Constitutional Law of India

Q.1. Write an essay on the Nature and salient features of Indian Constitution of
India.
Ans: The Constitution of India is a unique constitution. It is the largest written democratic
constitution of the world. It provides for a mixture of federalism and Unitarianism and
flexibility and with rigidity. Since its inauguration on 26th January 1950, the Constitution India
has been successfully guiding the path and progress of India.
Generally, all Constitutions are divided into two categories viz., federal and unitary.
Under the unitary Constitution the powers of the Government are centralized in one
Government and that is generally the central Government and the States are subordinate to
it.
While in a federal Constitution there is division of powers between the Centre and
the States and both are independent as well as co-ordinate to each other. A federal
Constitution has following essential characteristics:
1) Distribution of Powers:
A federal Constitution defines and demarcates the sphere of the Central and State
Governments. Each Government has to act within its own sphere and cannot
encroach upon the field of others.
The basis of such distribution of powers between Centre and State is that the matters
which are of national importance said in which uniform policy is desirable are given to
the Centre and the matters which are of local importance are given to the States for
legislation and control.
2) Supremacy of the Constitution:
Under a federal system, Constitution is supreme. All organs of the Government have
to work within the spheres assigned to them by the Constitution and they cannot
encroach upon the jurisdiction of other organs.
The judiciary has to interpret the Constitution and has to see that there is no
transgression of jurisdiction by different organs of the government in the spheres
assigned to others. The disputes between different organs of the Government are
settled according to the provisions of the Constitution.
3) Effective Role of the Courts: The courts under a federal Constitution have the final
authority to interpret the Constitution and maintain the supremacy of the Constitution.
They decide the disputes between the Central and State Governments. Their
decisions on inter-governmental disputes are final. Besides, the courts are the savior
of fundamental rights of the citizens of the country.
4) Rigid Constitution: The procedure for amendment of the constitution is generally
rigid. It can be amended according to the procedure laid down by the Constitution
5) Democratic State: The Constitution of India provides for a democratic system. The
authority of the government rests upon the sovereignty of the people. The people
enjoy equal political rights. On the basis of these rights, the people freely participate
in the process of politics. They elect their Government.
6) India is a Republic: The preamble declares India to be a Republic. India is not ruled
by a monarch or a nominated head of state. India has an elected head of state
(President of India) who wields power for a fixed term of 5 years. After every 5 years,
the people of India indirectly elect their President.
The salient features of the Constitution of India can be discussed as follows:
1. Written and Detailed Constitution: The Constitution is a wholly written document
which incorporates the constitutional law of India. It was fully debated and duly
 enacted by the Constituent Assembly of India. It took the Assembly 2 years, 11
months and 18 days to write and enact the Constitution. Indian Constitution is a very
detailed constitution. It consists of 395 Articles divided into 22 parts with 12
schedules.
2. Federalism and Unitarianism:
While describing India as a Union of states, the Constitution of India has federal
structure with a unitary spirit. Scholars described it quasi federal, where or as ‘a
federation with a unitary bias.
Like a federation, the Constitution of India provides for:
(i) A division of powers between the centre and states,
(ii) A written, rigid and supreme constitution,
(iii) Independent judiciary with the power to decide centre-state disputes and
(iv) Dual administration i.e. central and state administrations. However, by
providing a very strong centre, a common constitution, single citizenship,
emergency provisions, common election commission, common all India
services etc. The Constitution clearly reflects its unitary spirit.
India is a federation with some Unitarian features. This mixture of federalism
Unitarianism has been done keeping in view both the pluralistic nature of society and the
presence of regional diversities, as well as due to the need for securing unity and integrity of
the nation.
3. Rigidity and Flexibility: The Constitution of India is rigid in parts. Some of its
provisions can be amended in a difficult way while others can be amended very
easily. In some cases, the Union parliament can amend some parts of the
Constitution by passing a simple law.
4. Fundamental Rights: Under its Part IIIC (Article 12-35), the Constitution of India
grants and guarantees Fundamental Rights to its citizens. It is called the Indian Bill of
Rights. Initially, 7 Fundamental Rights were granted but after the deletion of the Right
to Property from the list of Fundamental Rights (44th Amendment Act 1979) their
number came down to six.
5. Directive Principles of State Policy: Part IV of the Constitution dealing with the
‘Directive Principles of State Policy’ provides one of the most striking features of the
Indian Constitution. The Directive Principles are instructions to the state for securing
socio-economic developmental objectives through its policies. These are to be
implemented by both the Union for the states.
6. Bi- cameral Union Parliament: The Constitution provides for a Bicameral
Legislature at the Union level and names it as the Union parliament. Its two Houses
are: The Lok Sabha and the Rajya Sabha. The Lok Sabha is the lower, popular,
directly elected house of the Parliament. It represents the people of India.
7. Parliamentary System: The Constitution of India provides for a parliamentary
system of Government at the Centre as well as in every State of the Union. The
President of India is the Constitutional head of state with nominal powers. The Union
Council of Ministers headed by the Prime Minister is the real executive. Ministers are
essentially the members of the Union parliament.
8. Adult- Suffrage: Another feature of the Constitution is that it provides for universal
adult suffrage. All men and women enjoy an equal right to vote. Each adult man and
woman above the age of 18 years has the right to vote. All registered voters get the
opportunity to vote in elections.
 9. Emergency Provisions: The Constitution of India contains special provisions for
dealing with emergencies.
It recognises three types of possible emergencies:
(i) National Emergency (Article 352) an emergency resulting from war or
external aggression or threat of external aggressions against India or from
armed rebellion within India or in any of its part;
(ii) Constitutional Emergency in a state (Article 356) an emergency resulting from
the failure of constitutional machinery in any state; or some states and
(iii) Financial Emergency (Article 360) an emergency resulting from a threat to
financial stability of India.
The President of India has been empowered to take appropriate steps for dealing
with these emergencies. During the period of an emergency, the powers of the President,
actually of the PM and the Union Council of Ministers Cabinet increases tremendously.
President can take all steps deemed essential for meeting an emergency. These are called
emergency powers of the President.

