Constitutional Law
Frequently Asked Questions on Constitutional Law
Ans. The Constitution of India is largest and most detailed Constitution in world. It originally consisted of 395 Articles divided into 22 parts and 8 schedules. The framers of Indian Constitution sought to incorporate the good provisions of all the existing constitutions of different countries in the world. Indian Constitution has borrowed Parliamentary system of Government from British Constitution. Framers of Indian Constitution incorporated provisions of `Fundamental Rights' from the Constitution of United States of America, `Directive Principles of State Policy' from Ireland, Power of Judicial Review to the Supreme Court has been taken from the Constitution of United States of America. Similarly India's federalism has been benefited from American provisions in this area. The Constitution of Canada and Australia have also been used to some extent for laying down some provisions of Constitution of India. The Constitution of India Occupies a unique place among the federal Constitutions of the World. This is due to its distinctive features. The chief characteristics of Indian Constitution are as follows :-
1. Longest Constitution of the World - The Indian Constitution is lengthiest and most detailed of all written Constitutions of the world. While the American Constitution originally consisted of 7 Articles, Australian Constitution 128 and Canadian Constitution 147 and Indian Constitution originally had 395 Articles. But till 78 the Amendment Act, of 1995 it consists of 443 Articles.
The Indian Constitution lays down the structure not only of Central Government but also of the States. The American Constitution on the other hand leaves the States to draw up their own Constitution. Because of peculiar problem of India like population, minorities, schedule class, Schedule tribe community peoples it had to incorporate many provisions.
2. Democratic form of Government. - The Constitution of India constitutes India into a sovereign democratic republic. It thus provides for the establishment of a democratic form of government in the country. Justice, Liberty, Equality and Fraternity which are essential characteristics of a democracy are declared in the Preamble as the very objectives of the constitution. In a democracy the Government derives all its authority from the will of the people. Our rulers are elected representatives of the people and are responsible to the people. A sovereign government is a government which is not dependent upon any outside authority. India is a free and an independent country and free to determine is external and internal policies according to its own will.
3. Sovereignty of the People. - The Preamble of the Constitution declares that the people of India have adopted and given to themselves this constitution in exercise of their sovereign rights. The words "We the people of India"........In our Constituent Assembly.......do hereby Adopt, Enact And give to ourselves this Constitution" make it clear that the real power is in the hands of the people of India both in the Union and in the States. The vesting of sovereignty in the people of the land marks the culmination of the struggle for independence and constitutes the corner stone of the future constitutional progress.
4. Parliamentary form of Government. - The Indian Constitution establishes a parliamentary form of Government of India both at the Centre and in the States as distinguished from the presidential form of the Government in America. The essential characteristics of parliamentary form of Government are the following :-
(a) the head of the State i.e. the President is the nominal and constitutional head but the real executive power is vested in the Council of Ministers whose head is the Prime Minister,
(b) The Council of Ministers is collectively responsible to the Lok Sabha.
(c) The members of the Council of Ministers are the elected members of the legislatures directly elected by the people. On the other hand, in a presidential form of the government the head of the State i.e. the President is the real executive directly elected by the people and responsible to the people.
5. Fundamental Rights. - The Constitution of India contains a long list of fundamental rights of citizens. These rights are necessary for the development of individual's personality. The legislature and the executive cannot take away these rights unless it is necessary to do so in the public interest. These rights are, however, not absolute rights. They are restricted rights and can be restricted, abridged and taken away, when it is necessary in the public interest. 6. Directive Principles of State Policy. - The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims and objectives to be followed by the State in the governance of the country. Although they are not justiciable in the courts of law, yet they are very important and fundamental in the governance of country. No Government can ignore them. There is a political sanction behind them. The Central and State Governments are answerable to the electorate at the time of election for their implementation. The idea of the welfare state can be achieved only by implementing the various directive principles contained in the Constitution. 7. Mixture of rigidity with flexibility. - A rigid constitution is one which requires a special procedure for amendment of its provisions, while in a flexible constitution the provisions of the constitution can be amended by an ordinary legislative process. A written Constitution is generally said to be rigid. The Indian Constitution though written is sufficiently flexible. It is only a few provisions of the Constitution which can only to amended by special procedure i.e. requiring the consent of the half of State legislature majority of provisions of Constitution can be amended by Parliament by ordinary legislative process. 8. Fundamental Duties. - As per the recommendation of the Swaran Singh Committee (Chairman, Congress Committee on Constitutional Amendment), by the 42nd Amendment Act, 1976. 10 Fundamental Duties have been added in the part IV A (Article 51-A) of the Indian Constitution. It shall be the duty of every citizen of India to abide by all the fundamental duties. 9. Distribution of Legislative Powers. - The Indian Constitution contains three lists under seventh Schedule :(i) Union List - [Article 246(1) and Sch. VII] - This list contains 97 subjects. Parliament has exclusive power to make laws with respect to any of these subjects.
(ii) State List - [Article 246(3) and Sch. VII] - This list contains 66 subjects. The legislative of any State has exclusive power to make laws with respect to any of these subjects.
(iii) Concurrent List - [Article 246(2) and Sch. VII] - This list contains 47 subjects. Parliament and legislature of any State both have power to make laws with respect to any of these subjects.
Residuary Powers - Under Article 248 of the Indian Constitution, residuary powers are vested in the Centre. Exceptions. - Articles 249, 250, 252 and 253 provides that Parliament can make laws on a matter specified in the State List in circumstances mentioned in these Arts. 10. Administrative relations between Union and States. - Articles 256 to 263 deals with Union control over States even in normal times through following ways :(i) Direction by Union to the State Governments - Articles 256, 257 and 356.
(ii) Delegation of Union's function to the States - Article 258.
(iii) All India Services - Article 312.
(iv) Grant-in-aid.
(v) Disputes relating to water.
(vi) Public Acts, records and Judicial proceedings - Article 261.
(vii) Co-ordination between States - Provision for Inter-State Council - Article 263.
11. Unique Federation. - India, is a Unique Federation. It provides several unique features such as :(i) No dual citizenship - There is single citizenship i.e., citizen of India.
(ii) At the time of emergency, it acquires a unitary character.
12. Uniformity in all basis matters. - The Indian Constitution adopts 3 means to maintain Administrative and Legislative unity.(i) a single Judiciary.
(ii) Uniformity of fundamental laws, civil and criminal, and
(iii) Common all India services.
13. Independent Judiciary. - The following provisions are intended to secure independence and impartiality of Supreme Court and High Courts :(i) Appointment of Judges by President after consultation with judicial authorities. [Articles 124(2), 217]
(ii) Security of tenure is guaranteed to every judge. [Articles 124, 218]
(iii) Salaries are fixed and cannot be varied by legislature except during the period of proclaimed emergency. [Article 360]
(iv) Once appointed their privileges, rights and allowances cannot be altered to their disadvantage. [Article 125, 221]
(v) Supreme Court and High Court recruit their own staff and frame rules regarding conditions of service. [Articles 146, 229]
(vi) Salaries and allowances of judges is not put to the vote of legislature. [Articles 146, 229]
(vii) Salaries, allowances and Pensions of its officers are charged on the Consolidated Fund of India. [Articles 146, 229]
(viii) The Constitution bars judges of Supreme Court from pleading or appearing before any court or judicial authority in India even after retirement. [Articles 124(7), 220]
(ix) No discussion can take place in the legislature of a State or in Parliament with respect to the conduct of any judge of Supreme Court or of High Courts in discharge of his duties. [Articles 121, 211]
14. Rule of Law - The Indian Constitution embodies the modern concept of rule of law with establishment of judicial system which should be able to work impartially and free from all influences. The rule of law means Government on principles of law. The rule of law, pervades over entire field of administration, and every organ of State is regulated by the rule of law. Sir Edward Coke, the Chief Justice in James 1's reign was the originator of this concept. There are three meanings of the rule of law :-(i) Supremacy of Law
(ii) Equality before the Law
(iii) Predominance of legal Spirit.
15. Doctrine Of Judicial Review - It means that the courts have power to examine laws and executive acts and test their conformity with the constitution and struck them down if they are found to be inconsistent with it. Article 13(2) provides that the state shall not make any law which takes away or abridge the fundamental rights and any law made in contravention of this provision shall to that extent of inconsistency is void. 16. Adult Suffrage - Under Article 326 every men and woman above 18 years of age (As it has been reduced from 21 years to 18 years vide 61st Amendment Act, 1988), has been given right to vote in Elections for Parliament, State Assembly. 17. Single Citizenship - According to Federal principle the Constitution of U.S.A. provides for dual Citizenship i.e. Citizenship of U.S.A. and Citizen of the State. Though the Indian Constitution has adopted the federal principles but Indian Constitution has provided for single citizenship i.e. Citizenship of India.
Ans. All Constitutions are generally divided into two categories, one federal and the other unitary. Under the unitary constitution the powers of the government are centralised in one government and that is generally the Central Government and the States are subordinate to it. But in a federal constitution there is division of powers between the Centre and the State and both are independent as well as coordinate to each other. The American Constitution is universally regarded as an example of federal Constitution. It establish dual polity or dual form of Government. A Federal Constitution usually has following essential characteristics :-
(1) Distribution of Powers. - A federal Constitution defines and demarcates the sphere of the Central and State Government. Each government has to act within its own sphere and cannot encroach upon the field of others. The basis of such distribution of powers between Centre and state is that the matters which are of national importance and in which uniform policy is desirable are given to the Centre and the matters which are of local importance are given to the states for legislation and control.
(2) A written Constitution. - A federal Constitution is necessarily a written Constitution. Distribution of powers can be made between the Central and State governments only when there is a written Constitution. All organs of the government derive their powers from the Constitution and have to function within the defined limits. The validity of all legislative enactments is tested according to the provisions of the Constitution.
(3) Supremacy of the Constitution. - Under a federal system, Constitution is supreme. All organs of the government have to work within the spheres assigned to them by the Constitution and they cannot encroach upon the jurisdiction of other organs. The judiciary has to interpret the Constitution and has to see that there is no transgression of jurisdiction by different organs of the government in the spheres assigned to others. The disputes between different organs of the government are settled according to the provisions of the Constitution.
(4) Effective Role of the Courts. - The courts under a federal Constitution, have the final authority to interpret the Constitution and maintain the supremacy of the Constitution. They decide the disputes between the Central and state governments. Their decisions on inter-governmental disputes are final. Besides, the courts are the saviour of fundamental rights of the citizens of the country.
(5) Rigidity - A natural corollary of a Written Constitution is its rigidity. In a rigid Constitution, procedure for its amendment is very complicated. This, however, does not mean that Constitution would be legally unalterable. It simply means that power to amendment Constitution should not remain exclusively with either Central or State Government.
The Constitution of India possesses all the above stated characteristics of a federal Constitution. Constitution of India also provides for dual polity, system of Governance at Central level and State level and there is division of power at Centre and State level and each level of Government is supreme in its sphere. Similarly Indian Constitution is written and Supreme and procedure of its amendment is difficult as per federal character. Constitution establish Supreme Court of India to decide dispute between centre and State or States inter se, other constitutional matters.
In State of W.B. v. Union of India, AIR 1963 SC 1241 Supreme Court has held by majority that it is not truly federal. However Subha Rao J. in his dissenting view treated Indian Constitution basically federal.
However some scholars are of the view that Indian Constitution is not federal. In following matters they point out that the Indian Constitution contains modifications of federal principles and make it more unitary than federal :-
(A) Appointment of Governors - The Governors of States are appointed by the President of India (Articles 155 and 156) and answerable to him. There are provisions in Constitution under which the Governor is required to send certain State Laws for the assent of President. The President has power to veto those State laws [Article 200, 288(a)]. However there not many example where President has vetoed the State Laws. The only example is Kerala Education Bill (Re Kerala Education Bill AIR 1958 SC 956).
(B) Parliament's Power of Legislation in the National Interest - Under Article 349, Parliament is empowered to make laws with respect to every matter enumerated in State list, if the Rajya Sabha passes a resolution by 2/3rd majority that it is necessary in the national interest.
(C) Parliament's power to form new states and other boundaries of existing states. - Article 3 empowers Parliament to form new states out of the existing states, and to increase or diminish, the area of any state and to alter the boundaries or name of any state.
(D) Emergency Provisions. - The Constitution envisages three types of emergencies : emergency arising out of war or external aggression or armed rebellion (Article 352), arising out of failure of constitutional machinery in states (Article 356), and financial emergency (Article 360). When the proclamation of emergency is made under Article 352 the normal distribution of powers between the Centre and States undergoes a vital change. Parliament is empowered to make laws with respect to any matter enumerated in the State List. Under Article 356, it the President is satisfied that the Government of a state can not be carried on in accordance with the provisions of Constitution he can dismiss the state ministry and dissolve the legislature and assume all the functionaries of the state.
It is true that the above mentioned provisions modify the federal character of the constitution. During emergency the Constitution is converted into a unitary constitution. But when emergency is over the constitution functions as a federal constitution. The framers incorporated these provisions on practical considerations taking note of the peculiar problems of the country. They adopted the federal principle applicable to other federations and modified it to suit the Indian Constitution so as to serve the need of the country. The Indian Constitution, therefore, constitutes new bold experiment in the area of the federation. The Indian Constitution is neither purely federal nor unitary but it is a combination of both. This combination of unitary and federal system is the unique feature of the Indian Constitution. The Indian Constitution is mainly federal with unique provisions for safeguarding the unity and integrity of the country.
Ans. Preamble Of Constitution Of India - Preamble of Constitution of India is important aspect of it as it sets out the main objectives which Constitution seeks to secure for the people. The Constitution makers gave to Preamble "the place of pride". It embodies all ideals and aspirations for which country had struggled during British regime. In Berubari's case AIR 1960 SC 845 Supreme Court has said that the preamble to the Constitution is a key to open the mind of the makers and shows the general purpose for which they made the several provisions in Constitution.
The Preamble of Indian Constitution declares :
"We, the People of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens :
Justice, social economic and political;
Liberty, of thought, expression, belief, faith and worship;
Equality of status and of opportunity;
and to promote among them all :Fraternity, assuring the dignity of the individual and the unity and integrity of the nation.
In our Constituent Assembly this twenty sixth day of November, 1949 do hereby Adopt, Enact and Give to ourselves this Constitution." In Berubari's case AIR 1960 SC 845 : 1960 SCJ 933 Supreme Court did not considered Preamble as part of Constitution. It observed - "The preamble is not a part of the Constitution and it has never been regarded as source of any substantive power conferred on Government of the Indian Union or on any of its department. Such powers embrace only those expressly granted in the body of Constitution and such as may be implied from those so granted." But in Keshwananda Bharti's Case AIR 1973 SC 1461 Supreme Court rejected the above view and held that Preamble is the part of Constitution. The then, Hon'ble Chief Justice Sikri has observed in this case as follows, "It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble." In fact the Preamble was relied on in infusing implied limitations on the amending power of the Parliament under Article 368 of the Constitution. In this case it was held that the "basic elements" of the Preamble cannot be amended under Article 368. In S.R. Bommai v. Union of India, AIR 1994 SC 1918 - Hon'ble K. Ramaswamy J. has observed - "The Preamble of the Constitution is an integral part of the Constitution, democratic form of Government, federal structure, integrity and unity of nation, secularism, socialism, social justice and judicial review are basic features of Constitution of India." The Preamble of Constitution serves the following purposes as the matters of its importance :(1) It indicates the source from which the Constitution comes into existence i.e. the people of India.
(2) It contains the enacting clause which brings into force the Constitution.
(3) It declares the rights and freedoms which the people of India intended to secure to all citizens and the basic structure of the Government and the polity which was to be established.
The Objectives of the Constitution. - The objectives of the Republic is to secure to its people - justice, liberty and fraternity, the dignity of the individual and the unity and integrity of the nation. Although these expressions have not been precisely defined in the constitution but they are not mere platitudes for they have been given contents by Part III and IV of the Constitution dealing with fundamental rights and the directive principles of the state policy. In Kesvanand Bharti's case it has been held that the preamble is the part of the constitution and therefore it can be amended by Parliament under its amending power under Article 368. However, the only limitation on the amending power of Parliament is that it should not exercise its amending power so as to destroy the basic features in the preamble. In Research Centre v. Union of India, AIR 1995 SC 922 - Supreme Court observed - "The Preamble and Article 38 of the Constitution of India - the supreme law, envisions social justice as its arch to ensure life to be meaningful and livable with human dignity. The Constitution commands justice, liberty, equability and fraternity as Supreme values to usher in egalitarian social, economic and political democracy. Social justice, equality and dignity of persons are corner stones of social democracy. The concept `Social justice" which the Constitution of India engrafted consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social justice' is thus an integral part of justice in generic sense. Justice is the genus, of which social justice is one of its species.
Ans. Under Article 3 of the Constitution, a new state can be formed or established in following ways :
(1) by separation of territory from any state, or
(2) by uniting two or more states, or
(3) by uniting any part of a state, or
(4) by uniting any territory to a part of any state.
Under this Article Parliament can increase or decrease the area of any state or alter the boundaries or change the name of any state. Article 3 deals with the formation of a new state out of the territories of the existing states. The power to form new states under Article 3(a) includes the power to form a new state of union territory by uniting a part of any state or union territory. The word "state" in Article 3 clauses (a) to (c) include a union territory also. The Constitution empowers the Parliament to alter the boundary or names etc. of the states, without their consent. A new state may be formed and area, boundary or names of the existing states may be altered by simple majority in the Parliament. The following are the conditions for passing such a law :-(1) No bill for the formation of new states or the alteration of the boundaries or names of the existing state shall be introduced in either House of Parliament except upon the recommendation of the President.
(2) If the bill affects the area boundaries or names of the states, President, is required to refer the bill to the legislature of the state, so affected for expressing its views within the period specified by the President. The President may extend the period so specified. If the state legislature to which the bill has been referred, does not express its views within the period specified or extended the Bill may be introduced in the Parliament even though the views of the state have not been obtained by the President. If the state legislature expresses its views within the time so specified or extended, the Parliament is not bound to accept or act upon the views of the state legislature. Further, it is not necessary to make fresh reference to state legislature every time and amendment to the bill is proposed and accepted.
Thus it is clear that the very existence of a state, depends upon the sweet will of the Central Government. By simple majority and by ordinary legislative process, Parliament may form a new state or alter the boundaries etc. of existing states and thereby change the political map of India. However it is important to point out here that under Article 3 Parliament does not have power to cede any Indian territory to a foreign state. In re Berubari's case AIR 1960 SC 845 Government of India entered into an agreement with Pakistan Government for resolving certain boundary disputes which provided for the transfer of certain territory to Pakistan. It was held that Parliament could not do so by passing a law U/Article 3 of the Constitution. The court held that this could only be done by amendment of the Constitution under Article 368.
Ans. What is Citizenship. - Citizenship connotes certain rights, duties, privileges and obligations. A citizen of a State is a person who enjoys full civil and political rights while those who do not have such rights are called aliens. Citizenship means that the citizen shall receive certain care, protection, facilities, be entitled to hold offices, be eligible for recruitment to public services and be subjected to certain obligations such as taxation etc. Under the Indian Constitution, certain fundamental rights are available only to citizens. Aliens do not enjoy these rights. The rights exclusively enjoyable by the Indian citizens are enumerated under Articles 15, 16, 19, 29, 30, 58(1)(a), 67(3)(a), 124(3), 217(2), 157, 165 and 76(1) of the Constitution. No person who is not a citizen of India has a right to vote for election to the Houses of the Parliament and the State Legislative Assemblies, nor can be he a member thereof.
How citizenship is acquired under the Constitution. - The Constitution does not contain extensive law on the subject. It lays down certain rules relating to citizenship. These provisions of the Constitution states the classes of persons who are, or who may be deemed to be Indian citizens at the commencement of the constitution. As regards other things, it provides that Parliament may by law make provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. Pursuant to this constitutional power, Parliament has enacted a special Act, (The Indian Citizenship Act, 1955).
Articles 5 to 8 contain the provisions determining the citizenship of India at the commencement of the Constitution, that is, (26 January 1950). The following are the persons who become citizens of India at the commencement of the Constitution :-
1. Citizenship by domicile (Article-5)
2. Citizenship by migrants from Pakistan (Article-6)
3. Citizenship of Migrants to Pakistan (Article-7)
4. Citizenship of Indians Abroad (Article-8)
1. Citizenship By Domicile :- According to Article 5 a person is entitled to citizenship by domicile if he fulfills the following two conditions: Firstly - he must at the commencement of the Constitution, have his domicile in territory of India. Secondly - Such person must fulfil any of the three conditions laid down in Arti-5 - (i) he was born in India, (ii) either of his parents was born in India (iii) he must have been ordinarily resident in the territory of India for not less than five years immediately before commencement of the Constitution. Domicile is an essential element for determining the citizen of the country. The term, domicile, has nowhere been defined in the Constitution. In Mohammad Raza v. State of Bombay, AIR 1966 S.C. 1436, the Supreme Court has held that the term domicile means a permanent house or place where the person concerned resides with the intention of remaining for an indefinite period. In Pradeep Jain v. Union of India, (1984) 3 S.C.C. 654, it was held that the domicile of a person is in that country in which he either has or is deemed by law to have his permanent house. Domicile is of two kinds i.e. domicile of origin and domicile of choice. The former is acquired by the individual by birth and the latter is acquired by the individual by residence in a territory with the intention to reside there permanently. Article 5 recognises only one domicile i.e. domicile of India. In Abdus Samad v. State of W.B., AIR 1973 SC 505 - It was observed that to attract Article 5(c) of Constitution, person applying must have Indian domicile. Domicile means to the place which a person has fixed as a habitation of himself and his family and not for mere special and temporary purpose but with a present intention of making it his permanent home-------Domicile denotes connection with the territorial system of law." 2. Citizenship of persons who have migrated to India from Pakistan. - Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if -(a) he or either of his parents or any of his grant-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
(b)(i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government :
Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
(3) Citizenship of migrants to Pakistan. - Article 7 provides that notwithstanding anything in Articles 5 and 6 a person who has migrated to Pakistan after March 1947 shall not be deemed to be citizen of India. Thus a citizen by domicile under Article 5 and a Pakistani migrant to India under Article 6 ceases to be a citizen of India if he has migrated to Pakistan after March 1947. But a person who has returned to India under a permit for resettlement or permanent return issued by or under the authority of any law is entitled to become citizen of India if he fulfills other conditions necessary for immigrants from Pakistan after July 1948 under Article 6. He can get himself registered as a citizen of India in the form and manner prescribed by the Government of India. In State of M.P. v. Peer Mohd., AIR 1963 SC 645 - It was observed that a person shall not deemed to be citizen of India, is one who has after the first day of March, 1947, migrated from the territory of India to territory of Pakistan. It is true that Migration after January 26, 1950 would be migration after the first day of March, 1947, but it is clear that a person who has migrated after January 26, 1950 cannot fall within the relevant clause because the requirement of the clause is that he must have migrated at the date when the Constitution came into force. "Has migrated" in the context cannot possibly includes cases of persons who would migrate after the commencement of the Constitution. It is thus clear that it is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of Article 7. Article-7 refers to migration which has taken place between the Ist day of March, 1947 and January 26, 1950. The question about the citizenship of persons migrating after 26th January 1950 will have to be determined under the provisions of Citizenship Act. (4) Citizenship of India abroad. - According to Article 8, a person residing outside India shall be deemed to be a citizen of India if he fulfills the following two conditions, (i) he or either of his parents or any of his grand parents must have been born in undivided India, and (ii) he must have been registered as a citizen of India by the diplomatic or consular representatives of India in the country where he is for the time being residing on an application made to such representative in prescribed form and manner. According to Article 9, no person shall be citizen of India by virtue of Articles 5, 6 and 8 if he has voluntarily acquired the citizenship of a foreign state. In State of U.P. v. Shah Mohd., AIR 1969 SC 1234 - It was observed that Article 9 deals with cases where citizenship of foreign State has been acquired by Indian Citizen prior to Constitution and means that he cannot claimcitizen ship of India by virtue of Article 5, 6 or 8.
Ans. Pursuant to the exercise of its power under Article 11 of the Constitution Parliament has passed the Citizenship Act 1955. This Act provides for the acquisition of the Indian Citizenship after the commencement of the Constitution in five ways :-
(1) Citizenship by Birth. - Every person born in India on or after January 26, 1950 shall be a citizen of India by Birth.
(2) Citizenship by descent. - A person born outside the territory of India on or after January 26, 1950, shall be a citizen of India by descent, if his father was a citizen of India at the time of his birth.
(3) Citizenship by registration. - Section 5 of the Citizenship Act provides that the citizenship by registration may be acquired by the following persons :-
(a) a person of Indian origin ordinarily resident in India and residing there for six months immediately preceding the application for registration;
(b) persons of India origin ordinarily resident outside undivided India;
(c) women married to Indian citizens;
(d) minor children of Indian citizens;
(e) persons of full age and capacity who are citizens of a commonwealth country mentioned in the First Schedule.
(4) Citizenship by Naturalisation. - The Central Government may on application made in the prescribed manner by any person of full age and capacity who is not a citizen of countries specified in the First Schedule, if satisfied that the applicant is qualified for naturalisation, grant him a certificate of naturalisation. The following are the qualifications for naturalisation :-(a) he must not be a subject or citizen of a country where Indian citizens are prevented from becoming citizens by naturalisation;
(b) he has renounced the citizenship of the other country;
(c) he has resided in India and/or has been in government service for 12 months immediately preceding the date of application;
(d) during 7 years prior to these 12 months he has resided in India/or has been in government service for not less than four years;
(e) he bears a good character;
(f) he takes an oath of allegiance;
(g) he has an adequate knowledge of a language recognised by the Constitution of India;
(h) after naturalisation he intends to reside in India or enter into service with Government of India, international organisation or a society or company in India.
(5) Citizenship by incorporation of territory of India. - According to Section 7 of Citizenship Act, 1955 if any new territory becomes part of India, the Government of India shall specify the persons of the territory to be citizens of India. (2) Termination of citizenship. - A citizen of India by naturalization, registration, domicile and residence may be deprived of his citizenship by an order of the Central Government (Section 9, 10) on the ground of obtaining the citizenship by fraud or misrepresentation, disloyalty towards the Indian Constitution, communication with India's enemy during war, imprisonment for longer than two years within five years of registration or naturalisation or residing outside India for longer than seven years at a time. This provision does not apply during a war in which India may be engaged until the Government otherwise directs (under Rule 30 of the Citizenship Rules) the authority to determine whether an Indian citizen has acquired citizenship of another country or not the authority then reports its findings to the Central Government which is usually guided by the authorities recommendations. The authority is to act in a quasi-judicial capacity while discharging his function.
Ans. Part-III of Constitution of India contains the list of Fundamental Rights available to Citizen of India. This chapter of Constitution has been described as `Magna Carta' of India. The inclusion of chapter of Fundamental rights in the Constitution of India is in accordance with the trend of modern democratic thoughts. Fundamental rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. In Maneka Gandhi v. Union of India, AIR 1978 SC 597 - It was observed: "There fundamental rights represent the basic values cherished by people of India since vedic times, they are calculated to protect the dignity of Individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in its various dimensions."
The fundamental rights as incorporated in Indian Constitution can be classified in following groups :-
(i) Right To Equality (Article 14-18)
(ii) Right To Freedom (Article 19-22)
(iii) Right against exploitation (Article 23-24)
(iv) Right To Freedom of Religion (Article 25-28)
(v) Cultural and Educational Rights (Article 29-30)
(vi) Right To Constitution Remedies (Article 32-35)
Fundamental Rights given to citizens of India are a guarantee against State action as distinguished from violation of such rights from private parties. Definition of `State' - Article 12 defines the term `State' as used in Articles of Part III of the Constitution. It says unless the context otherwise requires the term `State' includes the following :-1. The Government and Parliament of India i.e. Executives and legislature of the Union.
2. The Government and the legislature of each State i.e. Executives and legislature of States.
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of Government of India.
So the term, State includes executive and legislative organs of the union and State. Article 12 does not make any reference to judiciary and therefore the decision of a regularly constituted court, cannot be challenged as interfering the fundamental rights. In Central Inland Water Transport Corp. Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 - It was observed that - "...........The definition of expression `the State' in Article 12 is for the purpose of Part-III and IV of the Constitution. The contents of these two parts clearly show that the expression `the State' in Arti. 12 as also used in Article 36 is not confined to its ordinary and constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to fundamental rights guaranteed by Part-III of the Constitution and Directive Principles of State Policy contained in Part IV of Constitution which principles are declared by Arti-37 to be fundamental to governance of the country and enjoins upon the State to apply in making laws. The expression, "local authority" has reference to a unit of local self- government like a Municipal Committee, a District Board, Village Panchayat, Improvement Trust and Mining Settlement Board. In Mohammed Yasim v. Town Area Committee, AIR 1952 SC 115, the Supreme Court held that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority which contravened the provisions of Article 19(1)(g) of the Constitution. These bye-laws in effect and in substance have brought about a total stoppage of the wholesale dealer's business in the commercial sense. The expression, "Other Authorities" is of vague and broad import. It means a public rather than a private authority. In Ujjainbai v. State of U.P., AIR 1962 SC 1621, the Supreme Court has held the view that a University maintained by a State, would fall within the meaning of a State. A university is a statutory body having legislative and administrative powers. Hence a university is held to be within the purview of the authority in Article 12. Supreme Court has held in Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 S.C. 1857 that to be within the expression, "Other authority", all authorities created by the Constitution or Statute must get power under the law. So this interpretation, State Electricity Boards are the State within the meaning of Article 12. The above decision of the Supreme Court has overruled the decision of Madras High Court in University of Madras v. Shanta Bai, AIR 1954 Madras 67, holding that a university is not a state within the meaning of expression "other authorities", as used in Article 12. In Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 - The Supreme Court following the test laid down in Electricity Board Rajasthan's case has held that Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are authorities within the meaning of Article 12 of Constitution and therefore they are `State'. All three Statutory Corporations have power to make regulations under the Statute for regulating conditions of service of their employees. Subsequently Supreme Court made even more liberal and broad interpretation of expression `other authorities' in Article 12. In Ramana Dayaram Shetty v. The International Airport Autho. of India, AIR 1979 SC 1628 Supreme Court has held that if a body is an agency or instrumentality of government it may be an authority within the meaning of Article 12 whether it is a Statutory Corporation, a government Company or even a registered society. Accordingly International Airport authority which was created by an Act of Parliament was held to be `State'. In Ajay Hasia v. Kalid Majid, AIR 1981 SC 487 Supreme Court held that society registered under the Societies Registration Act 1898 is an agency or "instrumentality of the State" and hence is `State' within the meaning of Article 12. Is Judiciary Included in the Word `State' - Question whether judiciary is included within `Expression `State' or not has arisen in Naresh v. State of Maharashtra, AIR 1967 SC 1 - Where Supreme Court held that judiciary is not included in the expression of `State' as provided in Article 12. But in A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531 Supreme Court held that Court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens, so it can be said that the expression `State' as defined in Article 12 includes judiciary also.
Ans. The most important characteristic feature of the fundamental rights is that they are justicible, that is to say that they are enforceable by the courts. If by the action of the State a citizen's fundamental right is violated he is entitled to go to the court for appropriate remedy against such action. A right without remedy is a meaningless concept. Articles 32 and 226 read with Article 13 make these rights enforceable. Under these Articles the Supreme Court and the High Court are empowered to issue appropriate order, direction and writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of the fundamental rights guaranteed by Part III of the Constitution.
There are some rights which are available to the citizens of India only while some are available to all persons - citizens and non-citizens. Fundamental rights guaranteed by Articles 15, 16, 19, 29 and 30 are available to the citizens only.
The rights enumerated in Part III of the Constitution are guaranteed against State action and not against private individual. Barring a few exceptions, the fundamental rights guarantees to the invididuals are limitations on the State action. (Articles 15(2)(a)(b) and Article 17). They are not meant to protect persons against the conduct of private persons. Against the actions of the private individuals a person can seek remedy under the ordinary law of the land. It is against the might of the State that individual needs constitutional protection. (P.D. Samdasani v. Central Bank of India, AIR 1952 S.C. 59). Patanjali Shashtri, C.J., of the Supreme Court in State of West Bengal v. Subodh Gopal, (A.I.R. 1954 S.C. 92 at page 97) observed : "The whole object of Part III of the Constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the State."
There are some fundamental rights which are available against specific class of persons. For example, Article 15(2) directs the State not to discriminate against a citizen on grounds only of religion, race, caste, sex and place of birth or any of them. It also prohibits State and private persons from making discrimination with regard to access to shops, hotels etc. and all places of public entertainment of public resort, wells, tanks, roads etc.
Ans. Article 13 of the Constitution lays down as follows :-
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of Part III of the Constitution shall be void to the extent of inconsistency with Part III of the Constitution.
(2) The State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause to the extent of the contravention shall be void.
(3) In this Article, unless the context otherwise requires :-
(a) `law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law;
(b) `law in force' includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368. Effect on existing laws :- Article 13(1) is prospective in nature that is, they operate from the date of the commencement of the Constitution and not retrospectively. All pre-constitution or existing laws shall be void only if they are inconsistent with the fundamental rights enshrined in Part III of the Constitution. In Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC 128 proceedings had been started against the appellant for an offence punishable u/s 18 of the Indian Press Emergency Powers Act, 1934 in respect of pamphlet published in 1949. The appellant's contention was that the Act was inconsistent with fundamental rights conferred by the Constitution and therefore it had become void u/Article 19(1) after 26th January, 1950 and the proceedings against him could not be continued. Supreme Court has held that all laws in force at the commencement of the Constitution which are inconsistent with Part-III of the Constitution, shall be void to the extent of inconsistency. Article 13(1) had no retrospective effect but only prospective in its operation. (A) Doctrine of Severability It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the fundamental rights is separable from that which does not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. This process is known as doctrine of severability or separability. The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 and held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act. In State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318 it was held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not effect the validity of the entire Act and therefore there was no necessity for declaring the entire statute as invalid. The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C. v. Union of India, AIR 1957 S.C. 628, and the following rules regarding the question of severability has been laid down:(1) The intention of the legislature is the determining factor in determining whether the valid part of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from the another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it.
(B) Doctrine of Eclipse. - The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. "It is over-shadowed by the fundamental rights and remains dormant, but it is not dead." Such laws are not wiped out entirely from the statute book. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights. For solving such a problem, Supreme Court formulated the doctrine of eclipse in Bhikhaji v. State of M.P., AIR 1955 S.C. 781. In this case the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorised the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorise the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal. (C) Doctrine of Waiver. - Can a person waive his fundamental right ? A reference to the doctrine of waiver was first made in Behram v. State of Bombay, AIR 1955 S.C. 123. While discussing the question of legal effect of a statute being declared unconstitutional, Justice Venkatarama Aiyer gave the opinion that a law, unconstitutional by reason of its repugnancy to a fundamental right which is enacted for the benefit of individuals and not for the benefit of the general public, is not a nullity but merely enforceable and such an unconstitutionality could be waived, in which case the law becomes unenforceable for that individual e.g. the right guaranteed under Article 19(1)(f) is for the benefit of the owners of property and when a law is found to infringe that provisions, it is open to any person whose right has been infringed to waive it, and when there is a waiver there is no legal impediment to the enforcement of the law. The question of waiver directly arose in Bashesher Nath v. Income Tax Commissioner, AIR 1959 S.C. 149. The petitioner whose case was referred to the Income Tax Investigation Commissioner under Section 5(1) of the Act, was found to have concealed large amount of income. He thereupon agreed at a settlement in 1954 to pay Rs. 3 lacs in monthly installments by way of arrears of tax and penalty. In 1955, the Supreme Court in other cases declared Section 5(1) ultra vires Article 14. The petitioner thereupon challenged the settlement between him and the Commissioner. The main question that arose for consideration was whether or not, the assessee had waived his fundamental right under Article 14 by entering into the settlement. In this case the Supreme Court held "A large majority of our people are economically poor, educationally backward and politically not conscious of their rights. Individually or even collectively, they cannot be pitted against the State Organisations and institutions, nor can they meet them on equal terms. In such circumstances it is the duty of the court to protect their rights against themselves." In the end, the court upheld unanimously that the petitioner could not waive his rights under Article 14 of the Constitution. Circumstances under which Fundamental Rights can be curtailed or suspended. - The fundamental rights can be suspended or curtailed in the following circumstances : 1. The Parliament can restrict or abrogate by law the fundamental rights in their application to the members of the Armed Forces, of Forces charged with the maintenance of public order with a view to ensure proper discharge of their duties and maintenance of discipline among them. (Article 33). 2. Fundamental Rights can be curtailed or restricted when Martial Law is in force in any area (Article 34). 3. During the period in which the proclamation of emergency is in operation, the rights conferred by Article 19 are suspended (Article 358). Also where a proclamation of emergency is in operation the President may, by order, declare that the right to move any court for the enforcement of such rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of rights so mentioned shall remain suspended for a period during which the proclamation of emergency is in force or for such shorter period as may be specified in the order. An order made as aforesaid may extend to the whole or any part of the territory of India. Every such order shall, as soon as be may be after it is made, be laid before each House of Parliament. (Article 359). 4. All or any of the fundamental rights can be curtailed, suspended or modified by an amendment of the Constitution itself under Article 368.
