the manner of
addition, the act has also added a new Twelfth Schedule election of the chairperson of a municipality. It may
to the Constitution. This schedule contains eighteen also provide for the representation of the following
functional items of Municipalities. persons in a municipality.
It deals with Article 243-W. The act gave m Persons having special knowledge or experience
constitutional status to the municipalities. It has in municipal administration without the right
brought them under the purview of justiciable part of to vote in the meetings of municipality.
the Constitution. In other words, state governments are m The members of the Lok Sabha and the
under constitutional obligation to adopt the new system
State Legislative Assembly representing
of municipalities in accordance with the provisions of
constituencies that comprise wholly or partly
the act. The act aims at revitalising and strengthening
the municipal area.
the urban governments so that they function effectively
m The members of the Rajya Sabha and the state
as units of local government.
Provisions of Urban Local Bodies under 74th legislative council registered as electors within
Constitutional Amendment Act the Municipal area.
Three Types of Municipalities m The Chairpersons of committees (other than
wards committees).

269
 Wards Committees r Moreover, a municipality constituted upon the
r According to Article 243S, there shall be a wards dissolution of a municipality before the expiration
committee, consisting of one or more wards, of its duration shall continue only for the remainder
within the territorial area of a municipality having of the period for which the dissolved municipality
population of three lakh or more. would have continued had it not been so dissolved.
r The state legislature may make provision with r In other words, a municipality reconstituted after
respect to the composition and the territorial area premature dissolution does not enjoy the full
of a wards committee and the manner in which the period of five years but remains in office only for
seats in a wards committee shall be filled. the remainder of the period. The act also makes two
r In addition to the ward’s committees, the state more provisions with respect to dissolution:
legislature is also allowed to make any provision m a municipality must be given a reasonable
for the constitution of other committees. The opportunity of being heard before its
Chairpersons of such committees may be made dissolution; and
members of the municipality. m no amendment of any law for the time being in
Reservation of Seats force shall cause dissolution of a municipality
r According to Article 243 T, act provides for the before the expiry of the five years term.
reservation of seats for the scheduled castes and the Disqualifications
scheduled tribes in every municipality in proportion r Under Article 243V, a person shall be disqualified
of their population to the total population in the for being chosen as or for being a member of a
municipal area. municipality if he is so disqualified
r Further, it provides for the reservation of not less m under any law for the time being in force for the
than one-third of the total number of seats for purposes of elections to the legislature of the
women (including the number of seats reserved state concerned; or
for woman belonging to the SCs and the STs). m under any law made by the state legislature.
The state legislature may provide for the manner r However, no person shall be disqualified on the
of reservation of offices of Chairpersons in the ground that he is less than 25 years of age if he has
municipalities for SCs, STs and women. attained the age of 21 years.
r It may also make any provision for the reservation of r Further, all questions of disqualifications shall be
seats in any municipality or offices of Chairpersons referred to such authority as the state legislature
in municipalities in favour of backward classes. determines.
Duration of Municipalities Powers and Functions
r According to Article 243U, act provides for a five- r Under Article 243W, state legislature may endow
year term of office for every municipality. However, the municipalities with such powers and authority
it can be dissolved before the completion of its term. as may be necessary to enable them to function as
r Further, the fresh elections to constitute a institutions of self-government. Such a scheme may
municipality shall be completed contain provisions for the devolution of powers
m before the expiry of its duration of five years; or and responsibilities upon municipalities at the
m in case of dissolution, before the expiry of appropriate level with respect to
a period of six months from the date of its m the preparation of plans for economic
dissolution. development and social justice;
r But, where the remainder of the period (for which m the implementation of schemes for economic
the dissolved municipality would have continued) development and social justice as may be
is less than six months, it shall not be necessary entrusted to them, including those in relation
to hold any election for constituting the new to the eighteen matters listed in the Twelfth
municipality for such period. Schedule

270
Imposition of Taxes Elections to the Municipalities
r According to Article 243X, state legislature may r Article 243ZA deals with the election of the
m authorise a municipality to levy, collect and members of the Municipalities.
appropriate taxes, duties, tolls and fees; r The superintendence, direction and control of the
m assign to a municipality taxes, duties, tolls and preparation of electoral rolls and the conduct of all
fees levied and collected by state government; elections to the municipalities shall be vested in the
m provide for making grants-in-aid to the state election commission.
municipalities from the consolidated fund of r The State Legislature may make provision with
the state; and respect to all matters relating to elections to the
m provide for constitution of funds for crediting municipalities.
all moneys of the municipalities.
Application to Union territories.
Finance Commission r Under Article 243ZB, the provisions mentioned in
r Article 243Y deals with the Finance Commission this part are applicable to the Union Territories.
who shall also review the financial position of the
r But the President may direct that they would apply
Municipalities and make recommendations to the
Governor as to— to a Union territory subject to such exceptions and
modifications as he may specify.
m the principles which should govern—
Part not to apply to certain areas
F the distribution between the State and the
Municipalities of the net proceeds of the r According to Article 243ZC, act does not apply to
taxes, duties, tolls and fees leviable by the the scheduled areas and tribal areas in the state.
State, which may be divided between them r It shall also not affect the functions and powers
under this Part and the allocation between of the Darjeeling Gorkha Hill Council of the West
the Municipalities at all levels of their Bengal.
respective shares of such proceeds; r However, the Parliament may extend the provisions
F the determination of the taxes, duties, of this part to the scheduled areas and tribal areas
tolls and fees which may be assigned to, or subject to such exceptions and modifications as it
appropriated by, the Municipalities; may specify.
F the grants-in-aid to the Municipalities from Committee for district planning
the Consolidated Fund of the State; r According to Article 243ZD, every state shall
m the measures needed to improve the financial constitute at the district level, a district planning
position of the Municipalities; committee to consolidate the plans prepared by
m any other matter referred to the Finance panchayats and municipalities in the district, and to
Commission by the Governor in the interests of prepare a draft development plan for the district as
sound finance of the Municipalities. a whole. The state legislature may make provisions
with respect to the following:
r The Governor shall cause every recommendation
m The composition of such committees;
made by the Commission under this article together
with an explanatory memorandum as to the action m The manner of election of members of such

taken thereon to be laid before the Legislature of committees;

the State. m The functions of such committees in relation to

Audit of accounts of Municipalities district planning; and

r According to the Article 243Z, the Legislature of a m The manner of the election of the Chairpersons

State may, by law, make provisions with respect to of such committees.

the maintenance of accounts by the Municipalities r The act lays down that four-fifths of the members
and the auditing of such accounts. of a district planning committee should be elected
by the elected members of the district panchayat

271
 and municipalities in the district from amongst the Panchayats in that metropolitan area.
themselves. r The Chairpersons of such committees shall forward
r The representation of these members in the the development plan to the state government.
committee should be in proportion to the ratio In preparing the draft development plan, a
between the rural and urban populations in the metropolitan planning committee shall
district. (a) Have regard to–
r The Chairperson of such committee shall forward F the plans prepared by the Municipalities
the development plan to the state government. In and the Panchayats the Metropolitan area;
preparing the draft development plan, a district
F matters of common interest between the
planning committee shall (a)
Municipalities and Panchayats, including
m Have regard to–
co-ordinated spatial planning of the are
F matters of common interest between the sharing of water and other physical and
Panchayats and Municipalities including natural resources, integrated development
spatial planning, sharing of water other of infrastructure and environment
physical and natural resources, the conservation;
integrated development of infrastructure
F the overall objectives and priorities set by
and environmental conservation;
the Government India and the government
F the extent and type of available resources of the state;
whether financial otherwise; and
F the extent and nature of investments
m Consult such institutions and organisations as
likely to be made in Metropolitan area by
the Governor may specify. agencies of the Government of India and
Metropolitan Planning Committee the Government of the State and other
r Under Article 243 ZE, every metropolitan area shall available resources whether financial or
have a metropolitan planning committee to prepare otherwise; and
a draft development plan. The state legislature may (b) consult such institutions and organisations as
make provisions with respect to the following: the Governor may specify.
m The composition of such committees; Continuance of existing laws and Municipalities
m The manner of election of members of such r According to Article 243 ZF, all the state laws relating
committees; to municipalities shall continue to be in force until
m The representation in such committees of the the expiry of one year from the commencement of
Central government, state government and this act.
other organisations; r In other words, the states have to adopt the new
m The functions of such committees in relation to system of municipalities based on this act within
planning and coordination for the metropolitan the maximum period of one year from 1 June, 1993,
area; and which is the date of commencement of this act.
m The manner of election of Chairpersons of such r However, all municipalities existing immediately
committees. before the commencement of this act shall continue
r The act lays down that two-thirds of the members of a till the expiry of their term, unless dissolved by the
metropolitan planning committee should be elected State Legislature sooner.
by the elected members of the municipalities and Bar to interference by courts in electoral matters
Chairpersons of the Panchayats in the metropolitan r Article 243 ZG bars the interference by courts in the
area from amongst themselves. electoral matters of municipalities. It declares that
r The representation of these members in the the validity of any law relating to the delimitation
committee should be in proportion to the ratio of constituencies or the allotment of seats to such
between the population of the municipalities and constituencies cannot be questioned in any court.

272
r It further lays down that no election to any recommendation of State Finance Commission.
municipality is to be questioned except by an r Grants-in-aid from the state government.
election petition presented to such authority and in r Grants-in-aid from the Government of India under
such manner as provided by the state legislature. Centrally Sponsored Schemes.
Provisions under 74th Amendment Act (1992) r Share of State Govt. against Centrally Sponsored
The provisions mentioned in the 74th amendment Schemes of Govt. of India.
act can be grouped into two i.e., r Award of Central Finance Commission Grant.
r Mandatory Provision 12th Schedule List
r Discretionary Provision 12th Schedule of the Indian Constitution deals with
Mandatory Provision the provisions that specify the powers, authority and
r Constitution of Nagar panchayats, Municipal responsibilities of Municipalities. This schedule was
Councils and Municipal Corporations in small, big added by the 74th Amendment Act of 1992. It has 18
and very big urban areas respectively; matters.
r Reservation of seats in urban local bodies for r Urban planning including town planning.
Scheduled Castes / Scheduled Tribes roughly in r Regulation of land-use and construction of
proportion to their population; buildings.
r Reservation of seats for women up to one-third r Planning for economic and social development.
seats; r Roads and bridges.
r The State Election Commission, constituted in order r Water supply for domestic, industrial and
to conduct elections in the Panchayati Raj bodies commercial purposes.
will also conduct elections to the urban local self-
r Public health, sanitation conservancy and solid
governing bodies;
waste management.
r The State Finance Commission, constituted to deal r Fire services.
with financial affairs of the Panchayati Raj bodies r Urban forestry, protection of the environment and
also looks into the financial affairs of the local urban promotion of ecological aspects.
self-governing bodies;
r Safeguarding the interests of weaker sections of
r Tenure of urban local self-governing bodies is fixed society, including the handicapped and mentally
at five years and in case of earlier dissolution fresh retarded.
elections are held within six months; r Slum improvement and upgradation.
Discretionary Provision r Urban poverty alleviation.
r Giving voting rights to members of the Union and r Provision of urban amenities and facilities such as
State Legislatures in these bodies; parks, gardens, playgrounds.
r Providing reservation for backward classes; r Promotion of cultural, educational and aesthetic
r Giving financial powers in relation to taxes, duties, aspects.
tolls and fees, etc; r Burials and burial grounds; cremations, cremation
r Making the municipal bodies autonomous and grounds; and electric crematoriums.
devolution of powers to these bodies to perform r Cattle pounds; prevention of cruelty to animals.
some or all of the functions enumerated in the r Vital statistics include registration of births and
Twelfth Schedule added to the Constitution through deaths.
this Act and/or to prepare plans for economic r Public amenities including street lighting, parking
development. lots, bus stops and public conveniences.
Sources of revenue for Urban Local Bodies: r Regulation of slaughter houses and tanneries.
r Collection from tax and non-tax sources as assigned Types of Urban Government
to them. Municipal Corporation
r Devolution of shared taxes and duties as per r It is created for the administration of big cities

273
 r They are established by an act of state legislatures party elected and nominated as specified by the
and in the case of Union Territories, it is by an act of state government
Parliament Cantonment Board
r The corporation has three organs- council, standing r It is setup for the civic administration for civilian
committees and commissioner population living in cantonment areas
r The council is the deliberative body consisting of r It is setup under the provisions of the cantonment
elected and few nominated representatives. They act, 2006
enact laws and policies. The council is headed by a r It works under the administrative control of the
mayor who is to preside over the council meetings. Union defence ministry
He is elected by the members amongst themselves. r It consists of partly elected and partly nominated
He has a renewable one-year term representatives
r Standing committees are created to simplify the r The commanding officer of the station is the ex-
working of the council. They take decision in their officio Chairperson
respective fields for which they have been made
r The board will also consist of an executive engineer,
responsible. Ex: Health, education, public works etc health officer, first class magistrate, chief executive
r Municipal commissioner is responsible for officer
implementing the policies and decisions taken by r The nominated members hold office as long as they
the council and the committees are part of the station
Municipality r Elected members have a tenure of 5 years
r It is established for administration of smaller towns Township
and cities r It is established by a public sector enterprise to
r They are established by an act of state legislatures ensure civic administration of their workers in the
and in the case of Union Territories, it is by an act of region
Parliament r The township has no elected members
r It also has three authorities- council, standing r It is an extension of bureaucratic structure of the
committees and chief executive officer PSE
r The council is the deliberative and legislative body. Port trust
It is headed by a Chairperson. r It is established in port areas
r Functions of these bodies: to manage ports and to
r Unlike the mayor in a municipal corporation,
provide civic amenities
Chairperson here has executive powers
r It consists of both elected and nominated members
r The CEO is responsible for day-to-day administration
Special Purpose Agency
r The standing committees are created to facilitate r These are setup to address specific issues which are
the working of the council. They deal with public usually the domain of municipalities
works, taxation, health, finance and so on. r They are also known as single-purpose or uni-
Notified Area Committee purpose because of the singular role based on
r It is created for fast-developing areas that have not which they are created for
yet achieved the numbers to become a municipality r They are established by an act of state legislature or
r It is notified by state government gazette as departments by an executive resolution
r Only those provisions which are specified in the r They function as autonomous bodies
gazette apply to this area Significance of Urban Local Bodies:
r It is entirely a nominated body r They provide urban services efficiently, effectively
and equitably.
Town Area Committee
r They plan for economic and social development.
r It is setup for the administration of a small town
r They regulate land-use and construction of
r It is created by a separate act of the state legislature
buildings.
r It may be a wholly elected, wholly nominated or

274
r They regulate water supply for domestic, industrial Commission recommendations.
and commercial purposes. m Revenue of the urban local bodies themselves
r They maintain the public health, sanitation are very limited and skewed.
conservancy and solid waste management.
m One of the main sources of income for local
r They administer various acts and regulations.
bodies is property tax.
r They implement the schemes of the central
government at the ground level. m E.g.; In Kolkata city limits were expanded in
r They perform the task of poverty alleviation. 1984—from 100 wards the city was extended
Challenges associated with Urban Local Bodies: to 141 wards—the new areas have never been
r Delegation of powers: taxed till date.
m Most of the state governments have not r Corruption:
devolved the power to the Urban Local Bodies m Administrative machinery at the disposal of
so they have not been able to perform their these local bodies is insufficient and ineffective.
tasks effectively. m The staff is underpaid which indulges in corrupt
r Ineffective leadership: practices.
m Mayors and Councillors use their positions for r Limited capacity:
their political carrier rather than being change m Even if the municipal bodies receive funds,
agents bringing out desired urban reforms. they just don’t have the capacity to function
r Creation of autonomous agencies: effectively.
m Autonomous agencies such as urban m Most of the funds given to the Urban Local
development authorities and public Bodies are tied funds.
corporations are accountable only to the state r Lack of coordination:
governments and not local governments. m Multiple agencies are at work in the city to cater
r Lack of funds: to municipal needs but they rarely cooperate.
m Lack of devolution of funds as per the Finance

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 34 Union Territories

Union Territories of Puducherry (in 1963), Delhi (in

Introduction
1992), and Jammu & Kashmir (in 2019). There are
The concept of territories administered by the Centre no comparable popular political institutions in the
dates back to before the country's independence. remaining five Union Territories.
Certain areas were designated as scheduled districts in r However, the establishment of such institutions in
1874. These were later known as Chief Commissioners Union Territories does not negate the President's
provinces, and they were essentially administered by and Parliament supreme control over them. For the
a Chief Commissioner who reported directly to the Union Territories, Parliament has the authority to
Governor General/Viceroy of India. enact legislation on any subject from the three lists
The States Reorganisation Act of 1956 established (including the State List).
the Union Territories. The Constitution (Seventh r Parliament's power extends even to Puducherry,
Amendment) Act of 1956 introduced the notion of the Delhi and Jammu and Kashmir, all of which have
Union Territories. their Legislatures. This means that even after
Administration of Union Territories establishing a local legislature for the Union
Part VIII (Articles 239 to 241) of the Constitution Territories, Parliament's legislative power over
deals with the Union Territories. Even though all subjects on the State List remains unaffected.
Union Territories belong to the same category, their r The Legislative Assembly of Puducherry, on the
administrative systems are not consistent. Every Union other hand, has the power to enact legislation
Territory is governed by the President of India, who on any subject on the State and Concurrent Lists.
appoints an Administrator to do so. Similarly, the legislative assembly of Delhi can make
r An Administrator of a Union Territory, unlike a laws on any subject of the State List (except public
Governor, is an agent of the President rather than order, police, and land) and the Concurrent List.
the head of State. The President can name an r Likewise, the Legislative Assembly of Jammu
administrator; it could be a Lieutenant Governor, and Kashmir can make laws on any subject of the
Chief Commissioner, or Administrator. State List (except public order and police) and the
r In the cases of Delhi, Puducherry, the Andaman and Concurrent List.
Nicobar Islands, Jammu and Kashmir and Ladakh, r The President has the authority to issue regulations
it is currently Lieutenant Governor, and in the cases for the Andaman and Nicobar Islands, Lakshadweep,
of Chandigarh, Dadra and Nagar Haveli-Daman and Dadra and Nagar Haveli-Daman and Diu and Ladakh
Diu, Ladakh and Lakshadweep, it is Administrator. in order to maintain peace, progress, and good
r The President can also appoint the Governor of governance.
a State to serve as the administrator of a Union r The President can also legislate by rules in
Territory bordering on it. The Governor is to Puducherry, but only when the assembly is
operate independently of his Council of Ministers suspended or dissolved.
in this role. The Governor of Punjab is concurrently r A regulation issued by the President has the same
the Administrator of Chandigarh. force and effect as a law passed by Parliament, and
r A Legislative Assembly and a Council of Ministers it has the power to revoke or alter any law passed by
led by a Chief Minister have been established in the Parliament that applies to these Union Territories.

276
r A High Court for a Union Territory can be established Any law relating to local bodies passed by the Delhi
by Parliament, or it can be placed under the jurisdiction assembly must be submitted to the Urban Development
of the High Court of the neighbouring States. Ministry for approval, and it must be in compliance with
r Delhi is the only Union Territory with its own High the Municipal Corporation Act 1957.
Court (since 1966). 69th Constitutional Amendment Act of 1991 -
r There are no separate provisions in the Constitution Important Provisions
for the administration of acquired territories. As per clause 3(a) of the Article 239AA, the Legislative
However, the Constitutional provisions governing Assembly of the capital can make laws with respect to
the administration of Union Territories also apply any of the matters enumerated in the State or Concurrent
to the acquired territories. lists under Schedule VII excluding the matters regarding
Creation of Legislature or Council of Ministers for land, police and law & order which were to be governed
Union Territories by the Centre through the Lieutenant Governor.
Article 239 A (1) of the Indian Constitution which states There shall be a Council of Ministers headed by the
that a Parliament through law can enact a body that Chief Minister of the State which will ‘aid and advise’ the
can function as a Legislature for the Union Territory of Lieutenant Governor on the matters set forth above as
Puducherry consisting of: per clause (4) of the same Article.
r elected or partly elected or partly nominated Moreover, clause 4 of Article 239 AA, warrants
persons, the Lieutenant Governor to refer ‘any matter’ to the
r or can make a body consisting of the Council of President of India for his/her decision if there is a clash
Ministers, of opinion between the Governor and the ministers
r or can create both of these with the constitutional (Council of Ministers headed by the Chief Minister of the
powers and functions vested to the Parliament. State). The Lieutenant Governor, as a matter of law, is
Article 239 A (2) further States that irrespective of bound by the decision of the President given thereon.
anything mentioned in the above-stated Clause (1), that Council of Ministers
has the effect of amending the Constitution or is any Further, clause (4) of Article 239 AA talks about the
amendment to the Constitution by the way of Article Council of Ministers in relation to the National Capital
368, shall not be deemed to be an amendment or a Territory of Delhi.
change to the constitution. In other words, the changes r The strength of the assembly is fixed at 70 members,
made in the Constitution will not be considered as the directly elected by the people.
amendment to the Constitution.
r The elections are conducted by the Election
Special provision with respect to Delhi Commission of India. The strength of the Council of
Special provisions are enshrined for the creation of
Ministers is fixed at ten per cent of the total strength
legislature or for the creation of a Council of Ministers
of the assembly, that is, seven–one Chief Minister
under Article 239AA of the Constitution with regards
and six other ministers. The Chief Minister shall be
to Delhi. It states that from the 69th Amendment Act,
the head of such a body of the Council of Ministers.
1991, Delhi shall be called the National Capital Territory
of Delhi and the Administrator then appointed shall be r The Chief Minister is appointed by the President (not
referred to as the Lieutenant Governor. by the Lieutenant Governor). The other ministers
At present, the Government of Delhi is the authority are appointed by the President on the advice of the
governing the National Capital Territory of Delhi and Chief Minister. The ministers hold office during the
its 11 districts. The body of the Government of Delhi pleasure of the President. The Council of Ministers
consists of the judiciary, legislature, and executive is collectively responsible to the assembly.
headed by the Lieutenant Governor. r The Chief Minister shall be assigned by the President
The State Government of Delhi is expressly and the other Ministers shall also be assigned by
prohibited from exercising authority over land, police, the President on the advice of the Chief Minister
and public order under Article 239AA of the Constitution. and shall hold their offices during the pleasure of

277
 the President (Clause (5) of Article 239 AA). r It limits the assembly's ability to make rules for its
r The Council of Ministers so elected shall remain committees on day-to-day administration.
responsible collectively to the legislative assembly Effect of Amendments on the functioning of the
(Clause (6) of Article 239 AA). Assembly
r The Chief Minister’s duty includes aiding and r Its standards of procedure and conduct of business
advising the Lieutenant Governor in the execution have been firmly tethered to that of the Lok Sabha,
of his functions until and unless the Lieutenant depriving Delhi’s elected MLAs of an effective say in
Governor is himself empowered to make laws at his how their Assembly should be run.
discretion. r The Amending Act prohibits the Assembly from
r If there is a dispute regarding the difference of making any rule enabling either itself or its
opinion between the Lieutenant Governor and his committees to consider any issue concerned with
Ministers then the dispute should be referred to the “the day-to-day administration of the capital” or
“conduct inquiries in relation to administrative
President whose decision would be final and binding.
decisions”.
r The assembly can make laws on all the matters of
r The most significant impact of this shall be on the
the State List and the Concurrent List except the
exercise of free speech in the Assembly and its
three matters of the State List, that is, public order,
committees.
police and land.
r By restricting the Assembly's capacity to freely
r Still, in urgent situations, where the Lieutenant
discuss issues in the capital, the amendment
Governor feels that waiting for the President’s
hampered the Assembly's ability to exercise its
decision could have a worsening effect than in those
most basic legislative job of holding the executive to
situations, the Lieutenant Governor is empowered account.
to take immediate action till the further orders of
Difference between the Lieutenant Governor of Delhi
the President.
& Puducherry
Controversy related to the National Capital Territory Both Delhi and Puducherry have quite similar
of Delhi (Amendment) Bill, 2021 administrations and management. However, while
r In Parliament, the Centre Government recently talking about the functioning of the Lieutenant Governor
introduced the Government of National Capital in the context of both of these places there are few
Territory of Delhi (Amendment) Bill, 2021. differences. The differences can be explained as below:
r The bill, according to the federal government, aims Lieutenant Governor of Delhi Governor of Puducherry
to change the statute governing the administration
The Lieutenant Governor of The Governor of Puducherry has
of the National Capital Territory of Delhi and give Delhi enjoys more power than lesser power than the Lieutenant
effect to the Supreme Court's interpretation of the the Governor of Puducherry. Governor of Delhi.
city's governance structure. The Government of National Governor of Puducherry is
Capital Territory of Delhi Act, guided by the Government of
Amendments proposed by National Capital Territory 1991, and the Transaction of Union Territories Act, 1963.
of Delhi (Amendment) Bill, 2021 Business of the Government
of National Capital Territory
r The term "Government" in the context of laws of Delhi Rules, 1993, guide the
passed by the legislative assembly is now defined Lieutenant Governor of Delhi.
as the Lieutenant Governor of Delhi, rather than the The Legislative Assembly of The Legislative Assembly in
elected government. Delhi has the power to make Puducherry can legislate on any
laws on all subjects except law matter under the State Lists and
r Lieutenant Governor’s authority by forcing the and order. the Concurrent Lists however it
elected government to seek Lieutenant Governor’s In Delhi, the role of the Centre must not be in contravention to
is more important in contrast the law.
advice on certain issues. Furthermore, it is up to with the role of the Lieutenant
Lieutenant Governor to determine whether these Governor who acts as the eyes
"matters" should be defined in a generic or specified and ears of the Centre.
order.

278
Power of President to make regulations for certain of Union Territories as mentioned in the above clause,
Union Territories in a similar manner as they apply to other High Courts
These powers of the President are discussed under under Article 214 unless any provision or specification
Article 240 of the Constitution. The President may make as Parliament may by law provide.
regulations for the peace, progress and good government Moving on to Clause (3), it States that every High
of the Union Territory of: Court that exercises jurisdiction on any Union Territory
r Andaman & Nicobar Islands; immediately before the formation of the Constitution
r Lakshadweep; will carry on to do so subject to the provisions of
r Ladakh; the Constitution or any law made by the Legislature.
r Dadra and Nagar Haveli & Daman and Diu; However, nothing prevents the Parliament from making
r Puducherry. any law to extend or to keep out the jurisdiction of the
High Court of a State upon any Union Territory or any
Still, there is a restriction to the powers of the
President in this regard. The President shall only part thereof.
exercise his powers when the Legislature of the Union Comparing States and Union Territories
Territory is suspended or disbanded in relation to any States Union Territories
law in accordance with Clause (1) of Article 239 A. The Their relationship with Centre Their relationship with Centre is
President shall also not exercise his power after the is federal. unitary.

Legislature has been created i.e., from the date approved They share a distribution of They are under the direct control
power with the Centre. and administration of the Centre.
for the first meeting of the Legislature after its creation.
They have autonomy. They do not have any autonomy.
Clause (2) of Article 240, on the other hand, States
There is uniformity in their There is no uniformity in
that any law made for the Union Territory for the time administrative set-up. administrative set-up. their
being, in order to amend any Act made by the Parliament, administrative set-up.
when promulgated by the President shall have the same Their executive head is known Their executive head is known
effect on the Union Territory as any Act of Parliament. as Governor. by various designations–
Administrator or Lieutenant
High Courts for Union Territories Governor or Chief Commissioner.
According to Article 241 Clause (1), of the Constitution A Governor is a constitutional An Administrator is an agent of
the Parliament may by law constitute a High Court for head of the State. the President.
a Union Territory or make a court in the territory to Parliament cannot make laws Parliament can make laws on
on the subjects of the State any subject of the three lists the
be the High Court for any such purposes made by the list in relation to the States State list in relation to the States
Constitution. except under extraordinary except under in relation to the
circumstances. Union Territories
Clause (2) of Article 241 further States that the
provisions of Part V and Part VI shall apply to High Courts

279
 35 Scheduled and Tribal Areas

among members of the scheduled tribes in such

Introduction
area;
Article 244 deals with the administration of Scheduled m Regulate the allotment of land to members of
Areas and Tribal areas. The provisions of the Fifth the scheduled tribes in such area;
Schedule of the Constitution apply to the administration m Regulate the carrying on of business as money-
and control of the Scheduled Areas and scheduled tribes lender by persons who lend money to members
in any State other than the States of Assam, Meghalaya, of the scheduled tribes in such area.
Tripura and Mizoram.
r In doing so, Governor may repeal or amend any
Administration of Schedule Areas act of Parliament or the State Legislature or any
The features of the Fifth Schedule are mentioned below: existing law which is for the time being applicable
r Declaration of Scheduled Areas: The Constitution to such area. All the above regulation requires the
empowers the President to declare any areas as assent of the President.
scheduled area. The President can increase or Concern associated to Fifth Schedule Area
decrease its area or alter its boundaries. He can
The Fifth Schedule promotes Scheduled Tribes' welfare
cancel such designation after consultation with the
and advancement, as well as the administration of
Governor or can make fresh orders redefining the
Scheduled Areas. It gives the Governor of a State with
Schedule Areas.
Scheduled Areas extraordinary powers of governance.
r Executive Power of State and Centre: Subject to In practice, however, despite the recommendations
the provisions of this schedule, the executive power of several groups, the extraordinary legislative and
of State extends to the Scheduled Areas therein. executive administrative powers have been rarely used.
The Governor of each State having Scheduled Areas
r Conflict of Interest: State cabinet (highest decision-
annually, or whenever required by the President,
making body in the State) and the Tribal Advisory
make a report to the President regarding the
Council are headed by the same person, it would
administration of the Scheduled Areas in that
then be impossible for the Tribal Advisory Council
State. The executive power of the union extends
to overturn a decision taken by the cabinet, even if
to the giving of directions to the State as to the
it were not in the interest of tribal communities in
administration of such areas.
Scheduled Areas.
r Tribes Advisory Council: Each State having
Scheduled Areas needs to establish Tribes’ Advisory r Environmental & Livelihood Concern: Loss of land
Council consisting of not more than twenty members remains the single biggest cause of deprivation
of whom about three-fourth members should be of the livelihoods, lives and homelands of tribals
the representatives of the scheduled tribes in the across India. Scheduled Areas have the highest
Legislative Assembly of the State. forest coverage and are rich in minerals.
r Law Applicable to Scheduled Areas: The Governor r It has been observed that the corporate sector uses
is empowered to direct that any particular act of scheduled regions' business potential to press the
Parliament or of the Legislature of the State does State government for favourable choices and big
not apply to a scheduled area subject to such earnings. It has an impact on tribal populations'
exceptions and modifications as he may specify in environment and livelihood. The tribal populations
have been disproportionately targeted, displacing
the notification.
them from their lands and livelihoods.
m Prohibit or restrict the transfer of land by or

280
r Issue related to PESA: Panchayats (Extension r The district council can establish, construct, or
to Scheduled Areas) Act, 1996 was seen as manage primary schools, dispensaries, markets,
the logical next step in ensuring tribal welfare ferries, fisheries, roads, road transport and
and accountability in the Fifth Schedule areas. waterways in the district.
However, it has not been implemented properly.
r A district fund for each autonomous district, and
Tribal communities have been gradually denied
a regional fund for each autonomous region is
self-government and rights to their communities'
natural resources, which were supposed to be constituted to which money received respectively
provided under the law. by the district council
Tribal Areas r The district and the regional councils have powers
The Sixth Schedule deals with the administration to assess and collect land revenue and to impose
and control of the tribal areas in the States of Assam, certain taxes.
Meghalaya, Tripura and Mizoram. r The District Council is empowered to make
Administration of Tribal Areas regulations for the control of money-lending and
The Sixth Schedule of the Constitution provides special trading by non-tribals.
provisions for the administration of the tribal areas in r Estimated receipts and expenditure pertaining to
Assam, Meghalaya, Tripura and Mizoram. The provisions autonomous districts has to be shown separately in
of the schedule are as follows:
the annual financial Statement of the State.
r It provides for autonomous districts and
r An act of Parliament or of the Legislature of the
autonomous regions.
State does not apply to an autonomous districts
r The Governor can increase, decrease, re-organise
and autonomous regions or apply with specified
or alter the boundary of these districts.
exceptions and modifications.
r If there are different scheduled tribes in an
autonomous district, the Governor may divide the r If at any time the Governor is satisfied that an act or
area or areas inhabited by them into autonomous resolution of a district or a regional council is likely
regions. to endanger the safety of India, he may suspend
r Each autonomous district has a district council such an act or resolution and take such steps.
consisting of not more than thirty members, of whom r The Governor can appoint a commission to look into
not more than four persons shall be nominated by and report on the matters related to administration
the Governor and the rest shall be elected on the of the autonomous districts or regions.
basis of adult suffrage. The elected members of the States Tribal Areas
district council hold office for a term of five years Assam 1. The North Cachar Hills District
and nominated member hold office at the pleasure 2. The Karbi Anglong District
of the Governor. 3. The Bodoland Territorial Areas District
r The district and the regional councils can make Meghalaya 1. Khasi Hills District
2. Jaintia Hills District
laws on matters such as land, forests, canal water, 3. The Garo Hills District
Jhum cultivation, local administration, inheritance
Tripura 1. Tripura Tribal Areas District
of property etc.
Mizoram 1. The Chakma District
r The district and the regional councils may constitute 2. The Mara District
village councils or courts for the trial of suits and 3. The Lai District
cases between the parties all of whom belong to
Scheduled Tribes within such areas.

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 36 Jammu and Kashmir

r Financial Emergency under Article 360 of Indian

Historical Background
Constitution cannot be imposed on the State.
In 1947, at the time of independence, the State of Jammu r Directive Principle of Policy and Fundamental
and Kashmir decided not to join either Pakistan or India. duties enshrined in Part IV was not applicable to
India welcomed this decision, but Pakistan attempted to Jammu and Kashmir.
annex the State militarily. The Maharaja sought Indian r Apart from the President’s rule, the Governor’s rule
help to save his territory and people who were being could also be imposed on the State for a maximum
killed and looted by the Pakistani militants. The then period of six months.
Prime Minister Jawaharlal Nehru accepted Jammu &
r The preventive detention laws as mentioned in
Kashmir’s accession to India. The Maharaja signed the
Article 22 of Indian Constitution do not have an
“Instrument of Accession” with certain concessions for
automatic extension to the State.
the autonomy of the State. This special status of the State
r The name, boundary or territory of the State of
was enshrined in Article 370 of the Indian Constitution.
Jammu and Kashmir cannot be changed by the
Important Erstwhile Features – Special Status of
Parliament without the concurrence of the State
Jammu and Kashmir by Article 370 Legislature.
r The State of Jammu and Kashmir had its own
r The term of other Indian state Legislators is 5 years
Constitution apart from Indian Constitution.
whereas, for Kashmir, it was 6 years.
r This state followed ‘dual citizenship’- Citizenship of
r Article 19(i) (f) and 31 (2) of Indian constitution
Jammu and Kashmir and India. have not been abolished for this State and ‘Right to
r The residuary power of the state lied with the property’ still, stands guaranteed to the people of
Legislature of the Jammu and Kashmir and not the Jammu and Kashmir.
Parliament of India. Article 35A
r Except for defence, foreign affairs, finance and r It was added by a 1954 Presidential Order issued
communications, the Parliament needed the state under Article 370, the constitutional provision that
government’s concurrence for applying all other mediates the relationship between the Union of
laws. India and Kashmir.
r The state has its own Criminal code titled as Ranbir r Article 35A of the Constitution provide Jammu and
Penal Code. Kashmir Legislature authority to decide who all
are 'permanent residents' of the State and confer
r The national emergency declared in the ground of
on them special rights and privileges in public
war or external aggression shall have an automatic
sector jobs, acquisition of property in the State,
extension to the State.
scholarships and other public aid and welfare.
r The national emergency proclaimed on the grounds r Article 35A also empowers the State’s legislature
of armed rebellion, shall not have an automatic to frame any law without attracting a challenge on
extension to Jammu and Kashmir. grounds of violating the Right to Equality of people
r The Governor of the State was to be appointed only from other States or any other right under the
after consultation with the Chief Minister of that Constitution.
State.

282
Main provisions in Article 35A and Leh districts).
r A person who is not a permanent resident of Jammu r Lieutenant Governor:
and Kashmir can't own property there. m These two Union territories will be administered
r Resident of any other state of India cannot become by the President, through a Lieutenant Governor
a Permanent Resident of Jammu and Kashmir and (appointed by the President).
therefore cannot cast vote there.
r Legislative Assembly:
r It forbids Indian citizens from acquiring immovable
m This Act provides the concept of new Legislative
properties and can't seek employment in the State.
Assembly for the Union Territory of Jammu and
r If a girl of Jammu and Kashmir marries a person Kashmir and says about the various characters
who does not hold a permanent resident certificate of the same.
of J&K, then she would lose her property right and
m Total number of seats- 107 seats.
their children also become ineligible to claim the
property of their mother. m 24 seats out of 107 seats will remain vacant as
their areas are occupied by Pakistan.
r This article discriminates with the citizens of India
because of the enforcement of Article 35A. As, the m Seats of Assembly will be reserved for Scheduled
people of India are denied with the Permanent Castes and Scheduled Tribes according to their
Resident certificate of Jammu and Kashmir while the population in Union Territories.
intruders from Pakistan were granted citizenship. m Lieutenant Governor can nominate any two
Recently, Rohingya Muslims from Myanmar have members for the representation of women to
been allowed to settle in Kashmir. Legislative Assembly if they are not sufficiently
r It conflicts with fundamental rights under Article represented.
14, 19 and 21 of the Constitution. m The Assembly term will be of five years and it is
r Article 35A also adversely affects the economic mandatory for Lieutenant Governor to summon
development of the state. the assembly at least once in six months.
r Meritorious students are denied scholarships and m The Legislative Assembly can make laws for any
they cannot even seek redress in any court of law. part of Union Territory of Jammu and Kashmir
r Also, the issues regarding refugees who migrated which is related to:
to J&K during Partition are still not treated as F Matters mentioned in State list of the
"State subjects" under the Jammu and Kashmir constitution, except “Police and Public
Constitution. Order”.
r Article 35A was inserted unconstitutionally, F Matters which are in Concurrent list
bypassing Article 368 which empowers only applicable to Union Territory.
Parliament to amend the Constitution. m Parliament has the power to make laws for
The Jammu and Kashmir Reorganisation Act, 2019 Union Territory of Jammu and Kashmir.
‘The Jammu and Kashmir Reorganisation Bill 2019’ was r Council of Ministers:
that bill by which passes results abolition of Article 370
m The Union Territory of Jammu and Kashmir
and Article 35A of the Indian Constitution.
has Council of Ministers of not more than 10%
The main features of this Act are: of members in the Legislative Assembly. The
r Reorganisation of the State of Jammu and Kashmir: Council of Ministers will advise Lieutenant
m This Act gives provision for reorganisation of Governor in the matter of making laws. The
Jammu and Kashmir into two Union Territory, Chief Minister has to communicate each and
i.e., Union territory of Jammu and Kashmir every decision of Council of Ministers to
(consists of Kargil and Leh districts) and Union Lieutenant Governor.
territory of Ladakh (remaining territories of the r High Court:
state of Jammu and Kashmir except for Kargil m There will be only one High Court for both

283
 Union Territory. Union Territory of Jammu and Territory.
Kashmir will have an Advocate General who will r If a person has studied for a period of 7 years
give legal advice to the Government of Union and appeared in class 10th or 12th examination
Territory. in an educational institution located in the
r Legislative Council: Union Territory of Jammu & Kashmir will also be
m The Legislative Council of the State of Jammu considered as the domicile of the Union Territory.
and Kashmir will be abolished and all bills r Someone who is registered as a migrant by the
which are pending in Legislative Council will Relief and Rehabilitation Commissioner (Migrants).
lapse.
r Children of Central government officials, All India
r Advisory Committees: Services, PSUs, autonomous body of Centre, Public
m The Central Government will appoint Advisory Sector Banks, officials of statutory bodies, Central
Committees for various purposes, such as- Universities, recognised research institutes of
F Distribution of assets and liabilities of the Centre who have served in Jammu & Kashmir for a
State into two union territories. total period of 10 years.
F Issue of generation and supply of electricity r Children of such residents of Jammu & Kashmir who
and water. reside outside Jammu & Kashmir in connection with
F Issue of State Financial Corporation. their employment or business or other professional
r The extent of laws: or vocational reasons but their parents fulfil any of
m 106 central laws of the Schedule lists will be the conditions provided.
applicable in both Union Territories from dated r Tehsildar shall be the competent authority for
which is notified by the Central Government. issuing the domicile certificate, as opposed to
These include: Deputy Commissioner.
F The Aadhaar Act 2016; r Section 5-A states that the domiciles will be eligible
F The Indian Penal Code 1860; for the purposes of appointment to any post
F Right to Education Act 2009; etc. carrying a pay scale of not more than Level 4.
Reorganisation (Adaptation of State Laws) Order, r The Level 4 post comprises positions such as
2020 gardeners, barbers, office peons and waterman and
The issues related to Article 370 and Article 35A were the highest rank in the category is that of a junior
very sensitive and complex issues which were raised in assistant.
India. It was a historical decision that Indian Government r The reservation for domiciles would not apply to
cancelled the special status which was granted under Group A and Group B posts, and like other Union
Article 370 to Jammu and Kashmir, which has been a
Territories, recruitment would be done by the
matter of dispute among India, Pakistan and China since
Union Public Service Commission (UPSC).
1947.
Highlights of the Order r Centre has repealed the Jammu & Kashmir Civil
It amended 109 laws and repealed 29 laws of the Services (Special Provisions) Act.
erstwhile State and inserted the ‘domicile’ clause in the r The order also amended the Jammu and Kashmir
Jammu and Kashmir Civil Services (Decentralisation State Legislature Members’ Pension Act,1984
and Recruitment) Act, 2010. which fixes the pension for former legislators and
r The clause for ‘permanent resident of the State’ councillors.
under the 2010 Act, has been substituted by
r The notification scraps all pension benefits such
‘Domicile’ of the Union Territory, according to
as car, driver, accommodation, phones, electricity,
which a person residing in J&K for at least 15 years
medical facilities and rent-free accommodation to
will now be eligible to be a domicile of the Union
former Jammu & Kashmir Chief Ministers.

