HAPUR ROAD, BHO JPUR, G HA Z I A BA D (DELHI NCR)

STUDY MATERIAL
LLB-II SEMESTER
Questions to be done
1. Salient features of Indian constitution(Basic structure )
2. Relations between Centre and state
3. Writs and article 32 and article 226
4. Procedure of passing money bill
5. Independent judiciary and its relevance
6. Amendment in constitution
7. Powers of President and its Impeachment process
8. Safeguards to civil servants
9. Powers of Supreme court
10. Doctrine of Separation of powers
11. Appointment powers and qualification of Attorney General of India
12. Doctrine of collective responsibility
13. Difference between Tax and fee
14. Delegated legislation
15. PIL
16. Consolidated fund of India
17. Power and functions of election commission
18. Some important Doctrines

Page No 1
The Constitution of India is the supreme legal and living document which consists of
fundamental principles, procedures, practices, rights, responsibilities, powers, and duties of
the state. It was drafted by the 389 members being a part of the Constituent Assembly, and
Dr. BR Ambedkar being the head of the constitution drafting committee.

It took roughly about 2 years and 11 months and 17 days, to complete the duty of drafting the
constitution of India, which was finally completed on 26th November 1949, celebrated as the
Constitution Day. On 26 January 1950, constitution was adopted, replacing the Government
of India act 1935, which is celebrated as the Republic Day of India.

Salient Features are as follows:

 Modern constitution:

The constitution makers made it the world's richest document which consisted of human
knowledge, intellect, inheritance and civilizations that is best suited to the social,
economic, political, and cultural situations of the country. Nevertheless, it will be wrong
to say that the Indian constitution is a carbon copy of constitutions of countries in the
world, since it has taken several significant principles, procedures and provisions of the
other countries but at the end it came out with its own ability to choose, new directions,
methods, principles, and constantly aiming at new constitutional innovations.

 Written constitution:

When the Indian constitution was adopted in 1949 originally, it consisted of 395 Articles,
divided into 22 parts and 9 schedules. Today after 103 amendments, it consists of 495
Articles, categorized into 22 parts and 12 schedules, which is longest written constitution
in the world and is designated as an 'elephant size' living constitution.

 Secular state:

In 1976, the term Secular was made a part of the constitution, by introducing the 42nd
amendment. The union does not give any superior status to any particular religion, in the
country. Aiming at all the religions should enjoy equivalent status, acceptance and
respect, there is a definite right to freedom of religion, with no discrimination of any kind,
ensuring the prohibition of formation of a theocratic state. Every person in the country
has an equivalent right and freedom to practice, profess, propagate any religion of their
choice with equal protection, respect and support from the state.

 Welfare state:

It is a system of government in which the state has a responsibility to defend and promote
the economic and social wealth of its citizens, based upon such principles of equal
opportunities, distribution of wealth, and owing responsibilities towards the citizens who

Page No 2
are unable to avail these services for leading a decent life. This concept of welfare state is
further supported by the Directive principles of the State policy, which provides the
economic, political, social, cultural goals for the state, putting compulsion on the state, to
accomplish its maximum social well-being for every citizen.

 Preamble:

As an essential part of constitution, which does not give any special power to the
constitution but it gives a route and a motive for the constitution to exist. Outlines the
purposes of the constitution it asserts India to be a Sovereign, Socialist, Secular,
Democratic, and Republic in nature. Apart from this, it also highlights other important
provisions for its citizens like: Justice (Social, Economic and Political); Liberty of
thought, expression, belief, faith and worship; Equality and Fraternity (Unity and
Integrity of Nation).

 Socialist state:

The term 'Socialism' was included in the Preamble with the 1976 amendment, which is
now observed as one of the key features of the State. It imitates how the opinions of
India, for ending all forms of exploitation, discriminations and inequalities, hence is
dedicated towards bringing social and economic well-being for the citizens. India has
always highlighted the concept of mixed economy, wherein both the public and private
sectors have their independent roles to play. The court is also well known about the
importance of democratic socialism, aiming to, eliminate inequalities of all kinds and
safeguarding a decent standard of life for all citizens.