Ans. Rule of Law - Article 14 of the Constitution of India declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of law.
Expression `Equality before law' is what A.V. Dicey has called "Rule of Law". The principle enunciated in this concern by Dicey can be summed up as follows :-
(1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary way by person in authority.
(2) No man is above the law. Every man irrespective of his rank and condition, is subject to the jurisdiction of ordinary courts.
So the rule of law may be defined as a recognition of the Supremacy of Law, the equal subjection of all persons to it. The Government as well as governed are subject to the Law. In Bachan Singh v. State of Punjab, AIR 1982 SC 1325 - It was observed "The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The rule of law excludes arbitrariness, its postulate is "intelligence without passion" and `reason free from desire'. What is necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framers of law accountable to the people. So the "rule of law" is used in contradiction of the rule of man. The guarantee of equality before law is an aspect of what Dicey calls the Rule of Law. It means that no man is above the law of the land and that every person, whatever be his rank or condition, is subject to the jurisdiction of ordinary courts. The Preamble declares the object of the Constitution to secure to all its citizens equality of status and opportunity. Article 14 embodies general principles of equality and the succeeding Articles 15, 16, 17 and 18 lay down the specific application of the general rule laid down in Article 14. Article 14 of the Constitution says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality before the law connotes equal subjection of all classes to the ordinary law of the land. It implies that every official from higher rank to the lower rank is under the same responsibility for every act done without lawful justification as any other ordinary citizen. Equality before the law is a negative concept. It declares that everyone is equal before law, that no one can claim special treatment and that all classes are equally subjected to the ordinary law of the land. But it should be noted here that there is no such things as absolute equality. Law should be equal among equals. In other words like should be treated alike. In Secretary, Haryana State Electricity Board v. Suresh, AIR 1999 SC 1160 - It was observed that equality clause in Constitution does not speak of mere formal "equality before law" but embodies the concept of real and substantive equality which strikes of the inequalities arising on account of vast social, economic differentiation and is thus consequently an essential ingredient of social and economic justice......." In Srinivasa Theatre v. Govt. T.N., AIR 1992 SC 999 - It was observed-"Equality before law is a dynamic concept having many facets. One facet. The most commonly acknowledged - Is that there shall be no privileged person or class and that none shall be above law. A facet which is of immediate relevance herein is the obligation upon the State to bring about, through the machinery of law, a more equal society envisaged by the preamble and Part IV of our Constitution. Equality before law can be predicated meaningfully only in an equal society i.e. in society contemplated by Article 38 of the Constitution."
Equal protection of Laws. - The second concept "equal protection of laws" is more positive in content. This concept is borrowed from the 14th Amendment of the American Constitution. It means subjection to equal law applying to all persons in the same circumstances. All persons similarly circumstanced shall be treated similarly both in privileges conferred and liabilities imposed. Equal laws should be applied to all in the same condition. In Probhudas Morarjee v. Union of India, AIR 1966 SC 1044 - It was observed that to make out the case of denial of equal protection of law under Article 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment is unjustifiably made. In Jyoti Pershad v. Administrator for Union Territory of Delhi, AIR 1961 SC 1602 Supreme Court while interpreting the expression "equal protection of law" as embodied in Article 14 has laid down following rules of guidance to check whether any enactment passed by State is violative of Article 14 or not :-(1) If the statute itself or the rule made under it applies unequally to persons or things similarly situated it would be an instance of direct violation of Constitutional guarantee.
(2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. The very provision of the law which enables or permits the authority to discriminate in certain circumstances offends the guarantee of equal protection afforded by Article 14.
(3) The above rule would not apply to cases where the legislature lays down the policy and indicates the rule or line of action which should serve as guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power no question of violation of Article 14 could arise.
(4) For the legislation to comply with the rule as to equal protection it is not essential that the rules for the guidance of the designated authority should be laid down in express terms.
Ans. Equal protection of laws guaranteed by Article 14 does not mean that all laws should be general in character and universal in application. It does not mean that same laws should apply to all persons. Varying needs of different classes of persons often require separate treatment. In fact, equal treatment in unequal circumstances would amount to inequality. Therefore a reasonable classification is not only permitted but it is necessary if the society is to progress.
Equality is for equals, that is to say, those who are similarly circumstanced are entitled to an equal treatment. The guarantee of equality does not imply that the same rules should be made applicable to all persons in spite of differences in their circumstance and conditions. (Ramesh Prasad Singh v. State of Bihar, A.I.R. 1978 S.C. 327).
So the guarantee of `Equal protection of Law' and Equity before law does not prohibit reasonable classification.
In Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191 - It was observed -
"While Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the objects of the Act under consideration. Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
Similarly in Vajravellu Mudaliar v. Special Deputy Collector for Land Acquisition, AIR 1965 SC 1017 Supreme Court observed -Under Article 14 of the Constitution of India the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. The said classification has to pass two tests, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question.
In State of W.B. v. Rash Behari Sarkar (1993) 1 SCC 479 - "Equality means equality in similar circumstances, between same class of persons for same purpose and objective. It cannot operate amongst unequals. But even amongst equals the legislature or executive may classify on distinction which is real. A classification amongst groups performing shows for monetary gains and cultural activities cannot be said to be arbitrary. May be that both groups carry out legislative objective of promoting social and educational activities and, therefore, they are alike but distinction between the two on monetary gains and otherwise is real and intelligible. So long the classification is reasonable it cannot be struck down as arbitrary. Likes can be treated differently for good and valid reasons. The State in treating the group performing theatrical shows for advancement of social and educational purpose, differently, on basis of profit making cannot be said to have acted in violation of Article 14 of Constitution." The true meaning and scope of Article 14 have been explained by Supreme Court in numerous cases. Principles as laid down in R.K. Dalmia v. Justice Tendulkar, AIR 1958 SC 538 still hold valid ground, which are follows -(1) A law may be Constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him but not applicable to others, that single individual may be treated as a class by himself.
(2) There is always a presumption in favour of the Constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of Constitutional principles.
(3) It must be presumed that legislature understands and correctly appreciates the needs of its own people, that laws are directed to problem, made manifest by experience and that its discriminations are based on adequate ground.
(4) The Legislature is free to recognise degrees of harm and may confine its restriction to those cases where the need is deemed clearest.
(5) In order to sustain the presumption of Constitutionality the court may take into consideration matters of Common Knowledge, matters of common report, the history of times and may assume every state of facts which can be conceived existing at the time of legislation.
(6) While good faith and knowledge of the existing conditions on the part of the legislature are to be presumed, if there is nothing on the face of law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably regarded as based, the presumption of Constitutionality cannot be carried to the extent of always, holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations hostile or discriminating legislation.
(7) The classification may be made on different basis e.g., geographical or according to objects or occupations or the like.
(8) The classification made by a legislature need not be scientifically perfect or logically complete. Mathematical nicety and perfect equality are not required.
(9) Article 14 applies to both, the discrimination of the substantive law as well as procedure law. If the classification satisfies the above propositions, the law will be declared Constitutional.
Ans. Article 15 of the Constitution provides that no citizen shall be subjected to discrimination in matters of rights, privileges and immunities pertaining to him. This Article lays down:-
(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to :-
(a) access to shops, public restaurants, hotels and places of public entertainment, or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.
(3) Nothing in this Article shall prevent the state from making any special provision for women and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Article 15 directs that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Any law discriminating on one or more on these grounds, would be void. The word, "only" has been purposely used in the Article. A discrimination based on one or more of these grounds and also on other grounds or grounds will not be affected by Article 15(1). It means that if one or more of the specified grounds is combined with a ground not mentioned in Article 15(1) the laws will be outside the prohibition contained in Article 15(1), Article 15(1) prohibits discrimination on the ground of birth and not that of residence. A state can, therefore, grant concessions to its residents in matters of fees in an educational institution. In Mainsuphdas v. State of U.P., AIR 1953 SC 384 a law which provided for election on the basis of separate electorate for members of different religious communities was held to be un-constitutional. In D.P. Joshi v. State of M.B., AIR 1955 SC 334 - It was held that a law which discriminates on the ground of residence does violate Article 15(1). In that case a rule of the State Medical College requiring a capitation fee from non- Madhya Bharat students for the admission in the college was held valid as ground of exemption was residence and not place of birth. Place of birth is different from residence. In Balaji v. State of Mysore, AIR 1965 SC 649 the Mysore Government issued an order under Article 15(4) reserving seats in the Medical and Engineering Colleges in the State as follows : Backward classes 28%, more Backward classes 20%, Scheduled Castes and Tribes 18%. Thus 68% of the seats available in the Colleges were reserved and only 32% was made available to the merit pool. The validity of the order was challenged by candidates who had secured more marks than those admitted under the order. Though qualified on merit they had failed to get admission only be reason of the Government order. The Court held that the sub-classification made by the order between `backward classes' and `more backward classes' was not justified under Article 15(4). "Backwardness" as envisaged by Article 15(4) must be both social and educational and not either social or educational. Though caste may be a relevant factor but it cannot be the sole test for ascertaining whether a particular class is a backward class or not. Poverty, occupation, place of habitation may all be relevant factors to be taken into consideration. Article 15(4) does not speak of `castes', but only speaks `classes', and `caste' and `class' are not synonymous. The impugned order, however, proceeds only on the basis of caste without regard to other relevant factors and that is sufficient to render the order invalid. The Court said that the State was not justified in including in the list of backward classes all those castes or communities whose average of student population per thousand was slightly above or very near or just below the State average. Only those which were well below the average can be regarded as backward. Thus the main defect of the system adopted by the State was that under it 90% of the population of the State was backward. It was held that this was inconsistent with Article 15(4). Reservation of 86 per cent of seats in technical institutions, such as Engineering and Medical Colleges to the exclusion of all other candidates if a single candidate from the Scheduled Tribes was available, would amount to fraud upon the Constitution. Clause (4) of Article 15 only enables the State to make special and not exclusive provision for the backward classes. The State would not be justified ignoring altogether advancement of the rest of the society in its zeal to promote the welfare of backward classes. In Guntur Medical College v. Mohan Rao, A.I.R. 1976 S.C. 1904, an important question arose before the court as to whether a person belonging to Christian converts, who originally belong to Scheduled Caste, on re-conversion to Hinduism can claim the benefit of reservation of seats in a Medical college under Article 15(4). The court held that a person whose parents belonged to a scheduled caste before their conversion to Christianity can, on reconversion to Hinduism be regarded as a member of the schedule caste only if he is accepted as a member of that caste by the other members of the caste. On such acceptance he would be eligible for the benefit of the reservation of the seats for scheduled caste in the matter of admission to the medical college. In State of M.P. Nivedita Jain, A.I.R. 1981 S.C. 2045, the Supreme Court upheld the validity of an executive order of the Government of M.P. completely relaxing the condition of qualifying marks in the Pre-Medical tests. The court observed that in the absence of any law to the contrary, if is open to the government to impose such conditions as would make the reservation effective.
Ans. Article 16 which provides for equality of opportunity in matters of appointment and employment is only an incident to application of the equality concept envisaged in Article 14. This Article gives effect to the doctrine of equality and to the prohibition of discrimination guaranteed by Article 16(1) in the matters of public employment. Article 16 lays down :
"(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
(2) No citizen shall, on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the state.
(3) Nothing in this Article shall prevent parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office (under the Government of or any local or other authority within a state or union territory, any requirement as to residence within that state or union territory) prior to such employment or appointment.
(4) Nothing in this Article shall prevent the state from making any provision for the reservation of appointments of posts in favour of any backward class of citizens, which in the opinion of the state, is not adequately represented in the services under the state.
(5) Nothing in this Article shall effect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
Article 16 guarantees equality of opportunity in matters of appointment in State services. It is to be noted that under Article 16 the guarantee against discrimination is limited to `employment' and `Appointment' under the State Article 15 however is more general and deals with all cases of discrimination, which do not fall u/Article 16. What Article 16 guarantees is equality of opportunity in matters of appointment in State services. Equality of opportunity connotes that every citizen shall be eligible for the employment or appointment to any office under the State according to his qualifications and capability. It does not prevent the State from prescribing the necessary qualifications and selective tests for recruitment for government services. The selective test must not be arbitrary. In Pandurangarao v. Andhra Pradesh Service Commission, A.I.R. 1963 S.C. 268, th validity of a rule prescribing that an applicant for the selection of District Munsif must at that time be practising as an advocate in the Andhra Pradesh Court, was challenged under Article 16. The Court held that the rule is unconstitutional as there was no reasonable nexus between the qualification and the alleged object of an applicant possessing a knowledge of the local laws which could be acquired by any lawyer practising in any court. In C.B. Muthamma v. Union of India, AIR 1979 SC 1868 a provision in service rules requiring a female employee to obtain the permission of the Government in writing before her marriage is solemnised and denying her the right to be promoted on the ground that the candidate was married woman was held to be discriminatory against woman and hence unconstitutional. The petitioner was denied promotion to Grade I of the Indian Foreign Service only on this ground. However, the Court made it clear that it does not mean that the men and women are equal in all occupations and in all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of social sectors of the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. Equal Pay for Equal Work. - In Randhir Singh v. Union of India, AIR 1982 SC 879, it has been held that equal pay for equal work, although not expressly declared to be a fundamental right is clearly a constitutional goal under Articles 14, 16 and 39(c) of the Constitution and can be enforced by the courts in cases of unequal scales of pay based on irrational classification. This principle has been followed in a number of cases (D.S. Nakara's case AIR 1983 SC 130 and (P.K. Ramchandra Iyer's case AIR 1984 SC 541) In P.R. Naidu v. Government of Andhra Pradesh, A.I.R. 1977 S.C. 854, the petitioners were retired compulsorily in public interest. It was held that the provision for compulsory retirement in public interest applies to all Government servants as such Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement. Article 16(4) is the second exception to the general rule embodied in Article 16(1) and (2). According to this provision, nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of "any backward class of citizens" which in opinion of the State is not adequately represented in the services under the State. The scope of Article 16(4) was considered by the Supreme Court in Devadasan v. Union of India (A.I.R. 1964 S.C. 179). In this case "carry forward rule" framed by the Government to regulate appointment of persons of backward class in Government service was involved. The Court struck down the carry forward rules as unconstitutional on the ground that the power vested in the Government cannot be so exercised as to deny reasonable equality of opportunity in matters of appointment for members of classes other than backward. Undoubtedly Article 16(4) is an enabling provision and confers a discretionary power on the state to make reservation of appointment in favour of backward class of citizens which in its opinion is not adequately represented but it is not itself a fundamental right. The Supreme Court in C.A. Rajendran v. Union of India, A.I.R. 1978 S.C. 507, held that it is open to State to withdraw the benefits conferred on the Scheduled Castes and Scheduled Tribes and they have no remedy in the courts. In Air India v. Nargesh Meerza, A.I.R. 1981 S.C. 1829, the air hostesses challenged the provisions which required them to retire at the age of 35 years or if they get married within four years of confirmation or on first pregnancy. It was held that these provisions were discriminatory and violative of Articles 14, 15 and 16 of the Constitution. In K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 S.C. 1495, the Supreme Court has suggested that the reservations in favour of backward classes must be based on mean test. It has been further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached upto that level where it does not need reservation, its name should be deleted from the list of backward classes. Constitution (81st Amendment) Act, 2000. - Insertion of New clause (4-B) in Article 16 : This amendment has added a new clause (4-B) after clause (4-A) in Article 16 which seeks to end the 50% ceiling on reservation for SC's/ST's and BC's in backlog vacancies which could not be filled up in the previous years due to the non-availability of eligible candidates. Constitution (85th Amendment) Act, 2001 - This Amendment has substituted, in clause 4-A, for the words "in matters of promotion to any class" the words "in matters of promotion, with consequential seniority, to any class". This amendment aims at extending the benefit of reservation in favour of the S.C./S.T. in matters of promotion with consequential seniority. That is, from April 1995 when the Constitution 77th Amendment was enacted. In Praveen Singh v. State of Punjab, AIR 2001 SC 158 the Supreme Court has held that the recruitment to the post of Block Development Officer cannot be made on basis of viva voce test only having regard to the nature and requirement of the concerned job. Even the Service Commission has recognised a written test as also viva voce test. In this case the facts were that the Punjab Public Service Commission issued an advertisement for 28 to 44 vacancies of Block Development and Panchayat Officers. About 4500 people appeared in the test and subsequently roll members of 130 candidates only were published being eligible to appear in viva voce test. After the viva voce the final result was announced and name of candidates found suitable for appointment were published. The petitioner's name did not figure in the merit list. The petitioner thereafter challenged the selection process in the writ petition before the High Court which was rejected. He then filed the present appeal in the Supreme Court. The Court held that the appointment could not be made solely on the basis of viva voce test. The scheme of examination as given in information sheet showed that there ware four papers for written test followed by viva voce test. It also provided that no candidate would be eligible to appear in the viva voce test unless he obtained 33% marks in each paper and 45% marks in aggregate.
Ans. The scope and extent of Article 16(4) has been examined thoroughly by the Supreme Court in the historic case of Indra Sawhney v. Union of India, (AIR 1993 SC 477), popularly known as the Mandal case.
The facts of the case were as follows. On January 1, 1979 the Government headed by the Prime Minister Sri Morarji Desai appointed the second Backward Classes Commission under Article 340 of the Constitution under the Chairmanship of Sri B.P. Mandal (MP) to investigate the socially and educationally backward classes within the territory of India and recommended steps to be taken for their advancement including desirability for making provisions for reservation of seats for them in Government jobs. The Commission submitted its report in December, 1980. It had identified as many as 3743 castes as socially and educationally backward classes and recommend for reservation of 27 percent Government's jobs for them. In the meantime the Janta Government collapsed due to internal dissensions and the Congress Party headed by the Prime Minister Smt. Indira Gandhi came to power at the Centre. The Congress Government did not implement the Mandal Commissioner report till 1989. In 1989 the Congress Party was defeated in the Parliamentary elections and the Janta Dal again came to power and decided to implement the Commission's report as it had promised to the electorate. Accordingly, the Government of India, headed by Prime Minister Sri V.P. Singh issued the Office Memoranda (called O.M.). On August 13, 1990 reserving 27 per cent seat for backward classes in Government services on the basis of the recommendations of the Mandal Commission. The acceptance of the report of the Mandal Commission threw the Nation into turmoil and a violent anti-reservation movement rocked the nation for nearly three months resulting in huge loss of persons and property. A writ petition on behalf of the Supreme Court Bar Association was filed challenging the validity of the O.M. and for staying its operation. The Five Judges Bench of the Court stayed the operation of the OM till the final disposal of the case on October 1, 1990, Unfortunately the Janta Government again collapsed due to defections and in 1991 Parliamentary elections the Congress party again came to power at the Centre.
The Congress party Government headed by Sri P.V. Narsimha Rao issued another Office Memoranda on September 25, 1991 but made two changes in the OM of Janta Dal Government issued on August 13, 1990; (i) by introducing the economic criterion in granting reservation by giving preference to the poorer sections of SEBCs in the 27% quota, and (ii) reserved another 10% of vacancies for other Socially and Educationally Backward Classes (SEBCs) economically backward sections of higher castes. The economic criterion was to be specified separately. The Five Judges Bench referred the matter to a special Constitution Bench of 9 Judges in view of the importance of the matter to finally settle the legal position relating to reservations as in several earlier judgments the Supreme Court have not spoken in the same voice on this issue. Despite several adjournments the Union Government failed to submit the economic criteria as mentioned in Official Memorandum of September 25, 1991.
The 9 Judges Constitution Bench of the Supreme Court by 6-3 majority (Justice B.P. Jeevan Reddy, C.J., M.H. Kania, M.N. Venkatachaliah, A.M. Ahmadi with S.R. Pandian and S.B. Sawant concurring by separate judgments held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons - Creamy layer among them - are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions and the total reservation shall not exceed 50 percent. The Court accordingly partially held the two impugned notifications (OM) dated August 13, 1990 and Sept. 25, 1991 as valid and enforceable but subject to the condition that socially advanced persons - creamy layer - among B.Cs are excluded. However the court struck down the Congress Government's OM reserving 10% Government jobs for economically backward classes among higher classes.
The majority decision of the Supreme Court on various aspects of reservations provided in Article 16(4) may be summarised as follows :
(1) The majority held that a caste can be and quite often is a social class in India and if it is backward socially, it would be a backward class for the purpose of Article 16(4).
(2) Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Hence, reservation can be made under Article 16(1).
(3) The majority held that the backward class of citizens contemplated in Article 16(4) is not the same as socially and educationally backward classes in Article 15(4).
(4) The majority held that while identifying the backward classes the socially advanced persons - the creamy layer, among them being excluded, for the purpose of giving benefit of reservation.
(5) The majority held that Article 16(4) permits classification of backward classes into backward and more backward classes, for the purpose of giving more protection to more backward class people.
(6) The majority held that a backward class of citizens can not be identified only and exclusively with reference to economic criteria.
(7) The majority held that the maximum limit of reservation cannot exceed 50%. However, in extra-ordinary situations it may be relaxed in favour of people living in remote, far flung areas of the country.
(8) The majority held that reservation can be made by an executive order. If need be made by Parliament or state legislature.
(9) The majority held that the reservation under Article 16(4) cannot be made in promotions. The reservation is confined to initial appointments.
(10) The court directed the Union Government, State Governments and Union Territories to appoint a permanent statutory body to examine complaints of wrong inclusion or non-inclusion of groups, classes and sections in the list of other backward classes.
(11) The majority made it clear and directed that all objections to the criteria evolved by the Central Government and State Government to exclude socially advanced persons creamy layer from other backward classes, shall be filed only before the Supreme Court and not before any High Court or Tribunal.
Ans. Article 18 relates to titles. It runs as follows :
(1) No title, not being a military or academic distinction shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, when he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State shall without the consent of the President, accept any present, emolument or office of any kind from or under any foreign State.
Indian citizens cannot accept any title from a foreign State. - The restriction in this respect is absolute but an Indian citizen can however accept a present from a foreign State but only with the consent of the President. So far as foreigners holding any office of profit and trust under the State are concerned they can accept both the titles and presents but after obtaining the consent of the President. The recent conferment of titles as "Bharat Ratna", "Padma Vibhushan", etc. are not `prohibited' under Article 18. Therefore they do not fall within the prohibition. It will be noted that there is no penalty prescribed for infringement of the above prohibition. However, it is open to Parliament to penalise by appropriate law the persons who accept titles in violation of Article 18. In a significant case in Balaji Raghavan v. Union of India, (1996) 1 SCC 361 the petitioners challenged the validity of these National award and requested the Court to prevent the Government of India from conferring these Awards. It was contended that the National Awards are titles within the meaning of Article 18 of the Constitution. It was also argued that these award are being grossly misused and the purpose for which they were instituted has been diluted and they are granted to persons who are undeserving of them. The Supreme Court held that the National Awards such as Bharat Ratna, Padma Bhusan and the Padma Sri are not violative of the principle of equality as guaranteed by the provisions of the Constitution. The National Awards do not amount to "titles" within the meaning of Article 18 and, therefore, not violative of Article 18 of the Constitution.
Ans. Right To Freedom - The Article 19 to 22 deals with different aspects of this basic right. Article 19 guarantees to the citizen of India the six fundamental freedoms which are exercisable by them throughout and in all part of the territory of India. These are - (a) Freedom of Speech and Expression, (b) Freedom of Assembly; (c) Freedom of Association, (d) Freedom of Movement; (e) Freedom of Residence and Settlement; (f) .......omitted by 44th Amendment, (g) Freedom of Profession, Occupation Trade or Business. These freedoms are, however, not absolute. The clauses (2) to (6) of Article 19 recognize the right of the state to make laws putting reasonable restrictions for the reasons set out in those sub-clauses. The restrictions which may be imposed under any of the clauses must be reasonable restrictions. Hence, a law restricting the exercise of any of the six freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid, must satisfy two conditions - (i) the restriction must be for the particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right, and (ii) the restriction must be a reasonable restriction.
Reasonable Restrictions : The Supreme Court has laid down the guidelines for determining the reasonableness of restrictions which are as follows - It is the courts and not the legislature which has to judge finally whether a restriction is reasonable or not. The term `reasonable restriction' in Article 19(6) connotes that the limitation imposed on a person in the enjoyment of his right should not be arbitrary or of an excessive nature, beyond what is actually required in the interest of the public. The expression seeks to strike a balance between the individual rights guaranteed by Article 19 and Social Control permitted by clauses (2) to (6) of Article 19. Therefore, the restriction must have a reasonable relation with the object which the legislation seeks to achieve and must never exceeded. There is no definite or absolute test to judge the reasonableness of a restriction. Each case is to be judged on its own merits. The following factors have to be taken into consideration for any judicial verdict - (a) the nature of the right infringed, (b) the underlying purpose of the restrictions imposed, (c) the extent and urgency of the civil wrongs to be remedied, (d) the disproportion of the imposition, (e) the prevailing conditions at that time.
The restriction must be reasonable from the substantive as well as procedural stand point. A restriction which is imposed for securing the objects laid down in the Directive Principles of State Policy may be regarded as reasonable restriction [Hanif Qureshi v. State of Bihar, AIR 1958 SC 731]. The court must determine the reasonableness of a restriction by objective standard and not by subjective one. In other words, the question is not of the court feels the restriction to be reasonable but where a normal reasonable man would regard the restriction to be reasonable. It is the reasonableness of the restriction which is to be determined by the court and not the reasonableness of the law. Restriction may also amount to prohibition under certain circumstances.
The rights guaranteed by Article 19 are available only to citizens and not to an alien or a foreigner. `Citizens' under Article 19 mean only natural persons and not legal persons such as corporations or companies. The only of proving to the satisfaction of the court that the restriction is reasonable is upon the State. The harder the restriction the heavier the owns to prove the reasonableness.
Ans. Freedom of speech and expression is a bulwark of a democratic form of government. Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. According to Article 19(2) the State may make a law imposing reasonable restrictions on the exercise of that right in the interests of the security of state, friendly relations with foreign states, public order, decency or morality, contempt of court defamation, incitement to an offence, or sovereignty and integrity of India. Any limitation on the exercise of the fundamental right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.
Meaning and scope. - Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's ideas through any communicable medium or visible representation, such as, gesture, signs and the like. The expression connotes also publication and thus the freedom of the press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.
The `freedom of speech and expression' includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people, otherwise this freedom would not include the freedom of the press.
Freedom of expression has four broad special purposes to serve:
(1) it helps an individual, to attain self-fulfilment;
(2) it assist in the discovery of truth;
(3) it strengthens the capacity of an individual in participating in decision making; and
(4) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others.
In Union of India v. Association for Democracy Reforms, AIR 2002 SC 2112 the Supreme Court has held that the voters have fundamental right to know about antecedents of candidates contesting election. Democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of a candidate would be meaningless. In the instant case, the petitioners for Democratic Reforms filed a public interest litigation and for direction to implement the recommendations made by the Law Commission in its 170th Report. Freedom of press - The Constitution does not contain any specific provision ensuring freedom of the press which has therefore to depend on Article 19(1)(a). In Ramesh Thapar v. State of Madras, AIR 1950 S.C. 124, the Supreme Court held that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation of a publication, for without circulation, the publication would be of little value. The Supreme Court, therefore held in this case that a ban authorising the Government to impose a ban upon entry and circulation of a journal in a State, is restrictive of freedom of speech and expression and it can be valid only if it falls within Article 19(2). Explaining the concept of freedom of press the Supreme Court stated in Express News Paper v. Union of India, AIR 1958 S.C. 578 that no law could be enacted having the effect of imposing a pre-censorship, curtailing the circulation, restricting the choice of employment or unemployment in the editorial force, preventing news papers from being stated or undermining its independency by driving the press to seek government aid to survive. In this case Supreme Court was called upon to adjudge the validity of the Working Journalist Act, 1955, enacted by Parliament to regulate certain conditions of service of persons employed in news-paper establishment i.e. the payment of gratuity, hours of work, leave, fixation of wages etc. The ground of challenge before the Court was that it would adversely affect the financial position of the marginally situated newspaper which might be forced to go out of circulation and thus the tendency of the Act was to curtail circulation and thereby to narrow the scope of dissemination of information. The Court held the Act valid as it did not take away the right of freedom of speech and expression enjoyed by the petitioners under Article 19(1)(a). In Prabhu Dutt v. Union of India, AIR 1982 SC 6 the Supreme Court has held that the right to know news and information regarding administration of the governments is included in the freedom of press. But this right is not absolute and restrictions can be imposed on it in the interest of society and the individual from which the press obtains the information. They can obtain information from an individual when he voluntarily agrees to give such information. In the instant case the Court directed the Superintendent of the Tihar Jail to permit the Chief Reporter of the Hindustan Times Newspaper to interview Ranga and Billa, the two death sentence convicts, under Article 19(1)(a) as they were willing to be interviewed. The Jail authorities had refused the permission to the newspaper representative to interview the convicts. Imposition of Pre-Censorship on Press Pre-consorship is unconstitutional. The Supreme Court in Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129, held that the imposition of censorship on a journal previous to its publication would amount to an infringement of Article 19(1)(a). In Bennet Colman and Co. v. Union of India, A.I.R. 1973 S.C. 106 the Court held that the newsprint policy is not reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges petitioners rights of freedom of speech and expression. In Express Newspapers (Pvt.) Ltd. v. Union of India, A.I.R. 1986 S.C. 872, it has been held that the notices of re-entry upon, forfeiture of lease and the threatened demolition of the Express building are intended to silence the voice of Indian Express and therefore violative of Article 19(1)(a) of the Constitution. In K.A. Abbas v. Union of India, A.I.R. 1971 S.C. 481, it has been held that the pre-censorship of films is justified under Article 19(2) on the ground films have to be treated differently from other forms of art and expression because of its instant affect on persons who watch it particularly on adolescents. Grounds of Restrictions. - The following are the grounds of restrictions on the freedom of speech and expression as has been mentioned in Article 19(2) of the Constitution.(a) Security of the state,
(b) Friendly relations with foreign states,
(c) Public order,
(d) Decency or morality,
(e) Contempt of Court,
(f) Defamation,
(g) Incitement to an offence,
(h) Integrity and sovereignty of India.
(a) Security of the state. - In the interest of the security of state, reasonable restriction under Article 19(2) can be imposed on the freedom of speech and expression of a citizen. In State of Bihar v. Shashibala Devi, AIR 1952 S.C. 329, the Supreme Court has held that the term, security of state means only to serious and aggravated forms of public disorder like rebellion or waging war against Indian Government. (b) Friendly Relations with foreign states. - The object behind this provision is to prohibit unrestrained malicious propaganda against a foreign friendly Country, which may jeopardise the maintenance of good relations between India and that State. In India, the Foreign Relations' Act (XII of 1932) provides punishment for libel by Indian Citizens against foreign dignitaries. But the interest of friendly relations with foreign states, would not justify the suppression of fair comment of foreign Government. (c) Public Order. - Public Order means and includes absence of direct intention to lead disorder as well as the absence of tendency to lead disorder. A law punishing these disorderly acts is valid as it restricts the right relating to free speech in the interest of public order. In Kishori Mohan v. State of West Bengal, AIR 1972 S.C. 1749, the Supreme Court has held that every infraction of laws must necessarily affect order but not necessarily public order, and an act may affect public order, but not necessarily security of state. (d) Decency or Morality. - Sections 292 to 294 of I.P.C. provide instances of restrictions of freedom of speech and expression in the interest of decency and morality. But it does not lay down any test for determining the obscenity. In Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881, the Supreme Court followed the test laid down in English case of R. v. Hicklin LR 3 QB 360 and held that the novel `Lady Chatterly's Lover' was an obsence book, as it had tendency to corrupt the mind of those who read it. (e) Contempt of court. - Articles 125 and 215 of the Constitution authorise the Supreme Court and the High Court respectively to punish for their contempt. In C.K. Daphtari v. O.P. Gupta, AIR 1971 SC 1132, the Supreme Court ruled that a law relating to contempt imposes reasonable restrictions on the right guaranteed by Article 19(1)(a). (f) Incitement to an offence. - The right to freedom of speech and expression does not give permission to citizens to incite a person to commit an offence. The freedom will be curtailed on this ground and incitement to an offence is made punishable by law. (g) Defamation. - Sections 499 and 500 of I.P.C. define defamation which means exposing a man to hatred, contempt or ridicule. These sections are constitutional as they impose reasonable restrictions on the freedom of speech and expression. (h) Integrity and sovereignty of India. - The right to freedom of speech and expression can be restricted so as not to permit any one to challenge the integrity and sovereignty of India or to preach, ceassion of any part of India from the Indian Union. Accordingly, section 124-A of I.P.C. which punishes the crime of waging war against the State has been upheld as constitutional under this clause.
Ans. Freedom Of Assembly. Article 19(1)(b) guarantees to all citizens of India right "to assemble peaceably and without arms." The right of assembly includes the right to hold meetings and to take out processions. This right is however subject to the following restrictions :-
1. The assembly must be peaceable;
2. It must be unarmed;
3. Reasonable restrictions can be imposed under Clause (3) of Article 19.
The right of assembly is implied in the very idea of the democratic Government. The right of assembly thus includes right to hold meetings and to take out processions. This right, like other individual rights is not absolute but restrictive. The assembly must be non-violent and must not cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected under Article 19(1)(b) and reasonable restrictions may be imposed under clause (3) of Article 19 in the interest of `sovereignty and integrity of India' or `public order'. When a lawful assembly becomes unlawful. - Article 19(1)(b) saves existing Indian law regulating public meetings in the interest of public order if the restrictions are reasonable. If an assembly becomes unlawful it can be dispersed. Chapter VIII of the Indian Penal Code lays down the conditions when an assembly becomes "unlawful". Under Section 141 of the Indian Penal Code, as assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is -(a) to resist the execution of any law or legal process,
(b) to commit any mischief or criminal trespass,
(c) obtaining possession of any property by force,
(d) to compel a person to do what he is not legally bound to do or omit which he is legally entitled to do.
(e) to overawe the Government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.
An assembly which was not unlawsful when assembled may subsequently become unlawful if it becomes violent or is likely to result in disturbance. Under Section 129 of the Criminal Procedure Code, 1973 such an assembly may be ordered to be dispersed if the disturbance to the public peace is reasonably apprehended. Section 151 of the Indian Penal Code makes it an offence not to disperse after a lawful command to disperse has been given. Section 107 of the Criminal Procedure Code empowers Magistrate to obtain security for keeping the peace from any person who is likely to commit a breach of peace. Section 144, Criminal Procedure Code, 1973 empowers the Magistrate to restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or any affray. In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 - It was observed that broadly stated a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is a communication of one's ideas to other to whom it is intended. There are forms of demonstration which would fall within the freedom guaranteed by Article 19(1)(a) and 19(1)(b) A violent and disorderly demonstration would not obviously be within Article 19(1)(a) or (b). But peaceful and orderly demonstration would fall within the freedoms guaranteed under these clauses.
Ans. Article 19(1)(c) guarantees to all citizens the right to form associations or unions. The right to form associations or unions is subject to the restrictions as laid down in sub-clause (4) of the said article. Sub- clause (4) says that nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing in the interest of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Thus restrictions can be imposed on the exercise of the right to form union and associations on the ground of safeguarding public order or morality and integrity and Sovereignty of India.
In Damayanti v. Union of India, AIR 1971 SC 966 the validity of Hindi Sahitya Sammelan Act, 1962 was challenged as violative of Article 19(1)(c). The petitioner was a member of an association. The Act changed the composition of the association and introduced new members. The result of this alteration was that the members who voluntarily formed the association were now compelled to act in the association with other members in whose admission they had no say. The Supreme Court held that the Act violated the rights of the original members of the society to form an association guaranteed under Article 19(1)(c). "The right to form an association", the Court said, "necessarily implies that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the rights to form an association".
In O.K.A. Nair v. Union of India, AIR 1976 SC 1179, the appellants were members of the Civil Employees Unions in the various centres of the Defence Establishments. The Commandant declared their unions as unlawful association. The challenged the validity of the impugned order on the ground that the said order was violative of Article 19(1)(c). The Supreme Court held that the civil employees of the defence establishments answer the description of the members of the Armed Forces within the meaning of Article 33, and therefore they are not entitled to form trade unions.