284
r The order has also made amendments to the Public (i) a Legislature, which may be elected, or partly
Safety Act (PSA) 1978 by removing a clause that nominated and partly elected, or
prohibited Jammu & Kashmir residents booked (ii) a Council of Minister.
under the Act to be lodged in jails outside.
The Bill states that in addition to Article 239A,
r It changes the criteria for appointing the PSA any other provision of the Constitution which refers to
advisory board on the recommendation of a search elected members of a legislative assembly of a state and
committee headed by the Chief Secretary instead is also applicable to the union territory of Puducherry,
of the Chief Justice of the Jammu & Kashmir High will apply to the union territory of Jammu & Kashmir.
Court. Merging of administrative cadres:
r The advisory board has a crucial role to play in
r The Act specifies that the members of the Indian
release of detenus under the PSA. Administrative Service, the Indian Police Service
r It also bars sitting High Court judges to be made part and the Indian Forest Service serving in the state
of the board without the Chief Justice’s consultation. of Jammu & Kashmir would continue to serve in the
r The order also scraps a clause that deals with the two union territories, based on allocation decided
power to regulate place and conditions of detention. by the central government. Further, in future,
The Jammu and Kashmir Reorganisation postings of officers in the two union territories
(Amendment) Bill, 2021 would be from the Arunachal Goa Mizoram Union
The Jammu and Kashmir Reorganisation (Amendment) Territory (AGMUT) cadre. The AGMUT cadre covers
Bill, 2021 was introduced in Rajya Sabha. It amends the three states of Arunachal Pradesh, Mizoram and
the Jammu and Kashmir Reorganisation Act, 2019. The Goa, as well as all the Union Territories.
Act provides for the bifurcation of the state of Jammu r The Bill amends these clauses to provide for the
and Kashmir (J&K) into the Union Territory of J&K and merger of the officers in the existing cadre of Jammu
Union Territory of Ladakh. The Bill repeals the Jammu & Kashmir with the AGMUT cadre.
and Kashmir Reorganisation (Amendment) Ordinance, The state of Jammu and Kashmir is an integral part
2021. of India. The state has been given some autonomy under
Key features of the Bill include: Article 370 in the view of federalism and its unique
Application of provisions on elected legislatures: history of the state joining the Union of India. Article
The Act provides that Article 239A of the 370 is not the issue of integration but that of granting
Constitution, which is applicable to the union territory autonomy or federalism. In order to overcome all the
of Puducherry, shall also apply to the union territory other legal challenges, the Indian Government rendered
of J&K. Article 239A provides for the constitution of a Article 370 as ‘inoperative’ and it still has its place under
union territory of Puducherry with: the Constitution of India.

285
 Special Provisions
37 for some States
Constitution.
Introduction
Benchmarks for Special Category Status:
The Part XXI of the Indian Constitution consists of In the past, the Special Category Status was granted
Articles on ‘Temporary, Transitional and Special by the National Development Council composed of the
Provisions. Apart from Article 370, Articles 371, 371A, Prime Minister, Union Ministers, Chief Ministers, and
371B, 371C, 371D, 371E, 371F, 371G, 371H, and 371J members of the Planning Commission. The criteria for
defines the special provisions given to some States of the the special status are as follows:
Indian Union. However, in 2019, the Union Government
r Hilly and difficult terrain.
has nullified the Special Status granted to the Jammu
and Kashmir by the Indian Constitution. But the special r Low population density.
provisions (Articles 371) granted to as many as 11 States r Presence of a sizable tribal population.
continue to exist as a part of the Constitution. All these r Strategic location along international borders.
provisions take into account the special circumstances
r Economic and infrastructural backwardness.
of the individual States and mention all the safeguards
in relation to those circumstances. Recent developments r Non-viable nature of State finances.
indicate that States like Andhra Pradesh, Bihar, Goa, Importance of Special Category Status:
Odisha, and Rajasthan have been demanding the Special Normal Central Assistance favours the Special Category
Category Status from the Government. States (Currently, 11 States) enjoy 30% of the total
Historical Background assistance and the rest 70% is divided among the
The Fifth Finance Commission provided certain remaining States. The nature of assistance is also
disadvantaged States with preferential treatment different for the Special Category Status. Normal Central
like Central assistance, tax breaks, development of Assistance (NCA) is divided into 90% grants and 10%
educational institutions, special development boards, loans for these States whereas it is 30% grants and 70%
etc. Dr. Gadgil Mukherjee was then Deputy Chairman of loans for the States which are not under the Special
the Planning Commission. In the beginning, only three Category.
States; Assam, Nagaland, and Jammu and Kashmir were Some of the major Benefits of Special Category Status:
granted with the special status but later on from 1974 to r 90% of the State expenditure on all the schemes
1979; Himachal Pradesh, Manipur, Meghalaya, Sikkim, sponsored by the Centre and external aid is bore by
and Tripura were also added under the Special Category the Central Government and the remaining 10% is
Status. Arunachal Pradesh and Mizoram were added in provided as a loan to the State on 0% interest.
1990 and Uttarakhand in 2001.
r For Central funds, preferential treatment is given to
Difference between Article 370 and Article 371: the States.
Article 370 provided with special powers and status
to the State of Jammu and Kashmir. It empowered the r To attract industries, concession on the excise duty
Jammu and Kashmir to form its own Constitution other is provided to the States.
than the Indian Constitution. The residents of the State r The Centre’s gross budget of around 30% goes to
had a dual citizenship and their own national flag. RTI, the Special Category States.
RTE, CAG, and the majority of Indian laws were not
r Benefits of debt relief schemes and debt swapping
applicable there. Article 370 was abrogated in 2019
can also be availed by the States.
whereas Article 371 still continues to exist in the Indian

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r These States are exempted from income tax, creation of a committee of the Manipur Legislative
corporate tax, etc. Assembly consisting of the members elected from
r Unspent money is carried forward to the next the Hill Areas of the State.
financial year. r The President can also direct that the Governor
shall have special responsibility to secure the
Special Provisions for States:
proper functioning of that committee.
Special Provisions for Maharashtra and Gujarat
r Under Article 371, the Governor has special r The Governor should submit an annual report to
responsibility for the formation of separate the President regarding the administration of the
development boards for “Vidarbha, Marathwada, Hill Areas.
and the rest of Maharashtra”, “Saurashtra, Kutch, r The Central Government can give directions to the
and the rest of Gujarat”. State Government as to the administration of the
r Provision is also there that a report on the Hill Areas.
working of these boards must be put before State Special Provisions for Andhra Pradesh and Telangana
Legislative Assembly every year. There should be These provisions are included in Article 371D by 32nd
an equal allocation of funds for the developmental Amendment Act, 1973. With respect to these provisions,
expenditure of the above-mentioned areas. r The President is empowered to provide for equitable
r Apart from it, equal and adequate facilities for opportunities and facilities for the people belonging
technical education and vocational training as well to different parts of the State in the matter of public
as adequate opportunities for employment shall be employment and education and different provisions
provided under the State Government. can be made for various parts of the State.
Special Provisions for Nagaland r For the above purpose, the President may require
r These provisions are incorporated in Article 371A the State Government to organise civil posts in local
by the 13th Amendment Act, 1962. cadres for different parts of the State and provide
r According to these provisions, without the for direct recruitment to posts in any local cadre.
agreement of the State Legislative Assembly, He may specify parts of the State which shall be
the Parliament is not allowed to legislate on the regarded as the local area for admission to any
matters related to the Naga religion or social educational institution. He may also specify the
customary practices, the Naga law, civil and extent and manner of preference or reservation
criminal justice including the decisions which are given in the matter of direct recruitment to posts in
taken in accordance with the Naga customary law, any such cadre or admission to any such educational
ownership and transfer of land and its resources. institution.
r This provision was inserted by a 16-Point r The President may provide for the establishment
Agreement between the Centre and the Naga of an Administrative Tribunal in the State to deal
People’s Convention in 1960 which led to the with certain disputes and grievances relating to
creation of Nagaland in 1963. appointment, allotment or promotion to civil posts
Special Provision for Assam in the State. The tribunal is to function outside the
r Under Article 371B by 22nd Amendment Act, 1969, purview of the State High Court.
the President is empowered to provide for the r No court (other than the Supreme Court) is to exercise
constitution and functions of a committee of the any jurisdiction in respect of any matter subject to
Assembly which will consist of members elected the jurisdiction of the tribunal. The President may
from the State’s tribal areas. abolish the tribunal when he is satisfied that its
Special Provisions for Manipur continued existence is not necessary.
r As per the provisions comprised in Article 371C by r Article 371-E empowers the Parliament to provide
27th Amendment Act, 1971, for the establishment of a Central University in the
r The President is authorized to provide for the State of Andhra Pradesh.

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 Special Provisions for Sikkim Special Provisions for Arunachal Pradesh
r The 36th Constitutional Amendment Act of 1975 r are encompassed under Article 371 H, 55th
made Sikkim a full-fledged State of the Indian Amendment Act, 1986.
Union. It included a new Article 371-F containing r As per these provisions, the Governor has a special
special provisions with respect to Sikkim. These are responsibility in maintaining law and order. He can
as follows: take individual action after consulting the Council
m The Sikkim Legislative Assembly is to consist of of Ministers.
not less than 30 members. r In the discharge of this responsibility, the Governor,
m One seat is allotted to Sikkim in the Lok after consulting the Council of Ministers, exercises
Sabha and Sikkim forms one Parliamentary his individual judgement and his decision is final.
constituency. r This special responsibility of the Governor shall
m For the purpose of protecting the rights and cease when the President so directs.
interests of the different sections of the Sikkim r The Arunachal Pradesh Legislative Assembly is to
population, the Parliament is empowered to consist of not less than 30 members.
provide for the: Special Provision for Goa
F number of seats in the Sikkim Legislative r Article 371-I, 56th Amendment Act, 1987 provides
Assembly which may filled by candidates for 30 members as the minimum requirement for
belonging to such sections; and the Legislative Assembly of Goa.
F delimitation of the Assembly constituencies Special Provisions for Karnataka
from which candida belonging to such r Under Article 371J by 98th Amendment Act, 2012,
sections alone may stand for election to the Governor has special responsibility for the
Assembly. formation of separate development boards for the
m The Governor shall have special responsibility Hyderabad-Karnataka region.
for peace and for an equitable arrangement for r Provision is also there that a report on the working
ensuring the social and economic advancement of these boards must be put before State Legislative
of the different sections of the Sikkim population.
Assembly every year.
In the discharge of this responsibility, the
r There should be an equal allocation of funds for the
Governor shall act in his discretion, subject to
the directions issued by the President. developmental expenditure of the above-mentioned
areas.
m The President can extend (with restrictions or
modifications) to Sikkim any law which is in r Apart from it, reservation of seats in educational
force in a State of the Indian Union. and vocational training institutions, as well as the
reservation in State Government posts in the region,
Special Provisions for Mizoram
r These provisions are contained in Article 371G shall be provided for the persons belonging to the
which came into existence under 53rd Amendment Hyderabad-Karnataka region.
Act, 1986. Often these special provisions provided by the
r According to these provisions, without the agreement Constitution is given as an example for ‘asymmetry’ in
of the State Legislative Assembly, the Parliament is Indian federalism.
not allowed to legislate on the matters related to Asymmetrical Federalism:
the Mizo religion or social customary practices, the “Asymmetric Federalism” is understood to mean
Mizo law, civil and criminal justice including the federalism based on unequal powers and relationships
decisions which are taken in accordance with the in political, administrative and fiscal arrangements
Mizo customary law, ownership, and transfer of spheres between the units constituting a federation.
land and its resources. Asymmetry in the arrangements in a federation can
r The Mizoram Legislative Assembly is to consist of be viewed in both vertical (between Centre and States)
not less than 40 members. and horizontal (among the States) senses

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Evidences of this ‘asymmetry’ in India r Economic: industrial and economic growth has
r A strong Union: Residuary powers vested with it, it been geographically skewed in India which has also
is an indestructible Union with destructible States necessitated asymmetrical federalism, Ex: Special
constituting it, Emergency provisions give the Union category provisions given to some States, higher
overriding powers over the States to tackle any share of Central government in Centrally Sponsored
adverse exigency, power to initiate a constitutional Schemes.
amendment lies with the Union, President’s Rule, Specific socio-economic and political circumstances
Governor’s office, etc. warrant the ‘asymmetrical’ federal structure of
r Special provisions for some States: Article 371 Indian polity. It is important to fulfil the aspiration
of the Constitution makes some special provisions of social and economic democracy and to promote
for States or regions of States that are socio- egalitarian development throughout the country.
economically backward, have internal security It also serves to keep regional resentments under
challenges, difficult geographical conditions, check which if neglected can lead to separatist
predominance of tribal populations with distinct tendencies as manifested in the demands for
identity and cultures, etc. Statehood. Thus, national unity and integrity is also
r Allocation of Parliamentary seats to the States is contingent on this scheme of federalism.
not uniform but on the basis of population.
Importance of asymmetric federalism in India:
r The Sixth Schedule envisage special provisions for and r Secure rights: These special provisions in the
autonomy to tribal areas in four north-eastern States. Constitution help in protecting fundamental rights,
r Special Category Status (SCS) given to 11 States as and compensate for initial inequalities in the social
a means of financially assisting States at a relative system.
disadvantage due to various factors.
r Social justice: Allowance for separate laws to
Reason for adoption of asymmetric federalism govern different religious groups, and provisions
This scheme of ‘asymmetrical federalism’ has been for various kinds of affirmative action for extremely
adopted by India due to its unique socio-economic and disadvantaged groups help in ensuring justice to
political circumstances: them.
r Political: in the interests of the nation’s unity and r Ensure unity in diversity: These provisions respect
integrity, resentment of some historically backward and preserve diversity of the country by protecting
or indigenous population dominated States have vulnerable group through special powers. This
to be addressed so that they do not give rise to ensures unity in diversity.
separatist tendencies; a stable government at the
r Satisfy different needs: It act as a solution to satisfy
Centre requires cooperation from all the States.
different needs of various federal units, as the
This led to greater autonomy for States included in
result of an ethnic, linguistic or cultural difference.
sixth schedule, special powers to J&K under article Asymmetric federalism has helped in reducing
370(now scrapped), union territories in India, dissatisfaction among various States
greater powers to centre vis-à-vis State to ensure r Reduce radicalisation: Special powers given to
uniformity and unity etc. the State of Jammu and Kashmir helps in reducing
r Social: Social development has not been uniform, radicalisation. The State of Jammu and Kashmir
was given special power because the State though
in the country; the southern States have mostly includes several diverse populations, but the
been ahead than their counterparts (as revealed majority of the population of the State is Muslim,
by their higher literacy, better maternal and child and the State was also near the new country
health, etc.), hence special provisions, packages and “Pakistan’ which is a major ‘Muslim’ country.
developmental focus were necessitated in favour of r Better representation in democracy: It has helped
in providing representation to minority areas and
the States lagging behind. Ex: Protection to certain areas with less population providing them justice.
tribal areas in the country.

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 Constitutional &
38 Non-Constitutional Bodies

single member body consisting of the Chief Election

INTRODUCTION
Commissioner.
India is a democratic country that is run by the But on 16th October 1989, the President of India
combination of Constitutional and Non-Constitutional
appointed two more election commissioners to cope up
Bodies in India.A Constitutional body is a body which
is established by the Constitution of India. Such with the increased work of the election commission, this
Constitutional bodies can only be created or changed was done due to the fact that the voting age had been
after a Constitutional Amendment bill is passed and not reduced to 18 years from 21 years.
by a regular government bill or a private bill. And in October 1993, the President of India
The powers and authorities for the Constitutional appointed two more election commissioner and since
bodies are derived from the Indian Constitution. These then, to this day, the Election Commission has been
bodies are considered more prestigious, powerful and functioning as a multi-member body consisting of three
supreme than any other organisations or institutions election commissioners.
present in India.Thus, if any change is to be made Constitutional Provisions:
in the powers of functions related to such bodies a Part XV (Article 324-329) of the Indian Constitution
Constitutional amendment is required. deals with elections and establishes a commission for
In India, the Constitutional bodies hold permanent these matters.
or semi-permanent position within the machinery of • Article 324: Superintendence, direction and control
the government. These bodies are responsible to carry of elections to be vested in an Election Commission.
out executive functions for the proper administration • Article 325: No person to be ineligible for inclusion
of the Government.The Indian Constitution empowers in, or to claim to be included in a special, electoral
the President of India to make such Constitutional roll-on grounds of religion, race, caste or sex.
appointments. Constitutional bodies in India are • Article 326: Elections to the House of the People
established in order to assist the government to operate and to the Legislative Assemblies of States to be
efficiently and effectively.
based on adult suffrage.
ƒ Eg. Election Commission, Union Public Service
• Article 327: Power of Parliament to make provision
Commission, State Public Service Commission,
with respect to elections to Legislatures.
Finance Commission.
• Article 328: Power of Legislature of a State to
make provision with respect to elections to such
ELECTION COMMISSION Legislature.
The Election commission of India is a permanent, • Article 329: Bar to interference by courts in
autonomous, quasi-judicial and constitutional body electoral matters.
created under Article 324 in part XV of the constitution. It What is the Election commission?
is the supreme body vested with powers of supervision, • The Election Commission is an independent and
control and direction over all aspects of electoral permanent body which is established by the
governance in the country.
Constitution of India to ensure free and fair elections
Background
in the entire nation.
Since its establishment in 1950 and till 15th October
1989, the Election Commission had functioned as a • Article 324 of the Constitution of India provides
for the power of superintendence, direction, and

290
 control of the elections for the Parliament, State they attain the age of 65 years, whichever happens
Legislatures, the office of the President of India and first and they can also resign at any time or can be
the office of the Vice-President of India, is vested in removed before the expiry of their tenure.
the Election Commission’s jurisdiction. Hence, the • The tenure and the conditions of the work to
election commission is a body which is common to be done by the Election Commissioners and the
both the Central Government as well as the State regional commissioners will be determined by the
Governments. President of India.
• The Election Commission is not at all concerned with • The Chief Election Commissioner and the two other
the elections of Panchayats and Municipalities in the
Election Commissioner have equal powers and they
states, for these elections, there is a separate body
also receive equal salary and allowances, these are
which is called as the State Election Commission
Mission and the Vision of the Election Commission similar to those of a Judge of the Supreme Court.
The Mission of the Election Commission: The Election Powers of Election Commission of India
Commission of India has to maintain its independence, The powers of Election Commission of India are:
integrity, and autonomy and it must also ensure ease of • Determining the Electoral Constituencies’ territorial
accessibility, inclusiveness, and ethical participation. It areas throughout the country on the basis of the
must also adopt the highest standards of professionalism Delimitation Commission Act of Parliament.
for free, fair, and transparent elections in India to
• Preparing and periodically revising electoral rolls
strengthen the trust which the people have in the
and registering all eligible voters.
electoral democracy and governance.
The Vision of the Election Commission: The • Notifying the schedules and dates of elections and
Election Commission of India has to be an Institution of scrutinising nomination papers.
excellence by intensifying active involvement through • Granting recognition to the various political parties
participation and deepening as well as strengthening and allocating them election symbols.
the situation of Democracy in India. • Acting as a court to settle disputes concerning the
Composition of the Election Commission granting of recognition to political parties and
As per Article 324, the Constitution of India has made allocating election symbols to the parties.
many provisions with respect to the composition of the • Appointing officers for inquiring into disputes
election commission, these are, concerning electoral arrangements.
• The Election commission will consist of the Chief • Determining the code of conduct to be followed by
Election Commissioner and any number of other the political parties and candidates during elections.
Election Commissioners, if any, as per the President
• Preparing a program for publicising the policies of
of India’s assent.
all the political parties on various media like TV and
• The appointments of the chief election commissioner radio during elections.
and any other election commissioner will be done
• Advising the President on matters concerning the
by the President of India himself.
disqualification of MPs.
• When another Election Commissioners is appointed
• Advising the Governor on matters concerning the
then in such cases, the Chief Election Commissioner
disqualification of MLAs.
will have the authority to act as the Chairman of the
• Cancelling polls in case of booth capturing, rigging,
Election Commission.
violence and other irregularities.
• The President of India can also appoint regional
• Requesting the Governor or the President for
commissioners as he deems necessary to assist
requisitioning the staff required for conducting
the Election Commission, this can be done after
elections.
consulting with the Election Commission.
• Supervising the machinery of elections throughout
Tenure:
the country for ensuring the conduct of free and fair
• They hold the office for a period of 6 years or till
elections.

291
 • Advising the President on whether elections can be Election Commission is independent and impartial in its
held in a state that is under the President’s rule, in functioning, these are the following provisions,
order to extend the period of emergency after 1 year. • The Chief Election Commissioner has been provided
• Registering political parties and granting them the with the stable tenure and he cannot be removed
status of national or state parties (depending on from his office except in the manner and grounds
their poll performance). on which a Supreme Court’s Judge is removed from
The Commission is aided in its function by his office. He can be removed by the President of
Deputy Election Commissioners. The Deputy Election India on the basis of a resolution passed for such
Commissioners are taken from the civil services and an outcome by both the Houses of the Parliament
they are appointed by the Commission. They have a with a special majority (2/3rd of the members
fixed tenure. They are aided by the Secretaries, Deputy presents and voting) which is either on the grounds
Secretaries, Joint Secretaries and Under-Secretaries of misbehaviour or incapacity to work.
posted in the Commission’s Secretariat. • The conditions of the Chief Election Commissioner’s
Functions of Election Commission of India service cannot change to his disadvantage after his
The functions of Election Commission are as follows: appointment is done.
• To direct and control the entire process of • Any other Commissioner (Election Commissioner
conducting elections to Parliament and Legislature or Regional Commissioner) cannot be removed from
of every State and to the offices of President and his office unless it is done on the recommendations
Vice-President of India. of the Chief Election Commissioner himself.
• To decide the election schedules for the conduct of Flaws in the Election Commission
periodic and timely elections, whether general or • The Constitution of India has not specified
bye-elections the qualifications of the members of Election
• To decide on the location of polling stations, Commission.
assignment of voters to the polling stations, location • The Constitution of India has not specified the
of counting centres, arrangements to be made in term of the tenure of the members of the Election
and around polling stations and counting centres Commission.
and all allied matters • The Constitution of India has not restricted the
• To prepare electoral roll and issues Electronic Photo retiring Election Commissioners from any further
Identity Card (EPIC) appointments by the Government of India.
• To grant recognition to political parties & allot Challenges
election symbols to them along with settling • the years influence of money and criminal elements
disputes related to it in politics has increased along with violence and
• To sets limits of campaign expenditure per candidate electoral malpractices resulting in criminalization
to all the political parties, and also monitors the of politics. The Election Commission of India has
same been unable to arrest this deterioration.
• To advise in the matter of post-election • There has been rampant abuse of power by the
disqualification of sitting members of Parliament state government who at times make large-scale
and State Legislatures. transfers on the eve of elections and posts pliable
• To issue the Model Code of Conduct in the election officials in key positions, using official vehicles
for political parties and candidates so that no one and buildings for electioneering, flouting the ECI’s
indulges in unfair practice or there is no arbitrary model code of conduct.
abuse of powers by those in power. • The Election Commission of India is not adequately
Independence of Election Commission equipped to regulate the political parties. The
Article 324 of the Constitution of India has made Election Commission of India has no power in
many provisions which safeguard and ensures that the enforcing inner-party democracy and regulation of
party finances.

292
• In the recent years, an impression is gaining ground defined anywhere, and it changes from time to time
that the Election Commission is becoming less and decided by the President).
and less independent of the Executive which has • The current sanctioned strength of the Commission
impacted the image of the institution. is 11 (i.e., one Chairman and ten members).
• One of the major institutional drawbacks is Appointment and Eligibility of members
non- transparency in election of Chief Election
• Article 316 of the Indian Constitution provides
Commissioner and other two commissioners and is
for provisions regarding the appointment of the
based on the choice of presiding Government.
Chairman and the members of the UPSC and SPSC
• There have been allegations of EVMs malfunctioning,
getting hacked and not registering votes which • The Chairman and other members of Union Public
corrodes general masses trust from the institution. Service Commission are appointed by the President.
• Although no specific qualification is mentioned in
Union Public Service Commission the Constitution, but it mandates that 50% of the
members of UPSC should be the ones who have held
Introduction
government office for at least 10 years.
Articles 315 to 323 in Part XIV of the Constitution
deals with provisions relating to the Union Public • The President is empowered by the Constitution
Service Commission as well as the State Public Service of India to determine the conditions of service of
Commission. These Constitutional Provisions include the Chairman and other members of the Union
guidelines regarding the appointment, composition, Public Service Commission at the time of their
removal, functions, and duties, etc. of the Public Service appointment.
Commissions
• The person to be appointed as the members of the
The UPSC is a constitutional body. It is a central
agency which is authorized to conduct various Union Public Service Commission should not hold
examinations in India and the list of exams is given any office of profit under the Central or the State
below. Government.
• Civil Services Exam Appointment of Chairman and Acting Chairman
• Indian Forest Service Exam • In case, the office of the Chairman becomes vacant,
• Engineering Services Examination the President shall appoint another member of the
• Combined Defence Services Examination Commission as the acting Chairman to perform the
functions of the Chairman in his/her absence, if any
• National Defence Academy Examination
of the following conditions prevail:
• Naval Academy Examination
ƒ The office of the Chairman of the Commission
• Combined Medical Services Examination becomes vacant;
• Special Class Railway Apprentice ƒ The Chairman of the Commission, due to
• Indian Economic Service/Indian Statistical Service absence or for any other reason, is unable to
Examination perform the duties of his office.
• Combined Geoscientist and Geologist Examination • The Acting Chairman will perform the functions of
• Central Armed Police Force (Assistant Commandant) the Chairman until the Chairman returns to its office.
Examination Tenure of the Members and Chairman
Composition of Union Public Service Commission • For the Union Public Service Commission, every
• The UPSC consist of a Chairman and other members. member can hold office for six years or till the time
• The Commission consists of 9 to 11 members he attains the age of 65 years, whichever is earlier
including the Chairman (though the number is not • A member of any Commission can submit his
resignation, at any time, to the President of India.

293
 • The members of UPSC can be removed at any time Under Article 320 of the Constitution of India, the
by the President on various grounds. Commission is, inter-alia, required to be consulted on
Removal of Members of UPSC (Article 317) all matters relating to recruitment to civil services and
The President has powers to remove any member or posts. The functions of the Commission under Article
320 of the Constitution are:
Chairman of the Commission on the following grounds: -
• It conducts examinations for appointments to
• If the member of the Commission has become
the services of the union, which includes All India
insolvent or bankrupt.
Services, central services and public services of the
• If any member of the Commission is engaged in paid
union territories.
employment other than his office.
• assists states in framing and operating schemes
• If the President feels that the member is unfit to of joint recruitment for any services for which
continue his office due to the reason of infirmity of candidates possessing special qualifications are
mind or body. required, if requested by any two or more states to
• The President may also remove any member of do so.
the Commission, including the Chairman, on the • It is consulted on the following matters:
grounds of misbehaviour. ƒ All matters relating to methods of recruitment
Note: But in case of misbehaviour the President to civil services and for civil posts.
has to consult the matter with the Supreme Court for ƒ The principles to be followed in making
its advice and opinion. Any advice rendered by the appointments to civil services and posts and
in making transfers and promotions from one
Supreme Court shall be binding on the President, and
service to another and on the suitability of the
the President is bound to consider the advice.
candidates for such appointments, transfers
• The Chairman of the Commission enjoys special and promotions.
privileges that he can be removed only by the
ƒ All disciplinary matters affecting a person
President in the manner prescribed in the
serving under the Government of India in a
Constitution and not otherwise.
civil capacity, including memorials or petitions
Independence of UPSC relating to such matters.
• The members of the Union Public Service
ƒ Any claim of costs incurred by a civil servant in
Commission enjoy security of tenure. They cannot
defending legal proceedings instituted against
be removed from the office on any other ground
him in respect of acts done or purporting to be
than specified in the Constitution.
done in the execution of his official duty.
• According to Article 322, the expenses of the
ƒ Any claim for the award of a pension in respect
Union Public Service Commission and State Public
of injuries sustained by a person while serving
Service Commission, including salaries, allowances,
under the Government of India and any question
and pensions, payable to any of the members or
as to the amount of any such award.
staff of the Commission, shall be charged on the
ƒ Any matter related to personnel management
Consolidated Fund of India and the Consolidated
referred to it by the President.
Fund of the State respectively.
ƒ It presents annually to the President a report as
• The Chairman of Commission after removal or
to the work done by the Commission
retirement is not eligible for any other government
job. Whereas other members of the Commission • However, the Parliament can confer additional
are also not eligible to hold any Central or State functions to the UPSC relating to the services of the
government office but can become Chairman of the Union. It can also extend the function of the UPSC by
Union Public Service Commission or State Public placing the personnel system of any local authority
Service Commission. or other body corporate constituted by law or of
any public institution under it.
Functions of UPSC

294
• The annual report of the UPSC regarding its composition, appointment, and removal of members,
performance is submitted to the President. The power and functions, and independence of a State Public
President then gets this report laid before both Service Commission.
the Houses of the Parliament, together with a Composition State Public Service Commission (SPSC)
memorandum explaining the cases where the • A State Public Service Commission (SPSC) comprises
advice of the Commission was not accepted and the of a Chairman and other members appointed by the
reason for such non acceptance.
Governor of the state. One half of the appointed
Limitations of UPSC
members of the Commission should have held office
The following matters are kept outside the functional
for at least ten years either under the Government
jurisdiction of the UPSC. In other words, the UPSC is not
of India or under the Government of a state.
consulted on the following matters:
• The Constitution has not specified the strength of
• While making reservations of appointments or
the Commission.
posts in favour of any backward class of citizens.
• The Governor is empowered to determine
• While taking into consideration the claims of
the number of members as well as staff of the
scheduled castes and scheduled tribes in making
Commission and their conditions of service.
appointments to services and posts.
Appointment of Chairman and Acting Chairman
• With regard to the selections for Chairmanship or
• The Governor can appoint one of the members of
membership of Commissions or tribunals, posts of the SPSC as an acting Chairman if:
the highest diplomatic nature and a bulk of group C ƒ The office of the Chairman of the Commission
and group D services. becomes vacant; or
• With regard to the selection for temporary or ƒ The Chairman of the Commission is unable to
officiating appointment to a post if the person perform the duties of his office due to absence
appointed is not likely to hold the post for more or for any other reason.
than a year.
• Such member functions as an Acting Chairman till a
The President can exclude posts, services and person appointed as Chairman enters on the duties
matters from the purview of the UPSC. The Constitution of the office or till the Chairman resumes his duties,
states that the President, in respect to the all-India as the case may be.
services and Central services and posts may make Tenure of the Members and Chairman
regulations specifying the matters in which, it shall • For the State Public Service Commission, every
not be necessary for UPSC to be consulted. But all such member can hold office for six years or till the time
regulations made by the President shall be laid before he attains the age of 62 years, whichever is earlier
each House of Parliament for at least 14 days. The • A member of any Commission can submit his
Parliament can amend or repeal them. resignation, at any time, to the Governor.
• The members of SPSC can be removed at any time
State Public Service Commission by the President on various grounds.
Removal of Members of SPSC (Article 317)
Introduction
The President has powers to remove any member or
The Government of India Act, 1935 provided for the
Chairman of the Commission on the following grounds
establishment of a state public service Commission at
(though appointed by the Governor): -
the provincial level. Later, it was given constitutional
• If the member of the Commission has become
status by the constitution of India.
insolvent or bankrupt.
Parallel to the Union Public Service Commission in
• If any member of the Commission is engaged in
the centre, the State Public Service Commission works
paid employment other than his office.
at the state level. The same set of Articles (315 to 323
in Part XIV) of the Constitution also deals with the • If the President feels that the member is unfit to

295
 continue his office due to the reason of infirmity of in making promotions and transfers from one
mind or body. service to another and on the suitability of
• The President may also remove any member of candidates for such appointments, promotions
the Commission, including the Chairman, on the or transfers.
grounds of misbehaviour. ƒ All disciplinary matters affecting a person
Independence of SPSC serving under the Government of India in a
The Constitution mandates for the following provisions civil capacity, including memorials or petitions
to safeguard and ensure the independent and impartial relating to such matters.
functioning of the State Public Service Commission: ƒ Any claim of costs incurred by a civil servant in
• The Chairman or a member of the SPSC can be defending legal proceedings instituted against
removed from office by the President only in the him in respect of acts done or purporting to be
manner and on the grounds mentioned in the done in the execution of his official duty.
Constitution. Thus, they enjoy the security of tenure. ƒ Any claim for the award of a pension in respect
of injuries sustained by a person while serving
• Article 318 mandates that the conditions of service
under the Government of India and any question
of the Chairman or the members of SPSC are as to the amount of any such award.
determined by the Governor. But these conditions
ƒ Any matter related to personnel management.
of service cannot be varied to their disadvantage
ƒ It presents annually to the Governor a report as
after their appointment. to the work done by the Commission.
• The entire expenses including the salaries, • The State Legislature can confer additional
allowances, and pensions of the Chairman functions to the SPSC relating to the services of the
and members of the SPSC are charged on the State. It can also extend the function of the SPSC by
Consolidated Fund of State and are not subject to placing the personnel system of any local authority
the vote of the legislative assembly of the state. or other body corporate constituted by law or of
any public institution under it.
• Article 319 states that the Chairman of SPSC can
be made the Chairman of either UPSC or any other • The annual report of the SPSC regarding its
SPSC. performance is submitted to the Governor. The
Governor then gets this report laid before the
• Article 319 also states that a member of SPSC
state legislature, together with a memorandum
is eligible to be appointed as the Chairman or a
explaining the cases where the advice of the
member of the UPSC or as the Chairman of the same Commission was not accepted and the reason for
SPSC or member or Chairman of any other SPSC. such non acceptance.
• The Chairman or a member of SPSC is not eligible Limitation of State Public Service Commission
for reappointment to that office for a second term. SPSC isn’t consulted in the following matters:
Functions and Power of SPSC (Article 320 and 321) • Appointment for posts taking consideration to
The duties and functions of the SPSC are follows: claims of backward caste, SC and ST.
• It conducts examinations for appointments to the • Governor can exclude posts, services, matters from
services of the state. purview of SPSC. With respect to state services
Governor can make regulations specifying matters
• It is consulted on the matters below:
where consultation of SPSC isn’t necessary but such
ƒ All matters relating to methods of recruitment
regulations have to be approved by State Legislature
to civil services and for civil posts.
within 14 days. Creation of State Vigilance
ƒ The principles to be followed in making
Commission has affected its role in consultation on
appointments to civil services and posts and
disciplinary matters.

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Summary of SPSC in tabular format: functions of UPSC and SPSC overlap, there are still
Composition Chairman and other members (Number certain differences that distinguish both of them. The
of other members is not fixed. It is following table discusses the difference between UPSC
determined by the Governor of the state)
and SPSC
Appointment by Governor
Provisions UPSC SPSC
Qualification The qualification of the Chairman
and other members is not specified in No. of members Decided by Decided by the
the constitution. However, there is a the President Governor of State.
condition that one-half of the members of India.
of the Commission should be such Appointment Appointed by Appointed by the
persons who have held office for at least of Chairman the President. Governor.
ten years either under the government and members
of India or under the Government of a
state Conditions Decided by Decided by the
of Service the President Governor of State.
Term 6 years or until they attain the age of 62 of India.
years (Initially, the retirement age was
Age of retirement Until 65 years Until 62 years of age.
60 years. It was extended to 62 years of age.
by the 41st Constitutional Amendment
Act, 1976) Appointment of Appointed by Appointed by the
Acting Chairman the President. Governor.
Resign to Governor
Suspension for Suspended by Suspended by
Annual Report is Governor, who then tables it before the misbehaviour the President. the Governor.
submitted to State Legislature for the discussion.
Expenses Charged on Charged on the
Removal of Chairman By President (Although they are Consolidated Consolidated
and members appointed by the Governor, only Fund of India. Fund of State.
President can remove them from their
post) Further No further Chairman or member
employment employment. of U.P.S.C or Chairman
Conditions for removal r If he is adjudged as insolvent of Chairman of any other SPSC
of the Chairman or r If he engages in any paid employment
other members of SPSC Further Chairman Chairman or member
outside the duties of his office employment of UPSC or of UPSC or as Chairman
by President
r If he, in the opinion of the President, of Members any SPSC of the same SPSC or
is unfit to continue in office. member or Chairman
of any other SPSC
r The President can also remove the
Conducting the All India State-level Recruitment
Chairman or other members on the
Examination Examinations examinations.
grounds of misbehaviour. In this and National
case, the President has to refer the level
matter to the Supreme Court. examinations.
Submission Submitted to Submitted to the
of report the President. Governor.
Reappointment after Chairman: The Chairman of the State
Providing advice Advises the Advises the Governor
retirement PSC cannot be reappointed for the next President and and the State legislature.
term in the same PSC. However, he the central
can be appointed as the Chairman or government.
member of UPSC or Chairman of other Position of the UPSC/ SPSC in India
PSC or JPSC • radical change has taken place in the constitutional
Member: A member cannot be law relating to Services by the 42nd Constitution
reappointed for the next term in
Amendment Act, 1976, which inserted into the
the same PSC. However, he can be
Constitution Art, 323A.
appointed as the Chairman of that PSC
or Chairman or member of other PSC/ • To take out the Constitution and adjudication
JPSC or UPSC. of disputes relating to the recruitment the
Administrative and conditions of service of the
Difference between UPSC and SPSC
public services of the Union and of the States from
Though many provisions regarding powers and
the hands of the Civil Courts and the High Courts

297
 and to place it before an Administrative Tribunal for This type of Commissions is formed when two or
the Union or of a State. more States request for the assistance of Union Public
• This provision of the Constitution was to come into Service Commission in conducting a joint exam for
recruitment to services in all these states. Constitution of
effect only if it was implemented by a law made by
India has made provisions regarding the establishment
Parliament. That law has been enacted by Parliament
of the Joint State Public Service Commission for two or
in 1985 and brought into force on October 2, 1985, more states.
by setting up a Central Administrative Tribunal. For example, Haryana had a JSPSC for a short
• According to this Administrative Tribunal Act, 1985 period at the time of bifurcation of Punjab and Haryana.
(as amended in 1900). the Central Administrative While the UPSC and the SPSC are directly created by the
Tribunal will adjudicate disputes and complaints Constitution, JSPSC is created by the act of Parliament at
with respect to the 'recruitment and conditions of the request of the concerned state legislatures, and thus
service of persons appointed to public services in it is a Statutory body. The following are the features of a
JSPSC:
connection with the affairs of the Union', except for-
• Chairman and member of JSPSC are appointed by
ƒ Members of the Defence Forces.
the President.
ƒ Officers and servants of the Supreme Court or
• The tenure of the members of JSPSC is of six-year
of any High Court
or until they attain an age of 62 years, whichever is
ƒ Members of the secretarial staff of Parliament
earlier.
or of any Legislature of any State or Union
• They can be removed or suspended by President
Territory.
and they can directly submit their resignation to
• Excluding the above categories, any public servant
the President.
of the Union who is aggrieved, in the matter of his
• The terms and conditions of their office are
appointment, removal or reduction in rank or the determined by the President.
like, shall have to be contented with administrative • The number of members in the Commission is
justice by a Tribunal instead of by a Court of law. decided by the President.
The only Court to which the aggrieved person might • JSPSC presents its annual performance report to
run, as a last resort, is the Supreme Court. each of the concerned State Governors, who place
• The decisions of the Administrative Tribunal can, the report further before their respective State
therefore be challenged only before the Supreme Legislatures.
Court and the High Court shall not be competent • UPSC can also serve the needs of a state on the
to interfere. But subsequently, the position turned request of the state Governors and with the approval
out to be otherwise as the Supreme Court declared of the President.
the "exclusion of Jurisdiction" clauses in all the
legislations enacted in pursuance of these Articles, Finance Commission
unconstitutional to the extent they excluded the Introduction
jurisdiction of the High Courts and the Supreme Finance Commission is a constitutional body for the
Court. purpose of allocation of certain revenue resources
Joint State Public Service Commission between the Union and the State Governments. It
The abbreviation JSPSC stands for Joint State Public was created to define the financial relations between
Service Commission. The Government of India Act, 1935 the Centre and the states. It was formed in 1951. The
for the first time provided for the Joint State Public President of India is mandated by Article 280 of the
Service Commission for recruitment in two or more Constitution to appoint a Finance Commission every five
Provinces. years or sooner.

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 In November 2017, the President of India appointed as well as their criteria, are statutorily determined by
the 15th Finance Commission, under the chairmanship Parliament.
of N.K. Singh. It will make suggestions for a five-year Appointment and Qualification of the Chairman and
period, from 2021-22 to 2025-26. Members
Article 280 of the Indian Constitution Appointment
• President after two years of the commencement of According to Article 280 of the Constitution, the
Indian Constitution and thereafter every 5 years, President appoints the Finance Commission. The
has to constitute a Finance Commission of India.
Chairman of the Commission is chosen from among
• It shall be the duty of the Commission to make
talented experts in public affairs, and the four other
recommendations to the President in relation to the:
different individuals are chosen from among individuals
ƒ the distribution between the Union and the who have the required qualifications.
States of the net proceeds of taxes which are
Qualification
to be, or maybe, divided between them and the
• Are or have been, or the right fit for the appointment
allocation between the States of the respective
of Judges of any High Court; or
shares of such proceeds;
• Have an exceptional mastery of Government funds
ƒ the principles which should govern the grants
in aid of the revenues of the States out of the and records; or
Consolidated Fund of India; • Have expansive learning of monetary issues and
ƒ any other matter referred to the Commission by organizational arrangement; or
the President in the interests of sound finance • Have an intensive comprehension of financial
• The Commission shall determine their procedure matters.
and shall have such powers in the performance of Grounds for disqualification of the Chairman and
their functions as Parliament may by law confer on Members
them If any member of the Finance Commission is found to be:
Note: President can also constitute Finance • of an unstable mind,
Commission before the expiry of five years as he • involved in a heinous crime,
considers necessary • If a conflict of interest arises,
Article 281 of the Indian Constitution • Such a member is disqualified.
• It is related to the recommendations of the Finance Functions of Finance Commission
Commission: The Finance Commission makes recommendations to
• The President has to lay the recommendation the President of India on the following issues:
made by Finance Commission and its explanatory • The net tax proceeds distribution to be divided
memorandum before each house of Parliament
between the Centre and the states, and the allocation
Composition
of the same between states.
The Finance Commission consists of the following
• The principles governing the grants-in-aid to the
members:
states by the Centre out of the consolidated fund of
• Chairman
India.
ƒ He is the leading member of the Commission
• The steps required to extend the consolidated fund
and directs its activities. He ought to have
of a state to boost the resources of the panchayats
previous experience in public affairs.
and the municipalities of the state on the basis of
• Members the recommendations made by the state Finance
ƒ number of members, apart from the Chairman Commission.
are four. • Any other matter referred to it by the President in
The qualifications of the Commission members, the interests of sound finance.

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 • The Commission decides the basis for sharing the Finance Commission of India that was tabled on 1st
divisible taxes by the centre and the states and the February 2021 are listed down below:
principles that govern the grants-in-aid to the states Maintaining vertical devolution at 41 per cent:
every five years. • The commission has suggested that while
• Any matter in the interest of sound finance may be maintaining the vertical devolution at the same
referred to the Commission by the President. rate suggested in the report 2020-21; it would help
• The Commission’s recommendations along with in maintaining predictability and stabilizing the
an explanatory memorandum with regard to the resources, especially during COVID times.
actions done by the government on them are laid On GST:
before the Houses of the Parliament. • GST accounts for 35 per cent of the gross tax
• The Finance Commission evaluates the rise in the revenue of the Union.
Consolidated Fund of a state in order to affix the • GST accounts for around 44 per cent of own tax
resources of the state Panchayats and Municipalities. revenue of the States.
• The Finance Commission has sufficient powers to On Gross Tax Revenue:
exercise its functions within its activity domain. • There is a drop of 1.7 percentage points in the gross
• As per the Code of Civil Procedure 1908, the Finance tax revenue after excluding GST cess collection in
Commission has all the powers of a Civil Court. It comparison to 2016-17 figures. The impact of this
can call witnesses, ask for the production of a public drop could be seen in the tax devolution to states.
document or record from any office or court. • Gross Tax Revenue Assessment 2021-26: It is
Advisory Role of Finance Commission expected to be 135.2 lakh crore, out of which the
• The government is not required to abide by the divisible pool is estimated to be 103 lakh crores.
Finance Commission's recommendations because On Horizontal Devolution:
they are solely advisory in nature. The Government The criteria and the weights assigned for horizontal
devolution are:
must put its suggestions for giving money to the
• Population – 15%
states into action.
• Area – 15%
• In other words, "It is nowhere stipulated
in the Constitution that the Commission's • Forest & Ecology – 10%
recommendations shall be binding upon the • Income Distance – 45%
Government of India or that it would amount to a • Tax and Fiscal Efforts – 2.5%
legal right favouring the recipient States to receive • Demographic Performance – 12.5%
the money proposed to be provided to them by the • The commission has assigned a 12.5 per cent
Commission." weight to the demographic performance criterion
15th Finance Commission in the horizontal devolution. The commission has
The Finance Commission (FC) is a constitutional also re-introduced tax effort criterion to reward
body, that determines the method and formula for fiscal performance.
distributing the tax proceeds between the Centre and On Revenue Deficit Grants (RDG):
states, and among the states as per the constitutional • It has recommended total revenue deficit grants
arrangement and present requirements. The 15th of around Rs 2.94 crore over the award period for
Finance Commission was constituted by the President seventeen States.
of India in November 2017, under the chairmanship of • Local Governments: Rs. 4,36,361 crore is
NK Singh. Its recommendations will cover a period of the total grant given to the local governments
five years from the year 2021-22 to 2025-26 for the period of 2021-26. Out of the total
15th FCI Report 2021-26 grant; Rs.450 crore is dedicated to the shared
The important points about the latest report of the 15th municipal services.

