18HS71 - Constitution of India and Professional Ethics

RV College of Engineering, Bengaluru – 59

(Autonomous Institution affiliated to VTU, Belagavi)
Department of Industrial Engineering and Management

Constitution of India and Professional Ethics

Unit – II

Directive Principles of State Policy- Significance of Directive Principles of State Policy,

Fundamental Duties in the Constitution of India;Union Executive- President and State
Executive- Governor; Parliament & State Legislature; Council of Ministers; Anti-defection
law; Union and State Judiciary; Emergency provisions; Elections, Administrative tribunals.
Human Rights & Human Rights Commission. 10 Hrs

Directive Principles of State Policy (DPSP

Articles 36-51 under Part-IV of Indian Constitution deal with Directive Principles of State
Policy (DPSP). They are borrowed from the Constitution of Ireland, which had copied it from
the Spanish Constitution. This article will solely discuss the Directive Principles of State
Policy, its importance in the Indian Constitution and the history of its conflict with
Fundamental Rights.

What are the Directive Principles of State Policy?

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

Directive Principles of State Policy – Classification

Indian Constitution has not originally classified DPSPs but on the basis of their content and
direction, they are usually classified into three types-
• Socialistic Principles,
• Gandhian Principles and,
• Liberal-Intellectual Principles.

The details of the three types of DPSPs are given below:

DPSP – Socialistic Principles

Definition: They are the principles that aim at providing social and economic justice and set
the path towards the welfare state. Under various articles, they direct the state to:

Article 38 Promote the welfare of the people by securing a social order through

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justice—social, economic and political—and to minimise inequalities in

income, status, facilities and opportunities
Article 39 Secure citizens:
• Right to adequate means of livelihood for all citizens
• Equitable distribution of material resources of the community for the
common good
• Prevention of concentration of wealth and means of production
• Equal pay for equal work for men and women
• Preservation of the health and strength of workers and children against
forcible abuse
• Opportunities for the healthy development of children
Article 39A Promote equal justice and free legal aid to the poor
Article 41 In cases of unemployment, old age, sickness and disablement, secure
citizens:
• Right to work
• Right to education
• Right to public assistance,
Article 42 Make provision for just and humane conditions of work and maternity relief
Article 43 Secure a living wage, a decent standard of living and social and cultural
opportunities for all workers
Article 43A Take steps to secure the participation of workers in the management of
industries
Article 47 Raise the level of nutrition and the standard of living of people and to
improve public health

DPSP – Gandhian Principles

Definition: These principles are based on Gandhian ideology used to represent the
programme of reconstruction enunciated by Gandhi during the national movement. Under
various articles, they direct the state to:

Article 40 Organise village panchayats and endow them with necessary powers and
authority to enable them to function as units of self-government
Article 43 Promote cottage industries on an individual or co-operation basis in rural
areas
Article 43B Promote voluntary formation, autonomous functioning, democratic control
and professional management of co-operative societies
Article 46 Promote the educational and economic interests of SCs, STs, and other
weaker sections of the society and to protect them from social injustice and
exploitation
Article 47 Prohibit the consumption of intoxicating drinks and drugs which are injurious
to health
Article 48 Prohibit the slaughter of cows, calves and other milch and draught cattle and
to improve their breeds

DPSP – Liberal-Intellectual Principles

Definition: These principles reflect the ideology of liberalism. Under various articles, they
direct the state to:

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Article 44 Secure for all citizens a uniform civil code throughout the country
Article 45 Provide early childhood care and education for all children until they complete
the age of six years
Article 48 Organise agriculture and animal husbandry on modern and scientific lines
Article 49 Protect monuments, places and objects of artistic or historic interest which are
declared to be of national importance
Article 50 Separate the judiciary from the executive in the public services of the State
Article 51 • Promote international peace and security and maintain just and honourable
relations between nations
• Foster respect for international law and treaty obligations
• Encourage settlement of international disputes by arbitration
Directive Principles of State Policy’s notes about its classification is important for UPSC
2021 and aspirants should learn these with articles mentioned.

What are the new DPSPs added by the 42nd Amendment Act, 1976?

42nd Amendment Act, 1976 added four new Directive Principles in the list:
S.No Article New DPSPs
1 Article 39 To secure opportunities for the healthy development of children
2 Article 39A To promote equal justice and to provide free legal aid to the poor
3 Article 43A To take steps to secure the participation of workers in the management
of industries
4 Article 48A To protect and improve the environment and to safeguard forests and
wildlife

Facts about Directive Principles of State Policy:

1. A new DPSP under Article 38 was added by the 44th Amendment Act of 1978, which
requires the State to minimise inequalities in income, status, facilities and opportunities.
2. The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21A. The amended directive
requires the State to provide early childhood care and education for all children until they
complete the age of 14 years.
3. A new DPSP under Article 43B was added by the 97th Amendment Act of 2011 relating
to co-operative societies. It requires the state to promote voluntary formation,
autonomous functioning, democratic control and professional management of co-
operative societies.
4. The Indian Constitution under Article 37 makes it clear that ‘DPSPs are fundamental in
the governance of the country and it shall be the duty of the state to apply these principles
in making laws.’

Criticism of Directive Principles of State Policy

As a point of debate, the following reasons are stated for the criticism of Directive Principles
of State Policy:
1. It has no legal force
2. It is illogically arranged
3. It is conservative in nature
4. It may produce constitutional conflict between centre and state

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What is the conflict between Fundamental Rights and DPSPs?

With the help of four court cases given below, candidates can understand the relationship
between Fundamental Rights and Directive Principles of State Policy:

ChampakamDorairajan Case (1951)

Supreme Court ruled that in any case of conflict between Fundamental Rights and DPSPs, the
provisions of the former would prevail. DPSPs were regarded to run as a subsidiary to
Fundamental Rights. SC also ruled that Parliament can amend Fundamental Rights through
constitutional amendment act to implement DPSPs.

Fundamental Duties in India - Article 51A

Introduction to 11 Fundamental Duties in India

The fundamental duties which were added by the 42nd Amendment Act of the Constitution in
1976, in addition to creating and promoting culture, also strengthen the hands of the
legislature in enforcing these duties vis-a-vis the fundamental rights.

42nd Amendment Act of 1976 added 10 Fundamental Duties to the Indian Constitution. 86th
Amendment Act 2002 later added 11th Fundamental Duty to the list. Swaran Singh
Committee in 1976 recommended Fundamental Duties, the necessity of which was felt
during the internal emergency of 1975-77.

The Fundamental Duties are dealt with Article 51A under Part-IV A of the Indian
Constitution. This article will mention in detail the 11 Fundamental Duties and their
importance in India.

The list of 11 Fundamental Duties under article 51-A to be obeyed by every Indian citizen is
given in the table below:
Sl.No 11 Fundamental Duties
1. Abide by the Indian Constitution and respect its ideals and institutions, the National
Flag and the National Anthem
2. Cherish and follow the noble ideals that inspired the national struggle for freedom
3. Uphold and protect the sovereignty, unity and integrity of India
4. Defend the country and render national service when called upon to do so
5. Promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women
6. Value and preserve the rich heritage of the country’s composite culture
7. Protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures
8. Develop scientific temper, humanism and the spirit of inquiry and reform
9. Safeguard public property and to abjure violence
10. Strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement
11. Provide opportunities for education to his child or ward between the age of six and
fourteen years. This duty was added by the 86th Constitutional Amendment Act,
2002

Importance of Fundamental Duties- Part IV-A

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Fundamental Duties are an inalienable part of fundamental rights. The importance of these
are given in the table below:

S.No Importance of Fundamental Duties

1. They remind Indian Citizens of their duty towards their society, fellow citizens and
the nation
2. They warn citizens against anti-national and anti-social activities
3. They inspire citizens & promote a sense of discipline and commitment among them
4. They help the courts in examining and determining the constitutional validity of a law

Parliamentary form of Government

Before talking of the Parliament and Union Executive, let us understand the form and nature
of the Indian government. The Structure of the Indian government can be understood by the
following flow chart:

India is a form of Parliamentary Government. It is a form of government in which the

executive is responsible and answerable to the legislative. It is also called the Cabinet
Government due to the concentration of executive powers in the Cabinet. The Executive is a
part of the Legislative.

This form of government was basically preferred by the leaders as:

• Leaders were aware of such a form of government.
• This government was considered a more responsible government as in this form of
government, the executive is answerable to legislative and the legislative is answerable to
the citizens.
• This type of government prevents Authoritarianism.
• This form helps to get representation from a Diverse Group of people.
• This form of government remains laden with the availability of Alternate Government.
• In this form of government, the head of the state holds a ceremonial position and is the
nominal executive. For example, the President
• The real head of the State is the Prime Minister, who is the real executive.
• There is a majority party rule in such a form of government.
• There is always a Parliamentary Opposition to maintain a check on the actions of the
ruling government.
• In this form of Government Civil Servants are Independent.

This is a famous concept of government followed in other countries like Japan, Canada,
Britain. This form of government in India was majorly inspired by Britain.
Opposite of such a form of government is the Presidential form of Government. In this
government, the President is answerable to citizens rather than the legislative.

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If we dwell deep inside, we find further subdivision of the Executive Organs of the State.
These subdivisions are:

Union executive-The President (Article 52)

The first and foremost part of the Executive is the President. Article 52 states that there shall
be a President of India. The President is considered the Executive head of the country. All the
Executive business of the country is carried out in the name of the President. So the President
is the executive head and all actions are in his name.

Qualifications: Article 58
After knowing that President is the Executive Head of the entire nation, you might too aspire
to become a president. So let’s analyze the eligibility and all the specific requirements, you
would be needing to become the President of India?

Article 58 talks about the eligibility of a person to become President of India. It says that a
person is eligible for election as President if he:
• is a citizen of India;
• has completed the age of thirty-five years;
• is qualified for election as a member of the House of the People.

A person can be disqualified for election as President if he holds any office of profit under
• the Union of India or;
• the Government of any State or;
• under any local or other authority subject to the control of any Government of
India.

Condition of President’s Office: Article 59

The eligibility to become the President might seem simple but the conditions his office are
quite strict. Article 59 of the Indian Constitution talks about the conditions of the President’s
office. It says:
• The President cannot be a member of either House of Parliament or of any other House of
the Legislature of any State.
• If he is a member of either House of Parliament or a member of a House of the
Legislature of any State, he will need to vacate his seat in that House on the date of
entering into his office as President.
• The President shall not hold any other office of profit.
• The President shall be authorized to the use of his official residences without rent.

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• He shall be also authorized to emoluments, allowances, and privileges determined by

Parliament.
• The emoluments and allowances of the President cannot be diminished or reduced during
his term of office.

Official residence, emoluments, and allowances of President

Apart from all these conditions and rules, you might crave for some advantage of being the
President. Well, the President of India is also entitled to certain allowances and privileges, as
he is the first citizen of the country. The President of India is entitled to rent-free
accommodation, allowances, and privileges by law. RashtrapatiBhavan is the President’s
official residence, including reception halls, guest rooms, and offices. It is the largest
residence of any head of state in the world .

Election of President: Article 54

It says that the President must be elected by the members of an electoral college. The
electoral college consists of the elected members of both Houses of Parliament and the state
Legislative Assemblies.

Mode of Voting
As per Article 55(3) of the Constitution of India, the election of the President should be held
according to the system of proportional representation by means of a single transferable vote.
The voting at the presidential election shall be by secret ballot.