 Responsible government:

The Preamble provides us with a democratic and Parliamentary form of governance,

wherein the central and state tiers of government look after all the duties, regulated by the
system of checks and balances. The President being the nominal head of the country, is
nominated by both houses of the Parliament, with elected members of State Assembly. In
such a form of government, the Prime Minister being the head of council of Ministers is
accountable to look after the actions of his government.

 Fundamental rights:

The fundamental Rights are assured by the constitution, under Part III of the constitution
laid down from Articles 12 to 35. These include Right to Equality, The Right to freedom,
Freedom of religion, Rights against Exploitation, Educational and Cultural right and right
to constitutional Remedies. These are essential rights, as a result of which no law, rule,
order, or any amendments can interfere or take away these rights, otherwise they will be
declared as unconstitutional. Where the people can also approach the court of laws if their
rights are violated for its enforcement.

Page No 3
 Minorities and Backward classes:

There are multiple castes, classes, religions, languages, cultures, which exist in the Indian
society, consisting of people from different sections, which are reasonably weaker than
others in various spheres of life. So, in order to encourage a sense of security, safety and
pleasure amongst the minorities, and for improving the living conditions of the backward
classes by submerging them into the society equally, the constitution provides various
liberal schemes and provisions for reservations.

 Elections:

India has adopted the concept of adult suffrage, according to which every citizen,
attaining the age of 18 years has a right to vote, which is not subjected to any kind of
discrimination. According to this concept, the citizens do not need any necessary
education qualification for voting, and even a large chunk of the population can vote,
where they may not be educated but still, they may have a basic knowledge about their
needs and requirements, and so they can select their representatives wisely.

 Supreme Judiciary:

The constitution has kept Judiciary independent from the legislature and executive.
Judges are free of any kind of intrusion, by other organs of the government, so that the
judges can give their decisions independently without fear, favor. The concept of
separation of power maintains this independence, it also has the power of judicial review,
which provides the power to the courts to state any law, rule or order passed by the
legislature and any performance of executive as void, if found contradictory to any
provision of the constitution. The judiciary has many other tasks like, supervising
governmental processes, acting as a wheel of balance for federalism, therefore,
highlighting the supremacy of the Judiciary.

 Federal constitution:

Since, India has a federal type of constitution, establishing dual polity, having two-tiers
government. All the powers, functions, and duties of the government are divided amongst
central and state level, without interfering in others functioning. The schedule 7, and
Article 246 of the constitution talks about three lists, The Union, State and Concurrent
list, which specifying the various matters on which the laws are to be made. India's
federalism is a unique blend of simplicity and complexity, having the concept of single
citizenship, and becoming a part of the basic structure as well.

Page No 4
 Conclusion
The constitution is the pride of our country, where it not only deals with the
organizations, functions, responsibilities, structures, authorities of the Central government
but also, signifies of the state. It is also focused at maintaining the relationship of the
central and state government when their views are contrary. Due to lack of
homogeneousness, there are many communities, castes, cultures, religions, languages and
classes, which are guaranteed with equal protection and impartial access to justice.

The Fundamental rights not only guarantee equality to all but also prohibit discrimination
of all kinds, and on the other hand, the Directive principles of state policies, create an
environment for social welfare and aim at establishing an egalitarian society.

The Doctrine of Basic Structure was propounded by the Indian Judiciary on 24th April 1973
in the Keshavananda Bharati case to put a limitation on the amending powers of the
Parliament so that the „Basic Structure of the Constitution‟ cannot be amended in the exercise
of its „constituent power‟ under Article 368 of the Indian constitution.

 It is a judicial creation whereby certain features of the constitution of India are beyond
the limits of amending powers of parliament of the constitution.

 The word "Basic Structure" is not mentioned in the constitution but was recognized
for the first time in the Keshavananda Bharati case of 1973.

What is the Genesis of the Doctrine of Basic Structure?

The Supreme Court, since independence, has time and again reformed and revised its
stance on parliament's power to amend the constitution.

The evolution of the Basic Structure doctrine can be traced from the issue of the right to
property and the first Constitutional Amendment Act of 1951.