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 • Grants to Rural Local Bodies: Total sum of by the North Eastern States (10 per cent.) It has
Rs. 2,36,805 crore is a grant for the rural local seen no changes since 13th Finance Commission
bodies. recommended the same arrangement.
• Grants to Urban Local Bodies: Rs.1,21,055 • Creation of Mitigation Funds both at central and
crore is the total grant for the urban local bodies. state levels.
• Grants for Health to be Channelised through Local
Governments – Rs. 70,051 crore stands for the Goods and Service Tax Council
health grant to the local governments.
Introduction
On Health:
Goods and Service Tax is one of the biggest tax
• The commission has suggested increasing the state
reforms in India. It is an indirect tax that is levied on
expenditure on health by 8 percent by 2022.
the manufacture, sale, and consumption of goods and
• The commission suggested prioritizing the creation
of All India Health Services/All India Medical services at the national level. After its implementation,
Services on the pattern of the UPSC Civil Services. various indirect taxes such as value added tax, Central
• National Medical Council is suggested to excise duty, entertainment tax, luxury tax, etc were
develop small courses on wellness clinic, basic abolished. The main reason behind introducing GST was
surgical procedures, anaesthesia, obstetrics and to unify all the indirect taxes and have one indirect tax
gynaecology, eye, ENT etc. for MBBS doctors. system. In simple terms, it means “one nation one tax”.
• AYUSH to be encouraged as an elective subject for The GST council is the key decision-making body
medicine undergraduates.
that will take all important decisions regarding the GST.
• The Allied and Healthcare Professions Bill should
The GST Council dictates tax rate, tax exemption, the
be passed at the earliest.
due date of forms, tax laws, and tax deadlines, keeping
On Higher Education:
in mind special rates and provisions for some states.
• The XV Finance Commission has recommended two
subtypes of higher education grants: The predominant responsibility of the GST Council is
to ensure to have one uniform tax rate for goods and
ƒ Promotion of online education – Rs. 5,078 crore
services across the nation.
is a total sum of grant for the promotion of
online education. Constitutional Provisions
Article 279A empowered the President of India
ƒ Development of professional courses in regional
to constitute a Council named Goods and Services
languages: The commission’s recommendation
Tax Council (GST Council) within 60 days after the
is in line with the New Education Policy 2020,
commencement of the 101st Constitution Amendment
Rs. 1,065 crores have been allocated for the
Act, 2016.
development of these courses from 2021-26.
Objective
ƒ Two colleges in each state should convert
It shall seek to ensure a uniform system of GST to avoid
their learning material and pedagogy into the
any conflict or confusion, and the development of a
recognized regional language.
harmonized national market for goods and services.
On Defence
• Recommendation to create a non-lapsable pool for Composition of GST Council
the defence and internal security sector under the The members of the council will be as follows:
Public Accounts of India. • The Union Finance Minister of India will serve as
On Disaster Risk Management: the chairperson of this council.
• The fifteenth Finance Commission recommended • The respective states will nominate the State
maintaining the contribution of states to the State Finance Ministers/ or any other Minister as a
Disaster Risk Fund (SDRF) to be 25 per cent except member of the council.

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 • The Union Minister of State in charge of revenue or GST council shall be determined by the council itself. No
finance will also be a member of this council. decision of the council would be termed invalid merely
• The representatives of the states shall choose because of any vacancy or defect in the constitution of
amongst themselves one “Vice-President”. the council, or because of any defect in the appointment
Quorum of the member, or if there is any irregularity in the
The council shall meet from which one-half of its procedure that would likely affect the merits of the case.
members will constitute a quorum, which will have the
Process of decision-making
power to make decisions. The decision shall be taken by at least three-fourth
Functions of the Goods and Services Tax Council majority out of which:
The Council is required to make recommendations to
• The vote of the Central Government will have one-
the centre and the states on the following matters:
third of the weightage.
• The taxes, cesses, and surcharges levied by the
• The vote of all the State Governments shall account
centre, the states, and the local bodies would be
merged in GST. for two-third of weightage.
• The goods and services that may be subjected to Dispute Resolution Mechanism
GST or exempted from GST. Any dispute arising either between:
• Model GST Laws, principles of levy, apportionment • The centre on one hand and a state on the other, or
of GST levied on supplies in the course of inter-state • The centre and one or state on one hand and one or
trade or commerce, and the principles that govern more state on the other hand,
the place of supply.
• Two or more states.
• The threshold limit of turnover below which goods
Shall be adjudicated by the GST council.
and services may be exempted from GST.
Process of Ratification
• The rates include floor rates with bands of GST.
Article 368 of the Indian Constitution has been amended
• Any special rate or rates for a specified period
to include Article 279 A within its ambit. It basically
to raise additional resources during any natural
implies that to bring any amendments or modifications
calamity or disaster.
to Article 279 A, ratification by a two-thirds majority of
• Special provision with respect to the states of both the houses and half of the state legislatures will be
Arunachal Pradesh, Assam, Jammu and Kashmir, required.
Manipur, Meghalaya, Mizoram, Nagaland, Sikkim,
Tripura, Himachal Pradesh, and Uttarakhand.
National Commission for Scheduled Caste
• Any other matter relating to GST, as the Council may
decide. Introduction
• In addition, the council shall also recommend the Caste-based discrimination has been prevalent in India
date on which the GST may be levied on petroleum for ages. Putting relevance on the same with the aim
crude, high-speed diesel, petrol, natural gas, and to control, and thereby erase such prejudice, Dr. B.R.
aviation turbine fuel. Ambedkar, also being the Chairman of the Drafting
• For a period of five years following the Committee, along with other members of the Constituent
implementation of GST, the Council must consider Assembly, wanted to mandate protection to backward
compensating the states for any revenue losses. The classes by means of the Constitution.
Parliament sets the compensation in accordance Articles 338 mandates the establishment of the
with this recommendation. As a result, in 2017, the national commissions for Scheduled Castes with the
law was passed by the Parliament. aim of improving their living conditions, availability
The procedure to determine the functioning of the of resources, safeguarding their interests, agricultural

302
practices thereby accelerating socio-economic growth. • The third National Commission for Scheduled
Evolution of the Commission Castes (NCSC) on 15th October 2010.
The events which contributed towards the formation of • The fourth National Commission for Scheduled
the National Commission for the Scheduled Castes have Castes (NCSC) on 22nd October 2013.
been presented hereunder; • The fifth National Commission for Scheduled Castes
• Originally, Article 338 of the Constitution provided (NCSC) on 1st June 2017.
for the appointment of a Special Officer for • The sixth National Commission for Scheduled
Scheduled Castes (SCs) and Scheduled Tribes Castes (NCSC) on 24th February 2021 with Shri
(STs) to investigate all matters relating to the Vijay Sampla as the Chairperson, Shri Arun Halder
constitutional safeguards for the SCs and STs and as the Vice-Chairman, Shri Subhash Ramnath
to report to the President on their working. He was Pardhi, and Dr. Anju Bala as the members.
designated as the Commissioner for SCs and STs Composition:
and assigned the said duty. It consists of:
• 1978: By means of a resolution, the Government had • Chairperson.
set up a non-statutory, multi-member Commission
• Vice-chairperson.
for Scheduled Castes and Scheduled Tribes along
with which the Office of Commissioner continued • Three other members.
to exist as well. It is to be noted that the President by warrant under
• 1987: The previously established Commission in his hand and seal appoints, and determines the tenure,
1978 came to be known as the National Commission service conditions of the Chairperson, Vice-Chairman,
for Scheduled Castes (SCs) and Scheduled Tribes and the members of the Commission. Their term is of
(STs). 3 years.
• 1990: By the 65th Constitutional Amendment, Functions of the Commission
• Monitoring and investigating all issues concerning
a multi-member National Commission for
the safeguards provided for the Scheduled Castes
Scheduled Castes and Scheduled Tribes replaced under the Constitution.
the Commissioner for Scheduled Castes (SCs) and
• Enquiring into complaints relating to the
Scheduled Tribes (STs)
deprivation of the rights and safeguards of the
• 2003: By the 89th Constitutional Amendment, the Scheduled Castes.
National Commission for Scheduled Castes (SCs) • Taking part in and advising the Central or State
and Scheduled Tribes (STs) got divided into two Governments with respect to the planning of socio-
separate bodies, namely, National Commission for economic development of the Scheduled Castes.
Scheduled Castes (under Article 338) and National • Regular reporting to the President of the country on
Commission for Scheduled Tribes (under Article the implementation of these safeguards.
338-A). • Recommending steps to be taken to further the
socio-economic development and other welfare
• 2004: The National Commission for SCs came into
activities of the Scheduled Castes.
existence with a Chairperson, a Vice-Chairperson,
• Any other function with respect to the welfare,
and three other members.
protection, development and advancement of the
There have been 6 National Commissions for SCs Scheduled Caste community.
that have been constituted between 2004 to 2021 • The Commission is also required to discharge
namely; similar functions with regard to the Anglo-Indian
• The first National Commission for Scheduled Castes Community as it does with respect to the Scheduled
(NCSC) was on 24th February 2004. Castes.
• The second National Commission for Scheduled Till 2018, the commission was also required to
Castes (NCSC) on 25th May 2007. discharge similar functions with regard to the other

303
 backward classes (OBCs). It was relieved from this • National Commission for Scheduled Castes (NCSC)
responsibility by 102nd Amendment Act, 2018. • National Commission for Scheduled Tribes (NCST)
Powers of the Commission Definition of Scheduled Tribes:
National Commission for Scheduled Castes being According to Article 366(25) of the Constitution,
constitutional bodies have the power to regulate Scheduled Tribes are those communities that are
their own procedures. Followed by which National scheduled in accordance with Article 342 of the
Commission for Scheduled Castes have been vested Constitution. Also, Article 342 of the Constitution says
with all the powers of a civil court. Taking a cue from that: The Scheduled Tribes are the tribes or tribal
the same, the powers of the National Commission for communities or part of or groups within these tribes
Scheduled Castes have been presented hereunder; and tribal communities which have been declared as
• The National Commission for Scheduled Castes such by the President through a public notification.
is vested with the power to discover and produce Scheduled Tribes in India
documents that concern the development of the According to the 2011 Census, the Scheduled Tribes
tribal communities; account for 104 million representing 8.6% of the
• The Commission has the power to receive evidence country’s population. These Scheduled Tribes are
on affidavits as well; spread throughout the country largely in forest and hilly
• With civil court powers being vested on the regions.
Commission, it has the authority to issue a summons The essential characteristics of these communities
for examination of documents, or witnesses; are: -
• Both the Central and the State governments can seek • Primitive Traits
advice from the Commissions whenever necessary • Geographical isolation
for the purpose of policy-making. • Distinct culture
• Along with the above-mentioned powers, there can • Shyness to contact with the community at large
be add-on powers that will be determined by the • Economically backwards
President of the nation.
As in the case of the SCs, the Plan objective of
empowering the tribals is being achieved through
National Commission for Scheduled Tribes
a three-pronged strategy of social empowerment,
Introduction economic empowerment, and social justice. Working
The National Commission for Scheduled Tribes is in the same line the NCST till the present date has been
a constitutional body that was established by the constituted three times which was the result of the 89th
Constitution (89th Amendment) Act, 2003. The
Amendment Act,2003, namely;
Commission is an authority working for the economic
development of Scheduled Tribes in India. The NCST is • The first commission was formed on 19th February
dealt with Article 338A. 2004.
Earlier, there was only one commission, which was • The second commission commenced on 14th June
for both the scheduled tribes and scheduled castes. In 2007.
2004, after the 89th Constitutional Amendment Act, • The third commission was formed on 21st July
the NCST was established by bifurcating the National 2010.
Commission for Scheduled Castes and Scheduled Dr. Rameshwar Oraon has been re-appointed as
Tribes into the NCST and the National Commission for the Chairperson of the Commission for the 2nd time
Scheduled Castes. followed by this, Shri Ravi Thakur was designated to the
This amendment replaced the National Commission Vice-Chairperson position. But the members who were
for Scheduled Castes and Scheduled Tribes with two appointed, due to their sudden demise, have left the two
distinct commissions which are:
members’ seats vacant for the current commission.

304
Composition of National Commission for Scheduled improve the standards of living for them thereby
Tribes facilitating them with minimum necessities for
National Commission for Scheduled Tribes consists of: living.
• Chairperson. • Prevention of alienation of the tribal groups, and
• Vice-chairperson. those who have already been alienated is the sole
• Three other members. responsibility of the Commission, and therefore,
It is to be noted that the President by warrant under measures should be adopted to ensure the same.
his hand and seal appoints, and determines the tenure, • The Commission should be in charge of protecting
service conditions of the Chairperson, Vice-Chairman, the forests by means of undertaking social
and the members of the Commission. Their term is of 3
afforestation and involving the tribal communities
years.
to take an active part in the same for better
Functions of the National Commission for Scheduled
functioning of the social, and environmental
Tribes
policies undertaken. These policies should also
The functions of the National Commission for Scheduled
work towards erasing shifting cultivation practiced
Tribes are laid down hereunder;
by several tribal communities which is responsible
• The National Commission for Scheduled Tribes for degrading both the land and the environment.
carries out an evaluation of the progress in the • The provisions of Panchayats (Extension to
planning process for social, and economic up- Scheduled Areas) Act,1996, must be implemented
gradation of the Scheduled Tribe Community. so as to provide adequate benefit to the Scheduled
• Just like the National Commission for Scheduled Tribes.
Caste, the National Commission for Scheduled A check on the above-mentioned functions of the
Tribes also has been vested with the responsibility Commissions is carried out by the President of India
of inquiring into complaints brought before it that after the Commissions submits their reports which must
concern the impoverishment of the rights available be accompanied by a memorandum whose purpose is
for the Scheduled Tribes, and to investigate the to explain the actions adopted on the Commission’s
working of the constitutional safeguards provided recommendations. The report is further forwarded
for this community. to the State Government, and the Governor by the
• The Commission must keep track of the status of President, after which the governor places the same
the development of the Scheduled Tribes at both before the State Legislature.
Union and provincial levels. Powers of the Commission
• The Commission is obligated by the President’s National Commission for Scheduled Tribes being
orders and therefore, has to perform all such constitutional bodies have the power to regulate
functions which the President specifies. their own procedures. Followed by which National
Along with these functions, there are certain Commission for Scheduled Tribes have been vested
measures that are to be adopted by the Commission in with all the powers of a civil court. Taking a cue from
respect to ownership rights of the tribes in association the same, the powers of the National Commission for
with forest areas; Scheduled Tribes have been presented hereunder;
• The Commission must ensure that certain measures • The National Commission for Scheduled Tribes
need to be taken to protect the rights of the is vested with the power to discover and produce
Scheduled Tribes with regard to natural resources. documents that concern the development of the
• For the tribal groups who have been displaced tribal communities;
due to unavoidable circumstances, then it is the • The Commission has the power to receive evidence
responsibility of the Commission to take steps to on affidavits as well;

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 • With civil court powers being vested on the • In pursuant to these directions’ Parliament passed
Commission, it has the authority to issue a summons National Commission for Backward Classes Act in
for examination of documents, or witnesses; 1993 and constituted the NCBC.
• Both the Central and the State governments can seek • 123rd Constitution Amendment bill of 2017 was
advice from the Commissions whenever necessary introduced in Parliament to safeguard the interests
for the purpose of policy-making. of backward classes more effectively.
• Along with the above-mentioned powers, there can • Parliament has also passed a separate bill to repeal
be add-on powers that will be determined by the the National Commission for Backward Classes Act,
President of the nation. 1993, thus 1993 act became irrelevant after passing
the bill.
National Commission for Backward Classes • The bill got the President assent in August 2018
and provided the constitutional status to NCBC.
Introduction Composition of NCBC
National Commission for Backward classes (NCBC), • The Commission include five members:
1993, recognized as a constitutional body under the ƒ A Chairperson who is or has been a judge of the
123rd Amendment Bill, 2017 and 102nd Amendment Supreme Court or of a High Court.
Act, 2018 which inserted 338B in the Constitution of ƒ Vice-chairperson.
India. NCBC comes under the Ministry of Social Justice ƒ Three other members.
and Empowerment. This Commission was formed as an • Among the members, there should be:
initiative for investigating the conditions and difficulties ƒ At least two persons, who have special
of the socially and educationally backward classes and knowledge in matters relating to backward
classes,
thus making appropriate recommendations
ƒ At least 1 woman,
Background
ƒ A social scientist,
• The first backward class commission was
pointed on January 29, 1953, known as Kaka ƒ A Member-Secretary, who is or has been an
officer of the Central Government in the rank of
Kalelkar Commission. The central government
a Secretary to the Government of India.
was not satisfied with the approach adopted by
the commission in determining the criteria for • Their term is of Three years.
identifying the backward classes. • President by warrant under his hand and seal
• On January 1, 1979, the President appointed appoints, and determines the tenure, service
another Backward Class Commission known as The conditions of the Chairperson, Vice-Chairman, and
the members of the Commission.
Mandal Commission with Shri B.P. Mandal as its
chairperson. Powers and Functions
• The Commission investigates and monitors all
• In 1987, an executive body was instituted as
matters relating to the safeguards provided for the
a national commission for Scheduled Castes
socially and educationally backward classes under
and Scheduled Tribes after that in 1990, 65th the Constitution or under any other law to evaluate
amendment was introduced which added Article the working of such safeguards.
338 in the Constitution and made a national
• It participates and advises on the socio-economic
commission for Scheduled Castes & Scheduled
development of the socially and educationally
Tribes as a constitutional body.
backward classes and to evaluate the progress of
• In Indra Sawhney case of 1992, Supreme Court had their development under the Union and any State.
directed the government to create a permanent body
• It annually presents the reports based on the
to entertain, examine and recommend the inclusion
working of the safeguards to the President. The
and exclusion of various Backward Classes for the President laid such reports before each House of
purpose of benefits and protection. Parliament.

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• If any of those reports relate to any matter which making the commission more democratic and
is concerned with the State Government, a copy of effective in advancing the interests of SEdBCs.
that report is forwarded to the State Government. • The new NCBC is entrusted with the additional
• Where any such report or any part thereof, relates function of grievance redress of backward classes.
to any matter with which any State Government is • Article 342(A) introduces greater transparency
concerned, a copy of such report shall be forwarded as it made mandatory to take the concurrence of
to the State Government. Parliament for adding or deleting any community
• NCBC has to discharge such other functions in in the backward list.
relation to the protection, welfare and development • Apart from list-inclusion and reservation, it requires
and advancement of the socially and educationally comprehensive and holistic development.
backward classes as the President may, subject to
the provisions of any law made by Parliament, by Special Officer for Linguistic Minorities
rule specify.
Introduction
• It has all the powers of a civil court while trying a
Article 350 B deals with the provision for Special Officer
suit.
for Linguistic Minorities.
Salient features of the 102nd Constitutional
It shall be the duty of the Special Officer to investigate
Amendment Act
all matters relating to the safeguards provided for
It inserted two new articles –
linguistic minorities under this Constitution and report
• Article 338 B and
to the President upon those matters at such intervals
• 342 A.
as the President may direct, and the President shall
• It also made certain changes in Article 366. cause all such reports to be laid before each House of
Article 338 B – empowers NCBC to examine Parliament, and sent to the Governments of the States
complaints and welfare measures regarding socially and concerned.
educationally backward classes. Definition of Linguistic minority:
Article 342 A – empowers the President to specify/ A linguistic minority is a class of people whose mother
assign socially and educationally backward classes in tongue is different from that of the majority in the state
different states and union territories. He can do this with or part of a state. The Constitution provides for the
the advice of the Governor of the respective state. But a protection of the interests of Linguistic Minorities.
parliamentary law is required for amending (inclusion/ About 36.3 million of India’s 1.2 billion strong
removal) the list of backward classes. population (as per the Census of 2011) speak an
• In addition to reservations, the 102nd Amendment “absolute minority language”, a language which in every
Act recognizes that BCs also need development in of India’s 28 States forms a minority.
addition to reservations. There is provision in the Constitutional Provisions
act for development of Socially and Educationally State’s Reorganization Commission (1953-55), made a
Backward Classes (SEdBCs) and the new NCBC’s recommendation regarding Special Officer for Linguistic
role in the development process. Minorities. Accordingly, the Seventh Constitutional
• With the power of the civil court, the new NCBC may Amendment Act of 1956 inserted a new Article 350- B
effectively address the problems of the backward in Part XVII of the Constitution. This article contains the
classes. NCBC is now on par with the National following provisions:
Commission for Scheduled Castes and the National • There should be a Special Officer for Linguistic
Commission for Scheduled Tribes, according to the Minorities. He is to be appointed by the President
Act. of India.
• The addition of at least two people with special • It would be the duty of the Special Officer to
understanding of backward classes, as well as one investigate all matters relating to the safeguards
woman, to the NCBC, is a positive step toward provided for linguistic minorities under the
Constitution.

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 • He would report to the President upon those matters • To submit to the president the reports on status of
at such intervals as the President may direct. The implementation of constitutionally and nationally
President should place all such reports before each agreed safeguards to linguistic minorities.
House of Parliament and send to the Governments • To monitor the implementation of safeguards
of the states concerned. through questionnaires, visits, conferences,
• His seat is at Allahabad. seminars, meetings, etc.
• He has three regional offices at Belgaum (Karnataka), • To take up all the matters pertaining to the
Chennai (Tamil Nadu) and Kolkata (West Bengal). grievances arising out of the non-implementation
Each is headed by an Assistant Commissioner. of the Constitutionally and Nationally Agreed
• He is assisted by Deputy Commissioners and Scheme of Safeguards provided to linguistic
Assistant Commissioner. minorities that come to its notice or are brought to
• He maintains liaison with the State Governments its knowledge by the linguistic minority individuals,
and Union Territories through nodal officers groups, associations or organisations at the highest
appointed by them. political and administrative levels of the state
governments and union territory administrations
• The commissioner falls under the ministry of
and recommends remedial actions to be taken.
Minority Affairs at central level.
• To promote and preserve linguistic minority groups,
• He submits the annual reports or other reports to
the Ministry of Minority Affairs has requested the
the President through the Union Minority Affairs
State Governments / Union Territories to give wide
Minister.
publicity to the constitutional safeguards provided
It must be noted here that the Constitution does to linguistic minorities and to take necessary
not specify the qualifications, tenure, salaries and administrative measures.
allowances, service conditions and procedure for
• The State Governments and Union Territories
removal of the Special Officer for Linguistic Minorities
Administrations were urged to accord priority to
Objectives of the Special Officer for Linguistic the implementation of the scheme of safeguards for
Minorities linguistic minorities.
• The objective behind the functions of the
• The Commissioner launched a 10-point programme
Commissioner is to provide and ensure equal
to lend fresh impetus to Governmental efforts
opportunities, and platforms to the linguistic
towards the preservation of the language and
minorities for their development and overall
culture of linguistic minorities.
national integration.
• The Commissioner must spread awareness amongst
Comptroller and Auditor General
the linguistic minorities about the safeguards
that are available to them by means of the Indian Described as by the Dr Bhimrao Ambedkar, the
Constitution. Comptroller and Auditor General of India (CAG) is
• The Commissioner must make it certain that an independent authority established of the Indian
effective implementation of the safeguards provided Constitution. CAG of India or the “Guardian of the Public
for the linguistic minorities in the Indian Constitution Purse” is essentially vested with the responsibility of
will take place, as have been agreed by the States / inspecting and auditing all the expenditure and receipts
Union Territories. of both the Central and the State Governments as well as
• The Commissioner must be responsible to handle of those organizations or bodies which are significantly
the representations appointed for grievance redress funded by the Government.
in relation to shielding the linguistic minorities. Article 148: Appointment and Term
Function of the Officer: • The President of India appoints the CAG by a
• To investigate all matters related to safeguards warrant under his hand and seal.
provided to linguistic minorities. • Before taking over the office, the CAG makes

308
 and subscribes before the President an oath or • After the retirement or resignation from his office,
affirmation: he is no longer eligible for any jobs or offices under
ƒ to bear true faith and allegiance to the the Central or State Governments.
Constitution of India; • That is, he can be removed by the President on the
ƒ to uphold the sovereignty and integrity of India; basis of a resolution passed to the effect by both
ƒ to duly and faithfully and to the best of his the Houses of Parliament with the special majority,
ability, knowledge and judgment perform either on the ground of proven misbehaviour or
the duties of his office without fear or favour, incapacity.
affection or ill-will; Independence
ƒ to uphold the Constitution and the laws. To safeguard and ensure the independence of CAG, the
• The CAG holds office for a period of six years or up Constitution has made the following provisions:
to the age of 65 years, whichever is earlier. • He/she is provided with the security of tenure
• The salary and other conditions of the CAG’s and can be removed by the President, only in
services shall be specified in the of the Constitution accordance with the procedure mentioned in the
until determined by the Parliament. Constitution. That is, even though CAG is appointed
• His salary and rights shall not be varied to his by the President, he/she does not hold office till the
disadvantage after his appointment to the office. pleasure of the President.
• Moreover, the determination of the service of • The CAG is not eligible for further office, either
persons working in the IAAD (Indian Audit and under the Government of India or of any state, after
Accounts Department) as well as the administrative he/she ceases to hold the office.
powers of the CAG shall be done by the President • The Parliament determines the salary and other
upon consultation with the CAG and shall be service conditions of the CAG. His/her salary is
prescribed in rules. equal to that of a judge of the Supreme Court.
• The administrative expenses of the CAG which • Neither the CAG’s salary nor the rights in respect of
incorporate salaries, allowances and pensions leave of absence, pension, or the age of retirement
are charged from the Consolidated Fund of the can be altered to his/her disadvantage after the
Constitution. appointment.
Removal of the Comptroller and Auditor General r The conditions of service of persons serving in the
• CAG can be removed from his office by the Indian Audit and Accounts Department as well as
President on the grounds of proven misbehaviour the administrative powers of the CAG are prescribed
or incapacity on an address by Parliament in the by the President after consultation with the CAG.
manner provided in Article 124 (4) of the Indian r The administrative expenses including all salaries,
Constitution. allowances, and pensions of persons serving in the
• He/she can resign any time from his office by office of the CAG, are charged upon the Consolidated
addressing the resignation letter to the President Fund of India, which means they are not subject to
and can also be removed by the President on the the vote of Parliament.
same grounds and in the same manner as a Judge of
r Also, CAG cannot be represented by any minister in
the Supreme Court.
both the houses of the Parliament and no minister
• A Presidential order passed after an address by
can be called upon to take any responsibility for any
the Parliament supported by a total membership
actions done by the CAG.
majority of the House and two-thirds of members
Duties and Powers
present and voting. r Article 149 of the Constitution authorizes the
• However, this can only be executed after sufficient Parliament to prescribe the duties and powers of
proceedings of investigation and proof.
the CAG in relation to the accounts of the Union and

309
 of the states and of any other authority or body. in turn, place them before the state legislature.
r In accordance with that, the CAG’s (Duties, Powers r Article 279- To ascertain and certify the net
and Conditions of Service) act, 1971 was enacted by proceeds (the proceeds of a tax or a duty minus the
the Parliament. cost of collection) of any tax or duty and the CAG’s
r The duties and functions of the CAG as laid down by certification will be final.
the Parliament and the Constitution are: r Act as a guide, friend, and philosopher of the Public
ƒ To audit the accounts related to all Accounts Committee of the Parliament.
expenditure from the Consolidated Fund of r To compile and maintain the accounts of State
India, Consolidated Fund of each state, and Governments (audit, that is, departmentalization of
Consolidated Fund of each union territory with accounts).
a Legislative Assembly.
Main audit reports of CAG
ƒ To audit all expenditure from the Contingency
The audit reports of the CAG can be classified into the
Fund of India and the Public Account of India
following four headings as discussed below:
and also the contingency fund of each state and
r CAG Local Bodies Audit Reports: The CAG Local
the public account of each state.
Bodies Audit Report is prepared by the State
ƒ To audit all trading, manufacturing, profit
Accountant Generals of every state of Union of India
and loss accounts, balance sheets, and other
and is sent to CAG for approval. After this procedure
subsidiary accounts kept by any department of
the Central Government and State Governments. is completed, the local bodies Audit Reports are
ƒ To audit the receipts and expenditure of the subsequently categorized into two groups, namely
Centre and each state. “Tabled in the Legislature” and “Issued to the State
ƒ To audit the receipts and expenditure of all Government”.
bodies and authorities substantially financed r CAG State Audit Reports: After the Accountant
from the Central or state revenues, Government General audits the expenditures and accounts of
companies, other corporations, and bodies, a state from the Consolidated Fund of that state,
when so required by related laws. the Comptroller and Auditor General then submits
ƒ To audit all transactions of the Central and state the findings of the report to the state legislature.
governments related to debt, sinking funds, The norm that is followed is the presentation of
deposits, advances, suspense accounts, and the reports during the budget season wherein the
remittance business. He also audits receipts, audit findings of the previous financial year are
stock accounts, and others, with approval of the
presented. At the state level, in a way similar to the
President, or when required by the President.
Central level, the audit is conducted in two streams,
ƒ To audit the accounts of any other authority which are Performance Audit and Regularity
(For example, the audit of local bodies) when Audit. Nonetheless, in the majority of the cases,
requested by the President or Governor. the reports of both of these audits are presented
r Article 150- To advise the President with regard to simultaneously.
the prescription of the form in which the accounts r CAG Union Audit Reports: The Union Audit Report
of the Centre and the states shall be kept. is prepared by Comptroller and Auditor General of
r Article 151- To submit his audit reports relating India and is primarily focused on presenting the
to the accounts of the Centre to the President, who
findings of the transactional and performance audit
shall, in turn, place them before both the Houses of
in the following areas:
Parliament and also to submit audit reports relating
to the accounts of a State to the Governor, who shall, ƒ Civil Audit

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 ƒ Audit of Autonomous Bodies r The audit reports of the CAG secure the accountability
ƒ Defence Services in the sphere of financial administration of the
ƒ Railways executive, that is council of ministers, to the
Parliament.
ƒ Government Receipts
r The audit report on appropriation accounts, audit
ƒ Central Commercial report on financial accounts, and audit report on
The CAG Union Audit Report incorporates the audit public undertakings are the three audit reports
performed under two categories namely, Performance submitted by CAG to the President, which the
Audit and Regularity (Compliance) Audit. President lays before both the Houses of Parliament.
r CAG Audit of Government - owned Corporations: r The Public Accounts Committee examines the CAG’s
The Comptroller and Auditor General of India reports and points out its findings to the Parliament.
are also vested with the power of auditing the r The CAG is responsible only to the Parliament
corporations owned by the government, central or because he acts as an agent of the Parliament and
state, and also conducting the supplementary audit conducts audits of expenditure on behalf of the
of those firms in which the Union Government have Parliament.
more than 51% equity shares.
r The CAG has more freedom with regard to the audit
Comptroller and Auditor General and Corporations of expenditure than with regard to the audit of
The role of CAG in the auditing of public corporations receipts, stores, and stock.
is limited and his/her relationship with the public
r The CAG can look into the wisdom, faithfulness,
corporations falls into the following three categories:
and economy of government expenditure and
r Some corporations are audited totally and directly comment on the wastefulness and extravagance of
by the CAG such as the Damodar Valley Corporation, such expenditure through propriety audit. But the
Oil and Natural Gas Commission, Air India, Indian propriety audit is discretionary in nature.
Airlines Corporation, and others.
Problems faced by CAG
r Some corporations are audited by private
r Since the CAG has no control over the issue of money
professional auditors, appointed by the Central
from the Consolidated Fund and many departments
Government in consultation with the CAG. The
are authorized to draw money by issuing cheques
CAG can also conduct a supplementary audit, if
without specific authority from the CAG, he/she is
necessary. Examples are Central Warehousing
just fulfilling the role of an Auditor-General only
Corporation, Industrial Finance Corporation, and
and not that of a Comptroller.
others.
r Lack of decentralization of duties: Audit reports
r Some corporations are totally subjected to private of the state governments being made in regional
audits (audit is done exclusively by private languages creates an added problem of translation
professional auditors and the CAG does not have any and of understanding the original reports. It
role) and submit their annual reports and accounts overburdens the duties of the office, making the
directly to the Parliament. The Life Insurance auditory system less efficient and audits hardly
Corporation of India, Reserve Bank of India, State being presented on time.
Bank of India, Food Corporation of India, and others
r Appointment procedure of the CAG: The
belong to this category. (The role of the CAG in the appointment procedure of the CAG is dubious such
auditing of Government companies is also limited that the involvement of the executive in the CAG’s
which are audited by private auditors, appointed by appointment is hugely problematic as he/she is
the Government on the advice of the CAG) supposed to audit the executive.
Role of Comptroller and Auditor General Recent Issues
r The role of CAG is to uphold the Constitution of India r Recently, one of the former CAG’s has said the
and the laws of Parliament in the field of financial Central Government has held back a report that he
administration. had submitted to the President of India, to end what

311
 he called “a nightmare of accounts that militates r In other words, he/she must be a citizen of India
against good governance”. He submitted the report and must have been a Judge of some High Court for
under Article 150 of the Indian Constitution to five years or an advocate of some High Court for
the President in April 2020 and it is still not in the ten years, or an eminent jurist, in the opinion of the
public domain. President.
r Audit Reports got delayed in the Parliamentary r The term of office of the Attorney General is not
sessions of 2019 and 2020 which showed the fixed by the Constitution.
inefficiency as well as lack of manpower in the
r Further, the Constitution does not contain the
office of CAG.
procedure and grounds for his/her removal.
r In January 2021, the CAG announced that the
r Thus, he/she holds office during the pleasure of the
office would begin evaluating procurement and
President which means that he may be removed by
availability of drugs and paramedics, as well as
the President at any time.
review the vaccine distribution scheme for issues
related to transparency. But no report has been r He/she may also quit his office by submitting his
yet released. Thus, a meaningful and timely audit resignation to the President.
appears likely to be a utopian dream. r The remuneration of the Attorney General is
Despite having such importance in the parliamentary not fixed by the Constitution and receives such
setup of a democracy like India, the institution of the remuneration as the President may determine.
Comptroller and Auditor General of India has, time and Duties and Functions
again, suffered due to the less general public awareness r To advise the Government of India upon such legal
about the significance of this authority. A major fallacy matters, which are referred by the President.
that exists in modern-day polity is the less popularity r To perform such other duties of a legal character
of many CAG reports and the fact that not all of these
that are assigned to him/her by the President.
reports are deliberated upon in the Parliament.
r To discharge the functions conferred by the
To expedite the efficiency of the Comptroller and
Constitution or any other law.
Auditor General of India as a constitutional officer
charged with the responsibility of maintaining and r Apart from these, the President has assigned the
upholding the accountability and liability of the ones following duties to the Attorney General:
in power, it is important to popularize the audit reports r To appear on behalf of the Government of India
released by the CAG and open up opportunities for more in all cases in the Supreme Court in which the
general public discussion about them. Controversies Government of India is concerned.
like the Commonwealth Games, 2G Spectrum and Rafale r To represent the Government of India in any
Deal brought forth the importance of CAG reports in a
reference made by the President to the Supreme
democracy like India and helped ignite public discourse.
Court under Article 143 of the Constitution.

Attorney General of India r To appear (when required by the Government of

India) in any High Court in any case in which the
The Constitution (Article 76) has provided for the office
Government of India is concerned.
of the Attorney General for India. He is the highest law
Rights of Attorney General
officer in the country r In the performance of his official duties, the Attorney
Appointment and Eligibility General has the right of audience in all courts in the
r The Attorney General is appointed by the President
territory of India.
on the advice of the Executive.
r Also, he/she has the right to speak and to take
r He/she must be a person who is qualified to be
part in the proceedings of both the Houses of
appointed as a Judge of the Supreme Court.

312
 Parliament or their joint sitting and any committee It should be noted here that only the office of the
of the Parliament of which he/she may be named a Attorney General is created by the Constitution. In other
member, but without a right to vote. words, Article 76 does not mention about the Solicitor
r He/she enjoys all the privileges and immunities General and Additional Solicitor General.
that are available to a Member of Parliament. The Attorney General is not a member of the Central
r He/she should not advise or hold a brief against the Cabinet. There is a separate law minister in the Central
Government of India. cabinet to look after legal matters at the government
level.
r He/she should not advise or hold a brief in cases in
which he is called upon to advise or appear for the
Government of India. Advocate General
r He/she should not defend accused persons in Introduction
criminal prosecutions without the permission of Under the Constitution of India, Article 165 has provided
the Government of India. for the office of the Advocate General for the states. He is
Limitations placed on the Attorney General the highest law officer in the state. Thus, he corresponds
r He/she should not accept an appointment as a to the Attorney General of India.
director in any company or corporation without the Appointment of Advocate General of the State:
permission of the Government of India. The Advocate General is appointed by the Governor.
r He/she should not advise any ministry or He must be a person who is qualified to be appointed a
department of Government of India or any statutory judge of a high court. The person who is eligible to hold
organization or any public sector undertaking the office of advocate general in India must meet the
following criteria:
unless the proposal or a reference in this regard is
received through the Ministry of Law and Justice, r He must be an Indian Citizen
Department of Legal Affairs. r He should be eligible to be appointed as the judge
r However, the Attorney General is not a full-time of the High Court; i.e., he must meet one of the
following eligibility criteria:
counsel for the Government and does not fall in the
ƒ An advocate having experience of more than 5
category of government servants.
years.
r Further, he/she is not debarred from private legal
ƒ A civil servant with an experience of more than
practice.
10 years along with an experience as a servant
r The Attorney General is not a member of the
in Zila Court for at least 3 years.
Central Cabinet. There is a separate law minister in
ƒ A pleader over 10 years in any high court
the Central cabinet to look after legal matters at the
r He shouldn’t be more than 62 years of age, as is the
government level.
age of qualification for a High Court Judge.
r The Delhi High Court has ruled that the office of In other words, he must be a citizen of India and
the Attorney General of India (AGI) does not come must have held a judicial office for ten years or been an
under the ambit of the Right to Information (RTI) advocate of a high court for ten years.
Act as it is not a public authority. Term of office of Advocate General of the State:
Solicitor General of India r The term of office of the Advocate General is not
In addition to the Attorney General, there are other law fixed by the Constitution.
officers of the Government of India. They are the solicitor r The Constitution does not contain the procedure
general of India and additional solicitor general of India. and grounds for his removal.
They assist the Attorney General in the fulfilment of his r He holds office during the pleasure of the Governor.
This means that he may be removed by the Governor
official responsibilities.
at any time.

313
 r He may also quit his office by submitting his r Article 194: Powers, privileges and immunities of
resignation to the Governor. Conventionally, he Advocate General.
resigns when the Government (Council of Ministers)
resigns or is replaced, as he is appointed on its Non-Constitutional Body
advice.
The remuneration of the advocate general is not A Non-Constitutional body is an organization or
fixed by the Constitution. He receives such remuneration institution which is not mentioned in the constitution of
as the Governor may determine. India. Unlike a constitutional body, a non-constitutional
Duties and functions of Advocate General of the State: body does not derive its powers from the Indian
As the chief law officer of the Government in the state, constitution. Usually, a non-constitutional body derives
the duties of the Advocate General include the following:
its powers from corresponding laws passed by the
r To give advice to the government of the state upon Indian Parliament. There are also non-constitutional
such legal matters which are referred to him by the
bodies that derive power based on Indian government
Governor.
orders called executive resolution. Based on how the
r To perform such other duties of a legal character
that is assigned to him by the Governor. body derives its power, non-constitutional bodies can
be broadly classified into two:
r To discharge the functions conferred on him by the
Constitution or any other law. r Statutory Bodies – They get the power from a
r In the performance of his official duties, the statute i.e., an act enacted by the legislature.
advocate general is entitled to appear before any ƒ Eg: National Investigation Agency, National
court of law within the state. Further, he has the Human Rights Commission, Lokpal, and
right to speak and to take part in the proceedings
Lokayukta, etc.
of both the Houses of the state legislature or any
committee of the state legislature of which he may r Non-Statutory Bodies – They usually get the power
be named a member, but without a right to vote. He from an executive order.
enjoys all the privileges and immunities that are ƒ Eg: NITI Aayog, National Development Council,
available to a member of the state legislature. etc
Rights of Advocate General of the State Statutory Bodies can be further classified into two based
Following are the rights of the Advocate General: on their roles and responsibilities. They are –
r In the performance of his official duties, he has the
r Regulatory Bodies – A regulatory body is a
right of audience in any court in the State.
government agency that is accountable for
r He has the right to speak or to take part in the
proceedings of state legislature, but without a right exercising autonomous authority over some area
to vote. of human activity in a regulatory or supervisory
r He has the right to speak or to take part in the capacity. However, their regulatory interventions
meeting of any committee of the state legislature of are outside executive observation.
which he is named as a member, but without a right ƒ Eg: Biodiversity Authority of India, Pension
to vote. Fund Regulatory and Development Authority,
r He enjoys all the privileges and immunities that are etc.
available to a member of the state legislature. r Quasi-Judicial Bodies – Quasi-Judicial bodies are
Articles related to Advocate-General of the state non-judicial bodies like commissions or tribunals
under Constitution of India: which can interpret the law. They are different from
r Article 165: Advocate-General of the State.
judicial bodies in that their field is limited compared
r Article 177: Rights of Advocate-General as respects to a court.
the Houses of State Legislature and its Committee.