Disputes regarding the election: Article 71

What if people raise issues regarding your elections as president? Who would clarify the
dispute?
Well, Article 71 deals matters relating to the election of the President. It states that any
dispute arising with respect to the election of the President will be adjudicated by the
Supreme court and its decision will be considered final.
• If the election of a person as President is declared void, acts done by him in the exercise
of the powers of the office of President will not be considered invalid by reason of the
order of the Supreme Court.
• Parliament can formulate any law regarding the election of a President in consonance
with the provisions of the Constitution.
• The election of a person as President or Vice President shall not be called in question on
the ground of the existence of any vacancy for whatever reason among the members of
theelectoral college electing him.

Oath by the President: Article 60

So, after you are elected, it is time to make an oath and get familiar with the term of office of
the President. Any person holding the office of the President or delivering the functions of the
President must, before entering into the office of the President, be made to subscribe in the
presence of the Chief Justice of the country or any other senior-most judge of the Supreme
Court, to an oath or affirmation in the name of God to faithfully execute the office of
president of India and to preserve, protect and defend the Constitution and the law to the best
of his abilities and that he would devote himself to serve the people of India and ensure their
well being.

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Term of office of the President: Article 56

Article 56 defines the term of the office of the President to be of five years unless:
• A new President enters the office, the incumbent President shall hold it;
• President resigns before the expiry of the term by writing it to the Vice President;
• The President is removed from his office, for violation of the Constitution, by the
process of impeachment provided under article 61.

The article also states that any resignation made by the President to the Vice President must
be communicated to the Speaker of the Loksabha by the Vice President himself.

Time of holding the election on expiry of the term and filling casual vacancies

Article 62 provides for the filling up of the vacancy to the office of the President. It defines
the terms of office of the person filling the casual vacancy as well as the time of holding
elections to fill the vacancy.It states that an election to fill the vacancies must be fulfilled
before the expiration of the term of the office of the President.

An election to fill the vacancies, occurring due to the death, resignation or impeachment of
the President, must be done as soon as possible. The elections, in any case, must be
conducted within a time period of six months from the date of occurrence of the vacancy. The
new person elected to the office of the President will be subject to all the provisions of
Article 56 and will hold his office for a five-year term from the date of entering into the
office.

Procedure for impeachment of the President: Article 61

The President of India can be impeached under Article 61, for the violation of the
Constitution, on the basis of charges preferred by either House of Parliament. A resolution
with the proposal to prefer such charges must be signed by at least one-fourth of the total
members of the house. The resolution also needs to be passed by at least two-thirds majority
of the house.

When the resolution is passed by one of the Houses, the other House must investigate the
charges. The President has been granted the right to be present or to be represented in such
investigations.When the House investigating the charges passes the resolution by a two-thirds
majority and declares the charges as sustaining, it results in removing the President from his
office from the date of passing of the resolution.

Privileges of the President: Article 361

As President, you also enjoy some degree of immunity. Under Article 361, the President is
protected from being answerable to any court for:
• For exercise and performance of his powers and duties of his office;
• For doing any act or claimed of doing any act in the exercise of those powers and
duties;

The conduct of the President can be reviewed only if either House of Parliament designates
or appoints any court tribunal or any other body to investigate the charges under Article 61.
But it bars no person from bringing any valid proceeding against the Governor or
Government of India.

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The Article immunes the President against all types of criminal proceedings during the term
of his office.
No issuance of any order relating to the arrest and imprisonment of the President can be made
by any court during his term of office.

A civil proceeding can be constituted against the president during his term of office if:
• The act is done or alleged to have been done, whether before or entering the office of the
President, by him was in his personal capacity;
• Two months prior notice is provided, to the president or was sent to his office, stating:
1. The nature of the proceeding;
2. The cause of action;
3. The details of the other party including name, description, and place of residence;
4. The relief claimed by the other party;

Powers of the President

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

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

Under this article, the President has powers regarding:

• Appointment of the high authorities of the Constitution like the Prime Minister and the
Council of Ministers;
• Right of being informed about all the national affairs;
• Appointment of the judges of the constitutional courts(Supreme Court and High Courts);
• Appointment of the state Governors, the Attorney General, the Comptroller, and Auditor
General, the Chief Commissioner and members of the Election Commission of India;
• Administration of Union territories and appointment of the Chief Commissioners and
Lieutenant Governor of the Centrally Administered Areas;
• Removal of the Council of Ministers, the state Governors, the Attorney General.

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

As the Supreme Commander of the Armed Forces of the Union, President has powers
regarding:
• Appointment of all the officers, including the appointment of the chiefs of the forces;
• Wars are waged in the name of the President;
• Peace is concluded in the name of the President.

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

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• All the Ambassadors and high commissioners in foreign nations are his representatives;
• He receives the credentials of the Diplomatic representatives of other nations;
• Prior to ratification by Parliament, the treaties and agreements with other nations, are
negotiated by the President.

Legislative powers

The President also enjoys certain legislative powers like:

• During the budget session, the President is the first to address the Parliament;
• The President is empowered to summon a joint session in order to break the deadlock in
the legislation process between the two Houses of the Parliament;
• President sanction is mandatory in cases of provisions relating to:
1. creating a new state;
2. changes in the boundary of existing states;
3. a change in the name of a state.
• Legislative provisions relating to fundamental rights of the citizens of India require the
President’s consent;
• President’s consent is mandatory in cases of money bill originating in Loksabha;
• President’s consent is necessary for all the bills passed by the Parliament to become a
law;
• President is empowered to promulgate ordinances when the Parliament is not in session;
• President also nominates the members of both the Houses.

Ordinance making power of the President: Article 123

Article 123 talks about the presidential powers to promulgate ordinances. An ordinance can
be promulgated if:
• neither of the House of the Parliament is in session;
• and the President feels a need for immediate action.
The ordinance which is promulgated by the President will have the same effect as that of an
act or law of the Parliament.

The essential conditions to be met by an ordinance are:

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

Financial Roles
• President receives reports of the Finance Commission and acts on its report.
• The Contingency Funds of India are at the disposal of the President.
• He also causes the presentation of audits in the Parliament.

Judicial Powers
The President enjoys the following privileges as his judicial powers:
• He can rectify the judicial errors;

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• He exercises the power of grant of pardons and reprieves of punishments;

• President can seek the advice of Supreme Courts on:
1. Legal matters,
2. Constitutional matter,
3. Matters of national importance.

Pardoning power: Article 72

Article 72 provides for the provisions relating to the pardoning powers of the President.
President can grant pardons, respites, reprieves, and remissions of punishments or remit
suspend or commute the sentence given to a person by the court in the following cases:
• When the sentence is granted through a court-martial;
• When the sentence or punishment is given for offense of violation of any law
relating to matters that fall in the ambit of Union’s executive powers;
• When a death sentence is passed by a court.

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

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

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

Articles 72 and 161 of Constitution

Article 161 grants the power to the Governor of the state to suspend, remit or commute
sentences of the offenders in certain cases relating to a violation of provisions or laws to
which the executive power of the state extends.

Article 72 Article 161

• Grants power to the President of India. • Grants powers to the Governor of state.
• The power is wider in scope. • The scope of powers is narrower.
• The powers of pardon extend to cases of • Power cannot interfere with cases of
Court Martial as well. Court Martial.
• Allows President to grant pardon in cases • Governor cannot grant pardon in cases
of death sentence. of death sentence.

Emergency Powers
Article 352 of the Constitution of India grants President, three kinds of emergency powers as
well:
• When a National Emergency is declared in case of external aggression or internal armed
rebellion, the President holds the powers to declare a state of emergency. Thus the
President’s rule gets established in the country. However, the prime minister and the
Council of Ministers must recommend such an emergency;

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• When there exists a constitutional or law and order breakdown situation in a state, the
President may declare a state of emergency in such cases. The state would then come
under Governor’s rule;
• Whenever the financial stability of the nation or any country is seriously affected, the
President has the right to intervene and direct the state to check and maintain public
expenditure.

The Vice President (Article 63)

Functions of the Vice-President
There are some important functions and duties to be performed by the Vice-President of
India. Article 64 and Article 65 of the Indian constitution talks about the following functions:
• The Vice-President is the ex-officio Chairman of RajyaSabha(the Council of States);
• The Vice President casts his vote in case of a tie in RajyaSabha;
• The Vice President represents the Council of States on ceremonial occasions;
• He protects the rights and privileges of the members of the RajyaSabha;
• He travels, for goodwill missions, to foreign countries;
• The Vice-President shall perform the functions of President, in cases where the President
is not able to perform his functions due to absence or illness etc until the President
resumes his duty;
• The Vice-President shall act as President, If the vacancy is created for the post of
President due to his resignation, removal, and death or otherwise until a new President is
elected;
• The period between the Vice-President acting as the President and the election of a new
President can be extended for a maximum period of six months.

The Council of Ministers

Article 74 of the Indian constitution states that:
• There should be a Council of Ministers to aid and advise the president;
• The Council of Ministers must have a Prime Minister at the head to aid and advise the
President;
• The President should exercise his functions and act in accordance with advice rendered
by the Council of Ministers;
• The Council of Ministers should reconsider any advice sent back by the President;
• The President is bound to act in accordance with the advice tendered by the Council, after
reconsideration.

Size of Ministries
The executive powers in India are exercised by the Council of Ministers. These ministers
constitute ministries having cabinet minister, junior minister, etc. Before 2003, the size of
ministries was not specified under any provision leading to a lot of chaos.

After the 91st amendment Act of 2003 came into existence, it marked a ceiling limit to the
size of the ministries. The amendment stated that the strength of the Council of Ministers
cannot exceed more than 15% of the total number of members of the Loksabha or relevant
Legislative Assembly of the state.
An exception was provided to the smaller states like Sikkim, Mizoram, and Goa, having a
strength of lesser than 40 members in the legislative assemblies.

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Disqualification on defection on the ground of split in a political party

Article 102(2) and Article 191(2) provides for Anti-Defection laws regarding the members of
Loksabha. According to this law, a member of a House, belonging to any political party, shall
be disqualified as a member of the House on the following basis-
• If the person voluntarily gives up his/her membership of the political party to which
he/she belongs; or
• If the person votes or abstains from voting in contrary to any direction issued by the
political party or by any person or authority authorized to give directions.

In either case, the prior permission of such political party, person or authority must be sought.
The voting or abstention must be approved by the political party, person or authority within
fifteen days from the date of voting or abstention.
When a member of a House claims that he and any other members of his party have formed a
group representing a faction emerging as a result of a split in his original political party. If
such a group consists of one-third or more of the members of such a political party then the
ministers cannot be disqualified under Anti-Defection laws.

A non-member can become a Minister

Article 75 of the Constitution of India provides for provisions relating to the appointment of
the Union Ministers.
At first, the Prime Minister is appointed by the President and then the President appoints
other ministers on the advice of the Prime Minister.
The provision clearly states that any minister, who is not a member of either House of the
Parliament, shall cease to be a minister after the period of six months from the date of his
appointment.
The non-member must get elected to either House of the Parliament in order to continue as a
Minister of LokSabha.

A convicted person cannot be appointed Chief Minister

When the question arose whether a convicted can be appointed as Chief Minister or not.

The issue was decided in the negative by the Supreme Court in the famous case of B.R.
Kapoor v State of Tamil Nadu and Anr (Famously known as Ms. J. Jayalalitha Case). It was
held that any person who is convicted for a criminal offense and sentenced to imprisonment,
for a period of two years, or more, cannot be appointed the Chief Minister of any State
under Article 164(1) of the Indian Constitution.

Dissolution of Parliament
In our country, the LokSabha has a five-year term but it can be dissolved earlier. Article
83(2) of the Indian Constitution states that at the completion of five years term, from the
starting date of Loksabha meetings, it can be dissolved. In such cases, an election is held to
elect the new Members of Parliament.
The LokSabha can also be dissolved by the President on the advice of the Prime Minister
before the expiry of its term.
The President can also dissolve the LokSabha, if he feels that a viable government cannot be
formed, after the resignation or fall of a regime, as the case may be.