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Q.2. Discuss Preamble of Constitution of India point’s outs its importance. Is
preamble of India embeddable?
Ans.: The preamble to the Constitution of India is a brief introductory statement that sets
out the guiding purpose, principles and philosophy of the constitution. Preamble gives an
idea about the following:
1) The source of the constitution
2) Nature of Indian state
3) A statement of its objectives and
4) The date of its adoption
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
(1) Source of the Constitution
We, the people of India.
The phrase “We the people of India’ emphasises that the constitution is made by and
for the Indian people and not given to them by any outside power.
It also emphasizes the concept of popular sovereignty as laid down by Rousseau: All
the power emanates from the people and the political system will be accountable and
responsible to the people.
(2) Nature of Indian state
 (i) Sovereign: India is internally and externally sovereign externally free from the
control of any foreign power and internally, it has a free government which is
directly elected by the people and makes laws that govern the people. No
external power can dictate the government of India.
(ii) Socialist: “Socialism” as an economic philosophy where means of production
and distribution are owned by the State. India adopt Mixed Economy, where
apart from the state, there will be private production too. Socialism as a social
philosophy stresses more on societal equality.
(iii) Secular: Features of secularism as envisaged in the Preamble is to mean that
the state will have no religion of its own and all persons will be equally entitled
to the freedom of conscience and the right freely to profess, practice and
propagate the religion of their choice. (SR Bommai and Others v Union of
India, AIR 1994 SC 1918)
(iv) Democratic: Indicates that the constitution has established a form of
Government which gets its authority from the will of the people. The rulers are
elected by the people and are responsible to them.
(v) Republic: As opposed to a monarchy, in which the head of state is appointed
on the hereditary basis for a lifetime or until he abdicates from the throne, a
democratic republic is an entity in which the head of state is elected, directly
or indirectly, for a fixed tenure. The President of India is elected by an
electoral college for a term of five years. The post of the President of India is
not hereditary. Every citizen of India is eligible to become the President of the
country.
(3) Objectives of Indian State
(i) Justice: Social, Economic and Political.
(ii) Equality: of status and opportunity.
(iii) Liberty: of thought, expression, belief, faith and worship
(iv) Fraternity (= Brotherhood) : assuring the dignity of the individual and the unity
and integrity of the nation.
(4) Date of its adoption
Date of adoption of the Constitution is 26th November, 1949. But most of the articles
in Constitution came into force on January 26th, 1950.
Conclusion:
The preamble is the very important part of the Indian Constitution. Preamble is key to
open the mind the makers. In the case of Kesavananda Bharati, it is clearly mentioned that
Preamble is part of the Constitution and the basic features of the Preamble. In the Preamble
its discuss about the basic human needs like all kinds of justice, welfare and opportunity and
the fraternity. So, the Preamble is very important in our Constitution. It is the integral part of
our Constitution. Preamble is very helpful in assisting the interpretation of provision of the
Constitution. It is a source of interpretation of status framed under the Constitution.
Preamble is use in interpreting an ordinary statute; there is no doubt that it cannot be used to
modify the languages- if the languages of the enactment are plain and clear. It has been
held that if the languages of the enactment is capable of more than one meaning then that
one is to be preferred which comes nearest to the purpose and scope of the Preamble.
After the analysis of interpretation value of the Preamble in our Constitution. Research found
that the Preamble is the very important part of Indian Constitution, to understand the
meaning of the any statute of its not clear.