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 ƒ Eg: National Green Tribunal, National Human r Governing Council: Consists of Chief Ministers of
Rights Commission, Central Information all the States and Lieutenant Governors of Union
Commission. Territories.
r Regional Councils: These are created to address
NITI AAYOG particular issues and possibilities that affect more
than one state. The regional councils are formed
The NITI Aayog replaced the Planning Commission that
for a fixed term and the Prime Minister summons
had been running for 65 years. NITI Aayog works as a
the council. It consists of the Chief Ministers
think tank and as an advisory body of the government.
of States and Lieutenant Governors of Union
It provides advice to the government on matters related
Territories. The Regional Council is chaired either
to strategic policy at the Centre and the States. Further,
by the Chairperson of the NITI Aayog or a person
it also includes economic issues of domestic as well as nominated by the Chairperson.
international importance.
r Special invitees: The Prime Minister nominates
Evolution of the NITI Aayog the eminent professional and experts who have
On 1st January 2015, the Union Government announced relevant domain knowledge.
the establishment of the NITI Aayog. The resolution The full-time organizational framework- it will
include the
was passed by the Parliament to replace the Planning
Commission of India with the NITI Aayog. r Prime Minister as the Chairperson and

The Planning Commission of India used to perform r Vice-Chairperson who is appointed by the Prime
two main duties- Minister.

r Implementation of the five-year plan. r Members:

r Providing Finances to the states. ƒ Full-time members

• Part-time members: The Maximum number of
The NITI Aayog does not provide finances to states,
members is 2 from leading research organizations,
the function of allocating funds is now transferred to the foremost universities, and other innovative
Finance Ministry. It aims at constructing a strong state organizations that are in an ex-officio capacity. The
that will boost India to develop as a major economy in part-time members are selected on a rotational
the world and to create a strong and dynamic nation. basis.
The NITI Aayog’s creation has two hubs known as: r Ex Officio members: Includes a maximum of 4
r The Team India Hub: It leads the participation of members of the Council of Ministers who are
the Central government with the States. nominated by the Prime Minister.
r The Knowledge and Innovation Hub: It helps in r Chief Executive Officer: The Prime Minister will
building the institution’s think tank capabilities. appoint the CEO for a fixed tenure. He will be in the
rank of Secretary to the Government of India.
NITI Aayog is developing itself into a State-of-
Objective of NITI Aayog
the-Art Resource Centre, which has all the essential
r To evolve a shared vision of national development
skills, knowledge, and that will empower it to act with
priorities, sectors and strategies with the active
advanced research, speed, and innovation. It will bestow involvement of States.
the government with crucial policy and help in managing r To foster cooperative federalism through structured
unforeseen issues. support initiatives and mechanisms with the States
Composition of NITI Aayog on a continuous basis, recognizing that strong
The composition of the NITI Aayog is as follows: States make a strong nation.
r Prime Minister of India: He is the Chairperson of r To develop mechanisms to formulate credible plans
NITI Aayog. at the village level and aggregate these progressively

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 at higher levels of government. research and innovation, provide strategic policy
r To ensure, on areas that are specifically referred vision for the government, and deal with contingent
to it, that the interests of national security are issues.
incorporated in economic strategy and policy. r It is supported by an attached office, Development
r To pay special attention to the sections of our society Monitoring and Evaluation Organisation (DMEO),
that may be at risk of not benefiting adequately a flagship initiative, Atal Innovation Mission (AIM)
from economic progress. and an autonomous body, National Institute of
r To design strategic and long-term policy and Labour Economics Research and Development
programme frameworks and initiatives, and (NILERD).
monitor their progress and their efficacy. The r NITI Aayog’s entire gamut of activities can be
lessons learned through monitoring and feedback divided into four main heads:
will be used for making innovative improvements, ƒ Policy and Programme Framework
including necessary mid-course corrections. ƒ Cooperative Federalism
r To provide advice and encourage partnerships ƒ Monitoring and Evaluation
between key stakeholders and national and
ƒ Think Tank, and Knowledge and Innovation Hub
international like-minded think tanks, as well as
educational and policy research institutions. Seven pillars of effective governance envisaged by
NITI Aayog
r To create a knowledge, innovation and
The NITI Aayog is based on the 7 pillars of effective
entrepreneurial support system through a
Governance. They are:
collaborative community of national and
international experts, practitioners and other • Pro-people: It fulfils the aspirations of society as
partners. well as individuals
r To offer a platform for the resolution of inter-sectoral • Pro-activity: In anticipation of and response to
and inter departmental issues in order to accelerate citizen needs
the implementation of the development agenda. • Participation: Involvement of the citizenry
r To maintain a state-of-the-art resource centre, be a • Empowering: Empowering, especially women in
repository of research on good governance and best all aspects
practices in sustainable and equitable development • Inclusion of all: Inclusion of all people irrespective
as well as help their dissemination to stake-holders. of caste, creed, and gender
r To actively monitor and evaluate the implementation • Equality: Providing equal opportunity to all
of programmes and initiatives, including the especially for youth
identification of the needed resources so as to • Transparency: Making the government visible and
strengthen the probability of success and scope of responsive
delivery. Aims of NITI Aayog
r To focus on technology upgradation and capacity r To provide a critical strategic and directional input
building for implementation of programmes and in the development process of India.
initiatives. r To serve as a think tank of both Centre and State-level
r To undertake other activities as may be necessary Government. Also, to provide relevant technical and
in order to further the execution of the national strategic advice on key policy matters.
development agenda, and the objectives mentioned r Try to replace the centre-to-state, one-way flow
above. of policy with an amicably settled policy with a
Features of NITI Aayog continued and genuine partnership of state frames.
r NITI Aayog is developing itself as a state-of-the-art r It seeks to put an end to the slow and tardy policy
resource centre with the necessary knowledge and implementation. This is possible through better
skills that will enable it to act with speed, promote state-to-state and inter-Ministry coordination.

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r To help in evolving a shared vision of development process of the country.
of national priorities and foster cooperative ƒ To provide policy support to more than 50
federalism. That is to work with the view that: million businesses that are a major source of
strong states = strong nations. employment generation.
r To develop mechanisms at the village level to ƒ To safeguard our ecological and environmental
formulate credible plans, to ensure that special assets.
attention is paid to those sections of society which NITI AYOG has changed the fundamental nature of
carry the risk of not being benefited from the overall planning in India.
economic progress of the country. Change in policy making: While designing strategic and
r To evaluate and monitor the implementation of long-term policies and programs for the Government of
programs and also focus to upgrade the technology India, NITI Aayog also provides relevant technical advice
and building capacity. to the Centre and States. Example: Medical Education
r The NITI Aayog tries to accomplish the following Reform
opportunities: Bottom- up approach: This enables to achieve
ƒ To create a productive administration paradigm sustainable development goals with cooperative
where the Government is an enabler rather federalism by fostering the involvement of State
than being a provider of the first and last resort. Governments of India in the economic policy-making
ƒ To attain progress from food security, by process using a bottom-up approach. Example:
focussing on agricultural production and the New innovations: At the core of NITI Aayog’s
actual returns that farmers receive from their creation are two hubs – Team India Hub and the
produce. Knowledge and Innovation Hub. The Team India
ƒ To ensure that India is an active participant in Hub leads the engagement of states with the Central
global deliberations and debates. government, while the Knowledge and Innovation Hub
ƒ To ensure that the economically active middle- builds NITI’s think-tank capabilities. Example: Atal
class is actively engaged and is utilized to its full Innovation Mission (AIM)
potential. Strategic programs: To design strategic and long-
ƒ Leveraging India’s pool of scientific, term policy and programme frameworks and initiatives,
entrepreneurial and intellectual human capital. and monitor their progress and their efficacy. The
ƒ To incorporate the geopolitical and geo- lessons learnt through monitoring and feedback will be
economic strength of the NRI Community. used for making innovative improvements, including
ƒ To use urbanization as an opportunity for necessary mid-course corrections. Example: Education
creating a secure habitat via modern technology. and Water Management

ƒ To use technology in reducing potential and Coordination among different departments:

ambiguity for misadventures in governance. It offers a platform for resolution of inter-sector and
inter-departmental issues in order to accelerate the
ƒ To leverage the demographic dividend of India
implementation of the development agenda. Example:
and realize the potential of young men and
Atal Mission for Rejuvenation and Urban Transformation
women, which is done by imparting education,
skill development, eliminating gender bias, and Use of advanced technology: NITI Aayog has taken
providing employment opportunities. initiative on Blockchain usages in E-governance and has
conceptualized the tech stack as ‘IndiaChain’. IndiaChain
ƒ To eliminate poverty and to offer Indians a
is the name given to NITI Aayog’s ambitious project to
better chance to live a life with dignity and
develop a nation-wide blockchain network.
respect.
Digitization: It focuses on technology upgradation
ƒ To redress inequalities that are based on gender
and capacity building for implementation of programmes
bias, caste, and economic disparities.
and initiatives. Example: Digital India.
ƒ To integrate villages into the development

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 Indices Measuring States’ Performance in Health, public involvement, it has done neither.
Education and Water Management: ‘Name and shame’ r The Prime Minister himself is of the view that
has helped improve states’ business rankings. the NITI Aayog has not been able to do enough in
Interference of Technocrats: Introduction of promoting initiatives like Swachh Bharat Mission,
individuals with technical training and occupations who Make in India, and Smart City projects in the states.
perceive many important societal problems as being r It does not have the power to analyse the
solvable with the applied use of technology and related performance of various government scheme
applications. Example: Swachh Bharat Abhiyan, National Co-operative Federalism by NITI Aayog
Mission for Clean Ganga. Cooperative Federalism in India reflects an ideology of a
Criticism of NITI Aayog stable relationship between the centre and other units.
r A deeply unequal society cannot be transformed It guides all the governing bodies to come forward and
into a modern economy by the NITI Aayog, that cooperate to resolve common social, political, economic
ensures the welfare of all the citizens, irrespective and civic problems.
of their social identity. NITI Aayog has been constituted to actualise the
r NITI Aayog has no role in influencing private or important goal of cooperative federalism and to enable
public investment. good governance in India. On the premise that strong
r NITI Aayog does not seem to influence policy- states make a strong nation, NITI Aayog acts as the
making with long-term consequences. For example, quintessential platform for the Government of India by
demonetization and Goods and Services Tax. bringing States together as ‘Team India’ to work towards
r If NITI Aayog is a think-tank, it should be the national development agenda.
maintaining a respectable intellectual distance from In view of this, a number of steps have been taken
the government. Instead, what we see is uncritical by NITI Aayog to foster cooperative federalism through
praise of the Government-sponsored schemes and structured support initiatives and engagement with the
programs. States/UTs on a continuous basis. These includes:
r NITI Aayog has not been able to answer some r meetings between the Prime Minister/Cabinet
specific questions, like why 90% of the workers are Ministers and all Chief Ministers;
still working in an unorganized sector and more r subgroups of Chief Ministers on subjects of national
informalisation is taking place in an organized importance;
sector. r sharing of best practices;
r Women’s labour force participation rate is also r policy support and capacity development of State/
decreasing when our neighbours like Bangladesh UT functionaries;
are registering an increase in women’s labour
r launching of the Aspirational Districts Programme
participation.
for development of backward districts;
r Though things are working in the NITI Aayog, but
r theme-based extensive engagements in various
not with the pace that is required, which should not
sectors;
be the case.
r framing model laws for land leasing and agriculture
r To make it relevant, NITI Aayog has been bestowed
marketing reforms; and
with too many powers but bestowing too many
powers in a single body is not a good idea for r area-specific interventions for the North-Eastern
governance. and Himalayan States and island development.
r The work of NITI Aayog includes to keep listening r providing relevant technical advice to the Centre,
to the demands of the states and fulfil their needs States and UTs
which NITI Aayog has not been able to do till now. r Centre-state partnership model Development
r The intention behind setting up NITI Aayog was to Support Services to States and Union Territories
encourage participation in the economic policy and (DSSS);

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r and the Sustainable Action for Transforming Human Authority (NRAA) Earlier, the National Informatics
Capital (SATH) programme. Centre was also under the erstwhile Planning
Erstwhile Planning Commission Commission. Later, it was brought under the
The erstwhile Planning Commission was established Ministry of Information Technology.
It should be noted that the erstwhile Planning
in March 1950 by an executive resolution of the
Commission was only a staff agency–an advisory
Government of India, (i.e., the Union Cabinet) on the
body and had no executive responsibility. It was not
recommendation of the Advisory Planning Board responsible for taking and implementing decisions.
constituted in 1946, under the chairmanship of K.C. This responsibility rested with the Central and State
Neogi. Thus, the erstwhile Planning Commission was Governments.
neither a constitutional body nor a statutory body. Composition
In India, it was the supreme organ of planning for The following points can be noted in context of the
social and economic development. composition (membership) of the erstwhile Planning
Commission:
Functions
The functions of the erstwhile Planning Commission r The Prime Minister of India was the Chairman of
included the following: the Commission. He presided over the meetings of
the commission.
r To make an assessment of material, capital and
human resources of the country, and investigate the r The commission had a Deputy Chairman. He was
possibilities of augmenting them. the de facto executive head (i.e., full-time functional
head) of the commission. He was responsible for
r To formulate a plan for the most effective and
the formulation and submission of the draft of Five-
balanced utilisation of the country’s resources.
Year Plan to the Central cabinet. He was appointed
r To determine priorities and to define the stages in
by the Central cabinet for a fixed tenure and enjoyed
which the plan should be carried out.
the rank of a cabinet minister. Though he was not a
r To indicate the factors that retard economic member of cabinet, he was invited to attend all its
development. meetings (without a right to vote).
r To determine the nature of the machinery required r Some Central Ministers were appointed as part-
for successful implementation of the plan in each time members of the commission. In any case, the
stage.
finance minister and planning minister were the ex-
r To appraise, from time to time, the progress officio (by virtue of) members of the commission.
achieved in execution of the plan and to recommend
r The commission had four to seven fulltime expert
necessary adjustments.
members. They enjoyed the rank of a minister of
r To make appropriate recommendations for state.
facilitating the discharge of its duties, or on a r The commission had a member-secretary. He
matter referred to it for advice by Central or state was usually a senior member of IAS. The state
governments.
governments were not represented in the
The Allocation of Business Rules had assigned commission in any way.
the following matters (in addition to the above) to the Thus, the erstwhile Planning Commission was
erstwhile Planning Commission: wholly a Centre-constituted body.
r Public Co-operation in National Development
r Specific programmes for area development notified National Development Council
from time to time On the 1st of January, 2016, it was reported that the
r Perspective Planning Modi government is also going to abolish the National
r Institute of Applied Manpower Research Development Council (NDC) and transfer its powers to
r Unique Identification Authority of India (UIDAI) the Governing Council of the NITI Aayog. However, till
r All matters relating to National Rainfed Area now, such a resolution has not been passed.

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 The National Development Council (NDC) was time to time.
established in August 1952 by an executive resolution of r To recommend measures for achievement of the
the Government of India on the recommendation of the aims and targets set out in the national Plan.
First Five Year Plan (draft outline). Like the erstwhile The Draft Five-Year Plan prepared by the Planning
Planning Commission, it is neither a constitutional body Commission (now NITI Aayog) is first submitted to the
nor a statutory body. Union Cabinet. After its approval, it is placed before the
Composition NDC, for its acceptance. Then, the Plan is presented to the
The NDC is composed of the following members. Parliament. With its approval, it emerges as the official
r The Prime Minister of India (as its chairman/head). Plan and published in the official gazette. Therefore,
r All Union Cabinet Ministers (since 1967).17 the NDC is the highest body, below the Parliament,
r The Chief Ministers of all the states. responsible for policy matters with regard to planning
for social and economic development.
r The Chief Ministers/administrators of all union
territories. However, it is listed as an advisory body to
the Planning Commission (now NITI Aayog) and
r Members of the Planning Commission (now NITI
its recommendations are not binding. It makes its
Aayog).
recommendations to the Central and state governments
r The secretary of the Planning Commission (now and should meet at least twice every year.
NITI Aayog) acts as the secretary to the NDC.
Comparison between NITI Aayog and Planning
It (NDC) is also provided with administrative and Commission
other assistance for its work by the Planning Commission
NITI Aayog Planning Commission
(now NITI Aayog).
It serves as an advisory Think It served as extra-constitutional
Objectives Tank. body.
The NDC was established with the following objectives. It draws membership from a It had limited expertise.
r To secure cooperation of states in the execution of wider expertise.
the Plan. It serves in spirit of Cooperative States participated as spectators
Federalism as states are equal in annual plan meetings.
r To strengthen and mobilise the efforts and resources partners.
of the nation in support of the Plan. Secretaries to be known as CEO Secretaries were appointed
r To promote common economic policies in all vital appointed by Prime- Minister. through usual process.
spheres. It focuses upon ‘Bottom-Up’ It followed a ‘Top-Down’
approach of Planning. approach.
r To ensure balanced and rapid development of all
It does not possess mandate to Imposed policies on states and
parts of the country. impose policies. tied allocation of funds with
Functions projects it approved.
To realise the above objectives, the NDC is assigned with It does not have powers to It had powers to allocate
allocate funds, which are vested funds to ministries and state
the following functions: in Finance Minister. governments.
r To prescribe guidelines for preparation of the
national Plan. Human Rights Commission
r To consider the national Plan as prepared by the
Planning Commission (now NITI Aayog). The Protection of Human Rights Act of 1993 provides
r To make an assessment of the resources required for the creation of National Human Rights Commission
for implementing the Plan and to suggest measures at central level and State Human Rights Commission at
for augmenting them. the state level.
r To consider important questions of social and National Human Rights Commission
economic policy affecting national development. The National Human Rights Commission was established
r To review the working of the national Plan from through an Act of Parliament in the year 1992 by the

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Protection of Human Rights Act, 1993 for protection and r There should be one Member who is, or has been, a
promotion of Human Rights in India. This is the most Judge of the Supreme Court.
important development in India. This development is r There should be one Member who is, or has been,
the Chief Justice of the High Court.
the result of an ordinance that was promulgated by the
r Two other members should be there who have
President.
the knowledge or practical experience in matters
What is the National Human Rights Commission related to human rights.
(NHRC)?
The ex-officio members of the Commission can be:
The National Human Rights Commission (NHRC) r The Chairpersons of the National Commission for
established in 1993, is an independent statutory body Minorities,
as per the provisions of the Protection of Human Rights r The Chairpersons of the National Commission for
Act of 1993 which was amended in 2006. Women,
r Human Rights are an indispensable part of society r The Chairperson of the National Commission for
and Human Rights in India are watched by NHRC. Scheduled Castes, and
r NHRC acts as a watchdog of human rights in the r The Chairperson of the National Commission for
country. Scheduled Tribe.
r For 27 years it has served the needs of the people Appointment of the Members
of India, to protect the ‘rights relating to life, liberty, On the recommendation of a committee, the President
equality and dignity of the individual guaranteed by of India appoints the Chairperson and the members of
the Constitution or embodied in the International the National Human Rights Commission. The committee
Covenants. consists of the following members:
r They are guaranteed by the Constitution of India,
• Prime Minister of India [Chairperson]
embodied in the international covenants and are
enforceable by the courts of India as well. • Home Minister of India
NHRC History • Speaker of Lok Sabha
r In 1948, the UN adopted the UDHR (Universal • Leader of Opposition [Lok Sabha]
Declaration of Human Rights). • Leader of Opposition [Rajya Sabha]
r In 1991, the Paris Principles were established by • Deputy Chairperson of Rajya Sabha
the National Human Rights Institutions (NHRIs).
Resignation
r In 1993, the UN adopted these Paris Principles at its
General Assembly. The Chairperson or other members may in writing
r In 1993, India enacted the Protection of Human submit his/her resignation to the President of India.
Rights Act. Removal
r The Commission was established on 12th October The Chairperson or other members can be removed
1993 and sits at its headquarters, in New Delhi. from the office on the ground of proved misbehaviour
r The Protection of Human Rights Act also allowed or incapacity by the President of India but before doing
state governments to establish the State Human so, the President is required to refer the matter to the
Rights Commission. Supreme Court, which will hold an enquiry into the
matter. On the basis of the reply of the Supreme Court,
Composition of the National Human Rights
Commission the President is required to take the decision.
The National Human Rights Commission (NHRC) is There are five grounds provided on which President
composed of a Chair-person and eight other members. may remove the Chairperson or any other member from
The Chairperson should be a retired Chief Justice of his office. These are-
India. r If that person has been declared as insolvent,
Apart from above mentioned members, there are
r If that person engages during his term of office in any
four other members. These are:
other paid employment outside the duties of his office,

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 r If that person is unfit to continue because of the unemployment in India, and measures to reduce
infirmity of the mind or body, the same.
r If that person is of unsound mind as declared by a r Ensure precise implementation of international
competent Court, human rights standards in accordance with
r If that person has been declared as guilty of criminal international treaties
offence and is sentenced to the imprisonment and r Undertake and promote research, and spread
if in the opinion of the President it involves moral awareness through myriad sources of multimedia,
turpitude. to ensure maximum knowledge of the field in
Term of Office of Chairperson and Members maximum people in the country
r Term of the office of Chairperson and members r The members of the NHRC have the power to take
of the National Human Rights Commission is for up the office or duties of the Chairperson, in an
a period of three years or until the Chairperson event such Chairperson is incapacitated, or the
reaches 70 years of age, whichever is earlier the members are directed to do so by the President of
Chairperson can hold the office. India.
r For a period of three years, the members that are r The NHRC can send recommendations to the
appointed can hold the office. These members are concerned Government authority for the payments
also eligible for re-appointment for another term related to compensation of damages to victims in
provided, that member should cease to hold the cases
office after attainment of 70 years of age. r It can recommend the initiation of action against a
r Under the Government of India or the State guilty public servant, to the respected authorities
Government, the person who holds the office of the r It can recommend the grant of interim relief to a
Chairperson or a member will be eligible for further victim, to the concerned government authority
employment as per recent amendment of 2019. Powers related to Inquiries:
Functions of the NHRC r In inquiring into complaints filed under the Act, the
The NHRC, along with its basic motive of safeguarding the Commission is granted powers of a Civil Court in
wellbeing and rights of every individual in the country, trying a suit as per the directions of the Code of Civil
has certain niche functions, which are enumerated Procedure, 1908, in specific matters as prescribed
under Chapter III of the Act. to them, including but not limited to:
General Functions: ƒ Summoning and examining witness under oath
The NHRC amongst other facets of its existence, has the ƒ Production of documents
authority to undertake the following: ƒ Receiving affidavits as proofs
r Take suo motu cognizance, or intervene, in any ƒ Issuing orders for examining witnesses and
matter presented before it, or in any other court documents
after due permission of such court, involving r In addition to these powers, the NHRC has the power
the gross violation of human rights and/or the to legally bind an individual to furnish information
negligence in the prevention of such violation of that the Commission deems expedient in a case, and
rights. to enter into any premise where they have reason
r Visit any jails or other institutions to keep a to believe certain documents may be found, which
check on the treatment of detainees, and make according to them is expedient to a case, and to
recommendations to the respective Government for seize and make copies thereof.
the same. r Powers related to Investigation: The NHRC has
r Review the Constitution of India and all other laws the power to utilize agencies in undertaking
prevailing at the present time, and suggest methods investigations in relation to any inquiry filed with
of making the same at par with current human right them, after due permission from the Central or
standards State Government.
r Keep a check on and provide recommendations for

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r To satisfy itself with the quality and authenticity of working of the Armed Forces, this severely limits
data received, the NHRC can also make any inquiry, the scope of ensuring human rights in all sectors, as
and examine any witness as it requires, to fulfil such they have to rely solely on the Human Rights report
a need. Further, if the NHRC considers it necessary submitted by the Centre in this regard.
to examine any individual, and is of the opinion that • Shortcomings in Investigations: The NHRC does
the reputation of such individuals might serve as a not have the means to carry out any investigations
bias either for or against them in a trial, it has the with its own agenda and mode, but has to redirect
authority to give such individuals an opportunity such a request to the Central or State Government so
to defend themselves, and to be heard in the that they can appoint an Officer to undertake such
proceedings. an investigation. Further, the time limit placed on
Limitations of the NHRC the investigation hampers the working of the NHRC,
Although being a governmentally associated principal since they can only investigate a case for one year
advocate for human rights in our country, the NHRC after its admission in the Commission. This affects
does have certain misgivings that limit the authority it the work and quality of investigation undertaken by
seems to have. the NHRC, and a great number of grievances may go
• Insufficient powers for rendering relief: The unaddressed.
recommendations given by the NHRC are not • Ceremonial Figure: The NHRC is considered to be
binding on any authority, be it legislative or a place for judges to go to, once they retire, or feel
executive. The Commission cannot penalize any their tenure as judges ending soon, and is commonly
authority or department for not following its treated as a post-retirement platform for judges,
orders or directions. The NHRC cannot actually give officers and bureaucrats. Further, the inadequacy
pragmatic and complete judgments to aggrieved of funds delegated to its functioning, also severely
parties, like courts, and is thus falling short in giving compromises its activities.
practical relief to the victims. Further, the time limit • Other Limitations: In addition to all the above-
given to each inquiry is 1 [One] year from the date mentioned limitations, the majority of the
of its admission in the Commission. The NHRC can Commission comprises judges of the Supreme
only entertain one case for a maximum period of 1 Court and the High Court, which gives the NHRC a
[One], which could affect the quality of justice. more judicial and legal touch. The lack of human
• Lack of Jurisdiction: As a safeguard for human right experts and civil liberty experts is concerning,
rights throughout India, the NHRC is failing at and can cause problems in judgement of certain
primarily reaching all the parts of the country. inquiries. Further, its functioning is bureaucratic,
The State of Jammu and Kashmir is not within the as most of the members in it are there due to their
jurisdiction of protection and review by the NHRC, political clout.
which invalidates the country-wide scope of the State Human Rights Commission
Commission. Jammu and Kashmir, as evidently The Protection of Human Rights Act of 1993 provides
proved on regular occasions, is the epicentre of gross for the creation of State Human Rights Commission
human rights violations, by government authorities, at the state level. A State Human Rights Commission
armed forces, law enforcement, etc., and the NHRC can inquire into violation of human rights related to
not being given the jurisdiction of this state clearly subjects covered under state list and concurrent list in
shows the back seat that the Commission has in the the seventh schedule of the Indian constitution. In order
practical aspect of things. Further, the NHRC does to exercise the powers or to perform functions that are
not have means to mitigate human right violations assigned to the State Commission, the State Government
between private parties, unless such parties come may constitute a body known as the Human Rights
to the forefront. Commission of that state.
• Armed Forces: The NHRC does not have the
Composition of the State Human Rights Commission
jurisdiction to question and ask information from
State Human Rights Commission consists of three
the National Government, on matters relating to the

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 members including a Chair-person according to the any other paid employment outside the duties of
Human Rights Amendment Act, 2006. Retired Chief his office,
Justice of the High Court can be the Chairperson of the r If that person is unfit to continue because of the
commission. infirmity of the mind or body,
The other members include: r If that person is of unsound mind as declared by a
r A present Judge of the High Court or the District competent Court,
Court can be a member of the commission. The r If that person has been declared as guilty of criminal
person should have a minimum experience of seven
offence and is sentenced to the imprisonment and
years as a District Judge.
if in the opinion of the President it involves moral
r A person who has practical experience as well as
turpitude.
knowledge related to the issues of human rights.
Functions of the Commission:
The Governor on the recommendation of the
According to the protection of Human Rights Act,
committee appoints the Chairperson and other
members. If the state has a Legislative Council, then the 1993; below are the functions of State Human Rights
Chairman and the leader of the opposition of Legislative Commission:
Council will also be the members of the committee. r Inquire suo motu or on a petition presented to it,
The committee consists of: by a victim, or any person on his be into complaint
r Head – Chief Minister. of violation of human rights or negligence in the
r Legislative Assembly speaker. prevention of such violation by a public servant.
r The Home Minister of the State. r Intervene in any proceeding involving any allegation
r Leader of the opposition from the legistative of violation of human rights before a Court with the
assembly. approval of such Court.
The Chairperson and members hold office for a r Visit any jail or any other institution under the
term of three years or until they attain the age of 70 control of the State Government where persons
years, whichever is earlier. They are eligible for re-
are detained to study the living conditions of the
appointment. After their tenure, the Chairperson and
inmates and make recommendations thereon
members are not eligible for further employment under
a state government or the Central government. r Review the safeguards provided by or under the
constitution of any law for the time being in force
Resignation
The Chairperson or other members may in writing for the protection of human rights and recommend
submit his/her resignation to the Governor. measures for their effective implementation.
Removal r Review the factors, including acts of terrorism
The Chairperson or other members can be removed that inhibit the enjoyment of human rights and
from the office on the ground of proved misbehaviour recommend appropriate remedial measures.
or incapacity by the President of India but before doing r Undertake and promote research in the field of
so, the President is required to refer the matter to the human rights.
Supreme Court, which will hold an enquiry into the r Spread human rights literacy among various sections
matter. On the basis of the reply of the Supreme Court, of society and promote awareness of the safeguards
the President is required to take the decision. available for the protection of these rights.
There are five grounds provided on which President r Encourage the efforts of non-Governmental
may remove the Chairperson or any other member from organizations and institutions working in the field
his office. These are: of human rights.
r If that person has been declared as insolvent, r Undertake such other functions as it may consider
r If that person engages during his term of office in necessary for the promotion of human rights.

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Working of the Commission Protection of Protection of
r The commission is vested with the power to Human Rights Human Rights
regulate its own procedure. Act 1993 (Amendment)
Act 2019
r It has all the powers of a civil court and its
Chairperson The commission Chief justice of the
proceedings have a judicial character.
shall consist of a Supreme court or
r It may call for information or report from the state Chairperson of NHRC the Judge of the
government or any other authority subordinate who has been a Supreme Court shall
Chief Justice of the
thereto. be the Chairperson of
Supreme Court.
It has the power to require any person subject to NHRC.
Under the Act, the
The Bill amends this
any privilege which may be claimed under any law for Chairperson of an
to provide that a
SHRC is a person
the time being in force, to furnish information on points person who has been
who has been a Chief
or matters useful for, or relevant to the subject matter of Chief Justice or Judge
Justice of a High
of a High Court will
inquiry. The commission can look into a matter within Court.
be Chairperson of an
one year of its occurrence. SHRC.
The Commission may take any of the following Other Members NHRC must consist The bill amends
steps during or upon the completion of an inquiry: of two members to this to allow three
be appointed from members to be
r It may suggest that the victim's compensation appointed of which
among the persons
or damages be paid by the state government or having knowledge at least one will be a
authority. woman.
of, or practical
r It may suggest to the state government or authority experience in the
that criminal charges or other actions be brought matters relating to
Human Rights.
against the state government.
Ex-Officio The Chairpersons for The Bill provides
r It may suggest to the state government or authority Members National Commission for including the
that the victim be granted prompt interim relief. for Minorities, Chairpersons of the
r It may seek direction, order, or writs from the National Commission National Commission
for Scheduled Castes
Supreme Court or a state high court. and scheduled
for Backward Classes,
National Commission
r The state government receives the Commission's Tribes and National
Commission for for the protection of
annual or special reports. These reports are Child Rights and the
Women shall deem
presented to the state legislature, together with a to be Member of the Chief Commissioners
memorandum of action taken on the Commission's Commission. for Persons with
recommendations and the reasons for rejecting any Disabilities as the
members of NHRC.
of them.
Criticism:
r State Human Rights Commission has limited Term The Act states that The bill reduces the
the Chairperson and term of Office to 3
powers and its functions are just advisory in nature. members of the NHRC years or till the age of
The commission does not have power to punish the and SHRC will hold 70 years whichever
violators of human rights. It cannot even award any office for five years or is earlier.
till the age of seventy
relief including monetary relief to the victim. years, whichever is
r The recommendations of State Human Rights earlier.
Commission are not binding on the State Reappointment The act allows for the The bill removes
Government or authority, but it should be informed reappointment of the the five-year limit of
about the action taken on its recommendation member of NHRC for reappointment
the term of five years
within one month.
National Human Rights Commission (NHRC) – Key
Differences

325
 Powers of The act provides for The Bill amends Composition
Secretary-General a Secretary-General this and allowed the Members in CIC – The CIC is headed by the Chief
who shall be the Chief Secretary-General
Executive Officer of to exercise all the Information Commissioner and not more than ten
the Commission and administrative and Information Commissioners are there for the assistance
shall exercise powers financial powers
as may be delegated (except Judicial of CIC. The Chief Information Commissioner holds office
to them. functions) subject for five years.
to Chairperson’s
control. At present, the Commission has seven Information
Union Territories The Bill provides Commissioners apart from the Chief Information
that the central Commissioner.
government may
Appointment of the commissioner in CIC – The
confer on an SHRC
human rights commissioners are appointed by the President on the
functions being recommendation of a committee consisting of the
discharged by r Prime Minister as Chairperson,
Union Territories.
Functions relating r the Leader of Opposition in the Lok Sabha, and
to human rights in r Union Cabinet Minister nominated by the Prime
the case of Delhi will
be dealt with by the Minister.
NHRC. Tenure
The Protection r The Chief Information Commissioner and an
of Human Rights
(Amendment) Bill, Information Commissioner shall hold office for
2019 has been such term as prescribed by the Central Government
passed in both Lok
Sabha and Rajya or until they attain the age of 65 years, whichever is
Sabha in 2019. earlier (RTI amendment 2019).
r Chief Information Commissioner are not eligible for
Central Information Commission reappointment.
r The Information Commissioner is eligible for
The Chief Information Commission (CIC) is the
appointment as Chief Information Commissioner
authorized body in India to act upon complaints received but cannot hold office for more than a total of
from individuals who have been unable to submit five years including his term as Information
requests of information to a Central or State Public Commissioner.
Information Officer due to either the officer not having r The salary, allowances and other service conditions
been appointed, or the respective officer refused to of the Chief Information Commissioner and
entertain the application under the Right to Information an Information Commissioner shall be such
Act (RTI Act). The Central Information Commission is as prescribed by the Central Government (RTI
not a constitutional body. amendment 2019)
The CIC was constituted with effect from 12th r They cannot be varied to his disadvantage during
October 2005 under the RTI Act 2005. Its jurisdiction service.
extends to all central public authorities. Qualification:
Objectives r Qualification for membership to commission are
r To empower the citizens persons should person of eminence in public
r To promote transparency and accountability life with experience in field of law, science and
r To contain corruption technology, governance, social service, management,
journalism, mass media or administration.
r To enhance people’s participation in democratic
process. r They should not be MP / MLA’s or connected to any

326
 political party, doing some business/ profession or ƒ Requisition public records or copies from any
holding office of profit. office or court
Removal ƒ Issue summons for the examination of
r Removal is done by President on grounds of documents or witnesses
bankruptcy, unsound mind, infirmity of body or ƒ Any other matter that may be prescribed
mind, sentenced to imprisonment for a crime, or r The CIC also submits an annual report to the
engages in paid employment.
Government of India on the implementation of the
r He can also be removed for proved misbehaviour
or incapacity if Supreme Court inquiry finds him provisions of the Act. This report is then placed
guilty. before both the Houses of Parliament.
r They can resign by writing to President. r The Commission has the power to secure compliance
Role of the Central Information Commission of its decisions from the public authority. This
r Order enquiry into any matter on reasonable
includes:
grounds only (suo-moto power).
ƒ providing access to information in a particular
r Secure compliance of its decisions from any public
form;
authority.
ƒ directing the public authority to appoint a
r Receive and inquire into a complaint from any
person: Public Information Officer where none exists;
ƒ Who has not received any response to his ƒ publishing information or categories of
request for information within a specified time? information;
ƒ Who deems the information given to him/her ƒ making necessary changes to the practices
incomplete, false or misleading, and any other relating to management, maintenance and
matter related to securing the information? destruction of records;
ƒ Who has been unable to submit a request for ƒ enhancing training provision for officials on the
information due to the non-appointment of an right to information;
officer? ƒ seeking an annual report from the public
ƒ Who considers the fees so charged unreasonable authority on compliance with this Act;
ƒ Who was refused the information requested? ƒ requiring the public authority to compensate
r The commission has the power to examine any for any loss or other detriment suffered by the
record under the control of the public authority. All applicant;
such records have to be given to the Commission ƒ imposing penalties under this Act; and
during the examination and nothing shall be
ƒ rejecting the application.
withheld.
Benefits
r During inquiries, the CIC has the powers of a civil
r Citizen empowerment as their participation will
court, such as the powers to:
increase in knowing about working.
ƒ Summon and enforce the attendance of persons,
r Better functioning of the Government.
and compel them to give oral or written evidence
r More accessibility to getting information with ease.
on oath and produce documents or things r Public records will be maintained efficiently.
ƒ Require the discovery and inspection of r Efficiency of the Government’s functioning will be
documents known.
ƒ Receive evidence on affidavit
r Best example of Rights Approach.

327
 Issues with CIC: ƒ However, it was highlighted in the information
r No adequate authority: provider survey that Nodal Departments have
ƒ The Act did not give adequate authority to the not published these guides.
ICs to enforce their decisions. r Low awareness levels:
r Inadequate Trained PIOs and First Appellate ƒ People are not much aware about RTI, especially
authority: the lower strata of society. They are not able to
ƒ results in breaking the 30-day timeline for enjoy their right of asking for information for
providing information as due to lack of proper their own betterment.
training PIOs are not able to provide the ƒ An awareness survey was held and as per the
information in time bound manner survey it was revealed that only 15 per cent of
r Impact of Covid-19: the respondents were aware of the RTI Act.
ƒ During the pandemic, most of the CICs offices ƒ It was further observed that awareness level
were not working. Most even do not have their is low among the disadvantaged communities
websites working. such as women, rural population, OBC/SC/ST
categories, etc.
r Delays and Backlogs:
ƒ On average, the CIC takes 388 days (more than r Government’s Plan:
one year) to dispose of an appeal/complaint ƒ The Government is planning to do away with
from the date it was filed before the commission. the equal footing of CIC and CEC, which only
ƒ A report released last year has pointed out that
suggests that fair elections are more important
more than 2.2 lakh Right to information cases
than transparency of working.
are pending at the Central and State Information
Commissions (ICs). ƒ The Government is also planning to reduce
r No Penalties: the 5-year tenure period to one which will
ƒ The report found that the Government officials majorly impact the independent nature of the
hardly face any punishment for violating the law. institution.
ƒ Penalties were imposed in only 2.2% of cases Key Changes of Right to Information (Amendment)
that were disposed of, despite previous analysis Bill, 2019
showing a rate of about 59% violations which Provision RTI Act 2005 RTI
should have triggered the process of penalty (Amendment)
imposition Bill 2019
r Vacancy: Term (Section 5 years or the age of 65 Now Centre Govt.
13) whichever is earlier will notify tenure.
ƒ Despite repeated directions from the court, (Now 3 years as
there are still three vacancies in the CIC. notified by Centre)

r Lack of Transparency: Salary Following Equivalents in Now, the salaries,

Salaries were to be paid: allowances, and
ƒ The criteria of selection, etc, nothing has been
Under Section 13 other terms and
placed on record. of RTI Act 2005: conditions of
CIC = Chief Election service of the
r Non-availability of User Guides for RTI Commissioner (CEC) central and state
ICs = Election CIC and ICs will
implementation for information seekers: Commissioners (ECs) be determined
ƒ Under Section 26 of the RTI Act, the appropriate Under Section 16 by the central
of RTI Act 2005: government. (No
Government is expected to publish and State level CIC = ECs power to State
distribute user guides (within eighteen months State Level ICs = Chief Governments)
Secretary of State govt.
of enactment of the Act) for information seekers.

328
Deduction Salaries of CIC and ICs will Bill has removed
r the Leader of the Opposition in the Legislative
in Salary be deducted by an amount these provisions. Assembly and
(Section 27) equal to the pension or r a State Cabinet Minister nominated by the Chief
retirement benefits being Minister
received by them if any.
Tenure
Appointment Earlier by 3-member Now, these r The State Chief Information Commissioner and a
committee comprising PM, powers have
Leader of Opposition and been delegated
State Information Commissioner shall hold office for
One Minister nominated by to the Central such term as prescribed by the Central Government
PM. Government.
Similarly at State Level, 3
or until they attain the age of 65 years, whichever is
membered committee will earlier (RTI amendment 2019).
comprise of CM, Leader of
Opposition in State and any r State Chief Information Commissioner are not
Minister in State. eligible for reappointment.
r The State Information Commissioner is eligible
for appointment as State Chief Information
STATE INFORMATION COMMISSION
Commissioner but cannot hold office for more
The Right to Information Act of 2005 provides for the than a total of five years including his term as State
creation of not only the Central Information Commission Information Commissioner.
but also a State Information Commission at the state
r The salary, allowances and other service conditions
level. Accordingly, all the states have constituted the
State Information Commissions through Official Gazette of the State Chief Information Commissioner and
Notifications. a State Information Commissioner shall be such
The State Information Commission is a high- as prescribed by the Central Government (RTI
powered independent body which inter-alia looks into amendment 2019)
the complaints made to it and decide the appeals. It r They cannot be varied to his disadvantage during
entertains complaints and appeals pertaining to offices, service.
financial institutions, public sector undertakings, etc., Qualification:
under the concerned state government. r Qualification for membership to commission are
Objectives persons should person of eminence in public
r To empower the citizens life with experience in field of law, science and
r To promote transparency and accountability technology, governance, social service, management,
r To contain corruption journalism, mass media or administration.
r To enhance people’s participation in democratic r They should not be MP / MLA’s or connected to any
process. political party, doing some business/ profession or
Composition holding office of profit.
The SIC is headed by the state Information Commissioner Removal:
and not more than ten Information Commissioners are r Removal is done by Governor on grounds of
there for the assistance of SIC. The number of State bankruptcy, unsound mind, infirmity of body or
Information Commissioners varies from one state to mind, sentenced to imprisonment for a crime, or
another state. engages in paid employment.
The Governor appoints the commissioners on the r He can also be removed for proved misbehaviour
advice of a committee that includes or incapacity if Supreme Court inquiry finds him
r Chief Minister as Chairperson, guilty. They can resign by writing to Governor.