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Principle of Collective Responsibility

The principle of Collective Responsibility means that the Council of Ministers is collectively
responsible as a body for all the actions, omissions and conduct of the government.

It states that all ministers stand or fall together in Parliament. The Government is considered
as a unity of ministers instead of single individuals. It means that the minister should publicly
support the decisions made by the cabinet, even if they disagree privately. This support even
includes voting for government in the legislature.

Minister’s Individual Responsibility

The Ministerial Individual Responsibility means that a cabinet minister is ultimately
responsible for all the actions of his ministry or department.
Whenever there is an individual ministerial responsibility, the party to which the minister is a
part is not answerable for the failure of the minister. The minister shall himself take the
blame for the actions of his ministry and resign.

Appointment of Prime Minister

The Prime Minister of India is appointed by the President through provisions under Article
84 and Article 75. Prime minister is the leader of the majority party or coalition of parties of
Loksabha. When a party achieves majority the leader of that party is called upon by the
President to be the Prime Minister of the country. He is considered as the real head of the
country.

Constitutional Duties of Prime Minister

The constitution envisages the Prime Minister with certain rights and duties. The functions of
the Prime Minister are as follows:
• The Prime Minister proposes the names of the members to President for appointment as
Ministers of the government;
• Prime minister can reshuffle the Cabinet and decides for the distribution of charges of
different ministries as well;
• He presides over the meetings of the Cabinet and can also change the decisions taken by
the Cabinet;
• He suggests the President of India about the resignation or removal of any minister from
the Cabinet;
• He also directs and controls the functioning of Ministers in the Cabinet;
• The Prime Minister may resign at any time and can even ask the President of India to
dissolve the Cabinet.;
• He can advise the President to dissolve entire LokSabha to conduct fresh elections;
• The Cabinet stops functioning If the Prime Minister resigns from his post, and
spontaneously dissolves after the death of the Prime Minister.

Rights and powers regarding Appointments:

Prime Minister can advise the President for the appointment of the following:
• Comptroller and Auditor General of India;
• Attorney General of India;
• Advocate General of India;
• Chairman and members of UPSC;
• Selection of Election Commissioners;
• Members and chairman of the Finance Commission.

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Rights/Powers with regard to Parliament of India:

Prime Minister is the leader of the Loksabha with rights to exercise the powers as follows:
• The prime minister decides the foreign policy of the country.
• He is the speaker of the Central Government.
• He is the leader of the majority party or coalition of parties in the Parliament.
• The Prime Minister is also is the chairman of various organizations including:
1. NITI Aayog;
2. National Development Council;
3. National Integration Council;
4. Inter-state Council;
5. National Water Resources Council.
• He is also the head of the disaster management team during a political level emergency.
• He is also the political head of all the forces.

Dismissal of a Minister
The minister of the Loksabha can be removed from his post under the following conditions:
• Upon the death of the minister;
• Upon self resignation from the minister;
• If the minister is dismissal by the President, for unconstitutional his acts as per Article
75(2);
• Article 75 of the constitution states that the minister holds the office at the pleasure of the
President;
• Upon direction from the Court for committing the violation of any law;
• If the minister loses the eligibility to be a member of Parliament.

Dismissal of the Cabinet

The Cabinet of Minister dissolves if:
• The Prime Minister asks the President of India to dissolve the Cabinet;
• The Prime Minister advises the President to dissolve entire LokSabha to conduct fresh
elections;
• If the Prime Minister resigns from his post;
• The cabinet automatically dissolves after the death of the Prime Minister.

State Executive
Appointment of the Governor
Article 153 of the Indian Constitution says that each state of the nation should have a
governor. The governor is appointed by the President. Under the 7th Constitutional
Amendment, it was stated that there can be the same governor for two different states.
The Qualification that one needs to be eligible for a governor of a State/States are the
following-
1. They must be a citizen of the country.
2. They should be 35 years and above.

Once the Governor is selected,

1. He shall be appointed to a state to where he belongs
2. Consult the Chief Minister of the state about where to be appointed.

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Special Powers of the Governor

The powers of the Governor that are granted to him by the Indian Constitution can be broadly
classified into four categories, that is Executive, Legislative, Financial, and Judicial.

1. Executive Powers
Some of the executive Powers of the Governor are –
• He is responsible for the appointment of the advocate general of states and also
determines their remuneration.
• Chief Ministers and other ministers of the states are appointed by the Governor
• He acts as the President’s agent during the President’s rule in the state.
• Every executive action taken by the state government is to be taken in his name.

2. Legislative Powers
Some of the Legislative Powers of the Governor are –
• Governor may/may not send a bill to the state legislature concerning any bill that is
pending in the state legislature.
• The state legislature is addressed by him in the first session of every year.
• Then the Governor appoints a person to preside over the session the speaker and the
deputy speaker of the legislative assembly are absent.
• He has the authority to consult the Election Commission for the disqualification of
members.

3. Financial Powers
Some of the Financial Powers of the Governor are –
• The Governor looks over the state budget being laid in the state legislature.
• He makes advances to meet unforeseen expenditures as the contingency fund of the state
is under him.
• Every five years, the state finance commission is constituted by him.

4. Judicial Powers
Some of the Judicial Powers of the Governor are –
• His recommendation is sought by the President before the appointment of the high court
judges.
• In consultation with the state High Court, the Governor makes appointments, postings,
and promotions of the district judges.
• He also appoints persons to the judicial services with the consultation of the state high
court and the state public service commission.

7thConstitutional Amendment
Some of the most comprehensive changes in the Indian Constitution were bought in by the
7th Constitutional Amendment, back in the year 1956. It was exclusively designed to
implement the State Reorganisation Act.

Some of the changes that were brought forward by this Amendment Act are –
1. It allowed two different states to have the same Governor.
2. It provided for a maximum of 500 members directly elected from territorial
constituencies in the States, and a maximum of 20 members chosen from the Union
Territories to the LokSabha.
3. Allowed a common high court for two or more states.

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4. The maximum strength of the Legislative Council of a State was raised from one-fourth
to one-third of the strength of the Legislative Assembly of that State.
5. Relaxed the complete ban on practice by retired judges of the High Courts and made
provisions for them to practice in the Supreme Court and in any High Court other than
the one in which he/she was a permanent judge.
6. Ordered the states to provide facilities for instruction in their mother tongue at the
Primary stage to children belonging to linguistic minority groups.
These amendments were needed to implement the recommendations of the States
Reorganisation Commission regarding the reorganization of the states on a linguistic basis.

Chief Minister and the Council of Ministers

Once the Legislative Assembly elections of a particular state get over, the party that gets the
largest mandate by the people of the state gets elected to rule the state. The leader of that
party is appointed as the Chief Minister of the state by the Governor.

Article 74 and 75 of the Indian Constitution deal with the Council of Ministers. The council
of ministers is headed by the prime minister of the country. The salaries and allowances of
the council of ministers are decided by the Parliament.

Appointment of Chief Minister

The particulars of the chief minister’s appointment are not mentioned in the Indian
Constitution. However, one thing that is absolute is that the Chief Minister of a state is
appointed by the Governor of that state.

The leader of the political party that gets the majority of the votes, gets to be appointed as the
Chief Minister of the state. In case, no party gets a majority, then the governor gets to use his
discretion and appoint a Chief Minister.

Oath of Chief Minister

The Chief Minister takes an Oath in the presence of the Governor of the state before entering
the office.
As mentioned in the 3rd schedule, while taking the oath, he/she shall say, “I, A. B., do swear
in the name of God that I will bear true faith and allegiance to the Constitution of India as by
law established, 1 [that I will uphold the sovereignty and integrity of India,] that I will
faithfully and conscientiously discharge my duties as a Minister for the Union and that I will
do right to all manner of people in accordance with the Constitution and the law, without fear
or favour, affection or ill-will.”

Powers of a Chief Minister

Being the leader of the ruling party of the state, the chief minister has been granted some
powers by the Indian Constitution. Some of the powers of the Chief Ministers are as below –

1. Head of the Council of Ministers

The chief minister is the head of the council of Ministers. The ministers are appointed by the
Governor on the advice of the Chief Minister and he also has a free hand in making a list of
his colleagues. The Chief Minister can reconstruct his Ministry as and when the need arises.
He further has the right to demand the resignation of any of the ministers under him. The
chief minister also controls the agenda for the Cabinet meetings. Furthermore, he supervises
and coordinates policies of several Ministers and Departments.

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2. Aids and Advises the Governor

He is the link between the Cabinet and the Governor. The decisions of the council of
ministers are communicated to the governor by the Chief Minister. He also needs to furnish
any information relating to the administration of the State as the Governor may call for.

3. Leader of the House

Being the leader of the house, he gets to make all the announcements concerning the new or
amended policies. Maintaining discipline of the Members of his party also comes under his
hat. Adding to this, the chief minister can appoint a whip whose directive must be obeyed by
all the legislators.

State Legislature

Introduction
The Constitution of India is regarded as one of the lengthiest written constitutions in the
whole world. Our Constitution gives us a federal structure where the powers between the
Central Government and the State Government are divided. Most of us know about the
working of the Central Legislature and the powers related to the Central Legislature. Part VI
of the Constitution deals with the State Legislature. In this article, we will discuss this part of
the Indian Constitution in detail. Here we will discuss the unicameral and bicameral
legislature. The creation and abolition of these Houses of the State Legislature.The
qualification of a person to be a member of the State Legislature. Ultimately, we will discuss
Articles 168 to 212 of the Indian Constitution. It is quite complex to understand the working
and procedure of work in State Legislature but after going through the Constitution of India it
becomes easier for one to understand it.

Bicameral and Unicameral Legislature

Before discussing what is a bicameral and unicameral legislature, let us first discuss what is
the legislature. The legislature is the law-making body of the State. It is first among the three
organs of the state. It can make laws as well as administers the government. As mentioned
in Article 168 of the Indian Constitution, a state can have a unicameral legislature (It should
be Legislative Assembly) as well as a bicameral legislature (Legislative Council and
Legislative Assembly). According to Article 168 of the Indian Constitution, there shall be
legislature in every State and it shall consist of the Governor.

Unicameral Legislature
Unicameral legislature refers to having only one legislative chamber which performs all the
functions like enacting laws, passing a budget, and discussing matters of national and
international importance. It is predominant in the world as most countries have a unicameral
legislature. It is an effective form of the legislature as the law-making process becomes easier
and reduces the possibility of obstacle in lawmaking process. Another advantage is that it is
economically feasible to maintain a single chamber of the legislature. It is the most prevailing
system in India as most of the States of India have a unicameral legislature. The members of
the unicameral legislature (Legislative Assembly) elected directly by the citizens of the State.
Bicameral Legislature
By bicameral legislature, we refer to the State having two separate law-making Houses to
perform the functions like passing the budget and enacting laws. India has a bicameral
legislature at the Centre level while the State can make the bicameral legislature. In India,
only 7 States have a bicameral legislature. It may be seen that a bicameral legislature may not

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be as effective as a unicameral legislature. However, it works as a barricade in some cases as

it somehow makes the law-making process more complex.

Abolition or Creation of Legislative Councils

In our country, the Legislative Council (also known as VidhanParishad) is the Upper House
of a bicameral legislature. The creation of which is given in Article 169 of the Indian
Constitution and can also be abolished according to Article 169 of the Constitution.