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Q.3. Discuss the power, function and position of President of India?
Ans. In India, the powers of the Union government are treated as the powers of the
President because these powers are used in the name in pursuance of the constitutional
stipulation under Article 53, which reads:
“The executive powers of the Union shall be vested in the President and shall be
exercised by him either directly or through the officers subordinates to him in accordance
with the constitution.”
The constitutional powers and functions of the precedent of India may be classified in
to different types such as:-
1. Executive functions:-
a. Head of the union:
b. The president is the head of the union Executive.
c. Consequently, all the executive powers are exercised in his name.
d. The executive power of the union to be exercised by the president is extended to
the matters with respect to which parliament has power to make laws and to conclude treaty
and agreement.
2. Appointments:-
a. As the head of the executive, the president appoints the governors of states, the
judges of the Supreme Court and high courts, the auditor general of India and many other
high officials, such as the members of finance commission, Election commission, Union
public commission etc.
b. Appointment of the prime Minister and other ministers
c. The president appoints the prime minister and with his advice the other ministers
of the union council of the ministers.
d. But here too, as in all other appointments, the president can seldom use his
discretion.
e. He is ordinarily, duty bound to summon the leader of the political party which
secures an absolute majority in the Lok Sabha to become the prime minister and from the
ministry.
f. He does enjoy some discretionary powers in the matter only under exceptional
circumstances.
g. When no single political party wins a clear absolute majority and as a result no
council of ministers can be formed without a coalition of parties the president can exercise
his discretion judiciously in appointing the prime minister.
h. India has entered into an age of coalition politics and it may so happen that no
single party will be able to secure an absolute majority and the president may be required to
excise his discretionary power for sometimes to come in appointing prime minister.
3. Can ask to prove majority in Lok Sabha:
a. The union council of minister normally remains in office in five years unless
dissolved earlier for any reason.
b. The president must be satisfied that the council of minister enjoys the confidence
of the majority of the Lok Sabha.
c. In case of any doubt he can ask the council of ministers to prove its majority in the
Lok Sabha as the Prime Minister Sir H.D Deve Gowda was asked by the president after the
official withdrawal of support by the congress party from minister.
 d. The president can also dissolve the union council of ministers in accordance with
article 75(2) of the constitution if he finds that the ministry does not enjoy the support of the
majorities in the Lok Sabha.
4. Legislative Power and functions:
a. President is a part of Parliament:
b. The union legislature or parliament consists of the president and two houses of
parliament.
c. The president is there for an integral part of union legislature.
d. He shall summon time to time, either separately or jointly, the houses of
parliament.
e. The president can prorogue the houses or either house of parliament and if
necessary can dissolve the lower chamber of parliament, the Lok Sabha.
f. The president may address either or both house of parliament.
g. In such address, at the first session after general election to the Lok Sabha and at
beginning of a joint session of parliament each year, he may place the reasons for
summoning it.
h. Apart from addressing parliament, the president may also in case of necessities,
send messages to either House, or to both Houses
i. Normally, the President does not send such a massage, unless however, he has a
serious disagreement with the council of ministers.
5. Nominations:
a. The president nominates a number of members in both houses.
b. The chief purpose of the nomination is to ensure adequate representation in
parliament of all section of population which many not always be achieved through election
6. Power in respect of bills
a. The president has certain functions in respect of passing of a bill. A bill passed by
both the houses of parliament required his assent in order to become an act.
b. He may give his assent to a bill or can with hold assent when a bill after getting
approved in both the houses is placed before the precedent.
c. But if parliament, acting on presidents refusal to assent to a bill, passes it again
with a without amendment, for the second time or a presents it to the president for his
approval, the president shall not withhold his assent there from under article 111.
d. In other words it becomes obligatory upon him to give his assent.
e. In certain cases, prior sanction of the president is required for initiating any
legislation.
f. For instance, bill for formation of a new state or altering the boundaries of the
existing state or states is to be placed before parliament with prior approval of the president.
g. Money is another example where obtaining of such approval of the president is a
constitutional necessity.
7. Bill passed by a state Legislature:
a. A bill passed by a state Legislature may also be reserved for the consideration of
the president by the governor of that state.
b. The president enjoys this right in relation to a bill passed by a state legislature only
in such cases, where those are referred to him by the government of a state under article
200.
8. Power to promulgate ordinances
 a. Except when both houses of parliament are in session, the president may
promulgate such ordinances as the circumstances appear to him to require (article 123)
b. Such an ordinance can have the same force and effect of an act of parliament.
Such an ordinance shall cease to operate unless passed by both houses of parliament within
the stipulated period.
c. In A.K. Roy vs. Union of India (1982) illustrates the proposition get the satisfaction
of the president must be as to the existence of a situation which makes it necessary for the
president to promulgate such on ordinance.
9. Financial powers & functions
a. The president causes the annual budget of the union government to be laid before
parliament every year.
b. No proposal for spending money or raising revenues for purposes of government
can be introduced in parliament without previous permission of the president.
10. Emergency powers of the president
The constitution of India empowers the president proclaim three kinds of emergencies
a. National emergency (article 352)
b. Emergency for failure of constitutional machinery in a state (Article 356)
c. Financial emergency(article 360)
11. Military and diplomatic powers
a. The constitution vests the supreme command of the defense forces in the
president, but he is required to exercise that power in accordance with law parliament has
exclusive legislative power relating to defense forces.
b. It means that though the president may have the power to take action as to
declaration of war or peace or the employment of the defense forces. It is parliament that is
to regulate or control the exercise of such powers.
c. The executive power relating to foreign and diplomatic business is conducted in
the name of the President.
d. Diplomatic envoys and consular agents are accredited to him, and he sends
diplomatic envoys and consular agents are accredited to him and he sends diplomatic
envoys to foreign countries. All treaties and international agreements are negotiated and
concluded in the name of the President.
12. Diplomatic powers of the president of India
a. The president receives ambassadors, high commissioners and diplomatic envoys
from foreign nations.
b. All treaties and international agreements are concluded in the name of the
president.
c. The president has the powers of appointing Indian ambassadors to other
countries.
13. Judicial power
The president has the power to grant pardon reprieves, respites and remission of
punishment of to suspend remit to or commute the sentence of any person convicted of any
offence.
a. In all cases where the punishment and sentence is by court martial.
b. In all cases where the punishment or sentence for an offence against a law
relating to a matter to which the executive power of the union extends.
c. In all cases where the sentence is a death sentence.
 ••
Q.4. Discuss the Functions and Position of the Governor of a State.
Ans. The Governor is the head of a state. He is the Chief Executive in the state. He enjoys
the same position in the state as the President enjoys in the centre. However, in a way his
position is slightly better. Whereas the President as the nominal executive of the Union can
rarely use any discretion in the exercise of his powers, the constitution grants some
discretionary powers to the Governor.
Method of Appointment: Constitution of India lays down for the office the Governor
of each state. However, one person can also function as a Governor of two or more states.
The President of India appoints the Governor of each state and while doing so he acts upon
the advice of the prime Minister.
Two important practices regarding the Appointment of a Governor:
The first practice is that the person being appointed as the Governor is mostly not a
resident of the state for which he is appointed.
Secondly, before appointing a Governor, the Union Governments consults the
concerned State Government particularly the Chief Minister of that State. It is now a
respected rule.
Along with these two healthy practices, an unhealthy practice has also developed.
Sometimes ‘defeated’ or very old political leaders are appointed as Governors. Further,
sometimes the unhealthy practice of wholesale transfers or removals of Governors takes
place after a change of government at the Centre.
2. Qualifications for the Office of the Governor:
The following qualifications are essential:
(1) He is to be a citizen of India.
(2) He has to be above the age of 35 years.
(3) He is not to be a member of either House of Parliament or of the Legislature of any
state.
(4) He is not to be holding any office of profit in the Government.
(5) He is not to be a declared bankrupt by any court of law.
3. Tenure: The Governor is appointed for a period of five years. However, he holds
office during the pleasure of the President. The President can remove or transfer him at any
time.
4. Oath or Affirmation by the Governor: Every person appointed as Governor has
to take the oath of his office. It has to be taken in the presence of the Chief Justice of the
concerned State High Court.
Powers and Functions of the Governor:
1. Executive Powers: Governor is the head of the State. The Constitution gives
executive powers of the state to the Governor. He appoints the Chief Minister and other
ministers on the advice of the Chief Minister. Ministers hold office during the pleasure of the
Governor.
The Governor can remove the Chief Minister of the province in case he feels that his
government does not enjoy the confidence of the majority in the State Legislative Assembly
or is not working according to the provisions of the Constitution.
All major appointments (Advocate General, Chairman and Members of Public Service
Commission, Vice-Chancellors) in the state are made by the Governor. But in doing so, the
Governor depends upon the advice of the State Chief Minister and the State Council of
Ministers.
Normally, the Governor exercises all his executive powers in accordance with the
advice of the State Council of Ministers and the Chief Minister. The ministers are responsible
for all the acts of the Governor. But during a constitutional emergency in the states the
Governor becomes a real executive head of the state uses all executive powers with the
help of some advisors.
2. Legislative Powers: The Governor is not a member of the state legislature and yet
he is a part of it. All bills passed by the state legislature become laws only after the
signatures of the Governor. He can withhold his assent or can return a bill (other than a
money bill) to the legislature for reconsideration. But if the bill is passed a second time, he
cannot withhold his assent from that bill. Several legislative measures can be reserved by
him for Presidential assent.
The Governor summons and prorogues the sessions of the state legislature. He can
dissolve the state legislative assembly. He nominates 1/6 members of the Legislative
Council from amongst persons having distinguished careers in the field of science, art,
literature or social service, normally all these functions are performed by the Governor under
the advice of the State Chief Minister.
When the state legislature is not in session, the Governor can issue ordinances. Any
ordinance so issued by the Governor has the same force as the law o•f the legislature. It,
however, ceases to operate after six weeks from the date on which the state legislature
comes into session. It also ceases to operate when a resolution is passed by the state
legislature disapproving the ordinance. The Governor issues ordinances only on the advice
of the state Chief Minister and his Council of Ministers.
3. Financial Powers: A money bill can be introduced in the state legislature only with
the prior permission of the Governor. He orders that the annual budget be placed before the
state legislature. The contingency fund of the state is at his disposal to meet any unforeseen
expenditure.
4. Judicial Powers: The Governor of the state has some judicial powers. He can
influence the
appointments, postings and promotions of the district judges and other judicial
officials. He has the power to grant pardon, reprieve or remission of punishment or to
suspend, remit or commute the sentences of any person, convicted of any offence against
any law. While appointing the Chief Justice and other judges of the State High Court, the
President of India consults the Governor of the Concerned State.
Position of the Governor: A review of the powers of the Governor brings out the
view that he has got wide powers and is not a constitutional ruler. However, being the head
of a state which has a parliamentary system, the Governor normally acts as a constitutional
or nominal executive head the state. He carries out all his functions on the advice of the
Chief Minister and his Council of Ministers.
(1) The Areas in which the Governor can act in his Discretion: Despite being a
nominal head, the Governor has some discretionary powers. These are exercised by him
without the advice of the State Council of Ministers.
These are:
(i) When no political party is having a clear majority in the State Legislative Assembly,
the Governor can play an active and decisive role in the appointment of the Chief Minister.
 (ii) The Governor can use his discretion in dismissing a ministry when the party in
power loses majority or is likely to lose majority in the state Legislative Assembly.
(iii) The Governor can act in his discretion in ordering or recommending to the
President for a dissolution of the state assembly. The Governor can refuse to accept the
advice of a Chief Minister for dissolving the state legislative assembly in case he feels that
an alternative state government can be formed.
(iv) The Governor depends upon his discretion in advising the President for the
promulgation of an emergency in the state. He has the power to judge as to whether there
has been a break-down of constitutional machinery in the state or not.
(2) Governor is not merely a Golden Zero: The Governor of a state is not merely a
figure head. He can exercise some powers in his discretion and independent of the
recommendations made by the state Chief Minister. Governor is not a superfluous highness.
The Constitution, as such, makes the Governor of a state an important factor in the state
administration. Even in normal times, when he acts as the nominal executive head of the
state, he can use some discretionary powers.
(3) Governor as a Link between the Centre and the State: The Governor acts as
the link between the Union and the state. He acts as the agent of the President in the state
both when he acts as the nominal and constitutional head of the state in normal times as
well as when he act as the real head during the period of President’s rule in the state.
He has to simultaneously act as the agent of the Centre as well as the head of the
state administration. He can also exercise some powers in his discretion. Some State
Governors have been, at times, at the centre of some controversies.
Several reports of the committees constituted to define the exact role of the Governor
of a state have suggested several practical steps for guiding his multidimensional role.
However till today, the office of the Governor continues to operate as before.