329
 Powers and Function destruction of records;
r It is the duty of the Commission to receive and ƒ enhancing training provision for officials on the
inquire into a complaint from any person: right to information;
r who has not been able to submit an information ƒ seeking an annual report from the public
request because of non-appointment of a Public authority on compliance with this Act;
Information Officer (PIO) ƒ requiring the public authority to compensate
ƒ who has been refused information that was for any loss or other detriment suffered by the
requested; applicant;
ƒ who has not received response to his ƒ imposing penalties under this Act; and
information request within the specified time ƒ rejecting the application.
limits;
r The State Information Commission submits an
ƒ who thinks the fees charged are unreasonable;
annual report to the State Government on the
ƒ who thinks information given is incomplete,
implementation of the provisions of this Act. The
misleading or false;
State Government places this report before the
ƒ any other matter relating to obtaining State
information.
r When a public authority does not conform to
r The Commission can order inquiry into any matter the provisions of this Act, the Commission may
if there are reasonable grounds (suo-moto power). recommend (to the authority) steps which ought to
r While inquiring, the Commission has the powers of be taken for promoting such conformity.
a civil court in respect of the following matters:
ƒ summoning and enforcing attendance of CENTRAL VIGILANCE COMMISSION
persons and compelling them to give oral
or written evidence on oath and to produce The need to set up CVC
documents or things; The Central Vigilance Commission was set up by the
ƒ requiring the discovery and inspection of Government in February, 1964 on the recommendations
documents; of the Committee on Prevention of Corruption, headed
by Shri K. Santhanam, to advise and guide Central
ƒ receiving evidence on affidavit;
Government agencies in the field of vigilance.
ƒ any public record from any court or office;
CVC is an apex Indian governmental body. It
issuing summons for examination of witnesses
addresses governmental corruption. In 2003, the
or documents; and
Parliament enacted a law conferring statutory status on
ƒ any other matter which may be prescribed. the CVC. It
r All public records must be given to the Commission r has the status of an autonomous body
during inquiry for examination. r is free of control from any executive authority
r The Commission has the power to secure compliance r charged with monitoring all vigilance activity under
of its decisions from the public authority. This the Central Government of India
includes: r advises various authorities in central Government
ƒ access to information in a particular form; organizations in planning, executing, reviewing and
ƒ directing the public authority to appoint a reforming their vigilance work.
Public Information Officer where none exists; The main purpose for which this important body had
ƒ publishing information or categories of been established was to ensure all sorts of corruptions
information; in government sector could be well prevented and
addressed minutely.
ƒ making necessary changes to the practices
relating to management, maintenance and Central Government of India formed CVC in the year

330
1964 as an important body that could take into account administration including police administration and
the measures and steps to prevent all the corruptions have been or are in-
especially the governmental ones for a better system ƒ an All-India Service;
and governance. ƒ any civil service of the Union;
The Government of India has authorized the ƒ a civil post under the Union;
Central Vigilance Commission as the "Designated
r Who have held office or are holding office in a
Agency" to receive written complaints for disclosure
corporation established by or under any Central
on any allegation of corruption or misuse of office and
Act or a Government company owned or controlled
recommend appropriate action.
by the Central Government and persons who have
Present status of the CVC expertise and experience in finance including
The CVC Bill was passed by both the houses of Parliament insurance and banking, law, vigilance and
in 2003 and the President gave its assent on September investigations.
11, 2003. Thus, the Central Vigilance Commission Act
A Secretary shall be appointed to the Commission
2003 came into effect from that date.
on terms and conditions to exercise such powers
Before Central Vigilance Commission can take up and discharge such duties as the Commission may by
investigations into corruption cases against government regulations specify in this behalf.
officials, it has to be approved by the government.
Removal of Central Vigilance Commissioner and
The Central Vigilance Commission also publishes list
Vigilance Commissioner
of corrupt officials and recommends punitive action
against them. Any Vigilance Commissioner can be removed from his
office only by order of the President on the ground of
Composition of CVC
The Commission shall consist of: proved misbehaviour or incapacity after the Supreme
r A Central Vigilance Commissioner - Chairperson; Court has been referred the matter and an inquiry
is conducted. The result of the inquiry is such that
r Not more than two Vigilance Commissioners -
the Central Vigilance Commissioner or any Vigilance
Members;
Commissioner needs to be removed.
CVC is headed by a Central Vigilance Commissioner
The President may suspend from office, and if
who is assisted by two Vigilance Commissioners.
deem necessary prohibit also from attending the office
The Vigilance Commissioner shall act as Central
Vigilance Commissioner in the following circumstances: during inquiry, the Central Vigilance Commissioner
r If the office of Central Vigilance Commissioner is or any Vigilance Commissioner in respect of whom a
vacant due to his death, resignation or otherwise reference has been made to the Supreme Court until the
r The Central Vigilance Commissioner is unable to President has passed orders on receipt of the report of
discharge his functions due to him being absent on the Supreme Court on such reference.
leave. The President may, by order, remove Central
Appointment of Central Vigilance Commissioner and Vigilance Commissioner or any Vigilance Commissioner
Vigilance Commissioner from office if such person
The President of India appoints the Central Vigilance r is adjudged an insolvent;
Commissioner and the Vigilance Commissioners on the r has been convicted of an offence which, in the
recommendation of the Prime Minister, Home Minister opinion of the Central Government, involves moral
and the leader of the opposition in the Lok Sabha. turpitude;
The Central Vigilance Commissioner and the r during his term of office engages in any paid
Vigilance Commissioners shall be appointed from employment outside the duties of his office;
amongst persons— r is, in the opinion of the President, unfit to continue
r Who have knowledge and experience in the in office by reason of infirmity of mind or body;
matters relating to vigilance, policy making and r has acquired financial or other interest as is likely

331
 to affect prejudicially his functions. appointed to the public services and posts in
Functions and Powers connection with the affairs of the Union or to
Functions and Powers mentioned under 2003 Act are as members of the All-India Services.
follows: r The Central Vigilance Commissioner (CVC) is the
r Exercise superintendence over the functioning Chairperson and the Vigilance Commissioners
of the Delhi Special Police Establishment (CBI) (Members) of the Committee, on whose
insofar as it relates to the investigation of offences recommendations, the Central Government
under the Prevention of Corruption Act, 1988; or appoints the Director of Enforcement.
an offence under the Criminal Procedure Code for r The Committee concerned with the appointment of
certain categories of public servants. the Director of Enforcement is also empowered to
r Give directions to the Delhi Special Police recommend, after consultation with the Director of
Establishment (CBI) for superintendence insofar as Enforcement appointment of officers to the posts
it relates to the investigation of offences under the of the level of Deputy Director and above in the
Prevention of Corruption Act, 1988. Directorate of Enforcement.
r The Central Vigilance Commissioner (CVC) is also
r To inquire or cause an inquiry or investigation to be
the Chairperson and the Vigilance Commissioners
made on a reference by the Central Government
(Members) of the Committee empowered to
r To inquire or cause an inquiry or investigation recommend after consultation with Director (CBI),
to be made into any complaint received against appointment of officers to the post of the level of SP
any official belonging to such category of officials and above except Director and also recommend the
specified in sub-section 2 of Section 8 of the CVC extension or curtailment of tenure of such officers
Act, 2003. in the DSPE (CBI).
r Review the progress of investigations conducted Proceedings of CVC
by the DSPE into offences alleged to have been r The Commission shall be deemed to be a civil court.
Every proceeding before the Commission shall
committed under the Prevention of Corruption Act,
be deemed to be a judicial proceeding. Hence the
1988 or an offence under the Criminal Procedure
Commission has the power to
Code.
ƒ summon and enforce the attendance of any
r Review the progress of the applications pending person;
with the competent authorities for sanction of ƒ require discovery and production of any
prosecution under the Prevention of Corruption document;
Act, 1988. ƒ receive evidence on affidavits;
r Tender advice to the Central Government and its ƒ requisition any public record or a copy from
organizations on such matters as may be referred court;
to it by them. ƒ issue commissions for examination of witnesses
r Exercise superintendence over the vigilance etc.
administrations of the various Central Government r The proceedings of the Commission shall be
Ministries, Departments and Organizations of the conducted at its headquarters.
Central Government. r The Commission shall abide by the rules of
r Shall have all the powers of a Civil Court while procedure in regard to the transaction of the
conducting any inquiry. business as provided by regulations.
r Respond to Central Government on mandatory r If the Central Vigilance Commissioner is for
consultation with the Commission before making any reason unable to attend any meeting of
any rules or regulations governing the vigilance the Commission, the senior most Vigilance
or disciplinary matters relating to the persons Commissioner present at the meeting, shall preside
at the meeting.

332
r No act or proceeding of the Commission shall be very small set up with sanctioned staff strength of
invalid merely by reason of- 299. Whereas, it is supposed to check corruption in
ƒ any vacancy in, or any defect in the constitution more than 1500 central government departments
of, the Commission; or and ministries.
ƒ defect in the appointment of a person acting r CVC cannot direct CBI to initiate inquiries against
as the Central Vigilance Commissioner or as a any officer of the level of Joint Secretary and above
Vigilance Commissioner; or on its own. Such permission has to be obtained from
ƒ any irregularity in the procedure of the the concerned department.
Commission not affecting the merits of the case. r CVC does not have powers to register criminal case.
Jurisdiction It deals only with vigilance or disciplinary cases.
The jurisdiction of the CVC extends to the following: r CVC has supervisory powers over CBI. However,
r Members of All India Services serving in connection CVC does not have the power to call for any file
with the affairs of the Union and Group A officers of from CBI or to direct CBI to investigate any case in a
the Central Government. particular manner.
r Officers of the rank of Scale V and above in the r CVC cannot make direct appointments as it is
Public Sector Banks. indirectly under the control of Govt. of India.
Though the leader of the Opposition (in Lok Sabha)
r Officers in Grade D and above in Reserve Bank of
is a member of the Committee to select CVC and
India, NABARD and SIDBI.
VCs. But the Committee considers candidates put
r Chief Executives and Executives on the Board and up before it.
other officers of E-8 and above in Schedule ‘A’ and
r Corruption investigations against government
‘B’ Public Sector Undertakings.
officials can proceed only after the government
r Chief Executives and Executives on the Board and permits them.
other officers of E-7 and above in Schedule ‘C’ and
As a result, although CVC is relatively independent
‘D’ Public Sector Undertakings.
in its functioning, it has neither resources nor powers to
r Managers and above in General Insurance inquire and take action on complaints of corruption that
Companies. may act as an effective deterrence against corruption.
r Senior Divisional Managers and above in Life Hence, CVC is often considered a powerless agency
Insurance Corporation. as it is treated as an advisory body only with no power
r Officers drawing salary of ₹8700/- per month (pre- to register criminal case against government officials or
revised) and above on Central Government D.A. direct CBI to initiate inquiries against any officer of the
pattern, as may be revised from time to time, in level of Joint Secretary and above.
societies and local authorities owned or controlled Whistle Blowers Protection Act (2014)
by the Central Government The salient features of the Whistle Blowers Protection
Limitations of CVC Act (2014) are as follows:
The CVC is not an investigating agency. The only r The Act provides a mechanism for protecting the
investigation carried out by the CVC is that of examining identity of whistle blowers (a term given to people
who expose corruption). People who expose
Civil Works of the Government which is done. There are
corruption in Government or irregularities by
certain limitations to CVC. These are
public functionaries can now be free of any fear of
r CVC is only an advisory body. Central Government victimization.
Departments are free to either accept or reject
r The Act also provides for a system to encourage
CVC's advice in corruption cases.
people to disclose information about corruption
r CVC does not have adequate resources compared or the wilful misuse of power by public servants,
with number of complaints that it receives. It is a including ministers.

333
 r As per the Act, a person can make a public interest The Santhanam Committee on Corruption Prevention
disclosure on corruption before a competent recommended the formation of the CBI. The CBI was
authority - which is at present the Central Vigilance then established by a Home Affairs Ministry resolution.
Commission (CVC). The government, by notification, CBI now works under the Ministry of Personnel,
can appoint any other body also for receiving such Pension & Public Grievances, Government of India, and
complaints about corruption. coordinates the investigation on behalf of the Interpol
r The Act, however, lays down punishment of up to Member countries. For investigation of offences
two years in prison and a fine of up to ₹30,000 for under the Prevention of Corruption Act, CBI vests
false or frivolous complaints.
superintendence to the Central Vigilance Commission.
r The Act says that every disclosure shall be made in
What is CBI?
good faith and the person making the disclosure
CBI is the premier investigating police agency in India. It
shall provide a personal declaration stating that he
reasonably believes that the information disclosed is an elite force playing a major role in the preservation
by him and the allegation contained therein is of values in public life and in ensuring the health of the
substantially true. national economy. The conversion rate of CBI is 65 to
r Disclosures can be made in writing or by email 70%, and that’s why it can be tagged as one of the best
message in accordance with the procedure as may investigation agencies in the world. It is not a statutory
be prescribed and contain full particulars and be body.
accompanied by supporting documents, or other
material. The CBI derives power to investigate from the Delhi
Special Police Establishment (DSPE) Act, 1946 and is
r However, no action shall be taken on a disclosure if it
does not indicate the identity of the complainant or headquartered in New Delhi, India. The CBI is involved
public servant or if “the identity of the complainant in major criminal probes and is the Interpol agency in
or public servant is found to be incorrect.” India.
r The Act is not applicable to the Special Protection Central Bureau of Investigation has emerged as
Group. a premier investigating agency of the country which
enjoys the trust of the people, Parliament, Judiciary and
CENTRAL BUREAU OF INVESTIGATION the Government. In the last 75 years, the organisation
CBI stands for Central Bureau of Investigation. It is the has evolved from an anti-corruption agency to a
premier investigating police agency in India, which multi-faceted, multi-disciplinary central police law
works under the Ministry of Personnel, Pension & Public enforcement agency with the capability, credibility and
Grievances, Government of India. The Ministry comes legal mandate to investigate and prosecute offences
under the direct purview of the Prime Minister’s Office. anywhere in India.
History of the Central Bureau of Investigation (CBI) Motto and Vision of CBI
During World War II, a Special Police Establishment The Motto of CBI is - Industry, Impartiality, Integrity.
(SPE) was formed in the Department of War of British Vision of CBI
India, in 1941. The SPE was to enquire into allegations of r CBI aims to develop transparency, professionalism,
bribery and corruption in the war-related procurements. and adaptability to change and the use of technology
Later, the SPE was formalized as an agency of and science in its work.
the Government of India to investigate allegations of r It curbs corruption in public life, violent crimes, and
corruption in various wings of the Government of India economic and violent crimes through investigation
by enacting the Delhi Special Police Establishment and prosecution.
(DSPE) Act, 1946. r Help fight cyber and high technology crime.
In 1963, the SPE was renamed by the Government of r Evolve effective systems and procedures for
India to CBI with a view to investigating serious crimes. successful investigation and prosecution of cases.

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r Play a lead role in the war against national and r Economic Offences Division
transnational organized crime, and uphold Human r Special Crimes Division
Rights, protect the environment, arts, antiques and r Directorate of Prosecution
heritage of our civilization. r Administration Division
r Strive for excellence and professionalism in all r Policy & Coordination Division
spheres of functioning so that the organization r Central Forensic Science Laboratory
rises to high levels of endeavour and achievement.
The Investigation & Anti-Corruption Division
Organization Structure of CBI (Delhi Special Police Establishment) was entrusted
r The CBI is headed by a director, an IPS officer with a with the following mandate in the resolution although
rank of Director General of Police or Commissioner it continued to derive its jurisdiction and powers from
of Police (State). The director is selected based on DSPE Act, 1946.
the CVC Act 2003, and has a two-year term. The CBI Cases Handled by CBI
is subject to five ministries of the Government of The cases that can be handled by the CBI are mentioned
India: below.
ƒ Ministry of Home Affairs: For Cadre clearance r Cases in which public servants under the control
ƒ Department of Personnel and Training of the Central Government are involved either
(DoPT): For Administration, budget, and by themselves or along with State Government
induction of non-IPS officers servants and/or other persons.
ƒ Union Public Service Commission: For the r Cases in which the interests of the Central
selection of Officers above the rank of Deputy Government, or of any public sector project or
Superintendent of Police undertaking, or any statutory corporation or body
ƒ Law and Justice Ministry: For Public set up and financed by the Government of India are
prosecutors involved.

ƒ Central Vigilance Commission: For Anti- r Cases relating to breaches of Central Laws with the
corruption cases enforcement of which the Government of India is
particularly concerned, e.g.
r In 2014, the Lokpal Act provided a committee for
ƒ Breaches of Import and Export Control Orders
appointment of CBI Director:
ƒ Serious breaches of Foreign Exchange
ƒ Headed by Prime Minister Regulation Act,
ƒ Other members - Leader of Opposition/Leader ƒ Passport frauds
of the single largest opposition party, ƒ Cases under the Official Secrets Act pertaining
ƒ Chief Justice of India/ a Supreme Court Judge. to the affairs of the Central Government.
r Home Ministry sends a list of eligible candidates ƒ Cases of certain specified categories under the
to DoPT. Then, the DoPT prepares the final list on Defence of India Act or Rules with which the
basis of seniority, integrity, and experience in the Central Government is particularly concerned
investigation of anti-corruption cases, and sends it r Serious cases of cheating or fraud relating to the
to the committee. Railways, or Posts & Telegraphs Department,
r Director of CBI has been provided security of two- particularly those involving professional criminals
year tenure, by the CVC Act, 2003. operating in several States.
Divisions under CBI ƒ Crime on the High Seas
The Central Bureau of Investigation has the following
ƒ Crime on the Airlines
divisions:
r Important and serious cases in Union Territories
r Anti-Corruption Division (Delhi Special Police
particularly those by professional criminals.
Establishment)
r Serious cases of fraud, cheating and embezzlement

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 relating to Public Joint Stock Companies. jurisdiction of the CBI for investigation, subject to the
r Other cases of a serious nature, when committed by consent of the government of the concerned state. The
organised gangs or professional criminals, or cases CBI can investigate only with notification by the central
having ramifications in several States including government.
Union Territories, serious cases of spurious drugs, The High Courts and the Supreme Court have the
important cases of kidnapping of children by jurisdiction to order a CBI investigation into an offense
professional Inter-State gangs, etc. These cases alleged to have been committed in a state without the
will be taken up only at the request of or with the state’s consent.
concurrence of the State Governments/Union Sources of Powers of CBI
Territories Administrations concerned. r The CBI is the Government of India's primary
r Collection of intelligence about corruption in the investigative agency. It is not a statutory body; its
public services and the projects and undertakings powers are granted by the Delhi Special Police
in the public sector. Establishment Act of 1946.
r Prosecution of cases investigated by this Division. r Its critical role is to prevent corruption and maintain
administrative integrity.
r Presentation of cases before Enquiry Offices in
which departmental proceedings are instituted on r In matters pertaining to the Prevention of Corruption
the recommendation of this Division. Act, 1988, it works under the supervision of the CVC
(Central Vigilance Commission).
Functions of CBI
The CBI serves as India's point of contact with r However, the Central Government can extend its
INTERPOL. CBI investigates cases involving violations of jurisdiction to other areas, including railway areas
economic and fiscal laws, such as customs and central and states, if the State Government consents.
excise, export and import control, income tax, foreign r Because many of its investigators come from the
exchange regulations, and so on. However, cases of this Indian Police Service, the agency relies on the Home
nature are investigated by the CBI either at the request Ministry for staffing.
of the department concerned or in consultation with the r The CBI also relies on the Ministry of Law for
department concerned. Other function include: lawyers and lacks some functional autonomy.
r Coordination of the activities of various state police What is General Consent in an investigation by the
forces and anti-corruption organisations. CBI?
r The CBI which is under the Delhi Special Police
r Investigate any case of public importance at the
Establishment (DSPE) Act, 1946, will now have to
request of a state government.
approach the State government for permission for
r Investigate serious crimes with national and
investigation on a case-by-case basis.
international ramifications that are committed by
r It is not the first time. Over the years, several states
professional criminals or organized gangs.
had also withdrawn consent for some time. The CBI
r Keeping crime statistics and spreading criminal
would still have the power to investigate old cases
information.
registered when general consent existed.
r CBI will no longer require government’s prior
r Withdrawal of consent will only bar the CBI from
sanction to launch investigations against officers of
registering a case within the jurisdiction of that
joint secretary rank and above in corruption cases.
state.
Powers of CBI
r Moreover, cases registered anywhere else in the
The legal powers of investigation of the CBI are derived
country, but involving people stationed in Andhra
from the DSPE Act 1946, which confers powers,
Pradesh and West Bengal would allow CBI’s
duties, privileges and liabilities on the Delhi Special
jurisdiction to extend to these states.
Police Establishment (CBI) and officers of the Union
Territories. The central government may extend to r If the Supreme Court or a High Court directs that a
particular investigation be handed over to the CBI,
any area (except Union Territories) the powers and
there is no need for any consent under the DSPE Act.

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r Given that the CBI has jurisdiction only over Central also vulnerable to the government's ability to
govt departments and employees, it can investigate manipulate senior officers because they rely on the
a case involving state government employees or a Central government for future postings.
violent crime in a given state only after that state • Consent of State: The CBI needs the permission
government gives its consent. Thus, it gets a general of the State administration in issue before it can
consent instead of a case-specific consent to avoid make its presence in that State. As a result, certain
taking permission each time. situations may go un-investigated, resulting in a
r The general consent is normally given for periods quiet standoff.
ranging from six months to a year. • CBI and RTI: CBI is listed under the Right to
r CBI has claimed that this has tied its hands. Information Act's Second Schedule, it specifies that
r In November 2021, the Supreme Court expressed the statute "does not apply to certain organizations."
concern over CBI’s submission that 78% of its However, the CBI made the point that they are
150 requests for sanction to investigate cases investigating all types of cases, including ones of
were pending with State Governments that had strategic importance to India, and that if they were
withdrawn consent to the CBI. submitted to RTI, much of that material would be
Jurisdiction of CBI v/s State Police released into the public realm.
Law and Order is a state subject and the basic jurisdiction • Corruption and politically biased: The
to investigate crime lies with State Police. Besides, politicization of the Central Bureau of Investigation
due to limited resources, the CBI would not be able to (CBI) has been ongoing for several years. This was
investigate crimes of all kinds. CBI may investigate: emphasized in Supreme Court criticism for being a
r Cases which are essentially against the Central caged parrot speaking in the voice of its master.
Government. employees or concerning affairs of the • CBI Autonomy: The Supreme Court questioned the
Central Government. issue of the bureau's independence in the infamous
r Cases in which the financial interests of the Central Coalgate corruption case, saying that "the CBI has
Government are involved. become the state's parrot." Only screams, echoing
r Cases relating to the breaches of Central Laws with the master's voice" The Supreme Court then
the enforcement of which the Government of India directed the Centre to make the CBI impartial and
is mainly concerned. to guarantee that it operates free of any extraneous
r Big cases of fraud, cheating, embezzlement and the pressures.
like relating to companies in which large funds are CBI Academy
involved and similar other cases when committed The CBI Academy is located at Ghaziabad, Uttar Pradesh
by organised gangs or professional criminals having and started functioning in 1996. Earlier, training
ramifications in several States.
programmes were being conducted at the CBI Training
r Cases having interstate and international
Centre, New Delhi.
ramifications and involving several official agencies
where, from all angles, it is considered necessary Vision – “Excellence in Training in the Fields of Crime
that a single investigating agency should be in Investigation, Prosecution and Vigilance Functioning”
charge of the investigation. Beside the CBI Academy at Ghaziabad, there are
Challenges associated with CBI three regional training centres imparting training at
Here are some concerns associated with CBI: regional levels at –
• Police Agency: Since the police is a State subject r Kolkata
under the Constitution, and the CBI follows the r Mumbai
procedures outlined in the Code of Criminal r Chennai
Procedure (CrPC), it is classified as a police agency. Two types of training courses –
• Manipulation by Government: The CBI is r Short Term In-service Courses: For officers of the

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 CBI, state police, central para-military forces and alleged that CBI is working on the behest of central
central government undertakings government to derail government in West Bengal.
r Long Term Basic Courses: For directly recruited CBI must seem to work more transparently and
deputy superintendents of police, sub-inspectors independently.
and constables of CBI • Conduct of West Bengal Government: The CBI
Supreme Court over Autonomy of CBI while filing the contempt plea in Supreme Court
The landmark judgment in Vineet Narain v. Union said that it was stopped from performing its lawful
of India in 1997 laid out several steps to secure the duty by the state police and state administration.
An independent and transparent investigation
autonomy of CBI. The Court directed –
is needed to book the perpetrators and state
r the CBI director shall have a “minimum tenure of two
government should cooperate with the agency
years, regardless of the date of his superannuation”.
instead of blocking it from functioning.
r the Central Vigilance Commission (CVC) “shall be
responsible for the efficient functioning of CBI”.
LOKPAL AND LOKAYUKTAS
r the CVC chief shall be selected by a panel comprising
the prime minister, home minister and the leader An ombudsman means a commissioner or an agent.
of the opposition from a panel of “outstanding civil While the Swedish are typically credited with having
servants”. the first legislative ombudsman, ombudsman-like roles
Most importantly, the Vineet Narain judgement were popular in other nations and traditions. In first
stated that the “transfer of an incumbent Director, CBI in nations communities in North America, for example,
an extraordinary situation, including the need for him to disputes were frequently decided by an elder – someone
take up a more important assignment, should have the who understood the people and could make choices that
approval of the selection committee” were far-reaching on a personal basis.
CBI: A Caged Parrot? The Constitution of India came into force on January
r Politicisation of the Central Bureau of Investigation 26, 1950, which established a Parliamentary democratic
(CBI) has been a work in progress for years. framework. Accordingly, the Indian government has
r Corruption and politically biased: This was implemented measures to combat corruption and the
highlighted in Supreme Court criticism for being a establishment of the institution of an ombudsman
caged parrot speaking in its master’s voice. has become a sine qua non to reduce corruption and
r CBI has been accused of becoming ‘handmaiden’ to maladministration.
the party in power, as a result high profile cases are Origin and Meaning
not treated seriously. The term ‘Ombudsman’ is of Scandinavian origin literal
r Since CBI is run by central police officials on translation of the Swedish word is “representative” or
deputation hence chances of getting influenced by “agent”. Ombudsman is defined as -
government was visible in the hope of better future “A public official appointed by the legislature to
postings. receive and investigate citizen complaints against
Saradha Chit-Fund scam administrative acts of government”; and, furthermore,
r It is a major financial scam caused by collapse of
“a neutral, independent intermediary between
Ponzi scheme, a collective investment scheme, run
the complainant and the agency, who investigates
by Saradha group.
complaints and objectively determines if an agency
r The group collected around Rs. 20,000-30,000 acted in a mistaken, unfair, arbitrary or illegal manner.”
crores from over 17 lakh people in various areas of
The ombudsman was first established in Sweden in
West Bengal. The scheme collapsed in 2013.
1713, when a “chancellor of justice” was appointed by
Issues with the Case King to protect the Kings rights.
• Conduct of CBI: West Bengal Government has
For example, when King Charles XII was at a war the

338
ombudsman would make sure everything was in order amended by Parliament to address minor issues.
while the king was abroad. Lars Augustin Mannerheim, • 2018: Meetings of the Selection Committees as per
the first government ombudsman, was appointed by the section 4(1) of the Lokpal and Lokayukta Act, 2013
Swedish Parliament to protect the people’s rights rather were held in March and April 2018 following the
than preserve the king’s rights. intervention of the Supreme Court.
In 1809 Sweden became the first nation to establish • 2019: On March 19, 2019, Justice (Retd) Pinaki
the institution of the ombudsman, but the ombudsman Chandra Ghose was appointed as the first Lokpal
has appeared in various other countries over the of India, along with eight judicial and non-judicial
century. Since 1920, Finland has had the institution of members, following judicial intervention.
a Parliamentary ombudsman. More than 130 countries • 2020: Rules and format for filing complaints with
now have similar institutions of ombudsmen. Lokpal issued.
Evolution of Lokpal and Lokayukta in India Salient Features of the Lokpal and Lokayukta Act,
Evolution of Lokpal and Lokayukta in India can sum up 2013
as follows: In India the establishment of an Ombudsman institution
• 1963: L.M. Singhvi has coined the word Lokpal has happened through The Lokpal and Lokayukta Act,
• 1963: The concept of an ombudsman first came 2013 which was enacted in the year 2014. The act
up in Parliament during a discussion over the Law provides the following key details:
Ministry’s budget allocation. Structure
r Lokpal is a multi-member body, that consists of
• 1966: The First Administrative Reforms Commission
ƒ one Chairperson and
recommended that two independent authorities be
established- at the Central and State level, to look ƒ maximum of 8 members.
into complaints against public servants, including r Chairperson of the Lokpal should be either the
M.P.s. former Chief Justice of India or the former Judge
of Supreme Court or an eminent person with
• 1968: The Lok Pal Bill was introduced eight times impeccable integrity and outstanding ability,
in Parliament but was never passed. having special knowledge and expertise of
• 1971: The Maharashtra was the first Indian state to minimum 25 years in the matters relating to anti-
establish a corruption watchdog, The Maharashtra corruption policy, public administration, vigilance,
Lokayukta finance including insurance and banking, law and
• 2002: The Commission to Review the Working management.
of the Constitution (headed by Shri M.N. Venkata r Out of the maximum eight members, half will
Chilliah)) advocated the appointment of the Lok Pal be judicial members and minimum 50% of the
and Lokayukta, as well as the exclusion of the Prime Members will be from SC/ ST/ OBC/ Minorities and
Minister from the jurisdiction of authority. women.

• 2005: The second Administrative Reforms r The judicial member of the Lokpal either a former
Commission (headed by Shri Veerappa Moily) Judge of the Supreme Court or a former Chief Justice
advised establishing the Lok Pal office as soon as of a High Court.
possible. r The non-judicial member should be an eminent
• 2011: The popular Anna Movement for Lokpal. person with impeccable integrity and outstanding
ability, having special knowledge and expertise of
• 2013: Both Houses of Parliament passed the Lokpal
minimum 25 years in the matters relating to anti-
and Lokayukta Bill, which was introduced in 2011.
corruption policy, public administration, vigilance,
• 2014: The Lokpal and Lokayukta Act, 2013, came finance including insurance and banking, law and
into force on January 16, 2014. management.
• 2016: The Lokpal and Lokayukta Act, 2013, was r The term of office for Lokpal Chairman and

339
 Members is 5 years or till the age of 70 years. ƒ Any society or body financed or controlled by
r The members and the Chairman of Lokpal are the central government,
appointed by the President on the recommendation ƒ Any person involved in act of abetting, bribe
of a selection committee. The selection committee giving or bribe-taking.
consists of- r The Lokpal does not have jurisdiction over
ƒ The Prime Minister of India (chairperson); Ministers and MPs in the matter of anything said in
ƒ The Speaker of Lok Sabha; Parliament or a vote given there.
ƒ The Leader of Opposition in Lok Sabha; r Its jurisdiction also includes any person who is or
ƒ The Chief Justice of India or any Judge nominated has been in charge (director/ manager/ secretary)
by Chief Justice of India; of anybody/ society set up by central act or any other
body financed/ controlled by central government
ƒ One eminent jurist.
and any other person involved in act of abetting,
r For selecting the Chairperson and the members, the bribe giving or bribe taking.
selection committee constitutes a search panel of at
r It has the powers to superintendence over, and to
least eight persons. give direction to CBI.
Condition of Office Exception for Prime Minister
r The Salary allowances and other conditions of r If a complaint is filed against the Prime Minister,
service of the chairperson and members are the Lokpal shall inquire or cause an inquiry to be
equivalent to that of Chief Justice of India and Judge conducted into the allegation of corruption.
of the Supreme Court respectively.
r However, the Act does not allow a Lokpal inquiry if
r They are not eligible for reappointment, cannot the allegation against the Prime Minister relates to-
hold any constitutional or governmental office.
ƒ International relations
r They cannot contest any elections for a period of 5
ƒ External and internal security
years.
ƒ Public order
Investigative powers
ƒ Atomic energy
The Lokpal on the receipt of a complaint may order a-
ƒ Space
r Preliminary inquiry against any public servant by
its Inquiry Wing or any agency (including the Delhi r Also, complaints against the Prime Minister are not
Special Police Establishment) to ascertain whether to be probed unless the full Lokpal bench considers
there exists a prima facie case for proceeding in the the initiation of an inquiry and at least 2/3rds of the
matter. members approve it.
r Investigation by any agency (including the Delhi r Such an inquiry against the Prime Minister (if
Special Police Establishment) when there exists a conducted) is to be held in camera.
prima facie case jurisdiction r If the Lokpal concludes that the complaint deserves
r A Lokpal may inquire or start an investigation on to be dismissed, the records of the inquiry are not to
the allegation of a complainant against the following be published or made available to anyone.
people: Powers
r It has Superintendence over the Central Bureau of
ƒ Prime Minister, and the other Ministers,
Investigation and can give directions to it. If a case
ƒ Members of Parliament,
is referred to CBI by Lokpal, the investigating officer
ƒ Groups A, B, C and D officers, in such a case cannot be transferred without the
ƒ Officials of Central Government. approval of Lokpal.
ƒ Every person who is or has been in charge r Lokpal will have an Inquiry Wing and Prosecution
(director/ manager/ secretary) of a body or a Wing. The Inquiry Wing has the powers of a Civil
society set up by the act of central government, Court.

340
r It can confiscate assets, proceeds, receipts and from government or receives foreign funding of more
benefits arisen or procured by means of corruption than Rs. 10 lakhs then the assets of the trustees and
in special circumstances. board members were to be disclosed to the Lokpal.
r It can transfer or suspend public servants connected The bill provided an extension to the time limit given to
with allegations of corruption. trustees and board members to declare their assets and
r It has the power to give directions to prevent the those of their spouses.
destruction of records during the preliminary Lokpal (Complaint) Rules, 2020:
inquiry. The notification, under Section 59 of the Lokpal and
Functions Lokayukta Act, lays down the rules called the Lokpal
r A complaint can be made to the Lokpal for an (Complaint) Rules, 2020.
offence under the Prevention of Corruption Act. r According to the complaint forms, published as part
r The Lokpal may order a preliminary inquiry by its of the notification, a complainant has to give a valid
Inquiry Wing or refer it any investigation agency proof of identity, as specified therein.
like CBI. r Foreign nationals can also lodge complaints. Only a
r However, the Lokpal should establish that a prima copy of their passports will be accepted as proof of
facie case exists after seeking an explanation identity.
from the public servant as well as his competent r The complaint can be filed electronically, by
authority. post or in person. In case the complaint is filed
r With respect to Central Government Servants, it may electronically, its hard copy has to be submitted to
the Lokpal within 15 days.
refer cases to the Central Vigilance Commission.
r No complaints can be filed against a public servant
r Preliminary Enquiry report should be done within
under the Army Act, Navy Act, Air Force Act and the
60 days. The preliminary investigation should be
Coast Guard Act.
normally completed within 90 days.
r A complaint may ordinarily be made in English,
r A Lokpal bench of not less than 3 members
provided that the Lokpal may also entertain a
considers it and after giving an opportunity to the
complaint in any of the languages referred to in the
public servant, decides on a further investigation –
Eighth Schedule to the Constitution.
it may dismiss, initiate a full investigation or start
departmental proceedings. r Apart from the details of the accused official(s),
allegation and the evidence relied upon, the
r The trials will be held in special courts, which must
complainant or the authorised signatory will also
complete them within one year.
have to submit an affidavit.
r Extensions can be made but the total period cannot
r Registration/incorporation certificate of the
exceed two years.
organisation, on whose behalf the complaint is
Lokpal and Lokayukta Amendment Act, 2016 made and copy of authorisation certificate in favour
This bill also amended Section 44 of the Lokpal and of the signatory, if the complaint is on behalf of a
Lokayukta Act 2013. Section 44 of the Act dealt with board, body, corporation, company, limited liability
the provisions of furnishing of details of assets and partnership, authority, society, association of
liabilities, within 30 days of joining the government persons or trusts, has to be furnished.
service, of any public servant. r The Lokpal bench will decide the complaint in the
This amendment replaced the time limit of 30 days. first instance at the admission stage. The Lokpal
It stated that the public servants will make a declaration may seek other details or affidavit, if necessary.
of their assets and liabilities in the form and manner as r The identity of the complainant or the accused
official will be protected by the Lokpal till the
prescribed by the Government.
conclusion of inquiry or investigation. However,
In the case where any non-governmental
the protection will not be applicable in cases where
organization receives funds of more than Rs. 1 crore
the complainant herself reveals her identity to

341
 any other office or authority while making the In most of the states, the term of office fixed for Lokayukta
complaint to Lokpal. is of 5 years duration or 65 years of age, whichever
r The complaints, whose contents are illegible, vague comes first. He is not eligible for reappointment.
or ambiguous, which are trivial or frivolous, do Jurisdiction:
There is no uniformity regarding the jurisdiction of
not contain any allegation, are not filed within the
Lokayukta in all the states. The following points can be
limitation period of seven years, or are pending
noted in this regard:
before any other court, tribunal or authority, will
r The Chief Minister is included within the
have to be disposed of within 30 days.
jurisdiction of Lokayukta in the states of Himachal
Lokayukta
Pradesh, Andhra Pradesh, Madhya Pradesh and
Overview about Lokayukta
Gujarat, while he is excluded from the purview
r Even much before the enactment of the Lokpal of Lokayukta in the states of Maharashtra, Uttar
and Lokayukta Act (2013) itself, many states had Pradesh, Rajasthan, Bihar and Orissa.
already set up the institution of Lokayukta.
r Ministers and higher civil servants are included in
r It must be noted that the institution of Lokayukta the purview of Lokayukta in almost all the states.
was first established in Maharashtra in 1971. Maharashtra has also included former ministers
r Although Odisha had passed an Act in this regard in and civil servants.
1970, it came into force only in 1983. r Members of state legislatures are included in
r Till date 20 States and 2 Union Territories (Delhi, the purview of Lokayukta in the States of Andhra
Jammu and Kashmir) have established Lokayukta. Pradesh, Himachal Pradesh, Gujarat, Uttar Pradesh
Salient Features of Lokayukta and Assam.
The following are the features of Lokayukta: r The authorities of the local bodies, corporations,
Structural Variations: companies and societies are included in the
The structure of the Lokayukta is not the same in all jurisdiction of the Lokayukta in most of the states.
states. Some states like Rajasthan, Karnataka, Andhra Investigations:
Pradesh and Maharashtra have created the Lokayukta In most of the states, the Lokayukta can initiate
and as well as Upalokayukta while Himachal Pradesh, investigations either on the basis of a complaint received
Bihar and Uttar Pradesh have created only the from the citizen against unfair administrative action
Lokayukta. There are states like Punjab and Orissa that or suo moto. But he does not enjoy the power to start
have designated officials as Lokpal. This was not as per investigations on his own initiative in the states of Uttar
recommendations of the ARC report Pradesh, Himachal Pradesh and Assam.
Appointment: Scope of Cases Covered:
The Lokayukta and Upalokayukta are appointed by the The Lokayukta can consider the cases of ‘grievances’ as
governor of the state. While appointing them, Governor well as ‘allegations’ in the States of Maharashtra, Uttar
in most of the states consults: Pradesh, Assam, Bihar and Karnataka. But, in Himachal
r The Chief Justice of the State High Court Pradesh, Andhra Pradesh, Rajasthan and Gujarat, the
r The Leader of the Opposition in the state legislative job of Lokayukta is confined to investigating allegations
assembly (corruption) and not grievances (maladministration).
Qualification: Other Features:
Judicial qualifications are prescribed for the Lokayukta r The Lokayukta presents, annually, to the
in the States of Uttar Pradesh, Himachal Pradesh, governor of the state a consolidated report on his
Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam. performance. The governor places this report along
But no specific qualifications are prescribed in the states with an explanatory memorandum before the State
of Bihar, Maharashtra and Rajasthan. Legislature. The Lokayukta is responsible to the
Tenure: state legislature.

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r He takes the help of the state investigating agencies r The complaint against corruption cannot be
for conducting inquiries. registered after a period of seven years from the
r He can call for relevant files and documents from date on which the offence mentioned in such
the State Government departments. complaint is alleged to have been committed.
r The recommendations made by the Lokayukta
are only advisory and not binding on the State NATIONAL INVESTIGATION AGENCY
Government.
The 26th November 2008 Mumbai terrorist attack had
Limitations
r The institution of Lokpal has tried to bring a much- given rise to the formation of the National Investigation
needed change in the battle against corruption Agency Bill 2008 to create the National Investigation
in the administrative structure of India but at the Agency to investigate matters affecting the sovereignty
same time, there are loopholes and lacunae which and the security of the country. It deals with the offences
need to be corrected. of terrorism, counterfeit currency, human trafficking,
r Years have passed since the Lokpal and Lokayukta narcotics, etc. The divisions of NIA are Investigation
Act 2013 was passed by Parliament, but not a single Division, Policy Research and Coordination Division
and the Administrative Division. The NIA is a counter-
Lokpal has been appointed till date indicating the
terrorism agency in India. Officers of NIA also have
lack of political will.
powers similar to that of the police
r The Lokpal act also called upon states to appoint a
Lokayukta within a year of its coming to force. But As of now NIA has 15 Branch offices across the
only 16 states have established the Lokayukta. country. The headquarters of the NIA is at New Delhi.
r Lokpal is not free from political influence as the The branch offices of the NIA are located at Hyderabad,
appointing committee itself consist of members Guwahati, Mumbai, Lucknow, Kochi, Kolkata, Jammu,
from political parties. Raipur, Imphal, Chennai, Ranchi, Chandigarh, Bengaluru
and Patna. In addition, the NIA has a separate specialised
r The appointment of Lokpal can be manipulated in
cell known as TFFC Cell dealing with the subjects of fake
a way as there is no criterion to decide who is an
currency notes and terror funding. NIA maintains the
‘eminent jurist’ or ‘a person of integrity.’
most wanted list.
r The 2013 act did not provide concrete immunity
The NIA is headed by a Director-General. He is
to the whistle blowers. The provision for initiation
appointed by the Central Government. His powers are
of inquiry against the complainant if the accused is
similar to the powers exercisable by a Director-General
found innocent will only discourage people from
of Police in respect of the police force in a state.
complaining.
The NIA works under the administrative control
r The biggest lacuna is the exclusion of judiciary from
of the Ministry of Home Affairs, Government of India.
the ambit of the Lokpal.
The state government extends all assistance and co-
r The Lokpal is not given any constitutional backing operation to the NIA for investigation of the offences
and there is no adequate provision for appeal specified under the NIA Act
against the Lokpal. Vision of National Investigation Agency (NIA)
r The specific details in relation to the appointment of r The National Investigation Agency aims to be
Lokayukta have been left completely on the States. a thoroughly professional investigative agency
r To some extent, the need for functional matching the best international standards. The NIA
independence of the CBI has been catered to by a aims to set the standards of excellence in counter
change brought forth in the selection process of its terrorism and other national security related
director, by this Act. investigations at the national level by developing

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 into a highly trained, partnership-oriented governments can refer the cases pertaining to
workforce. NIA aims at creating deterrence for the scheduled offences registered at any police
existing and potential terrorist groups/individuals. station to the Central government (Union Home
It aims to develop as a storehouse of all terrorist Ministry) for NIA investigation.
related information. ƒ After assessing the details made available, the
Mission of National Investigation Agency (NIA) Centre can then direct the agency to take over
The stated missions of the NIA are as follows: the case.
r In-depth professional investigation of scheduled ƒ State governments are required to extend all
offences using the latest scientific methods of assistance to the NIA.
investigation and setting up such standards as ƒ Central government:
to ensure that all cases entrusted to the NIA are
ƒ In India: When the Central government is of
detected.
the opinion that a scheduled offence has been
r Ensuring effective and speedy trial. committed which is required to be investigated
r Developing into a thoroughly professional, result under the Act, it may, suo motu, direct the
oriented organization, upholding the constitution of agency to take up the probe.
India and Laws of the Land giving prime importance
ƒ Outside India:
to the protection of Human Rights and dignity of the
ƒ Where the Central government finds that a
individual.
scheduled offence has been committed at any
r Developing a professional work force through
place outside India to which this Act extends, it
regular training and exposure to the best practices
can also direct the NIA to register the case and
and procedures.
take up investigation.
r Displaying scientific temper and progressive spirit
• Sanction:
while discharging the duties assigned.
ƒ For prosecuting the accused under the Unlawful
r Inducting modern methods and latest technology in
Activities (Prevention) Act, 1967 (UAPA) and
every sphere of activities of the agency.
certain other scheduled offences, the Agency
r Maintaining professional and cordial relations with seeks the sanction of the Central Government.
the governments of States and Union Territories
ƒ The sanction is granted under the UAPA based
and other law enforcement agencies in compliance
on the report of the ‘Authority’ constituted
of the legal provisions of the NIA Act.
under section 45 (2) of the UAPA.
r Assist all States and other investigating agencies in
• Other:
investigation of terrorist cases.
ƒ is an exclusive Left wing extremism cell to
r Build a data base on all terrorist related information
effectively deal with cases related to terror
and share the data base available with the States
financing aspects of Naxalite groups.
and other agencies.
ƒ While investigating any scheduled offence, the
r Study and analyse laws relating to terrorism in other
agency can also investigate any other offence
countries and regularly evaluate the adequacy of
existing laws in India and propose changes as and which the accused is alleged to have committed
when necessary. if the offence is connected to the scheduled
r To win the confidence of the citizens of India offence.
through selfless and fearless endeavours. ƒ After investigation, the cases are placed before
Probe by National Investigating Agency the NIA Special Courts.
• Referral: Special Courts of National Investigating Agency
ƒ State government: r The Central Government for the trial of Scheduled
Offences constitutes one or more Special Courts
ƒ As provided under Section 6 of the Act, State
under Section 11 and 22 of the NIA Act 2008.