Restrictions on the Freedom of Association. - The right of the association, like other individual freedom, is not unrestricted. Clause (4) of Article 19 empowers the State to impose reasonable restrictions on the right of freedom of association and union in the interest of "public order" or "morality" or "sovereignty or integrity" of India. It saves existing laws in so far as they are not inconsistent with fundamental rights of association.
In Balakotiah v. Union of India, AIR 1958 SC 232 the services of the appellant were terminated under Railway Services Rules for his being a member of communist party and trade unionist. The appellant contended that the termination from service amounted in substance to a denial to him right to form association. It was held that appellant had no doubt had fundamental right to form association but he had no fundamental right to be continued in the Government Services. Therefore order terminating his services was not in contravention of Article 19(1)(c) because the order did not prevent the appellant from continuing in Communist Party and Trade Union.
Ans. Article 19(1)(d) guarantees to all citizens of India the right "to move freely throughout the territory of India". This right is, however, subject to reasonable restrictions mentioned in clause (5) Article 19 i.e., in the interest of general public or for the protection of the interests of any Scheduled Tribe.
Article 19(1)(d) of the Constitution provides the citizens a right to go wherever they like in Indian territory without any kind of restriction whatsoever. They can move from one state to other and also from one place to another place within any state of India. This freedom cannot be curtailed by any law except within the limits of Article 19(5). In this way Constitution stresses that the entire country is one unit so far the citizens are concerned. The object is to create the sense of nationality in the minds of the citizens.
Grounds of Restrictions. - The state under clause (5) of Article 19 may impose reasonable restrictions on the freedom of movement on two grounds :
(1) In the interest of general public.
(2) For the protection of interest of any Scheduled Tribe.
In N.B. Khare v. State of Delhi, A.I.R. 1950 S.C. 211, the petitioner was served with an order of externment to remove himself from Delhi for a period of three months. The petitioner contended that the order imposed unreasonable restrictions on his right guaranteed under Article 19(1)(d) because : (1) the issue of the order depended on the subjective consideration of the executive; and (2) the Act under which the order was made did not prescribe any time beyond which the order could not continue. Accordingly, it was held by the Supreme Court that the mere fact that the order depended on the subjective considerations of the executive did not make the restriction unreasonable because the desirability of passing such an order in emergency has to be left to an officer. Secondly, as the Act itself was of a limited duration, there was no possibility of an order being made for indefinite period. In State of H.P. v. Umed Ram Sharma, AIR 1986 SC 847 - It was observed that Every person is entiteld to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) to move freely throughout the territory of India and he has also the right under article 21 to his life and that right u/Article 21 embraces not only physical existence of life but the quality of life. Accordingly there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To residents of the hilly areas so far as feasible and possible, society has constitutional obligation to provide road for communications. In State of U.P. v. Kaushalya, A.I.R. 1964 S.C. 416, it was held that the right of movements of prostitutes may be restricted on the grounds of public health and in the interest of public morals. In Raja Sukhandas v. State of U.P., A.I.R. 1974 All 498, the validity of section 3(3) of the U.P. Control of Goondas Act, 1970 was challenged. The Supreme Court, while upholding the validity of the said section of U.P. Goondas Act, observed that the purpose of the Act was to control nefarious activities of the unsocial elements and the Act defined the word Goondas which showed that it covered only such persons who carried on activities which were against the interest of the general public and therefore be prohibited under Clause (5) of Article 19. Restrictions on the right of movement for the protection of the interest of the Scheduled Tribe is based on the fear that uncontrolled mixing of the tribe with the people of other areas might produce undesirable effect upon the tribal people.
Ans. According to Article 19(1)(e), Indian citizens have the right to reside and settle in any part of India. According to clause (5) of Article 19, however, reasonable restrictions can be imposed on this right by law by the state in the general interests of the general public or for the protection of interests of any Scheduled Tribe.
The right of movement and residence go together, for when a person is asked to quit a particular place, both of his rights of movement and residence are affected. Therefore, in matters of restrictions imposed on the citizens regarding movembet or residence at a particular place within the country, the same principles are followed, and most of the cases considered under Article 19(1)(d) are also relevant to Article 19(1)(e).
The freedom to reside and settle may be curtailed and suspended during an emergency. In Ibrahim Wazir v. State of Bombay, AIR 1954 S.C. 299, the appellant an Indian citizen came to India without permit and was arrested and deported to Pakistan by the Government under the Influx from Pakistan (Control) Act, 1949. It was held that the order of removal was invalid as coming a citizen to his home country without a permit was not an offence which would justify his expulsion from the country.
In State of Madhya Pradesh v. Bharat Singh, AIR 1967 S.C. 1170, Section 3(1)(b) of the M.P. Public Security Act, 1959 empowered the State Government to issue an order requiring a person to reside or remain in such a place as may be specified in the order to ask him to leave the place to go to another place selected by the authorities in the interests of security of the state or public order. The Supreme Court held that the impugned Section 3(1)(b) of the Act imposes unreasonable restriction on the right guaranteed by Article 19(1)(e) and therefore, void. The Act did not give any opportunity to be heard to the concerned person about the place where he was asked to reside. Further the section did not indicate the extent of the place, area or its distance from the residence of the person externed.
Ans. Article 19(1)(g) guarantees that all citizens shall have the right "to practise any profession, or to carry on any occupation, trade or business." However, the right to carry on a profession, trade or business is not unqualified. It can be restricted and regulated by authority of law. Thus the State can under clause (6) of Article 19 make any law -
(a) imposing reasonable restriction on this right `in the interest of public', (b) prescribing professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, (c) enabling the State to carry on any trade or business to the exclusion of citizens wholly or partially.
In Sukumar Mukherjee v. State of W.B., (1993) 3 SCC 724 the appellants challenged the validity of West Bengal State Health Service Act, 1990 on the ground that it imposes unreasonable restriction on their right to carry on any occupation, trade or business under Article 19(1)(g) of the Constitution. Section 9 of the Act prohibited private practice by teacher doctors of W.B. Medical Education Service and not by the doctors of W.B. Health Service. When these services were separated the doctors were given an option to join either the WBMES or WBHS. It was held that the restriction imposed by Section 9 is reasonable and in the interest of the general public. The restriction is not on the freedom to practise the medical profession. This applies to those doctors who voluntarily join the Government service. Those who join the government service are bound by the terms and conditions of service and will have no right to private pratice. In Kerala SMT Feb. v. Kerala T.B.O. Association, (1994) 5 SCC 28 the validity of two orders made by the Government of Kerala under Section 4 of the Kerala Marine Fishing Regulation Act, 1980 was challenged by the owners and operators of mechanised boats as violative of their rights to move freely under Article 19(1)(g) (which includes territorial waters). By these orders bottom trawling was prohibited altogether within the territorial waters for a period of 44 days - monsoon period - in the year 1992, and thus their boats were practically confined to the seashore during this period and not to go to sea. The object of this order was to protect the interests of the larger sections of the fishermen and assuring livelihood of traditional fisherman and also conservation of fish wealth and to avoid possible law and order problem in coastal area and the sea. The Court held that the two orders were valid as they imposed reasonable restrictions in public interest. In a significant judgment in Dr. Haniraj L. Chuhani v. Bar Council of Maharashtra in Goa, (1996) 3 SCC 342 the Supreme Court has upheld the validity of a rule of State Bar Council of Maharashtra and Goa, which restricted entry of other professionals into legal profession while they are already carrying any other full time profession. The right to practise any profession, or to carry on any occupation, trade or business is not an absolute right but subject to reasonable restrictions specified in clause (6) of Article 19. The appellant who was a doctor had applied for enrolment as an advocate. The rule made by the Bar Council prevented him from being enrolled as an advocate. The appellant challenged the validity of the rule on the ground that it was violative of his fundamental right under Art 19(1)(g) of the Constitution. The appellant claimed that even though he is medical practitioner, he was entitled to simultaneously carry on the profession as an advocate. The Supreme Court held that the State Bar Council was justified in framing the impugned rule prohibiting the entry of a professional who insists on carrying on other profession. The Judges observed, "The legal profession required full attention and would not countenance, an advocate riding two horses or more at a time. He has to be a full time advocate or not at all." In M/s. B.R. Enterprises v. State of U.P., AIR 1999 SC 1867 the petitioners had challenged the Validity of Lotteries (Regulation) Act, 1988, and the order passed by the State of U.P. in exercise of power vested under Section 5 of the Act banning sale of lottery tickets of other States in the State of Uttar Pradesh as violative of Article 19(1)(g) and Articles 301, 302, and 303 of the Constitution. The Supreme Court, however, has held that lottery contains an element of chance and therefore cannot be trade or commence but is gambling. Sale of lottery tickets organised by the State can not be construed to be trade and commerce within the meaning of Articles 301 to 303 or trade or business under Article 19(1)(g) of the Constitution. The Constitution makers could never have conceived to give protection to gambling either under Article 19(1)(g) or as trade under Article 301 of the Constitution. The difference between gambling and trade is that a gambling inherently contains a chance with the no skill, while trade contains skill with no chance what makes lottery a pernicious is its gambling nature even in the state run lotteries the same elements of chance remains with no skill. Accordingly, the Court held that the ban imposed by the State of Uttar Pradesh on the sale of lotteries is constitutional and not violative of Article 19(1)(g) of the Constitution.
Ans. (A) Protection Against Ex-Post Facto Law
The Clause (1) of Article 20 : Provides protection to the persons accused of crimes against ex-post-facto law - It prohibits the legislature to make retrospective criminal laws. The first part of clause (1) provides that "no person shall be convicted of any offence except for violation of `law in force' at the time of the commission of the act charged as on offence." This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission. The protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex post facto law and not against the trial. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention, or demanding security from a person. The prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law. The second part of clause (1) protects a person from `penalty greater than which he might have been subjected to at the time of the commission of the offence'. But the accused can take advantage of the beneficial provisions of the ex post facto law. The rule of beneficial interpretation required that ex-post-facto law when is beneficial to the accused is not prohibited by clause (1) of Article 20.
In Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 - It was observed that what is prohibited U/Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof, such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to unconstitutional. Article 20(1) in its broad import has been enacted to prohibit convictions and sentences under ex-post facto laws. This article must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of Ex post facto law whether the same was a post-Constitution Law or a pre-Constitution Law.
In G.P. Nayyar v. State (Delhi Admn.), AIR 1979 SC 602 - Article 20(1) deals with Ex post facto laws though that expression has not been used in the article. Though sovereign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of its commission was not an offence or imposition of a penalty greater than that which was under the law provided violates Article 20(1). All that Article 20(1) prohibits is ex- post facto law and is designed to prevent a person being punished for an act or omission which was considered innocent when done. It only prohibits the conviction of person or his being subjected to a penalty under ex-post facto laws.
(B) Protection Against Double Jeopardy
Clause (2) of Article 20 : The clause (2) provides protection to the accused persons against double jeopardy the clause (2) declares that no person shall be prosecuted and punished for the same offence more than once. This clause embodies the common law rule of memo debts vis vexari which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of this former acquittal or conviction. Article 20(2) embodies the following essentials for the application of double jeopardy rule - (1) The person must be accused of an `offence'. The word `offence' as defined in general clauses Act means `any act or omission made punishable by law for the time being in force; (2) The proceeding or the prosecution must have taken place before a `court' or `judicial tribunal'; (3) The person must have been `prosecuted and punished' in the previous proceeding; (4) The `offence' must be the same for which he was prosecuted and punished in the previous proceedings. Proceedings before departmental and administrative authorities cannot be a proceeding of judicial nature. The clause (2) of Article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is a mere continuation of the previous proceeding, e.g., in the case of an appeal against acquittal.
In Venkataraman v. Union of India, AIR 1954 SC 375 - It was observed that -
"The roots of the principle which Article 20(2) enacts are to be found in the well established rule of English law which finds expression in the maxim `Nemo debet bis vexari' - a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English Court, he can plead, as a complete defence his former acquittal or conviction or as it is technically expressed, take the plea or `autrefois acquit' or "autrefois convict."
In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 - It was observed that -In order to invoke the protection of Article 20(2) there must have been a prosecution and punishment in respect of the same offence before a Court of law or judicial tribunal, required by law to decide the matters in controversy, judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The Article contemplates proceedings of the nature of criminal proceedings before Court of law or a judicial tribunal and the prosecution in this context means initiation of proceedings of a criminal nature before such a Court or tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulated the procedure.
In Vekata Raman v. Union of India (supra) it was observed that the language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of criminal proceeding before a court of law or judicial tribunal and not before a tribunal which entertains a departmental or administrative enquiry even though, set up by a statute but which is not required by law to try a matter judicially and on legal evidence. In State of Bombay v. S.L. Apte, AIR 1961 SC 578. It was observed that-"If the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable.
Though S. 26, of the General Clauses Act, in its opening words refers to `the Act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute two offences with which a person is charged. This is made clear by concluding portion of the section which refers to `shall not be liable to be punished twice for the same offence.'
The above construction of Article 20(2) of the Constitution and S. 26 of the General Clauses Act is precisely in line with the terms of S. 403(2) of the Criminal Procedure Code. Where therefore the accused are sought to be punished for the offence under Section 105 Insurance Act, after their trial and conviction for the offence under S. 409, Penal Code, they are not being sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20(3) of the Constitution or of S. 26 of the General Clauses Act, 1897, is not applicable. (c) Prohibition Against Self Incrimination Clause (3) of Article 20 : The clause (3) provides protection to the accused persons against self-incrimination. It provides prohibition against self- incrimination. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. This guarantee extends to any person accused of an offence and prohibits all kinds of compulsion to make him witness against himself. In M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] case the court observed that this right embodies the following essentials; (1) It is a right pertaining to a person who is "accused of an offence"; (2) It is a protection against "compulsion to be a witness"; (3) It is a protection against such compulsion relating to his giving evidence "against himself". A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in normal course may result in his prosecution and conviction. It is not necessary that the actual trial or inquiry should have started before the court. In M.P. Sharma Satish Chandra case, it was held that a person, whose name was mentioned as an accused in the FIR by the police and investigation was ordered by the Magistrate, could claim the protection of this guarantee. The protection under Article 20(3) covers not merely testimonial compulsion in a court room but also compelled testimony previously obtained and any compulsory process for production if evidentary documents which are reasonably likely to support the prosecution against him. The compulsory taking of finger impressions or specimen handwriting of an accused would come within the mischief of Article 20(3). But in State of Bombay v. Kathi Kalu [AIR 1961 SC 1808] case the court held that when a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in the large sense is not included within the expression "to be a witness". Hence, neither seizures made under search warrant, not the compulsory taking of photographs, finger prints or speciman writing of an accused would come within the prohibition of Article 20(3). What is forbidden under Article 20(3) is to compel a person to say something from his personal knowledge relating to the charge against him. The protection under Article 20(3) is available only against the compulsion of accused to give evidence "against himself". But left to himself he may voluntarily waive his privilege by entering into the witness box or by giving evidence voluntarily on request. Request implies no compulsion, therefore, evidence given on request is admissible against the person giving it. To attract the protection of Article 20(3) it must be shown that the accused was compelled to make the statement likely to be incrimination of himself.
Ans. Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Safety of life and liberty of person are the two most essential things in an ordered society. The Constitution assures them not only to Indian citizens but to all persons in India. It has not been left to the whim of the executive to rob a person of his personal liberty and put him in detention. As person may be put in custody, if the law warrants and when he is so put, it should be in conformity with the procedure established by law. All the safeguards that the law prescribes to protect the liberty of person from being jeopardised should be available to a person before he is put in detention.
Personal Liberty. - The word "personal Liberty" under Article 21, imports wide interpretation. In A.K. Gopalan v. State of Madras, AIR 1960 SC 27, "Personal Liberty" was held to mean "Liberty of the physical body, e.g., freedom from arrest and detention from false imprisonment or wrongful confinement." It was said that the expression "Personal Liberty" was antithesis of physical restraint and preventive detention. But this restrictive meaning has not been accepted in the subsequent case Kharak Singh v. State of U.P., AIR 1963 SC 1295, it was held that the expression "life" was not limited to bodily restraint or confinement to person only but something more than mere animal existence. In this case the petitioner, Kharak Singh was charged in a dacoity case but was released as there was no evidence against him. The Police opened a history-sheet against him and he was kept in Police surveillance which included secret picketing of his house by the police, domicillary visits at nights and unification of his movement and activities. The Supreme Court held that the domicillary visits by the police were an invasion on the petitioner's personal liberty. By the term, "Life" as used here, means something more than mere existence. The inhibition against its deprivation; extends to all those limits and faculties by which life is enjoyed. The Court held that the unauthorised intrusion into a person's home and the disturbance caused to him, is the violation of the personal liberty of an individual. Hence the Police Regulation authorising domicillary visits was plainly violative of Article 21 as there was no law on which it could be justified and it must be struck down as unconstitutional.
In Satwant Singh v. Asstt. Passport Officer, New Delhi, AIR 1967 S.C. 1836 the Supreme Court further extended the scope of this Article and held that "right to travel abroad", was part of a person's personal liberty within the meaning of Article 21 of the Constitution. In this case the petitioner who was a citizen of India, had to travel frequently for business purposes. The Government ordered him to surrender the passport but the petitioner challenged it on the ground that the right to travel abroad and return to India, was part of his personal liberty. The Supreme Court accepted the contention of the petitioner and held that the right to travel aboard was part of a person's personal liberty within the meaning of Article 21 and therefore no person can be deprived of his right to travel abroad except according to procedure established by law. In fact there was no law on which the government could justify its action.
Procedure established by law. - The word "Law" in Article 21 refers to law made by the State and not to positive law or law in the abstract sense embodying the principle of natural justice and `procedure established by law' means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislature of the State.
The Supreme Court had held in Maneka Gandhi v. Union of India, AIR 1978 S.C. 597, wherein the petitioner's passport was impounded that the Government was not justified in withholding the reasons for impounding the passport from the petitioner. Delivering majority judgment Justice Bhagwati asked "Is the presentation of some sort of procedure enough or must the procedure comply with any particular requirement ?" He then held the procedure contemplated in Article 21 could not be unfair or unreasonable. And this principle of reasonableness which was an essential element of equality or non- arbitrariness, pervaded Article 14 like a brooding omnipresence and the procedure contemplated in Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. Hence any procedure which permitted impairment of individual's right to go abroad without giving him a reasonable opportunity to be heard, could not but be condemned as unfair and unjust. The order withholding reasons for impounding the passport was therefore not only in breach of statutory provisions of Passport Act but also in violation of the rule of natural justice embodied in the maxim "audi alteram partem". Although there are no positive words in the statute (Passport Act) requiring that the party shall be heard, yet the justice of the Common Law, shall supply this omission of the legislature. The power conferred on the Passport authority to impound the passport under Section 10(3)(c) of the Act, was a quasi-judicial power. The rules of natural justice, would therefore be applicable in the exercise of this power. Fairness in action, therefore, demands that an opportunity to be heard should be given to the person affected. Thus the court gave a new dimension to Article 21 in the Maneka Gandhi Case. It held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity.
Elaborating the same view the Court in Francis Coralie v. Union Territory of Delhi, AIR 1978 SC 597 said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to `live' is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes "the right to live with human dignity", and all that goes along with it, namely, the bare necessities of life such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human being.
Right To Livelihood - In Ollega Tills v. Bombay Municipal Corpo., AIR 1986 SC 180 - Five judge bench of Supreme Court has finally ruled that the word `life' in Article 21 includes the `right to livelihood' also. The court said :
"It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Articles 30(a) and 41 require the State to secure to the citizen an adequate means of livelihood and the right to work, it would be sheer pendentary to exclude the right to livelihood from the content of the right to life."
Similarly in D.K. Yadav v. J.M.A. Industries (1993) 3 SCC 258 Supreme Court held that right to life enshrined under Article 21 includes right to livelihood and therefore before terminating the service of an employee or workman fair play requires that a reasonable opportunity should be given to him to explain his case. Right to shelter. - In Chameli Singh v. State of U.P., (1996) 2 SCC 549 it has been held that the right to shelter is a fundamental right under Article 21 of the Constitution. In any organised society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to benefit himself. Right to live guaranteed in any civilised society implies the right to food, water decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. Right to privacy. - In R. Rajagopal v. State of T.N., (1994) 6 SCC 632 popularly known as "Auto Shanker case" the Supreme Court has expressly held the "right to privacy", or the right to be let alone is guaranteed by Article 21 of the Constitution. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right of the person concerned and would be liable to an action for damages. However, position may be differed if he voluntarily puts into controversy or voluntarily invites or raises a controversy. This rule is subject to an exception that if any publication of such matters are based on public record including court record it will be unobjectionable. Right to Health and access to Medical Treatment :- Of late, the right to health and access to medical treatment has been included in the plethora of right brought under the ambit of Article 21. The attitude of judiciary in expanding the horizons of Article 21 has been analysed with special reference to the right to health and medical assistance as a right under Article 21. In Vincent Panikurlangara v. Union of India, AIR 1987 SC 990 the Supreme Court held that a healthy body is the very foundation for all human activities. So, in a welfare State, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. Further in Parmanand Katara v. Union of India, AIR 1989 SC 2039, a petition was filed under Article 32 of the Constitution, when a private doctor refused to treat a patient who met with an accident because of non-compliance of procedural formalities regarding accident victims. The Court ordered the medical institution to provide medical aid and treatment immediately irrespective of whether the procedural formalities have been complied with. The observation in Parmananda Katara created a new right - the right to get medical aid and it has become an integral part of Article 21 of the Constitution. This stand has been retreated by the apex Court in Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922. Right to end one's own life : - The issue of attempt to commit suicide brought to life again. In 1994 this offence was declared void by the Division Bench of the Supreme Court P. Rathiram AIR 1994 SC 1844. The Court then declared that Section 309 of Indian Penal Code which provides punishment for an attempt to commit suicide, deserved to be effaced from the statute book to humanise our penal laws. But two years thereafter the Full Bench of the apex Court completely overruled the above principle in Smt. Gian Kaur v. State of Punjab case, AIR 1996 SC 1257, by holding that right to life is not like other fundamental rights such as the right to form association and speech which are positive rights. Right to speech includes the right not to speak; the right to form association includes the right not to form association. But right to life does not include the right not to live. Thus a five Judge constitutional bench has set off a controversy on the legality of the right to life. Is it compulsory or optional ? The Court ruled it is compulsory. The State cannot bestow a right to die on the citizens. The State is constitutionally bound to protect a citizen's life, howsoever miserable it may be. In this context Article 21 of the Constitution is its backbone. Right to education : - The Supreme Court of India by a process of judicial interpretation in Mohini Jain's case (AIR 1992 SC 1858) held that the right to education is a fundamental right under Article 21 of the Constitution which can not be denied to a citizen by charging higher fees known as capitation fees. Later on the correctness of Mohini Jain's case was examined by the Full Bench of the apex Court in Unnikrishnan v. State of A.P., AIR 1993 SC 2178. The Five Judge Bench by 3-2 majority partly agreed with Mohini Jain decision and held that right to education is a fundamental right under Article 21 of the Constitution as it directly flows from right to life. But as regards its content the Court partly overruled Mohini Jain case and held that the right to free education can be made available only to children until they complete the age of 14 years but after that the obligation of the State to provide education is subject to the limits of its economic capacity and development. Eighty-Sixth Amendment Act has add a new Article 21-A which makes the right of education of children of the age of 6 to 14 years a fundamental right. It also substitutes Article 45 which is as follows : "The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years". It also added a new fundamental duty to Part IV of the Constitution. Protection against illegal arrest detentions and Custodial Death - In Joginder Kumar v. State of U.P., (1994) 4 SCC 260 the Supreme Court has laid down guidelines governing arrest of a person during investigation. This has been done with a view to strike a balance between the needs of police on the one hand and the protection of human rights of citizens from oppression and injustice at the hands of law enforcing agencies. The Court has held that a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified. Following are the guidelines laid down by the Court :-(1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to have an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
(2) Police officer shall inform the arrested person when he is brought to the police station of this right.
(3) An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power flow from Article 21 and Article 22 of the Constitution and therefore they must be enforced strictly. Prevention of sexual harassment of working women - In a landmark judgment in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in places of their work until a legislation is enacted for the purpose. The Court held that it is the duty of the employer or other responsible person in work- places or other institutions, whether public or private, to prevent sexual harassment of working women. Ban on Smoking in Public Places - In Murli S. Deora v. Union of India, AIR 2002 SC 40 the petitioner filed a public interest litigation in the Supreme Court seeking order for banning smoking in public places. The Court, considering the adverse effect of smoking on smokers and other persons directed Central, State Governments and Union Territories to immediately issue orders banning smoking in public places like hospitals, health institutes, public offices, public transport including railways, court buildings, educational institutions, libraries and auditoriums. Fundamental Right guaranteed under Article 21 of the Constitution, inter alia provides that non-smoker shall not be deprived of his life without due process of law. Right to food - Starvation Death : State to provide free food. - In a significant judgment in PUCL v. Union of India, the Supreme Court has held that the people who are starving because of their inability to purchase foodgrains have right to get food under Article 21 and therefore they ought to be provided the same free of cost by the States out of surplus stock lying with the States particularly when it is unused and rotting.
Ans. Article 22 of the Constitution provides preventive detention laws. The object of preventive detention is to prevent a person from committing a crime and not to punish him as is done under punitive detention. Preventive detention has not been unknown in other democratic countries like England and Canada but there recourse has been had to it only in war time.
The legislative capacity of Parliament or the State legislatures to enact a law of preventive detention, is however, limited to clauses 4 to 7 of Article 22 which lay down a few safeguards for a person subjected to such detention. The scheme of these clauses is to classify preventive detention in three categories, viz. :-
(a) A preventive detention upto two months, provision for which may be made either by Parliament or a state legislature, in such a case, no reference may be made to an Advisory Board :
However Constitution (44th Amendment Act, 1978) has substituted a new clause for clause (4) which now reduces the maximum period for which a person may be detained without obtaining the opinion of Advisory Board from 3 months 2 months. The detention of a person for a longer period than 2 months can only be made after obtaining the opinion of the Advisory Board.
(b) Preventive detention for over three months subject to safeguard of an Advisory Board consisting of persons qualified to act as High Court judges. No person can remain in preventive detention for more than 3 months unless the Board holds that in its opinion, there are sufficient cause for detention. The Supreme Court has held in Puranlal Lakhan Lal v. Union of India, AIR 1958 S.C. 163 that the Advisory Board's function is not to determine the period of detention but only to determine whether the detention by itself is justified.
(c) Preventive detention for over three months without the safeguard of an Advisory Board. Such detention is possible if Parliament prescribes by law the circumstances under which, and the class or classes of cases in which a person may be detained for over three months without reference to Advisory Board.
Parliament may also prescribe the maximum period for which a person can be detained in cases (b) and (c). This provision, it has been held is merely permissive and does not oblige Parliament to prescribe any maximum period. Further, Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under Clause (4). The following safeguards have been provided to a detenu :- (1) Grounds of detention must be communicated - Article 22(5) gives the right to the detenu to be communicated the grounds of detention as soon as possible, the detaining authority making the order of detention must as soon as possible communicate to the person detained the grounds of his arrest and to give the detenu the earliest opportunity of making representation against the order of the detention. In Ram Bahadur v. State of Bihar, AIR 1975 S.C. 245, it has been held that where the order of detention is founded on distinct and separate grounds, if any of the grounds is vague or irrelevant, the entire order must fail. (2) Right of representation. - Article 22 imposes an obligation upon the Government to afford the detenu the opportunity to make representation under clause (5). It makes no distinction between order of detention for only two months or less and those for a long duration. The obligation applies to both kinds of orders. It does not say that the representation will be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. It is clear form clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and dual right in favour of a detenue, namely : (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again in the light of the circumstances of the case considered by the Board before it gives its opinion. (3) Advisory Board. - Article 22 provides that the detenu under the preventive detention law shall have the right to have his representation against his detention reviewed by an Advisory Board. If the Advisory Board reports that the detention is not justified the detenu must be released forthwith. If the Advisory Board reports that the detention is justified the Government may fix the period for detention. The 44th Amendment Act 1978 has amended Article 22 and reduced the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board from 3 months to 2 months. It has also changed the constitution of the Board which shall now consist of a chairman and two other members. The chairman must be a sitting judge of the appropriate High Court and the other members shall be either sitting or retired judges of any High Court. The detenu has no right of legal assistance in the proceedings before the Advisory Board. But if the Government is given such a facility, it should equally be provided to the detenu. The discretion of the Board to permit or not to permit must be exercised in conformity with Articles 14 and 21 of the Constitution i.e., it must not be exercised arbitrarily. Nand Lal v. State of Punjab, AIR 1981 SC 2041. In A.D.M. Jabalpur v. S.S. Shukla, AIR 1976 SC 1207, the Supreme Court had held that when an emergency is declared and the right to enforce fundamental right under Article 21 is suspended no person had right to go to court for challenging the validity of his detention. The effect of decision is that the court would not be empowered to examine the question of mala fide on grounds of the order of detention. In Makhan Singh v. State of Punjab, AIR 1964 SC 381, it had ruled that it could examine the validity of the detention on the ground that the order was passed with malice or there was excessive delegation of power or the provisions of emergency law were not followed. The Court however, held that Makhan Singh's case did not apply in this case. The 44th Amendment now provides that Article 21 will not be suspended during emergency and hence detention can be challenged in the court of law.
Ans. Article-23 of the Constitution of India, prohibits traffic in human being and `begar' and other similar forms of forced labour. The second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law. Clause (2) however permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste, or class or any of them. According to Article 24, no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
`Traffic in human beings' means selling and buying men and women like goods and includes immovable traffic in women and children for immoral or other purposes. Though slavery is not expressly mentioned in Article 23, it is included in the expression `traffic in human being'. Under Article 35 of the Constitution Parliament is authorised to make laws for punishing acts prohibited by this Article. In pursuance of this Article Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956, for punishing acts which result in traffic in human beings.
Article 23 protects the individual not only against the State but also private citizens. It imposes a positive obligation on the State to take steps to abolish evils of "traffic in human beings" and begar and other similar forms of forced labour wherever they are found.
In People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1943 Supreme Court held that scope of Article 23 is wide and unlimited and strikes at "traffic in human being" and "begar and other forms of forced labour" wherever they are found. It is not merely "begar" which is prohibited by Article 23 but also all other forms of forced labour. "Begar" is a form of forced labour under which a person is compelled to work without receiving any remuneration. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. Every form of forced labour "begar" or other forms, is prohibited by Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is paid remuneration or not. Even if remuneration is paid, labour or services supplied by a person would be hit by this Article, if it is forced labour, e.g. labour supplied not willingly but as a result of force or compulsion.
In Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328, it has been held that the payment of wages lower than the minimum wages to the person employed on Famine Relief Work is violative of Article 23. Whenever any labour or service is taken by the State from any person who is affected by drought and scarcity condition the State cannot pay him less wage than the minimum wage on the ground that it is given them to help to meet famine situation. The State cannot take advantage of their helplessness.
In Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802, the Supreme Court held that when an action is initiated in the court through public interest litigation alleging the existence of bonded labour the Government should welcome it as it may give the Government an opportunity to examine whether bonded labour system exists and as well as to take appropriate steps to eradicate that system. This is the constitutional obligation of the Government under Article 23 which prohibits `forced labour' in any form.
Ans. Articles 25 to 28 of the Constitution of India deal with the fundamental rights relating to freedom or religion. There rights are guaranteed to all persons and not merely to citizens. India is a secular State and therefore no preferred religion. All religions enjoy the same Constitutional protection without any discrimination.
Constitutional Provisions. - Article 25 provides that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion subject to public order, morality and health.
Article 26 says that subject to public order, morality, and health every religious denomination or any section thereof shall have the right :
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religions;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Article 27 of the Constitution provides that State shall not compel any citizen to pay any taxes for promotion or maintenance of any particular religious institution. Article 28 lays down that no religions instructions shall be given in any educational institution wholly maintained out of State fund. Meaning of Religion. - The word `religion' has wide connotation. Religion is a matter of faith with individuals. Religion lays down certain code of ethical rules for the observance by its followers. It is not confined to religious belief but extends to various rituals and ceremonies and modes of worship which the followers of a particular religion consider necessary and conducive for the members of their community. In S.R. Bommai v. Union of India, (1994) 3 SCC 1 Supreme Court has held that "Secularism is a basic feature of Constitution". State treats equally a religious and religious denominations. Religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by State by enacting a law. Restrictions on the Freedom of Religion. - The freedom of religion is subject to following restrictions : (1) Public order morality and health. - Nothing can be done in the name of religion which will adversely affect public order, morality and health. In Ghulam Abbas v. State of U.P., (1984) 1 S.C.C. 81, Supreme Court has held that shifting of a property (grave) connected with religion to avoid clashes between two religious Communities or sects is valid and does not affect religious rights being in the interest of public in general. An order under Section 144 of Criminal Procedure Code prohibiting such a procession in the interest of public order and morality is not violative of Articles 25 and 26 of the Constitution. (2) Regulation of Secular and Financial Activities. - Article 25(2)(a) provides that nothing shall affect the operation of any existing law or prevent the state from making any law, regulating or restricting any economic, financial, political or other secular activities which may be connected with religious practice. In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 S.C. 731, it was held that slaughter of a cow on the day of Bakreed, was not an essential element of Muslim religion and hence could be prohibited by law. (3) Social Reforms. - Article 25(2)(b) provides that the state is empowered to pass a law providing for social welfare or social reforms or throwing open of religious institutions of a public character to all classes and sections of Hindus. Under Article 25(2) State can eradicate social dogmas which stand in the way of Country's progress. In State of Bombay v. Narasu Appamali, AIR 1952 Bomb. 84, an Act which prohibited bigamy was held to be valid under Article 25(2)(b). Thus where there is a conflict between the social need and religious practice, religion must yield. Hence, the freedom of religion is confined to only "matters of religion" and state can regulate secular and economic activities connected with religion. In Ismail Faruqui v. Union of India, (1994) 6 SCC 360 the Supreme Court by a majority has held that the State can in exercise of its sovereign power acquire places of worship like mosques, churches, temples etc. which is independent of Article 300-A of the Constitution if it is necessary for maintenance of law and order. Such acquisition per se does not violate Articles 25 and 26 of the Constitution. What is protected under Articles 25 and 26 is a religious practice which forms an essential and integral part of religion. A practice may be a religious practice but not an essential part of religious practice. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential religious practice. Status of mosque in secular India is same as and not higher than that of places of worship of other religion such as temple, church etc. A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims may be offered anywhere, even in open. The right to worship does not include the right of worship at any every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right.
Ans. Cultural and Educational Rights of Minorities
Article 29 and 30 of the Constitution of India guarantees certain cultural and educational rights to the citizens of India. According to Article 29 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. No citizen shall be denied admission into educational institution maintained by the state or receiving aid out of State funds on the grounds only religion, race, caste, language or any of them. According to 'Article 30' all minorities whether based on religion or language, shall have the right to establish and administer educational institution of their choice.
The 44th Amendment Act 1978 has inserted a new clause (1-A) to Article 30 which provides that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
Clause (2) of Article 30 prohibits the State from making discrimination in the matter of grant of aid to any educational institution on the ground that it is managed by a religious minority or linguistic minority.
The fundamental freedom to establish and administer educational institution by minorities guaranteed under clause (1) of Article 30 is absolute in terms. It is not subject to any reasonable restrictions of the nature provided in Article 19 of the Constitution. All minorities, linguistic or religious have under Article 30 an absolute right to establish and administer educational institutions of their own choice. Any law or executive direction which seeks to infringe the substance of that right under Article 30 (1) would to that extent be void.
The right to administer educational institutions of their choice is not, however, an absolute right. This is subject to regulation which are meant for ensuring the efficiency and smooth functioning of the minority institutions. The right to administer is not the right to maladministration. But the regulatory measures must be reasonable and should not be destructive of the minority character of the institution.
In re The Kerala Education Bill, AIR 1958 SC 956, it was observed that a minority community can effectively conserve its language, script or culture by and through educational institutions and therefore, the right to establish and maintain educational institutions of it's choice is a necessary concomitant to the right to conserve it's distinctive language, script or culture and that is what is conferred on all minorities by Article 30 (1). This right however is subject to clause (2) of Article 29 which provides that no citizen shall be denied admission into any educational institutions maintained by the state or receiving aid out of State funds on the grounds only of religion, race, caste, language or any of them. In State of Bombay v. Bombay Education Society, AIR 1954 SC 561 it was observed:
Where a minority, like the Anglo-Indian community, which is based, inter alia on religion and language has the fundamental right to conserve its language, script and culture to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institutions of their choice under Article 30(1), surely then there must be implicit in such fundamental right, the right to impart instruction in their own institutions to the children of their own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to and cannot be permitted to run counter to it.