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Q 5. State Legislature: Organisation, Powers and Limitations on the powers of sate
legislature.
Ans.: State Legislature: Organisation, Powers and Limitations on the Powers of State
Legislature!
I. State Legislature: The Constitution of India provides for a legislature in each State
and entrusts it with the responsibility to make laws for the state. However, the composition of
a state Legislature can be different in different states. It can be either bicameral or
unicameral. Presently, only six states (Andhra Pradesh, Bihar, J&K, Karnataka Maharashtra
and UP) have bi-cameral legislatures. Twenty two States and Two Union Territories (Delhi
and Puducherry) have uni-cameral Legislatures.
In case of a bicameral state legislature, the upper house is known as State Legislative
Council (Vidhan Parishad) and the lower house as the State Legislative Assembly
(Vidhan Sabha). Where there is only one House of the State Legislature, it is known as the
State Legislative Assembly. Orissa has a unicameral legislature with OrissaLegislative
Assembly as it all powerful house.
(I) Method of Abolition or Creation of a State Legislative Council: The power to
establish or abolish the Legislative Council in a state belongs to the Union Parliament. It can
do it by enacting a law. The Parliament, however, acts when the Legislative Assembly of the
concerned state passes a desired resolution by a majority of its total membership and by a
majority of not less than two-thirds of the members of the State Legislative Assembly present
and voting.
 Organisation of a State Legislature:
(A) Composition of the State Legislative Assembly (Vidhan Sabha):
The State Legislative Assembly, popularly known as Vidhan Sabha, is the lower,
directly elected, popular and powerful house of the state legislature. Its membership is in
proportion to the population of the state and hence it differs from state to state. The
members are directly elected by the people of the state through a secret ballot, simple
majority vote victory and single member territorial constituency system.
A citizen of India, who is not less than 25 years of age and who fulfills every other
qualification as laid down by a law can become its member by winning an election from any
constituency in the state. However, no person can simultaneously be a member of two
Houses of the Parliament or of any other State Legislature.
The normal term of Legislative is 5 years. However, it can be dissolved by the
Governor at any time. It can be suspended or dissolved when an emergency under Art. 356
are proclaimed in the state.
(B) Composition of Sate Legislative Council:
At present only 6 States — Andhra Pradesh, UP, Maharashtra, Karnataka, J&K and
Bihar—have Legislative Councils. The popular name of the State Legislative Council is
Vidhan Parishad. The total membership of a Legislative council cannot be normally less than
40 and more than 1/3rd of the total membership of the State Legislative Assembly.
Andhra Pradesh Vidhan Parishad has 90 members UP Vidhan Parishad 100,
Maharashtra Vidhan Parishad 78, J&K Vidhan Parishad 36, Bihar Vidhan Parishad 75 and
Karnataka Vidhan Parishad 75 members.
The following formula is used:
(i) 1/3rd members are elected by the members of State Legislative Assembly.
(ii) 1/3rd members are elected by local bodies of the state.
(iii) 1/12th members are elected by teachers of at least three years standing, serving
educational institutions of the state.
(iv) 1/12 members are elected by state university graduates of not less than three
years- standing.
(v) 1/6th members are nominated by the Governor of the state.
Any citizen of India who is not less than 30 years of age, who possesses all the
qualifications as laid down by the Parliament, who is not a member of any other legislature
or Union Parliament can become a member of the State Legislative Council either by
winning an election or by securing Governor’s nomination. Legislative council is a semi-
permanent House. It is never dissolved as a whole. 1/3rd of its members retire after every 2
years. Each member has a term of 6 years.
Powers and Functions of a State Legislature: Each State Legislature exercises
law-making powel’s over the subjects of the State List and the Concurrent List. In case a
state has a unicameral legislature, i.e., in case it has only State Legislative Assembly, all the
powers are exercised by it. However, even in case it is a bicameral state legislature with
state Legislative Council (Vidhan Parishad) as the upper house and state Legislative
Assembly as the lower house, almost all the powers are exercised by the latter. The
Legislative Council plays only a secondary and minor role.
Powers of State Legislature:
1. Legislative Powers: The State Legislature can make laws on the subjects of the
State List and the Concurrent List. It can enact any bill on any subject of State List, which
becomes an Act with the signatures of the Governor. Normally, the Governor acts as a
nominal and constitutional head and as such follows the advice of the State Chief Minister
and his Council of Ministers.
 However, he can reserve some bills passed by the State Legislature for the approval
of the President of India. Further, in case a law made by the State Legislature on a
concurrent subject comes into conflict with a Union Law on the same subject, the latter gets
precedence over the former. In ordinary law-making, both the Houses (Legislative Assembly
and Legislative Council wherever these exist together) have co-equal powers. In practice the
Legislative Assembly dominates the law-making work. Most of the non-money ordinary bills
are introduced in the Legislative Assembly and it plays a major role in their passing. The
Legislative Council acts only as a revising and delaying second chamber.
A bill passed by the Legislative Assembly and rejected by the Legislative Assembly or
not decided upon by the latter within 3 months, when re-passed by the Legislative Assembly
becomes an Act after the expiry of one month from the date on which it was sent to the
Legislative Council a second time.
2. Financial Powers:Th.e State Legislature has the power to levy taxes in respect of
all subjects of the StateList. It is the custodian of the finances of the state. Mo revenue can
be collected or tax can be levied or collected by the state government without the consent of
the State Legislature. The budget and all other financial policies and programmes of the
state government become operational only after getting an approval from the State
Legislature.
However, in emergencies declared under Articles 352, or 356 or 360, the financial
powers of the state become subordinate to the Union. When the state is under a
constitutional emergency (Art. 356), the State Legislature stands either suspended or
dissolved. In this situation, the financial powers for the state are exercised by the Union
Parliament.
When a State Legislature is unicameral, all the financial powers are naturally
exercised by the Legislative Assembly. However, even when it is bi-cameral, the real
financial powers are in the hands of the Legislative Assembly. A money bill can be
introduced only in the Legislative Assembly and after passage it goes to the Legislative
Council.
The latter can delay its passage for only 14 days. In case, it rejects or amends the bill,
the decision of the Legislative Assembly prevails. When the Legislative Council returns a
financial bill to the Legislative Assembly with some amendments, it is the power of the
Legislative Assembly to accept or reject these. Thus, in respect of financial powers, the real
authority is in the hands of the State Legislative Assembly.
3. Power to control the Executive: Control over the State Council of Ministers is
exercised by the State Legislative Assembly. Little role has been assigned to the State
Legislative Council. The State Chief Minister is the leader of majority in the State Legislative
Assembly. The State Council of Ministers is collectively responsible before the Legislative
Assembly.
The latter can cause the fall of the ministry by passing a vote of no-confidence or by
rejecting a bill or policy or budget sponsored by the Council of Ministers. The State
Legislative Council can exercise only a limited control over the ministry by putting questions
and supplementary questions to the ministers.
4. Other Powers: The State Legislature, particularly its Legislative Assembly,
exercises several other powers. The elected members of the Legislative Assembly (M1LAs)
participate in the election of the President of India. They also elect representatives of the
state in the Rajya Sabha. Certain constitutional amendments can be made by the Union
Parliament only with the ratification by at least half of the State Legislatures.
The state legislature considers the reports of the State Public Service Commission,
State Auditor General, and others. It also acts as a forum for ventilation of the grievances of
the people. The State Legislative Assembly has the right of adopting a resolution for the
creation or abolition of the State Legislative Council.
 Position of a State Legislature:
The State Legislature occupies the same position in a state as is the position of the
Parliament in the Union.
Some Limitations on the Powers of State Legislature:
(1) Prior consent of the President of India for introduction of some Bills: There
are certain bills which can be introduced in a state legislature only with the prior consent of
the President of. India.
(2) Reservation of bills by the Governor for President’s Assent: There are certain
bills, which after having been passed by the state legislature, can be reserved by the
Governor for the consent of the President. Such bills become laws only after the President
has given his assent.
(3) Limitation that can be imposed by the Rajya Sabha: The Union Parliament gets
the power to pass laws on the State List, (for one year) if the Rajya Sabha adopts a
resolution (supported by 2/3rd majority of the members present and voting) and declares a
state subject mentioned in the resolution as a subject of national importance.
(4) Limitations during national Emergency: When a national emergency (Under
Art. 352) is in operation, the Parliament is empowered to pass a law on any subject of the
State List. The law so passed operates during the period of emergency and for six months
after the end of the emergency.
(5) Limitations during a Constitutional Emergency: During the operation of
constitutional emergency in a state under Art 356, the Union Parliament gets the authority of
making laws for that state. The State Legislature stands either dissolved or suspended.
(6) Discretionary Powers of the Governor: Discretionary powers of the Governor of
a state also constitute a limitation on the State Legislature. Whenever he acts in his
discretion, he is beyond the jurisdiction of the State Legislature. Acting in his discretion, the
Governor can even dissolve the State Legislative Assembly.