Article 168 mentions about the Legislative Council in some of the States of our country.
There is no rule of having a bicameral legislature in the State of India. It is because our
Constitution framers knew that it will not be possible for every State to have a bicameral
legislature ( due to financial or any other reason).

Article 169 talks about the creation or abolition of the Legislative Council. For the creation or
abolition of the Legislative Council, the Legislative Assembly must pass a resolution that
must be supported by more than 50% of the total strength of the assembly. It must be
supported by more than 2/3rd of the total members present in voting. Therefore it talks about
the absolute and special majority. The resolution to create or to abolish the Legislative
Council needs the assent of the President as well.

Composition of the Houses

Article 170 of the Indian Constitution talks about the configuration of the Legislative
Assemblies. This Article simply put emphasis on what will be the structure of the Legislative
Assemblies in the state. On the other hand, the configuration of the Legislative Council is
given in Article 171 of the Indian Constitution.

Legislative Assembly (VidhanSabha)

According to Article 170, there should be a Legislative Assembly in every State of India.
However, these assemblies should be according to the provisions of Article 333 of the Indian
Constitution. The Legislative Assembly of state can have at most 500 constituencies and at
least 60 constituencies. These constituencies would be represented by the members who
would be selected through the process of direct election. However, the division of territorial
constituencies would be determined in such a manner that it becomes dependent on the
population of that constituency. Here by the term “ population” we mean population which
has been published in the precedent census. The composition of the Legislative Assembly in
any state can change according to the change in the population of that state. It is determined
by the census of population. However, there are several exceptions to the composition of the
Legislative Assembly. Let’s take the example of Mizoram, Sikkim, and Goa which has less
than 60 constituencies.

The tenure or duration of the Legislative Assembly is mentioned in Article 172 of the Indian
Constitution. The Legislative Assembly should work for a time period of five years. Its tenure
starts from the day of its first meeting. However, it can be dissolved earlier by the special
procedure established by the law. However, there can be an extension in the tenure of the
Legislative Assembly. This can be done during the National Emergency. During the period of
the National Emergency, the Parliament can extend the tenure of the Legislative Assembly
for a period of maximum one year. Also, this extension should not be more than six months
after the proclamation has ceased to operate.

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Legislative Council (VidhanParishad)

The composition of the Legislative Council is given in Article 171 of the Indian Constitution.
The total members in the Legislative Council should not exceed one-third of the total
members in the state Legislative Assembly. There is another criteria for the composition of
the Legislative Council. The member in the Legislative Council should not be less than 40 in
any case. There is an exception in the composition of VidhanParishad. The Legislative
Council of Jammu and Kashmir has only 36 Member in Legislative Council, unlike the other
Legislative Council.

The composition of the Legislative Council can be further divided in the following way:
• One-third of the members of the Legislative Council should be elected from the district
boards, municipalities and other local authorities which is specified by the Parliament
according to law.
• One-twelfth of its members shall be elected from the person who has been residing in the
same state for the time period of at least three years and graduated from the university
which is in the territory of India.
• One- twelfth of its total member should be elected from the person who is engaged in the
teaching profession for at least three years in the educational institution of the state itself.
• One third should be elected by Legislative Assemblies and none of them should be a
member of the Legislative Assembly.
• The remainder of the members should be nominated by the Governor according to the
established law.

Qualifications of Membership
After this much of knowledge on both the Houses of Legislations, we can move further on
the next topic. Here we will discuss what are the qualifications that one requires for being a
member of the Legislative Assembly/Council.

The qualification of membership is given in Article 173 of the Indian Constitution. For the
membership or for filling a seat in the legislature of the State, a person must be a citizen of
India. A person will not be granted membership if he/ she is not a citizen of that country.
Also, the qualification of the membership is somewhat similar to the qualification to the
membership of the center legislature. The member of the Legislative Assembly should be
more than 25 years. For being a member of the Legislative Council one should be more than
30 years. Also, a necessary condition for being a member of legislatures includes that he/she
must be a voter from any of the constituencies of the state.

Disqualifications of Membership
After being elected/ nominated as a member of the legislature, one cannot be a permanent
member of the legislature. There are certain reasons mentioned in the Constitution by which a
person may be disqualified from his/her membership to the Legislature. Article 191 talks
about the disqualification of the members of the Legislature.
Disqualification of MLA/ MLC can be made on the following grounds:
1. If one holds the office of profit under the state or central government.
2. If one is of unsound mind and is declared so by the competent court.
3. If one is an undischarged insolvent.
4. If one is not a citizen of the country anymore or when he/ she voluntarily took the
citizenship of another country.
5. If one is disqualified by the law of the Parliament. Example- Anti defection law.

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Decisions on disqualifications
Article 192 of the Indian Constitution talks about the decision on the disqualification of a
member of the state legislature. If any question arises about the disqualification of a member
of the House of the legislature on any ground mentioned in Article 191 in the Indian
Constitution, then Article 192 comes into play. Article 192 mentions that in such cases the
decision about disqualification would be determined by the Governor of that state and his/ her
decision would be final. However, the Governor needs to consult the Election Commission
for the same and he/she needs to act accordingly. Here, grounds of disqualification would be
the same as mentioned in Article 191.

Sessions of the State Legislature

Moving further on the next topic we will discuss the sessions of these State Legislatures. Its
time of prorogation and dissolution will also be discussed by us here. Also, one thing is quite
clear after a lot of analysis of State Legislature is that the Legislative Assembly is somehow
similar to the House of the People (LokSabha) while the Legislative Council is similar to the
Council of State (RajyaSabha). Their sessions are also quite similar. Article 174 of the Indian
Constitution gives the power to the Governor to summon these Houses of the State
Legislature. He/ She can summon these bodies to meet at places and at such times which he/
she thinks fit or appropriate. But a necessary condition should be kept in mind is that the time
period between the two sessions of these Houses should not exceed six months. Also as
mentioned in Article 174 of the Indian Constitution, the Governor has the power to prorogue
either House and to dissolve the Legislative Assembly.

Speaker and Deputy Speaker

There is a need for head or in charge of every legislative part. The Speaker and Deputy
Speaker serve the same purposes in the Legislative Assembly. Article 178 of the Indian
Constitution talks about the same. According to this article, there should be a Speaker and
Deputy Speaker should be chosen from the Legislative Assembly. In this, it is also mentioned
that the condition where if the office of Speaker and Deputy Speaker becomes vacant then it
becomes the duty of the Legislative Assembly to choose the new Speaker and Deputy
Speaker respectively.

Powers and Functions of Speaker

Article 178 gives the power to Speaker to preside over the sessions of the Legislative
Assembly of the state. Similar powers are given to the Speaker of the LokSabha, as
mentioned in Article 93 of the Indian Constitution. The power and position of an Indian
Speaker are quite similar to the Speaker of the House of Commons in England.

The most important function of the Speaker is to preside over the sessions of the Legislative
Assembly and also to maintain discipline and order in the assembly. Within the assembly, the
Speaker is the master. He has the power to decide whether the Bill is a Money Bill or not.
Also, the decision of Speaker cannot be challenged in a court of law. Money Bills are sent to
the Legislative Council with the approval of the Speaker. The salary of Speaker is given from
the Consolidated Fund of State.

The other functions/ powers of the Speaker are as follows:

• He/she does not participate in the debate of the assembly.
• Only votes when there is a condition of a tiebreak.
• He/She sees whether there is a necessary quorum.

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• He has the power to adjourn or suspend the sitting of the Legislative Assembly when
there is not a necessary quorum and also to maintain the discipline of House.
• He/She has the power to suspend or to expel the member for his/ her unruly behaviour.

Chairman and Deputy Chairman of the Legislative Council: Article 182,183,184,185

The working of the Legislative Council is quite complex. The process of membership, the
appointment of its head and the power of the Legislative Council is also quite difficult to
understand. According to Article 182 of the Indian Constitution, the Legislative Council must
choose its two members as Chairman and Deputy Chairman. It also mentions that the
Legislative Council must choose the Chairman and Deputy Chairman of the Legislative
Council as soon as their office becomes vacant.

The offices of Chairman and Deputy Chairman becomes vacant very often. However, the
reason for their removal/ resignation is mentioned in Article 183 of the constitution. The
reasons are as follows:
1. Should not hold their post if they are not a member of the Legislative Council.
2. By sending the written resignation letter to each other.
3. They can be removed by passing a resolution in the Council. However, there should be a
majority of members in support of this resolution. An important point to be remembered
while passing a resolution that a notice of the intention of resolution should be given
before 14 days.

Now imagine a condition when there is a vacancy in seat of Chairman of the Legislative
Council. Then, the question which would strike us would be related to the replacement of
his/ her place in the Legislative Council or who will look after the working of the Legislative
Council. The answer to the second part of the question is given in Article 184 of the Indian
Constitution. According to this Article, the Deputy Chairman has the power to perform the
duties and to act as Chairman of the Legislative Council. According to Article 184, if there is
a vacancy in the office of Chairman then all duties of Chairman would be performed by the
Deputy Chairman and in case if the office of Deputy Chairman is also vacant then the duties
of Chairman would be performed by the person appointed by the Governor.

Talking about Article 185 of the Indian Constitution, it puts certain restrictions on Chairman
or Vice-Chairman when their impeachment resolution is under consideration. It simply tells
that a Chairman or Vice-Chairman can notpreside the Council when the resolution for their
impeachment is under consideration. Here in this condition, Article 184 will be applied. Also,
it is given in Article 185 that when such resolution is under consideration then the Chairman
has all the right to attend the proceedings of the Legislative Council and he/she will have all
the right to speak during such proceedings. Here, the Chairman has the right to vote in the
first instance of the proceedings but he/she will not be able to vote in the condition of
equality of votes.

Legislative Procedure: Article 196

The main purpose of Legislature is to make laws, pass a bill etc. To understand the working
of Legislature or Legislative Procedure let us first discuss the term “Bill”. By Bill, we mean a
draft of the legislative proposal. This bill after getting assent from both the Houses of
Legislature becomes an Act after getting assent from the Governor. Article 196 of the Indian
Constitution tells us about the provisions of the introduction and passing of the Bill. Except
for the Money Bill and the Financial Bill ( procedure of passage of these bills are given in
Article 198 and 207), the other bills can be introduced in either Houses of the legislature. Any
bill is said to be passed only when it got assent from both the Houses of the legislature. Here

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both the Houses should agree on the amendment made to the bill. A bill would not lapse
when it is pending in the House and there is the prorogation of that House. A bill pending in
the Legislative Council of any state which is not passed by the Legislative Assembly shall not
lapse even on the dissolution of the Legislative Assembly. Also, there is a condition
mentioned in Article 196 which states that if there is a bill pending in the assembly and at that
time the assembly dissolute, then the bill will also lapse ultimately. The bill will also lapse if
it is passed by the assembly and is pending by the Council.

Ordinary Bills
The provision or the procedure related to Ordinary Bill is discussed in Article 196 of the
Indian Constitution. The main purpose of the State Legislature is law-making as already
being discussed in this article earlier. The legislature can make laws on State List as well as
on Concurrent List. Ordinary Bill can be introduced in either of the Houses. The process
given in Article 196 is applied here and once it gets the sign from the Governor it becomes
law. The Governor has the power to issue ordinance when there is a need of any law and the
legislature is not in session.

Money Bills
A Money Bill is a bill that is concerned with government spending or taxation. The procedure
to pass a Money Bill is quite different from the Ordinary Bill. Its procedure is given in Article
198 of the Indian Constitution. According to this Article of the Constitution of India, the
Money Bill can only be introduced in the Lower House i.e. in Legislative Assembly. After
the Money Bill is passed by the Legislative Assembly and in that state, then this bill would be
forwarded to the Legislative Council for its recommendations. The same bill should be
returned to the assembly within fourteen days from the date of receiving the bills. The
assembly can either accept the recommendation or can deny any recommendations according
to the discretion of the assembly. The same bill is then again sent to the Council and the
Council has a time period of fourteen days to pass the bill. In case the Legislative Council
fails to do so, then it is deemed to be passed by both the Houses.