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• Composition: wherever they may be.
ƒ The Special Court shall be presided over r Persons who commit a scheduled offence beyond
by a judge to be appointed by the Central India against the Indian citizen or affecting the
Government on the recommendation of the interest of India.
Chief Justice of the High Court. NIA (Amendment) Act, 2019
ƒ The Central Government may, if required, The NIA (Amendment) Act 2019 was passed by the
appoint an additional judge or additional judges Parliament and received the presidential assent in July
to the Special Court, on the recommendation of 2019. This Act has made a few major changes to the
the Chief Justice of the High Court. original NIA Act of 2008. The changes are discussed
• Jurisdiction of Special Courts: below:
ƒ The Special Courts have all powers of the r The amendment allows the agency to investigate
court of sessions under the Code of Criminal the following new offences as well:
Procedure, 1973. ƒ Human trafficking
ƒ Counterfeit currency or bank notes related
ƒ Where any question arises as to the jurisdiction
offences
of any Special Court, it shall be referred to the
Central Government whose decision in the ƒ Sale or manufacture of prohibited arms
matter shall be final. ƒ Offences under the Explosive Substances Act,
1908
ƒ The Supreme Court can transfer a case pending
before a Special Court to any other Special ƒ Cyber terrorism
Court within that State or any other State in r The amendment also expands the jurisdiction of the
some exceptional cases where it is not feasible NIA. Now, it has the authority to investigate offences
to conduct a peaceful, fair, impartial and speedy that are committed outside Indian territory subject
trial. to international treaties and domestic laws of other
F Similarly, the High Court has the power to nations.
transfer a case pending before a Special r The amendment also allows the central government
Court in a State to any other Special Court to constitute Special Courts to conduct trials of
within that State. scheduled offences.
Jurisdiction ƒ Accordingly, the government will have the
r The agency has been empowered with all the powers power to designate Sessions Courts as Special
and privileges to conduct investigations under Courts, after consulting with the Chief Justice of
the various acts specified in the Schedule book of the High Court (under which the Sessions Court
NIA act. State government authorities can request functions).
an investigation by NIA upon approval of Central ƒ Act also authorises the state governments to
government within the limits of law specified under designate Special Courts.
the NIA Act.
ƒ The Government can appoint more than Special
r The Central Government can handover cases for Court in an area.
investigation to NIA anywhere in India and the
ƒ Currently, there are 38 Special NIA Courts across
officials involved in the handling of these cases are
the states and 7 across the Union Territories.
from the IPS and IRS cadre.
ƒ The Special Courts’ judges are appointed by the
r The law under which the agency operates extends
Government of India in consultation with the
to the whole of India and also applies to Indian
High Court Chief Justices of the area.
citizens outside the country.
ƒ The trials of the NIA Special Courts have
r Persons in the service of the Government wherever
they are posted. precedence over the trial of the accused in any
r Persons on ships and aircraft registered in India other case in any other court.

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 Significance of National Investigating Agency Amendment Bill. Cyber terrorism is addressed in
r The NIA professionally investigates the scheduled Section 66F. However, India lacks data protection
offenses using the most up-to-date scientific laws and no definition of cyber terrorism.
methodologies. r The NIA Act has been amended to allow the agency
r It allows for a quick and efficient trial. to investigate crimes committed by foreigners
r The NIA is developing into a goal-oriented and against Indian citizens or acts "affecting the interest
professional organization that defends the Indian of India". However, the word "affecting India's
Constitution and the law of the nation while placing
interest" is unclear, and governments might use it
a premium on human rights and dignity.
to restrict freedom of speech and expression.
r The NIA develops a professional workforce through
regular training and exposure to best practices.
NATIONAL DISASTER MANAGEMENT AUTHORITY
r While performing their tasks, it displays a scientific
mindset and a spirit of advancement. The National Disaster Management Authority (NDMA),
r It helps in having friendly relations with the headed by the Prime Minister of India, is the apex
country's federal and state governments, as well as body for Disaster Management in India. Setting up of
other law enforcement agencies. NDMA and the creation of an enabling environment for
r It assists states and other agencies with terror- institutional mechanisms at the State and District levels
related case investigations. is mandated by the Disaster Management Act, 2005.
r The NIA creates a database of all information NDMA is mandated to lay down the policies, plans and
about terrorists and shares it with states and other
guidelines for Disaster Management. India envisions
entities.
the development of an ethos of Prevention, Mitigation,
r It analyses and assesses terrorism-related laws in
Preparedness and Response.
India on a regular basis, as well as suggesting any
necessary revisions. Evolution of NDMA
Criticism of National Investigating Agency r In August 1999, the Government of India established
r The preservation of public order and police forces a High-Powered Committee (HPC) to make
are listed as matters of state in Schedule VII of the recommendations on the preparation of Disaster
Constitution. Management plans and suggest effective mitigation
mechanisms, in recognition of the importance of
r Criminal law, on the other hand, is included in the
concurrent list, while national security is included Disaster Management as a national priority.
in the realms of the union list. r After the Gujarat earthquake (2001), the Government
r The NIA is given the ability to take over the of India established a National Committee to make
investigation of crimes including charges of human recommendations on the preparation of Disaster
trafficking, offenses under the Explosives Act, and Management plans and suggest effective mitigation
certain offenses under the Arms Act by the Central mechanisms.
government. r For the first time, a thorough chapter on disaster
r However, not every criminal offense listed in the management was included in the Tenth Five-Year
above statute poses a threat to national security or Plan document.
sovereignty, and governments have the authority to r The Twelfth Finance Commission was also tasked
address them. with reviewing the disaster management funding
r Section 66F of the Information Technology arrangements.
Act is added to the Schedule of Offenses by the r On 23 December 2005, the Government of India

346
 enacted the Disaster Management Act, which Towards this, it has the following responsibilities: -
envisaged the creation of National Disaster r Lay down policies on disaster management.
Management Authority (NDMA), headed by the r Approve the National Plan.
Prime Minister, and State Disaster Management r Approve plans prepared by the Ministries or
Authorities (SDMAs) headed by respective Chief Departments of the Government of India in
Ministers, to spearhead and implement a holistic accordance with the National Plan.
and integrated approach to Disaster Management r Lay down guidelines to be followed by the State
in India. Authorities in drawing up the State Plan.
r The National Disaster Management Authority r Lay down guidelines to be followed by the different
(NDMA), headed by the Prime Minister of India, is Ministries or Departments of the Government of
the apex body for Disaster Management in India. India for the Purpose of integrating the measures
for prevention of disaster or the mitigation of its
Setting up of NDMA and the creation of an enabling
effects in their development plans and projects.
environment for institutional mechanisms at the
r Coordinate the enforcement and implementation of
State and District levels is mandated by the Disaster the policy and plans for disaster management.
Management Act, 2005. r Recommend provision of funds for the purpose of
NDMA Vision mitigation.
"To build a safer and disaster resilient India by a r Provide such support to other countries affected
holistic, pro-active, technology driven and sustainable by major disasters as may be determined by the
development strategy that involves all stakeholders Central Government.
and fosters a culture of prevention, preparedness and r Take such other measures for the prevention of
mitigation." disaster, or the mitigation, or preparedness and
Important Provisions under the Disaster Management capacity building for dealing with threatening
Act, 2005 disaster situations or disasters as it may consider
This Act establishes various authorities and bodies for necessary.
the effective management of disasters at all three levels- r Lay down broad policies and guidelines for the
national, state, and district. It also provides the ‘plan’ for functioning of the National Institute of Disaster
each level. Management.
National level Advisory committee
National Disaster Management Authority (NDMA) The National Authority may constitute Advisory
The Act authorises the establishment of the National Committee to advise or make recommendations on
various aspects of disaster management, which may
Disaster Management Authority. It shall consist of the
consist of-
following members-
r Experts in disaster management, and
r The Prime Minister of India as a Chairperson of the
r Persons having practical experience in disaster
National Authority, and
management at any level- national, state or district.
r Other members not exceeding nine, are to be
National Executive Committee
nominated by the Chairperson.
The National Executive Committee is constituted by the
r One of these nine members nominated the Central Government to assist the National Authority
Chairperson to be designated as Vice-Chairperson in discharging its functions. Additionally, the National
of the National Authority. Executive Committee may constitute one or more sub-
NDMA, as the apex body, is mandated to lay down the communities to discharge its functions smoothly.
policies, plans and guidelines for Disaster Management The National Executive Committee may consist of
to ensure timely and effective response to disasters. the following members-

347
 r The Secretary to the Government of India in the National Plan
Ministry or department of Central Government, National Executive Committee shall prepare the
having control over the disaster management as an ‘National Plan’ which should be reviewed and updated
ex-officio Chairperson,
manually, and which shall include-
r The Secretaries to the Government of India in
r Measures for prevention of disasters,
the Ministries or departments of atomic energy,
r Measures for integration of mitigation measures in
agriculture, defence, drinking water supply, finance,
the plans,
health, power, rural development, environment
and forest, science and technology, space, r Measures for preparedness and capacity-building
telecommunication, urban development, water to fight disaster situations, and
resources and the Chief of the Integrated Defence r Duties and responsibilities of ministries and
Staff of the Chiefs of Staff Committee, as ex officio departments of the Government of India.
members, National Institute of Disaster Management (NIDM)
r Any other officer of the Central or State Government The Central Government shall constitute this institute
may be invited by the Chairperson. and prescribe its members, terms of office and vacancies.
The powers and functions of the National Executive The main functions of this institute are as follows-
Committee are as follows: - r Develop training modules and undertake research
r To act as a coordinating and monitoring body for and documentation,
disaster management, r Formulate and implement a comprehensive
r Preparing the National Plan to be approved by the development plan,
National Authority, r Assist in the formulation of national policies,
r Monitoring the implementation of the National r Assist the state governments and state training
Policy, institutes,
r Making guidelines for plans, r Promote awareness among college students or
r Providing technical assistance to State Governments school teachers,
and authorities for carrying out their functions, r Organise study courses, conferences, lectures, and
r Monitoring the implementation of the National seminars within and outside the country, etc.
Plan and the plans prepared by other departments National Disaster Response Force (NDRF)
and ministries of Central government, Under section 44 of the Act, the National Disaster
r Evaluating the preparedness of government at all Response Force shall be constituted to provide a
levels, specialised response at times of threatening disaster
situations with the help of trained professionals, which
r To organise a specialised training programme for
includes medical staff, engineers, technicians, dogs
disaster management,
squads, rescuers, etc. NDRF has played a major role in
r To require the Government to provide such men and rescuing people in many situations like the Kosi breach
material resources in case of emergency response, in Bihar in 2008, the Kashmir Flash Floods, in 2014, and
rescue and relief, to the National Authority, the Kerala Floods in 2018.
r To advise, assist and coordinate activities of the State level
concerned authorities, NGOs and others engaged in State Disaster Management Authority (SDMA)
The Act authorises the establishment of the State
disaster management,
Disaster Management Authority. It will consist of the
r To promote general education and awareness about members as follows-
disaster management, etc,
r The Chief Minister of the State or the Lieutenant
r To perform such other functions as the National Governor of the Union Territories as an ex-officio
Authority may require it to perform. Chairperson of the State Authority,

348
r Other members not exceeding eight to be nominated r The four Secretaries to the State Government of
by the Chairperson of the State Authority, such departments which it thinks fit,
r One of these nominated members to be designated Section 22 specifies the powers and functions of the
as Vice-Chairperson of the State Authority, State Executive Committee like-
r The Chairperson of the State Executive Committee r Monitoring the implementation of the National and
is the Chief Executive Officer of the State Authority. state plan,
In the case of Union Territories having a Legislative r Testing the vulnerability of different parts of the
Assembly except for Delhi, the Chief Minister will be the state to different forms of disasters,
Chairperson of the State Authority. In the case of Delhi, r Laying down guidelines for preparing plans,
the Lieutenant Governor shall be the Chairperson and r Providing technical assistance for carrying out their
the Chief Minister will be the Vice-Chairperson of the functions,
State Authority.
r Coordinating the implementation of the plans and
Section 18 of the Act specifies the powers and guidelines,
functions of the State Disaster Management Authority
r Evaluating the preparedness at both governmental
like –
and non-governmental levels,
r Laying down the state policy on disaster
r Arranging response in the event of any threatening
management, disaster situation,
r Approving the state plan, and plans by other r Assisting and coordinating activities of the
departments, concerned authorities, NGOs and others engaged in
r Laying down guidelines for different departments disaster management,
of state, r Promoting general education, awareness and
r Monitoring the implementation of the state plan for community training about disaster management,
disaster management, and
r Recommending funds for mitigation measures, r Advising the state government regarding financial
r Reviewing the developmental plans of different matters,
departments of the state, r Ensuring communication systems are in order, etc.
r Review the measures taken for mitigation, capacity State Plan
building and preparedness by the departments of It shall be prepared by the State Executive Committee,
the state and issue necessary guidelines. which shall include-
Advisory Committee r The vulnerability of different parts of the state to
The State Authority may constitute an advisory different disasters,
committee to make recommendations on disaster r Measures to be taken for prevention and mitigation,
management which shall consist of experts in disaster r The manner in which these measures shall be
management having practical experience. integrated with plans,
State Executive Committee r Measures to be taken for capacity building and
The State Executive Committee is constituted by preparedness,
the State Government to assist the State Authority r Roles and responsibilities of different departments
in discharging its functions. Additionally, the State of the state government.
Executive Committee may constitute one or more sub-
District level
communities to discharge its functions smoothly.
District Disaster Management Authority (DDMA)
The State Executive Committee may consist of the
The Act authorises the establishment of the District
following members-
Disaster Management Authority. It shall consist of the
r The Chief Secretary to the State Government as an following members-
ex-officio Chairperson,
r The Collector or District Magistrate or Deputy

349
 Commissioner of the district as an ex-officio r Areas vulnerable to different disasters in the
Chairperson of the District Authority, district,
r The elected representative of the local authority as r Measures to be taken for prevention and mitigation
the Co-Chairperson, of disaster,
r The Chief Executive Officer of the District Authority, r Measures for capacity building and preparedness,
r The Superintendent of Police, r Response plans and procedures,
r The Chief Medical Officer of the district, r Other matters as required by the state authority.
r Not exceeding two other district-level officers, to be Shortcomings of the NDMA
appointed by the State Government. r The role of NDMA was questioned during the
In the case of tribal areas, as referred to in the Sixth Uttarakhand floods of 2013, where it failed to timely
Schedule of the Constitution, the Co-Chairperson will be inform people about the flash floods and landslides.
the Chief Executive Member of the district council of an r The post-disaster relief response had been equally
poor due to poor planning of NDMA that lead to
autonomous district. The powers and functions of the
unfinished projects.
District Authority are as follows:
r A Comptroller and Auditor General (CAG) of
r Preparing a disaster management plan for the
India report in 2013 noted that the NDMA had
district,
no information and control over the progress of
r Monitoring the implementation of plans and disaster management work in the states, neither
policies, could it successfully implement various projects
r Identifying the areas vulnerable to disasters, it had initiated for disaster preparedness and
r Giving directions to district authorities and laying mitigation.
down the guidelines, r There were huge delays in the completion of river
r Assessing the state of capabilities for responding to management activities and works related to border
any disaster and the preparedness measures, areas projects which were long-term solutions
r Examining the construction in the district to check for the flood problems of Assam, north Bihar and
the standards for the prevention of disaster, and if eastern Uttar Pradesh.
have not been followed, directing the authorities to r Misutilization of expenditure and several critical
posts in NDMA are vacant.
take action,
r Identifying buildings or places which can be used as
relief centres or camps at the time of the disaster,
r Establishing stockpiles of relief and rescue materials NATIONAL COMMISSION FOR WOMEN
and ensuring preparedness, The National Commission for Women was set up as
r Organising specialised training programmes for statutory body in January 1992 under the National
officers or voluntary rescue workers, Commission for Women Act, 1990 to:
r Facilitating community training and awareness r review the Constitutional and Legal safeguards for
programmes, etc. women;
Advisory Committee r recommend remedial legislative measures;
The District Authority may constitute one or more r facilitate redressal of grievances and
advisory committees and other committees for the r advise the Government on all policy matters
efficient discharge of its functions. affecting women.
District Plan Constitutional Provision of National Commission for
‘District Plan’ shall be prepared by the District Authority, Women
which shall include the following- There are no provisions in the Indian Constitution

350
that specifically mention the National Commission empowered to access all her rights and entitlements,
for Women, although there are several safeguards for with opportunity to contribute equally in all walks of
women's safety that are mentioned in Article 14, Article life.
15 (3), Article 16(4), Article 23, Article 38, 39(a), 39(b) Composition
and 39(e), 42, 44 and 45 deals with the welfare and The Commission shall consist of: -
development of women. r A Chairperson, committed to the cause of women,
Brief History to be nominated by the Central Government.
r The Committee on the Status of Women in India r five Members to be nominated by the Central
(CSWI) recommended nearly two decades ago, the Government from amongst persons of ability,
setting up of a National Commission for women integrity and standing who have had experience
to fulfil the surveillance functions to facilitate in law or legislation, trade unionism, management
redressal of grievances and to accelerate the socio- of an industry potential of women, women's
economic development of women. voluntary organisations (including women activist),
r Successive Committees/Commissions/Plans administration, economic development, health,
including the National Perspective Plan for Women education or social welfare;
(1988-2000) recommended the constitution of an ƒ Provided that at least one Member each
apex body for women. shall be from amongst persons belonging to
r During 1990, the central government held the Scheduled Castes and Scheduled Tribes
consultations with NGOs, social workers and respectively;
experts, regarding the structure, functions, powers r a Member-Secretary to be nominated by the Central
etc of the Commission proposed to be set up. Government who shall be: -
r In May 1990, the Bill was introduced in the Lok ƒ an expert in the field of management,
Sabha.
organisational structure or sociological
r In July 1990, the HRD Ministry organized a National
movement, or
Level Conference to elicit suggestions regarding the
ƒ an officer who is a member of a civil service
Bill. In August 1990 the government moved several
amendments and introduced new provisions to of the Union or of an all-India service or holds
vest the commission with the power of a civil court. a civil post under the Union with appropriate
r The Bill was passed and received accent of the experience.
President on 30th August 1990. Tenure of National Commission for Women
r The First Commission was constituted on 31st The Chairperson and every Member shall hold office
January 1992 with Mrs. Jayanti Patnaik as the for such a period, not exceeding three years, as may be
Chairperson. specified by the Central Government on this behalf.
Mission Removal of National Commission for Women
To strive towards enabling women to achieve equality r If a person becomes an undischarged insolvent, the
and equal participation in all spheres of life by securing Central Government may remove him or her from
her due rights and entitlements through suitable policy the position of Chairperson or member. Or,
formulation, legislative measures, effective enforcement ƒ gets convicted and sentenced to prison for an
of laws, implementation of schemes/policies and offence that the central government considers
devising strategies for solution of specific problems/ to be morally reprehensible.
situations arising out of discrimination and atrocities ƒ becomes mentally ill and is declared as such by
against women. a full-court.
Vision ƒ refuses to act or loses the ability to act.
The Indian Woman, secure in her home and outside, fully ƒ is absent from three consecutive commission

351
 meetings without receiving leave of absence r Receiving evidence on affidavits.
from the panel. r Discovery and production of documents.
r The central government believes that the r Summoning and enforcement.
Chairperson or members have abused their Function of National Commission for Women:
positions to the point where their continued service The functions of the National Commission for Women
is detrimental to the public interest. are as follows:
r No individual shall be removed under this • Presentation of Reports: Table reports should be
provision unless and until he or she has been given
submitted to the Central Government every year.
a reasonable opportunity to be heard in the issue.
When the commission feels it’s appropriate. The
Objective
reports upon the functioning and working of the
The notable achievements of the National Commission
safeguards.
for women are that they prepared gender profiles. Then
• Investigation and Examination: There should be
they took initiative into the creation of the Parivarik
proper investigation and examination made under
Mahila Lok Adalat to take proactive steps regarding the the Constitution and other laws. This is related to
rights of women. They evaluated and reviewed laws the protection of the rights of women.
concerning Indian Penal Code 1860, Pre-Conception
• Review: Constantly all laws are reviewed and
and Pre-natal Diagnostic Technique Act,1994 and The
scrutinised. And necessary amendments and
Dowry Prohibition Act,1960 and so on. To take more
alterations are made to meet the needs of the
effective actions against violations under the National
current world. This is to meet any break, incapacity
Commission for Women Act 1990. Set up and organise
or any inadequacies in the legislation.
awareness workshops and consultations outlets. The
• Cases of Violation: Ensure there is no violation
objectives of NCW are as follows:
against women and taking due care of such cases.
r To suggest the government regarding policies
regarding women, • Suo Motu Notice: It takes care of complaints and
r A platform to redress the grievances, also suo motu matters about the deprivation of
rights of women. Implementation of laws favouring
r To make recommendations relating to legislation
measures, the welfare of women.
r To review legal and constitutional safeguards for • Evaluation: Assessing the development and the
women. progress of the women community under the
Centre and State level.
Working
It acts as a statutory body and takes measures to • Recommendation: To suggest the wellbeing of
women and their rights.
safeguard and protect women. It works under the
National Commission for Women Act, 1990. It derives • Special studies and investigation: To understand
the limitations in the system and curb it with
the vital guidelines from the commission to make
strategic plans and mechanisms.
recommendations and suggestions to make strategic
• Research: To make research and study to
plans for the well-being of women and their rights.
understand the needs of women, healthcare and
Powers of NCW such related components. This is to make a proper
r Provide consultation on all major policy matters support system to help the women in need.
that affect women.
• Participation in all spheres particularly in
r Issuing summons for the examination of documents planning: Take measure to facilitate economic and
and the witnesses. social development and improvement of women by
r It has the power to make any public record. recognising their rights.

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• Inspection: Inspect the jail, remand home to ensure for Minorities.
that the women staying here are not exploited as Who constitutes of minority?
they are vulnerable. r The central government notifies the status of
• Funding and Reporting: Ensure there is a fund minorities to a religion in India.
for litigation of matters relating to women rights. r Constitution has not defined the term minority
There should be periodical reports made under the neither laid down procedures to notify a community
difficulties faced by women daily. or religion as a minority community
Challenges of National Commission for Women: r However, article 29 recognizes religious and
In spite of positive aspects of Women Commission and linguistic minorities while article 30 provides
great achievements, there are also some shortcomings:
the right to establish and administer educational
r The commission is dependent on the grant from the
institutions maintained by them.
Union Government.
r Initially five religions viz. Muslims, Christians, Sikhs,
r The commission does not have the power to select
own members. Buddhists and Zoroastrians (Parsis) were notified
r The power is vested with the Union Government. as minorities by the Union government in 1993.
r The commission has no right to concrete legislative r After that, Jain was notified as a minority community
power. in 2014.
r It has only to power recommend amendments and Constitutional provisions for minorities
submit reports which are not binding on state or Constitutional provisions related to minorities
Union Government. can be seen in Fundamental Rights (FR), Directive
r The Commission’s Jurisdiction is not operative in Principles of State Policy (DPSP), and Fundamental
Jammu and Kashmir. Duties (FD).
r Financial assistance is so less that it is difficult make Fundamental Rights:
awareness of legal program. • ARTICLE 14: people’s right to ‘equality before the
r The National Commission for women in India seizes law’ and ‘equal protection of the laws’
women’s cause only when it is brought to light. • ARTICLE 15: prohibition of discrimination against
Unreported cases of oppression and suppression of citizens on grounds of religion, race, caste, sex or
women are not attended to. place of birth
r In rural sector, there is lack of mindfulness • ARTICLE 16: citizens’ right to ‘equality of
education, opportunities and basic facilities for opportunity’ in matters relating to employment
women for economic of empowerment. or appointment to any office under the State – and
prohibition in this regard of discrimination on
grounds of religion, race, caste, sex or place of birth;
NATIONAL COMMISSION ON MINORITIES
• ARTICLE 25: people’s freedom of conscience and
The National Commission for Minorities was originally right to freely profess, practice and propagate
titled Minorities Commission. In 1978, setting up of religion – subject to public order, morality and other
the Minorities Commission (MC) was envisaged in the Fundamental Rights;
Ministry of Home Affairs Resolution. • ARTICLE 26: the right of ‘every religious
In 1984, the MC was detached from the Ministry denomination or any section thereof – subject to
of Home Affairs and placed under the newly created public order, morality and health – to establish and
Ministry of Welfare, which excluded linguistic minorities maintain institutions for religious and charitable
from the Commission’s jurisdiction in 1988. purposes, ‘manage its own affairs in matters of
With the enactment of National Commission for religion’, and own and acquire movable immovable
Minorities Act 1992, the Minorities Commission (a non- property and administer it ‘in accordance with law’
statutory body) was renamed as National Commission • ARTICLE 27: the prohibition against compelling any

353
 person to pay taxes for promotion of any particular office of Chairperson or the member if
religion’ r Becomes undischarged insolvent.
• ARTICLE 28: people’s ‘freedom as to attendance r Unsound mind and stand so declared by a competent
at religious instruction or religious worship in court.
educational institutions’ wholly maintained, r Refuse to act or become incapable of acting.
recognized or aided by the State. r Convicted and sentenced to imprisonment for
Directive Principles of State Policy an offense which in the opinion of the Central
DPSP under Part IV, includes the following provisions Government involves moral turpitude.
having significant implications for the Minorities: – r Absent from three consecutive meetings without
r The obligation of the State ‘to endeavour to eliminate obtaining leave of absence.
inequalities in status, facilities and opportunities’ r Abused the position of chairperson or member in
amongst individuals and groups of people residing the opinion of the Central Government.
in different areas or engaged in different vocations; r Detrimental to the interest of minorities or public
Article 38 (2) interest.
r The obligation of State ‘to promote with special Note: No person shall be removed under this clause
care’ the educational and economic interests of ‘the until the person has been given a reasonable opportunity
weaker sections of the people’ [Article 46] of being heard in the matter.
Fundamental Duties Functions of National Commission on Minorities
• Article 51A: The National Minorities Commission performs the
following functions:
r citizens’ duty to promote harmony and the spirit
r It evaluates the progress of the development
of common brotherhood amongst all the people of
of minorities under both central and state
India ‘transcending religious, linguistic and regional governments.
or sectional diversities; and
r It monitors the working of the constitutional laws
r citizens’ duty to value and preserve the rich heritage enacted for the welfare of minorities, both by
of our composite culture.’ central and state governments.
Composition of National Minorities Commission r It makes recommendations for the implementation
• It has seven members: of protective safeguards for the minorities.
r A Chairperson r It is the authorized body to look into complaints
r A Vice-Chairperson regarding deprivation of the rights and safeguards
r 5 members of the minority communities.
Total of 7 person, to be nominated by the Central r Its initiatives include studies concerning minorities’
Government should be from amongst persons of issues arising from discrimination.
eminence, ability and integrity and all of them shall be r It conducts studies, research and analysis concerning
from amongst the minority communities. issues related to the socio-economic and educational
development of minorities.
Term of Members of National Commission for
r It presents periodic or special reports concerning
Minorities: Each member of the commission holds the
minorities and their issues to the central
office for three years from the date of assumption of the
government.
office.
r It governs matters which the central government
Removal Process of Office of Chairperson refers to.
The Central Government shall remove a person from the

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 39 Co-Operative Societies

Post-Independence:
Introduction
r After independence, co-operatives became an
According to ILO, a Co-operative is an autonomous integral part of Five-Year Plans.
association of persons united voluntarily to meet their r Like agriculture, co-operatives is in the concurrent
common economic, social and cultural needs and
list.
aspirations through a jointly owned and democratically
r In 1958, the National Development Council
controlled enterprise.
(NDC) had recommended a national policy on co-
History of the Co-operative Movement in India
operatives and also for training of personnel and
Pre-Independence:
setting up of Co-operative Marketing Societies.
r The Co-operatives were first started in Europe to
serve the credit-starved people in Europe as a self- r National Co-operative Development Corporation
reliant, self-managed people’s movement with no (NCDC), a statutory corporation, was set up under
role for the Government. National Co-operative Development Corporation
Act, 1962.
r British India replicated the Raiffeisen-type co-
operative movement in India to mitigate the miseries r In 1984, Parliament of India enacted the Multi-State
of the poor farmers, particularly harassment by Co-operative Societies Act to remove the plethora of
moneylenders. different laws governing the same types of societies.
r The term Co-operative Societies came into existence r Government of India announced a National Policy
when the farmers of Pune and Ahmednagar on Co-operatives in 2002.
spearheaded an agitation against the money r The Constitution (Ninety Seventh Amendment)
lenders. The first credit co-operative society was Act 2011 relating to the co-operatives is aimed to
formed in Banking in the year 1903 with the support encourage economic activities of co-operatives
of Government of Bengal. which in turn help progress of rural India
r Co-operative Credit Societies Act of India was r In Part III of the Constitution, instead of "or unions"
enacted in 1904. the words "Co-operative Societies" was added.
r In 1912, another Co-operative Societies Act was r In Part IV a new Article 43B was inserted, which
passed to rectify some of the drawbacks of the says: The state shall endeavour to promote
earlier law. Co-operation became a state subject in voluntary formation, autonomous functioning,
1919. democratic control and professional management
r Land Mortgage Co-operative Banks were established of the co-operative societies".
in 1938 to provide loans initially for debt relief and r After Part IXA of the constitution, a Part IXB was
land improvement. Reserve Bank of India started inserted to accommodate state vs centre roles.
refinancing co-operatives for Seasonal Agricultural r Union Agriculture Ministry launched NCDC’s
Operations from 1939. youth-friendly scheme ‘Yuva Sahakar-Co-operative
r In 1942, the Government of British India enacted Enterprise Support and Innovation Scheme’ for
the Multi-Unit Co-operative Societies Act to cover attracting youth to co-operative business ventures.
Co-operative Societies with membership from more r NCDC recently started Mission Sahakar 22, which
than one province. aims to double farmers’ income by 2022.

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 Constitutional Provision r providing for the reservation of one seat for the
The Constitution (97th Amendment) Act, 2011 added a Scheduled Castes or the Scheduled Tribes and two
new Part IX B right after Part IX A (Municipals) regarding seats for women on the board of every co-operative
the co-operatives working in India. society, which have individuals as members from
The word “co-operatives” was added after “unions such categories;
and associations” in Article 19(1)(c) under Part III of r providing for offences relating to co-operative
the Constitution. This enables all the citizens to form co- societies and penalties in respect of such offences.
operatives by giving it the status of fundamental right of Role of Co-operatives in Socio-Economic Development
citizens. r Co-operatives are community-based, voluntary
A new Article 43B was added in the Directive Principles in nature, rooted in democracy, flexible, and have
of State Policy (Part IV) regarding the “promotion of co- participatory involvement, which makes them well
operative societies”. suited for economic development.
r Part IX – Art 243 – 243 O – Panchayats r It is an association of persons and not of capital.
r Part IX A – Art 243P – 243ZG – Municipalities r It generates employment and eliminates all forms
r Part IX B – Art 243ZH – 243ZT – Co-operatives of exploitation.

97th Amendment Act, 2011 r It educates people the principles of equality,

Part IX B of the Constitution, inter alia, seeks to empower mutuality, and co-operation.
the Parliament in respect of multi-state co-operative r As co-operatives foster economies of scope and
societies and the State Legislatures in case of other scale, they increase the bargaining power of their
co-operative societies to make appropriate law, laying members providing them, among others benefits,
down the following matters, namely: - higher income and social protection. Hence, co-
operatives accord members opportunity, protection
r provisions for incorporation, regulation and
and empowerment-essential elements in uplifting
winding up of co-operative societies based on them from degradation and poverty.
the principles of democratic member-control,
r They promote the “fullest participation of all
member-economic participation and autonomous
people” and facilitate a more equitable distribution
functioning;
of the benefits of globalization.
r specifying the maximum number of directors of a
r They provide their employees with the opportunities
co-operative society to be not exceeding twenty-
to upgrade their skills through workshops and
one members;
courses and offer youth in their base communities
r providing for a fixed term of five years from the date short and long-term employment positions.
of election in respect of the elected members of the r Co-operatives provide agricultural credits and
board and its office bearers; funds where state and private sectors have not been
r providing for a maximum time limit of six months able to do very much.
during which a board of directors of co-operative r They provide strategic inputs for the agricultural-
society could be kept under supersession or sector; consumer societies meet their consumption
suspension; requirements at concessional rates.
r providing for independent professional audit; r It softens the class conflicts and reduces the social
r providing for right of information to the members cleavages.
of the co-operative societies; r It reduces the bureaucratic evils and follies of
r empowering the State Governments to obtain political factions
periodic reports of activities and accounts of co- r It creates a conducive environment for small and
operative societies; cottage industries.

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Challenges faced by Co-operative Sector in India of the Movement, rules and regulations of co-
Non-accountability: operative institutions.
r The Government gave too many benefits to Restricted Coverage:
co-operatives, but then there was no further r Most of these societies are confined to a few
accountability which led to these co-operatives members and their operations extended to only one
becoming more and more lethargic. or two villages.
r Besides as there was no competition, they became Functional Weakness:
more and more costly they were not at all efficient r The Co-operative Movement has suffered from
and the worst part was that the Government inadequacy of trained personnel.
allowed them to function like this and pass on the
Ministry of Co-operation
burden of costs to consumers.
Recently, a separate ‘Ministry of Co-operation’ was
Vested interest of some people: formed in July 2021’ for realizing the vision of ‘Sahkar
r A lot of times people who are in position in control
se Samriddhi’ (Prosperity through Cooperation) and to
of co-operatives are actually people who have
give a new push to the co-operative movement.
joined co-operatives for personal gains.
The Ministry provides a separate administrative, legal
Lack of co-ordination:
r Generally, what happens in co-operatives is that and policy framework for strengthening the co-operative
different co-operatives at different level don’t movement in the country.
coordinate this makes the work of co-operatives Objectives
difficult. The ministry was created with objectives:
Quantity over Quality: r To realise the vision of "Sahkar se Samriddhi"
r Different co-operatives go in for quantity and this (prosperity through cooperation).
causes a major problem because they think it’s a
r To streamline processes for ‘'Ease of doing business’'
quick way to earn money so this basically affects
for co-operatives and enable development of Multi-
the productivity.
State Co-operatives (MSCS)
No Balanced Growth:
r The co-operatives in Northeast areas and in areas r To provide a separate administrative, legal and
like West Bengal, Bihar, Orissa are not as well policy framework for strengthening the co-
developed as the ones in Maharashtra and Gujarat. operative movements in the country.
Political Interference: r To deepen the co-operative as a true people-based
r This is the biggest problem faced by Sugar co- movement reaching up to the grassroot level.
operatives in Maharashtra. Significance of Ministry of Co-operation:
Mismanagement and Manipulation: r It seeks to provide a separate administrative, legal
r A hugely large membership turns out to be and policy framework for strengthening the co-
mismanaged unless some secure methods are operative movement in the country.
employed to manage such co-operatives. r It is expected to deepen Co-operatives as a true
r In the elections to the governing bodies, money people-based movement reaching up to the
became such a powerful tool that the top posts of grassroots.
Chairman and Vice-Chairman usually went to the r It will work to streamline processes for ‘Ease
richest farmers who manipulated the organization of doing business ‘for co-operatives and enable
for their benefits. development of Multi-State Co-operatives (MSCS).
Lack of Awareness: r Co-operative structure has managed to flourish
r People are not well informed about the objectives and leave its mark only in a handful of states like

357
 Maharashtra, Gujarat, and Karnataka etc. Under the but who are not aware of the various modalities,
new Ministry, the co-operative movement would and requirements.
get the required financial and legal power needed More inclusive:
to penetrate into other states also. r Increased participation of women in co-operative
r Over the years, the co-operative sector has movement.
witnessed drying out of funding. Under the new r Co-operative sector has a big role in bridging the
Ministry, the co-operative structure would be able urban-rural divide and creating opportunities for
to get a new lease of life. income generation.
Use of technology
Reforms in Co-operative Society
r To have a transparent, accountable and efficient
Training:
system, co-operatives should make effective use of
r Co-operatives to take up the task of training farmers
digital technology in their functioning, especially in
in the right use of fertilizers, and also help them governance, banking and businesses.
understand new technologies in farming.
r New areas are emerging with the advancement
r Co-operatives to take active part in skilling rural of technology and co-operative societies can play
youth a huge role in making people familiar with those
r Co-operative training must not only be imparted to areas and technologies.
employees in co-operatives, but also extend beyond r There are irregularities in co-operatives and to
co-operatives, to children in schools, colleges, check them there have to be rules and stricter
universities, technical and professional institutions, implementation.
and also for those who want to form co-operatives,

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 40 Official Language

commission's recommendations and report back to

Introduction
the President on them.
India is a Democratic Republic and has a constitution As a result, in 1955, the B.G. Kher was apponted as the
of its own. It is also home to several languages. Many of Chairman of an Official Language Commission. In 1956,
them are listed as the official language of the country. the Commission delivered its report to the President. A
The Constitution of India includes Articles 344 to 351 committee of Parliament established another commission
which deal with languages. These are included in the in 1957, headed by Gobind Ballabh Pant evaluated the
eighth Schedule which recognizes 22 languages. findings of previous commission. However, in 1960
Article 345 of the Indian Constitution, provides there was no appointment of a new Official Language
Constitutional recognition as "Official languages" of the Commission as required by the Constitution.
Union to any language adopted by a State Legislature as The Official Languages Act was later passed by Parliament
the official language of that state. In the Constitution, its in 1963. The statute mandates the use of Hindi and English
provisions have been mentioned as follows – for all official Union functions as well as for the conduct of
Language of the Union business in Parliament (even after 1965).
Official Language of the Union: Notably, there is no time limit on the use of English
The following clauses regarding the Union's official under this act. In addition, this act was revised in 1967
language are found in the Constitution. to mandate the use of English in specific circumstances
r Devanagari-scripted Hindi will serve as the Union's in addition to Hindi.
official language. However, the international form Regional Languages
of Indian numerals and not the Devanagari form of Official Language or Languages of a State
numerals must be used for official purposes of the The Constitution does not specify the official language
Union. of different states. In this regard, it makes the following
r However, the English language would continue to be provisions:
used for all of the official functions of the Union for r Subject to the provisions of articles 346 and 347,
which it was being used before 1950 for a period of the Legislature of a State may by law adopt any one
fifteen years following the start of the Constitution or more of the languages in use in the State or Hindi
(i.e., from 1950 to 1965). as the language or languages to be used for all or
r The Parliament may nevertheless make provisions any of the official purposes of that State:
for the continued use of English for the designated m Provided that, until the Legislature of the State
purposes beyond fifteen years. otherwise provides by law, the English language shall
r The President should form a panel to offer continue to be used for those official purposes within
suggestions regarding the gradual use of Hindi, the State for which it was being used immediately before
limitations on the use of English, and other relevant the commencement of this Constitution.
concerns after five years and again after ten years r Most States have made the main regional language
from the start of the Constitution. A committee their official language in accordance with this
of Parliament will be established to look over the clause. Examples include the adoption of Telugu by

359
 Andhra Pradesh, Malayalam by Kerala, Assamese by b. The official texts of all constitutional bills, acts,
Assam, Bengali by West Bengal, and Odia by Odisha. ordinances, orders, rules, regulations, and by-
Himachal Pradesh, Uttar Pradesh, Uttarakhand, laws at the federal and state levels.
Madhya Pradesh, Chhattisgarh, Bihar, Jharkhand, 2) The authoritative texts of all bills, acts, ordinances,
Haryana, and Rajasthan are the nine northern states orders, rules, regulations and bye laws at the Central
that have embraced Hindi as their official language. and state levels.
r Along with Gujarati, Hindi has been embraced in 3) The use of Hindi or any other state official language,
Gujarat. Similar to Goa, which also uses Konkani, however, can be authorised by the Governor of
Marathi has been embraced. Urdu, not Kashmiri, a state with the President's prior approval for
has been embraced by Jammu & Kashmir. proceedings in the state's top court, but not for
decisions, decrees, or orders made by the court. In
r While others, like Meghalaya, Arunachal Pradesh,
other words, until Parliament specifies otherwise,
and Nagaland in the northeast, have adopted
the top court's rulings, decisions, and orders must
English.
continue to be in English alone.
r Notably, the State has a wide range of options to The Parliament has not made any law prescribing
choose from in addition to the languages listed in Hindi to be used as a language of the Supreme Court, and
the Constitution's Eighth Schedule. hence the sole language of the Supreme Court has been
Official Language for Communication between One English. Incidents have occurred in the past, wherein a
State and another or between a State and the Union petition in Hindi was rejected by Supreme Court on the
r The language for the time being authorised for use ground that the language of the court was English and
in the Union for official purposes shall be the official allowing Hindi would be unconstitutional.
language for communication between one State and Special Directives
another State and between a State and the Union Language is to be used in representations for redressal
m Provided that if two or more States agree that the of grievances to any officer or authority of the Union or a
Hindi language should be the official language State in any of the languages used in the Union or in the
for communication between such States, that State, as the case may be.
language may be used for such communication. Protection of Linguistic Minorities:
Special Provision relating to Language Spoken by a r Children from linguistic minority groups should
Section of the Population of a State have access to suitable facilities for instruction in
r On a demand being made in that behalf, the the mother language at the elementary stage of
President may, if he is satisfied that a substantial education from every state and every local authority
proportion of the population of a State desire the within the state. The President has the authority to
use of any language spoken by them to be recognised issue the directives required for this.
by that State, direct that such language shall also be r There shall be a Special Officer for linguistic
officially recognised throughout that State or any minorities to be appointed by the President. It shall
part thereof for such purpose as he may specify. be the duty of the Special Officer to investigate all
matters relating to the safeguards provided for
Languages Used in Judiciary and Laws:
linguistic minorities under this Constitution and
Language to be used in the Supreme Court and in the report to the President upon those matters.
High Courts and for Acts, Bills, etc-
r Every individual who feels aggrieved has the right
1) Unless otherwise specified by Parliament, the to submit a representation in any of the languages
following shall only be in the English language: used by the Union or the state, as the case may
a. The Supreme Court's and all High Courts' be, to any official or authority of the Union or a
proceedings. state for the redress of any grievance. As a result,

360
 a representation cannot be disregarded because report before each House of Parliament and send it to all
it was not written in the language of the official the State Governments.
document. Composition: The Committee comprises of 30
The directive for development of the Hindi Language: members of Parliament elected with the system of
r It shall be the duty of the Union to promote the proportional representation by means of the single
spread of the Hindi language, to develop it so that transferable vote.
it may serve as a medium of expression for all the
r 20 from Lok Sabha
elements of the composite culture of India and
to secure its enrichment by assimilating without r 10 from Rajya Sabha
interfering with its genius, the forms, style and The Chairman of the Committee is elected by the
expressions used in Hindustani and in the other members of the Committee. As a convention, the union
languages of India specified in the Eighth Schedule. Home minister has been elected as Chairman of the
Currently, the Eighth Schedule of the Constitution Committee from time to time.
contains 22 languages-Assamese, Bengali, Gujarati, Functions:
Hindi, Kannada, Kashmiri, Konkani, Malayalam, r to review the progress made for the use of Hindi for
Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Official purposes of the Union
Sindhi, Tamil, Telugu, Urdu, Bodo, Santhali, Maithili and
r To submit a report to the President for making
Dogri.
recommendations thereon
In terms of the Constitution provisions, there are
two objectives behind the specification of the above r President laid the report before each House of
regional languages in the Eighth Schedule: Parliament and sent it to all the State Governments
r the members of these languages are to be given Classical Language
representation in the Official Language Commission; According to Article 343, the official language of India
and should be Hindi in the Devanagari script. As per the
r the forms, style and expression of these languages Eighth Schedule of the Indian Constitution, we have
are to be used for the enrichment of the Hindi
22 languages. In 2004 it was decided by the Indian
language.
Government to proclaim Indian Languages meeting
However, no time frame can be fixed for
certain requirements as “Classical Language”.
consideration of the demands for the inclusion of more
languages in the Eighth Schedule to the Constitution of Criteria for declaring Classical Languages in India
India. In February 2014, the Ministry of Culture in the Rajya
Sabha gave the guidelines for declaring language as
Parliamentary Committee on Official Language:
classical. These are:
The Official Languages Act, 1963 provided to set up
r The high antiquity of its early texts is recorded in
of a Committee on Official Language for reviewing the
history.
progress made in the use of Hindi for the official purpose
r A body of ancient literature/texts, which is
of the Union. The Committee was to be constituted
considered a valuable heritage by the generation of
after ten years of the promulgation of the Act under the
speakers.
section 3 of the Official Languages Act 1963.
r The literary tradition be original and not borrowed
Mandate: The Committee shall review the progress from another speech community.
made in the use of Hindi for the Official purposes of
r The classical language and literature are distinct
the Union and submit a report to the President making from modern; there may also be a discontinuity
recommendations. The President shall then lay the between the classical languages.