••
Q.6) Discuss the Centre- State relations under Indian Constitution.
Ans: The Constitution provides a federal system of government in the country even though it
describes India as a Union of States’. The term implies that firstly, the Indian federation is
not the result of an agreement between independent units and secondly, the units of Indian
federation cannot leave the federation.
India is a union of states. The constitution of India has divided the legislative,
executive and financial powers between the centre and the states, which gives the
constitution a federal character whereas judiciary is integrated in a hierarchical structure.
The centre-state relations are divided into three parts, which are mentioned below:
(A) Legislative Relations (Article 245-255)
(B) Administrative Relations (Article 256-263)
(C) Financial Relations (Article 268-293)
Legislative Relations: Articles 245 to 255 in Part XI deals with different aspects of
legislative relations between centre and states. These include:
(1) Power of parliament to legislate with respect to a matter in the State List
(2) Centre’s control state legislation
However, Seventh Schedule of the Constitution provides for the distribution of legislative
education, forests, protection of wild animals and birds, electricity, labour welfare, criminal
law and procedure, civil procedure, population control and family planning, drugs etc. Article
245 empowers the centre to give directions to the states in certain cases in regards to the
exercise of their executive powers.
Article 249 empowers the parliament to legislate with respect to a matter in the State list in
consent.
Administrative Relations:
(i) Article 256 to 263 deals with the administrative relations between the centre and the
states. Article 256 states that ‘the executive power of every State shall be so exercised as to
ensure
dispute or complaint with respect to the use, distribution or control of the waters of, or in, any
inter-State river or river valley.
(ii) Article 263 empowers the President to establish an inter-State Council to inquire into
and advise upon disputes between states, to investigate and discuss subjects in which some
or all of the States, or the Union and one or more of the States, have a common interest.
(iii) As per Article 307, Parliament may by law appoint such authority as it considers
appropriate for carrying out the purposes of the constitutional provisions related to the
interstate freedom of trade and commerce.
Centre-State Relations during Emergency:
(i) During a national emergency (under Article 352), the state government become
subordinate to the central government. All the executive functions of the state come under
the control of the union government.
(ii) During a state emergency (under Article 356), the president can assume to himself
all or any of the functions of the Government of the State and all or any of the powers vested
in or necessary and adequate for the purpose.
Financial Relations:
The Constitution deals with the centre-state financial relations in Article 268-293 of Part XII.
(i) Both the parliament and the state legislature are empowered to levy taxes on the
subjects mentioned in the Concurrent list.
(ii) The parliament has exclusive power to levy taxes on the matters related to the
residuary subjects.
However, in case of tax revenue distribution: Article 268 states that duties are levied by
the Union but are collected and appropriated by the States;
Service tax levied by Union and collected and appropriated by the Union and the States
(Article 268-A);
Taxes levied and collected by the Union but assigned to the States (Article 269);
Taxes levied and collected by the Union but distributed between the Union and the States
(Article 270).
Surcharge on certain duties and taxes for purposes of the Union (Article 271)
Under Article 275, the parliament is authorized to provide grants-in-aid to any state as
parliament may determine to be in need of assistance, and different sums may be fixed for
different States between the centre and the states can be altered by the president.

Under Article 360, during the financial emergency, the executive authority of the Union shall
give directions to any State to observe such canons of financial propriety as may be
specified in the directions and to the give the directions as the President may deem
necessary and adequate for the purpose.

Q. 7) Discuss Emergency Provisions: Effects and Impact.

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

The Indian Constitution provides for three different kinds of abnormal situations
which call for a departure from the normal governmental machinery setup by the
Constitution:
a. An emergency due to war, an external aggression or armed rebellion [Article 352]. It
is also known as National Emergency.
b. Failure of constitutional machinery in states [Article 356]. Also known as Presidential
Rule.
c. Financial Emergency [Article 360].

Part XVIII of the Constitution permits the state to suspend various civil liberties and the
application of certain federal principles during presidential proclaimed states of emergency.

Emergency provision falls within the Article 352 to Article 360 of the Indian Constitution.
1. National emergency (Article 352)
2. State emergency (Article 356)
3. Financial emergency (Article 360)
National Emergency: The provision for National Emergency is provided for under the
Article 352 of the Constitution. The national emergency deals with constitutional provisions
to be applied, whenever there is an extraordinary situation that may threaten the peace,
security, stability and governance of the country or a part thereof.
Under Article 352 of the Constitution provides for the imposition of emergency when
following situations is/are present.
i) War,
ii) External aggression or
iii) Internal rebellion.

Article 352 says that if the President is satisfied’ that a grave emergency exists whereby the
security of India or any part of it is threatened due to outside aggression or armed rebellion,
he may make a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause (3) says that President can make such a proclamation only upon the
written advice of the Union Cabinet. Such a proclamation must be placed before each house
of the parliament and must be approved by each house within one month of the declaration
of the proclamation otherwise it will expire.
It should be noted herein, that in explanation to Article 352 it has is provided that for
proclamation of emergency, it is not necessary that external aggression or armed rebellion
has actually happened. It can be proclaimed even if there is a possibility of the happening of
external aggression or armed rebellion.

In the case of Minerva Mills vs Union of India it has been held that there is no bar to judicial
review of the validity of the proclamation of emergency issued by the president under Article
352(1). However, court’s power is limited only to examining whether the limitations conferred
by the Constitution have been observed or not. It can check if the satisfaction of the
president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant
grounds, it is no satisfaction at all. Procedure of proclaiming emergency.