Union Judiciary- Supreme Court

In ancient times, when any wrong was done, it was on the king to ensure that the culprit was
punished so that the victim gets relief. After the constitution has been adopted This function
of the king has been replaced by the Judiciary whereas the other functions such as making the
law and executing them are done by the Legislature and the Executive.In order to ensure
transparency and fair work in the system, the constitution-makers kept these three organs
independent of each other. The Judiciary is the ultimate interpreter of the rights while it acts
as a guardian of the constitution. It can also conduct checks on the legislature and the
executive and ensure that no one goes beyond their ambit of power. The Constitution ensures
that the judiciary remains even-handed in all circumstances.We have different levels of
Judiciary which is present at the central level, the state level, and district level. In Part V of
the constitution, chapter IV concerns the Union Judiciary.

Supreme Court – The Guardian of the Constitution

There can be discords arising in between the different units of the federation, that is when the
Supreme Court comes into play. It’s the highest authority and the final interpreter of the law
which means that it has the power to give final decisions on all the matters of the law. Its
judgments are binding on all the lower courts. It has the power of judicial review through
which it can review the action of the executive and the legislature.

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Article 124 of the constitution,

The first part of this Article provides for the setting up of the Supreme Court which will be
composed of one Chief Justice of India and only seven judges until the Parliament by law
prescribes any more judges.
1. The second part of this Article states that the Chief Justice of India will be appointed by
the President after consulting other judges whom he thinks suitable and will hold the
office until he attains the age of 65 years. Whereas the president will have to take into
account the Chief Justice’s opinion when he appoints the other judges.
• This Article in its part 2(a) says that a judge can by writing to the President, resign
from his position, whereas,
• this Article in its part 2(b) says that the judge can be removed under the provision
contained in clause 4.

We will be dealing with this Article in detail, under the upcoming topics.

Appointment of the Chief Justice of India

According to Article 124(2), the Chief Justice of India will be appointed by the President and
in pursuance of that, the President has to consult the judges of the Supreme Court and the
High Courts which he thinks necessary. The president should also have a warrant regarding
it.
The provision for the appointment of Chief Justice experienced many changes during the
passage of time.

Composition of the Court

With respect to Article 124(2), the number of judges was only limited to seven but the
parliament by law prescribed & amended that the number of judges should be increased to
thirty-one, i.e thirty judges and the Chief Justice of India. This was done with a rationale that
seven-judges will not be able to suffice the work, the Judiciary undertakes. In order to work
efficiently, the number of judges should be increased otherwise the cases will keep on piling
up and there will be more scenes of injustice.

Qualification of Judges
Article 124 in its clause (4), provides a checklist for the qualification of the judges of
Supreme court which is as follows-

The person,
• Should be a citizen of India,
• Should have been a judge of the High Court or of at least two courts in succession, for a
span of five years,
• Should have been an advocate of the High Court or at least two courts in succession, for a
span of 10 years,
• And should be a distinguished jurist in the eyes of the President.

Tenure and Removal of Judges

According to Article 124(2), the judges of the Supreme court will hold their office until they
reach the age of 65 years. That is they will get retired at the age of 65 years.

As far as the removal is concerned, Article 124(4) mentions that the judge can be removed on
the ground of proved misdemeanor, the process for which is that the President will pass an
order which will then be presented before both of the houses and it should pass with two-third
majority of the members of the house present and voting.

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We must not forget that the President should be proved incapable or guilty of his act. It can
be proved through the procedure for the investigation regarding the same matter and the
following procedure has to be laid down by the law of the Parliament. This right is given to
the Parliament under Article 124(5).

Judges (Inquiry) Act, 1968

In this Act, the procedure for the investigation into the charges against the judges was laid
down.The Judge can only be removed after proven misbehavior or incapacity.

This Act further specified that it will consist of the following people-
• Any judge of the Supreme court, or the Chief justice of the Supreme court,
• Any Chief Justice of the High Court, and
• Any person who is a distinguished jurist in the opinion of the Speaker.

These members will unanimously frame charges against the judge and will investigate it.

Salaries and Allowances

Article 125 talks about the salaries and allowances to be given to the Judges of the Supreme
court.
• In clause (1), it was mentioned that the judges of the Supreme Court will be paid the
salaries determined by the Parliament by law. This is present in the second schedule until
any other law regarding the salaries is made.
• In clause (2), it was further mentioned that the judges will get privileges, allowances, and
rights regarding leave of absence and pension with respect to the law prescribed by the
Parliament.
Now, the Parliament by law can alter the rights that may hamper the judge’s position. But this
Article makes sure that it should not happen as it states further that, the Parliament should not
enact any law which will stand as a disadvantage to the position of the judge after he has been
appointed.

Acting Chief Justice: Article 126

Article 126 talks about acting Chief Justice, let’s have a look.
Anytime during the tenure of the Chief Justice of India, if he is absent and is not able to
dispose of his duties or his office is vacant for any reason, then the acting Chief justice will
discharge the duties of the Chief Justice of India.

The seat of the Supreme Court: Article 130

In Article 130 it is mentioned that the Supreme Court will be seated in Delhi. Well, it is not a
hard and fast rule but can be flexible as the Chief Justice of India may specify from time to
time, which should be approved by the President.

Jurisdiction of the Supreme Court

(1) A Court of Record

• The jurisdiction of the Supreme Court under Article 129 is independent of the
Courts Act
Contempt of court takes place when any person disobeys the orders of the court or through
his demeanor disrespects the court.Court of Record is that the proceedings of the court will be

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recorded so that they can act as a testimony in the future.Well, Article 129 makes the
Supreme Court the court of record and gives it the power to punish for its contempt.

Supreme Court’s power to punish for contempt of itself as well as subordinate courts
Article 215 of the Constitution does not empower the High Court to punish for contempt of
the Supreme Court but the Supreme Court has the power to punish for contempt of High
court and other subordinate courts.In case, the Supreme court does not punish for its own
contempt then the High Court has no say in it.

Contempt jurisdiction for protection of Registry

Supreme court has not only maintained the contempt of court in order to punish people to
harm the judge’s reputation but also to protect the name of the Judiciary.
To give you an illustration, an advocate was barred from practising law for one month
because he accused the registry of the court wherein he wrote the word ‘bench hunt’.
The Court ruled out that the bench is not constituted by the registry but by the Chief Justice
of India and the contempt of registry shall be punished.

A Minister or official may also be guilty of contempt when the Contempt of Court is
committed by the State
When there is an issue before the court which is between the states on both sides of the state
is one of the parties and the court give an order or decree which the state disobeys then the
Supreme Court can make the State guilty of contempt.The officials and ministers involved in
the case will be thereto made liable for the same.

The Court’s unlimited power to compel obedience and compliance of its orders
Under Article 142, the Supreme Court has been given the power to make an order in regard to
the contempt of Court. That is, the Supreme Court can compel any person under this Article
to obey the order which it has given.

(2) Original Jurisdiction-Article 131

The Supreme Court has original jurisdiction when it comes to matters related to the
following-
• Between the Government of India and one or more than one states; or
• Between government of India and one or more states at the different sides; or
• Between two or more than two states.

It is further provided that its jurisdiction shall not cover the matter arising out of any
agreement, engagement or any sort of treaty, which was present before the pre-constitutional
time and is still in force. It also extends to the matters which provide that this jurisdiction
shall not apply to the respected dispute.

Enforcement of Fundamental Rights

Article 32 of the Indian Constitution states that if any fundamental right is infringed, then the
person can approach the Supreme Court.This Article provides for the issue of writs which
include Habeas corpus, mandamus, Certiorari, Quo warranto, Prohibition.
After issuing these writs one can directly approach the Supreme Court for the enforcement of
the Fundamental Rights.

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(3) Appellate Jurisdiction–Article 132

Article 132 provides that the appeals for the High Court of any state can be brought up in the
Supreme Court for civil as well as criminal matters.It is provided that the case should involve
some substantial question of law under Article 134A.

When all of the parameters are met then the certificate is granted under which any person can
approach the SC on the basis that his or her case has been wrongly decided.

An appeal in Civil matters

Article 133 talks about the appeal in the case of constitutional matters.
Let’s have a look at it-
• It says that the appeal shall lie to the Supreme court only if the High Court certifies
that it fulfils the condition given in the Article 134A which says that the matter
should contain a substantial question of law and in the opinion of the High Court
the matter should be passed on to the Supreme Court.
• This Article again emphasizes in its clause (2) that a question of law should be
wrongly decided by the High court.
• In its clause (3), it states that notwithstanding anything stated in this Article, any
appeal will not lie before the Supreme Court until the Parliament specifies.

An appeal in Criminal Cases-Article 134

Article 134 says about the appeal to the Supreme Court when the matter is of criminal nature.
Let’s have a quick look at it-
The appeal would lie before the Supreme Court when the High Court-
• On appeal, has reversed the acquittal of the person and he has been sentenced to
death; or
• Withdraws any case from a subordinate court and has announced the conviction of
the person or death sentence; or
• Has considered the case to be fit to be presented before the Supreme Court on the
basis of Article 134A.

Certificate for appeal to the Supreme Court

As mentioned earlier in this article, Article 134A provides for a checklist to certify that the
case is fit to be presented before the Court. This article basically provides the certificate for
the appeal to the Supreme Court.

These checkpoints are as follows-

• If the High Court deems it fit to do so in the motion of its own.
• If the aggrieved party just after the judgment is passed makes an oral application.
• The decisions are to be made with respect to Articles 132(1), Article 133(1) and Article
134(1)

Power of the Supreme Court to withdraw and transfer cases Article 139-A
Article 139A gives power to the Supreme Court to withdraw the cases from the High Court if
they are pending and it is believed by the Supreme Court that it involves important question
on law.

Another instance in which the Supreme Court can do so is when the Attorney General of
India or the aggrieved party writes to the SC mentioning that the case carries a question of
law of general importance.

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Federal Court’s jurisdiction to be exercised by the Supreme Court- Article 135

The federal courts were established before the commencement of the constitution wherein
some laws were passed. Now if the provisions which are given under Article 133 and Article
134 do not apply to those laws, then the Supreme Court will have the jurisdiction over it
under Article 135.

Appeal by Special Leave- Article 136

Article 136 enables the Supreme Court to grant special leave of appeal for any order,
judgment or sentence which is passed by any court or tribunal in the country.
It is regardless of anything contained in the chapter concerning the Union Judiciary and do
not apply to any matter concerning Armed forces.

A private party can file an appeal under Art.136 challenging acquittal

Supreme court under Article 136 considers special leave to appeal. But the question of
whether the private party has a locus standi to file the appeal has to be understood.
Let’s have a look at the cases to know the answer.
A petition was filed by Prisoners Right Forum which was related to a death sentence of the
prisoner which was dismissed by N. AnandVenkatesh, who stated that any third person
cannot file an appeal regarding it.
And if it is allowed, any bystander will be able to file an appeal revoking the judgment of the
subordinate court.

When no challenge to the main judgment

No appeal can be filed against the judgment of the Court which is passed with the consent of
the parties. An appeal can only be placed regarding a question of law.

False and misleading statements – Justification to revoke the appeal

When any party presents before the court during the hearing of an appeal, any false
statements or the facts which are misleading, then the Supreme court can revoke the appeal.
In SN Aggarwal V. Union of India, false facts were presented which affected the decision
and discretion of the court. In this case, it was ruled out that the Supreme court has the power
to set aside the appeal and it will be justified.