In W. Proost v. State of Bihar, AIR 1969 SC 465, it was observed that the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institution of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights although it is possible that they may meet in a given case.
In D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 S.C. 1731, the university declared that Punjabi would be the sole medium of instruction in the affiliated colleges. The court held that the right of the minority to establish and administer educational institutions of their choice includes the right to have a choice of medium of instructions also and the university circular was directly infringing upon the rights of minorities to have instructions in Hindi as their own language and, therefore, was violative of Articles 29(1) and 30(1) of the Constitution. The right under Article 30(1) is available to both the pre-Constitution and post-Constitution institutions.
Recently Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355, the 11 Judge Constitutional Bench led by Chief Justice B.N. Kirpal by 6:5 majority has held that minority educational institution not aided by the State cannot be regulated by the State. However, if an institution was aided by the State it can be regulated by the State. The minority community has a right to establish educational institution. The State and universities can, however, provide educational qualifications for the teaching staff. The Court held that the State and the University concerned will not interfere in the management of unaided minority schools so long as the education is transparent and merit is given primacy in admissions more so in professional institutions.
On the question as to who constitutes a minority, the Court said "The linguistic and religious minorities have to be considered on the basis of States and the population therein as the States were reorganised on the basis of language".
Explaining the extent of State control, the Court said admission of students to unaided minority educational institutions where the scope for merit-based selection was practically nil, could not be regulated by the State Government or university, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. However, it said this right is subject to the condition that "admission to the unaided educational institution was on a transparent basis and merit was adequately taken care of".
As regards to aided institutions, the Court made it clear that "a minority institution does not cease to be so, the moment grant-in-aid is received. An aided minority educational institution will be entitled to have the right of admission of students belonging to the minority group. At the same time, it would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further, citizen's rights under Article 29(2) are not infringed."
The Court empowered the State Governments to notify the percentage of non- minority students to be admitted. It would vary according to the types of institutions. The courses of education and other factors such as educational needs observance of inter se merit amongst the minority groups could also be ensured.
Ans. The Constitution (25th Amendment) Act, 1971 added a new Article 31C to the Constitution. This Article was inserted in the Constitution in order to give protection to laws enacted for giving effect to the directive principles contained in Article 39(b) and (c) of the Constitution. Article 31C provides that no law which is passed to give effect to the directive principles contained in Article 39 (b) and (c), shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14 or 19.
Article 31C was again amended by the Constitution (42nd Amendment) Act 1978 which widened its scope so as to cover all directive principles. Thus the Amendment provided that a law enacted for giving effect to all or any of the directive principles laid down in Part V, could not be challenged as violative on the ground that it was inconsistent with or takes away or abridges any of the rights conferred by Article 14 or 19 of the Constitution. It also provides that the law containing a declaration that it is for giving effect to such policy cannot be called in question in any court on the ground that it does not give effect to such policy.
In Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461, the Supreme Court upheld the validity of the new Article 31C of the Constitution. However, it declared the second part of Article 31C as unconstitutional.
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, the Supreme Court struck down Article 31C as amended by the Constitution 42nd Amendment Act, 1978 on the ground that it destroys the basic structure of the Constitution as it disturbs the basic harmony between fundamental rights and the directive principles.
In Waman Rao v. Union of India, AIR 1980 SC 273, the Supreme Court held that Article 31C as it stood before the 42nd Amendment is valid as it gives effect to specific objectives as laid down in Article 39(b) and (c) of the Constitution.
Thus, after this judgement the position is that there is no conflict between the fundamental rights and the directive principles.
Ans. Article 32 of the Constitution of India provides one of the most important Constitutional Remedies. It gives right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part- III of the Constitution.
For the enforcement of the fundamental rights a parallel writ jurisdiction has been conferred on the High Courts under Article 226. As regards the inter- relation between the two articles it appears that Supreme Court's jurisdiction is independent of and is in no way curtailed or qualified by the jurisdiction of High Court. A person aggrieved of violation of his fundamental rights, may come straight to Supreme Court for relief and he is not bound to invoke the jurisdiction of the High Court first. The reason is Article 32 is itself a fundamental right and provides for remedy in case of violation of fundamental right.
In Gopal Das v. Union of India, AIR 1955 SC 1 Supreme Court observed that the sole object of Article 32 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other remedies may be open to a person aggrieved, he has no right to complain under Article 32, where no "fundamental right" has been infringed.
In Kochuni v. State of Madras, AIR 1959 SC 727, the court held the view that Article 32 is the most powerful weapon in the hand of the Supreme Court of India. With this power it keeps the legislature and executive within bounds of their respective powers.
In Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 S.C. 345, it has been held that the jurisdiction conferred on the Supreme Court by Article 32, is an important part of the "basic structure" of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement. When they are violated, Parliament may empower the Supreme Court with such a power under Article 139. But the power of the High Court to issue writs cannot be in derogation of the Supreme Court under Article 226. In other words, an order under Article 32 will supersede the orders of the High Court previously passed.
The power of the Supreme Court to issue writs under Article 32 is a bit narrower than that of the High Courts under Article 226 of the Constitution. Under Article 32 a writ can be issued only for the infringement of fundamental rights guaranteed under Part III. But under Article 226 writs can be issued for the infringement of the fundamental rights or for any other purpose. Thus the High Courts enjoy a wider power under Article 226 to issue writs, orders, or directions.
Following are the cases in which application of Article 32 does not lie:
(1) In Sadhu Singh v. Delhi Administration, AIR 1965 SC 9, it has been held that the court will not under Article 32, interfere with an administrative order, however erroneous, where the constitutionality of the statute or the order made thereunder is not challenged on the ground of contravention of a fundamental right.
(2) Article 32 of the Constitution is not directly concerned with the determination of the constitutional validity of a particular legislative enactment. To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislature list, but that it affects or invades his fundamental rights guaranteed by the Constitution of which he could seek enforcement by an appropriate writ or order - Chiranjeet Lal v. Union of India, 1950 SC 109.
Clause (1) of Article 32 guarantees the right to move the Supreme Court for seeking relief from the Court by way of five writs as contained in the clause. The Supreme Court of India may not only issue above writs but also directions orders or writs similar to the above so far as to fit in with any circumstances peculiar to India. But the remedy must be sought within reasonable time. In Sommawanti v. State of Punjab, AIR 1964 SC 131, Supreme Court has held that where the suspension of fundamental rights has the constitutional protection. Article 32 will have no operation.
Ans. Meaning Writs : According to 'Lord Halsbury' Writ can be called those extraordinary remedies which are issued upon cause shown in cases where the ordinary legal remedies are inapplicable or inadequate.
There are two kinds of writs - The prerogative writs and the original or judicial writs. The original or judicial writs commence between party and party and they issue as of course. The prerogative writs are exceptional processes which issue only upon proper cause shown. As the prefix "Prerogative" suggests they do not originate from the enacted or common law but issue from the sovereign rights of the King as the fountain head of justice. The prerogative writs are ancient remedial process of an extraordinary nature which have from the earliest time issued from the Court of King's Bench in which the sovereign was always present in compensation of law. The jurisdiction to issue such writs was later on extended to the High Court of justice under the Supreme Court of Judicature Act, 1925 in England.
What writs can be issued. - Under Articles 32 and 226 the Constitution of India confers upon the Supreme Court and the High Courts respectively the power to issue direction, orders, or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of the Fundamental Rights and in the case of High Court "for any other purpose" also. In the case of Fertilizer Corporation Kamgar Union v. Fertilizer Corporation (AIR 1981 SC 344), the importance of Article 32 has been explained in following words:-
The Jurisdiction conferred on Supreme Court has been characterised as an important and integral part of the basic structure of the Constitution as it is meaningless to confer fundamental rights without providing any effective machinery and remedy for their enforcement, if and when they are violated.
(i) Habeas Corpus - This write lies when a person has been detained unlawfully. It may be used to secure release of a person from confinement without legal justification. In India, detention may be unlawful if, inter alia, it is not in accordance with law, or there is no valid law to warrant it, or the law is invalid because it infringes a fundamental right or the legislature enacting it exceeds its limit. The great value of this writ is that it enables the immediate determination of the right of a person's freedom.
In Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1983 S.C. 653, the Supreme Court has held that while dealing with the application of writ of habea corpus, production of the body of the person allegedly to be unlawfully detained was not essential. Justice Bhagwati held in this case that in a writ of habeas corpus under Article 32, the production of the body of the person detained, is not necessary for hearing and disposing of the writ-petition by the court. The production of body of the person detained illegally is not the essential feature of the writ of habeas corpus.
Who can apply for the writ. - The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application for habeas corpus can be made by any person on behalf of the petitioner, i.e. his friend or a relation.
The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will also be used for protecting him from inhuman treatment inside the jail.
This writ is issued to the authority who has the aggrieved party in his custody. When on a petition for the writ the court considers that a prima facie case for granting the prayer, has been made out, a rule nisi is called upon the custodian of the prisoner to show cause why the writ cannot be issued. If the cause is shown insufficient, the writ is issued for setting the prisoner free. The writ is not issued if the custodian can satisfy the court that the prisoner is not under unlawful detention. The Supreme Court has held in Janardan v. State of Hyderabad, AIR 1951 SC 217 that if it should appear on the face of return that a person is in detention in execution of a sentence or an indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus.
(ii) Writ of Mandamus : Mandamus is a judicial remedy which is in the form of an order from a superior court to any Government, Court, Corporation or Public Authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty. No one can ask for a mandamus without a legal right. There must be a judicially unforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and obtains from doing it. In the words of the Supreme Court "there must be in the applicant a right to compel the performance of some duty cost on the opponent. The duty sought to be enforced must have three qualities - (i) It must be a duty of a public nature. A duty will be of a public nature if it is created by the provisions of the Constitution or of a statute or some rule of common law. A duty corresponding to a private
(iii) Quo-Warranto : By issuing the writ of quo-warranto the court seeks from the person to whom it is issued information as to the warrant or authority by which the said person supports his right to an office, franchise or liberty. It lies against a person who claims or usurps an office, franchise or liberty with respect to which information is sought so that such person's right to the same may be determined in the light of the authority or warranto cited by such person in support thereof. The writ of quo-warranto cannot be issued unless the defendant is in actual possession of the office and exercises the office - R. v. Green, 2 QB. 460. The holding of a liberty as a matter of fact is a condition precedent to the determination of a right to the same and the calling up of information with regard to it. A motion for a writ of quo warranto can be made at the instance of a private person although he is not personally aggrieved or interested in the matter. The motion does not require the intervention of the Government or any public authority. This type of writ is a discretionary remedy and is not issued as a matter
In G.D. Karkare v. T.L. Shevde, AIR 1952 Nag. 330, the appointment of the Advocate General of Madhya Pradesh was questioned by Quo-Warranto. An objection was take that mere a private individual seeking neither enforcement of his fundamental right nor any other legal right cannot ask for quo- warranto. The High Court held that there was no reason to refuse a citizen under a democratic republican constitution to move for a writ of quo-warranto for testing the validity of high appointment under the Constitution. On merit however, it was held that there was no defect in the appointment questioned in the writ.
The writ of quo-warranto can go only to public offices and not to private bodies like the Managing Committee of a school, as has been held in Amrendra v. Narendra, AIR 1953 Cal. 114.
(iv) Certiorari : It is a command or order by the superior court to an inferior court or tribunal to transmit a record or cause or matter pending before them to the superior court not to proceed with the case which is not within its jurisdiction and also to quash any order made by the court in such a case. If the order of inferior court is found to be without jurisdiction or against the principles of natural justice, it will be quashed.
In Champalal v. The Commissioner of Income Tax, (AIR 1970 SC 645), it was held that a petition for a writ of certiorari may lie to High Court where the order is on the face of it erroneous or raise question of jurisdiction of infringement of fundamental right of the petitioner.
Who may apply. - Any person whose legal right has been violated can apply for the issue of this writ.
Any person may on behalf of a group of persons or society or persons at large.
Grounds on which the writ is issued. - The following conditions must be fulfilled before a writ of certiorari can be issued.-
(1) The act, order or judgment, in respect of which the writ is sought to be issued should be the act, order or judgement of an inferior court or statutory body exercising judicial or quasi-judicial functions.
(2) Such court or body must have acted in absence or in excess of the jurisdiction vested in it the principles of natural justice so as to render such act, order or judgement invalid.
(3) Where there is violation of the principles of natural justice so as to render such act, order or judgement invalid.
(4) When there is an error apparent on the face of record.
In the case of Gujarat Steel Tubes v. Its Mazdoor Sabha, (AIR 1980 SC 1896), Supreme Court explained the meaning of the phrase "error apparent on the face of record". It was held that every order cannot be corrected merely because it is wrong. It can be quashed only if it is vitiated by the Fundamental flow of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of law on the face of order, jurisdictional failure and the like. In Harbanslal v. Jagmohan Saran [AIR (1986) 302], it has been held that the writ of certiorari is issued only if the order of the inferior tribunal or subordinate court suffers from the error of jurisdiction or from breach of principles of natural justice or if vitiated by an apparent error of law. The grounds mentioned above for quashing the orders, are self-explanatory of the term error on the face of record. (v) Prohibition : A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. So writ of Prohibition is issued by a court of Superior jurisdiction directing an inferior court for the purpose of preventing the inferior. Court from usurping a jurisdiction with which it is not legally vested or to compel courts entrusted with judicial duties to keep within the limits of their jurisdiction. Thus the writ lies both for excess of jurisdiction and absence of jurisdiction. Prohibition has much in common with certiorari. Thus both these writs lie against a judicial or quasi judicial body but not against an executive body. But there is one fundamental distinction between the two writs. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Superior Court for a writ of prohibition and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that case or matter and gives a decision, the party aggrieved will have to move the Superior Court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. Sometimes the two writs may overlap. Thus it may happen that in a proceeding before the inferior court a decision might have been passed which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition certiorari for quashing what has had been decided, and prohibition for arresting the further continuance of the proceeding. Broadly speaking, a writ of prohibition will lie when the proceedings are to any extent pending and writ of certiorari for quashing other they have terminated in a final decision. It is well-settled that where proceedings of an inferior court or tribunal are party within and party without jurisdiction, the prohibition will lie against doing what is in excess of jurisdiction. In Bengal Immunity Company Ltd. v. State of Bihar, AIR 1955 SC 661 Supreme Court observed that the existence of an alternative remedy may be more relevant in the context of a writ of a certiorari but where an inferior tribunal is shown to have usurped jurisdiction which does not belong to it that consideration is irrelevant and the writ of prohibition has to be issued as of right.
Ans. Articles 38 to 51 of the Constitution provide certain Directive Principles or policies to be pursued by the Governments in the governance of the country. These principles are embodied as directions to the legislative and executive branches of the government to follow them in their routine working. These Directive principles impose certain obligations on the state to take to positive action in certain directions in order to promote the welfare of the people and to achieve economic democracy.
Directive Principles are more akin to moral rather than to legal precepts as they are non-justiciable. Directive Principles have been included in the Constitution for following reasons:
(1) Constitutional declarations regarding social and economic policies have become increasingly frequent.
(2) Directive Principles have at least educative value.
(3) These principles serve as restraint on those who might capture power.
The Directive Principles require the state to take positive action, and since they can be guaranteed only so far as such action is practicable in the circumstances the state is bound under its constitutional obligation to apply these principles in making laws. In re Kerala Education Bill, AIR 1958 SC 956, the Supreme Court has stated that in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body, the court may not entirely ignore the Directive Principles but should adopt the principle of harmonious construction and should attempt to give effect to both as far as possible. The Directive principles are a ready and dependable index of what a public purpose is intended to be. The Object of Directive Principles : According to Dr. Ambedkar the directive principles are instruments of instructions to the legislature and the executives. Explaining the significance of these principles in the Constitution Dr. Ambedkar said : 'Whoever captures the power, will not be free to do what he likes with it. In the exercise of it, he will have to respect these instruments which are called 'Directive-Principles'. He cannot ignore them.' These principles have the same place as the 'Conventions' in the 'English Constitution' which have come to acquire sanctity not inferior to the sanctity of law or rather superior to it in as much as the strictly legal aspect of things under the English Constitution yields places to the 'Conventions' deemed essential to democracy. These are not justiciable. They are merely guidelines to Government in action. The Directive principle of State Policy are as follows:-Directive Principles generally. - (i) The State shall strive to promote the welfare of the people by securing a social order permitted by social, economic and political justice [Article 38(1)].
(ii) The State shall, in particular strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations [Article 38(2)].
(iii) The State shall endeavour to secure just and human conditions of work, a living wage, a decent standard of living and social and cultural opportunities for all workers (Article 43).
(iv) The State shall endeavour to raise the level of nutrition and standard of living and to improve the health of the people. (Article 47).
(v) Promotion of international peace and amity. (Article 51).
(vi) Equitable distribution of the material resources of the community and prevention of concentration of wealth and means of production (Article 39).
The Constitution (42nd Amendment) Act, 1976, has amended Article 39 (f). The new clause provides that children are given opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. While interpreting, the word 'distribution' used in Article 39(b), Justice Krishna Iyer said in the State of Karnataka v. Ranganath Reddy, AIR 1978 SC 215, that it cannot be given full play as it fulfil the basic purpose of restructuring the economic order. It embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is to undertake distribution as best subserve the common good. It recognises by such distribution the ownership and control. Directive in shaping the policy of the State :-1. To establish economic democracy and justice by securing certain economic rights.
2. To secure a uniform civil code for the citizens (Article 44).
3. To provide free and compulsory primary education (Article 45).
4. To prohibit the consumption of liquor and intoxicating drugs except for medical purpose (Article 47).
5. To develop cottage industries (Article 43).
6. To organise agriculture and animal husbandry on modern lines (Article 48).
7. To prevent slaughter of useful cattle, i.e., cows calves and other milch and draught cattle (Article 48).
8. To organise village Panchayats as units of self-government (Article 40).
9. To protect and maintain places of historic, artistic interest (Article 49).
10. To separate the judiciary from the Executive (Article 50).
11. To promote with special care the educational and economic interest of the weaker sections of the people (Article 46).
Directive in the nature of non-justiciable rights of every citizen:(i) Right to adequate means of livelihood (Article 39(a)].
(ii) Right of both sexes to equal pay for equal work [Article 39(d)].
(iii) Right against economic exploitation [Article 39 (e), (f)]
(iv) Right to work (Article 41).
(v) Right to education (Article 41).
(vi) Right to public assistance in case of unemployment, old age, sickness and other cases of undeserved want (Article 42).
(vii) Free legal aid to safeguarding backward class (Article 39-A).
(viii) Participation of workers in management of industries (Article 43-A).
(ix) Protection and improvement of environment and safeguarding of forests and wild life (Article 48-A).
93rd Amendment Bill, 2001. - The Ninety third (Amendment) Bill, 2001 which will subsequently become The Constitution (86th Amendment) Act 2001 proposes to substitute as new article for Article 45 which provides that "the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
Ans. Relation between Directive Principles and Fundamental Rights : The directive principles differ from fundamental rights in this respect that while fundamental rights are justifiable and Directive Principles are non- justifiable.
Under Article 37 the directive principles, though they are fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws but they are expressly declared non-justiciable. On the other hand fundamental rights are enforceable by the courts and the courts are bound to declare as void any law that is inconsistent with any of the fundamental rights. The Directive Principles are not so enforceable by the courts nor can the courts declare as void any law which is otherwise void on the ground that it contravenes any provisions of the Directive Principles.
It is now definitely settled that a Directive Principle cannot over ride a Fundamental Right. In case of a conflict between a Fundamental Right and a Directive Principle, it is the former nor the latter which prevails. This point was first settled by the Supreme Court in Madras v. Champakam Dorairajan, AIR 1951 S.C. 228, where the Communal G.O. made by Madras Govt., came in conflict with Article 29(2) of the Fundamental Right and therefore could not be supported under Article 46 in pursuance to which the G.O. was said to have been made. The main reason for this approach is that the Fundamental Rights are enforceable where as Directive Principles are unenforceable.
The Supreme Court observed as follows: "The Directive Principles of the State Policy, which by Article 37 are expressly made uneforceable by Courts cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate writs, orders or directions under Article 32. The Chapter on Fundamental Rights is sacrosanct and not liable to abridged by legislative or executive act or orders, except to the extent provided in the appropriate Article in Part III. The Directive Principles of State Policy have to conform and to run as subsidiary to the Chapter on Fundamental Rights. In our opinion that is the correct approach in which the provision found in Part III and IV have to be understood. However, so long as there is no infringement of any fundamental right to the extent conferred by the provisions in Part III, there can be no objection the State acting in accordance with the directive principles set out in Part IV, but subject again to the legislative and executive powers and limitations conferred on the State under different provisions."
In Re Kerala Education Bill, AIR 1957 SC 956, the Supreme Court observed that though the directive principles cannot override the fundamental rights, nevertheless, in determining the scope and ambit of fundamental rights the court may not entirely ignore the directive principles but should adopt "the principles of harmonious construction and should attempt to give effect to both as much as possible."
In Unni Krishnan v. State of A.P., (1993) 1 SCC 645 Supreme Court has reiterated the same principle that the fundamental rights and directive principles are supplementary and complementary to each other and provisions of Part III shall be interpreted having regard to the preamble and Directive Principles of State Policy.
Ans. For the first time, the Constitution (Forty-second Amendment) Act, 1976, enumerates and specifies the fundamental duties of citizens in the Constitution. It is significant to note that in none of the Constitutions of western countries the duties and obligations are specifically defined. The Constitutions of socialist countries lay great emphasis on the duties of citizens. The fundamental duties are intended to serve as a constant specifically conferred on him certain fundamental rights equally, the citizen also is required to observe certain basic norms of democratic conduct and democratic behaviour. While Constitution confers certain fundamental rights on the citizens it also gives power to State to impose reasonable restrictions on these rights. The rights guaranteed by the Constitution are available to the citizens only when they fulfil their duties. This is implicit in the provisions of our Constitution.
The newly added Article 51-A runs as follows:
"51-A. Fundamental Duties. - It shall be the duty of every citizen of India-
(a) to abide by the Constitution and respect its ideals and institutions, the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of enquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective, so that the nation constantly rises to higher levels of endeavour and achievements.
The Constitution (93rd Amendment) Bill 2001 passed by Parliament proposes to add new clause (k) to Article 51-A which provides:-"Who is parent or guardian to provide opportunities for education to his child or as the case be, ward between the age of six to fourteen years."
In AIIMS Students Union v. AIIMS, AIR 2001 SC 3262 "Almost a quarter century after the people of India have given the Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. Fundamental duties, as defined in Article 51A, are not made enforceable by a writ of Court just as the fundamental rights are but it cannot be lost sight of that `duties' in Part IV A. Article 51A are pre-fixed by the same word `fundamental' which was prefixed by the founding fathers of the Constitution to `rights' in Part III. Every citizen of India is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence though Article 51 A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of every citizen of India is the collective duty of the State. Any reservation, apart from being sustainable on the constitutional anvil, must als
Ans. Position of President. - Article 52 of the Constitution lays down that there shall be a President of India. Article 53 (1) provides that the executive powers of the union shall vest in the President. Article 74(1) lays down that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President. Article 74(2) provides that the question whether any advice was given by the Council of Ministers shall not be questioned in any court of law. Article 75 provides that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister. The Ministers shall hold office during the pleasure of the President.
A purely literal interpretation of these provisions conveys the impression that the President if so desires can become a dictator. But this interpretation is not in tune with the spirit of the constitution. In a parliamentary form of Government, the President is a titular head and the real powers are vested with the Council of Ministers. In various cases like Ram Jawaya v. State of Punjab, AIR 1955 SC 544, U.N. Rao v. Indira Gandhi, AIR 1974 SC 2192 and M/s Bishambhar Dayal Chandra Mohan v. State of U.P., AIR 1982 SC 33, the Supreme Court has held that the President is merely a ceremonial head and the real power lies with the Council of Ministers.
The Constitution (42nd Amendment Act, 1976) has now removed all doubts about the position of President to a greater extent. It has amended Article 74 which makes it obligatory for the President to act in accordance with the advice given by the Council of Ministers. But the Constitution (44th Amendment Act, 1978) has inserted a proviso to clause (1) of Article 74 according to which the President may require the Council of Ministers to reconsider such advice either generally or otherwise and the President shall act in accordance with such reconsidered advice. This provision recognises the essential rule of the President that he can advise and guide the Government.
Under our Parliamentary system of Government the President is the Constitutional head of the state while the real power vests in the Council of Ministers. In view of the following provisions the position of the President is clear:
(1) Article 75(3) provides that the Council of Ministers is collectively responsible to the House of People for the executive functions. How can the Council of Ministers be made responsible, for an act which is not performed by it but by the President.
(2) Article 78(a) provides that it shall be the duty of the Prime Minister to communicate the President on any matter on which a decision has been taken by a Minister.....
(3) The President is bound by the advice of the Council of Ministers even after the dissolution of the House of the People. Even after the dissolution of the House, the Council of Ministers remain in office and advise the President in exercise of his powers. Any exercise of powers by the President under such circumstances will be unconstitutional in view of Article 74(1) of the Constitution. (U.N. Rao v. Indira Gandhi, AIR 1971 SC 1002).
Ans. Election of President of India
According to Article 54 of Constitution of India, President shall be elected by the members of an electoral college constituting of (a) the elected members of both houses of Parliament, (b) the elected members of the legislative assemblies of the States.
Article 55 says that so far as practicable there shall be uniformity in the scale of representation of the different States at the election of the President. For the purpose of securing such uniformity among states inter se as well as parity between the states as a whole and the union the number of votes which each elected member of 'Parliament and of the legislative assembly of each state is entitled to cost at such election shall be determined in following manner:-
(a) Every elected member of legislative assembly of a State shall have as many votes as there are multiplies of one thousand in quotient obtained by dividing the population of the State by the total number of the elected member of the Assembly;
(b) if after taking the said multiplies of one thousands the remainder is not less than five hundred then the vote of each member referred to in sub-clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of Legislative Assemblies of the State under sub- clauses (a) and (b) by the total number of the elected members of both Houses of Parliament fractions exceeding one-half being counted as one and other fractions disregarded.
The election of the President shall be held in accordance with the system of proportional by means of the single transferable vote and the voting at such election shall be by secret ballot. The Constitution (42nd Amendment) Act, 1976 substitutes the old explanation given in Article 55. According to the substituted explanation the expression "population" used in Article 55 means the population as ascertained at the last census of which the relevant figures have been published: The reference in the Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census. This change has been brought under the new population policy. Accordingly, it makes consequential change in the relevant articles, namely, 81 and 82 relating to Lok Sabha. Article 170 relating to State Assemblies, Article 330 and 332 relating to reservation of seats for Scheduled Castes and Scheduled Tribes. The number of votes which any voter is eligible to vote for Presidential election may be mathematically represented as follows:(1) The number of votes a member of any Legislative Assembly is eligible to cast be determined in accordance with the following formula:-
Population of State :- 1000
Divided by total number of elected members of State Assembly.
If the remainder after dividing by 1000 is 5000 or more than the vote of each member shall be further increased by one.
(2) The number of votes of a member of Parliament shall be determined in accordance with the following method:-
Total votes assigned to members of all State Assemblies divided by total number of elected members of both Houses of Parliament. If the fraction exceeds one-half than the vote of each MP's will further be increased by one vote. The President and Vice-President Election Act, 1974 provides that the name of the President candidate must be proposed by at least 10 electors and be seconded by 10 electors and also provides for the security deposit of Rs. 2500. In Charan Lal Sahu v. Shri Neelam Sanjeeva Reddy, AIR 1978 SC 499, the Supreme Court observed that Article 58 only provides the qualifications or conditions for the eligibility of a candidate for President Election. It has nothing to do with the nomination of a candidate which requires ten seconders. In re President Election case, AIR 1974 SC 1682, the holding of the election of the President was challenged on the ground that the electoral college as mentioned in Articles 54 and 55 would be incomplete because the Gujarat State Legislative Assembly was dissolved. The Supreme Court held that the election to the office of the President must be held before the expiration of the term of the President, notwithstanding the fact that at the time of such election the Legislative Assembly of Gujarat is dissolved. 1. Qualifications. - Article 58 lays down the qualifications which a person must possess for being elected to the office of the President of India;(a) He must be a citizen of India.
(b) He must have completed the age of 35 years.
(c) He must be qualified for election as a member of the House of the People (i.e. he must be registered as a voter in any Parliamentary Constituency).
(d) He must not hold any office of profit under the Government of India, or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
But the following persons shall not be deemed to hold any office or profit and hence qualified for being a candidate for Presidentship. They are (a) the President and Vice-President of the Union, (b) the Government of any State, (c) the Minister of the Union or of any State [Article 58]. 2. Condition of President's Office. - Article 59 says that the President cannot be a member of either House of Parliament or of a House of the Legislature of any State. If a member of either House of Parliament or of a State Legislature is elected President he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President. The President shall not hold any other office of profit.
Ans. Procedure for impeachment of the President
Article 61 of the Indian Constitution lays down the procedure for the impeachment of the President. The provision of Article 61, are as follows:-
According to Article 61 (1) when a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament. No such charge shall be preferred unless:
(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days notice in writing signed by not less than one fourth of the total number of the members of the House has given their intention to move the resolution (Article 61(2)), and
(b) such resolution has been passed by a majority of not less than two thirds of the total membership of the House. (Article 61(3)).
According to Article 61(4), when a charge has been so preferred by either House of the Parliament the other House shall investigate the charge of cause to be investigated and the Parliament shall have the right to appear and to be represented to such investigation. If as a result of the investigation a resolution is passed by a majority of not less than two thirds of the total membership of caused to be investigated declaring that the charge preferred against the President, has been sustained, such resolution shall have the effect of removing the President from the office as from the date on which the resolution is so passed.
Ans. The powers of the President under the Indian Constitution, are as given below:-
(1) Executive Powers - Article 52 of the Constitution lays down that there shall be a President of India. Further Article 53(1) provides that the executive powers of the union shall be vested in the President and it shall be exercised by him either directly or through officers sub-ordinate to him in accordance with law. The officers sub-ordinate to him, include ministers also. (Emperor v. Srinath, AIR 1945 PC 163).
(2) Power of Appointment - The President shall appoint the Prime Minister and other ministers shall be appointed by the President on the advice of the Prime Minister (Article 75(1). The President appoints:
(i) The Attorney General for India (Article 76);
(ii) The judges of the Supreme Court (Article 124);
(iii) The judges of the High Courts (Article 217);
(iv) Comptroller and Auditor General of India (Article 148);
(v) Governors of States (Article 155);
(vi) Finance Commission (Article 280);
(vii) Members and Chairman of Union Public Service Commission (Article 316);
(viii) Joint Public Service Commission for a group of states (Article 316);
(ix) Commission to investigate on the condition of Backward Classes (Article 340);
(x) Commission to report on the Administration of Scheduled Areas (Article 339);
(xi) Special officers for Scheduled Castes and Scheduled Tribes (Article 338);
(xii) Commission and Committee of Parliament on official language (Article 341).
(3) Military Powers - The President shall be Supreme Commander of the Defence forces and the exercise thereof shall be regulated by law and Parliament shall have power to regulate or control the exercise of military powers by the President. (4) Power to grant pardons - According to Article 72 (1) the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit and commute the sentence of any person convicted by any offence:(a) in all cases where the punishment or sentence is by a Court Marshall.
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive powers of the Union extends.
(c) in all cases where the sentence is a sentence of death.
(5) Emergency Powers : Part XVIII (i.e. Articles 352 to 360) of the Constitution deals with the emergency powers of the President. The emergencies envisaged under the Constitution are of three kinds:- (1) emergency arising out of war, external aggression or armed rebellion [Article 352], (2) emergency due to failure of constitutional machinery in the State, and (3) financial emergency. If the President is satisfied that the security of India is threatened by war, external aggression or armed rebellion [Article 352], or if either on the receipt of report of the Governor of the State or otherwise he is satisfied that a situation has arisen in which the Government of State cannot be carried on in accordance with the Constitution [Article 356] or a situation has arisen whereby the financial stability of India is threatened [Article 360], he may proclaim an emergency. A proclamation of emergency made under Article 352 may be revoked by a subsequent proclamation. Such a proclamation must be laid before each House of Parliament and ceases to operate at the expiration of one month unless approved by both Houses. The President may durin (6) Diplomatic Power : The President appoints ambassadors, Ministers and Consuls to other countries and receives in return corresponding foreign diplomatic representatives. He represents India in the International sphere and can negotiate treaties subject to ratification by Parliament which has the power to legislate on all matters which bring India into relations with foreign countries. (7) Power to Summon and Address Houses of Parliament:(i) The President shall from time to time - (a) summon the houses or either house to meet at such time and place as he thinks fit (b) prorogue the House; (c) Dissolve the House of Parliament (Article 86(1)).
(ii) The President may send message to either House of Parliament whether with respect to a Bill then pending in Parliament, or otherwise, and a House to which any message is so sent shall, with all convenient despatch, consider any matter required by the message to be taken into consideration [Article 86(3)].
(iv) At the commencement of the first session after each general election to the House of the People and at the commencement of the first session of each year the President shall address both Houses of Parliament assembled together and inform Parliament of the cause of its summons [Article 87].
(8) Powers to give assent to Bills, etc. - When a Bill has been passed by the Houses of Parliament it shall be presented to the President and the President shall declare either that he assents to the Bill or that he withholds assent therefrom. But the President may as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill, to the Houses with a message requesting that they will reconsider the Bill or any specified provision thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent the President shall not withhold assent therefrom [Article 111(1)]. No Bill for the formation of a new State or the re-distribution of the boundaries of any State shall be introduced in either Houses of Parliament except on the recommendation of the President. (Article 3). (9) Ordinance-making Power of the President - [Article 123] : Article 123 provides that if at any time when both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may issue such ordinance as the circumstances appear to him to require. The ordinances issued by him shall have the same force as on Act of Parliament. Such ordinances, however, must be laid before both Houses of Parliament and shall cease to operate, at the expiry of the six weeks from the date of re-assembly of Parliament, unless a resolution disapproving it is passed by both Houses before the expiration of six weeks. The President may, if he likes, withdraw such an ordinance at any time. An ordinance promulgated under Article 123 is a law having the same force and effect as an Act of Parliament. Hence, an ordinance will be void in so far it makes any provision which under the Constitution the Parliament is not competent to make. Thus an ordinance cannot violate the fundamental rights. (10) Privilege of the President : Article 361 guarantees the following privilege to the President: 1. The President shall not be answerable to any court for the exercise and performance of the powers and duties of his office or of any act done or purporting to be done by him in the exercise of those powers and duties. However, the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House of Parliament for the investigation of the charge in impeachment proceedings. The immunity afforded to the President will not restrict the right of any person to bring case against the Government of India. 2. No criminal proceedings whatsoever shall be instituted and continued against the President in any Court during the term of office. 3. No process for the arrest or imprisonment of the President shall be issued from any Court during his term of office. 4. No civil proceedings in which relief is claimed against the President shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity whether before or after he had entered upon his office until (a) a notice in writing has been given to the President. (b) two months have passed after the service of such notice, and (c) the notice states the nature of proceeding, the cause of action the name, residence and description of the party taking the proceedings and the relief claimed.
Ans. There shall be a Vice-President of India (Article 63). The Vice-President shall be elected by the members of both Houses of Parliament assembled at a joint meeting in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot [Article 66(1)].
The Presidential and Vice-Presidential Election (Amendment) Act, 1974, provides that the name of the candidates for Vice-President must be proposed by 5 electors and be seconded by 5 electors and also provides for the security of Rs. 2500.
The Vice-President shall not be a member of either House of Parliament or of a House of the Legislature of a State, if a member of either House of Parliament or of a House of the Legislature of any State be elected Vice-President he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Vice-President. [Article 66(2)].
No person shall be eligible for elections as Vice-President unless he (a) is a citizen of India; (b) has completed the age of thirty-five years; and (c) is qualified for election as a member of the Council of States. [Article 66(3)].
A person shall not be eligible for election of a Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments [Article 66(4)].
A person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State [Article 66, Explanation].
The Vice-President shall hold office for a term of five years from the date on which he enters upon his office:
The Vice-President may by writing under his hand addressed to the President, resign his office:
The Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of the People; but no resolution for the purpose of this clause shall be moved unless at least fourteen days notice has been given of the intention to move the resolution.
The Vice-President shall, notwithstanding the expiration of the term of office of Vice-President shall complete before the expiration of the term [Article 68(1)]. An election to fill a vacancy in the office of Vice-President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after the occurrence of the vacancy, and the person elected to fill the vacancy shall, subject to the provisions of Article 67, be entitled to hold office to the full term of five years from the date on which he enters upon his office [Article 68(2)].