A proclamation can be made by the president of the country, but there are some provisions
for that too. The President can declare such an emergency only if the Cabinet recommends
in writing to do so. Such a proclamation of emergency has to be approved by both the
Houses of Parliament by absolute majority of the total membership of the Houses, as well as
2/3rd majority of members present and voting within one month, otherwise the proclamation
ceases to operate.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in
session, it has to be approved by the Rajya Sabha within one month and later on by the Lok
Sabha, within one month of the start of its next session. Once approved by the Parliament,
the emergency remains in force for a period of six months from the date of proclamation. In
the case it is to be extended beyond six months, another prior resolution has to be passed
by the Parliament. In this way, such emergency continues indefinitely.

Procedure of revoking emergency: If the situation improves the emergency can be

revoked by the President of India through another proclamation. The 44th Amendment of the
Constitution provides that ten per cent or more members of the Lok Sabha can make a
requisition for meeting of the Lok Sabha and in that meeting; it can disapprove or revoke the
emergency by a simple majority. In such a case emergency will immediately become
inoperative.

Effect of Proclamation of Emergency:

Effect of National Emergency:
The declaration of National Emergency effects both on the rights of individuals and the
autonomy of the states in the following manner:

1. The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power to
make laws for the entire country or any part thereof, even in respect of subjects mentioned in
the State List.
2. The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised.
3. During the emergency period, the Lok Sabha can extend tenure by a period of 1 year at a
time. But the same cannot be extended beyond 6 months after the proclamation ceases to
operate. The tenure of State Assemblies can also be extended in the same manner.
4. During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.
5. The Fundamental Rights under Article 19 are automatically suspended and this
suspension continues till the end of the emergency.
But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended
only in case of proclamation on the ground of war or external aggression. From the above
discussion, it becomes quite clear that emergency not only suspends the autonomy of the
States but also converts the federal structure of India into a unitary one. Still it is considered
necessary as it equips the Union Government with vast powers to cope up with the abnormal
situations.

Q.8) Discuss State Emergency.

Ans: State Emergency: It is the duty of the Union Government to ensure that
governance of a State is carried on in accordance with the provisions of the Constitution.
Under Article 356, the President may issue a proclamation to impose emergency in a state if
he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a
situation has arisen under which the Government of the State cannot be carried on
smoothly. In such a situation, proclamation of emergency by the President is called
‘proclamation on account of the failure (or breakdown) of constitutional machinery.’ In
popular language it is called the President’s Rule.

Such an emergency can have the following effects:

a) the President can assume to himself all or any of the functions of the government of the
state other than the High Court.
b) declare that the powers of the legislature of the state shall be exercisable by or under the
authority of the Parliament, and
c) make provisions necessary or desirable for giving effect to the objects of the proclamation.

The President is not, however, authorised to assume the powers of the High Court, or to
suspend any constitutional provision pertaining to it.

Procedure of Proclaiming State Emergency: Like National Emergency, such a

proclamation must also be placed before both the Houses of Parliament for its approval. In
this case approval must be given within two month; otherwise the proclamation ceases to
operate. If during these two months, the Lok Sabha is dissolved and the Rajya Sabha has
approved it, then, the proclamation shall cease to operate on expiration of thirty days from
the date on which the Lok Sabha first sits after its reconstitution, unless it is approved by the
Lok Sabha before the expiration of this period.

A proclamation so approved shall, unless revoked, cease to operate on the expiration of a

period of six months from the date of issue of the proclamation. Unless revoked, its life can
be extended by six months each, several times, but in no case beyond three years.
Thereafter, the President’s Rule must come to an end, and the normal constitutional
machinery must be restored in the State.

The 44th Amendment introduced a new provision to put restraint on the power of Parliament
to extent a proclamation issued under Article 356 beyond one year.

Procedure of Revoking State Emergency: Any such Proclamation may be revoked or

varied by a subsequent Proclamation.
Proclamation issued under Article 356(1) expires in any of the following modes:

a) After two months of its making if it is not presented for approval before both Houses of the
Parliament [Article 356(3)].
b) Even before two months, if the proclamation on presentation to the Houses of Parliament
fails to get approval from any House [Article 356(3)].
c) After 6 months from the date of the proclamation, in case no further resolution is passed
by the House of Parliament after the passage of the initial resolution approving the said
proclamation [Article 356(4)].
d) After the expiry of 6 months from the passage of the last resolutions of approval passed
by the House of Parliament subject to an over-all maximum limit of 3 years from the date of
the proclamation. Continuance of the proclamation beyond one year is subject to the
fulfillment of the conditions laid down in Article 356(5).

Effect of State Emergency:

The declaration of emergency due to the breakdown of Constitutional machinery in a State

has the following effects:

1. The President can assume to himself all or any of the functions of the State Government
or he may vest all or any of those functions with the Governor or any other executive
authority.

2. The President may dissolve the State Legislative Assembly or put it under suspension. He
may authorise the Parliament to make laws on behalf of the State Legislature.
3. The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation.

Effects of Proclamation of Emergency on the Fundamental Rights:

a. Federal laws will overrule state legislation and the Union is empowered to govern
areas (eg. Policing) that are normally devolved to the states.
b. The Union is also empowered to take over and completely control the taxation and
budgetary revenue process. Under financial emergency, the Union is empowered to have
the final say in the promulgation of financial acts approved by the state legislature.
c. The Union may decide to suspend some or all of the fundamental rights guaranteed
by Part III (Articles 12 through 35) of the constitution- which include:
i. freedom of equality before law
ii. freedom of speech and expression
iii. freedom to assemble peacefully
iv. freedom for movement across Indian territory
v. freedom to practice any profession, occupation, trade or business.
vi. freedom to practice or propagate religion.
• Further, the right to challenge the suspension of the above mentioned rights (the right to
constitutional remedies) may also be suspended. However, this provision will not cover the
suspension of Articles 20 and 21 which govern rights to personal liberty, Right to silence,
freedom from double jeopardy and freedom from unlawful arrest and detention. Any
individual, who deems that his rights under these categories have been suspended
unlawfully, can challenge the suspensions under a court of law.

• The Union may decide to dismiss the legislative functions of a state legislature and impose
federal law for a period of six months. This state of suspension may be renewed at the end
of this period under the vote of Parliament (indefinite number of times) until such a time
when the Election Commission of India can certify the feasibility of holding free and fair
elections in the state to reconstitute the legislature.

• Any order to the above effects however, should be passed by the House of Parliament “as
soon may be after it is made”.

Changes made by 44th Amendment:

Background
The proclamation of emergency is a very serious matter as it disturbs the normal fabric of
the Constitution and adversely affects the rights of the people. Such a proclamation should,
therefore, be issued only in exceptional circumstances and not merely to keep an unpopular
government from office. This happened in June 1975 when an emergency was declared on
the ground of internal disturbance without there being adequate justification for the same.
The proclamation of 1975 was made on the ground of internal disturbance which proved to
be the most controversial because there was violation of fundamental rights of the people on
a large scale; drastic press censorship was imposed. A large number of persons were put in
preventive detention without justification. In the light of these amendments have thus been
made by the 44th amendment act to the emergency provisions of the constitutions to make
repetition of the 1975 situation extremely difficult, if not impossible.