 Shankari Prasad vs. Union of India (1951):

o The Supreme Court held that the Parliament, under Article 368, has the power
to amend any part of the constitution, including fundamental rights.

 Sajjan Singh vs. State of Rajasthan (1965):

o The Supreme Court agreed with its judgment in the Shankari Prasad case 1951
and held that under Article 368, Parliament could amend any part of the
constitution.

o However, the concurring opinion by Justice Hidyatullah and Justice

Mudholkar raised doubts over the unrestricted power of the Parliament to
amend the Constitution and limit the fundamental rights of citizens.

 Golak Nath vs. State Of Punjab Case (1967):

Page No 5
 o In the Golaknath case (1967), the Supreme Court overturned Shankari Prasad
judgment and ruled that Article 368 only lays down the procedure to amend
the constitution and does not give absolute powers to the Parliament to amend
any part of the constitution.

 24th Constitution Amendment Act (1971):

o To surpass the Golaknath judgment constraints, the government enacted the

24th Amendment act, which introduced a provision to Article 368 of the
Constitution, which stated that the Parliament has the power to take away any
of the fundamental rights.

o It also made it obligatory for the President to give his assent on all the
Constitution Amendment bills sent to him.

 Keshavananda Bharati vs. State of Kerala (1973):

o The Supreme Court, in this case, upheld the validity of the 24th Constitution
Amendment Act by reviewing its decision in the Golaknath case.

o However, the Supreme Court held that the Parliament has the power to amend
any provision of the constitution, but in doing so, the Basic Structure of the
constitution is to be maintained.

o The Court propounded what has come to be known as the “Basic Structure of
the Constitution”.

o Thus, this landmark judgment meant that every provision of the Constitution
could be amended, but these amendments can be subjected to judicial review
to ascertain that the Basic Structure of the Constitution remains intact.

 42nd Amendment Act (1976):

o The government in 1976 enacted the 42nd Amendment Act that declared no
limitation to the constituent power of Parliament under article 368.

o The amendment, also called the "Mini-constitution" for introducing wide-

ranging constitutional changes, barred the courts from questioning
constitutional amendments.

 Minerva Mills vs. Union of India (1980):

o In this case, the Supreme Court invalidated provisions of the 42nd

CAA(citizenship amendment act) and ruled that the Parliament cannot take
away the power of „judicial review‟ as it is a part of the „Basic Structure‟.

Page No 6
 Waman Rao vs. Union of India (1981):

o Also known as the „Doctrine of Prospective Overruling‟, the court decided that
all the laws placed under Ninth Schedule before the Keshavananda judgment
cannot be called into question for violating Fundamental Rights. However, the
laws post the judgment can be raised before a court of law.

o The Supreme Court again reiterated the Basic Structure doctrine in this case.

 Indra Sawhney & Others vs. Union of India(1992):

o Also known as the Mandal case, the Supreme Court declared the Rule of
Law as a Basic Structure of the constitution.

Page No 7
Centre State Relations
 Centre State relations constitute the core of federalism in India and play a vital role in
the political sphere of India.

 Centre State Relations are of the following three types:

o Legislative Relations contained in Chapter I of Part XI of the Constitution of

India, 1950 (COI).

o Administrative Relations contained in Chapter II of Part XI of the COI.

o Financial Relations contained in Part XII of the COI.

Legislative Relations

 Articles 245 to 255 of the COI deal with the legislative relation between the Centre
and the States.

 There are four aspects of the legislative relationships between the Centre and the
States which are as follows:

o Territorial extent of Central and State legislation

o Distribution of legislative subjects

o Parliamentary legislation in the state field

o Centre‟s control over State legislation

Territorial Extent of Central and State Legislation

 The ability to pass legislation that covers all or a portion of India‟s territory belongs to
the Parliament.

 Laws can be passed by the State legislature that is applicable to the entire State or
only a portion of it. Unless there is a sufficient connection between the State and the
object, State laws are not applicable outside of the State.

 The only body with the power to pass extraterritorial legislation is Parliament.

Distribution of Legislative Subjects

 The Union List, State List, and Concurrent List are the three divisions established by
the COI.

 Parliament is the exclusive authority when it comes to the Union list.