Tribunals
As the tribunals were set up to reduce the workload on the Courts, any appeal from the
tribunals can be presented before the Supreme court until there is no provision of Appellate
tribunals. If there is then Appellate tribunals will hear the appeals for the Tribunals.

Power to review its judgments Art 137

Under Article 137, the Supreme Court has the power to review its judgment.It is subjected to
the provisions of law and provisions under Article 147.It is basically a mechanism provided
to the Supreme Court to amend its mistakes.

Curative Petition
A curative petition is the last remedy provided for any grievances. Its counterpart is the
mercy petition which is filed before the President.It was also filed in the famous Delhi rape
case.

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Ancillary Powers of Supreme Court.

Article 140 enables the president to make law regarding any supplementary right which can
be given to the Supreme Court. This right should not be against the provisions of the law.It
will enable the Supreme court to work more effectively towards the goal of bringing justice
to the people.

Advisory jurisdiction-Article 143

If at any point the President feels like a matter carries substantial question related to law and
is of public utility then he can approach the Supreme Court for Advisory
jurisdiction.Supreme Court after hearing it may give his opinion to the President.This is the
procedure of Advisory jurisdiction which is present in Article 143 of the Constitution.

Law declared by the Supreme Court to be binding on all Courts- Article 141
Supreme Court is the highest organ of law and the decision it takes is of utmost importance.
The rule to follow its decision will lay down a structure of procedures which will act as a
guideline for the lower courts to follow in cases where similar facts are contained.Article
141 states that the judgment of the Supreme Court is binding on all the lower or subordinate
courts.

Supreme Court not bound by its own decisions

Article 141 obligates other subordinate courts to follow the judgments of the Supreme Court
and stand by its decision which is the principle of Stare Decisis. But the Supreme Court is not
bound by its own judgment. It believes to follow its earlier judgments until there is a case of
diminishing circumstances.

Enforcement of Decree and Orders of Supreme Court: Article 142

Article 142 says-
• The Supreme Court in order to make sure that justice is done can pass any order or
decree.
• It was further stated in clause (1), that when such order or decree is passed then it will be
enforceable in the entire country under the provision made by the law of the Parliament
and if there is no provision regarding it then the provision made by the President will be
considered.
• The Supreme Court has the power to issue an order or decree in order to secure
the attendance of the concerned person, the discovery or production of any of the related
documents, or the investigation or punishment of any contempt of itself which will be
subjected to the provision laid down by the Parliament.

State Judiciary -High Court: Appointments, transfer, powers, functions and

jurisdiction

High Courts are the highest authority in terms of courts in a State. Article 214 to 237 deals
with the provisions of High Courts. Article 214 deals with the establishment of the High
Court in each state. A High Court consists of a Chief Justice and some other judges who are
appointed by the President. There is no fixed limit for the maximum number of judges in a
High Court, they are appointed as per the necessity. There will be a separate High Court for
each state but after the 7th Constitutional amendment, the same high court can be the court for
more than one state. Under Article 241, Parliament has the power to constitute a High Court

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for a Union Territory and can also declare any Court to be a High Court for the purpose of the
Constitution.

Appointment and transfer of High Court Judges

Prior to the 99th Amendment, every judge of the High Court must be appointed by the
President (Article 217). The Chief Justice of the High Court will be appointed by the
President, after consultation with the Governor of that state and the Chief Justice of Supreme
Court. For the appointment of Judges other than Chief Justice of the High Court President can
consult the Chief Justice of that High Court.

Qualifications for being a Judge of High Court

The qualification for appointing a Judge of a High Court is defined under Article 217 (2). The
qualifications are-
• Firstly, it must be a citizen of India;
• Secondly, it must have held a judicial office for not less than 10 years within the
territory of India;
• Thirdly, it must have been an advocate of High Court for not less than 10 years.

The 44th Amendment Act, 1978 has amended the Explanation to clause 2. Under the present
clause (a) of the Explanation- any period during which a person has, after becoming an
advocate has held the judicial office or the office as a member of a tribunal or any post under
the Union or a State requiring special knowledge of law will be included in computing the
period during which he has been an advocate for the purpose of determining his eligibility for
appointment as Judge of High Court.

Powers and functions of the High Court

The following are the powers and functions of the High Court:
• It has the power to control over all the courts and tribunals within its jurisdiction except in
the matters of Armed Forces under Article 227.
• It has the power to withdraw a case pending before any subordinate court it involves the
substantial question of law.
• It is a Court of Record as like the Supreme Court which involves recording of
judgements, proceedings etc (Article 215).
• Under the Article 13 & 226 High Court has the power of judicial review. They have the
authority to declare any law or ordinance as unconstitutional if it seems to be against the
Constitution of India.
• It can appoint the administration staff according to the need and can decide their salaries,
allowance etc.
• It issues the rules and regulations for the working of subordinate courts.
To get the information there is a Right to Information Act under this one can get the
information. But the judiciary does not fall under the ambit of this Act to maintain the
Independence of Judiciary. No court proceedings are questionable under the RTI. In the
landmark verdict on 2010, the Delhi High Court had held that the office of the Chief Justice
of the Supreme Court comes under the ambit of RTI law, by stating that the judicial
independence was not a judge’s privilege but a responsibility cast upon them.

Jurisdiction of the High Court

The jurisdiction of the High Court is divided into three parts:

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Original or general jurisdiction:

Under Article 215, High Courts have to power to deal with the revenue matters under this
jurisdiction. This power has been used in the following matters:
• Disputes relating to the Members of Parliament and the State Legislative Assembly.
• Disputes relating to marriage, law, contempt of court etc.
• Cases which are transferred from other courts to itself as it involves a substantial question
of law.

Writ Jurisdiction:
Under Article 226 of the Constitution of India High Courts has the power to issue the writs
for the enforcement of fundamental rights or for other purposes. The writs issued by the High
Courts are in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and quo
warranto. The jurisdiction of the High Court is not limited for not only the protection of
fundamental rights but also for other legal rights. The writ jurisdiction of the High Court is
wider than the Supreme Court because High can also issue the writs for the enforcement of
legal rights. A person can directly approach the High Court when there is a violation of
fundamental right.

Supervisory Jurisdiction:
Article 227 deals with the powers of the superintendence on High Court over all the
subordinate courts and tribunals except the matters which are related to Armed Forces. Under
this, the High Court issues the general rules and prescribes forms for the regulation of the
proceedings and practices of subordinate courts.
The power of the Superintendence is a judicial and administrative power vested in the High
Courts. The Supreme Court has no such power of superintendence in comparison with High
Courts.

Appellate Jurisdiction:
High Court is the primary court of appeal it means that it has the power to hear the appeals
against the judgement of the subordinate courts within their territories.
1. In Civil Cases: An appeal can be made in the High Court only against the district court’s
decisions. An appeal can also be made directly from the subordinate court if there is a
question of fact or law involve in it or the dispute involving the value higher than Rs.
5000/-.
2. In Criminal Cases: It extends to the cases which are decided by the Sessions and
Additional Session Judges. The jurisdiction of the High Court extends to all matters
related to State and federal laws. It the session judge has awarded capital punishment or
imprisonment for 7 or more than 7 years.
3. In Constitutional Cases: If it is certified that the case or the matter involves a question
of fact or law.
Anti Defection Law
Emergency Provision
Indian Constitution through Art.352to360 deals about the emergency provisions .Thereare
three types of emergency -

1) National Emergencythe provisions for national emergency are given under article 352 of
Indian Constitution. The ground for national emergency can be war , external aggression
and armed rebellion.

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Proceedure.
1. The President of India can proclaim national emergency on the written advice of cabinet.
2. The proclamation of the president has to be approved within one month by a majority of
not less than two third of the members present and voting and the absolute majority of
both the house of parliament.
3. The approval of the parliament is valid only for 6 month at the time and Eid every after 6
month national emergency extended.

THE 44thCONSTITUTION AMEND.AND ART.352

1. The expression internal disturbance was replaced by a more country expression that is
armed rebellion.
2. The national emergency to be proclaimed by the President of India on the written advice
of the cabinet.
3. Approval of the parliament has to be within one month by a special majority. Earlier the
amendment it was to be within two month at by the simple majority.
4. After the 44th amendment the approval of the parliament to be believed only for 6 month
at a time. Earlier no such provision..was there.
5. The fundamental right under article 19 is to be automatically suspended only when the
national emergency was proclaimed on the grounds of war or external aggression.
6. under article 359 of the Indian Constitution, article 20 and 21 cannot be suspended during
national emergency.
7. LokSabha in special session can pass a resolution to discontinue ongoing national
emergency. Earlier no such class was there.

Effects. Following are the effects of national emergency under article 352 of the Indian
Constitution1-The distribution of power between the centre and state is suspended and the
parliament can make any and the subject of state list. 2-The term of the LokSabha and the
legislative assembly can be extended for not more than one year at a time.

2) State Emergency
Article 356 of the Indian Constitution provides that the president other on the district of the
report from the governor or otherwise is satisfied that situation has arisen in which the
administration of the state cannot be run on the basis of the Constitution then the president
can make a proclamation to that effect. MEANING OF BREAKDOWN OF
CONSTITUTIONAL MACHINERIES. Following are the meaning of the term breakdown of
the constitutional machinery-
a. if the formation of government is not possible in the state.
b. if a state government face to avoid the administrative direction given by the
central government according to the article 365 of the Indian Constitution.
c. in the case of Mumbai in 1994 the supreme court held that the secularism is one of
the basic structure of the constitution and if a state government fails to abide by it
are it unable to protect it or sab varsh it then it has to be considered that break
down of the constitutional machinery in the state.

Procedure
The president's proclamation under the article 356 of the Indian Constitution has to be
approved by the parliament within two month by a simple majority. The approval of the
parliament cell will valid only for 6 month at a time. It can be extended for another 6 month
not beyond 1 years. But if the state emergency is to be continue beyond 1 years then it has to
be on two conditions
a- if the national emergency is going on in the country or in army part.

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b- the election commission has shown its in ability to to conduct election under the
prevailing conditions. These conditions the state emergency cannot be continue
beyond 2 years but it can be extended only for six month at a time. also to be noted
that if the state emergency is to be continued beyond 3 years the constitution has to
be amended for that purpose. In the case of essar Mumbai in 1994 held thatpresident's
proclamation under article 356 of the Indian Constitution is subject to the judicial
review and the responsibility to provide the relevant document lie with the centre.

Effects
Following are the effects of the state emergency-- the council of minister of the state
government is dismissed and the legislative assembly can be either dissolved are can be kept
under suspended animationand the President of India can take over the legislative and
executive powers vested in all organs of the state government except that of the high court.

3) Financial Emergency

Financial emergency is to be proclaimed under article 368 of the Indian Constitution. If the
financial stability are credibility of India are of any part there of 3 is the ground for financial
emergency .

Procedure
gattu the proclamation of the financial emergency is to be made by the President of India
under article 360 e and elimination has to be approved by the parliament within 2 month by
simple majority.The financial emergency automatically comes to an end on the date of the
end of the financial year means on 31st march. .

Effect
The financial emergency has to be proclaimed the parliament has power to make such
provisions that all the money bills and financial Bill passed by the state legislature must be
reserved by the governor for the reconsideration of the president of India also parliament has
power to make such provisions regarding the bottle of salaries and allowances of all are some
section of officials including the judges of the supreme court and high court. it is to be noted
that there is no financial emergency has to be proclaimed in India till the date .