361
 Classical Languages India 2013, around 220 languages has been lost in
r In 2004, the Government of India declared Tamil as the last 50 years and 197 has been categorised as
the Classical Language of India. Endangered.
r In 2005, right after Tamil, the government declared r Government of India currently defines a language
Sanskrit as a Classical Language of India. These as one that is marked by a script and effectively
neutering oral languages. Therefore, government
two languages are undeniably parental sources for
recognizes 122 languages which is far lower than
several languages belonging to the Indo-European
the 780 counted by the People’s Linguistic Survey
family and the Dravidian family of language groups.
of India (along with a further 100 suspected to
r The Government gave the classical language status exist).
to Kannada and Telugu in 2008. r This discrepancy is caused primarily because
r Malayalam was declared as a classical language in Government of India doesn’t recognise any language
2013 and in 2014, Odia was also given the status of with less than 10,000 speakers.
the Classical language. r Many unscheduled languages have a sizeable
Benefits accorded to Classical Languages in India number of speakers: Bhili/Bhilodi has 1,04,13,637
Two major annual international awards are given for speakers; Gondi has 29,84,453 speakers; Garo has
scholars of eminence in classical Indian languages. 11,45,323; Ho has 14,21,418; Khandeshi, 18,60,236;
r Two major annual international awards for scholars Khasi, 14,31,344; and Oraon, 19,88,350.
of eminence in classical Indian languages
r A significant proportion of the estimated 370
r A Centre of Excellence for studies in Classical million indigenous people in the world today “still
Languages is set up lack basic rights, with systematic discrimination
r The University Grants Commission is requested and exclusion continuing to threaten ways of life,
to create, to start with at least in the Central cultures and identities. This contradicts the UN
Universities, a certain number of Professional
Declaration on the Rights of Indigenous Peoples
Chairs for the Classical Languages so declared.”
and the 2030 Agenda for Sustainable Development,
Issues Related to Indian Language “with its promise to leave no one behind”.
r A language is an umbrella term which contains
Case for Tulu Language to be included in Eighth
many mother tongues.
Schedule
r 43% of Indians speak the Hindi language, which r Tulu is a Dravidian language whose speakers are
includes many mother tongues such as Bhojpuri, concentrated in two coastal districts of Karnataka
Rajasthani & Hindi. and in Kasaragod district of Kerala.
r Only about 26% of Indians speak Hindi as their r The Census reports 18,46,427 native speakers of
mother tongue under the broader Hindi language Tulu in India. The Tulu-speaking people are larger
grouping (according to Census 2011). in number than speakers of Manipuri and Sanskrit,
which have the Eighth Schedule status.
r Close to 40% of the Hindi language speakers speak
mother tongues other than Hindi. r Robert Caldwell (1814-1891), in his book, A
Comparative Grammar of the Dravidian or South-
r Despite being spoken by a large number of people,
Indian Family of Languages, called Tulu as “one
Bhojpuri and Rajasthani are not listed as scheduled of the most highly developed languages of the
languages, while Bodo and Nepali which are Dravidian family”.
spoken by relatively fewer people are in the Eighth
Three Language Formula
Schedule. r Introduced by the first National Education Policy,
People’s Linguistic Survey of India 2013 the three-language formula stated that state
r According to the People’s Linguistic Survey of governments should adopt and implement a study

362
 of a modern Indian language, preferably one of the of different languages, one common language would
southern languages, apart from Hindi and English reflect the identity of India in the world.
in the Hindi-speaking states, and of Hindi along r Unity among the people of India: Hindi is the most
with the regional language and English in the non- widely spoken language in India, the common Hindi
Hindi speaking states. language will unite people from different parts of
r The draft policy recommended that this three- the country.
language formula be continued and flexibility in the r Glory in the multilingual nation: The people of
implementation of the formula should be provided.
this nation of different states are sometimes not
r On promotion of Hindi, the NPE 1968 said every able to communicate with each other, just because
effort should be made to promote the language and of the diversity in languages. Adopting a common
that “in developing Hindi as the link language, due national language helps them communicate with
care should be taken to ensure that it will serve, as other linguistic groups.
provided for in 351 of the Constitution, as a medium
r National Language: Indians can’t accept a foreign
of expression for all the elements of the composite
language as a national language. As Hindi has
culture of India.
already been accepted as the Official language,
r The establishment, in non-Hindi States, of colleges imposition can provide its national status.
and other institutions of higher education which
Demerit
use Hindi as the medium of education should be
r Hindi Imperialism: Many of the critics believed
encouraged.
that imposition of one common language for India
r Incidentally, the NPE 1986 made no change in the as an imposition of Hindi imperialism for others
1968 policy on the three-language formula and the non-Hindi speaking
promotion of Hindi and repeated it word to word.
r Against Diversity of this country: As India is
Hindi as Official Language a diverse country with many languages, the
Merit imposition of Hindi as a common language will
r Common Identity for India: As India is the country break the beauty of diversity in languages.

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 41 Public Service

curriculum used to determine the merit of the candidates

Introduction
was such that Indians had little chance of competing
Public service is one that the Government provides to successfully unless they were wealthy and attended a
people living within its jurisdiction, either directly (via school in England.
the public sector) or by financing private provision The Indian National Congress's constant demand
of services. It includes the services provided, the since its inception in 1885 has been to increase the
interactions that occur as a result of those services, and number of Indians in the ICS. As a result, the curriculum
the grievance redressal that occurs as a result of those was first broadened, and then, in 1922, a parallel
services. examination was introduced in India. As a result, at the
All aspects of daily life that the Government provides, time of the power transfer, half of the members of the
such as health care, education, infrastructure, and law ICS were Indians.
and order, fall under the purview of public service. All India Services
Historical Background of Public Service r All-India services are those that are shared by both
The British Government established civil services the Central and state Governments. Members of
with the primary goal of strengthening the British these services hold top positions (or key posts) in
administration in India. During this time, the role of both the Centre and the states, and they serve them
civil services was to expand British interests and was alternately.
entirely regulatory. They later took on developmental r There are currently three all-India services:
roles as well. m Indian Administrative Service (IAS)
The Indian Civil Service (ICS) has a modern history m Indian Police Service (IPS)
that begins with the East India Company. m Indian Forest Service (IFS)
Lord Wellesley recognized the need for higher r The Indian Civil Service (ICS) was replaced by IAS in
education, expertise, and character in empire 1947, and the Indian Police (IP) was replaced by IPS,
administrators as early as AD 1800. As a result, he both of which were recognized as All-India Services
established the College of Fort William, to which every by the Constitution. The Indian Forest Service was
employee of the Company was to be sent for a three- established in 1966 as the third all-India service.
year course of education comparable to that of the r The All-India Services Act of 1951 empowered the
universities of Oxford and Cambridge. Central Government to make rules in consultation
While accepting the proposal, the directors decided with the state Governments to govern the
that the college should be located in England. Following recruitment and service conditions of All-India
that, for the next half-century or so, all civil servants were Service members.
educated and given special training at the East India r Members of these services are recruited and trained
College in Haileybury, England. The method of recruitment by the central Government before being assigned
was through a competitive examination, but the method to different states for work. They are members of
of entry was through the Directors' nomination. various state cadres, with the Centre lacking its
The ICS examination was held in London, and the own cadre in this regard.

364
r They serve on deputation for the Central Government r Railway Personnel Service
and then return to their respective states when their The majority of the aforementioned cadres of Group
term expires. The Central Government hires these A Central services have corresponding Group B services.
officers on deputation through the well-known Group C Central services are made up of clerical
tenure system. personnel, while Group D is made up of manual
r It should be noted that, regardless of how they are personnel.
divided among different states, each of these All- Thus, officers in groups A and B are gazetted,
India Services forms a single service with common whereas officers in groups C and D are not.
rights and status, as well as uniform pay scales
In terms of prestige, status, pay, and emoluments,
across the country. The respective state Government
the Indian Foreign Service (IFS) is the highest central
pays their salaries and pensions.
service.
r The Central and State Governments jointly control
In fact, despite being a central service, it competes
All-India Services. The central Government has
with All-India Services in terms of position, status, and
ultimate control, while the state Governments have
pay scales. It is ranked second only to the IAS, and its pay
immediate control. Only the Central Government
scale is higher than the IPS.
can take disciplinary action (impose penalties)
State Services
against these officers.
The term "State Services" refers to state-level civil
r In the Constituent Assembly, Sardar Vallabhbhai service. In India, not one, but two distinct sets of civil
Patel was the main proponent of all-India services. services operate at the state level.
As a result, he became known as the "Father of All-
One of these is the civil service, which is recruited
India Services."
by state Governments to handle a wide range of
Central Services Governmental activities at the state level. These are
The Central Government's Civil Services include both referred to as State Civil Services or simply State
established services known as central civil service and Services.
civil posts created outside of established services, which
The All-India Civil Services is the second set of civil
comprise the general central service.
services that serves the states. The number of services
There are currently 62 Group ‘A’ Central services. available in each state varies. The following services are
Among them are: provided by all states:
r Central Engineering Service r Civil Service
r Central Health Service r Police Service
r Central Information Service r Forest Service
r Central Legal Service r Agricultural Service
r Central Secretariat Service r Medical Service
r Indian Audit and Accounts Service r Veterinary Service
r Indian Defence Accounts Service r Fisheries Service
r Indian Economic Service r Judicial Service

r Indian Foreign Service r Public Health Service

r Educational Service
r Indian Meteorological Service
r Co-operative Service
r Indian Postal Service\Indian Revenue Service
(Customs, Excise and Income Tax) The civil service (also known as the administrative
service) is the most prestigious of all state services.
r Indian Statistical Service
Provisions
r Overseas Communication Service
Part XIV of the Constitution (Articles 308 to 314)

365
 contains provisions for All-India Services, Central a reasonable opportunity to be heard on those
Services, and State Services. charges.
r Article 309 empowers the Parliament and State r However, the second safeguard (holding inquiry) is
Legislatures to regulate the recruitment and not available in the following three cases:
conditions of service of individuals appointed to m Where a civil servant is dismissed or removed
public services and positions under the Centre and or reduced in rank on the ground of conduct
the states, respectively. which has led to his conviction on a criminal
r Under this provision, the Parliament or State charge; or
Legislatures can impose 'reasonable' restrictions m Where the authority empowered to dismiss or
on public servants' Fundamental Rights in the remove a civil servant or to reduce him in rank
interests of integrity, honesty, efficiency, discipline, is satisfied that for some reason (to be recorded
impartiality, secrecy, neutrality, anonymity, in writing), it is not reasonably practicable to
devotion to duty, and so on. hold such inquiry; or
r Such limitations are outlined in conduct rules such m Where the President or the Governor is satisfied
as the Central Services (Conduct) Rules, Railway that in the interest of the security of the state, it
Services (Conduct) Rules, and so on. is not expedient to hold such inquiry
r Article 310 states that members of the defence r Article 312 specifies provisions for All-India
services, the civil services of the Centre, and the All- Services.
India Services, as well as those holding military or
m The Parliament can create new All India
civil posts under the Centre, hold office during the
Services (including an all-India judicial service),
President's pleasure.
if the Rajya Sabha passes a resolution declaring
r There is an exception to this general rule of dismissal that it is necessary or expedient in the national
at pleasure. The President or the Governor may interest to do so. Such a resolution in the Rajya
(in order to secure the services of a person having Sabha should be supported by two-thirds of
special qualifications) provide for the payment of the members present and voting. This power
compensation to him in two cases: of recommendation is given to the Rajya Sabha
m if the post is abolished before the expiration of to protect the interests of states in the Indian
the contractual period, or federal system.
m if he is required to vacate that post for reasons m Parliament can regulate the recruitment and
not connected with misconduct on his part. conditions of service of persons appointed to
r Notably, such a contract can be made only with a All-India Services. Accordingly, the Parliament
new entrant, that is, a person who is not already a has enacted the All-India Services Act, 1951 for
member of a defence service, a civil service of the the purpose.
Centre, an All-India Service or a civil service of a m The services known at the commencement
state. of the Constitution (that is, January 26, 1950)
r Article 311 imposes two limitations on the as the Indian Administrative Service and the
aforementioned "doctrine of pleasure." In other Indian Police Service are deemed to be services
words, it protects civil servants from arbitrary created by Parliament under this provision.
dismissal by providing two safeguards: m The All-India Judicial Service should not include

m A civil servant may not be dismissed or removed any post inferior to that of a district judge. A
by an authority that is subordinate to the one law providing for the creation of this service
that appointed him. is not to be deemed as an amendment of the
m A civil servant may not be dismissed, removed, Constitution for the purposes of Article 368.
or reduced in rank unless he has been informed r Though the 42nd Amendment Act of 1976 made
of the charges against him and has been given the provision for the creation of All India Judicial

366
 Service, no such law has been made so far. Criticism
r Article 312 A (added by the 28th Amendment Act r Public services consume a large portion of
of 1972) empowers Parliament to change or revoke Government budgets, but increased spending is not
the terms of service of persons appointed to the always matched by improved outcomes.
civil service of the Crown in India prior to 1950. r It has been observed on several occasions that
r Article 313 deals with transitional provisions, corruption can disrupt public services, resulting in
stating that until otherwise provided, all laws in money intended for books, teachers, dispensaries,
force prior to 1950 and applicable to any public medical supplies, and infrastructure being siphoned
service would continue to be in effect. off by officials or private contractors.
r The 28th Amendment Act of 1972 repealed Article r The lack of improvements in provider agencies, as
314, which provided for the protection of existing well as the limited 'exit' options available to people,
officers of certain services. continue to make it difficult for the most vulnerable
Significance of Public Services members of society to access these services.
r In developing societies, public services are an r Following independence, the Indian Civil Service
important tool for political modernization. or bureaucracy as a whole gradually evolved into
r Prior to electoral democracy, there must be a a corruption-ridden system characterized by
well-knit and well-organized public bureaucratic nepotism and corruption.
structure. r The system frequently suffers from excessive
r It ensures the stability and continuity of the centralization issues, and policies and action plans
Government system. are far removed from the needs of citizens. As a
r Civil servants, particularly All India Service officials, result, there is a mismatch between what is required
contribute to fostering a sense of belonging to a and what is provided.
single nation, India. r It is reasonable to conclude that corruption and
r Civil servants must commit to building an inclusive nepotism in Indian bureaucracy have both political
society in which the poor and vulnerable are also and administrative ramifications. It has become an
beneficiaries of economic growth. integral part of the system's structure.
r It has a role to play in undoing years of colonial r Red-tapism is a major impediment to India's
misrule. It promotes a welfare-oriented approach. socio-economic development. Because of these
r It functions as an unbiased development agent in a roadblocks, development-related projects are
heterogeneous, fissiparous, pluralistic, and diverse delayed, affecting the development process.
society. It advocates for democratic socialism. r The mass transfer of bureaucrats that occurs with a
r It works to ensure the rule of law by balancing change in Government in the modern era imposes
political direction and legal provisions. It is useful certain tendencies on bureaucrats to seek the
for conflict resolution, change management, and patronage and favour of politicians.
crisis management.

367
 42 Political Parties

r Parties even offer access to Government machinery

Introduction
and welfare schemes. Local party leaders act as
India has more than 2300 political parties, being the a string between the citizens and Government
largest democracy in the world. The presence of so many officials.
political parties signify a healthy ruling system for the r Political parties shape public opinion. With the
nation. It gives people a choice to make a more effective help of the Government, they get to understand the
and rational decision. ongoing issues in the nation.
A political party is an association of people having Need of Political Parties
a common perspective, principles and aims, concerning The functions that political parties perform demonstrate
the political system. The party members work together that democracies cannot exist without them. If there
to win elections and form the ruling Government, by were no political parties, then:
getting their candidates elected in the assembly. In order i. All election candidates would run as independents.
to do so, they nominate candidates before the election They can't promise the people any major policy
and campaign for them to win the election. India has changes. No one will be in charge of the country's
a multi-party system, where there are three or more administration.
parties which have the capacity to form Government ii. Only representative democracy can function in
separately or in a coalition. large societies. Political parties have evolved into
Role of Political Parties a clearing house for different points of view on
r The motive of political parties is to add people who various issues, which they then present to the
hold similar point of view about the Government. Government.
Even though many people are associated with the Party System
same party, they don’t exactly share the same beliefs There are three types of party systems:
but the core beliefs about how the Government
r One-Party System
should run, remain the same.
r Two-Party System and
r The parties hold true to a core set of beliefs which
r Multi-Party System
enables the voters to understand the basic beliefs of
one of the nominated candidates. One-Party System
r There is no competition in this system. The lone
r Opposition parties are responsible for keeping an
party nominates the candidates and the voters have
eye on the activities of the Government. They spend
only two choices:
much of their time investigating the ruling party’s
policies and activities which help us, citizens, to be m Not to vote at all or
informed of both sides of an issue. Although voters m write ‘yes’ or ‘no’ against the name of the
tend to get tired of the debates and arguments, it candidates nominated by the party.
helps to present balanced information. r This system has been popular in Communist
r People in the same political party remain connected countries and other authoritarian regimes e.g.,
with each other through their party. A party can China, North Korea and Cuba. This system was also
link its members at different levels of Government- prevalent in USSR till Communism collapsed.
local, state or national. This plays a uniting role for Two-Party System
all the members. r In a Two-party system power shifts between two

368
 major, dominant parties. In this system, to win Recognised Parties:
elections, the winner has to get maximum number Are given a unique symbol – only the official candidates
of votes, but not necessarily a, majority of votes. of that party can use that election symbol. It comprises
The smaller parties usually merge with the bigger of two types of Parties
parties or they drop out of elections. r National
r This parliamentary system prevails in Great r Regional/State Parties
Britain and Canada, in which only two parties
National Parties
hold significant numbers of seats. Supporters of
There are currently 8 National Parties in India. A
this system believe that this prevents dangers of
registered party is recognised as a national party if it
fragmentation (too many parties winning seats
fulfils any one of three given conditions-
from different constituencies) and the Government
r If a party wins 2% of seats in the Lok Sabha from at
can run smoothly.
least 3 different States, or
Multi-Party System
r At a general election to Lok Sabha, the party polls
Multi-Party System is the most common type of party
6% of votes in four States along with 4 additional
system.
Lok Sabha seats, or
r In this system, three or more parties have the
capacity to gain control of the Government r A party is recognised as a State Party in at least four
separately or in coalition. States.

r When no party gains a majority of the legislative Currently, the national parties are:
seats in multi-party parliamentary system, then r Bhartiya Janata Party,
several parties join forces and form a coalition r Indian National Congress,
Government. r Communist Party of India (Marxist),
Supporters of this system point out that it allows r Communist Party of India,
more point of views to be represented in the Government. r Bahujan Samajwadi Party,
Critics of this system point out that multi-party system
r Nationalist Congress Party,
sometimes leads to political instability.
r All India Trinamool Congress,
What is an Alliance?
When several parties in a multi-party system join hands r National People’s Party.
for the purpose of contesting elections and winning State Parties/ Regional Parties
power, it is called an alliance or a front. Owing to rich cultural diversity, India’s political fabric
India, in 2004 and 2009, had three such Alliances has seen the necessity of state parties which can cater
for Parliamentary elections: to the interests of their particular states, and are often
critical to make or break alliances in the Lok Sabha
r National Democratic Alliance
elections.
r The United Progressive Alliance and
A political party in order to become a state party
r Left Front.
should fulfil at least one of the following criteria:
Famous Political Parties in India
r A party should win at least 1 seat in the Lok Sabha
India has a multi-party system where political parties
for every 25 states or any fraction thereof allocated
can be classified as national, state or unrecognized
to that State by the Election Commission or
parties. The Election Commission accords the status of
the parties and keeps on reviewing it from time to time. r A party should win at least 3% of the total number of
All the parties have to be registered with the Election seats or at least 3 seats in the Legislative Assembly
Commission. A special and unique election symbol or
is allocated to every registered party by the Election r The party should win at least 6% of the total number
Commission. of valid votes that are polled in the Lok Sabha or

369
 Legislative Assembly, in addition to 1 Lok Sabha There are certainly many benefits of being a recognized
seat and 2 Legislative Assembly seats or state or national party.
r If the party fails to win any seat in the State general Reserved Party Symbol:
elections to the Legislative Assembly of the State r The biggest advantage of being recognized is
or the Lok Sabha, the party will still be eligible for getting the reserved symbol. If a political party is
recognition if it secures at least 8% of the total valid recognized as a state party, it becomes entitled to
votes polled in the State. the exclusive allotment of its reserved symbols to
m Currently, there are 53 State parties in India. the candidates set up by the said party in states in
Some of the famous state-level political parties which it is recognized. It can also allocate symbols
are Jharkhand Mukti Morcha, Forward Bloc, All to its candidates in other states and UTs, by fulfilling
India Anna Dravida Munnetra Kazhagam, Aam the conditions mentioned.
Admi Party. r If it’s a National Party, it exclusively allocates its
According to the Election Commission of India, symbol to the candidates set up throughout the
there are over 2000 political parties in India, which country.
include eight "recognized national" and more than 50 One Proposer for filing nomination:
"recognized state" parties r Recognized parties need only one proposer for
Evolution of Regional Party filing the nomination and they also get two sets of
r Over the last four decades, the number and strength electoral rolls free of cost at the time of the revision
of regional parties has expanded. This has made of rolls.
the Parliament of India politically more diverse. r Their candidates also get one copy of the electoral
Regional political parties have emerged to fulfil roll free during General Elections.
regional aspirations.
Broadcast Facilities:
r No one national party is able to secure on its own r They are also entitled to broadcast or telecast
a majority in Lok Sabha. As a result, the national facilities over Akashwani or Doordarshan during
parties are compelled to form alliances with State elections.
parties. The regional political parties started playing
r The telecast and radio facilities can be best used to
a crucial role in coalition politics since 1989.
address the people and convey their message to the
r It is because of the regional political parties that our masses.
party-system has been federalized. The Centre has
Star Campaigners:
begun to address their problems and respond their
r Political parties, be it recognized or unrecognized,
aspirations through accommodation. The evolving
can nominate Star Campaigners during elections.
nature of our party system has strengthened the
cooperative trends of our federal system. r A recognized National or State Party can have a
maximum of 40 Star Campaigners while registered
Unrecognized Parties
unrecognized parties can have a maximum of 20
An unrecognized party is one which does not have
Star Campaigners.
the privilege of contesting elections on a symbol of its
own. This party has to choose one symbol out of the r The travel expenses of these star campaigners are
list of ‘free symbols’ issued by the poll panel during an not included in the election expense accounts of
election. There are more than hundred unrecognized candidates of these parties. They also get subsidized
political parties in India. land for their party offices at the national or state
Example: Akhil Bhartiya Gorkha League, Amra capitals.
Bangali, Hindustani Awam Morcha, Jammu and Kashmir Additional benefits:
Apni Party etc r The State parties also entail the right to participate
Advantages of being recognized as a State or National in the all-party meeting convened by Election
Party Commission or State or Central Government.

370
r The candidates set up by these parties are arranged citizens can contribute toward making important
alphabetically and presented on the top of the changes that will benefit everyone.
ballot paper followed by candidates of registered Ensures distribution of information
unrecognized parties and lastly, the independent r The presence of political parties ensures that
candidates. the necessary information about governance is
r If the candidate nominated by a recognized party available to those who want it.
dies before the polling begins, then the elections Encourages people to become politically active
in that constituency are adjourned and that party r Everyone has the capability of casting a vote. It takes
is given an additional time of a week to nominate no special skill to cast a vote but a political party
another candidate. works hard to ensure that people are informed
Advantages of Political Parties about the ongoing issues and can make empowered
The advantages of being a political party are mentioned decisions about the future of their society and
below: Government.
An average person can make a change Helps decisions be made quicker
r It might be difficult for a single person to create r When people can come together in a party and
change. By having political parties, individuals get debate over the ideas and policies, they can create
to work together with people who share the same legislation faster than if they were to do it alone. This
opinion about specific issues. This gives rise to a seems to be an advantage if the party is managed
collective voice rather than an individual one, which properly.
makes it easier to convey to people what is being Creates checks and balances
offered. r In India, with multiple parties, the parliamentary
Growth of personal and professional networks system is designed so as to bring politicians from
r People are subconsciously attracted to others who major political parties to negotiate over legislation
have similar values, beliefs and perspectives. When and policies. The goal of multiple party systems is to
someone joins a political party, they may discover create a balance of power.
many people who share the same perspective. Disadvantages of Political Parties
This process can form many new friendships and The disadvantages of being a political party are listed
hence form a meaningful and potentially profitable below:
network of people who can make the world a better
Might have selfish propaganda
place.
r Political parties might carry vested interests and
Makes the process faster self-centred propagandas that benefit only a few
r Political parties help to shape the conversations and are not in the interest of the whole nation.
around governing because they group the This damages the country’s political, social and
conversations into various categories that are economic infrastructure. When a certain group pays
appropriate. If you ask 100 different people their heed to its members rather than the entire country,
opinion, there is a possibility that they come up it disturbs the nation’s peace and order.
with the same answer if their political views are the
Could create factionalism
same.
r A country with multiple party systems could create
r When this group process is simplified, the governing a difference of ideologies. It could create animosity
process can operate quickly and efficiently. between parties, encourage jealousy and develop
Encourages political participation occasional riots which would lead the public to
r As a democratic nation, India allows its citizens form factions as it would be hard for all of them to
to freely express their opinions and to support agree on certain levels.
the political party that shares their interest and
Could ruin individuality
opinion. Unlike China, India supports the public to
r Parties may expect its members to support and
participate and cast their votes at the polls. Hence,

371
 share their views blindly without questioning the purpose of these parties is usually only about
decision-makers. They might not allow them to enforcement of laws and expectations without
criticize their opinions or decisions. So, this would taking the public’s consent into consideration
prohibit the members from forming individual or being politically active from an individualized
opinions on certain issues because they are perspective. If a political party has too much
expected to follow what their party is telling them. strength or leverage, they can become abusive.
Could encourage corruption May prioritize themselves
r It is often seen that parties distribute money to r Indian political parties and candidates spent
nearly $8.65 billion in India’s 2019 general election
the electorate to secure votes for their candidates
according to a report by the Centre for Media
during elections. Aside from that, their candidate
Studies making it the most expensive election ever,
may be making abundant promises about delivering anywhere. The incumbent Bhartiya Janata Party
food, electricity, shelter and all the necessities only was the biggest spender, accounting for 45-50% of
to persuade the voting population into electing the total expenditure.
them. But once they are elected into office, they r This figure is almost twice the amount, estimated
might never deliver to their promises. They might by the Centre for Media Studies for the last general
also place those who supported them during the polls in 2014. Just one election in India at those
election, in higher positions in exchange for their figures is enough to solve its hunger issues for
votes. an entire year. This depicts that the goal of most
Can become abusive political parties is to prioritize themselves so that
r Every country may not be a democracy. Communism they can be in power. For them, these costs are
and dictatorships also have political parties. The investments.

372
 Elections - Election Laws
43 & Electoral Reforms
the seven Union Territories have their own assemblies
Introduction
– Legislative Assembly. The thirty-one Assemblies have
The concept of democracy as visualised by the 4120 Constituencies.
Constitution pre-supposes the representation of the To facilitate the process of elections, a country has
people in Parliament and State legislatures by the to be divided into several constituencies. Constituency
method of election. The Supreme Court has held that It is territorial area from where a candidate contests
democracy is one of the inalienable basic features of elections The task of delimiting constituencies is
the Constitution of India and forms part of its basic generally performed by the Delimitation Commission
structure. consisting of five serving or retired judges of the
The Constitution of India adopted a Parliamentary Supreme Court and the Chief Election Commissioner
form of government. Parliament consists of the President who is its ex-officio member. All secretarial assistance
of India and the two Houses — Rajya Sabha and Lok (at all levels, national, state, district) is provided to the
Sabha. India, being a Union of states, has separate state Delimitation Commission by the Election Commission.
legislatures for each state. State legislatures consist of The Delimitation Commission is constituted by the
the Governor and two Houses — Legislative Council and Government from time to time
Legislative Assembly — in six states, namely, Andhra Preparation of Electoral Rolls
Pradesh, Telangana, Bihar, Karnataka, Maharashtra Each constituency has a comprehensive list of voters. It
and Uttar Pradesh, and of the Governor and the state is known as the Electoral Roll, or the Voters’ List. The
Legislative Assembly in the remaining 22 states. Commission prepares the Electoral Roll for Parliament
Apart from the above, three out of the seven Union as well as Legislative Assembly elections. The Electoral
Territories, namely, National Capital Territory of Delhi Roll of every constituency contains the names of all the
and Puducherry and Jammu & Kashmir, also have their persons who have right to vote in that constituency. The
Legislative Assemblies. electoral roll is also revised from time to time generally
The Election Commission of India is an autonomous before every general election, by-election and mid-term
constitutional authority responsible for administering election in the constituency.
Union and State election processes in India. The body 1. General Election: Election to constitute a new Lok
administers elections to the Lok Sabha, Rajya Sabha, Sabha or Assembly is called General Election.
State Legislative Assemblies in India, and the offices of 2. Bye-Election: If at any time there is a mid-term
the President and Vice President in the country. vacancy due to the death or resignation of a member
Powers and Functions of the Election Commission either in Lok Sabha or Legislative Assembly only
The primary function of the Election Commission is to one seat falls vacant. The election for that seat is
conduct free and fair elections in India. For this purpose, known as bye-election.
the Election Commission has the following functions: 3. Mid-term Election: If the Lok Sabha or State
Delimitation of Constituencies Assembly is dissolved before completion of five
The country has been divided into 543 Parliamentary years and the election is held to constitute new Lok
Constituencies, each of which returns one MP to the Sabha or new State Assembly, etc. is called mid-
Lok Sabha, the lower house of the Parliament. The term election.
Federal Democratic Republic of India has thirty-five The revision is carried out from house to house by the
constituent units. All the twenty-eight States and two of

373
 enumerators appointed by Election Commission and all directions issued by the Election Commission. He/she
eligible voters are registered. A person can be registered also accepts withdrawal of the candidates and announces
as a voter if he/she fulfils the following conditions: the final list. He/she supervises all the polling booths,
1. He/she is a citizen of India. votes are counted under his/her supervision and finally
2. He/she is 18 years of age. result is announced by him/her. In fact, the Returning
Officer is the overall in charge of the efficient and fair
3. He/she is resident of the constituency.
conduct of elections in the concerned constituency.
Recognition of Political Parties
Presiding Officers
One of the important functions of the Election
Every constituency has a large number of polling
Commission is to recognise political parties as all India
(National) or State (Regional) Political Parties. If in a booths. Each polling booth on an average caters to about
general election, a particular party gets four percent a thousand votes. Every such booth is under the charge
of the total valid votes polled in any four states it is of an officer who is called the Presiding Officer. He/she
recognised as an all India (National) Party. If a party supervises the entire process polling in the polling booth
gets four percent of the total valid votes in a state, it is and ensures that every voter gets an opportunity to cast
recognized as a State or regional party. vote freely. After the polling is over, he/she seals all the
ballot boxes and deliver them to the Returning Officer.
Allotment of Symbol
Political Parties have symbols which are allotted by the Polling Officers
Election Commission. For example, Hand is the symbol of Every Presiding Officer is assisted by three to four
the Indian National Congress, Lotus is the symbol of the polling officers. They check the names of the voters in
Bhartiya Janata Party (BJP) and Elephant is the symbol the electoral roll, put indelible ink on the finger of the
of Bahujan Samaj Party. These symbols are significant voter, issue ballot papers and ensure that votes are
for the following reasons: secretly cast by each voter.
1. They are a help for the illiterate voters who cannot Indelible ink – This ink cannot be removed easily.
read the names of the candidates. It is put on the first finger of the right hand of the voter
2. They help in differentiating between two candidates so that a person does not come again to cast vote for the
having the same name. second time. This is done to avoid impersonation.
Officers on Election Duty Electoral Process
To ensure that elections are held in free and fair Elections in India are conducted according to the
manner, the Election Commission appoints thousands of procedure laid down by law. The following process is
polling personnel to assist in the election work. These observed.
personnel are drawn among magistrates, police officers, Notification for Election
civil servants, clerks, typists, school teachers, drivers, The process of election officially begins when on the
peons etc. Out of these there are three main officials who recommendation of Election Commission, the President
play very important role in the conduct of free and fair in case of Lok Sabha and the Governor in case of State
election. They are Returning Officer, Presiding Officer Assembly issue a notification for the election. Seven days
and Polling Officers. are given to candidates to file nomination. The seventh
Returning Officer day is the last date after the issue of notification excluding
In every constituency, one Officer is designated as Sunday. Scrutiny of nomination papers is done on the
Returning Officer by the Commission in consultation with day normally after the last date of filing nominations.
the concerned State government. However, an Officer The candidate can withdraw his/her nomination on the
can be nominated as Returning Officer for more than one second day after the scrutiny of papers. Election is held
constituency. All the nomination papers are submitted to not earlier than twentieth day after the withdrawal.
the Returning Officer. Papers are scrutinised by him/her Filing of Nomination Structure of Government
and if they are in order, accepted by him/her. Election A person who intends to contest an election is required to
symbols are allotted by him/her in accordance with the file the nomination paper in a prescribed form indicating

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his name, age, postal address and serial number in the All India Radio (AIR) and the Doordarshan to do their
electoral rolls. The candidate is required to be duly campaigning. The total free time is fixed by the Election
proposed and seconded by at least two voters registered Commission which is allotted to all the political parties.
in the concerned constituency. Every candidate has to Campaigning stops 48 hours before the day of polling.
take an oath or make affirmation. These papers are then A number of campaign techniques are involved in the
submitted to the Returning Officer designated by the election process. Some of these are:
Election Commission. i. Holding of public meetings.
Security Deposit ii. Distribution of handbills, highlighting the main
Every candidate has to make a security deposit at the issues of their election manifesto (election
time of filing nomination. For Lok Sabha every candidate manifesto is a document issued by political party.
has to make a security deposit of Rs.10,000/- and for It is declaration of policies and programmes of the
State Assembly Rs. 5,000. But candidates belonging to
party concerned.
Scheduled Castes and Scheduled Tribes are required
iii. Door to door appeal by influential people in the
to deposit Rs. 5,000/– for if contesting the Lok Sabha
party.
elections and Rs. 2,500/– for contesting Vidhan Sabha
elections. The security deposit is forfeited if the iv. Broadcasting and telecasting of speeches by various
candidate fails to get at least 1/6 of the total valid votes political leaders.
polled. Model Code of Conduct
Scrutiny and Withdrawal During the campaign period the political parties and the
All nomination papers received by the Returning contesting candidates are expected to abide by a model
Officer are scrutinised on the day fixed by the Election code of conduct evolved by the Election Commission
Commission. This is done to ensure that all papers of India on the basis of the consensus among political
are filled according to the procedure laid down and parties. It comes into force the moment schedule of
accompanied by required security deposit. The election is announced by the Election Commission. The
Returning Officer is empowered to reject a nomination code of conduct is as follows:
paper on any one of the following grounds: (i) Political Parties and contesting candidates should
(i) If the candidate is less than 25 years of age. not use religious places for election campaign.
(ii) If he/she has not made security deposit. (ii) Such speeches should not be delivered in a way
(iii) If he/she is holding any office of profit. to create hatred among different communities
belonging to different religions, castes and
(iv) If he/she is not listed as a voter anywhere in the
languages, etc.
country.
(iii) Official machinery should not be used for election
The second day after the scrutiny of nomination
work.
papers is the last date for the withdrawal of the
candidates. In case that day happens to be a holiday or (iv) No new grants can be sanctioned, no new schemes
Sunday, the day immediately after that is fixed as the last or projects can be started once the election dates
day for the withdrawal. are announced.
Election Campaign (v) One cannot misuse mass media for partisan
Campaigning is the process by which a candidate tries coverage.
to persuade the voters to vote for him rather than Scrutinization of Expenses
others. During this period, the candidates try to travel Though the Election Commission provides free access
through their constituency to influence as many voters for a limited time to all the recognised National and
as possible to vote in their favour. State parties for their campaign, this does not mean that
In the recent times, the Election Commission has political parties do not spend anything on their elections
granted all the recognised National and Regional Parties, campaign.
free access to the State-owned electronic media, the The political parties and the candidates contesting

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 election spend large sum of amount on their election In 2004 General Elections, EVMs were used all over
campaign. However, the Election Commission has the the country for Lok Sabha elections. The sealed ballot
power to scrutinise the election expenses to be incurred by boxes or EVMs are shifted in tight security to the counting
the candidates. There is a ceiling on expenses to be incurred centre. Counting takes place under the supervision of
in Parliamentary as well as State Assembly elections. the Returning Officer and in the presence of candidates
Every candidate is required to file an account of and their agents. If there is any doubt about the validity
his election expenses within 45 days of declaration of or otherwise of a vote, decision of the Returning Officer
results. In case of default or if the candidate has incurred is final.
(expenses) more than the prescribed limit, the Election As soon as counting is over, the candidate securing
Commission can take appropriate action and the the maximum number of votes is declared elected (or
candidate elected may be disqualified and his election returned) by the Returning Officer.
may be countermanded. Re-poll
Polling, Counting and Declaration of Result If at the time of polling, a booth is captured by some
In order to conduct polling, large number of polling anti-social elements, the Election Commission may
order holding of re-poll in either the entire constituency
booths are set up in each constituency. Each booth is
or particular booths.
placed under the charge of a Presiding Officer with
the Polling Officers to help the process. A voter casts Countermanding of Election.
his/her vote secretly in an enclosure, so that no other If a duly nominated candidate belonging to a recognised
person comes to know of the choice he/she has made. It party dies at any time after the last date of nomination
is known as secret ballot. and before the commencement of polling, the Election
Commission orders countermanding the elections. This
After the polling is over, ballot boxes are sealed in
is not just postponement of polling. The entire election
the presence of agents of the candidates. Agents ensure
process, beginning from nominations is initiated afresh
that no voter is denied right to vote, provided the voter
in the concerned constituency.
turns up comes within the prescribed time limit.
Elections Laws in India
Electronic Voting Machines (EVMs)
There are various laws related to the conduct of elections
The Election Commission has started using tamper
in India. The elections for both the centre and the
proof electronic voting machines to ensure free
state are conducted differently but the laws governing
and fair elections. Each machine has the names and
the conduct of elections of the Parliament and State
symbols of the candidates Structure of Government in
Legislature are almost the same. These are as follows:
a constituency.
The Representation of the People Act, 1950
One Electronic Voting Machine (EVM) can
This act provides for the allocation of seats in Lok
accommodate maximum of 16 candidates. But if the
Sabha and Legislative Assemblies, delimitation of
number exceeds 16, then more than one EVM may be
constituencies, qualifications of voters, manner of
used. If the number of candidates is very large, ballot
filling the seats of Rajya Sabha by Union Territory
papers may be used.
representatives etc.
The voter has to press the appropriate button to
r The Election Commission should appoint or
vote for the candidate of his/her choice. As soon as the
nominate a Chief electoral officer for each and every
button is pressed, the machine is automatically switched
off. Then comes the turn of the next voter. The machine state with the consultation of the State Government.
is easy to operate, and with this the use of ballot paper r Appointment of district level election commissioners
and ballot boxes is done away with. should also be done by the Election Commission
When the machine is used, the counting of votes with the consultation of the state government.
becomes more convenient and faster. The EVMs were r The Central government has the power to make any
used in all the seven Lok Sabha constituencies in Delhi in rules under this Act with the consultation of the
1999, and later in all the State Assembly constituencies. Election Commission.