Page No 8
 In most cases, the State legislature alone has the power to pass legislation pertaining
to the things on the State list.

 The State and Central governments can both pass laws on the subjects mentioned in
the Concurrent list.

Parliamentary Legislation in the State Field

 When Rajya Sabha approves a resolution with the support of two-thirds of the
members present and voting, it will provide Parliament with the authority to enact
legislation on a state list issue that is best for the nation.

 When a declaration of a National emergency is in force the Parliament may pass laws
on any matter covered by the state list.

 When the President‟s Rule is imposed in a state, the Parliament becomes empowered
to make laws with respect to any matter in the State List.

 To implement International Agreements, the parliament can make laws on any matter
in the state list for implementing International Treaties, agreements and conventions.

Centre‟s Control over State Legislation

 Specific laws established by the State legislature may be set aside by the governor for
presidential consideration. They are entirely under the President‟s power.

 Bills on specified subjects listed in the State list can only be filed in the State
legislature with the President‟s prior consent. For instance, interstate trade and
commerce.

 The President may ask a state to lay aside money bills and other financial bills for his
consideration in the case of a financial emergency.

Administrative Relations

 Articles 256 to 263 of the COI deal with the administrative relation between the
Centre and States.

Distribution of Executive Powers

 The Centre‟s power encompasses the entire nation when it comes to matters over
which it has exclusive jurisdiction (union list), as well as when it exercises any rights,
jurisdiction, or authority granted to it by a treaty or agreement.

 The subjects listed in the State list fall under the State‟s purview.

 The States have the executive authority in matters involving the concurrent list.

 The State‟s executive branch must act in a way that ensures the laws established by
Parliament are upheld.

Page No 9
The Obligation of States and the Centre

 The COI has placed two restrictions on the executive power of the states in order to
give ample scope to the centre for exercising its executive power in an unrestricted
manner.

o The State‟s executive branch must act in a way that ensures

the laws established by Parliament are upheld.

o As not to prejudice the executive power of the Centre in the State.

 In both cases, the executive power of the Centre extends to giving such directions to
the state as are necessary for the purpose.

 The sanction behind these directions of the Centre is coercive in nature.

Matters where the Centre can

direct the State

 Construction and maintenance of communication systems deemed to be of national or

military importance by the government.

 Actions to be taken to guarantee the State‟s railways are safe.

 Provision of enough resources for students from linguistic minority groups to receive
elementary school instruction in their home tongue.

 The creation and execution of specific initiatives for the ST‟s welfare in the various
states.

Integrated Judicial System

 Despite its dual polity, India has built an integrated judicial system.

 This unified judicial system is in charge of enforcing both Central and State laws.

Financial Relations

Articles 268 to 293 of COI deal with the Financial Relations between the Centre and the
States.

Allocation of Taxing Power

 Taxation of the subjects on the Union list is the sole responsibility of Parliament.

 Taxation on the things included in the State list may only be done by the State
legislature.

 The items on the concurrent list are subject to taxation by both the State and the
Union.

Page No 10
 The residuary power to tax belongs to the Parliament.

Restriction Placed by the COI on Taxation Power of the State

 A State legislature can impose taxes on profession, trades, callings and employments.

 A State can impose taxes on the sale or purchase of goods (other than newspapers).
But this power of state to impose sales tax is subjected to the following restrictions:

o No tax can be imposed on the sale or purchase of things taking place:

 outside the states

 in the course of import or export; or

 in the course of inter-state trade and commerce.

o No tax can be imposed on the sale or purchase. A tax imposed on the sale or
purchase of goods declared by Parliament to be of special importance in inter-
state trade and commerce is subject to the restrictions and conditions specified
by Parliament.

o The State cannot impose a tax on the sale of electricity when it is consumed by
the centre or sold to the centre, consumed in the construction, maintenance or
operation of any railway by the centre or sold to the railway company for the
same purpose.

o The State can impose tax on the sale of water or electricity sold to an authority
established by Parliament for regulating or developing an Inter-state river.
However, such imposition can be undertaken through a law which
has received the assent of the President.