Parliament may make such provisions as it thinks fit for the discharge of the function of the parliament in any contingency, not provided for in this Chapter (Article 70).
The Vice-President of India shall be ex-officio Chairman of Rajya Sabha (Article 64) and shall on any vacancy in the office of the President by reason of his death resignation or removal or otherwise act as a President until the date on which a new President is elected to fill such vacancy enters upon his office. Even when the President is unable to discharge his function. Until the date on which the President resumes his duties (Article 65).
Ans. Article 74(1) says that 'there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President, who shall in the exercise of his functions, act in accordance with such advise. Article 74(2) then provides that "the question whether any advice was given by the Minister to President cannot be inquired by any Court."
According to Article 75(1), the Prime Minister shall be appointed by the President and other ministers shall be appointed by President on the advice of the Prime Minister.
So the Constitution of India makes it obligatory for the President to appoint a Council of Ministers and he must exercise his functions with the aid and advice of the ministers. The relation between the President and the Council of Ministers is confidential in view of Article 74(2).
POSITION OF PRIME MINISTER
According to Article 75(1) the Prime Minister is appointed by the President and other ministers shall be appointed by President on advice of Prime Minister. In Parliamentary system of Government, the selection of the Prime Minister is an important function of President. The Prime Minister will be appointed that person who has majority of members in House of People. So in appointing the Prime Minister, the President can hardly exercise discretion and President's choice to select Prime Minister is restricted to the leader of the party in majority in Lok Sabha or a person who is in position to win the confidence of the majority in that House. Thus the paramount consideration for the President in appointment of Prime Minister is to see that the person chosen has support of majority in the House.
According to Article 75(3) "Council of Ministers shall be collectively responsible to the House of the People."
The Council of Ministers consists of three categories of Ministers - Ministers of Cabinet rank, Minister of State and Deputy Ministers. The Cabinet rank Ministers are the heads of their departments. All Cabinet Ministers are not members of the Cabinet. They attend the meetings of the Cabinet when specially invited by the Prime Minister and when the matter concerning their department is discussed by the Cabinet. The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine. The Ministers of State are formally of Cabinet status and are paid the same salary as the Cabinet Ministers and they hold independent charge of their department. The Deputy Ministers are paid lesser salary than the Cabinet rank Ministers and have no separate charge of a department. Their task is to assist the Ministers with whom they are attached to in their administrative duties.
The Cabinet is the smaller body of the Council of Ministers. Though the Indian Constitution nowhere mentions the word Cabinet but it does incorporate the essentials of a Cabinet system of British Government. In Britain, the Cabinet is a child of chance and is essential based upon convention, i.e., unwritten rules. The Cabinet is thus an extra-constitutional growth based upon convention. The Cabinet is the supreme policy making body. The Council of Ministers never meet as a whole it never discusses policy matters. All senior most Ministers are the members of the Cabinet. The Council of Ministers shall be collectively responsible to the House of the People. The Minister must be a member of either House of Parliament.
A non-member can become a Minister - Article 75(5) provides that a Minister who for a period of six consecutive months is not a member of either House of Parliament shall cease to be a Minister at the expiration of that period. Thus, there is no legal bar that a Minister must be a Member of Parliament. An outsider may be appointed a Minister but he must become Member of Parliament within the period of six months. If he is not elected within the time mentioned above he is bound to resign from the legislature.
In S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 it was held that a person who is not a member of either House of Parliament can be appointed by Prime Minister for six months as per Article 75(5).
However in B.R. Chauhan v. State of Punjab, AIR 2001 SC 2707 Supreme Court has held that a non-member who fails to get elected during the period of six consecutive months after his appointment as Minister cannot be re-appointed as Minister.
The Powers & Functions of Prime Minister
The Council of Ministers headed by the Prime Minister is the 'ex-facto' executive head of the State, the President being the formal executive head. The function of the Council of Ministers, is to aid and advise the President. Previously there existed a controversy as to whether the above tendered by the Council of Ministers was binding on the President. The Supreme Court had decided in Ram Jawaya v. State of Punjab, AIR 1995 SC 549 and Shamasher Singh v. State of Punjab, AIR 1974 SC 2193 that the advice of Council of Ministers was binding on the President. After Constitution (44th Amendment Act, 1978), the President may require the Council of Ministers to reconsider such advice. Article 74(2) provides that the question whether any and if so what advice was tendered by ministers to the President shall not be required into in any court.
The Council of Ministers with Prime Minister at its head, normally conducts the administration of the Union Government through the various departments, formulates the policy of the Government, determines its legislative programme and use its initiative in the introduction and passage of legislation. It is the cabinet headed by the Prime Minister, that prepares the Union budget and moves demands for grants. The foreign policy of India is formulated by the cabinet. Even the emergency powers of the President, are actually exercised by the cabinet. In short the Council of Ministers with Prime Minister at the head, is the actual executive of the Union and the President is merely its ceremonial head.
Ans. According to Article 76 the President shall appoint a person who is qualified to be appointed a judge of the Supreme Court of India to be Attorney General of India. The Attorney General shall hold office during the pleasure of the President. He shall receive such remuneration as the President may determine. Thus the power to appoint the Attorney General and to remove him from office is vested in the President, but he exercises this power on the advice of the Council of Ministers.
Duties of Attorney General
The Attorney General gives advice to the Government of India upon such legal matters as may be referred to him and perform such duties of a legal character as may be assigned to him, by the President from time to time. He discharges functions conferred on him by or under the Constitution or any other law.
According to the rules made by the President, the Attorney General, in addition, is required to appear on behalf of the Government of India in all cases in the Supreme Court in which the Government of India is concerned, also he represents the Government of India in any reference made by President to the Supreme Court under Article 143.
The Government of India may also require him to appear in any High Court in any case in which the Government of India is concerned. In the performance of his duties, the Attorney General has the right of audience in all courts in India. He has also the right to speak in and otherwise to take part in the proceedings of either House of Parliament and parliamentary committees. He enjoys all the parliamentary privileges which are available to members of the Parliament.
Ans. According to Article 79 of Constitution, the Parliament of India, shall consists of three organs. The President, the Council of States (Rajya Sabha) and the House of people (Lok Sabha). Though President is not a member of either House of Parliament, yet he is integral part of the Parliament. No Bill passed by the Parliament shall become law unless assented by President, like the English Crown the President is associated with the Parliament of the country.
THE RAJYA SABHA
The Rajya Sabha or Council of State is the upper House of Parliament. The maximum membership of the Rajya Sabha is fixed at 250 of whom 12 shall be nominated by the President and the remainder i.e. 238 shall be representatives of States and Union Territories (Article 80(1).
The representatives of States are elected by the members of the Legislative Assemblies in accordance with the system of proportional representation by means of the single transferable vote. The representatives from the Union Territories are chosen in such a manner a Parliament may by law determine. The allocation of seats to each State or Union Territory and numbers of seats allocated to each in the Rajya Sabha are specified in the Fourth Schedule. The 12 nominated persons are chosen by the President from amongst the persons having special knowledge or practical experience in Literature, science, Art and Social Service [Article 80(3)]. The nominated members do not participate in the election of the President of India.
The Vice-President of India shall be the ex officio Chairman of the Rajya Sabha. The Rajya Sabha shall also elect a member of the House to be a Deputy Chairman [Article 89]. When the office of Chairman is vacant or he is acting as the Vice-President or discharging the function of President, his duties shall be performed by the Deputy Chairman. If the office of the Deputy Chairman is also vacant the duties shall be performed by such member of the Rajya Sabha as the President may appoint for that purpose. The Chairman presides over the sittings of the House and in the absence the Deputy Chairman presides. If both are absent then such person as may be determined by the rule of procedure of the Council and if no such person is present such other person as may be determined by the Council shall act as Chairman [Article 91].
A Deputy Chairman shall vacate his office if he ceases to be a member of the Council. He may resign his office by writing to the Chairman. He may also be removed from his office by a resolution of the Council passed by a majority of all the then member present [Article 90]. But such a resolution can only be moved by giving at least 14 days' notice. While a resolution for the removal of the Chairman (Vice-President) is under consideration, the Deputy Chairman, shall not preside. The Chairman shall have the right to speak and take part in the proceedings but shall have no right to vote on such resolution or on any other proceedings [Article 92].
The Rajya Sabha is a permanent House.
Although, the Rajya Sabha is a permanent body but in respect of powers it enjoys inferior position vis-a-vis the Lok Sabha. A money bill can only be introduced in the Lok Sabha. The Rajya Sabha has no powers in respect of a money bill. A vote of non-confidence cannot be passed against the Government by the Rajya Sabha.
However Rajya Sabha fulfil following purposes:-
(1) It is considered useful because senior-politicians and statesmen might get an easy access in it without undergoing the ordeal of general election necessary for the members of Lok Sabha so that experience and talent is not lost to the country and they may discuss question of public interest.
(2) The existence of Rajya Sabha stops the drastic changes in the law of the country made in the heat of monetary passion and affords opportunity for its reconsideration by delaying its adoption for a limited period.
(3) The Rajya Sabha is a House where the State are represented keeping with the federal principles [Articles 83(a), (b)].
LOK SABHA The maximum number of membership of Lok Sabha is fixed at 545. Article 81 provides that out of 545, 525 will be elected members by election in different territorial constituencies in States and 20 members will represent Union Territories. The members of Union Territories shall be chosen in such a manner as the Parliament may by law provide. The representatives of the states are chosen by direct election from territorial constituencies in the states on the basis of adult suffrage. The President may, if he is of the opinion that the Anglo-Indian community is not adequacy represented in the Lok Sabha, nominate not more than two members of that community to the Lok Sabha. Every citizen of India who is not less than 18 years of age shall be entitled to take part in the parliamentary election and shall have right to vote in the election of Lok Sabha, if he is not otherwise disqualified under the Representation of Peoples' Act. According to Article 81(2)(a) there shall be allotted to each state a number of seats in the Lok Sabha, in such manner that the ratio between that number and the population of the state is, so far as practicable, the same for all states; and (b) each state shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it, so far as practicable, the same throughout the state. Provided that the provisions of sub-clause (a) of clause (2) of Article 81 shall not be applicable for the purpose of allotment of seats in the Lok Sabha to any state so long as the population of the state does not extend to six millions. The allocation of seats in the Lok Sabha to each state is determined on the basis of population. The expression, "population" in this article means the population as ascertained at the last preceding census. The reference in this clause to the last preceding census is census of 1971. The Constitution (42nd Amendment act, 1976) provides that the seats in the Lok Sabha will be allocated on the basis of 1971 census and this will continue to be so till the year 2000. This means that there will be no change in the number of seats in the Lok Sabha on the basis of 1981 and 1991 censuses. The Amendment provides that the re-delimitation of constituencies undertaken after each census shall take effect on such date as the President may by order specify. Seats shall be reserved in the Lok Sabha for the Scheduled Castes and the Scheduled Tribes (Article 330). This reservation was made originally for ten years from the commencement of the Constitution. Now it has been extended to forty years (Article 334). The normal life of the Lok Sabha is five years. This term may be reduced by a dissolution of the House by the President. The normal life of Lok Sabha may be extended where a proclamation of emergency under Article 352 is in operation. Such extension should not exceed one year at a time and not exceed in any case beyond a period of six months after proclamation of emergency has ceased to be in operation (Article 83). Sessions of Parliament - The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session [Article 85(1)]. At the commencement of the first session after each general election to the House of People and at the commencement of the first session of each year the President shall address both Houses of Parliament assembled together and inform Parliament of the causes of its summons (Article 87). The President may address either House of Parliament or both Houses assembled together and for that purpose require the attendance of members. The President may send messages to either Houses of Parliament, whether with respect to a Bill then pending in Parliament or otherwise, and a House to which any message is sent shall with convenient despatch consider any matter required by the message to be taken into consideration. (Article 86). Prorogation of the Houses. - The President may from time to time prorogue the Houses or either House. Prorogation does not end the life of the House. It only terminates its session. The House may need and consider the pending business. Dissolution of Lok Sabha - The President may, from time to time, dissolve the Lok Sabha (Article 85). However, in actual practice this power sis exercised by the Prime Minister and the President dissolves the Lok Sabha on his advice. So long as the Prime Minister is in majority in the legislature the President is bound to dissolve the Lok Sabha if advised by him. But if the Prime Minister looses the majority in the House or defeated in a vote of no- confidence the President will not be bound to dissolve the Lok Sabha on the advice of such a Prime Minister. In such a case, the President may exercise his own discretion.
Ans. Qualification for membership of Parliament - A person for being chosen as a member for Parliament must be (a) a citizen of India, (b) not less than 30 years of age in the case of the Council of States and not less than 25 years of age in the case of House of the People, (c) possessing such other qualification as may be prescribed by Parliament, (d) taken an oath before some person authorised in that behalf by the Election Commission according to form set out for the purpose in Third Schedule [Article 84].
The Representation of Peoples Act, 1951, requires that a person's name should be registered as a voter in any Parliament Constituency.
The Constituency does not prescribe any educational qualification for membership of Parliament.
Disqualifications - A person is disqualified for being chosen and for continuing as a member of Parliament if he suffers from following disqualifications [Article 102]: (a) If he holds any office of profit under Central or the State Government other than an office declared by Parliament by law not to disqualify its holder [Article 102(1)]. (b) If he is of unsound mind and a competent court has declared him to be so. (c) If he is an undischarged insolvent. (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or under any acknowledgement of allegiance or adherence of a foreign state. (e) If he is so disqualified under any law made by Parliament. For this purpose, Parliament has prescribed the necessary disqualifications in the Representation of Peoples Act, 1951.
A Minister in the Central or the State Government is not considered as holding the office of profit [Article 102(2)].
Disqualifications under the Representation of Peoples Act are - (1) Corrupt practice at an election, (2) conviction for an offence resulting in imprisonment for two or more years, (3) failure to lodge an account for election expenses, (4) having an interest or share in the contract for supply of goods or execution of any work or performance of a service to the Government, (5) being a director or managing agent or holding an office of profit in a Corporation in which the Government has 25% share, (6) dismissal from Government service for corruption or disloyalty to the State.
Disqualification on ground of defection - the 52nd amendment has amended Articles 101, 102, 190 and 191 and added a new Schedule, the Tenth Schedule to the Constitution which specifies the disqualifications on the ground of defection. The amendment has added a new clause (2) to Articles 102 and 191 which provide that a member shall be disqualified for being a member of either House of Parliament or of State Legislatures if he incurs the disqualifications specified in the Tenth Schedule:-
(1) if he voluntarily gives up the membership of the political party on whose ticket he is elected to the House; or
(2) if he votes or abstains from voting in the House against any direction of the political party or by any person or authority authorised by it in this behalf, without the prior permission, of such party and unless it has been condoned by the party within 15 days from the date of voting or abstention; or
(3) if any nominated member joins any political party after the expiry of six months from the date on which he takes his seat in the House.
Exceptions - The above disqualification will however not apply (1) if a member of Parliament or State Legislature goes out of his party as a result of a split in the original party provided such group consists of not less than 1/3 of the total membership of that party in the House, (2) if a member goes out as a result of a merger of his original political party with another political party provided 2/3 of the members of the legislature party have agreed to such merger, or (3) if a member, after being elected as the presiding officer gives up the membership of the party to which he belonged, or does not rejoin that party or becomes a member of another party. Decision on questions of disqualification of Members - Article 103 provides that if any question arises as to whether a member of either House of Parliament has become subject to any disqualification mentioned under Article 102 the question shall be referred to the President whose decision shall be final. However, the President is required to obtain the opinion of the Election Commission before giving any decision on matter of qualifications and shall act according to it. According to Article 101 when a sitting member becomes subject to a disqualification after his election he will ipso facto cease to be member and his seat shall become vacant. No person can be a member of both Houses of Parliament at the same time. If a person is elected member of both Houses of Parliament, the Parliament may provide by law in which Houses he will vacate his seat. No person can be a member of both the Parliament and the State Legislature. If a person is so elected then at the expiry of such time as the President may by rules specify, that person's seat in the Parliament shall become vacant unless he has previously resigned his seat in the State Legislature [Article 101(2)]. The Representation of Peoples Act, 1951, provides that if a person is elected to both Houses of Parliament, he must intimate within 10 days from the publication of the election result in which House he desires to serve.
Ans. The most important functions of the Parliament is the making of laws. The legislative powers of the Parliament is initiated through procedure for introduction and passage of a Bill. The Bills may be of two kinds:-
(a) Ordinary Bills, (b) Money Bills
(a) Procedure for passing Ordinary Bills : Except Money Bills and other Financial Bill, a Bill may originate in either House of Parliament. Such a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. A Bill pending in Parliament shall not lapse by reason of prorogation of the Houses. A Bill pending in the Rajya Sabha which has not been passed by the Lok Sabha shall not lapse on the dissolution of the Lok Sabha. A Bill which is pending in Lok Sabha or which having been passed by the Lok Sabha is pending in Rajya Sabha shall, subject to the provision of Article 108, lapse on the dissolution of the Lok Sabha (Article 107). Joint sitting of Both Houses in certain Cases - Article 108 provides that if after a Bill has been passed by one House and transmitted to the other House:(a) the Bill is rejected by other House; or
(b) the Houses have finally disagreed as to the amendments to be made in the Bill;
(c) more than six months have elapsed from the date of the reception of the Bill by the other House without the Bill being passed by it.
Where the President has under clause (1) notified his intention of summoning the Houses to meet in a joint sitting neither House shall proceed further with the Bill, but the President may at any time after the date of his notification, summon the Houses to meet in a joint sitting for the purpose specified in the notification and if he does so, the Houses shall meet accordingly. If at joint sitting of the Houses, the Bill with such amendments, if any, as agreed in the joint sitting is passed by majority of the total number of members of both Houses present and voting, it shall be deemed to have been passed by both Houses for the purpose of this Constitution. Special Procedure in respect of Money Bills - A money Bill shall not be introduced in the Council of States except on the recommendation of the President [Article 117(1)]. After a Money Bills has been passed by the Lok Sabha it shall be transmitted to the Rajya Sabha for its recommendations and the Rajya Sabha shall within a period of fourteen days from the date of its receipt return the Bill to the Lok Sabha with its recommendations and the Lok Sabha may thereupon either accept or reject all or any of the recommendations of the Rajya Sabha. If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Rajya Sabha and accepted by the Lok Sabha. If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the Lok Sabha without any of the amendments recommended by the Rajya Sabha. If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha for its recommendations is not returned to the Lok Sabha within the said period of fourteen days, it shall be deemed to have passed by both Houses at the expiration of the said period in the form in which it was passed by the Lok Sabha (Article 109). Rajya Sabha, thus enjoys only a recommendatory authority over the passage of money Bill. It is not authorised to reject or amount Money Bill passed by the Lok Sabha. ASSENT TO BILLS When a Bill has been passed by both the Houses of Parliament, it shall be presented to President, and the President shall declare either that he assents to the Bill or that he withholds assent therefrom. The President may as soon as possible, after the presentation to him, a Bill for assent, return the Bill, if it is not money Bill, to the Houses with a message requesting that they will reconsider the Bill or any specified provision thereof and in particular will consider the desirability of introducing such amendments as he may recommend in his message and when a Bill is so returned, the House shall reconsider the Bill, accordingly and if the Bill is passed again by the Houses with or without amendment and presented to President for assent the President shall not withhold assent therefrom (Article 111).
Ans. Money Bill - Article 110(1) defines that a Money Bill is a Bill which contains only provisions with respect to all or any of the following matters:-
(a) the imposition, abolition, remission, alteration or regulation of any tax,
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India,
(c) the custody of the Consolidated Fund or the Contingency Fund, the payment or withdrawal of money from such Fund,
(d) the appropriation of money out of the Consolidated Fund of India,
(e) the declaring of any expenditure to be charged on the Consolidated Fund of India,
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State,
(g) any matter incidental to any of the matters specified in sub- clauses (a) to (f).
But a Bill is not money Bill by reason only that it provides for-(a) the imposition of fines or other pecuniary penalties, or
(b) the payment of fees for licence or service rendered, or
(c) imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes [Article 113(2)].
If any question arises whether Bill is a Money Bill or not the decision of the Speaker of the Lok Sabha shall be final. So when a Bill is sent to the Rajya Sabha or presented to the President for assent, a certificate of the Speaker shall be endorsed on it that it is a Money Bill [Article 110(4). A Money Bill can only be introduced in the Lok Sabha. It cannot be introduced in Rajya Sabha [Article 109(1)]. A Money Bill can only be introduced with the recommendation of the President. However, no recommendation of the President is necessary for the moving of an amendment taking provision for the reduction or abolition of any tax [Article 117(1), Proviso]. After a Money Bill has been passed by the Lok Sabha, it is sent to the Rajya Sabha for its recommendations. The Rajya Sabha must return the Bill to the Lok Sabha within 14 days from the receipt of the Bill with its recommendation. The Lok Sabha may either accept or reject all or any of the recommendations of the Rajya Sabha. If the Lok Sabha accepts any of the recommendations by the Lok Sabha, the Money Bill shall be deemed to have been passed by both Houses with the amendments by the Rajya Sabha and accepted by the Lok Sabha. If a Money Bill passed by the Lok Sabha and sent to the Rajya Sabha for its recommendations is not returned to the Lok Sabha within 14 days, the Bill shall be deemed to have been passed by both Houses at the expiration of the said (14 days) period in the form in which it was passed by the Lok Sabha. Thus the Rajya Sabha can at most detain a Money Bill for 14 days only [Article 109]. If the Lok Sabha rejects all the recommendations of the Rajya Sabha, the bill shall be deemed to have been passed by both Houses in the form in which it was passed by the Lok Sabha. Then it will be presented to the
Ans. Annual Financial Statement - Budget [Article 112] - According to Article 112 the President shall in respect of every financial year cause to be laid before both the Houses of Parliament an annual financial statement commonly know as the Budget. This statement gives out the estimated income and expenditure for that year. This estimated expenditure is shown separately under two heads - (a) the sums charged upon the Consolidated Fund of India and (b) the sums required to meet other expenditure out of the Consolidated Fund of India. The expenditure or revenue account should also be distinguished from the other expenditures.
The following expenditures are charged on the Consolidated Fund of India:
(1) The Salary and allowances of the President and other expenditure relating to his office.
(2) Salaries and allowances of the Chairman and Deputy Chairman of the Rajya Sabha and the Speaker and the Deputy Speaker of the Lok Sabha.
(3) Debt charges for which the Government of India is liable.
(4) Salaries, allowances and pensions payable to Judges of the Supreme Court, the Comptroller and Auditor-General of India, Judges of the High Courts and Federal Court.
(5) Any sums required to satisfy any judgement, decree or award of any court or tribunal.
(6) Any other expenditure declared by this Constitution or by Parliament by law to be so charged.
Discussion and voting on Budget - According to Article 113 the expenditure which is charged on the Consolidated Fund of India shall not be submitted to the vote of Parliament. However, Houses are not prevented from discussing any of these items of expenditure. Appropriate Bills - No money can be taken out from the Consolidated Fund of India unless the Appropriation Act is passed [Article 114(3)]. Therefore after the demands for grants under Article 113 are passed by the Lok Sabha, a Bill known as Appropriation Act is introduced in the Lok Sabha. The Bill specifies all the grants made by the Lok Sabha, the expenditure charge on the Consolidated Fund of India as shown in the previous statement before Parliament. But no amendment shall be proposed to the Appropriation Bill which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated fund of India. Supplementary Additional or Excess Grants [Article 115] - If the amount authorised by the Appropriation Act to be expended for a particular service is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year upon some new service not contemplated for that year, for any additional expenditure, a supplementary grant is made by Parliament. The procedure is the same for both the Appropriation Act and the Supplementary grant. Votes on Account - Votes on Credit and Exceptional Grant - Before the Appropriation Act is passed no money is to be withdrawn from the Consolidated Fund of India. But the Government may need money to spend before it is passed. Accordingly under Article 116(a) the Lok Sabha can grant a Limited sum from the Consolidated Fund of India to the Executive to spend till the Appropriation Act is passed by Parliament. Under clause (b) the Lok Sabha can make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service, the demand cannot be stated with details ordinarily given in the Annual Financial Statement. Under Clause (3) the Lok Sabha has the power to make exceptional grant which forms no part of the current service of any financial year. However, it is necessary that Parliament shall make a law for withdrawal of money from the Consolidated Fund of India for the purpose the Lok Sabha has sanctioned the grants either by Annual Appropriation Act or Supplementary Grant, Excess Grant, Votes on Account, Votes on Credit or Exceptional Grant.
Ans. The essence of a federal Constitution is the division of powers between the Central and State Governments. The division is made by a written Constitution which is the Supreme Law of the Land. Since language of the Constitution is not free from ambiguities and its meaning is likely to be interpreted differently by different authorities at different times; it is but natural that disputes might arise between the Centre and its constituent units regarding their respective powers. Therefore, in order to maintain the supremacy of the Constitution, there must be an independent and impartial authority to decide disputes between the Centre and the States or the States inter se. This function can only be entrusted to a judicial body. The Supreme Court under our Constitution is such an arbitration. It is the final interpreter and guardian of the Constitution.
Composition of the Court : Article 124 of our Constitution provides that the Supreme Court of India shall consist of a Chief Justice of India and 25 other judges until the number of judges is increased.
Appointment of Judges : The Judges of the Supreme Court are appointed by the President. The Chief Justice of the Supreme Court is appointed by the President with the consultation of such of Judges of the Supreme Court and the High Courts as he deems necessary for the purpose. But in appointing other Judges. The President shall always consult the Chief Justice of India. He may consult such other Judges of the Supreme Court and High Courts as he may deem necessary [Article 124(2)].
So under Article 124(2) the President, in appointing other Judges of the Supreme Court is bound to consult the Chief Justice of India. But in appointing the Chief Justice of India he is not bound to consult anyone. The word 'may' used in Article 124 makes it clear that it is not mandatory on him to consult anyone.
The appointment and transfer of Judges Cases II - In re Presidential Reference, AIR 1999 SC 1 a nine-judge-bench of the Supreme Court has unanimously held that the recommendation made by the Chief Justice of India on the appointment of Judges of the Supreme Court and the High Courts without following the consultation process are not binding on the Government. The Court also widened the scope of the Chief Justice's consultation process upholding the government's stand on consultation process, the Court gave its opinion on the nine questions raised by the President in his reference to the Supreme Court, under Article 143 of the Constitution. The President had sought the Supreme Court's clarification on the consultation process, as laid down in S.C. Advocates case for the appointment and transfer of Judges following a controversy over the recommendation by former Chief Justice of India M.M. Punchchi. The BJP Government did not agree with his recommendation and referred the matter for the Supreme Court's opinion.
The Court held that the consultation process to be adopted by the Chief Justice of India requires consultation of Plurality of Judges. The expressions "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation of with plurality of Judges in the formation of opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles. The majority held that in regard to the appointment of judges to the Supreme Court under Article 124(2), the Chief Justice of India should consult "a collegium of four seniormost Judges of the Supreme Court" and made it clear that if "two Judges give adverse opinion the Chief Justice should not send the recommendation to the Government." The collegium must include the successor Chief Justice of India. The opinion of the collegium must be in writing and the Chief Justice of India should send the recommendation to the President along with his own recommendations.
The recommendations of the collegium should be based on a consensus and unless the opinion is in conformity with that of the Chief Justice of India, no recommendation is to be made. In regard to the appointment of Judges of the High Courts, the Court held that the collegium should consist of the Chief Justice of India and any two seniormost Judges of the Supreme Court. In regard to transfer of High Court Judge the Court held that in addition to the collegium of four Judges, the Chief Justice of India is required to consult Chief Justices of the two High Courts (one from which the Judge is being transferred and the other receiving him).
The Court held that the appointment of the Judges of higher courts can be challenged only on the ground that the consultation power has not been in conformity with the guidelines laid down in the 1993 judgement and as per opinion given in 1999 decision i.e., without consulting four senior most Judges of the Apex Court.
The decision of the Supreme Court has struck a golden rule. It has made the consultation process more democratic and transparent.
Qualification of a Judge : According to Article 124(3) a person shall not be qualified for appointment as a judge of the Supreme Court, unless he is a citizen of India and
(a) has been at least five years a Judge of a High Court or two or more such courts in succession, or
(b) has been for ten years at least as an Advocate of a High Court or two or more such courts in succession, or
(c) is in the opinion of the President, a distinguished jurist.
REMOVAL OF A JUDGE According to Article 124(4) a judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two third of the members of that House present and voting has been presented to President in the same session of such removal on the ground of proved misbehaviour or incapacity. Article 124(5) provides that Parliament may by law regulate the procedure of the presentation of an address and for the investigation and proof of misbehaviour or incapacity of a judge under clause (4). According to Article 124(6) every person appointed to be a judge of the Supreme Court shall before he enters upon his office make and subscribe before the President or such other person appointed in this behalf by him on oath or affirmation according to form set out for the purpose in the third schedule for allegiance to the Constitution and faithful performance of duties without fear or favour. No person who has held the office of a Judge of the Supreme Court shall plead or act in any Court or before an authority within the territory of India. In a historic judgement in K. Veeraswami v. Union of India, (1991) 3 SCC 655, a five Judge bench of the Supreme Court by a majority of 4-1 has held that a Judge of the Supreme Court and High Court can be prosecuted and convicted for criminal misconduct. Mr. Veeraswami was the Chief Justice of the Madras High Court in 1969. In 1976 the CBI registered a case against him charging him with amassing wealth disproportionate to his known income and had thus committed an offence under the Prevention of Corruption act. When he came to know these developments he proceeded on leave from March 9, 1976 and subsequently retired on April 8, 1976. The appellant filed a petition in the High Court for quashing the FIR filed by CBI which was dismissed. He went to Supreme Court by way of special leave petition. The Supreme Court dismissed the appeal against the Madras High Court and ordered his prosecution. The expression "misbehaviour" in Article 124(5) includes criminal misconduct defined in the Prevention of Corruption Act. The expression "public servant" in Section 6(1)(c) and (2) includes Judges of the High Court and the Supreme Court. The Judges (Inquiry) Act, 1968 enacted by Parliament under Article 124 (5) and the Judges (Inquiry) Rules, 1969 made thereunder provide for removal of a Judge on the ground of proved misbehaviour or inability. It does not provide for prosecution of a Judge for offences under Section 5(1)(e) of the Prevention of Corruption Act.
Ans. The Supreme Court of India is a court of record as provided in Article 129 of the Constitution. Dr. Ambedkar defined a court of record as "a court the record of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court."
Article 129 further provides that the Supreme Court shall have all the powers of such a court including the power to punish for its contempt. This power necessarily follows from that position of the Supreme Court.
Jurisdiction - The Supreme Court of India has three kinds of jurisdiction-
(i) original (ii) Appellate (iii) Advisory
(i) Original Jurisdiction - Article 131 deals with the original jurisdiction of the Supreme Court. The cases of Inter-Government disputes come under its original jurisdiction. The Supreme Court shall have, to the exclusion of any other court, original jurisdiction in any dispute:
(a) between the Government of India and one or more states; or
(b) between the Government of India and any state or states on the one side and one or more other states on the other; or
(c) between two or more states.
The Supreme Court in its original jurisdiction cannot entertain any suit brought by private individual, against the Government of India. The dispute relating to the original jurisdiction of the court must involve a question of law or fact on which the existence of legal right depends. This means that the court has no jurisdiction in matters of political nature. A legal right means a right-recognised by law and capable of being enforced by the power of a state but not necessarily in a court of law. The original jurisdiction of the Supreme Court, however, does not extend to the following matters:(1) The jurisdiction of the Supreme Court shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad, or other similar instrument which was executed before the commencement of the Constitution and continues to be in operation or which provides that the jurisdiction of the Supreme Court shall not extend to such a dispute.
(2) Under Article 264, Parliament may by law exclude the jurisdiction of the Supreme Court in disputes with respect to the use, distribution or control of the water of any inter-state river or river-valley.
(3) Matters referred to the Finance Commission under Article 280.
(4) Matters regarding adjustment of certain expenses between the Union and the State under Article 290.
Ans. Appellate Jurisdiction - Article 132 - The Supreme Court is the highest Court of Appeal in the country. The writ and decrees of the Court run throughout the country.
The Appellant jurisdiction of the Supreme Court can be divided into four main categories:-
(1) constitutional matters,
(2) civil matters,
(3) criminal matters,
(4) special leave to appeal.
(1) Appeal in Constitutional matters - Under Article 132(1) an appeal shall lie to the Supreme Court from any judgement, decree or final order or a High Court whether in civil, criminal or other proceedings, if the High Court certifies under Article 134-A that the case involves a substantial question of law as to the interpretation of this Constitution. Where such a certificate is given any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. The object of the new Article 1340a is to avoid delay in granting certificate by the High Court for appeal to the Supreme Court. Under Article 134-A the High Court can grant a certificate for appeal to the Supreme Court under Article 132 either on its own motion or on 'oral' application of the aggrieved party immediately after passing the judgement, decree or final order. Prior to this, the High Court could do so only on the application of the aggrieved party. Under Article 132(1) three conditions are necessary for the grant of certificate by the High Court:-(1) the order appealed must be against a judgment, decree or final order made by the High Court in civil, criminal or other proceedings.
(2) the case must involve a question of law as to the interpretation of this Constitution, and
(3) if the High Court under Article 134-A certifies that the case be heard by the Supreme Court.
(2) Appeal in Civil Cases - Article 133 provides that an appeal shall lie to the Supreme Court from any judgment decree or final order in a civil proceeding of a High Court only if the High Court certifies under Article 134-A:(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
The Constitution (30th Amendment Act, 1972) has removed the condition of monetary value that an appeal could go to the Supreme Court only when the amount or value in dispute was not less than Rs.20,000. Under the amended provision of Article 133, now an appeal could go to the Supreme Court only if the High Court certifies under Article 134-A that the case involves the substantial question of general importance. In Kiranmal v. Dayanoba, AIR 1983 SC 461, the High Court dismissed the appeal by one word, order "Dismissal" against the judgement of the civil judge. The Supreme Court found that the appellant could have raised serious question of law and facts before the High Court, and therefore, held that it was a fit case which ought to be admitted and disposed off, on merits. The case was remitted to the High Court for disposal on merits. The expression, "civil proceedings" means proceedings in which a party asserts the existence of a civil right. The civil proceeding is one in which a person seeks to remedy by an appropriate process the alleged infringement of his civil rights against another person or the State and which if the claim is proved, would result in the declaration express or implied, of the right claimed and relief, such as payment of debt, damage, compensation etc. There is no ground for restricting the expression "civil proceedings" only to those proceedings which arise out of civil suits in proceedings which are tried as civil suits. Accordingly a proceeding before a High Court under Article 226 for the grant of writ, constitutes a civil proceeding. In an appeal under Article 133, the appellant cannot be allowed to raise new grounds not raised before the lower court. No appeal shall lie, unless Parliament by law otherwise provides to the Supreme Court from the judgment, decree or final order of a single judge of a High Court. This prohibition can be removed by Parliament by law. Such a law will not be an amendment of the Constitution. (3) Appeal in Criminal Cases - Article 134 - According to Article 134 an appeal lies to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court in the following two ways:- (a) Without a certificate of High Court, (b) with a certificate of the High Court. (a) Without a Certificate - Article 134 (a)(b) - An appeal lies to the Supreme Court without the certificate of the High Court if the High Court-(a) has no appeal reversed an order of acquittal of an accused person and sentenced him to death;
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death.
But if the High Court has reversed the order of conviction and has ordered the acquittal of an accused, no appeal would lie to the Supreme Court. (b) With a Certificate - Article 134(c) - Under clause (c) an appeal lies to the Supreme Court if the High Court certifies under Article 134-A that it is a fit case for appeal to the Supreme Court. The power of the High Court to grant fitness certificate in the criminal cases is a discretionary power, but the discretion is a judicial one and must be judicially exercised alongwith the well established lines which govern these matters. It is to be noted that under Article 134(1)(c), the Supreme Court is not constituted as general court of criminal appeal. A limited criminal appellate jurisdiction is conferred upon the Supreme Court by Article 134. Parliament is empowered under Article 134(2) to extend the appellate jurisdiction of the Supreme Court in criminal matters. In exercise of the powers under clause (2) of Article 134 Parliament has enacted the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. Section 2 of the above Act provides - "Without prejudice to the powers conferred on the Supreme Court by clause (1) of Article 134 of the Constitution, an appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court-(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years;
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years."