Election Commission of India (Articles 324 to 329)

The Election Commission of India is an autonomous constitutional authority responsible for

administering election processes in India at national, state and district level. The body
administers elections to the LokSabha, RajyaSabha, state Legislative Assemblies, state
legislative Councils, and the offices of the President and Vice President of the country. The
Election Commission operates under the authority of Constitution per Article 324, and
subsequently enacted Representation of the People Act.

The commission has the powers under the Constitution, to act in an appropriate manner when
the enacted laws make insufficient provisions to deal with a given situation in the conduct of
an election. Being a constitutional authority, Election Commission is amongst the few
institutions which function with both autonomy and freedom, along with the country’s higher
judiciary, the Union Public Service Commission and the Comptroller and Auditor General of
India.

The commission was established in 1950 and originally only had a Chief Election

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Commissioner. Two additional Commissioners were appointed to the commission for the first
time on 16 October 1989 (on the eve of the 1989 General Election), but they had a very short
tenure, ending on 1 January 1990.

The Election Commissioner Amendment Act, 1989 was adopted on 1 January 1990 which
turned the commission into a multi-member body: a 3-member Commission has been in
operation since then and the decisions by the commission are made by a majority vote. The
Chief Election Commissioner and the two Election Commissioners who are usually retired
IAS officers draw salaries and allowances at par with those of the Judges of the Supreme
Court of India as per the Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Rules, 1992.

The commission is served by its secretariat located in New Delhi. The Election
Commissioners are assisted by Deputy Election Commissioners, who are generally IAS
officers. They are further assisted by Directors General, Principal Secretaries, and Secretaries
and Under Secretaries.

At the state level, Election Commission is assisted by the Chief Electoral Officer of the State,
who is an IAS officer of Principal Secretary rank. At the district and constituency levels, the
District Magistrates (in their capacity as District Election Officers), Electoral Registration
Officers and Returning Officers perform election work.

Part XV of the Constitution entitled as Elections constitutes a code in itself, providing the
groundwork for the enactment of appropriate laws and the setting up of suitable machinery
for the conduct of elections.

a) Election Commission (Article 324)

Article 324 provided for the appointment of an Election Commission to superintend, direct
and control the elections. The Commission is an all-India body having jurisdiction over
elections to Parliament, State Legislatures, offices of the President and Vice-President.

The constitution of one central body, the Election Commission, having control over the entire
election process in the country, is done to prevent injustice, which could be done by regional,
State Governments, discriminating against any section of the people in the matters relating to
elections. The Commission is constituted as an autonomous and independent body, with a
view, to ensure the conduct of free and fair elections, which feature is held to be a basic
structure of the Constitution. It has been said to be the most important arbitrator on holding
of the elections.

Constitution of the Election Commission

Clause (2) of Article 324 provides that the Election Commission shall consist of the Chief
Election Commissioner and such number of other Election Commissioners, if any, as the
President may from time to time fix. Until Parliament makes any law in that behalf, the Chief
Election Commissioner and other Election Commissioners are appointed by the President.
When any other Election Commissioner is so appointed, the Chief Election Commissioner;
shall act as the Chairman of the Election Commission

The President may also appoint, after consultation with the Election Commission, such
Regional Commissioners as he may consider necessary to assist the Election Commission in
the performance of its functions.{6} The conditions of service and tenure of office of the
Election Commissioners and the Regional Commissioners shall be such as the President may

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by rule determine. These rules, however, are subject to any law made by Parliament in this
respect.

Chief Election Commissioner vis-a-vis other Election Commissioners

Proviso to Clause (5) of Article 324 says that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like grounds as a Judge of the
Supreme Court and the conditions of service of the Chief Election Commissioner shall not be
varied to his disadvantage after his appointment. It is thus clear that the Election
Commissioners do not hold the same position as does the Chief Election Commissioner.
While the CEO is the creation of the Constitution, the number of other Election
Commissioners is determined by the President. While the CEC can be removed from his
office in the manner provided in the Proviso to Clause (5) of Article 324, the other
Commissioners hold their office during the pleasure of the President, subject to any law made
by Parliament in this regard. Again, while the conditions of service of the CEC cannot be
varied to his disadvantage, the conditions of service of other Commissioners are determined
by President by rule, subject to any law made by Parliament in this regard.

Multi-member Election Commission

Prompted by the Supreme Court’s observation in S. S. Dhanoa’s case {9} and also in the
wake of certain controversial decisions taken by the CEC resulting in serious confrontation
between the Commission and the Government of India, the latter decided to provide for a
Multi-member Election Commission.

Independence of Election Commission

The Constitution envisages the setting up of an independent, autonomous Election
Commission. To secure independence of action, Article 324 contains the following
provisions:
a. That the CEC shall not be removed from his office except in the like manner and on
the like grounds as a Judge of the Supreme Court.
b. That the conditions of service of the CEC shall not be varied to his disadvantage after
his appointment.
The CEO is, therefore, protected against political and executive influence and for that reason,
he can discharge his functions without fear, favour or pressure from the executive or the party
in power. Even the tenure of office of other Election Commissioners and the Regional
Commissioners is also free of the executive control in so far, none of them can be removed
from office except on the recommendation of the CEC. This check on the executive’s power
is to safeguard the independence of not only these functionaries but the Election Commission
as a body.

Functions of the Election Commission

The Election Commission performs the following functions:
a. The superintendence, direction and control of the preparation of electoral rolls for all
elections to Parliament and to the Legislature of every State and of elections to the
offices of President and Vice-President.
b. The conduct of all the elections mentioned.
c. To advise the President or the Governor of a State, as the case may be, on the question
of disqualification of any Member of Parliament or a member of a State Legislature,
respectively. {
Article 324 has been held to be plenary in character, vesting the whole responsibility
in the Election Commission for national and State elections. The power conferred on
the Commission under Article 324 (1) is subjected to two limitations, namely:

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i. When Parliament or any State Legislature has made a valid law relating to or in
connection with elections, the Commission shall act in conformity with such law.
ii. The Commission while exercising power shall conform to the rule of law, act bone
fide and be amenable to the norms of natural justice.

Superintendence, Direction and Control of Elections

The expression superintendence, direction and control and the conduct of all elections in
Article 324 (1) has been held to include such powers which though not specifically provided
but are necessary to be exercised for effectively accomplishing the task of holding the
elections to their completion. It would, therefore be legitimate, on the part of the
Commission, to make general provisions even in anticipation or in the light of experience, in
respect of matters relating to symbols.

In the interest of free and fair elections, for the safety and security of electors and with a view
to prevent intimidation and victimisation of electors, the Commission has full power to direct
the manner of counting of votes.

Directives issued by the Election Commission for transfer of those officers from one district
to another, who had completed more than four years of stay in one district, have been held
not ultra vires Article 324(1).

Fixing Schedule for Elections-Exclusive Domain of Election Commission

The Apex Court in Special Reference No. 1 of 2002, {was referred to, questions relating to
power of the Election Commission under Article 324, fixing the schedule for holding
elections to the Legislative Assembly of a State, in the light of the mandate of Article 174(1).

The question cropped up out of the situation then existing in the State of Gujarat. The
Legislative Assembly of the State, which was to complete its term on 18-3-2003, was
dissolved on 19-7-2002 by the Governor on being advised by the Chief Minister. Since the
last sitting of the Assembly was held on 3-4-2002, the Election Commission was required to
complete the elections to the Assembly by the date, so as to comply with the Article 174(1)
mandate.

The Election Commission, on its part, recommended the invocation of Article 356 in the
State, as the situation in the State, in their opinion was not suitable to hold, early, free and fair
elections, so as to comply with the requirement of Article 174(1)

A Constitution Bench of five Judges of the Supreme Court, answering the questions set
out in the Reference, reported as follows:
i. Article 174(1), which is a complete code in itself deals only with a live Legislature.
ii. Article 174(1) does not provide for any period of limitation for holding elections
within six months from the date of last sitting of the Session of the dissolved
Assembly.
iii. There is no provision, expressly providing for any period of limitation for constituting
a fresh Legislative Assembly on the premature dissolution of the previous Legislative
Assembly.
iv. The entire matter relating the elections is entrusted to the Election Commission.
v. The general power of superintendence, direction, control and conduct of election,
although vested in the Election Commission under Article 324(1), yet is subjected to
any law either made by the Parliament or State Legislature, as the case may be, which
is also subject to the provisions of the Constitution

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vi. The Election Commission is required to take steps for holding elections immediately
on expiration of the term of the Assembly or its dissolution, although no period has
been provided for.
vii. In view of the provisions of Articles 109, 110 and 111 and analogous Articles for
State Assembly, on the premature dissolution of the Legislative Assembly, the
Election Commission is required to initiate immediate steps for holding election for
constituting Legislative Assembly on the first occasion and in any case within six
months from the date of premature dissolution of the Assembly.

b) One General Electoral Roll for every Constituency (Article 325)

Article 325 provides:

There shall be one general electoral roll for every territorial constituency for election to either
House of Parliament or to the House or either House of the Legislature of a State and no
person shall be ineligible for inclusion in any such roll or claim to be included in any special
electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of
them.

Section 22 of the Representation of the People Act, 1950 empowers the Electoral Registration
Officer of a constituency to delete the name of a person from the Electoral Roll on certain
grounds. It has been held that such deletion must be done only after giving to the person
concerned meaningful opportunity of hearing and after following requisite procedure.

System of Adult Suffrage (Article 326)

Article 326 incorporates the system of adult suffrage for elections to the LokSabha and the
Legislative Assembly of every State. According to this system, a person to be registered as a
voter for these elections must comply with the following requirements:

i. He must be a citizen of India.

ii. He must not be less than 18 years of age on the appointed day. {He must not be
otherwise disqualified under the Constitution or any law made by the appropriate
Legislature on the ground of non-residence, unsoundness of mind, crime, corrupt or
illegal practice.

Parliament has enacted the Representation of People Act, 1950 which requires a person,
to be registered as a voter, to fulfill the following conditions:
i. He must be a citizen of India.
ii. He must not be declared to be of unsound mind by competent court.
iii. He must not be disqualified from voting under a law relating to corrupt and illegal
practices or other offences in connection with elections.

No person is entitled to be registered in the electoral roll for more than one constituency or of
any constituency more than once. A person shall be disqualified from voting at any election
for 6 years if he is convicted of any of the specified offences punishable with imprisonment
or who, upon the trial of an election petition is found guilty of any corrupt practice. This
disqualification may, however, be removed by the Election Commission, for reasons recorded
by it in writing.

Every person enrolled in the electoral roll by an authority empowered by law to prepare the

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electoral roll or to include a name therein, is entitled to cast a vote unless disqualified under
law

Right to Vote Not a Fundamental Right

The right to vote or stand as a candidate for election is a creature of statute or a special law
and must be subject to the limitations imposed by it. These rights are not absolute rights, nor
are held to be constitutional rights. Though fundamental to democracy, the right to elect is
neither a fundamental right nor a common law right. So, is the right to be elected and the
right to dispute an election.

c) Enactment of laws with respect to Elections (Articles 327 and 328)

Article 327 provides that Parliament may, from time to time, by law, make provisions with
respect to all matters relating to, or in connection with, elections to either House of
Parliament or the Legislature of a State. The law may include provisions for the preparation
of electoral rolls, the delimitation of constituencies and all other matters necessary for
securing the due constitution of such House or Houses. The law so made shall be subject to
the provisions of the Constitution. Similar power is conferred by Article 328 on the
Legislature of a State with respect to the elections to the Houses of the State Legislature. The
power of the State Legislature is subjected to the provisions of the Constitution and any law
made by Parliament.