The 44th Amendment:

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

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

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

writing.

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

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

5. Emergency can be revoked by passing resolution to that effect by a simple majority of the
houses present and voting. 1/10 of the members of a house can move such a resolution.

6. Article 358 provides that Article 19 will be suspended only upon war or external
aggression and not upon armed rebellion. Further, every such law that transgresses Article
19 must recite that it is connected to Article 358. All other laws can still be challenged if they
violate Article 19.

7. Article 359, provides, suspension of the right to move courts for violation of Part Ill will not
include Articles 20 and 21.

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

Proclamation under Article 352:

Article 352(1) provides that the president can make a proclamation of emergency if he is
‘satisfied’ as to the existence of a threat to the security of India, or any part thereof. Herein
therefore the question has arisen from time to time that whether this satisfaction of the
President is justiciable or not.

The position on this matter is that in the case of Bhut Nath v. State of West Bengal, the
Supreme Court held that it is a political question and not a justiciable issue. Also to make the
position more clear on this matter the 38th Amendment to the constitution added clause 5 to
the Article 352 saying that the ‘satisfaction’ of the president as used in Article 352(1) and (3)
is to mean “final and conclusive” and “could not be challenged in any court of law”.
But later on after Indian democracy saw the abuse of these powers during the emergency of
the 1975, by the 44th Amendment later on the provision of Article 352(5) inserted by the 38th
Amendment to the constitution was revoked. Therefore the present position on this matter is
that, it is upto the Supreme Court to decide whether it will treat the ‘satisfaction’ of the
president to issue a proclamation of emergency, or to vary it or to continue it, as ‘final’ and
‘non-justiciable’, or as being subject to judicial review on some grounds.

Also it is worth noting herein that Justice Bhagwati has observed in the case of Minerva Mills
that “whether the precedent n proclaiming the emergency under Article 352 had applied his
mind or whether he acted outside his powers or acted mala fide in proclaiming the
emergency could not be excluded from the scope of judicial review.”

Q. 9) Judicial review of Administration Actions.

Ans: Judicial Review of Administrative action is part of enforcing the constitutional discipline
over the administrative agencies while exercising their powers. It has origin in England which
was adopted in common law countries. India too inherited the idea of judicial review from
England. India had laid its structure on English prerogative with pattern which was issued by
the court of King’s Bench with a view to exercise general superintendence over the due
observance of law by officials/ authorities while performing judicial or non-judicial functions.
Judicial Review is a great weapon through which arbitrary, unjust, harassing and
unconstitutional laws are checked. Judicial review is the cornerstone of constitutionalism,
which implies limited Government.

Administrative action may be statutory, having the force of law, or non-statutory, devoid of
such legal force. The bulk of the administrative action is statutory because a statute or the
Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited with
disciplinary action.

Though by and large administrative action is discretionary and is based on subjective

satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
In the process of judicial review of legislative and executive action, the courts pick out the
golden thread of reason and meaning in a law; they shape and mould the law, reveal its
fitness and nuances, smooth the angularities, strike down the bad law or illegal action, and
most essential to all, exert the strong moral forces of restraint in times when expediency is
all.

Grounds for Judicial Review of Administrative Actions

1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality
Judicial review means the review made by the courts of administrative actions with a
view to ensure their legality. Administrative authorities are given powers by statutes and
such powers must be exercised within the limits of the power drawn by such statutes.
It is the authority of the courts to declare void of the acts of the legislature and executive,
if administrative body are found in the violation of the provisions of the Constitution. The
concept of judicial review has been originated and developed by the American Supreme
Court, although there is no express provision in the American Constitution for the judicial
review. In Marbury v. Madison the Supreme Court made it clear that the courts had the
power of judicial review.

Chief Justice Marshall said, certainly all those who have framed the written constitution
contemplate them as forming the fundamental and paramount law of the nations, and the
theory if every such Government must be that an act of legislature, repugnant to the
Constitution is void.

In case of conflict between the Constitution and the Acts passed by the legislature, the
Courts follow the Constitution and declare the acts to be Unconstitutional.

In review, reviewing authority does not go into the merit of the decision while in the case
of appeal the appellate authority can go into the merits of the decision. Therefore, judicial
review according to de Smith is inevitably sporadic and peripheral in judicial review,
the courts undertake scrutiny of administrative action on the touchstone of the doctrine of
ultra vires.

The superior Supreme Court at the central level and the High Courts at the states level
have the power to review administrative actions through various writs in the nature of
habeas corpus, mandamus, certiorari, prohibition and quo warranto under Article 32 and
226 of the Indian Constitution respectively. The writs which we follow in India have been
borrowed from England where they have a long history of development; consequently
they have gathered a number of technicalities.

Thus, the ultra vires doctrine provides a half-way basis for judicial review between
appeal review and no review at all.{9} In an appeal, the appealing authority may not only
quash the administrative decision, but may also take into account the validity of the
decision of the appealing authority and substitute its own judgment in its place, whereas
in the case of ultra vires, the jurisdiction of the courts is restricted only to quash the
administrative decision if it exceeds the authorities power.

To refrain from discussing the merits of the case, or directing it to behave according to
the law and the courts. Therefore, the reach of an appeal on a point of law or fact is
broader and the jurisdiction of the court is greater. Therefore, the halfway analysis, the
scope of which is not always apparent, creates uncertainty in administrative action
involving judicial interference. Sometimes the courts may believe they are willing to
intervene because they feel strongly about the injustice of the case before them;
sometimes they are not sure of the injustice and they follow the decisions of the
administration.

Courts lack frankness in clearly admitting this which leads them to state their conclusion
in terms of artificial conceptualism and vague formulae. The consequence also manifests
itself in incoherent judgments and confusion in the judiciary. In general, the judicial
review of administrative action is conducted with a view to ensuring that administrative
agencies act in accordance with their assigned authority and natural justice standards.

Ultra vires is the primary reason an administrative decision is invalidated. The

Constitution of India expressly allows for judicial review. Article 13(1) state that, to the
degree of such inconsistency, all laws in effect in the territory of India immediately before
the start of the Constitution of India shall be null and void in so far as they are compatible
with the provisions of Part III on fundamental rights. Over the years, however, the courts
 have developed various grounds for intervening, yet the law relating to judicial review of
administrative action through writs is complicated, involved and deficient.

Scope of the Doctrine of Utra- Vires In India

in the case of administrative action, the scope of judicial review was limited to three reasons:

1. Unreasonableness which is more appropriately called irrationality.

2. Unlawfulness.
3. Unfairness of action.
Consequently, judicial review of administrative action is only necessary when
conduct suffers from sin of arbitrariness, unreasonableness or injustice. If there are
malafides, prejudice, arbitrariness, bordering on perversity or such unreasonableness
as no reasonable man can conceive, it is appropriate to strike down an action.
Therefore, the doctrine of ultra-vires is not limited to cases of simple misuse of
authority, but it also regulates abuse of power, as in situations where something is
done unjustifiably, for wrong reasons or through incorrect procedures.

Therefore, the doctrine of ultra-vires is not limited to cases of simple misuse of

authority, but it also regulates abuse of power, as in situations where something is
done unjustifiably, for wrong reasons or through incorrect procedures. The ultra-vires
doctrine is the principal instrument of regulatory authority’s judicial power. This
covers all manner of regulatory acts done in excess of authority.