(4) Appeal by Special Leave - Under Article 136 the Supreme Court is authorised to grant in its discretion special leave to appeal from (a) any judgement, decree, determination, sentence or order, (b) in any case or matter, (c) passed or made by any court or tribunal in the territory of India. This Article vests very wide powers in the Supreme Court. The power given under this Article is in the nature of a special residuary powers which are exercisable outside the purview of ordinary law. Articles 132 to 135 deals with ordinary appeals to the Supreme Court in cases where the needs of justice demand interference by the highest Court of the land. This Article is worded in the widest possible terms. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by any Court or Tribunal (except a Military Tribunal) in any proceedings and the exercise of this power is left entirely to the discretion of the court unfettered by any restrictions and this power cannot be curtailed by any legislation short of amending the Article itself.
Ans. Advisory Jurisdiction : Article 143 of the Constitution vests in the Supreme Court on advisory jurisdiction. According to clause (1) of Article 143, whenever it appears to the President that a question of law or fact has arisen or is likely to arise, which is of such nature and of such public importance that it is expedient to obtain the opinion of Supreme Court upon it, he may refer it to the Court for consideration. The Court then may after such hearing as it thinks fit, report to the President its opinion thereon. Under Clause (2) of this Article, a matter which is excluded from the Supreme Court's jurisdiction under Article 131, may be referred to it for opinion and the court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
In clause (1) of Article 143, the use of the word, "may" indicates that it is not obligatory on the Supreme Court to make a report on the reference made to it. The court has the discretion in the matter and may in proper case, for good reasons, decline to express any opinion on the question submitted to it. However, in clause (2), the word used is "shall" which indicates that it is obligatory for the court to give its opinion on a reference made thereunder.
The experience of a few other countries may be useful and instructive in this respect. The U.S. Supreme Court has consistently refused to pronounce advisory opinions on abstract legal questions. The High Court of Australia has also refused to exercise advisory opinion. But to some extent the same purpose is achieved by permitting an Attorney General to bring proceedings in the High Court to secure a determination of the validity of national or state legislation after its passage by the legislature whether before or after it has entered into force.
In the light of this foreign experience, the Supreme Court of India, has considered the matter of its advisory jurisdiction in Re Kerala Education Bills, 1957 (AIR 1958 SC 956). Following propositions may be called out from its observations therein:
(1) The Supreme Court may in proper case for good reasons decline to express an opinion on a reference made to it under Article 143(1).
(2) The question validity of a bill rather than statute in force, may be referred to the court for Article 143(1) does contemplate reference to a question of law that is "likely to arise".
(3) It is for the President to determine what question should be referred to the court. The court cannot go beyond the reference.
Upto the year 2001, the President has made 11 references to Supreme Court. The important among them are, Re Delhi Laws Act Case in 1951, Re Kerala Education Bills, 1958, Re Berubari Case in 1956, Keshav Singh Case in 1965, the Special Court Reference case in 1978. In 1993 President of India has made a reference to the Supreme Court to express its opinion in Ayodhya Temple/Mosque Case. In a landmark judgment in Ismail Faruqui v. Union of India, (1994) 6 SCC 360 the five judge bench of the Supreme Court comprising held that the Presidential reference seeking the Supreme Court's opinion on whether a temple originally existed at the site where the Babari Masjid subsequently stood was superfluous and unnecessary and opposed to secularism and favoured one religious community and therefore, does not require to be answered. Power to Review its Judgement - The Supreme Court can review its own judgement or order (Article 137) a Review will lie in Supreme Court on :-(1) discovery of new and important matters or evidence;
(2) mistake or error apparent on the face of record;
(3) any other sufficient reason;
In R.D. Sagar v. V.V. Nagary, AIR 1976 SC 2183 Supreme Court point out that a judgement of the final court is final. A review of such a judgement is an exceptional phenomenon, permitted only where a grave and glaring error is made out. The judgement of the Supreme Court will be binding on all courts in India. The expression "all courts, within the territory of India" clearly means courts other than the Supreme Court. Thus the Supreme Court is not bound by its own decisions and may in proper case reverse its previous decisions. In the case of Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, the Court held that "there is nothing in the Indian Constitution which prevents the Supreme Court departing from its previous decision if it is convinced of its error and its beneficial effect on the general interest of public." The Court said, "the Supreme Court should not lightly dissent from its previous decisions. Its power of review must be exercised with due care and caution and only for advancing the public well being in the light of surrounding circumstances of each case brought to its notice but it is not right to confine its power within rigidly fixed limits. Thus it is clear that the doctrine of precedent (stare decisis) is followed in India to a limited extent.
Ans. Article 153 of the Constitution provides that there shall be a Governor for each state. Provided that nothing in this Article shall prevent the appointment of the same person as Governor for two or more states.
According to Article 155, the Governor of a state shall be appointed by the President by warrant under his hand and seal.
No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty five years (Article 156).
The Governor will hold office for a term of a 5 years. Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. The Governor shall hold office during the pleasure of the President.
Conditions of office of the Governor.
According to Article 158, the conditions of office of the Governor will be as follows:
(1) The Governor shall not be a member of either House of Parliament or of a House of the legislature of any state specified in the First Schedule and if a member of either House of Parliament or of a House of the legislature of any such state be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
(2) The Governor shall not hold any other office of profit.
(3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law, and until provision in that behalf, is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
(4) The emoluments and allowances of the Governor shall not be diminished during his term of office.
According to Article 159 every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State or in his absence the senior most judge of that court available on oath or affirmation in the prescribed form.
Ans. Powers of Governor - The head of the State is known as Governor, his powers are analogous to those of the President with certain important distinctions. The President is elected to his office, while Governors are appointed by the President, and hold office during his pleasure and may be dismissed from office by him.
The powers of a Governor may be classified under the following four heads :
(1) Executive (2) Legislative (3) Financial (4) Judicial.
1. Executive powers - The executive powers of the State is vested in the Governor to be exercised by him either directly or through officers subordinate to him (Article 154). All executive actions shall be expressed to be taken in his name. The executive power of a State, shall extent to matter in respect to which the legislature of a State has power to make laws. In any matter with respect to which both the Legislature of a State and Parliament have powers to make laws i.e., if a matter mentioned in the concurrent list the executive power of the State shall be subject to and limited by the executive powers conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. (Article 162). The Governor appoints the Chief Minister and other Ministers on the advice of Chief Minister. The Ministers hold office during the pleasure of the Governor. The Council of Ministers is, however, responsible to the State Legislature or to the Lower House of such Legislature where the Legislature consists of two chambers. This means that so long the ministers enjoy the confidence of the legislature they can not be dismissed by the Governor. This makes the Governor a constitutional head like the President of India. 2. Legislative Power - The Governor is part and parcel of the Legislature of a State which consists fo the Governor and the House or Houses of Legislature as the case may be (Article 168). The Governor nominates one-sixth of the total number of the members of the Upper House of legislative council where such council exists. The Governor makes nominations of persons having special knowledge or experience in literature, science, art, cooperative movement and social service (Article 171). He may nominate two members of the Anglo Indian Community for a period of 10 years from the commencement of the Constitution if he is of opinion that the community is not adequately represented in the State Assembly (Article 333). The Governor summons, prorogues the Houses of the legislature and dissolves the Legislative Assembly (Article 174). He addresses the Houses of the legislature (Articles 175, 176). He gives assent to Bills without which no Bill can become law (Article 200). He sends messages to the legislature (Article 176). The Governor is empowered to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion (Article 166). He appoints the Advocate-General of the State (Article 165). The Chairman and members of the State Public service Commission (Article 316), and the judges of subordinate judiciary in consultation with the State High Court (Article 283, 284). (3) Ordinance making power of the Governor - The most important power of the Governor is the power to promulgate ordinances under Article 213. His power in this respect are similar to those of the President. Ordinances are promulgate when the legislature is not in session and the matters to which the ordinance relates, require an immediate action in this respect. There are certain ordinances which cannot be promulgated without instructions from the President. Such an instruction is required of a Bill containing the same provisions as the ordinance would (i) have required the previous sanction of the President, or (ii) have been reserved by the Governor for the consideration of the President, or (iii) have required the assent of the President before it becomes law (Article 213). (4) Financial powers and functions - No Money Bill or other Financial Bill can be introduced and no demand for grants may be moved in the legislature except on the recommendation of the Governor. The Governor causes the Annual Financial Statement, that is, the Budget is laid before the House or Houses of legislature and is authorised also to place demands for supplementary and additional grant if required in any year. The Governor has the contingency fund of the state at his disposal for emergencies. Subject to limits, if any, fixed by the legislature, the Governor can borrow money on the security of the Consolidated Fund of the State and guarantee the loans of any other local authorities (Articles 205, 207 and 209). (5) Power to grant Pardon etc. - The Article 161 provides that the Governor of a state shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter of which the executive power of the state extends. In K.M. Nanawati v. State of Bombay, AIR 1961 S.C. 99, the Supreme Court held that the power of the Governor to suspend sentences under Article 161 is subject to the rules made by the Supreme Court with respect to only those cases which are pending before it in appeal. It is open to the Governor to grant a full pardon at any time even during the pendency of the case in the Supreme Court, but the Governor can not exercise his power of suspension of the sentence for the period when the Supreme Court is seized of the case. Position of Governor - Like the President of India the Governor is also a mere Constitutional head. Though all the above mentioned powers are vested in him but he is required to exercise his powers with the aid and advice of his Council of Ministers. In Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, the Supreme Court has held that the President and the Governor in India are only Constitutional heads. The real executive power is exercised by the Council of Ministers. The President and the Governor are required to exercise their powers on the advice of the Council of Ministers. In Shamsher Singh v. State of Punjab, AIR 1974 SC 2193, the Supreme Court held that wherever the Constitution requires the 'satisfaction' of the Governor, the satisfaction is the satisfaction of the Council of Ministers and not the personal satisfaction of the Governor. He is merely a Constitutional head. Accordingly, it was held that the removal of the members of the subordinate judiciary by the concerned Minister was valid. Under Article 155 the Governor holds office during the pleasure of the President and continues to hold this office at the discretion of the President. In this respect he occupies the position of a representative of the union in the state. However, Article 163(1) states that there shall be a Council of Ministers with Chief Minister at the head to aid and advise the Governor in the exercise of his functions or any of them in his discretion. Article 239 (2) also states that where a Governor is appointed an administrator, he shall exercise his functions as such administrator independently of his Council of Ministers. Besides a reference may be made to Articles 356 and 200. In making reports to the union the Governor will be justified in exercising his discretion even against the aid and advice of the Council of Ministers. The reason is that the failure of the Constitutional machinery may be because of the conduct of the Council of Ministers. Similarly Article 200 indicates another instance where the Governor may act in reserving a Bill for consideration of the President irrespective of the advice of Council of Ministers in such matter the Governor has to discharge his duties to the last of his judgment and pursue such cause which is not detrimental to the state. As mentioned above, in certain matters the Governor is required by or under this constitution to act in his discretion. In this respect, Governor may be regarded as a link between the union and the states thereby providing an opportunity to the union to have some kind of control over the states. As such, the Governor may be regarded as a representative of the union in the states.
Ans. The Governor is a constitutional head in a State like the President in the Centre. The executive power of the State is vested in him and such power is to be exercised by him directly or through officers subordinate to him in accordance with the Constitution (Article 114). There is a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in matters where the Governor is by, or under the Constitution, required to act in his discretion. The Governor appoints the Chief Minister and other Ministers are appointed by the Governor on the advice of the Chief Minister. All Ministers hold office during the pleasure of the Governor. The Council of Ministers is collectively responsible to the Legislative Assembly of the State and may be removed from office by an adverse vote therein.
Although the Chief Minister is appointed by the Governor but the Governor has no discretion in this matter. He is bound to appoint the leader of the majority party as the Chief Minister. It is only when no party secures majority in the legislature the Governor can exercise his discretion in the selection of the Chief Minister.
The ministers cannot be dismissed by him at his discretion. The ministry is responsible to the Legislative Assembly and therefore, so long as they enjoy the confidence of the majority they cannot be dismissed. The Council of Ministers act as a team and responsible to the legislature and not to the Governor. All decisions are taken by the Council of Ministers. These decisions are conveyed to the Governor by the Prime Minister.
All these provisions make it clear that the Governor is a mere constitutional head and acts through a body responsible to the people. Normally, the Governor is bound to act with the advice of his Council of Ministers in all matters except where he is required to act in his discretion. In Sunil Kumar v. Government of West Bengal, AIR 1950 Cal. 274, the Calcutta High Court observed. "The Governor under the present Constitution cannot act except in accordance with the advice of his Ministers". The only functions which the Governor may be called upon in certain circumstances to exercise in his personal discretion are the following:
(1) Appointment of the Chief Minister.
(2) Dismissal of a Ministry.
(3) Dissolution of the Legislative Assembly.
(4) Under paras 9 and 18 of 6th Schedule in respect of tribal areas in Assam.
(5) In advising the President to impose President Rule in States.
(1) Appointment of the Chief Minister : In normal circumstances he has no discretion in this matter. He is bound to appoint the leader of the majority party as the Chief Minister. But when no party secures a clear majority in the House the Governor may exercise his discretion in this matter. (2) Dismissal of a Minister : The Ministers hold office during the pleasure of the Governor. This means that a Ministry can be dismissed by the Governor. But so long as a ministry enjoys the support of the majority in the legislature the Governor can not dismiss it. However, if a ministry loses the majority support in the House or a non-confidence motion is passed against it, the Governor may dismiss such a ministry. Whether a Ministry has lost the majority or not must be decided on the floor of the House. (3) Dismissal of Legislative Assembly : Normally the Assembly will be dissolved by the Governor on the advice of the cabinet. But when the Chief Minister has lost the majority in the House and advises the Governor to dissolve the Assembly the Governor may refuse to do so. He may take his own decision in this matter. (4) Under para 16(2) of 6th Schedule in respect of tribal areas of Assam : In this respect the Constitution expressly provides that in certain circumstances the Governor might act in his discretion. This is confined to tribal areas of Assam only. (5) In advising the President to impose President rule in States : In this matter the Governor is not required to consult his cabinet. The Governor takes his own decision whether there are circumstances justifying that Government of the State can not be carried on in accordance with the provisions of the Constitution he may then report the matter to the President for appropriate actions under the Constitution.
Ans. (1) Legislative Council : The legislative council is the upper House of State legislature. The total number of members of legislative council shall not exceed one third of the total number of members of legislative assembly provided that total numbers in legislative council of the State shall in no case be less than 40.
Until the Parliament by law otherwise provides composition of legislative council of the State shall be as provided in Clause (3) of Article 17. The total number of members of the legislative Council of the State will be as follow:-
(a) as nearly as may be, one-third shall be elected by electorates consisting to the members of Municipalities, District Boards and such as local authorities in the state as Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the state who have been for at least three years' graduates of any university in the territory of India or have been for at least three years in possession of qualification prescribed by or under any law made by Parliament to that of Graduate of any such university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been at least three years engaged in teaching in such educational institutions within the state, not lower in standard than that of a secondary school, as may be, prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the legislative Assembly of the state from amongst persons who are not members of the Assembly;
(e) The remainder shall be nominated by the Governor in accordance with the provisions of clause (5).
The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under sub-clause (d) of the said clause, shall be held in accordance with the system of proportional representation by means of the single transferable vote. The members to be nominated by the Governor, under sub-clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following namely - literature, science, art cooperative movement and social service. Duration of Legislative Council The Legislative Council is not subject to dissolution but as nearly as one- third of its members shall retire at the end of every second year. Like Council of states, it is also a permanent House. (2) Legislative Assembly (Vidhan Sabha) : The Legislative Assembly in a State is popular House. The minimum number of seats of the Legislative Assembly is fixed at 60 and the maximum number is fixed at 500. The members of Legislative Assembly are chosen directly by the people on the basis of adult franchise from territorial constituencies in the State [Article 170(1)]. The representation in the House is on basis of population in respect of each territorial constituency in the State. The 42nd Amendment had amended Article 170 and added a new Explanation, which provided that the number of seats in State Assemblies would be determined on the basis of the 1971 census and would be frozen till the year 2000. The Constitution (84th Amendment) Act, 2001 has substituted for the figures "2000" the figures "2026". The expression population for this purpose means the population as determined on the basis of 1991 census. The redetermination of the constituencies, on the basis of new census undertaken after the year 2026 will take effect on dates fixed by the President. In the Legislative Assembly of every State, seats will be reserved for the Scheduled Tribes and Scheduled Castes on the basis of population [Article 332]. It's Tenure - The normal tenure of the Legislative Assembly of every State is of five-years but it may be dissolved earlier by the Governor [Article 172]. During the proclamation of emergency the life of the Assembly may be extended by an Act of Parliament for a period of one year at a time but in no case beyond a period of six months after the proclamation has ceased to operate [Article 172]. Qualification of Membership A person to be qualified to be chosen as a member in the State Legislature-(a) must be a citizen of India, and makes and subscribes before some persons authorised by the Election Commission an oath or affirmation prescribed in the Third Schedule;
(b) must not be less than 25 years of age in the case of the Legislative Assembly and not less than 30 years in case of the Legislative Council;
(c) must possess much other qualification as may be prescribed by Parliament by law [Article 173].
Disqualification of Membership A person is disqualified for being chosen as a member of the Legislature of a State -(a) if he holds any office of profit under the Central or State Government, or
(b) if he is of unsound mind,
(c) if he is an undischarged insolvent,
(d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence of a foreign State.
(e) if he is so disqualified by or under any law of Parliament [Article 191].
Article 19 deals with the disqualifications incurred by a member after he has been elected as member. It says that "no one can be a member of both the Houses of the Legislature of a State or a member of the Legislature of two or more States at the same time". If a person is chosen a member of the Legislature of two or more States then at the expiry of the specified period under rules made by President his seat in the Legislature shall fall vacant unless he resigns his seat in all but one of the States. If a member of State Legislature absents himself, without the permission of the House from all meetings for a period of sixty days (excluding the period for which the House is prorogued or is adjourned for more than four consecutive days) the House may declare his seat vacant [Article 190(3), (4)]. If a member becomes disqualified under Cl. (1) of Article 191 his seat shall become vacant.
Ans. (i) Procedure for Ordinary Bills : Article 196 of the Constitution provides provision as to introduction and passing of ordinary bills. It lays down:
(1) Subject to the provisions of Article 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of State Legislature having Legislative Council.
(2) Subject to the provisions of Article 1987 and 198 a Bill shall not be deemed to have been passed by the Houses of the legislature of a state having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
According to Article 197(1) if a Bill has been passed by the Legislative Assembly of a state having a Legislative Council and transmitted to the Legislative Council:
(a) the Bill is rejected by the Council; or
(b) more than three months elapsed from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the legislative Assembly does not agree;
the Legislative Assembly may, subject to the rules regulating its procedure, pass the Bill again in the same or in any subsequent session with or without such amendments, if any, as have been made, suggested or agreed to by the Legislative Council and then transmit the Bill as so passed to the Legislative Council. Article 197(2) provides that if a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council-(a) the Bill is rejected by the council; or
(b) more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree;
the Bill shall be deemed to have been passed by the Houses of the legislature of the state in the form in which it was passed by the Legislative Assembly for the second time with and amendments, if any, as has been made or suggested by the Legislative Council and agreed to by the Legislative Assembly. Money Bills : A Money Bill must originate in the Lower Houses of the State Legislature (Legislative Assembly). A Money Bill cannot originate in the Legislative Council. After a Money Bill has been passed by the Legislative Assembly, it shall be transmitted to the Legislative Council for its recommendations. The Legislative Council must return the Bill to the Legislative Assembly with its recommendations within a period of 14 days from the date of its receipt of the Bill. The Legislative Assembly may either accept or reject all or any of the recommendations of the Legislative Council. If the Legislative Assembly accept any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed by both Houses, with the amendments recommended by the Legislative Council and accepted by the Legislative Assembly. If the Legislative Assembly rejects all the recommendations of the Council the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the Legislative Assembly. But if a Bill is not returned by the Council within 14 days, it shall be deemed to have been passed by both Houses at the expiration of such period in the form in which it was originally passed by the Legislative Assembly [Articles 198 and 199]. Assent to Bills (Article 200) - When a Bill has been passed by both the Houses the Bill is sent to Governor for his assent. He may declare either that: (a) he assents to the Bill, (b) he withholds his assent, (c) he reserves the Bill for the consideration of the President. At least in one case, where a Bill is likely to affect the powers of the High Court of a State, the Governor must reserve it for the consideration of the President, (d) he may return the Bill to the Houses for reconsideration. In the last case when a Bill, returned by the Governor for the reconsideration of the Houses, is passed again by the Houses with or without amendments and presented to the Governor for assent, the Governor shall not withhold assent second time. This means that he cannot reject the Bill. He must give his assent or reserve the Bill for the consideration of the President. Bills Reserved for President's consideration - (Article 201) - Under Article 201 the Governor may reserve certain Bills passed by the State Legislature for the consideration of the President. When a Bill is reserved by a Governor for the consideration of the President, the President may take one of the three courses-1. He assents to the Bill,
2. He withholds his assent to the Bill, or
3. He may, where the Bill is not a Money Bill, direct the Governor to return the Bill to the Houses of the State Legislature together his suggestions as referred to in the first proviso to Article 200. It shall be the duty of the Legislature to reconsider the Bill within a period of 6 months. If it is again passed by the Houses it shall be presented to the President for his consideration.
Procedure in financial matters (Articles 202 to 207) - In financial matters the procedure in the State is similar to that in Union. The procedure for the submission of the Annual Financial Statement, or the passing of the 'Annual Appropriation Act', 'Votes of Credit', 'Votes on Accounts' and Supplementary Grants, etc., is analogous to that in the Union under Article 112. General Rules of Procedure - As in the case of the Centre, a House of the Legislature of a State has right to make rules for regulating its procedure and conduct of his business. These rules are subject to the provisions of the Constitution [Article 208]. The validity of any proceedings in the Legislature shall not be called in question on the grounds of alleged irregularity of the Procedure [Article 212].
Ans. Article 214 says that there shall be a High Court in each State. However, under Article 231(1) Parliament can establish by law a common High Court for two or more States or for two or more States and a Union Territory. The High Court stands at the head of the Judiciary in the State.
Constitution of High Courts - Every High Court consists of a Chief Justice and such other Judges as the President may, from time to time, deem it necessary to appoint (Article 216). Thus the Constitution does not fix any maximum number of Judges of a High Court.
Appointment of Judges - Article 217 provides that every judge of a High Court shall be appointed by the President. The President appoints the Chief Justice of a High Court after consultation with the Chief Justice of India and the Governor of the State concerned. In case of appointment of a Judge other than the Chief Justice he may consult even the Chief Justice of the High Court concerned.
In S.P. Gupta & others v. Union of India, AIR 1982 SC 149, popularly known as the Judges Transfer case the question was whether in appointing the additional Judges of the High Courts the President was bound by the advice of the Chief Justice of India. Under Article 217 the President is obliged to consult the three functionaries, the Chief Justice of India, the Chief Justice of High Court and the Governor of the State.
In this context the majority held that the opinion of the C.J. of India had no primacy over the opinion of the Chief Justice of the High Court under Article 217. According to Bhagwati, J., all the three functionaries, Chief Justice of High Court, Chief Justice of India, and the Governor of a State are given equal importance in the consultation process and there is no superiority over the opinion of one over that of another.
In a historic judgement, S.C. Advocate-On-Record v. Union of India, (1993) 4 SCC 441 a nine judge Bench of the Supreme Court by a 7:2 majority overruled the Judges Transfer case and held that in matter of appointment and transfer of judges greatest significance should be attached to the view of the Chief Justice of India. The majority gave primacy to the opinion of the Chief Justice of India formed in consultation with two senior most judges of the Supreme Court in regard to appointment and their transfers. The Court held that the process of appointment must be initiated by the Chief Justice of the High Court. In the event of conflicting opinion by the constitutional functionaries, the opinion of the judiciary symbolised by the view of the Chief Justice of India, formed after consulting some of his colleagues has primacy.
In re Presidential Reference, AIR 1999 SC 1, known as 'Appointment and Transfer of Judges case' a nine-member-Bench of the Supreme Court has unanimously held that recommendations made by the Chief Justice of India on the appointment of judges of the Supreme Court and High Courts without following the consultation process are not binding on the Government.
The Court has widened the scope of Chief Justice of India's consultation and held that the consultation process to be adopted by the CJI under Articles 217(1) and 222(1) requires consultation of plurality of judges. The sole opinion of CJI does not constitute consultation process. The Court held "recommendations made by the CJI without complying with the norms and guidelines regarding the consultation process are not binding on the Government."
In regard to the appointment of Judges of the High Courts, the Court held that the CJI should consult "a collegium of two senior most judges of the Supreme Court."
Transfer of a judge from one High Court to another - Article 222(1) empowers the President after consultation with the Chief Justice of India to transfer a Judge from one High Court to any other High Court. Clause (2) makes provisions for the grant of compensatory allowance to a Judge who goes on transfer to another High Court.
In Union of India v. Sankalchand, AIR 1977 SC 2328 the constitutionality of a notification issued by the President by which Justice Sankalchand Sheth of the Gujarat High Court was transferred to the High Court of Andhra Pradesh, was challenged on the ground that the order was passed without the consent of the Judge and against public interest and without effective consultation of the Chief Justice of India. The Supreme Court held that a Judge of a High Court could be transferred under Article 222(1) without his consent. If consent was imported in Article 222 so as to make condition precedent to transfer a Judge from one High Court to another than a Judge by withholding consent could render the power contained in Article 222 wholly ineffective and nugatory. The power to transfer a High Court Judge is conferred by the Constitution in public interest and not for the purpose of providing the Executive with a weapon to punish a Judge who does not touch its line or who, for some reason or the other, has fallen from its grace.
Qualifications - A person to be qualified for appointment as Judge of a High Court.-
(a) must be a citizen of India,
(b) must have held a judicial office for at least ten years, in the territory of India,
(c) must have been an advocate of High Court for at least ten years. [Art 217(1) and (2)].
Term and removal of Judges - A Judge of the High Court shall hold office until he attains the age of 62 years. If a question arises as to the age of a Judge of a High Court, then it shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. [Article 217(3)]. A Judge may, however, be removed from the office by the President in the same manner and on the same grounds as a Judge of the Supreme Court. The office of a Judge falls vacant by his being appointed by President to be Judge of the Supreme Court or being transferred to any other High Court. A Judge may also resign his office by writing to the President. [Article 220].
Ans. Jurisdiction of High Courts
The Constitution does not make any detailed provisions regarding the general jurisdiction of the High Courts. Under Article 225, the jurisdiction of the High Courts, the law administered by them, the respective powers of their Judges in relation to the administration of justice by the Court and their rule making power, all are to be the same as were enjoyed by them immediately before the Commencement of the Constitution. The Constitution thus maintains the status quo existing on the eve of the commencement of the Constitution in relation to the jurisdiction and powers of the High Courts. The status quo is, however, subject to the provisions of the Constitution and to any law made by the appropriate legislature in pursuance of its powers under the Constitution.
The proviso to Article 225 lays down that any restriction on the original jurisdiction of a High Court regarding a revenue matter, or an act ordered or done in revenue collection, existing prior to the commencement of the Constitution, will no longer exist.
The second important change affected by the Constitution in the jurisdiction of High Courts is through the all important Article 226 which empowers the High Courts to issue the writs. This is an important power to enforce the rights of the people, to administer justice and to review administrative action.
According to Article 226(1) of the Constitution, it may be issued to any person, authority including in appropriate cases, any Government within those territories, directions, orders or writs like habeas corpus, mandamus, Certiorari, Quo-Warranto, prohibition or any of them for the enforcement of fundamental rights conferred on the people in Part III of the Constitution.
It may be pointed out that remedy under Article 226 is discretionary and the Court may refuse to grant the remedy under Article 226, if adequate remedy is available to the petitioner. But in Himmat Lal v. State of U.P., AIR 1954 SC 403, however, the Supreme Court has held that the existence of an alternate remedy is no bar to the exercise of writ jurisdiction where there is violation of fundamental rights.
Power of Superintendence - According to Article 227, every High Court shall have superintendence over all courts and tribunals throughout the territories of India in relation to which it exercises jurisdiction, except any court or tribunal constituted by or under any law relating to the armed forces.
The power of superintendence under Article 227 is of an administrative as well as judicial nature. This power being an extra-ordinary one is to be sparingly exercised and in appropriate cases to keep the subordinate courts within the bounds of their authority and jurisdiction and not for correcting mere errors.
Control over Subordinate Courts - Article 235 vests in High Court the control over the subordinate courts. While Article 227 deals with the official acts of the persons occupying those courts, Article 235 deals with subordinate judicial officers themselves in relation to their discipline posting and promotions. Further Article 227 deals with both the courts and tribunals but Article 235 deals with the controlling power of the High Court only with the courts not with tribunals.
Court of Record - According to Article 215, every High Court shall be a court of record and shall have power to punish for its contempt by itself.
General jurisdiction under other statutes - High Courts have original and appellate jurisdiction in civil and criminal matters as conferred by other statutes and their letter patents. Such powers have been safeguarded by Article 225 of the Constitution in favour of the High Courts.
Ans. The Union Territories are formed by centrally administered areas. Article 239 of Constitution of India makes the specific provisions for administration of Union Territories.
Article 239 provides that a Union Territory is to be administered by the President acting to such extent as he thinks fit through an administrator to be appointed by him with such designation as he may specify.
Article 239 (2) says A Governor of a State may also be appointed by him as the administrator of an adjoining Union Territory. Where a Governor is so appointed as administrator for the Union Territory, he shall exercise his functions as such administrator independently of his Council of Ministers.
Article 239-A of Constitution empowers the Parliament to create by law for Union Territory of Pondicherry, a legislature or a Council of Ministers. Such legislature may be an elected nominated or partly nominated partly elected. Under Article 239-B administrator of Union Territory of Pondicherry is empowered to promulgate ordinances when the legislature in not in session. However no such ordinance can be promulgated without prior permission of President. The Constitution (69th Amendment) Act 1992, had added two new articles i.e. Article 23-AA and Article 239-AB to the Constitution which gave special status to the Union Territory of Delhi. Article 239-AA provides that the Union Territory of Delhi shall now be called as "National Capital Territory of Delhi" and the Administrator appointed under Article 239 shall be designated as Lieutenant Governor.
Article 239-AB provides that if the President of India, on the report of Lieutenant-Governor or otherwise in satisfied.
(a) that a situation has arisen in which the administration of Nation Capital Territory can not be carried or in accordance with provisions of Article 239-AA or any low made in pursuance of that article or
(b) that for the proper administrator of National Capital Territory is necessary or expedient to do so.
The President may by order suspend the operation of any provision of Article 239-AA or all or any of the provisions if any made in pursuance of that article for such period and subject to such condition as may be specified in such incidental and consequential provisions as may appear to him to necessary and expedient for administering the National Capital Territory in accordance with provisions of Article 239 and 239-AA. According to Article 240, the President is empowered to make regulations for peace, progress and good government of the Union Territory of Andaman & Nicobar Island, Lakshadweep, Dadra & Nagar Haveli, Daman & Diu and Pondicherry. Article 241 empowers Parliament by law to Constitute a High Court for Union Territory or declare any court in any such territory to be a High Court for all or any of the purposes of the Constitution.
Ans. The Constitution (73rd Amendment) Act, 1992 added a new Part IX consisting of 16 Articles and the Eleventh Schedule to the Constitution. The 73rd Amendment Act envisages the Gram Sabha as the foundation of the Panchayati Raj System to perform functions and powers entrusted to it by the State legislatures.
Gram Sabha - Article 243A provides that the Gram Sabha may exercise such powers and perform such functions at the village level as the legislature of a State may by law provide. The 73rd amendment thus envisages the Gram Sabha as the foundation of Panchayati Raj System. 'Gram Sabha' means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level.
Constitution of Panchayats - Article 243B visualises a three-tier Panchayati Raj System. It provides that in every Stat there shall be constituted Panchayats at the village, intermediate and district levels. Small States having a population not exceeding twenty lakhs have been given an option not to constitute the Panchayats at the intermediate level.
Composition of Panchayats - Article 243C provides that, subject to the provisions of this part the Legislature of a State may by law make provisions with respect to the composition of Panchayats. However, the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayats to be filled by election shall, so far as practicable, be the same throughout the State.
All the seats in a Panchayat shall be filled by the persons chosen by direct election from territorial constituencies in the Panchayat area. For this purpose each Panchayat's area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituencies and the number of seats allotted to it, so far as practicable, be the same throughout the Panchayat area (Clause 2).
The legislature of a State may by law provide for representation of following persons in panchayats -
(a) the Chairpersons (Chairman) of the Panchayats at the village level, in the Panchayats at the intermediate level or in the case of a State not having Panchayats at the intermediate level, in the Panchayats in the district level;
(b) the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) the members of the Lok Sabha and the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at the level other than the village level, in such Panchayats;
(d) the members of the Rajya Sabha and Legislative Council of the State where they are registered as electors;
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
The Chairpersons of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of Panchayat (Article 243(4). The Chairperson of a Panchayat at the village level shall be elected in such a manner as the legislature of a State may by law, provide. The Chairpersons of a Panchayat at the intermediate level or district level shall be elected by, and amongst, the elected members thereof (Article 243(5). Disqualifications for membership. - A person shall be disqualified for being chosen as, and for being a member or Panchayats -(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the legislature of the State concerned;
(b) if he is so disqualified by or under any law made by the legislature of the State.
But no person shall be qualified on the ground that he is less than 25 years of age under clause (a), if he has attained the age of 21 years. If any question arises as to whether a member of a Panchayat has become subject to any of the qualifications mentioned in clause (1) the question shall be referred for the decision of such authority and in such manner as the legislature of a State may, by law, provide Cl.(2). Reservation of seats in Panchayats - Article 243D provides that in every Panchayats seats shall be reserved for the Scheduled Castes and Scheduled Tribes. The number of seats so reserved shall be, as nearly as may be, in the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the SC's and ST's in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different Constituencies in a Panchayat. Out of total number of seats reserved under clause (1) not less than 1/3 seats shall be reserved for women belonging to the SC's and ST's [Clause (2)]. Out of total number of seats to be filled by direct election in every Panchayat not less than 1/3 (including the number of seats reserved for SC's and ST's women) seats shall be reserved for women. Such seats may be allotted by rotation to different Constituencies in a Panchayat [Clause (3)]. Duration of Panchayats - According to Article 243E every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting. No amendment of any law in force shall have effect of causing dissolution of a Panchayat at any level which is functioning before such amendment till the expiration of its normal period of five years [Clause (2)]. An election to constitute a Panchayat must be completed -(a) before the expiry of its duration;
(b) before the expiration of a period of six months from the date of its dissolution [Clause (3)].
Powers, authority and responsibility of Panchayat - Article 243G, provides that subject to the provisions of this Constitution the legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as an institution of self government. Such law may contain provisions for the devolution of powers and responsibilities upon Panchayats subject to such conditions as may be specified therein, with respect to-(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for social development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
Powers to impose taxes and funds of Panchayats - Article 243H empowers a State Legislature to make by law provision for imposing taxes etc. by the Panchayats. Such a law-(a) authorize a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;
(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;
(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund for the State; and
(d) provide for constitution of such funds for crediting all moneys received, by or on behalf of the Panchayats and also for the withdrawal of such money therefrom.
Ans. Part IX-A was added to the Constitution by the Constitution (73rd Amendment) Act, 1992.
Constitution of municipalities - Article 243Q provides for the establishment of the following three types of municipal corporations for urban areas-
(a) a Nagar Panchayat for a transitional area, that is to say, an area is transition from a rural area to a urban area,
(b) a Municipal council for smaller urban area, and
(c) a Municipal corporation for a larger urban area.
Composition of Municipalities - Article 243R provides that save as provided in clause (2), all the seats in a municipality shall be filled by persons chosen by direct elections from territorial constituencies in the Municipal area. For this purpose each Municipal area shall be divided into territorial constituencies to be known as Wards. The legislature of a State may by law, provide for the representation in a Municipality of the following:-(i) persons having special knowledge or experience to Municipal administration;
(ii) the members of the Lok Sabha and the Legislature Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Rajya Sabha and the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the committees constituted under clause (5) of Article 243S.