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r This Act bars the power of the Civil Courts to question as the Conduct of Election Rules (Amendment), 2013
the legality of any action of electoral registration and the Conduct of Election Rules (Amendment),
officer regarding revision of electoral roll. 2016.
The Representation of the People Act, 1951 Election Symbols Order, 1968
This Act provides for the conduct of elections to the This is the order which empowers the Election
Parliament and State Legislatures, qualifications, Commission to recognise political parties and allot them
disqualifications, various offences, various doubts and symbols. The commission also has the power to decide
disputes etc. Following are some of the rules laid down disputes arising among rival groups or sections of a
under this Act: political party who is claiming the symbol. Under this,
r Everybody or association who wants to stand only the Election Commission has the power to decide
as a candidate in the elections have to get itself all the issues arising on any disputes or a merger.
registered with the Election Commission of India. It Presidential and Vice-Presidential Rules, 1974
is on the Election Commission to register a political This Act is particularly made for the conducting of
party or not after considering various relevant elections for both the President and Vice-President. This
factors and particulars. act consisted of 41 sections in total and provides the
whole process for conducting elections such as:
r Any change in the name and address of the political
party should be communicated to the Election r Voting by electors under preventive detention
Commission. r Adjournment of the poll in emergencies
r Place and time for counting of votes
r A person cannot represent the people in either Lok
Sabha or Rajya Sabha if he is not eligible to vote. r Maintenance of secrecy of voting
r Recounting
The Registration of Electors Rules, 1960
r The rules contained in this Section are related to r Production and inspection of election papers
the preparation of electoral rolls, their periodic r Copies of return of election
updating and revision. Section 41 of this Act repealed the Presidential and
r This act also provides the process for registration Vice-Presidential Elections Act, 1952.
of eligible voters and the issuance of voter ID cards Shortcomings of Indian Electoral System
with the photograph of the voter. There has been universal appreciation of the Indian
r The inclusion of eligible and registered voters in the electoral system. People have hailed the manner in
electoral rolls and the exclusion of non-eligible and which elections have been conducted in India. But there
non-existing voters are included in this act. are its weaknesses. It has been seen that in spite of the
r The election commission prepares the electoral efforts of Election Commission to ensure free and fair
rolls during the elections which contain the name, election, there are certain shortcomings of our Electoral
photograph and the other particulars of the voter system. Some notable weaknesses are discussed below:
because of the rules mentioned under this Act. Money Power Structure of Government
Conduct of Election Rules, 1961 The role of unaccounted money in elections has become
r This Act deals with each and every stage of conduct a serious problem. The political parties collect funds
of elections in detail. It holds the issuing of writ from companies and business houses, and then use
notification for conducting elections, filing of this money to influence the voter to vote in their favour.
nominations, scrutiny of nominations, withdrawal The business contributions are mostly in cash and are
of candidates. not unaccounted. Many other corrupt practices are
r This rule also governs the counting of votes and also adopted during election such as bribing, rigging
taking of polls. In the end, this rule also categorises or voters’ intimidation, impersonation and providing
the constitution of the Houses on the basis of the transport and conveyance of voters to and fro the polling
results. stations. The reports of liquor being distributed in poor
areas are frequent during election.
r Many amendments have been made in this rule such

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 Muscle Power Electoral Reforms Pre-2000
Earlier the criminals used to support the candidates by Lowering of Voting Age:
intimidating the voter at a gunpoint to vote according r The 61st Amendment Act to the Constitution
to their direction. Now they themselves have come reduced the minimum age for voting from 21 to 18
out openly by contesting the elections leading to years.
criminalisation of politics. As a result, violence during Deputation to Election Commission:
elections has also increased.
r All personnel working in preparing, revising and
Caste and Religion correcting the electoral rolls for elections shall
Generally, the candidates are given tickets by the political be considered to be on deputation to the Election
parties on the consideration whether the candidate can Commission for the period of such employment,
muster the support of numerically larger castes and and they shall be superintended by the Election
communities and possesses enough resources. Even Commission.
the electorates vote on the caste and communal lines.
Increase in the number of proposers and the
Communal loyalties of the voters are used at the time of
security deposit:
propaganda campaign.
r The number of electors required to sign as
Misuse of Government Machinery proposers in the nomination papers for elections to
All the political parties do not have equal opportunity the Rajya Sabha and the State Legislative Councils
in respect of access to resources. The party in has been raised to 10% of the electors of the
power is always in advantageous position then the constituency or ten such electors, whichever is less
opposition parties. There is widespread allegation chiefly to prevent frivolous candidates. The security
that the party in power accomplishes misuse of deposit has also been hiked to prevent non-serious
government machinery. All these features lead to candidates.
violence, booth capturing, rigging bogus voting,
Electronic Voting Machine (EVMs):
forcible removal of ballot papers, ballot boxes burning
of vehicles, etc. which result into loss of public faith in r First introduced in 1998 during the state elections
elections. of Delhi, Madhya Pradesh and Rajasthan, EVMs are
used widely now as they are Full-proof, efficient
Electoral Reforms
and a better option in terms of the environment.
In order to restore the confidence of the public in
Disqualification on conviction for violating the
the democratic electoral system, many electoral
National Honours Act, 1971:
reforms have been recommended from time to time
by Tarkunde Committee and Goswami Committee r This shall lead to disqualification of the person for
which were particularly appointed to study and report 6 years from contesting to the Parliament and the
on the scheme for Electoral Reforms in the year 1974 State Legislatures.
and 1990 respectively. Out of these recommendations r Restriction on contesting from more than 2
some have been implemented. In fact, it was under the constituencies: A candidate cannot contest from
chairmanship of the then Chief Election Commissioner, more than 2 constituencies.
T.N. Sheshan, that Election Commission initiated many Death of a contesting candidate:
more measures to ensure free and fair elections. Some r Previously, the election was countermanded on
of the reforms which have been implemented so far are the death of a contesting candidate. In the future,
as follows: no election will be countermanded on the death of
Electoral reforms undertaken by authorities can be a contesting candidate. If the deceased candidate,
broadly divided into two categories: however, was set up by a recognized national or
r Pre-2000 and state party, then the party concerned will be given
r Post-2000 an option to nominate another candidate within
7 days of the issue of a notice to that effect to the
Both of these are discussed in the section below:
party concerned by the Election Commission.

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 Prohibition on sale of liquor: Awareness Creation:
r No liquor or other intoxicants shall be sold or given r The Government decided to observe January
or distributed at any shop, eating place, or any other 25th as ‘National Voters Day’ to mark the Election
place, whether private or public, within a polling Commission ’s founding day.
area during the period of 48 hours ending with the
r Political parties need to report any contribution in
hour fixed for the conclusion of poll.
excess of Rs 20,000 to the Election Commission for
Time limit for bye-elections: claiming income tax benefit.
r Bye-elections to any House of Parliament or a State
r Declaring of criminal antecedents, assets, etc. by
Legislature will now be held within six months of
the candidates is required and declaring false
the occurrence of the vacancy in that House
information in the affidavit is now an electoral
r The period of campaigning has been reduced
offence punishable with imprisonment up to 6
It is prohibited by law to go to or near a polling months or fine or both.
booth bearing arms. This is punishable by imprisonment
VVPAT – Voter Verifiable Paper Audit Trail
for up to 2 years.
r From 2013, a new system has been added in the
On poll days, employees of organisations get a paid
EVM called Voter Verifiable Paper Audit Trail. A
holiday and violation of this is punishable by a fine.
printer is attached with the EVM and kept into
Electoral Reforms Post 2000 Voting Compartment which prints Sr. No., Name
The electoral reforms target the election process in the and Symbol of the candidate for whom a voter
country. The list of such electoral reforms is given below: has voted. This printed slip remains exposed for
Ceiling on election expenditure: 7 seconds under a transparent window and gets
r At present, there is no limit on the amount a political cut automatically and falls into a drop box which
party can spend in an election or on a candidate. remain sealed.
But the Commission has put a cap on individual None Of the Above (NOTA) Option in EVMs
candidates’ spending. For the Lok Sabha elections, r In its judgment, the Supreme Court has directed
it is Rs. 50 – 70 lakhs (depending on the state they that there should be a “None of the Above” (NOTA)
are contesting the Lok Sabha seat from), and Rs. 20 option on the ballot papers and EVMs. The Court has
– 28 lakhs for an assembly election. directed that the Commission should implement
Restriction on exit polls: it ‘either in a phased manner or at a time with the
r The Election Commission issued a statement before assistance of Government of India’.
the 2019 Lok Sabha elections saying that exit poll r On the Balloting Unit, below the name of the last
results could be broadcast only after the final phase candidate, there will now be a button for NOTA
of the elections were over. This was done to avoid option so that electors who do not want to vote for
prospective voters being misguided or prejudiced any of the candidates can exercise their option by
in any manner. pressing the button against NOTA.
Voting through postal ballot: r The Commission takes all steps to bring this to the
r In 2013, the Election Commission decided to expand knowledge of voters and all other stakeholders and
the ambit of postal ballot voting in the country. to train all field level officials including the polling
Previously, only Indian staff in missions abroad and personnel about the NOTA option. Similarly, NOTA
defence personnel in a limited way, could vote via provision is also there for the Postal Ballots.
postal ballots. Now, there are 6 categories of voters Affidavits of Candidates – All Columns to be filled
who can use the postal ballot: service voters; special in
voters; wives of service voters and special voters; r In pursuance of the judgment dated 13th September,
voters subjected to preventive detention; voters on 2013 passed by the Supreme Court, which among
election duty and Notified voters. other things makes it obligatory for the Returning

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 Officer “to check whether the information required of India.
is fully furnished at the time of filing of affidavit r Purpose of Electoral Bonds is to bring in
disclosing their criminal antecedents, assets, transparency into political funding in India. The
liabilities and qualifications with the nomination system of electoral bonds addresses the distress
paper”, the Commission has issued instructions that of donors continues to be unknown to the general
in the affidavit to be filed along with the nomination public otherwise to rival political parties. This
paper, candidates are required to fill up all columns. reform is anticipated to encourage superior
r If any column in the affidavit is left blank, the transparency and answerability in political funding,
Returning Officer will issue a notice to the candidate at the same time as preventing the prospective
to file the affidavit with all columns filled in. After generation of Black Money.
such notice, if a candidate fails to file affidavit r A donor is required to pay the amount — say Rs
complete in all respect, the nomination paper will 10 lakh — via a cheque or a digital mechanism
be liable to be rejected at the time of scrutiny. The (cash is not allowed) to the authorised SBI branch.
Chief Electoral Officer has been directed to brief The donor can then give this bond (just one, if the
all Returning Officers about the judgment of the denomination chosen is Rs 10 lakh, or 10, if the
Supreme Court and the Commission’s instructions. denomination is Rs 1 lakh) to the party or parties of
Photos of Candidates on EVMs and Ballot Papers their choice.
r To prevent confusion among voters in seats where Concerns with respect to Electoral Bonds:
namesakes are running for office, the Election Even though the Electoral Bond Scheme acts as
Commission ordered that in any election held after a measure against the old under-the-table donations
May 1, 2015, the ballot papers and EVMs feature an since bonds are through cheques and digital paper trails
image of the candidate along with his or her name of transactions, there are many key provisions of the
and party emblem. scheme that are causes of concern.
r The first elections in which candidate images r Anonymity: There is no obligation on the part of
appeared on ballots were the June 2015 by-elections the donor (individual or corporate) or the political
for six seats in five states. party to reveal where the donations come from.
r The Commission has observed that there are r Transparency: It will also go against transparency,
several instances of candidates contest from the a fundamental principle in political financing.
same seat who have the same or similar names. Companies will no longer have to declare the names
Although suitable suffixes are applied to candidate of the political parties to which they have donated,
names where there are two or more candidates so shareholders won’t know where their money has
with the same name, the Commission believes that gone.
additional steps are necessary to prevent confusion There are possibilities of making electoral bonds
in voters' minds during the voting process. a convenient channel for black money. The following
There is no doubt that India needs drastic poll provisions are controversial in that sense:
reforms but still the fact remains that Indian elections r Doing away with the 7.5% cap for corporate
have been largely free and fair and successfully donations.
conducted. It gives the country the proud distinction of
r No need for companies to reveal their political
being the largest democracy in the world.
contributions in their profit and loss statements.
Electoral bonds
r The requirement that companies should be in
r Electoral Bonds are an instrument through which
anyone can donate money to political parties. Such existence for 3 years before making political
bonds, which are sold in multiples of Rs 1,000, Rs contributions undermines the scheme’s intent. This
10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore, can be makes it easy for dying, troubled or shell companies
bought from authorised branches of the State Bank to make an unlimited donation anonymously.

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r Since the bonds are bought through the State Bank r The above suggestion of setting up of election fund
of India (SBI), the government is always in a position has been given by Indrajit Gupta Committee.
to know who the donor is. This asymmetry of Stance of Election Commission
information threatens to favour whichever political r The political parties can choose to encash such
party is ruling at the time. bonds within 15 days of receiving them and fund
The Election Commission of India had asked that their electoral expenses. On the face of it, the
the limit for reporting the donations (which is Rs 20000) process ensures that the name of the donor remains
should be brought down to Rs 2000, but instead, the anonymous.
government has reduced the maximum contribution by r The Election Commission, in its submission to
cash to Rs 2000. the Standing Committee on Personnel, Public
It could become a convenient channel for business Grievances, Law and Justice in May 2017, had
to round-trip their cash parked in tax havens to political objected to the amendments in the Representation
parties for a favour or advantage granted in return for of the People (RP) Act, which exempt political
something parties from disclosing donations received through
electoral bonds.
Drawbacks of Electoral Bonds
The RPA (Representation of People Act 1951) r It described the move as a “retrograde step”.
although makes it mandatory for the political parties to Voting Behaviour in India
disclose donations over Rs 20,000, there is no law that India is the largest democracy in the world. All citizens
prohibits these parties from disclosing donations below of 18 years or above of the age have the right to vote
Rs 20,000 but the parties lack political will hence do not in Indian elections. Despite the fact that nearly half of
disclose them are illiterates, they have in the past acted wisely
and in a mature way to elect their representatives. They
r The political parties have regularly delayed
have already participated in several elections to Lok
submitting the audited reports to the ECI. As per
Sabha, State Legislative Assemblies and a large number
ADR between 2011-2015
of bye-elections. At the first general elections in India
m BJP has delayed the submission on an average in 1952, some election studies were conducted. In the
by 182 days beginning, these studies lack methodological rigour and
m Congress by 166 days sophistication. However, with the increased use of the
m NCP by 87 days survey method and observation technique has improved
r Worse is the fact that some political parties do not the quality of election studies in India.
even file the returns. There is little to show that Voting Behaviour in India and its Determinants:
action has been against these parties who have In India following main political and socioeconomic
either delayed or not filed the returns. factors which act as determinants of voting behaviours
r The political parties can continue to collect the funds in our Democratic system:
through cheque and digital payments (but will have Education:
to file returns to the Income Tax authority). r It is often seen that the educated people take more
Reform that can be done interest in casting their vote as compared to the
r As per T. S. Krishnamurthy (Former CEC), the illiterates because they know the importance of
Government will not know how many times, the their right to vote and consider the use of this right
bond has been sold in the market before being a national duty. They know that they can elect the
encashed by the political party. So, it would be government of their choice by executing their right
better if an Election Fund is set up by the Election to vote. Thus, education affects the voting behaviour
Commission and donations to various political of person and with the spread of education the ratio
parties are collected by ECI (with compulsory PAN of the use of franchise is also increasing and during
number). the election of the 16th Lok Sabha, the percentage

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 of voting had gone up to 66.38% which was quite the leftist parties.
high in comparison to previous elections. Populist slogans:
Charisma: r Sometimes different political parties raise the
r One important factor of voting behaviour is populist slogans according to the need of the time
Charisma. It means the exceptional quality of a and affect the thinking of the voters. For example,
factor and overrides group elements leader that congress raised the slogan of, ‘Garibi Hatao’ in 1971.
becomes a source of attraction and reverence for During the 16th Lok Sabha election, the slogans like
the people in large numbers in an opposite sense, ‘Abki baar, Modi Sarkar.
it also means a source of fear to many people Personal Contacts:
because they do not speak or dare to speak against r Personal contacts of the candidate and voters also
the wishes of a powerful leader. Fortunately, in our affect the voting behaviour of the voters. Most of
country, the constructive aspect of charisma has the voters get influenced by personal visits of the
had its role at the time of the election. candidate and they cast their vote in their favour.
r The slogan of "Garibi Hatao" performed miracles in Besides this, the relatives and friends of the
the 1971 elections, the personality of Mrs. Gandhi candidate also cast their votes in favour of them
after India's miraculous victory in the Bangladesh because of their personal relationship.
war had the same wonderful impact on the mind Party Loyalty:
of the electorate in the State Assembly elections of r In India, many of the people are attached to their
1972. The image of Jayaprakash Narayan had the different political party and they always cast their
same effect in the elections of 1977. The personality vote in favour of the party rather than the candidate.
of Modi, BJP won the election of 2014. They can’t change their party loyalty even when
Caste: they know that their candidate would not be going
r Caste continues to be a determining factor in voting to win, such voters are known as committed voters.
behaviour in India. It has deep roots in society and Religion:
constitutes an important basis for social relations at r Religion also plays an important role in Indian
all levels. Despite the adoption of various provisions politics. Many political parties have been formed
that prohibit action and discrimination on the on the basis of religion in India. At the time of
basis, the caste continues to be a determining factor elections, different political parties beg votes in the
in political behaviour. The politicization of caste name of religion. They raise the slogan 'Religion
and casteism in politics has been a well-known is in danger' and instigate the religious feelings
reality of the Indian political system. The political of the people. While distributing party tickets the
parties in India, without exception, in formulating religion of the voters and candidates is given due
their policies, programs and electoral strategies consideration. It is often seen that the voters cast
always keep the caste factor in mind. Rural voters their votes in favour of the candidates of their own
pay special attention to the caste of the candidate. religion on being influenced by the religious feeling.
Despite the adoption of democratic values that Language:
conceive a society free from casteism, the caste r India is a multi-lingual state. The language
continues to characterize politics in India. also serves as a factor in voting behaviour. The
Ideological Commitment: organization of states on a linguistic basis fully
r The ideological commitment of the voters also reflects the importance of language as a factor of
effects the voting behaviour most of the voters are politics in India. There have been problems in states
crazy about particular ideology and they keep in like that of the status of one particular language in
view the ideology of the candidate and the political that state, or relating to the quality of the status of a
party at the time of casting their votes. This fact is language of a state. Since people have an emotional
applicable to the voters who are the supporter of attachment with their languages, they easily get

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 influenced whenever there comes up any issue playing a big role in influence the voters mind and
relating to language. Linguistic interests always actions. In 1977 they united to defeat the forces
influence voting behaviour, for example, D.M.K authoritarianism and 1980; they again to defeat
secured the vote of the people in Tamil Nadu in this united nonperformer.
1967 and 1971 by making anti-Hindi propaganda. Factionalism:
Influence of Money: r The Indian Political life from the village level to
r India is a poor country with a large number of people the national level is characterized by factionalism.
living below the poverty line. Money as such plays a Neither political party nor even the cadre-based
crucial role in determining the behaviour of votes in BJP and the two communist parties is free from
India. A rich candidate or party has more chances of factionalism. It is at work, as Rajni Kothari points
winning the elections always. At the time of elections, out, at all level of the congress. It has adversely
the poor are allured by the glitter of the money and affected the strength of the congress is a political
their votes are purchased. In this way, the process of, party with a glorious past, a weak present and not a
‘give a note and take vote’ goes on in India. bright future. Other parties are also suffering from
Performance of the Party in Power: factionalism. The voters are getting disappointed
r Each Political party contests elections on the basis of with some of the political parties because of their
an election manifesto, and after coming to power, it inability to overcome factionalism. They are moving
is expected to fulfil the promises made therein. Good to regional parties which, because of their small
or bad performance of the ruling party, just on the organizational network and limited operational
basis of the election promises made and promises based are relatively less affected by factionalism.
actually fulfilled influence the basic behaviour of Public Esteem of the Candidate:
the people in a big way. In 1989 in India, when the r A candidate report with the people with a
Congress (I), which got a thumping majority in 1984 constituency or his known qualities or contribution
elections, could not win even a simple majority in in any value spread of activity always acts as a
the very next election held in 1989 mainly because factor of voting behaviour. In addition to his party
of its failure to perform successfully. In 1989, the loyalty or opinion on various issues and problems,
Congress Party and in 1991 the Janata Dal failed to the voter, while making his choice, always takes
win because of their failures to exercise power and into account the nature and level of his association
maintain their political stabilities. The main reason with the candidate. A positive image of a party’s
for this is a corresponding increase in the number candidate is a source of popular support for the
of “floating voter” or “switchers” who are mostly party. A voter prefers to vote for a candidate who is
young citizens from an educated upper middle class approachable and who can help him anyway.
and are ready to transfer their support from one to Election Campaign:
another party on the basis of their performance.
r Each party launches election campaigns on a large
Mass Literacy: scale to influence the voters in its favour. Use
r Mass literacy has been another determinant of of mass gatherings, street gatherings, personal
voting behaviours in India. Due to this weakness contacts, posters, poster war, movie star speeches,
of the people that political parties, communal TV and radio broadcasts, newspaper advertising,
groups, and militant outfits, are in a position to pamphlets, processions, and propaganda is made
exploit the sentiments of the people in the name of to win votes, particularly floating votes. Polling
caste, religion, region and another such factor. The campaign plays a role in influencing the choice of
votes of the illiterate constitute a big proportion the voters. The ruling party always try to create an
of the votes polled and hence it plays a big role in impression through its election campaign that it
determining the outcomes of elections. However, has a chance to win can earn some additional votes
despite this fact, the common sense and maturity as several voters try to stand beside what they
born out of the past experience have also been perceive to be a winning side.

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 44 Coalition Government

making process. Another option is 'joint governance,'

Introduction
which is based on power distribution.
The term ‘coalition’ is derived from the Latin world r The coalition's operations are not governed by any
‘coalitio’ which means ‘to grow together’. Thus, legal staff.
technically, coalition means the act of uniting parts
r Coalition politics is defined by pragmatism rather
into one body or whole. Politically, coalition means an
than ideology.
alliance of distinct political parties
r Because electorates learn about the common
Coalition usually occurs in modern parliaments
manifesto, the pre-poll partnership is seen as fairer
when no single political party can muster a majority of
and more advantageous.
votes. Two or more parties, who have enough elected
members between them to form a majority, may Coalitions have formed in India before and after
then be able to agree on a common programme that elections. The pre-election coalition is useful because it
does not require too many drastic compromises with gives a common platform for all parties to lure voters
their individual policies and can proceed to form a using a shared manifesto. Constituents are supposed
Government. to be able to share political power and manage the
Features of Coalition Government Government through a post-election union.
The following are the characteristics of a Coalition Merits of Coalition Government
Government: r The Government's operations take into account a
r A coalition is formed with the purpose of gaining variety of interests.
monetary or psychological gain. r A coalition Government serves as a conduit
r A coalition system's core idea is based on the simple for meeting the expectations and resolving the
fact of temporary convergence of specific interests. grievances of various groups, allowing for the
accommodation of diverse interests in the operation
r Because coalition players and groups can split and
of the Government.
form new ones, coalition politics is not static but a
dynamic business. r India is a very diverse nation. There are several
ethnic groups, castes, languages, cultures, and faiths.
r Compromise is the hallmark of coalition politics,
This indicates that the coalition Government is
and hard dogma has no place in it.
more representative in nature and more accurately
r A coalition operates on the basis of a minimal
captures the general electorate's viewpoint.
program, which may or may not be perfect for each
r It consists of various political parties, each of which
coalition partner.
has its own ideology or goals. However, all coalition
r Coalition politics is defined by pragmatism rather members must agree to follow Government policies.
than ideology. Principles may have to be laid aside A coalition Government thus produces consensus-
in order to make political concessions. based politics.
r The goal of a coalition adjustment is to gain control r The federal structure of the Indian political system
of the situation. is strengthened by coalition politics. This is so that
r There are two notions at the heart of coalition a coalition Government may respond better to local
governance. One is what is known as 'common requests.
governance,' which is based on a shared decision- r The likelihood of dictatorial governance is

384
 decreased under a coalition Government. This is coalition partners undercuts the cabinet's status
because a single political party no longer controls and role in the operation of the political system.
how the Government runs. The coalition's whole
r The coalition Government's smaller constituents
membership takes part in making decisions.
could end up acting as the "king-maker." They ask
Demerits of Coalition Government
for more from the Parliament than simply strength.
r They are prone to erratic behaviour. The coalition's
demise is caused by disagreements among its r When making national decisions, the leaders of
constituents. regional parties include local information. They
threaten to leave the coalition if the coalition's
r The parliamentary form of government is based on
the idea that the Prime Minister should lead. Since central executive does not follow their demands.
the coalition partners must be consulted before the r The Coalition Governments' members do not take
Prime Minister makes any significant decisions, this responsibility for administrative mistakes and
principle is limited under a coalition Government. omissions. They could assign blame in order to get
r By acting as the "Super-Cabinet," the steering out of their individual and group obligations.
committee or coordination committee of the

385
 45 Anti-Defection Law

the Constitution by the way of Tenth schedule of

Introduction
the Constitution by the 52nd Amendment in the
Anti-defection law was introduced by the 52nd Constitution in 1985. These provisions provide for
Constitutional Amendment Act, 1985 to prevent the the disqualification of Member Parliaments under
defections from one political party to another in lieu Article 102(2) and Member Legislative Assembly
of certain gains by members of parliament and state under Article 191(2). Under these articles of the
legislatures, it led to introduction of 10th Schedule. It Constitution the legislators can be disqualified if
was further refined by 91st Constitutional Amendment they are disqualified under the Tenth Schedule.
Act, 2003. History and need for Anti-Defection Laws
Law of Anti-Defection r There is a well-known phrase of “Aaya Ram Gaya
Anti-Defection Laws basically provide for the grounds Ram” which relates back to 1967, when Gaya Lal,
under which a Member Legislative Assembly or a who was a congress leader fortnight went from
Member Parliament can lose his privileges as an Elected congress to Janata Party and then back to Congress
Representative of a party and hence can be disqualified and then again to Janata Party.
from the party. These Grounds have been provided r In the journal titled “Aaya Ram-Gaya Ram: The
under the Tenth Schedule of the Constitution. The Politics of Defection” by the Indian Law Institute
Indian Judiciary has time and again intervened through in 1979, it was stated that between the period of
various judicial pronouncements and has tried to lay 1967 to 1969 more than 1500 party defections and
down several guidelines through precedents in order to 313 independent candidate defections had taken
promote better politics and healthy competition among place in the 12 states of the country. It is estimated
the parties. that till 1971, more than 50% of the legislature had
The law of Anti Defection states that if a Member switched from one party to another.
Parliament or Member Legislative Assembly: r A common term which is used is “Horse Trading”
r Voluntarily gives up the membership of the party. of the legislators which in simple terms means
shifting of legislators from one party to another by
r Votes or abstains for voting or defies any party
monetary means. There can be several reasons for
whip.
shifting of parties.
r Joins any other party.
r All of these circumstances were impelling the
The member will be disqualified from the party government to create a statutory provision in the
and he will not hold the position of a nominated or an Constitution which would create punitive sanctions
elected individual under the party. Thus, he will lose his for those who were found guilty of such conduct.
position as a Member of Parliament or an MLA. 10th Schedule – Provisions under Anti-Defection Law
Introduction of Anti-Defection framework in Indian r The Tenth Schedule includes the following
Constitution provisions with regard to the disqualification of
r The bill for Anti- Defection was proposed by Rajiv MPs and MLAs on the grounds of defection. Grounds
Gandhi and it was approved unanimously by both for disqualification:
the houses and came into effect on 18 March 1985, m If an elected member gives up his membership
after receiving the assent of the President. of a political party voluntarily.
r The Anti-Defection provision was added into m If he votes or abstains from voting in the House,

386
 contrary to any direction issued by his political r The court held that while deciding a question under
party. the 10th Schedule, the presiding officer should
m If any member who is independently elected
function as a tribunal.
joins any party. r In this case the Supreme Court laid down grounds
m If any nominated member joins any political for review of the decision of the speaker.
party after the end of 6 months. m If it is in violation of Constitutional mandate.

r The decision on disqualification questions on the m If it is made in a mala-fide way.

ground of defection is referred to the Speaker or m If the decision of Speaker is irrational.
the Chairman of the House, and his/her decision is m If it is in non-compliance with rules of natural
final. justice and unreasonable.
r All proceedings in relation to disqualification under r However, it held that there might not be any judicial
this Schedule are considered to be proceedings in intervention until the Presiding Officer gives his
Parliament or the Legislature of a State as is the order.
case. r A good example to quote is from 2015 when the
Exceptions Hyderabad High Court declined to intervene after
r Disqualification under the purview of Anti- hearing a petition which alleged that there had
Defection shall not apply in case of split/merger of been a delay by the Telangana Assembly Speaker
1/3rd or more of the members of a party to another in taking action against a member under the anti-
party. defection law.
m It shall also not apply in the event of a merger Time Limit within which the Presiding Officer should
i.e., 1/3rd of the members or more merge with decide
any other party. r There is no time limit as per the law within which
m This exception where 1/3rd members was the Presiding Officers should decide on a plea for
however revised by the way of 91st Amendment disqualification.
in the Constitution and after which it the r The courts also can intervene only after the officer
provision of split was removed. has made a decision, and so the only option for the
m Now it requires 2/3rd members of a party can petitioner is to wait until the decision is made.
merge with another party. This amendment r There have been several cases where the Courts
revised these rules as there were mass have expressed concern about the unnecessary
defections by legislators and this amendment delay in deciding such petitions.
brought change in the requirements from 1/3rd r In a few cases, there have been situations where
members of party to 2/3rd members and by members who had defected from their political
removing the provision of split from the party. parties continued to be House members, because
r All of these circumstances were impelling the of the delay in decision-making by the Speaker or
government to create a statutory provision in the Chairman.
Constitution which would create punitive sanctions r There have also been instances where opposition
for such conducts. members have been appointed as a Ministers in
Decision of the Presiding Officer subject to Judicial the Government while still being members of their
Review original political parties in the State Legislature.
r Originally, the Act provided that the presiding Courts interpretation of the law while deciding on
officer’s decision was final and could not be related matters
questioned in any court of law. But, in Kihoto r The Supreme Court has interpreted different
Hollohan case (1992), the Supreme Court declared provisions of the law.
this provision as unconstitutional on the ground r The phrase ‘Voluntarily gives up his membership’
that it seeks to take away the jurisdiction of the has a wider suggestion than resignation.
Supreme Court and the High Courts.

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 r The law says that a member can be disqualified if certain quarters for strengthening and amending
he ‘voluntarily gives up his membership’. However, the Anti-defection Law as contained in the Tenth
the Supreme Court has interpreted that without a Schedule, on the ground that these provisions
formal resignation by the member, the giving up of have not been able to achieve the desired goal of
membership can be inferred by his conduct. checking defections. The Tenth Schedule has also
r In other judgments, members who have publicly been criticised on the ground that it allows bulk
expressed opposition to their party or support for defections while declaring individual defections
another party were considered as having resigned. as illegal. The provision for exemption from
Recently, the Chairman of the Upper House of disqualification in case of splits as provided in the
Parliament disqualified two Janata Dal leaders from Tenth Schedule has, in particular, come under severe
the house based on the allegation that was indulging criticism on account of its destabilising effect on the
in anti-party politics, and they had “voluntarily” Government.
given up their membership of the party (which is r The Committee on Electoral Reforms (Dinesh
not synonymous to resignation as per the Supreme Goswami Committee) in its report of 1990, the
Court orders). Law Commission of India in its 170th Report
Anti-Defection Law affect legislators’ ability to make on “Reform of Electoral Laws” (1999) and the
decisions National Commission to Review the Working of the
r The anti-defection law aims to maintain a stable Constitution (NCRWC) in its report of 2002 have,
government by ensuring that the legislators do inter alia, recommended omission of the provision
not switch sides. However, this law also limits a of the Tenth Schedule pertaining to exemption from
legislator from voting according to his conscience, disqualification in case of splits.
judgement and electorate’s interests. r The NCRWC was also of the view that a defector
r This kind of a situation hinders the oversight should be penalised for his action by debarring
functions of the legislature over the government, him from holding any public office as a minister
by making sure that members vote based on the or any other remunerative political post for at
decisions taken by the party leadership, and not least the duration of the remaining term of the
based on what their constituents would like them existing Legislature or until, the next fresh elections
to vote for. whichever is earlier.
r Political parties issue directions to MPs on how to r The NCRWC has also observed that abnormally
vote on most issues, irrespective of the nature of the large Councils of Ministers were being constituted
issue. by various Governments at Centre and states and
r Anti-defection does not provide sufficient incentive this practice had to be prohibited by law and that
to an MP or MLA to examine an issue in-depth and a ceiling on the number of ministers in a state or
ponder over it to participate in the debate. the Union Government be fixed at the maximum of
r The Law breaks the link between the elected 10% of the total strength of the popular House of
legislator and his elector. the Legislature.
r Importantly, several experts have suggested that Provisions in 91st Amendment Act
the law should be valid only for those votes that To limit the number of the Council of Ministers, prohibit
determine the stability of the Government (passage defectors from holding public office, and tighten the
of the annual budget or no-confidence motions). anti-defection statute, the 91st Amendment included
91st Amendment Act the following provisions:
Reasons r The overall number of ministers in the Central
The reasons for enacting the 91st Amendment Act Council of Ministers, including the Prime Minister,
(2003) are as follows: should not exceed 15% of the Lok Sabha’s total
strength.
r Demands have been made from time to time in
r Any member of either House of Parliament who

388
 is disqualified from serving as a minister due to r It reduces political corruption, which is a critical
defection is likewise barred from serving as a first step in combating the country’s other forms of
minister. corruption.
r The total number of ministers in a State Council, r It strengthens democracy by establishing political
including the Chief Minister, cannot exceed 15% of stability and guaranteeing that the government’s
the Legislative Assembly’s total strength. The total legislative programs are not harmed by a defecting
number of ministers of a state, including the Chief member.
Minister, shall not be less than 12. r It makes Members of Parliament more accountable
r A member of either House of a State Legislature and faithful to the parties with which they were
who is disqualified from serving as a minister due aligned at the time of their election, as it is a belief
to defection is likewise prohibited from serving as a that many believe that party allegiance plays a
minister. significant role in their election success.
r A member of either House of Parliament or the Concerns regarding Anti-Defection Law
House of a State Legislature from any political party r The Anti-defection statute has failed to prevent
who is disqualified for defection from any political defections in the past. This is due to the fact that
party is also barred from holding any remunerative it does not distinguish between disagreement and
political office. defection. For the sake of party loyalty, it limits
r Any office under the Central Government or a State the legislator’s right to dissent and freedom of
Government where the salary or remuneration for conscience.
such office is paid out of the concerned government’s r The distinction drawn between individual and
public revenue; collective defection is completely irrational. Even
r The exemption from the disqualification clause in the distinction it creates between independent and
the Tenth Schedule (Anti-Defection Act) has been nominated members is illogical. If the former joins
abolished. This means that the divides no longer a political party, he is disqualified, whereas the
shield the defectors. latter is permitted to do so.
Significance of Anti-Defection Law r It encourages horse-trading of legislators, which
r It improves the stability of Parliament and State clearly contradicts the values of a democratic
Legislatures by preventing legislators from system.
switching parties.

389
 46 Pressure Groups

may remain unheard.

Introduction
r Pressure groups provide expertise to the
Pressure groups have become a very important part of government with various information which
an administrative system. These groups try to pressurise might be applicable to issues such as indigenous
the administrative and political system of a country reconciliation.
either to ensure that their interests are promoted or to r Pressure groups promote opportunities for political
see that at least their interests are not relegated to the participation without joining a political party.
background. No system can function effectively without
Advantages of Pressure Groups
taking their viewpoint into consideration.
Promotion of authentic freedom of expression
In developing countries like India where there is a r By joining an interest group as an individual, one
scarcity of various resources on the one hand and acute can add his/her ideas to the collective expression
poverty and deprivation on the other, the pressure on of everyone who shares the same opinion. It is like
administrative system is bound to be very heavy. The joining a worker’s union. This advantage gives one
pressure groups arise in different forms in different an opportunity to make changes that will impact
walks of life. They provide a stabilising mechanism and ones life in some way.
form a crucial component of the structural equilibrium Exploration of new perspectives
which means that they perform the system maintenance r Interest groups give all of us the chance to look
function. There can be another side of the phenomenon at new thoughts and perspectives which makes it
where the pressure on the system may reach a easier for us to see beyond our echo chambers. When
breakdown point. legislation goes through the preparation process,
The term ‘Pressure Groups’ originated in the USA the drafters look at the impact on any specific and
which means a group of people who are organised identifiable group. Then, there is the consideration
actively for promoting and defending their own interest. of what will happen with the population as a whole.
Their activism influences public policy. In India, the When one is a part of this process, one gets to see
pressure groups have been active even during the what others think about these specific subjects.
colonial period. The All-India Trade Union Congress was Balancing the impact of governance
the first pressure group of India. r By coming together to speak with a collective voice,
Role of Pressure Group one gets the chance to hold the powerful few in
The role of the pressure groups is very important for the the positions of authority to be accountable for
administrative, legislative, executive, bureaucratic, and their actions. The interest groups serve a system
political system. They are like a living public behind the of checks and balances. One gets the chance to
parties. Their role is indirect yet effective. The various limit their governance by speaking to them about
roles of pressure groups are as follows: issues and even vote them out of office if they aren’t
r Pressure groups play as a vital link between satisfactory enough.
the government and the governed. They keep Usable platforms that facilitate change
governments more inclined towards their interest. r One along with the like-minded people around can
r Pressure groups help in expressing the views and create opportunities to put enough pressure in the
needs of the minority communities who otherwise decision-makers in society to do something in oner

390
 interest. Policies, rules, regulations can be moulded those who are wealthy.
if a group of voices speak about it because it is r Both sides in Indian politics tend to blame each other
pretty challenging to ignore a group of voices with for the ills of society. Any group can assimilate a
the same voice rather than a single person who is small number of people and sound like the majority
trying hard to be heard.
which can come under the banner of disadvantage.
Emphasis on fairness at the local level
Offensive views
r Fairness can be seen as a difficult concept to balance
r There is a democratic right to freedom of speech
an on-ground reality. There are chronic problems of
and expression. Some pressure groups still have
poverty, illness, food scarcity, corruption and many
unsecular and offensive views which stir up
more which affect people seriously. This deprives
them of having a chance at all the opportunities communal tensions. These groups whether small
fairly. By the time they can do something about it, or large in number, tend to get a disproportionate
their chances are long gone. amount of attention from the media.
r Interest groups work toward equalizing income r E.g. RSS, Bajrang Dal etc.
opportunities in society. They support each Opposition
member to create a platform where everyone can r There can be direct opposition between pressure
start working towards a similar goal. groups which can probably lead to some serious
Creates opportunities for becoming community civil disruptions.
leaders r An example can be taken from the incident of
r Interest groups promote leadership in a community clashes between ABVP and JNU Students Union.
by influencing people to become part of an
Disobedience
organized movement that can communicate the
r Pressure groups can sometimes become aggressive
need for specific changes required. In modern
times, one doesn’t have to get out of their home and get involved in militancy to get their demands
and contribute to it. Sharing information on social heard. They can pull out publicity stunts and
media and making a few phone calls can also do the protests for attention which can disrupt public life
work. and property.
Access to more information r E.g., JKLF and ULFA
r When one joins an interest group, then one has Governing systems can change
access to their resources which might lead one to r When an interest group grows large enough, then
get a chance to speak with elected officials directly their activities can alter the way a nation governs
instead of sending them a letter. itself. This disadvantage is problematic because
Lobbying for new legislation anytime it forces everyone outside that core group to
r Interest groups play an important role in spreading either conform to the “new normal” or risk the
information. With all the data, they make efforts to consequences of being on the outside.
turn it into usable laws, rules, or regulations. Every
Unstable
interest group tries to influence elected officials to
r Pressure groups lack stability and commitment. This
move toward desired legislative changes.
might result in their loyalties changing according to
Disadvantages of Pressure Group changing political situations.
Loudest voices usually win Non-legitimate power-
r One thing about interest groups is that size doesn’t r Leaders of pressure-groups are not elected like
matter. The ones who are more active usually conventional politicians; therefore, they can’t be
generate more attention and get to play a part in held publicly accountable. The influence they exert
modern politics. One can say that money speaks is not democratically legitimate. Very few pressure
loudly in this arena, so there may be advantages to groups work on the basis of internal democracy.

391
 There has been a trend for pressure groups r All India Kisan Sabha, Bhartiya Kisan Union, etc
to be dominated by a small number of senior Student’s Organisations
professionals. r Various unions have been formed to represent the
Famous Pressure Groups in India student community. However, these unions, like the
There are pressure groups in every country with India trade unions, are also affiliated to various political
being no exception. They influence decision making in parties.
the order of their interest. India has a number of pressure r Akhil Bhartiya Vidyarthi Parishad (ABVP), All India
groups who carry different aims and objectives. Students Federation (AISF), National Students
Business Groups Union of India (NSUI)
r This category includes pressure groups which are Religious Groups
formed by the employees of a particular occupation r The organisations based on religion have come
for the protection of their interests. Big business to play an important role in Indian politics. They
houses always have the most organized and powerful
represent the narrow communal interest.
pressure groups at their command. This has to
r Rastriya Swayam Sevak Sangh (RSS), Vishwa Hindu
do with their vast outlay of resources, personnel,
close links with elite groups in government, media, Parishad (VHP), Jamaat-e-Islami, etc.
administration and opposition parties. Caste Groups
r Federation of Indian Chamber of Commerce and r Like religion, caste has been an important factor
Industry (FICCI), Associated Chamber of Commerce in Indian politics. The competitive politics in many
and Industry of India (ASSOCHAM), Federation of states of the Indian Union is in fact the politics of
All India Food-grain Dealers Association (FAIFDA), caste rivalries: Brahmin versus Non-Brahmin in
etc Tamil Nadu and Maharashtra, Rajput versus Jat in
Trade Unions Rajasthan, Kamma versus Reddy in Andhra, Ahir
r The trade unions voice the demands of the industrial versus Jat in Haryana, Baniya Brahmin versus
workers. They are also known as labour groups. Patidar in Gujarat. Kayastha versus Rajput in Bihar,
A peculiar feature of trade unions in India is that Nair versus Ezhava in Kerala and Lingayat versus
they are associated either directly or indirectly with Okkaliga in Karnataka
different political parties. r Some of the caste-based organisations are Harijan
r All-India Trade Union Congress (AITUC), Indian Sevak Sangh, Nadar Caste Association, etc
National Trade Union Congress (INTUC), Hind Linguistic Groups
Mazdoor Sabha (HMS), Bhartiya Mazdoor Sangh r Language has been so important factor in Indian
(BMS) politics that it became the main basis for the
Professional Groups reorganisation of states. The language along with
r These are associations that raise the concerns caste, religion and tribe have been responsible
and demands of doctors, lawyers, journalists for the emergence of political parties as well as
and teachers. Despite various restrictions, these pressure groups.
associations pressurise the government by various r Tamil Sangh, Andhra Maha Sabha, etc
methods including agitations for the improvement Tribal Groups
of their service conditions. r The tribal organisations are active in Madhya
r Indian Medical Association (IMA), Bar Council of Pradesh, Chhattisgarh, Bihar, Jharkhand, West
India (BCI), All India Federation of University and Bengal and the North Eastern States of Assam,
College Teachers (AIFUCT) Manipur, Nagaland and so on. Their demands range
Agrarian Groups from reforms to that of secession from India and
r The agrarian groups represent the farmers and the some of them are involved in insurgency activities.
agricultural labour class. r National Socialist Council of Nagaland (NSCN),

392
 Tribal National Volunteers (TNU) in Tripura, United Socio-Cultural Pressure Groups
Mizo federal org, Tribal League of Assam, etc. r These pressure groups are concerned with
Ideology based Groups community service and the promotion of interests
r In more recent times, the pressure groups are of the community including language and religion.
formed to pursue a particular ideology, i.e., a cause, r Examples of this type of community are Arya
a principle or a programme. Pratinidhi Sabha, Shiromani Gurudwara Prabandhak
r These groups include: Narmada Bachao Andolan, Committee, Marathi Sangh, Ramkrishna Mission
Chipko Movement, Women's Rights Organisation, etc.
India against Corruption etc. Institutional Pressure Groups
Anomic Groups r These types of pressure groups influence the
r Anomic pressure groups mean groups having government without directly getting involved in the
more or less a spontaneous breakthrough into political system, yet they remain active.
the political system from the society such as r E.g., Civil Services Association, Police Welfare
riots, demonstrations, assassinations and the Association, Army Officers Association, Indian
like. The Indian Government and bureaucratic Red Cross, Gazetted Officers Association, Defence
elite, overwhelmed by the problem of economic Personnel Association, etc. These groups mainly
development and scarcity of resources available to influence matters such as transfer-leave rules,
them, inevitably acquires a technocratic and anti- allocation of duties, etc.
political frame of mind, particularistic demands Ad-hoc pressure groups
of whatever kinds are denied legitimacy. As a r Some pressure groups are short-termed which
consequence, interest groups are alienated from come into existence only for the fulfilment of some
the political system. particular demand. Their objective is to pressurize
r Naxalite Groups, Jammu and Kashmir Liberation the government for specific demand.
Front (JKLF), United Liberation Front of Assam r E.g., Orissa Relief Organisation, Kaveri Water
(ULFA), Dal Khalsa, etc. Distribution Association, Gujrat Relief Association,
etc.

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