Q. 10) Doctrine of Pith and Substance.

Ans: Pith denotes true nature or essence of something and Substance means the most
important or essential part of something. The definition of these doctrine states, within
their respective spheres the state and the union legislatures are made supreme, they should
not encroach upon the sphere demarcated for the other.

Doctrine of Pith and Substance is applied when legislation made by of the legislatures is
challenged or trespassed by other legislatures. This doctrine says that when there is a
question of determining whether a particular law relates to a particular subject the court
looks to the substance of the matter. If the substance of the matter lies within one of the 3
lists, then the incidental encroachment by law on another lists, does not make it invalid
because they are said to be intra vires.

Features of Doctrine

1. This doctrine comes into application when subject matter between 2 lists seems to be
conflicting.
2. The powers of legislature will be strictly limited if every law is termed invalid on the
grounds that it is encroaching upon other laws.
3. The doctrine pulls out the true nature and character of the matter to bifurcate it into
its appropriate list.
Landmark Judgments: State of Bombay Vs. F.N. Balsara, was a case in which Bombay
Prohibition Act was challenged on the grounds that the prohibition of liquor on the borders
was a matter of Central Government. The act was held valid by the court because it was in
its pith and substance and fell under the State List though it was impacting the import of
liquor.

Q.11) Colourable Legislation:

Ans: The doctrine of colourability is the concept that when a legislature aims to do
something that it is unable to do or is beyond its capability or authority, within the limitations
of its government’s constitution, it colours the law with a concealed motive or purpose,
allowing it to accomplish its original hidden goal. Legislation is termed as colourable when a
legislature, having insufficient or absolutely no authority or legislative capability, enacts
legislation that is so disguising that it misleadingly seems to drop within its legislative
capability. It is clear that the purpose lies in the element that the legislature is unable to
legislate directly; it cannot traverse outside its capability to legislate it in an indirect manner.
This principle is called the Doctrine of Colourable Legislation.

Limitations of the Doctrine: A principle was established in the case of Ram Krishna Dalmia
vs. Shri Justice S.R. Tendolkar & Ors., stating:

“That there is always an assumption in favor of the constitutionality of an enactment and the
onus is upon him who assaults it to show that there has been a clear contravention of the
constitutional doctrines.” which shows that the particularly conferred authority to the
legislature defines its capability and with this arises its authority to legislate even on
supplementary and additional matters. Therefore, for the application of this principle, the
contravention by the legislature of its constitutional authority should be ancillary, hidden, or
masked and not too direct, obvious, or apparent.

So, clearly, not all acts of the legislation shall be subject to the applicability of the doctrine of
colourable legislation, there are limitations to its applicability as follows:

1. It is inapplicable in cases where the authority of the legislature is not fettered by

the constitutional provisions.
2. It does not apply to cases of subordinate legislation.
3. The intention of the legislature while determining an enactment is not relevant to
determining its validity.
4. There shall always be a presumption of constitutional validity in favor of the
enactment.

Q.12) Territorial nexus.

Ans: Under article 245 of the Indian constitution, it has been stated that:
1. Parliament has jurisdiction to make laws for extraterritorial operations or laws for
the whole or any part of the country.
2. The state legislature has the jurisdiction to make laws for the whole or any part of
the state.

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

Territorial Nexus and the State Legislature

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

Now a question on whether a law falls under the ambit of the state legislature enacting it.
The state legislature is empowered to make laws for its own purpose. The doctrine of
territorial nexus is only applicable when the following conditions are fulfilled. Those
conditions are as follows:

1. The nexus must be legitimate.

2. The liability shall be related to the territorial connection.
3.
Territorial nexus in Indian Legislation:
As it has been stated before in this article that Article 245 of the Indian constitution states
the extent to which the legislative powers are conferred in parliament and the state
legislature in order to make laws with respect to the territory. Parliament has the power to
make laws for the for which it has the jurisdiction. The jurisdiction of parliament extends to
the whole or any part of India. They can also be enacted by the parliament for extraterritorial
operations if there is sufficient nexus of the law with India. These laws cannot be questioned
or held invalidated. However, all the laws must comply with the provisions of the Indian
constitution.

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

The following circumstances are required in order to invoke the jurisdiction of territorial
nexus-
 If there exist extraterritorial operations in a state
 If there is legitimate nexus between the object and the state. It should be clear
that the object shall be situated outside the territorial limits of the state but it must
have a territorial connection with the state.

Q.13) Legislative Privileges under Indian Constitution.

Ans: Article 105 and Article 194 grant privileges or advantages to the members of the
parliament so that they can perform their duties or can function properly without any
hindrances. Such privileges are granted as they are needed for democratic functioning.
These powers, privileges and immunities should be defined by the law from time-to-time.
These privileges are considered as special provisions and have an overriding effect in
conflict.

Freedom of speech and publication under parliamentary authority

This is defined under Article 105(1) and clause (2). It gives the members of parliament
freedom of speech under clause (1) and provides under Article 105(2) that no member of
parliament will be liable in any proceedings before any Court for anything said or any vote
given by him in the Parliament or any committee thereof. Also, no person will be held liable
for any publication of any report, paper, votes or proceedings if the publication is made by
the parliament or any authority under it.

The same provisions are stated under Article 194, in that members of the legislature of a
state is referred instead of members of parliament.
Internal independence/autonomy
For the effective working of both the houses of parliament and their members, internal
independence should exist without the interference of any outside party or person. The
houses can deal with their respective issues internally without any interference of the
statutory authority.

The Indian Judiciary might not interfere with the proceedings or issues dealt in the
parliament or by the members in the course of their business. Nevertheless, it may interfere
in the proceedings if it is found to be illegal or unconstitutional.

Freedom from being arrested

The member of parliament cannot be arrested 40 days before and 40 days after the session
of the house. If in any case a member of Parliament is arrested within this period, the
concerned person should be released in order to attend the session freely.

Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening any
of the members. The strangers may attempt to interrupt the sessions.

Right to prohibit the publication of its reporters and proceedings

The right has been granted to remove or delete any part of the proceedings took place in the
house.

Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right to
call for the session of the Legislative assembly. But it does not have any authority in
interrupting the proceedings by directing the speaker of the assembly.

Right to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or maybe
non-members commit contempt or breach any of the privileges given to him/her, the houses
may punish the person.
The houses have the right to punish any person for any contempt made against the houses
in the present or in the past.
Where on the other hand the members of parliament have been granted powers, privileges
etc. their powers or privileges are absolute unlike fundamental rights for the citizens.

The Parliament enjoys mostly all the supreme powers while making laws and exercise its
power to the best possible extent because of the absolute nature of its powers and
privileges.

The powers of the legislators are too wide such as they decide their own privileges, include
points which can breach the laid down privileges, and also decide the punishment for that
breach.

Article 105(3) and Article 194(3) states that the parliament should from time to time define
the laws or pass the laws on the powers, privileges and immunities of the members of the
parliament and members of the legislative assembly.

After analysing Article 105 and 194, one can clearly infer their absoluteness. These special
provisions are granted to the Parliament for its effective functioning. These articles also
impose duties upon them to make effective laws which do not harm the rights of others. The
parliament or the Legislative Assembly though can exercise their powers, privileges and
immunities, cannot act as an ordinary Court of justice.