However, the persons referred to in paragraph (i) shall not have the right to vote in the meeting of the Municipality. The legislature will also by law provide the manner of election of the chairpersons of a Municipality. A "Municipal area" under Article 243-R means the territorial area of a Municipality as is notified by the Governor. Reservation of seats in Municipalities - Article 243-T provides for the reservation of seats for the members of Scheduled Castes and Scheduled Tribes in every Municipality. The number of seats reserved for them shall be as nearly as may be, in same proportion to the total number of seats to be filled by directed election in that Municipality as the population of the SC's and ST's in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. Out of total number of seats reserved under clause (1), 1/3 seats shall be reserved for women belonging to the SC's and ST's as the case may be. Out of total number of seats (including the number of seats reserved for women belonging to the SC's and ST's), to be filled by direct election in every Municipality 1/3 seats shall be reserved for women. Such seats may be allotted by rotation to different constituencies in a Municipality [Clause (2) and (3)]. The office of Chairpersons in the Municipalities shall be reserved for the SC's, ST's and women in such manner as the legislature of a State may, by law, provide [Article 243T (4)]. Reservation of seats for Backward class of citizens - Under clause (6) the legislature is empowered to make provisions for reservations of seats in any Municipality of office Chairpersons in the Municipalities in favour of backward class of citizens. All kinds of reservation of seats shall cease to have effect on the expiration of the period specified in Article 334 that is (upto 50 years from the commencement of the Constitution). Duration of Municipalities - Article 243U provides that every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting. An election to constitute a Municipality shall be completed before the expiration of its duration and before the expiration of a period of six months from the date of its dissolution in case it had been dissolved earlier. But where the reminder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold elections under this clause for constituting the Municipality for such period. [Clause (3)]. Disqualifications for Membership - According to Article 243V a person shall be disqualified for being chosen as, and for being, a member of a Municipality-(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
However, a person shall not be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years. Thus a person having attained the age of 21 years is eligible for being chosen as a member of a Municipality. Powers, authority and responsibilities of Municipalities - Under Article 243W, the Legislature of a State, subject to the provisions of this Constitution, is empowered by law to endow-(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institution of Self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
Ans. The distribution of powers is an essential feature of federalism. The object for which a federal State is formed involves a division of authority between the National Government and the separate States.....
The Constitution of India makes two-fold distribution of legislative powers-
(1) with respect to territory;
(2) with respect to subject-matter.
Territorial jurisdiction - Article 245(1) provides that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India. According to clause (2) of Article 245 a law made by Parliament shall not be deemed to be invalid on the ground that it has extra-territorial operation, i.e., takes effect outside the territory of India. In A.H. Wadia v. Income-tax Commissioner, Bombay, AIR 1949 FC 18, the Supreme Court held : "In the case of a sovereign Legislature question of extra-territoriality of any enactment can never be raised in the municipal court as a ground for challenging its validity. The Legislature of a State may make laws for the whole or any part of the State [Article 245(1)]. This means that State Laws would be void if it has extra-territorial operation i.e., takes effect outside the State. Hence State law would be invalid if it has extra-territorial operation, i.e., takes effect outside the State. But there is exception to this general rule. A State law of extra-territorial operation will be valid if there is sufficient nexus between the object and the State, State of Bombay v. R.M.D.C, AIR 1957 SC 699. (2) Jurisdiction with respect to subject-matter - A federal system postulates a distribution of powers between Centre and States. The nature of distribution varies with the local circumstances of each country. In America, Australia, Canada and other federal countries the Government powers are clearly demarcated by their constitutions. The American Constitution only enumerates the powers of the Central Government and leaves the residuary powers to the States. Australia follows the American pattern and enumerates only the powers of the Central Government. In Canada, there is double enumeration of federal and provincial, leaving the residue for the Centre. Canada opted for a strong centre. The Indian Constitution has followed the Constitution of Canada obviously option for a strong Centre. However, they added one List the concurrent list. The present Constitution divides the powers between the Union and the States in three lists - the Union list (List I), the State list (List II, and the Concurrent list (List III). The powers not enumerated in three lists, that is residuary powers are entrusted to the Centre. 1. Union List - The Union List comprises subjects within the legislative competence of the Parliament; the State list, subjects within the Legislative competence of the State; the concurrent list, subjects in respect of which both the Union and State have jurisdiction to legislate. The Union list includes 97 items including defence, foreign affairs, banking, currency, and coinage, etc. 2. State List - The State list includes 66 items including public order and police, local Government, public health and sanitation, agriculture, forest, fisheries, education and State taxes, etc. The (42nd Amendment) has taken out education from it and included it in concurrent list. 3. Concurrent List - The concurrent list consists of 47 items such as Criminal Law and procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning. Where a law of the State is repugnant to a law of the Union, the latter shall prevail. In respect of a subject, in concurrent list the State law may prevail notwithstanding repugnancy, if the State law reserved for the assent of the President and has received such assent. Residual powers - Parliament has exclusive power to legislate with respect to any matter not included in the Concurrent or State list (Article 248). Such exclusive powers are called residuary powers. Entry 97 in the Union list also lays down that the Parliament has the exclusive powers to make laws with respect to any of the matters not stated in the three lists. Unlike the Constitution of India the Constitution of the U.S.A., Australia and Switzerland vest the residuary power not in the Centre but in the States. In the State of Karnataka v. Union of India, AIR 1978 SC 68, the Supreme Court observed that if the subject of enquiries the ministers in the State Government is not mentioned specifically either in any of the articles of the Constitution or in the Legislative lists it does not follow from it that legislation covering such enquiries is incompetent except by means of Constitution amendment. On the contrary, under Article 248 also Parliament has exclusive power to make law on any matter including levy of tax not enumerated in the State list or concurrent list.
Ans. Though in normal times the distribution of powers must be strictly maintained and neither the State nor the Centre can encroach upon the sphere allotted to the other by the Constitution, yet in certain exceptional circumstances the above system of distribution is either suspended or the powers of the Union Parliament are extended over the subjects mentioned in the State List. The exceptional circumstances are:
(1) Power of Parliament to legislate in the national interests - According to Article 249, if the Rajya Sabha passes a resolution supported by 2/3 of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated within State Law, then it shall be lawful for the Parliament to make laws for the whole or any part of the territory of India with respect to that matter so long as the resolution remains in force. Such a resolution normally lasts for a year, it may be renewed as many times necessary but not exceeding a year at a time.
(2) During a Proclamation of Emergency : According to Article 250 while the Proclamation of Emergency is in operation the Parliament shall have power to make laws for the whole or any part of the territory of India with respect to all matters in the State list.
(3) Parliament's power to legislate with the consent of the States: According to Article 252 if the Legislature of two or more State pass resolution to the effect that it is desirable to have a law passed by Parliament on any matters in the State list, it shall be lawful for Parliament to make laws regulating that matter. Any other State may adopt such a law by passing a resolution to that effect. Such law can only be amended or repealed by the Act of Parliament.
(4) Parliament's power to legislate for giving effect to treaties and international agreements: Article 253 empowers the Parliament to make any law for the whole or any part of the territory of India for implementing treaties and international agreements and conventions. In other words, the normal distribution of powers will not stand in the way of Parliament to pass a law forgiving effect to an international obligation even though such law relates to any of the subject in the State List.
(5) In case of failure of constitutional machinery in a State - Under Article 256 Parliament is empowered to make laws with respect to all matters in the State List when the Parliament declares that the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
It is submitted that these provisions enable the Centre to legislate in exceptional circumstances on the State subjects without amending the constitutions and thus introducing a certain amount of flexibility in the scheme of distribution of powers. Thus the framers have incorporated the federal principle in our Constitution in a modified form in the light of the experience in another federations and in view of the peculiar requirement of our country.
Ans. (i) Doctrine of Repugnancy
Article 254(1) says that if any provision of law made by the Legislature of the State is repugnant to any provision of a law made by Parliament which is competent to enact or to any provision of the existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by Parliament, whether passed before or after the law made by the Legislature of such stage, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void.
Article 254(1) only applies where there is inconsistency between a Central Law and a State Law relating to a subject mention in the Concurrent List. In M. Karunanidhi v. Union of India, AIR 1979 SS 898, Fazal Ali, J., reviewed all its earlier decisions and summarised the test of repugnancy. According to him a repugnancy would arise between the two statues in the following situations:
1. It must be shown that there is clear and direct inconsistency between the two enactments Central Act and State Act which is irreconcilable, so that they cannot stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collusion with each other, no repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
Clause (2) of Article 254 states that where a law made by a state legislature with respect to a matter in the Concurrent list contains any provisions repugnant to the provisions of an earlier parliamentary law or existing law with respect to that matter, then the state law will prevail in the state provided it has been reserved for the President's consideration and has received his assent. This clause is an exception to the general rule embodied to the clause (1) of Article 254 as detailed above. A proviso to clause (2) states that nothing in clause (2) shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or respecting the law so made by the state legislature. (ii) Doctrine of Pith and Substance : The Privy Council applied this doctrine in Prafulla Kumar Mukherjee v. Bank of Khulna, AIR 1947 PC 60. In this case the validity of Bengal Money Lender's Act 1946, which limited the amount and rate of interest recoverable by a money lender on any loan was challenged on the ground that it was ultra vires the Bengal legislature in so far as it related to "Promissory Notes", a central subject. The Privy Council held that Bengal Money Lender's Act was in pith and substance a law in respect of money lending and money lenders - a state subject, and was valid even though it trenches incidentally on "Promissory Notes" - a Central subject. In State of Bombay v. F.N. Balsara, AIR 1951 SC 318, the Bombay Prohibition act which prohibited sale and possession of liquors in the state, was challenged on the ground that it incidentally encroached upon import and export of liquor across custom frontier - a Central subject. It was contended that the prohibition, purchase, use, possession and sale of liquor will affect its import. The Supreme Court held the act valid because the pith and substance of the act fill under the State list and not under Union list even though the Act incidentally encroached upon the legislative powers of the Union. (iii) Doctrine of Colourable Legislation : The doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner what it cannot do directly. The doctrine thus refers to the question of competence of the legislature concerned to enact a particular law. The constitution has already distributed legislative powers between the Parliament and state legislatures and each has power to enact within its legislative spheres, marked out for it by the specific legislative entires. In respect of the subject matter of a particular legislation, the question may arise whether the legislature transgresses the limits imposed on it by the Constitution. Such transgression may be patent, manifest or direct or may be disguised, covert or indirect. In order to decide to which class of subjects of legislation a statute really belongs, and so whether or not the legislature has transgressed the sphere assigned to it what material is the substance of the legislation in question, its true nature and character not its outward or formal appearance. To ascertain the true character and substance of the enactment, courts take into consideration its object, purpose or design. In K.C.G. Narayan Dev v. State of Orissa, AIR 1935 SC 375 the Supreme Court explained the meaning and scope of the doctrine of Colourable Legislation in the following terms: "If the Constitution distributes the legislative power amongst different Legislative bodies, which have to act within their respective spheres marked out by specific legislative Entries, or if there are limitations on the legislative authority in the shape of fundamental rights, question arises as to whether the Legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination to be a mere pretence or disguise.....
Ans. The relation between the Union and the States may be classed under two heads - (i) during emergencies, and (ii) in normal times.
(i) During proclamation of any emergency, the Union assumes effective control over the State or States as the case may be. The autonomy of the State or States is suspended and the Government of India functions as a unitary Government during the emergencies.
(ii) The supremacy of the Union over the States is assumed in normal time also. Article 256 to 263 provide for Union control over States even in normal period through the following ways:-
(1) Direction by the Union to the State Governments.
(2) Delegation of Union functions to the States.
(3) All India services.
(4) Grant-in-aid.
(A) Direction by the Centre to the State : Article 256 provides that the executive power of the State shall be so exercised as to ensure compliance with the laws made by Parliament and the executive power of the Union shall also extend to the giving of such directions to a State as it may deem essential for the purpose. Thus power to give direction was necessary because, if the Centre was not vested with such power the proper execution of the laws passed by the Parliament would become impossible. According, article 257 enacts that the States must exercise their executive power in such a way so as not to impede or prejudice the exercise of the executive power of the Union in the State. For this purpose the Central Government can give directions to a State as to in which way the State should exercise its executive power. The powers of the Central Government also extended to giving directions to a State in two specific matters:- (1)the construction and maintenance of means of communication which are declared to be of national or military importance. (2) measures to be taken for the protection of the railway within the States. (B) Delegation of Union's function to the State : Under Article 258 the Parliament may, with the consent of the State Government, entrust either conditionally or unconditionally to that Government or its offices functions relating to any matter falling within the executive powers of the Union. Under clause (2) Parliament is also empowered to use State machinery for the enforcement of Union Laws and for this purpose may confer power or impose duties upon the State or its officers or authorities thereof in respect of these matters to see that the laws are made applicable to the State. Like the Central Government, the State Government can also delegate its power to the Union and its officers. Article 258-A lays down that the Governor of the State may with the consent of the Government of India, entrust to the Government or its officers, functions, relating to any matter to which the executive power of that Government extends. (C) All-India Services : Beside the separate services for the Union and the States the Constitution provides for the creation of an additional "All India Service" common to the Union and the States. According to Article 312 if the Rajya Sabha passes a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the nation's interest to do so, Parliament may be law provide for the creation or one or more All-India Services common to the conditions of persons appointed to any service. The object of this provision is to ensure greater inter-State co-ordination and implementations of the policies of the Central Government through these officers. This also enables the Central Government to exercise a control over State in matters of execution of Union laws. (D) Grants in-aid : Under the Constitution the financial resources of the state are very limited though they have to do many works of social uplift under directive principles. In order to cope with their ever-expanding needs, the Central Government makes grants in-aid to the States. Grant-in-aid to States thus serve two purposes: (1) through it Central Government exercises a strict control over the State because grants are granted subject to certain conditions. If any State does not agree to the condition the Central Government may withdraw the grant, and (2) it generates a Centre-State co- ordination and co-operation if a State wants to develop its welfare schemes for the people of the State it may ask for financial help from the Centre. Disputes Relating to Water : Article 262 authorises the Parliament to provide by law for adjudication of any dispute or complaint with respect to the uses, distribution or control of the waters of any inter-State rivers and river valleys. Under clause (2) of this Article, Parliament may by law provide that neither the Supreme Court nor any other court shall have any jurisdiction in respect of such disputes and complaints relating to water of inter-State rivers and river valleys. Under Article 262 Parliament has passed the River Board Act, 1956 and the Inter-State Water Disputes Act, 1956. The Water Dispute Act empowers the Central Government to set up a Tribunal for the adjudication of such disputes. The decision of the Tribunal shall be final and binding on the parties to the dispute.
Ans. Article 268 provides the scheme of the distribution of revenue between the Union and the States. The States possess exclusive jurisdiction over taxes enumerated in the State List. The Union is entitled to the proceeds of the taxes in the Union List. The Concurrent List includes no taxes. However, it is to be noted that while the proceeds of taxes within the State Lists are entirely retained by the States proceeds of some of the taxes in the Union List may be allowed, wholly or partially to the States. The Constitution mentions following categories of the Union taxes which are wholly or partially assigned to the States:
1. Duties levied by the Union but collected and appropriated by the States - According to Article 268 stamps duties and duties of excise on medicinal and toilet preparations mentioned in the Union List shall be levied by the Central Government. These duties are collected by the States within which such duties are leviable. The proceeds of such duties are assigned to the States.
2. Taxes levied and collected by the Union and assigned to the States : Constitution 80th Amendment Act, 2000 : The Constitution (80th Amendment) Act, 2000 has amended Article 269 and substituted new clauses in place of clauses (1) and (2) of Article 269. It has also substituted a new Article in place of the existing Article 270 and has deleted Article 272 of the Constitution. The amendment has been enacted on the basis of the recommendations of the Tenth Finance Commission.
The new clause (1) of Article 269 provides that taxes on sale or purchase of goods and taxes on the assignment of goods shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to States on or after the 1st day of April, 1996 in the manner as may be prescribed by Parliament by law. The expression "taxes on the sale or purchases of goods" shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter- State trade or commerce.
The new clause (2) of Article 269 provides that the net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India; but shall be assigned to the States within which tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be prescribed by Parliament by law.
3. Taxes levied and collected by the Union but distributed between the Union and States - The Constitution (80th Amendment) Act, 2000 has substituted a new Article for Article 270 which shall be deemed to have been substituted with effect from 1st day of April, 1996. The new Article 270 provides that "all taxes and duties referred to in the Union List, except the duties and taxes referred to in Articles 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2).
Clause (2) provides that such percentage, as may be prescribed, of the net proceeds of any such tax or duty in the financial year shall form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax or duty is leviable in that year, and shall be distributed among those States in such manner and from such time as may be prescribed in the manner provided in clause (3).
According to clause (3) the word "prescribed" in Article 270 means Finance Commission which will give its recommendation to the Government about the actual amount of net proceeds from all taxes and duties leviable by the Central Government and shall be distributed among the States. This amendment will enhance the income of the States.
4. Taxes for the purpose of the Union - Article 271 provides that it Parliament at any time increases any of the duties or taxes mentioned in Articles 269 and 270 by imposing a surcharge, the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India.
Ans. Consolidated Fund and Public Accounts of India and of states : Subject to the provisions of the contingency fund and the provisions with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties of states, all revenues received by the Government of India, all loans raised by that government by the issue of treasure bills, loans or ways and means, advances and all moneys received by that Government in repayment of loans, shall form one consolidated fund to be entitled "the consolidated fund of India" and all revenues received by the Government of the state, all loans raised by the Government by the issue of treasury bills, loans or ways and means, advances and all moneys received by that Government in repayment of loans form consolidated fund to be entitled "the consolidated fund of the state". (Article 266(1)).
All other public moneys received by or on behalf of the Government of India or the Government of a State, shall be credited to the public accounts of India or the public accounts of the state, as the case may be. (Article 266(2)).
No moneys out of the consolidated fund of India or the consolidated fund of a State shall be appropriated except in accordance with law and the purpose and in the manner provided in this Constitution. This restriction does not apply to the public accounts. (Article 266(3)).
Ans. Article 267 authorises Parliament and state legislature to create a contingency fund formed by such sums as may be determined by law. Article 267(1) provides that Parliament may, by law, establish a "Contingency Fund of India" into which shall be paid from time to time such sums as may be determined by such law, and the said fund shall be placed at the disposal of the President to enable advances to be made by him out of such fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under article 115 or Article 116.
Further, Article 267(2) lays down that the legislature of a state may by law establish a contingency fund in the nature of an imprest to be entitled to the "Contingency Fund of the State," into which shall be paid from time to time such sums as may be determined by such law, and said fund shall be placed at the disposal of the Governor of the state to enable advances to be made by him out of such fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the legislature of the state by the law under Article 205 or Article 206.
The Contingency fund whether of the union or of the state is an emergency fund for making advances to meet unforeseen expenditures without going through the formality otherwise prescribed for making any expenditure so that the situation may be expeditiously dealt with.
Ans. According to Article 280(1) the President shall within two years from the commencement of the Constitution and thereafter at the expiration of every fifth year or at such earlier times as the President considers necessary, by order Constitute a Finance Commission which shall consist of a Chairman and four members to be appointed by the President.
Article 280(2) provides that Parliament may by law determine the qualification which shall be requisite for appointment as member of the commission and the manner in which they shall be selected.
Duties of the Finance Commission -
It shall be the duties of the Finance Commission to make recommendations to the President as to-
(a) the distribution between the union and the states of the net proceeds of taxes which are to be, or may be, divided between them under this chapter and the allocation between the states of the respective shares of such proceeds;
(b) the principle which should govern the grants-in-aid of the revenues of the states out of the consolidated fund of India;
(c) any other matter referred to the Commission by the President in the interest of sound finance.
The Commission shall determine their procedure and shall have powers in the performance of their functions as Parliament may by law confer on them. Article 281 provides that the President shall cause every recommendations of the Finance Commission to be laid before each House of Parliament together with an explanatory note. The scheme of distribution of revenue indicate, like distribution of legislative and administrative powers a clear tendency towards centralisation in favour of the centre. The Centre's resources are vast but the state resources are very meagre while the responsibilities of states are many fold. The control of centre over the finances appears to be a violation of the principles of federation which is adopted in the India Constitution. But it is to be stood in the context of historical background underlying the Indian Constitution, that is for consolidating and strengthening the unity of India. It is the Central Government which is ultimately responsible for maintaining economic unity and thereby maintaining the welfare of country.
Ans. The Constitution (44th Amendment) Act, 1978, has omitted Articles 19(1)(f) and 31 from Part III of the Constitution and thus the right to property is no more a fundamental right. The said amendment has added a new chapter by inserting a new Article 300-A which relates to "right to property" (Chapter IV). Article 300-A is the reproduction of Article 31(1) according to which "no person shall be deprived of his property except by authority of law". Here the law means the ordinary law of land. Hence has authority to take away the property of an individual if it is in accordance with an ordinary law passed by the Legislature. Thus, both these questions that for what purpose property will be taken and whether any compensation will be paid will be determined by the legislature. Now right to property not being fundamental right, in case of violation of right to property under Article 300-A a person will not be entitled to invoke the writ jurisdiction of Supreme Court under Article 32. He will, however, be entitled to invoke the jurisdiction of High Courts under Article 226.
The eminent jurist Mr. M. Seervai has strongly criticised by saying that it would destroy the most cherished right which are embodied in our Constitution. According to him, this amendment has taken away the very valuable rights of an individual.
Dr. P.K. Tripathi in his Article "Right to property after 44th Amendment" (A.I.R. 1980) Journal 51, concluded that now the right to property of citizens and non-citizens, is more comprehensively and firmly secured under the constitutional law of India, than ever before. He justified his conclusion by stating that an amendment in existing position will now require not only the procedures laid down in Article 368, but also, the consent of the States as required in the proviso to Article 368.
In Maneka Gandhi v. Union of India, (AIR 1978 SC 597) and later in series of other cases the Supreme Court has held that the validity of a law passed under the new Article 300-A for the purpose of depriving a citizen of his property can be challenged on the ground of no provision for payment of compensation for the property compulsorily acquired for public purpose.
In this case the meaning and the scope of 'law' has been enlarged. Now after this decision term law has been explained as a valid law which is just, fair and reasonable in nature as well as procedure.
Any law made under Article 300-A which does not provide for compensation for the property to be acquired compulsorily for public purpose, will be declared void, unfair, unjust, unreasonable hence unconstitutional.
Ans. Freedom of Trade, Commerce and Intercourse is secured in India by Article 301 which declares that trade, commerce and intercourse throughout the territory of India shall be free. Articles 302 to 305 are exceptions to Article 301 of the Constitution.
In Atiabari Tea Co. v. State of Assam, AIR 1951 SC 232, the validity of the Assam Taxation (on Goods Carried by Roads or Inland Waterways) Act of 1954 was challenged on the ground that it violated Article 301 of the Constitution and was not saved by Article 304(b). The petitioner carried on the business of growing tea and exporting it to Calcutta via Assam. While passing through Assam the tea was liable to tax under the said Act. The Supreme Court held that the impugned law undoubtedly levied a tax directly and immediately on the movements of goods and therefore came within the purview of Article 301. The Act was, therefore, held void. The Court said that taxes may and do amount to restrictions if they directly and immediately restrict trade.
In Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1906 the appellant challenged the validity of the Rajasthan Motor Vehicles Taxation Act, 1951, inter alia, as violating Article 301. The State Government imposed a tax on all motor vehicles used and kept within the State of Rajasthan. The Court held the tax valid as they were only regulatory measures imposing compensatory taxes - for facilitating trade, commerce and intercourse.
The majority judgment in the Atiabari Tea Co.'s case read with a majority judgment in the Automobile's case lead to the following principles relating of Article 301.:
(1) Article 301 assures freedom of inter-State as well as intra-State trade, commerce and intercourse.
(2) Trade, commerce and intercourse have the widest connotation and take in movement of goods and persons.
(3) The freedom is not only from laws enacted in the exercise of the powers conferred by the legislative entries relating to trade and commerce or production, supply and distribution of goods, but also to all laws including tax laws.
(4) Only those laws whose direct and immediate effect to inhibit or restrict freedom of trade or commerce will come with the mischief of Article 301.
(5) Laws which are merely regulatory or which impose purely compensatory taxes, and hence intended to facilitate freedom of trade, are outside the scope Article 301.
Exceptions to Right Freedom of Trade, Commerce and Intercourse as contained in Article 301 is subject to restrictions imposed in Article 302 to 305 of Constitution. These restrictions are as follows:- (1) Parliament's power to regulate trade and commerce in the Public Interest - Article 302 authorizes President to impose such restrictions on the freedom of trade, commerce and intercourse between one state and the other or within any part of the territory of India, as may be required in the public interest. The question whether a restriction imposed by Parliament by law in the public interest or not is justiciable issue. In that case Parliament is given the sole power to decide what restrictions can be imposed in the public interest as authorized by Article 302. It has been held in Surajmal Roop Chand & Co. v. State of Rajasthan, AIR 1967 Raj. 104, that restrictions imposed on the movement of grain under the Defence of India Rules, 1962 are in the public interest. (2) Parliament's power to discriminate between states on the ground of exigencies of situations - Article 303(1) provides that Parliament will not give any preference to one state over another or discriminate between the states by virtue of an entry relating to trade and commerce in any of the lists, but Article 303(2) gives power to the Parliament to give preference over other states, if it is declared by law made by Parliament that it was necessary to do so for the purpose of dealing with a situation arising from any scarcity of goods in any part of India. (3) State's power to regulate trade and commerce - Article 304(1) provides that state may by law impose on goods imported from other state any tax to which similar goods manufactured or produced in that state, are subject so, however, as not to discriminate between goods so imported and goods so manufactured or produced. Thus what Article 304(a) ensures is that so far as taxation is concerned, inter state commerce must be put at par with the intrastate commerce. But Article 304(b) authorizes a state to impose by law such reasonable restrictions on the freedom of trade, commerce and intercourse with or within that state as may be required in the public interest provided the Bill or amendment for this purpose has received the previous sanction of the President before it is introduced or moved in State Legislature. Hence a law passed by a state to regulate inter-state trade and commerce, must satisfy the following conditions under Article 304(b) - (1) previous sanction of the President of India must be obtained, (2) the law must be in public interest, (3) restrictions imposed by such a law, must be reasonable. In this way it is obvious that Parliament has powers to regulate trade, commerce and inter course in the country. (4) Saving of Existing Laws - Article 305 saves the existing laws from the operation of Articles 301 and 303 except in so far as the President may by order otherwise directs. Existing law is defined in Article 366(10) as any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of the Constitution by any legislature or authority. In Saghir Ahmad v. State of U.P., AIR 1964 SC 728, the Supreme Court raised the question whether an Act providing for state-monopoly in a particular trade or business, conflicts with the freedom of trade and commerce guaranteed by Article 301 but left the question undecided. Article 19 was amended by the Constitution (Ist Amendment act, 1951) in order to take out such state monopolies out of the purview of Article 19(1)(g). It was held in the above case that as a matter of precaution, the laws creating state-monopolies, would not be declared invalid as infringing Article 301 for which the amendment was added in Article 305. Thus a state or the Centre now can run any business on a monopolistic basis and it would not be bad under Article 305 of the Constitution, because such monopolies are reasonable restrictions in public interest.
Ans. Doctrine of Pleasures - In England, the normal rule is that a civil servant of the Crown holds his office during the pleasure of the Crown. This means that his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment between the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for premature termination of his service. The doctrine of pleasure is based on the public policy.
Article 310 of the Indian Constitution incorporates the Common law doctrine of pleasure. It expressly provides that all persons who are members of the Defence Services or the Civil Services of the Union of All-India Services hold office during the pleasure of the President. Similarly, members of the State Services hold office during the pleasure of the Governor. But this rule of English law has not been fully adopted in this Article. Thus Article 310 itself places restrictions and limitations on the exercise of the pleasure under Article 310 is limited by Article 311(2). The services of permanent Government servant cannot be terminated except in accordance with rules made under Article 309, subject to the procedure in Article 311(2) of the Constitution and the fundamental rights. The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F.R. 56(b) does not amount to removal or dismissal by way of punishment. While the government reserves its right under F.R. 56(b) to compulsory retire a Government servant even against his wish, there is a corresponding right of the Government servant under F.R. 56(c) to voluntarily retire from service by giving the Government three months' notice.
Restriction on doctrine of Pleasure - The Constitution lays down the following limitations on the exercise of the doctrine of pleasure:
(1) The pleasure of the President or Governor is controlled by provisions of Article 311, so the field covered by Article 311 is excluded from the operation of the doctrine of pleasure (Motiram v. North Eastern Frontier Railway, AIR 1964 SC 600). The pleasure must be exercised in accordance with the procedural safeguards provided by Article 311.
(2) The tenure of the Supreme Court Judges [Article 124], High Court Judges [Article 218], Auditor-General of India [Article 148(2)]. The Chief Election Commissioner [Article 324], and the Chairman and members of the Public- Service Commission [Article 317] are not dependent on the pleasure of the President or the Governor, as the case may be. These posts are expressly excluded from the operation of the doctrine of pleasure.
(3) The doctrine of pleasure is subject to the Fundamental Rights (Union of India v. P.D. More, AIR 1962 SC 630; General Manager, S. Rly. v. Rangachari, AIR 1962 SC 36).
Ans. Constitutional Safeguards to Civil Servants -
Article 311(1) provides "No person who is a member of a civil service of the union or an all India service or a civil service of a state or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) of Article 311 lays down "No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges....."
These above mentioned provisions enact the general principle that a government servant holds office during the pleasure of the government, with following restrictions on the prerogative of dismissal at pleasure. To sum up, the contents of Article 311, are:
(i) the persons employed in civil capacities under the Union or State shall not be dismissed or removed by an authority subordinate to that by which they were appointed; and
(ii) no such person shall be dismissed or removed or reduced in rank except after an inquiry as provided in clause (2) of Article 311.
These restrictions are Constitutional safeguards of the civil servants.
No Removal by a subordinate Authority - Supreme Court has held in Mahesh v. State of U.P., AIR 1955 SC 70, that it does not mean that the removal or dismissal must be by the same authority who made the appointment or his direct superior. In this case the person appointed by the Divisional Personal Officer, E.I.R., was dismissed by the Superintendent, Power, E.I.R. The Court held the dismissal valid as both the officers were of the same rank.
Reasonable opportunity to defend - The rule of reasonable opportunity embodied in Article 311(2) is the most important safeguard furnished to a civil servant under the India Constitution. Two important questions regarding Article 311(2) are:
(i) who can invoke the protection of this Article and when;
(ii) what is the content of the words "reasonable opportunity" used in Article 311(2).
(i) When and to whom Article 311(2) applies - Article 311(2) applies only the persons who are members of a civil service of the Union or of an all India service or of a civil service of a state or to persons who hold a civil post under the Union or a state these safeguards are not applicable to members of defence forces or to any posts connected with defence. Thus, the protection under Article 311 is not available to military personal who are governed by the Army Act. Their services can be terminated without assigning any reasons. The Supreme Court has held in Sukhdeo Singh v. Bhagatram, AIR 1975 SC 1331 that statutory corporations such as L.I.C., O.N.G.C. and Industrial Finance Corporation, are state under Article 12, but protection of Article 311(2) is not available to their employees. The provisions of Article 311 are applicable both to permanent and temporary servants, as has been held by the Supreme Court in Parshottum Lal Dhingra v. Union of India, AIR 1958 SC 56. However, suspension of a government servant from service is neither dismissal nor removal and is, therefore, not within the scope of protection of Article 311 of the Constitution. (ii) Reasonable opportunity to defend - Article 311(2) lays down that a civil servant cannot be dismissed, or removed or reduced in rank unless he has been given reasonable opportunity to show cause against the action proposed to be taken against him. Originally, the opportunity to defend was given to a civil servant at two stages, (i) at the inquiry stage, and this is in accord, with the rule of principles of natural justice that no person should be condemned without hearing, (ii) at the punishment stage, when after enquiry charges have been proved and any of the three punishments, dismissal or removal or reduction in rank, were proposed to be taken against him. The Constitution (42nd Amendment Act, 1976) has abolished the right of the government servant to make representation at the second stage of the enquiry. The newly added proviso to Article 311(2) makes it clear that if after enquiry it is proposed to enforce upon a person any of the above mentioned punishments; they may be imposed on the basis of the evidence given during such enquiry, and he shall not be entitled to make any representation. The protection under Article 311(2) is available only when dismissal, removal or reduction in rank, has been inflicted on a civil servant by way of punishment and not otherwise. The protection of Article 311(2) will not be available to a civil servant in following situations:-(1) Where a civil servant has been dismissed or removed or reduced in rank on the ground of misconduct which has led to his conviction on criminal charges;
(2) Where it is impracticable to provide a civil servant an opportunity to depend himself but the authority taking action against him shall record the reasons for such action;
(3) According to proviso of Article 311 where the interest of the security of State is pertinent it will not be expedient to provide an opportunity to defend to the concerned civil servant.
Ans. Public Service Commission -
The Constitution provides for the establishment of Public Service Commission for the Union and for each State [Article 315(1)]. Two or more States may agree to have Common Public Service Commission [Article 315(2)]. The Union Public Service Commission, if requested by the Governor of State, may with the approval of the President, agree to act for a State.
Appointment of Members of Public Service Commission - The Chairman and Members of the Union Public Service Commission or a Joint Commission are appointed by the President and in the case of a State commission by the Governor [Article 316(1)]. But "as nearly as may be" one-half of the members of every Public Service Commission must be persons who at the dates of their appointments have held office for at least ten years under the Government of India or the Government of a State.
A member of Public Service Commission shall hold office for a period of 6 years. Unless he attains the age of 65 in case of Union Commission or 60 years in case of State Commission, whichever is earlier. If he attains the age of retirement he has to retire even before the expiry of normal terms of 6 years. A member may himself resign from his office. He may also be removed from his office by order of the President on the ground of misbehaviour, if on reference made by the President the Supreme Court, after enquiry, report to the President that he should be removed. If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract, agreement made by or on behalf of the Government of India or State Government or participates in any way in the profits or emolument resulting from such contract, or agreement he shall be deemed to be guilty of misbehaviour [Article 317(1)].
Functions of Public Service Commission - It shall be the duty of the Union and the State Public Service Commission to conduct examinations for appointments. If requested by two or more States it shall be obligatory on the Union Public Service Commission to assist them in devising of joint recruitment for services requiring special qualifications. The Union or State Commissions must be consulted-
(1) in all matters relating to methods of recruitment to civil posts;
(2) on the principles to be followed in making appointments: promotions and transfers and the suitability of candidates;
(3) on disciplinary matters affecting a person in service under the Central or State government;
(4) on any claim by such a person for the costs incurred in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty;
(5) on any claim for compensation in respect of injuries sustained by a person while in service of the Government.
In all above matters it shall be the duty of the Commission to advise. However, the President and the Governors make regulations specifying the matters in which, either generally or in any particular circumstances the Commission may not be consulted [Article 203(3)]. The functions of Public Service Commission are only advisory and the Constitution has no provision to make it obligatory upon the Government to act, upon the advice of the Commission in any case. Additional functions may be assigned to the Union and State Public Service Commission by an Act of Parliament and State Legislature [Article 321]. The expenses of the Union or a State Public Service Commission, and the salaries, allowances of its members are charged on the Consolidated Fund of India or State, as the case may be [Article 322]. The Commissions shall submit an annual report on the work done by them to the President or Governor, as the case may be. The reports are to be laid before the Parliament and the State Legislatures, respectively together with a memorandum as regards the cases where the advice of the Commission was not accepted and the reasons for such non-acceptance [Article 323(1) and (2)].
Ans. The Constitution (42nd Amendment) Act, 1976 has added a new Part XIV-A to the Constitution. This Part XIV-A consists of two Articles 323-A and 323-B which empower the Parliament to establish hierarchy of tribunals to decide disputes relating to tax matters, export, imports, labour disputes, matters relating to land reform and urban ceilings, election disputes, service matters and matters relating to supply of essential commodities.
Administrative Tribunals for Service matters - Article 323-A provides for the establishment of administrative tribunals for the adjudication of disputes of Government servants.
Article 323-A lays down :
(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or any corporation owned or controlled by the Government.
(2) A law made under clause (1) may make provisions for :-
(a) a separate administrative tribunal for the Union and each State or for two or more States;
(b) of the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of said tribunals;
(c) of the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) excluding the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause (1).
(e) The transfer of all cases to tribunals which were pending in any court or authority before the establishment of such tribunals;
(f) repeal or amend any order made by the President consequential provision, (including provisions as to fees) as Parliament may deem necessary for the effective functioning of and for the speedy disposal of cases by and the enforcement of the orders of such tribunals.
(3) The provisions of this Article shall have effect notwithstanding anything in any other provision of this Constitution or any other law for the time being in force. Tribunals for other matters - Article 323-B - Article 323-B empowers Parliament and the State Legislature to establish tribunals for the adjudications of any disputes, complaints or offences with respect to all or any of the matters specified in clause (2) of this Article. The matters referred to in clause (2) are the following, namely:-(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange and export;
(c) industrial and labour disputes;
(d) land reforms laws enacted under Article 31-A of the Constitution;
(e) ceiling on urban property;
(f) election disputes of members of Parliament or the State Legislatures, but excluding the matters referred to in Articles 329 and 329-A. These Articles have taken away the jurisdiction of the Courts to decide election disputes of the Prime Minister and Speaker of the Lok Sabha;
(g) production, procurement, supply and distribution of foodstuffs and essential goods and control of prices of such goods;
(h) rent, its regulation and control and tenancy issues including the rights, title and interests of landlords and tenants.