In the exercise of the power conferred by Article 327, Parliament has enacted the
Representation of the People Acts, 1950 and 1951 and the Delimitation Commission Act,
1952. The Election Commission is to act not inconsistent with these Acts.

d) Settlement of Election Disputes (Article 329)

Clause (a) of Article 329 provides that the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies made or purported to be made
under Article 327 or Article 328 shall not be called in question in any Court.

Clause (b) of Article 329 as amended by the Constitution (19th Amendment) Act, 1966,
provides that notwithstanding anything in the Constitution, no election to either House of
Parliament or the Legislature of a State shall be called in question except by an election
petition presented to such authority and in such manner as may be provided for by or under
any law made by the appropriate Legislature. In pursuance of this Clause, Parliament enacted
the Representation of the People Act, 1951. The Act has vested the power to decide any
election petition, in the High Courts.
Court hearing an election petition.

Delimitation Commission
The delimitation of constituencies as enshrined in Articles 82 and 170 is a necessary process,
as important as the elections themselves. It is to take place after every census so that all
Parliamentary and State Assembly constituencies are re-drawn on the basis of population.
Since the population keeps on shifting, it becomes necessary to readjust the boundaries of
constituencies, so that there should be true representation of the people in the elections held
to serve the purpose in a democracy.The delimitation is supposed to take place every 10
years. It is done by Delimitation Commission.

The Notification issued based on the report of the Delimitation Commission is held to be
final and binding. It would have the effect of law. } No government can make any changes or
choose to alter it. It cannot be challenged before any Court either. {66} If a person felt that he

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was not given due opportunity of being heard or felt that the Commission was not following
the procedure prescribed, he could have approached the High Court, prior to issuance of the
final Notification and sought appropriate directions

Any objection to delimitation of constituencies can only be entertained by the Commission

before the date specified and not after its publication in the Official Gazette. The object is
that no voter should be allowed to hold up an election indefinitely, by questioning the
delimitation of the constituencies, from Court to Court.

Though the delimitation for the purpose of dividing the State into territorial constituencies is
a mandate of the Constitution and is basic feature of democracy contemplated in the
Constitution, but re-adjustment of the extent and boundaries of such territorial constituencies
upon completion of each census is not such a mandate, nor it is contemplated to be the basic
feature of democracy. In the event, no census takes place, there would be no re-adjustment
and there being no mandate in the Constitution to take census, readjustment of the extent and
boundaries of territorial constituencies is an uncertainty and accordingly, it is said, cannot be
said to be the basic feature of democracy contemplated in the Constitution.

Human Rights & Its Commission

Meaning of Human Rights

Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of
caste, colour, creed, and place of birth, sex, cultural difference or any other consideration.
These claims are articulated and formulated in what is today known as human rights. Human
rights are sometimes referred to as fundamental rights, basic rights, inherent rights, natural
rights and birth rights.

Definition of Human Rights

Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which every
individual must have against the State, or other public authority, by virtue of his being a
‘member of human family’ irrespective of any consideration. Durga Das Basu’s definition
brings out the essence of human rights.

The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as “rights
derived from the inherent dignity of the human person.” Human rights when they are
guaranteed by a written constitution are known as “Fundamental Rights” because a written
constitution is the fundamental law of the state.

Characteristics and Nature of Human Rights

Following are the characteristics of human rights:

1. Human Rights are Inalienable - Human rights are conferred on an individual due to the
very nature of his existence. They are inherent in all individuals irrespective of their caste,
creed, religion, sex and nationality. Human rights are conferred to an individual even after
his death. The different rituals in different religions bear testimony to this fact.
2. Human Rights are Essential and Necessary - In the absence of human rights, the moral,
physical, social and spiritual welfare of an individual is impossible. Human rights are also
essential as they provide suitable conditions for material and moral upliftment of the
people.

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3. Human Rights are in connection with human dignity - To treat another individual with
dignity irrespective of the fact that the person is a male or female, rich or poor etc. is
concerned with human dignity. For eg. In 1993, India has enacted a law that forbids the
practice of carrying human excreta. This law is called Employment of Manual Scavengers
and Dry Latrines (Prohibition) Act.
4. Human Rights are Irrevocable: Human rights are irrevocable. They cannot be taken
away by any power or authority because these rights originate with the social nature of
man in the society of human beings and they belong to a person simply because he is a
human being. As such human rights have similarities to moral rights.
5. Human Rights are Necessary for the fulfillment of purpose of life: Human life has a
purpose. The term “human right” is applied to those conditions which are essential for the
fulfillment of this purpose. No government has the power to curtail or take away the
rights which are sacrosanct, inviolable and immutable.
6. Human Rights are Universal – Human rights are not a monopoly of any privileged class
of people. Human rights are universal in nature, without consideration and without
exception. The values such as divinity, dignity and equality which form the basis of these
rights are inherent in human nature.
7. Human Rights are never absolute – Man is a social animal and he lives in a civic
society, which always put certain restrictions on the enjoyment of his rights and
freedoms. Human rights as such are those limited powers or claims, which are
contributory to the common good and which are recognized and guaranteed by the State,
through its laws to the individuals. As such each right has certain limitations.
8. Human Rights are Dynamic - Human rights are not static, they are dynamic. Human
rights go on expanding with socio-eco-cultural and political developments within the
State. Judges have to interpret laws in such ways as are in tune with the changed social
values. For eg. The right to be cared for in sickness has now been extended to include free
medical treatment in public hospitals under the Public Health Scheme, free medical
examinations in schools, and the provisions for especially equipped schools for the
physically handicapped.
9. Rights as limits to state power - Human rights imply that every individual has legitimate
claims upon his or her society for certain freedom and benefits. So human rights limit the
state’s power. These may be in the form of negative restrictions, on the powers of the
State, from violating the inalienable freedoms of the individuals, or in the nature of
demands on the State, i.e. positive obligations of the State. For eg. Six freedoms that are
enumerated under the right to liberty forbid the State from interfering with the individual.

National Human Rights Commission (NHRC)

• NHRC of India is an independent statutory body established on 12 October, 1993 as per
provisions of Protection of Human Rights Act, 1993, later amended in 2006.NHRC has
celebrated its Silver Jubilee (25 years) on October 12, 2018. Its headquarter is located in
New Delhi.It is the watchdog of human rights in the country, i.e. the rights related to
life, liberty, equality and dignity of the individual guaranteed by Indian Constitution or
embodied in the international covenants and enforceable by courts in India.It was
established in conformity with the Paris Principles, adopted for the promotion and
protection of human rights in Paris (October, 1991) and endorsed by the General
Assembly of the United Nations on 20 December, 1993.

What are Human Rights?

▪ As per UN definition these rights are inherent to all human beings, regardless of race,
sex, nationality, ethnicity, language, religion, or any other status.

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▪ Human rights include the right to life and liberty, freedom from slavery and torture,
freedom of opinion and expression, the right to work and education, and many more.
▪ These are entitled to everyone, without any discrimination.
Background
▪ Universal Declaration of Human Rights (UDHR) was adopted by the United Nations
General Assembly in Paris on 10 December 1948.It is a milestone declaration in the
history of human rights which sets out, for the first time, fundamental human rights to
be universally protected.Human Rights Day is observed every year on 10
December, which is the anniversary of the UDHR. In 2018, Human Rights Day marked
the 70th anniversary the declaration.In due time the growing importance of
strengthening national human rights institutions has been recognized and in 1991, a UN
meeting in Paris has developed a detailed set of principles i.e. Paris Principles. These
principles became the foundation for the establishment and operation of national human
rights institutions.
▪ In pursuant to these principles, India has enacted the Protection of Human Rights Act,
1993, with a view to bring about greater accountability and strengthening of the human
rights in the country.This act also authorized State Governments to establish State
Human Right Commission.

The Human Rights Council

▪ The Human Rights Council is an inter-governmental body created by the United
Nations General Assembly resolution on 15 March 2006.
▪ It has replaced the former United Nations Commission on Human Rights.
▪ It is responsible for strengthening the promotion and protection of human rights around
the globe and for addressing situations of human rights violations and make
recommendations on them.
▪ It has the ability to discuss all thematic human rights issues and situations that require
its attention throughout the year. It meets at the UN Office at Geneva.
▪ The Council is made up of 47 United Nations Member States which are elected by the
UN General Assembly.

Structure of the Commission

▪ NHRC is a multi-member body which consists of a Chairman and seven other members.
Out of the seven members, three are ex-officio member.
▪ President appoints the Chairman and members of NHRC on recommendation of
high-powered committee headed by Prime Minister.
▪ The Chairperson and the members of the NHRC are appointed for 5 years or till the age
of 70 years, whichever is earlier.
▪ They can be removed only on the charges of proved misbehavior or incapacity, if
proved by an inquiry conducted by a Supreme Court Judge.
▪ Commission also has five Specialized Divisions i.e. Law Division, Investigation
Division, Policy Research &Programmes Division, Training Division and
Administration Division.
▪ The chairman and the members of State Commission are appointed by the
Governor in consultation with the Chief Minister, Home Minister, Speaker of
Legislative Assembly and Leader of the Opposition in the State Legislative Assembly.

Functions and Powers of NHRC

▪ NHRC investigates grievances regarding the violation of human rights either suomoto
or after receiving a petition.

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▪ It has the power to interfere in any judicial proceedings involving any allegation of
violation of human rights.
▪ It can visit any jail or any other institution under the control of the State Government to
see the living conditions of the inmates and to make recommendations thereon.
▪ It can review the safeguards provided under the constitution or any law for the
protection of the human rights and can recommend appropriate remedial measures.
▪ NHRC undertakes and promotes research in the field of human rights.
▪ NHRC works to spread human rights literacy among various sections of society and
promotes awareness of the safeguards available for the protection of these rights
through publications, media, seminars and other means.
▪ The Commission takes an independent stand while providing opinions for the protection
of human rights within the parlance of the Constitution or in law for the time being
enforced.
▪ It has the powers of a civil court and can grant interim relief.
▪ It also has the authority to recommend payment of compensation or damages.
▪ NHRC credibility is duly reflected in large number of complaints received every year
and the trust reposed in it by the citizens.
▪ It can recommend to both the central and state governments to take suitable steps to
prevent the violation of Human Rights. It submits its annual report to the President of
India who causes it to be laid before each House of Parliament.

Limitations of NHRC
▪ NHRC does not have any mechanism of investigation. In majority cases, it asks the
concerned Central and State Governments to investigate the cases of the violation of
Human Rights
▪ It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-
General of India) due to its incapacity to render any practical relief to the aggrieved
party.
▪ NHRC can only make recommendations, without the power to enforce decisions.
▪ Many times NHRC is viewed as post-retirement destinations for judges and bureaucrats
with political affiliation moreover, inadequacy of funds also hamper its working.
▪ A large number of grievances go unaddressed because NHRC cannot investigate the
complaint registered after one year of incident.
▪ Government often out rightly rejects recommendation of NHRC or there is partial
compliance to these recommendations.
▪ State human rights commissions cannot call for information from the national
government, which means that they are implicitly denied the power to investigate armed
forces under national control.
▪ National Human Rights Commission powers related to violations of human rights by
the armed forces have been largely restricted.

Suggestions
▪ There is need for complete revamping of NHRC to make it more effective and truly a
watchdog of human right violations in the country.
▪ NHRC efficacy can be enhanced by government if commission decisions are made
enforceable.
▪ There is need to change in composition of commission by including members from civil
society and activists.
▪ NHRC needs to develop an independent cadre of staff with appropriate experience.
▪ Many laws in India are very old and archaic in nature by amending which government
can bring more transparency in regulations.

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▪ To improve and strengthen the human rights situation in India, state and non state actors
need to work in tandem.

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