(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters;
(j) matters incidental to any of the matters specified in the above sub-clauses. Such a law will define the jurisdiction and powers of such tribunals and will lay down procedure to be followed by the said tribunals.
Appeal to Supreme Court by special leave under Article 136 : Though the writ jurisdiction of High Courts has now been taken away but an aggrieved party can still go to Supreme Court under Article 136 of the Constitution. The Supreme Court has already laid down the guidelines for the grant of special leave to appeal from the decision of the tribunals. Under the powers of Article 323-A, the Central Government has established one Central Administrative Tribunal at Delhi and eight additional branches at different states which started functioning with effect from Nov. 1, 1985.
Ans. Election Commission : To ensure free, fair and impartial election the Constitution establishes the Election Commission, a body autonomous in character and free from political or executive influence. The commission is an All India body having jurisdiction over elections to Parliament, State Legislature, offices of the President and Vice-President.
Article 324 provides for appointment of an election commission to superintend, direct and control elections.
Its Composition - The Election Commission consists of the Chief Election Commissioner and such number of election commissioners if any, as the President may fix from time to time. According to Article 324(2) all these commissioners are appointed by the President subject to the provisions of any law enacted by Parliament for the purpose. Article 324(4) provides that the President may appoint, after consultation with the Election Commission such Regional Commissioners as the President may consider necessary to assist the Election Commission in the discharge of its functions. The Regional Commissioners may be appointed before each general election of Lok Sabha and State Legislative Assemblies and also the biennial election to the State Legislative Councils.
Article 324(3) provides that Chief Election Commissioner acts as the chairman of the Election Commission. The President may determine by making rules, the conditions of service and tenure of office of the Election Commissioners and Regional Commissioners. This is, however, subject to the law made by the Parliament. Article 324 provides that the tenure of Chief Election Commissioner is independent of the executive discretion for he cannot be removed from his office except in the like manner and on the same grounds as a judge of the Supreme Court. Further the conditions of his service cannot be varied to his disadvantage after appointment. He can therefore discharge his functions without fear or favour.
In S.S. Dhannoa v. Union of India, AIR 1991 SC 1745 Supreme Court has held that Election Commissioners cannot be placed at par with the Chief Election Commissioner in terms of power and authority.
On October 2, 1993 the Government issued an Ordinance (which is now on Act) and converted the one man Election Commission into a multi member Commission by appointing two persons as Election Commissioners. The Ordinance provides specifically that the decision of three members Election Commission "shall as far as possible, be unanimous". But, in case of difference of opinion between the Chief Election Commissioner and other Election Commissioners, the matter "shall be decided according to the opinion of the majority". The Ordinance has amended the law and equated the two Election Commissioners with the CEC in respect of salary and other terms of service.
In a significant judgment in T.N. Seshan v. Union of India, (1995) 4 SCC 611 a five judge Constitution Bench of the Supreme Court unanimously upheld the validity of the Act equating the status, power and authority of two Election Commissioners with that of CEC The Chief Election Commissioner Mr. T.N. Seshan had challenged the validity of the Ordinance and the Act on the ground that it was arbitrary, unconstitutional and void. Delivering the judgment of the Court, Ahamadi, CJ. held that the CEC does not enjoy a status superior to other ECs. Although there are two differences between the service conditions of CEC and other ECs such as the CEC can only be removed from his office in the like manner and on the like ground as a judge of the Supreme Court and that conditions of service cannot be varied to the disadvantage of the CEC after his appointment, while other ECs can be removed on the recommendation of the CEC, but that is not an indicia for conferring a higher status on CEC. Article 324 envisages a permanent body to be headed by a permanent incumbent namely, the CEC. The scheme of Article 324 clearly provides for a multi member body comprising the CEC and the Election Commissioners (ECs).
Functions of Election Commission - According to Article 324(1) the Election Commission performs the following functions:
The superintendence, direction and control of the preparation of the electoral rolls and also the conduct of elections to Parliament, State Legislatures and to the offices of President and Vice-President. There shall be one general electoral roll for every territorial constituency [Article 325]. No person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of them. The elections to the Parliament and State Legislatures are to be held on the basis of adult suffrage. Every person who is a citizen of India and who is not less than 18 years of age is not otherwise disqualified under this Constitution or any law (Representation of Peoples Act, 1950) made by the Legislature on the ground of non-residence, unsoundness of mind, crime, or illegal practice, has a right to be registered as a voter [Article 326].
Power of Parliament and State Legislatures with regard to election Law - Article 327 empowers Parliament to make provisions with respect to all matters, relating to or in connection with election to Parliament and State Legislature, the preparation of electoral rolls, the delimitation of constituencies and all other connected matters. In exercise of the power conferred by Article 327, Parliament has enacted the Representation of Peoples Acts, 1950 and 1951; the Presidential and Vice-Presidential Elections Act, 1952; and the Delimitation Commission Act, 1952. Article 328 confers a similar power on State Legislatures. The State Legislature can make laws relating to all the above matters referred to under Article 327, in so far as provision in that behalf is not made by Parliament.
In Special Reference No. 1 of 2002, AIR 2003 SC 87 the President has referred the important question regarding interpretation of Article 174 and Article 324 to the Supreme Court for its opinion under Article 143 of the Constitution. Under Article 174 the government has power to dissolve the State Legislative Assembly from time to time and place as he thinks fit. This power, however, is exercised by the government. But it also provides that six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. This means that in normal situation if a legislative assembly is dissolved election must be held and the assembly be constituted to meet within that period. Article 324 vests power of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections to Parliament and the legislature of every State under this Constitution. Under Article 356 there is a provision for the Presidentials Rule in a State. The facts were that there was an unfortunate accident in Godhara in Gujarat on 27 February, 2002 in which 58 Kar Sevaks were burnt alive in a train in which they were returning from Ayodhya to their homes. As a result of this there was widespread communal riots in certain areas of State. The Chief Minister then took a political move and prematurely dissolved the Assembly on 27 July, 2002 and recommended for election. The Election Commissioner visited the State to take the stock of situation and took the decision that condition in the State was not conducive for holding the assembly election. It even recommended for the imposition of President's rule after the lapse of 6 months. In view of this the government referred three questions to the Supreme Court for its opinion:
(1) Whether Article 174 is subject to the decisions of the Election Commission not to hold elections in a State under Article 324.
(2) Whether the Election Commission can declare election schedule which violates Article 174 and after the expiry of 6 months constitutional period for assembly to meet necessitating the imposition of President's Rule under Article 356.
(3) Whether the mandate of Article 174 to hold election will be fulfilled by the holding of election by Commission under Article 324.
A Five Judge Bench headed by the Chief Justice B.N. Kirpal rejected the contention of the Gujarat government that Article 174 of the Constitution which mandates that not more than six months shall lapse between two sittings of an elected assembly and held that Article 174(1) does not apply to a 'dissolved Assembly' whose life has come to an end and ceased to exist but applies to a 'live' assembly. The Court said that art. 174(1) neither relates to elections nor does it provide any outer limit for holding elections for constituting the Legislative Assembly". The Court held that the holding of elections is the exclusive domain of the Election Commission under Article 324 of the Constitution. The Court said that this was evident from Sections 14 and 15 of the Representation of People Act which provide that the President or the Governor shall fix the date for holding elections on the recommendations of the Election Commission. Regarding whether Article 174 would yield to Article 324 the Court said that "Article 174(1) and Article 324 operate on different fields and neither Article 174(1) is subject to Article 324 nor Article 324 is subject to Article 174(1).
Ans. The Constitution of India does not recognise religious minorities. - All votes shall be enrolled in one general electoral roll for any territorial constituency (Article 325). There is no discrimination on the grounds of religion, caste, race, or tribe in election or public services.
The Constitution, however, recognise linguistic and cultural minorities. any section of the citizens of India having a distinct language, script or culture shall have the right to conserve the same. [Article 29(1)].
They may have their educational institutions of their own choice (Article 30). They may get the language spoken by them officially recognised (Article 347). There is no reservation of seats in the House of People or Legislative Assembly for any community, except Scheduled Castes and Scheduled Tribes and Anglo-Indians (Articles 330-333). The claims of Scheduled castes and Tribes shall be taken into consideration in making appointments to public services consistently with efficiency of the administration (Article 335). during the first two years after the commencement of this Constitution appointment of Anglo-Indians to posts in the railways, Customs, postal and telegraph services shall be made on the same basis as immediately before the 15th August, 1947; there shall be successive reduction in such reservation by ten percent, after every two years (Article 336). The President or Governor, as the case may be, may nominate two members of the Anglo-Indian community to Parliament or the Legislative Assembly if their representation is inadequate. Such representation in Parliament, or Legislative Assemblies or public services for any community shall cease on the expiry of ten years after the commencement of the Constitution (Articles 344, 356).
Reservation of seats and special representation to cease after twenty years - Article 334 of the Constitution of India as amended by the Constitution (23rd Amendment) Act, 1969, provides that (a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and (b) the representation of the Anglo-Indian Community in the House of the People and the Legislative Assembly of the States by nomination, shall cease to have effect on the expiration of a period of forty years (amended by 45th Amendment Act 1980) from the commencement of this Constitution.
Formerly the period of reservation was intended to be only fourteen years from the commencement of the Constitution but now by the new amendment i.e., the Constitution (23rd Amendment) Act, 1969, the reservation will continue for thirty years, (45th Amendment) Act has amended the Article 336 and now expiry period has been extended upto forty years instead of thirty years.
Ans. The Constitution has not defined as to which are the sections of Scheduled Castes and Scheduled Tribes. It, however, empowers the President to draw up list of these castes and specify as the Scheduled Castes and Scheduled Tribes by a notification. The Governor of a state has the similar power for the state. Any alteration in the list is within the power of the Parliament. However, following are the special provisions for the protection of the interest of the Scheduled Castes and Scheduled Tribes:
(1) According to Article 330, seats shall be reserved in the House of the Peoples for:
(a) the Scheduled Castes,
(b) the Scheduled Tribes,
(c) the Scheduled Tribes in the autonomous districts of Assam.
(2) Article 332 provides that seats shall be reserved for the Scheduled Castes and Scheduled Tribes in the Legislative Assembly of every state. (3) According to Article 334, the reservation of seats for the Scheduled Castes and Scheduled Tribes shall cease to have effect after the expiry of period of fifty years from the commencement of the Constitution. (4) Reservation of posts for the appointment of candidates in the services of the union and states, shall be made under Article 164(4) of the Constitution, in favour of Scheduled Castes and Scheduled Tribes candidates. (5) Article 15(4) provides that nothing in this Article or in clause (2) of Article 29, shall prevent the state from making any special provisions for the advancement of any socially and educationally backward classes or citizens or for Scheduled Castes and Scheduled Tribes. (6) Article 338(1) provides that there shall be a special officer for the Scheduled Castes and Scheduled Tribes to be appointed by the President. Clause (2) of Article 338 provides that it shall be the duty of the special officer to investigate all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes and to report to the President upon the working of such safeguards at such intervals as the President may direct, and the President shall cause all such reports to be laid before the Parliament. (7) According to Article 339 (1) the President may at any time and shall at the expiration of ten years from the commencement of the Constitution, by order appoint a commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the state. The Union Government shall have power to give directions to the State Governments to draw up and execute the schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the state. The above are in nutshell the constitutional provisions for the protection of interests of the Scheduled Castes and Scheduled Tribes.
Ans. According to Article 343(1) of the Constitution, the official language of the Union shall be Hindi in Devnagri script. However, the form of numericals to be used for the official purposes of the Union shall be international form of Indian numericals.
Article 343(2) provides that for a period of fifteen years from the commencement of the Constitution, the English language shall continue to be used for all the official purposes of the Union.
Even during this period of fifteen years, the President may authorise the use of the Hindi language in addition to the English language and of the Devnagri form of numericals for any of the official purposes of the Union.
Article 343 lays down that Parliament may, by law, provide for the use, after the said period of fifteen years, of
(a) the English language;
(b) the Devnagri form of numerals, for such purposes as may be specified in law (Article 343).
Official language of States - The Legislature of a State may, by law, adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purpose of the State. Until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution. (Art. 345).
Ans. The language for the time being authorised for use in the Union for official purpose shall be the official language for communication between one State and another State and between a State and the Union;
Provided that if two or more States agree that the Hindi language shall be the official language for communication between such states, the language may be used for such communication. (Article 346).
Commission and Committee of Parliament on official language - The Constitution provides for the appointment of a commission as well as a committee of Parliament to advise the President on certain matters relating to the official language.
According to Article 334(1) the President shall at the expiration of five years from the commencement of this Constitution and thereafter at the expiration of ten years from such commencement by order constitute a commission which shall consist of a chairman and such other members representing the different language specified in the Eighth Schedule as the President may appoint, and the order shall define the procedure to be followed by the Commission (Article 344(1)).
It shall be the duty of the Commission to make recommendations to the President as to-
(a) the progressive use of the Hindi language for the official purposes of the Union;
(b) restrictions on the use of the English language for all or any of the official purposes of the Union;
(c) the language to be used for all or any of the purposes mentioned in Article 348;
(d) the form of numerals to be used for any one or more specified purposes of the Union;
(e) any other matter referred to the commission by the President as regarded the official language of the Union and the language for communication between the Union and a State or between one State and another and their use [Article 344(2)].
In making their recommendations under clause (2) the Commission shall have due regard to the industrial, cultural and scientific advancement of India, and the just claims and the interest of persons belonging to the non-Hindi speaking areas in regard to the public services [Article 344(3)]. There shall be constituted a committee consisting of thirty members, of whom twenty shall be members of the House of the People and ten shall be members of the Council of State to be elected respectively by the members of the House of the People and the members of Council of States in accordance with the system of proportional representation by means of the single transferable vote. [Article 344(4)]. It shall be the duty of the committee to examine the recommendation of the commission constituted under clause (1) and to report to the President their opinion thereon [Article 344(5)]. Notwithstanding anything in Article 348, the President may after consideration of report referred to in clause (3) issue direction in accordance with the whole or any part of that report (Article 344(6). In Union of India v. Mura Soli, AIR 1977 SC 225 the respondents filed writ petitions in the High Court for declarations that the President order which requires training of administrative personnel in Hindi while in service is void. It was contended that Presidential order ceased to have any effect because the second language commission was not appointed as required u/Article 344. The Supreme Court held that Presidential order was valid. The power to appoint commission under Article 344 cannot be said to be exhausted on the expiry of 15 years. The President can use it on more than one occasion. The order continues itself at the end of 15 years.
Ans. The Constitution of India provides for three types of emergency:
A. National Emergency - due to war, external aggression or armed rebellion (Article 352).
B. State Emergency - due to the failure of constitutional machinery in States (Article 356).
C. Financial Emergency - (Article 360).
A. National Emergency - Article 352 provides that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened, either by war or external aggression or armed rebellion, he may make a Proclamation of Emergency in respect of the whole of India or any part of India as may be specified in the Proclamation. The Proclamation of Emergency made under clause (1) may be varied or revoked by the President by a subsequent Proclamation [CI. (2)]. The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (i.e. the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under Article 75) that such a Proclamation may be issued has been communicated to him in writing. The Proclamation of Emergency must be laid before each House of Parliament and it shall cease to be in operation at the expiration of one month (prior to the 44th amendment two months) unless before the expiry of one month it has bee approved by resolutions of both Houses of Parliament. If the Proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of one month referred to above, without approving the Proclamation but the Proclamation has been approved by the Rajya Sabha, the Proclamation shall cease to operate at the expiration of 30 days from the date on which the Lok Sabha sits after fresh election, unless before the expiry of the above period of thirty days a resolution, approving the Proclamation has been passed by the Lok Sabha [CI.(4)]. A resolution approving the Proclamation must be passed by special majority, that is by a majority of the total members of each House and also by a majority of not less then 2/3 of the members present and voting in each House. Prior to the 44th amendment, such resolution could be passed by Parliament by a simple majority. A Proclamation of Emergency once approved by Parliament shall remain in force for a period of six months from the date of the passing of the second resolution approving in under clause (4), unless revoked earlier. For the further continuance of the emergency beyond the period of six months' approval by Parliament would be required every six months. If the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance of emergency, but it has been approved by the Rajya Sabha, the Proclamation shall cease to operate at the expiry of 30 days after the Lok Sabha sits after fresh election unless before the expiry of the above period, it is approved by the Lok Sabha (Cl.5). Here also the resolution is required to be passed by the special majority referred to above. The President shall revoke a Proclamation of Emergency or a Proclamation varying such proclamation if the Lok Sabha passes a resolution disapproving it or disapproving its continuance. Where a notice in writing signed by not less than 1/10th of the total number of members of the Lok Sabha have been given their intention to move a resolution for disapproving the continuance of a Proclamation of Emergency - (a) to the Speaker, if the House is in session; or (b) to the President, if the House is not is session; a special sitting of the Lok Sabha shall be held within 14 days from the date on which such a notice is received by the Speaker or the President for the purpose of considering the resolution (Cls. 7 and 8). In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, Bhagwati, J. has held that there is no bar to judicial review of the validity of a Proclamation of Emergency issued by the President under Article 352 (1). Merely because a question has a political complexion, it is no ground why the court should shrink from performing its duty under the Constitution if it raises an issue of Constitutional determination. Effects of Proclamation of Emergency - The following are the consequences of the Proclamation of Emergency. (1) Extension of Centre's Executive Power (Article 353) - During the operation of a Proclamation of Emergency the executive power of the Union extends to giving of directions to any State as to the manner in which the executive power of the State is to be exercised. The 42nd amendment made a consequential change in Article 353 following the amendment made in Article 352. It provides that the executive power of the Union to give directions under clause (a) and the power to make laws under clause (b) shall also extend to any State other than the State where emergency is in force, if the security of India or any part of the territory is threatened by activities in or in relation to that part of the territory of India in which the Proclamation of Emergency is in operation. (2) Parliament empowered to legislate on State Subjects [Article 353(b)] - While the Proclamation of Emergency is in operation, the Union Parliament is empowered to make laws with respect to any of the matters in the State List. (3) Centre empowered to alter distribution of revenue between the Union and the State (Article 354) - The Present may, while a Proclamation of Emergency is in operation by the order after the Financial arrangement between the State and the Union as provided in Articles 268 to 279. Every such order is to be laid before each House of Parliament and will come to an end by the end of the financial year in which the Proclamation of Emergency ceases to operate. (4) Extension of life of Lok Sabha [Article 83(2)] - While the Proclamation of Emergency is in operation, the President may extend the normal life of the Lok Sabha by a year each time upto a period not exceeding beyond six months after Proclamation ceases to operate. (5) Suspension of fundamental rights guaranteed by Article 19 - (Article 358) provides for suspension of the six freedoms guaranteed to the citizens by Article 19 of the Constitution. It says that while a Proclamation of Emergency is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the Constitution. It means that as soon as the Proclamation of Emergency is made the freedoms guaranteed by Article 19 are automatically suspended. The (44th Amendment) Act, 1978 - has made two important changes in Article 358 :-(i) Article 19 will be suspended only when a proclamation of emergency is declared on the ground of war, external aggression and not when the emergency is declared on the ground of armed rebellion; and
(ii) Article 358 will only protect emergency laws from being challenged in the court of law and not other laws which are unrelated to the emergency. The Supreme Court in M.M. Pathak v. Union of India, AIR 1973 SC 106 held that the effect of Proclamation of Emergency on Fundamental rights is that the rights guaranteed by Articles 14 and 19 are not suspended during emergency but their operation is only suspended. This means that only the validity of an attack based on Articles 14 and 19 is suspended during the emergency.
Article 359 empowers the President to suspend the right to enforce fundamental rights guaranteed by Part III of the Constitution. He may by order declare that the right to move any court for the enforcement of such of the fundamental rights as may by mentioned in the order. Constitution (44th Amendment) Act exclude Articles 20 and 21 from such order and all proceedings pending in any court for the enforcement of such rights shall remain suspended for the period the Proclamation is in force or for such shorter period as may be specified in the order. An order made under may extend to the whole or any part of the territory of India. [Cl. (2)]. An order made under Cl. (1) shall, as soon as possible be laid before each House of Parliament. [Cl.(3)]. Thus the Constitution (44th Amendment) Act makes two important changes :-(1) That the President does not have power to suspend Article 21 during emergency, and
(2) Laws unrelated to emergency can be challenged in a Court of Law.
In A.D.M. Jabalpur v. S. Shukla, 1976 SC 1207 (popularly known as Hebeas corpus case), the respondent challenged the validity of the Proclamation of Emergency under Article 352. The main question for the consideration of the Supreme Court was whether in view of the President order any writ under Article 226 for habeas corpus to inforce the right to personal liberty of a person detained under the Act on the ground that the order of detention is not in compliance with the Act. The Supreme Court held that no person has any legal right to move any writ-petition under Article 226 before a High Court for a habeas corpus or any other writ or order or direction to challenge the legality of the detention order, on the ground that the order is not under or in compliance with the Act or is illegal or vitiated by mala fides factual or legal or is based on extraneous consideration. The Court, however, refused to follow the ruling in Makhan Singh v. State of Punjab, AIR 1964 SC 381, wherein the Supreme Court had pointed out that if a detenue challenged his detention on the ground that it violated statutory provisions or the detention is vitiated by mala fides the challenge could not be barred because of the Presidential order under Article 359 (1). B. State Emergency - due to the failure of constitutional machinery in States Failure of Constitutional machinery in State - Article 356 says that if the President, on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, he may issue a Proclamation. By that Proclamation:(1) The President may assume to himself all or any of the powers vested in or exercisable by the Governor to anybody or authority in the State.
(2) The President may declare that the powers of the Legislature of the State shall be exercised by or under the authority of Parliament.
(3) The President may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of Proclamation.
When the Proclamation of Emergency is made under Article 356(1), the powers of the State Legislature are to be exercised by Parliament. Parliament can confer on the President the power to make laws for the States. Parliament may also authorise the President to delegate such powers to any other authority as specified by himself. [Article 357 (1) (a)]. If the Lok Sabha is not in session the President may authorise expenditure from the Consolidated Fund of State, pending sanction of such expenditure by Parliament. The Proclamation issued under Article 356 (1) may be revoked or varied by the President by a subsequent Proclamation. It is to be noted that the word "satisfaction" in Article 356(1) does not mean the personal satisfaction of the Governor but it is the satisfaction of the cabinet. The satisfaction of the President can, however, be challenged on two grounds that (1) it has been exercised mala fide (2) based on wholly extraneous and irrelevant grounds, because in that case it would be no satisfaction of the President. A proclamation issued under Article 356 shall be laid before each House of Parliament and shall remain in operation for 'two months' unless before the expiry of that period it has been approved by both Houses of Parliament [Clause (3) of Article 356]. Any such Proclamation may be revoked or varied by a subsequent Proclamation. If any such Proclamation is issued at the time when Lok Sabha is dissolved or the dissolution takes place during the period of two months and the Proclamation is passed by the Rajya Sabha but not passed by the Lok Sabha, the Proclamation shall cease to operate at the expiry of 30 days from the date on which the new Lok Sabha meets after the reconstruction unless before the expiry of 30 days it has been also passed by the Lok Sabha. If the Proclamation is approved by the Parliament it will remain in operation of "six months". Parliament may extend the duration of Proclamation for "six months" at a time but no such Proclamation shall in any case remain in force for more than three years. After 44th Amendment of the Constitution in 1978, a new Clause (5) to Article 356, has been added in place of existing clause (5) which has now been, omitted. This new clause (5) provide that a resolution for the continuance of the emergency beyond one year shall not be passed by either House of Parliament unless (a) a proclamation of emergency is in operation at the time of passing of such resolution, and (b) the Election Commission certifies that the continuance in force of the proclamation under Article 356 during the period specified in such resolution is necessary on account of difficulties in holding general elections to the state legislative Assembly concerned. This means that the extension of the emergency beyond the period of one year is possible only if the conditions mentioned in clause (5) are available. Prior to this Amendment, there was no such condition imposed and the Government could extend the period upto the maximum of three years without sufficient reasons. The Constitution (48th Amendment Act, 1984) has again amended clause (5) of Article 356 and inserted a proviso in clause (5) namely "provided that in the case of the proclamation issued under clause (1) on the 6th day of 1983 with respect to the State of Punjab. The reference in this clause "to any period beyond the expiry of one year" shall be construed as reference to "any period beyond the expiry of two years". Under the existing clause (5) the Presidential proclamation of Oct. 6, 1983, with respect to Punjab, could not continue in force for more than one year unless "the special circumstances" mentioned therein were satisfied. This was enacted to meet out the special circumstances prevailing in the State of Punjab due to Akali agitation. Having regard to the prevailing situation in the state, the continuance of the proclamation beyond 6th Oct. 1984, was necessary. This amendment makes the conditions in the existing Article 356 (5) inapplicable in case of the State of Punjab. In S.R. Bommai v. Union of India, (1994) 3 SCC 1 regarding proclamation of emergency under Article 356 Supreme Court laid down following guidelines-(1) Presidential proclamation dissolving a State Legislative Assembly is subject to judicial review.
(2) If a State Government works against secularism, President's rule can be imposed.
(3) No wholesale dismissal of opposition ruled States governments when a new political party assumes power at the Centre.
(4) If President's rule is imposed only on political considerations the Court can even restore the assembly.
(5) Imposition of President's rule and dissolution of State Assembly cannot be done together.
(6) State Assembly can be dissolved only after Parliament approves Central rule.
(7) The Supreme Court or a High Court can compel the Union Government to disclose material on whose basis President's rule is imposed on a State.
(8) The power of the President under Article 356 is a constitutional power, it is not an absolute power. The existence of material is a pre- condition to form the satisfaction to impose the President's rule.
C. Financial Emergency. - Article 360 provides that if the present is satisfied that situation has arisen whereby the financial stability or credit of India or part of the territory thereof is threatened, he may by a proclamation make a declaration to that effect. The 44th Amendment makes Article 360 self-contained. It provides that the proclamation of financial emergency shall cease to be in operation at the expiry of two months unless it has been approved by both Houses of Parliament. Such a proclamation may be revoked or varied by the President by a subsequent proclamation. But if the Lok Sabha is dissolved during the period of two months and resolution is approved by the Rajya Sabha, but not by the Lok Sabha the proclamation shall cease to operate at the expiry of 30 days from the date on which the new Lok Sabha sits unless before the expiry of 30 days a resolution approving proclamation is passed by the Lok Sabha. During the period when such a proclamation is in operation, the executive authority of the Union shall extend to the giving direction to any State to observe such canons of financial propriety as may be specified in the directions and be deemed necessary by the President for maintaining financial stability and the credit of the State.
Ans. Amendment of Constitution - With the constant change in political, social and financial spheres, Constitution also require amendments to change political society. Framers of the Indian Constitution were keen to avoid excessive rigidity. They were anxious to have a document which could grow with growing nation and adapt itself to the changing need and circumstances of growing people. So the Constitution require some flexibility. But at the same time, framers of Indian Constitution were also aware that it should not be so flexible that it would be a playing of the whims and caprices of the ruling party. So a balanced theory was kept, process of amendment of Constitution has not been made too rigid nor too flexible. Article 368 of Constitution of India provides the method of amendment. For the purpose of amendment, various articles of Constitution can be divided into three categories:-
(1) Amendment by Simple Majority - Articles that can be amended by Parliament by simple majority as the required for passing of any ordinary law. The amendments contemplated in Articles 5, 169 and 239-A, can be made by simple majority. These Articles are specifically excluded from the purview of the procedure prescribed in Article 386.
(2) Amendment by Simple Majority - Articles of the Constitution which can be amended by special majority as laid down in Article 368. All constitutional amendments, other than those referred to above, come within this category and must be effected by a majority of the total membership of each House of Parliament as well as by a majority of not less than 2/3 of the members of that House present and voting.
(3) By Special Majority and Ratification by States - Article which require, in addition to the special majority mentioned above, ratification by not less than 1/2 of the State Legislatures.
The following provisions require such ratification by the States :
(1) Election of the President - Articles 54 and 55.
(2) Extent of the Executive powers of the Union and States - Articles 73 and 162.
(3) Articles dealing with judiciary, Supreme Court, High Court in the States and Union territories - Articles 124 to 147, 214 to 231, 241.
(4) Distribution of Legislative powers between the Centre and the State - Articles 245 to 255.
(5) Any of the Lists of the VIIth Schedule.
(6) Representation of States in Parliament IVth Schedule.
(7) Article 368 itself.
Procedure for Amendment - A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that House and by a majority of not less than 2/3 of the members of that House present and voting. When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and thereupon the Constitution shall stand amended. But a Bill which seeks to amend the provisions mentioned in Article 368 requires in addition to the special majority mentioned above the ratification by the 1/2 of the States. The question whether amendment of fundamental rights are covered by the proviso to Article 368, came for consideration in Shankari Prasad v. Union of India, AIR 1951 SC 455. In this case, validity of the First Amendment which inserted Article 31-A and 31-B, was challenged. The Supreme Court held that power to amend the Constitution including the fundamental rights, was contained in Article 368 and that the word "Law" in Article 13(2) includes only an ordinary law and not Constitutional amendments. Therefore, a Constitutional amendment will be valid even if it abridges or takes away any of the fundamental rights. Same line of approach was followed in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 in which the validity of seventeenth Amendment of the Constitution was challenged. Supreme Court approved the majority judgement given in Shankari Prasad case, that "amendment of the Constitution" means amendment of all the provisions of the Constitution. But in Golak Nath v. State of Punjab, AIR 1967 SC 1643, Supreme Court overruled the decisions of Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III Of the Constitution so as to abridge or take away the fundamental rights. The Constitution (24th Amendment Act, 1971) was passed to remove the difficulties created by the decision of Golak Nath case. This amendment provides that Article 13 does not include the amendment of the Constitution made under Article 368. It added a new sub-clause in Article 368 which provides that "notwithstanding anything in this Constitution, Parliament may, in exercise of constituent power, amend by way of addition, variation, or repeat any provision of the Constitution." The Constitution (24th Amendment) Act, 1971 was passed to remove the difficulties created by Golak Nath's case. The (24th Amendment) Act, 1971, provides that Article 13 does not include the amendment of the Constitution made under Article 368. It added a new sub-clause in Article 368 which provides that 'notwithstanding anything in this Constitution, Parliament may, in the exercise of constituent power amend by way of addition, variation or repeal any provision of the Constitution'. The validity of this Amendment was again challenged in Kesawanand v. State of Kerala, AIR 1973 SC 1461. In this case the Supreme Court by majority overruled the Golak Nath's case and held that Article 368, even before the (24th Amendment) contained the power as well as the procedure of the amendment. As regards the scope of the amending power contained in Article 368 the court said that the word 'amendment' has been used in various places to mean different things. In Article 368, it means any addition or change in any of the provisions of the Constitution. The fundamental rights cannot be abrogated, but they can be amended reasonably. The court further said that every part of the Constitution can be amended provided in the result the basic feature of the Constitution remains the same. The Constitution (42nd Amendment) Act, 1976 - To remove the difficulties created by the Supreme Court decision in Kesavanand Bharti v. State of Kerala, the Constitution (42nd Amendment) Act, 1976 has added two new clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provides that "no constitutional" amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground. Clause (5) declares that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation, or repeal the provisions of the Constitution under this Article. In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, the Supreme Court held Cl. (4) and Cl. (5) of Constitution 368 as void because through these clauses all limitations on the amending power of Parliament were removed. The court held that Parliament cannot have unlimited power to amend the Constitution. "Limited amending power" is the basic feature of the Constitution. The court, however, held that the doctrine of basic structure is to be applied only in judging the validity of amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by Legislature.
Ans. (a) Concept of Basic Structure
Theory of Basic Structure : A limitation on Amending power - The validity of the Constitution (24th Amendment) Act, 1971, was challenged in Keshvanand Bharati v. State of Kerala, AIR 1973 SC 1461, popularly known as the 'Fundamental Right's case the petitioners had challenged the validity of the Kerala Land Reforms Act 1963. But during the pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the 29th Amendment Act. The petitioner were permitted to challenge the validity of Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment to the Constitution also. The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution? On behalf of the Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368 Parliament cannot destroy the "basic feature" of the Constitution.
The Court by majority overruled the Golak Nath's case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The 24th amendment merely made explicit what was implicit in the unamended Article 368-A.
As regards the scope of amending power contained in Article 386, six judges held that there are inherent or implied limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution so as to damage or destroy the essential elements or basic features of the Constitution.
The court by majority of 7 to 6 held that the Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the 'basic feature' or 'framework' of the Constitution.
What is the basic structure ? What then are the essentials of the basic structure of the Constitution ? Although the Judges enumerated certain essentials of the basic structure of the Constitution, but they also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case, According to Sikri, C.J., the basic structure of the Constitution consists of the following features: (1) Supremacy of the Constitution, (2) Republican and democratic forms of the Governments, (3) secular character of the Constitution, (4) Separation of powers between the Legislature, the Executive and the Judiciary, (5) Federal character of the Constitution.
In Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299, the Supreme Court applied the theory of basic structure and struck down Cl.(4) of Article 329-A. which was inserted by the Constitution (39th Amendment) Act, 1975 on the ground that it was beyond the amending power of Parliament as it destroyed the 'basic feature' of the Constitution.
The Supreme Court has added the following features as basic features of the Constitution to the list of basic features laid down in the Keshavananda Bharati's case :
1. Rule of law.
2. Judicial Review.
3. Democracy, which implies free and fair Election.
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, Supreme Court has held that the following are that basic features of the Constitution:1. limited power of Parliament to amend the Constitution;
2. harmony and balance between fundamental rights and directive principles;
3. fundamental rights in certain cases;
4. power of judicial review in certain cases.
42nd Amendment and Article 368 - After the decisions of the Supreme Court in Keshavananda Bharati and Indira Nehru Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses, namely, clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provided that "no constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground. Clause (5) removed any doubts about the scope of the amending power. It declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. In Minerva Mills v. Union of India, AIR 1980 SC 1789, the Supreme Court by 4 to I majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. (b) Doctrine of Judicial Review In most of the countries with a written Constitution, the judiciary performs the role of an authoritative expounder of the Constitution. This role of the judiciary stems from the feeling that a system based on written Constitution can hardly be effective in practice without an authoritative, independent and impartial arbiter of Constitutional issues and to check power being exercised by a governmental organ which is not sanctioned by the Constitution. The Indian Constitution, however, explicitly establishes the doctrine of judicial review. The relevant Articles are : 13, 32, 131-136, 143, 226 and 246. The doctrine of judicial review is thus firmly rooted in India and judiciary has many a time enunciated it. In Madras v. V.G. Row, AIR 1952 SC 196 the Supreme Court has stated that our Constitution contains express provisions for Judicial review of legislation as to its conformity with the Constitution. Similarly, in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, the Supreme Court declared, "In India it is the Constitution that is supreme and that a statute law to be valid, must in all cases, be in conformity with the constitutional requirements and it is for judiciary to decide whether any enactment is constitutional or not". The court further held, "that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinize and ascertain whether such limitation has been transgressed and if there have been any transgression, the court will courageously declare the law unconstitutional, for the court is bound by its Oath' to uphold the Constitution." Rule of literal Interpretation - The basic approach of the Indian judiciary has been interpret the Constitution literally, like an ordinary legislative enactment. This is known as positivist approach. In Chiranjit Lal v. Union of India, AIR 1951 SC 56, the Supreme Court has laid down the principle in these words, "In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makes." In interpreting the Constitution, the courts in India have mostly applied the same principles as are applicable in the construction of a statute. This has been the dominant approach, though at times the Supreme Court has taken care to emphasise that the Constitution must not be construed in any narrow and pedantic sense. The principle of broad and liberal interpretation has been consistently applied to the construction of legislative entries in three lists. The entries are to be given a broad sense beneficial to the widest possible amplitude of powers and a narrow and restricted Constitution. They include within their scope and ambit all ancillary matters which legitimately come within the topics mentioned therein. Principle of harmonious Constitution -The Constitution should be so interpreted so as to give effect to all its parts and the presumption should be that no conflict or repugnancy was intended by the framers between the various provisions of the Constitution. It is, therefore, laid down that in case there are provisions in the Constitution which cannot be reconciled, the provisions should be so interpreted that if possible, effect should be given to both. That is what is known as the rule of harmonious construction. This rule is used to resolve the conflict between the various provisions of the Constitution while interpreting the Constitution for its judicial review.