Distribution of Tax Revenues

 Article 268: Taxes levied by the Centre, but they are collected and used by the State.
E.g. Stamp Duties.

 Article 269: Taxes are levied and collected by the Centre but assigned to the States.
E.g. Taxes on the sale or purchase of goods.

 Article 270: Taxes are levied and collected by the Centre but distributed between the
Centre and the States. This category includes all taxes except those mentioned above,
surcharges and cess. E.g. Taxes on Income.

Distribution of Non-Tax Revenues

 The receipts from the following form the major sources of non-tax revenues of the
Centre:

o Posts and telegraphs

Page No 11
 o Railways

o Banking

o Broadcasting

o Coinage and currency

o Central public sector enterprise

o Escheat and lapse

 The receipts from the following form the major sources of non-tax revenues of the
States:

o Irrigation

o Forests

o Fisheries

o State public sector enterprise and

o Escheat and lapse

Grants-in-Aid to the States

The COI provides grants-in-aid to the State from the Central resources. Following are the
two types of grants-in-aid:

 Statutory Grants:

o Article 275 of the COI empowers the Parliament to make grants to the States
which are in need of financial assistance and not to every State.

o These sums can be different for different States. These sums are charged on
the Consolidated Fund of India every year.

o These are given to the states based on the recommendation of the Finance
Commission.

 Discretionary Grants:

o Article 282 of the COI empowers both the Centre and the States to make
any grants for any public purpose, even if it is not within their legislative
competence.

o The Centre is under no obligation to give these grants and the matter lies
within its discretion.

Page No 12
Article 32 and Article 226
Judiciary plays a very important role in a democracy as it not only prevents the government
authorities from using their powers arbitrarily but it also safeguards the rights of the citizens
and the very Constitution of India. Thus, The Constitution of India envisages a strong,
independent, and well-organised judiciary.

Article 32 and 226 empowers the Supreme Court and the High Courts respectively, with the
power to initiate an action against a government body in case of violation of rights and
liberties of the citizen. This article describes the writ power that the Supreme Court and High
Courts have under Article 32 and 226 and how these articles are different from each other.

Article 32

Referred to as the „heart and soul of the constitution‟ by Dr Bhim Rao Ambedkar, Article 32
is a fundamental right envisaged under Part III of the Constitution of India. It is a „right to
constitutional remedies‟ which provides a right to protect other fundamental rights from
violation. In other words, if any fundamental right is violated by the government, then Article
32 empowers the person whose fundamental right has been violated to approach the Supreme
Court for the enforcement of his/her fundamental rights.

Article 32(1) confers the right to approach the Supreme Court for claiming or enforcing the
fundamental rights provided under Part III of the Constitution of India.

Article 32(2) confers power to the Supreme Court to issue directions, orders, or writs, namely
Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto for enforcing those
fundamental rights.

Article 32(3) empowers the parliament to confer the power to issue orders, directions, and
writs to any other court within the local jurisdictional limits of India.

Article 32(4) states that unless provided by the constitution, the right to constitutional remedy
conferred under this Article cannot be suspended.

Important Judgements

Article 32: A basic structure

In the case of Fertilizer Corporation Kamgar (Union) v. Union of India, it was held that the
power conferred to the Supreme Court under Article 32 is an integral part of the constitution
and thus, belongs to the basic structure of the Constitution of India.

Applicability of Article 32

In the case of Ramdas Athawale v. Union of India, it was held that Article 32 is applicable in
cases where there is a question of enforcement of fundamental rights. If the question of
enforcement of fundamental rights does not arise then Article 32 will not be applicable.

Page No 13
Scope of Article 32

As held in the case of Nain Sukh Das v. State of Uttar Pradesh, the scope of Article 32 is
quite narrow as it can be enforced only in cases of violation of fundamental rights conferred
under Part III of the constitution.

Enforceability against private individuals

As per the decision of the apex court in the case of PUDR v. Union of India, Article 32 is
enforceable against private individuals as well.

Article 226

Enshrined under Part V of the Constitution of India, Article 226 confers power to the High
Courts to issue orders, directions, and writs in the nature of Habeas corpus, Mandamus,
Certiorari, Prohibition, and Quo Warranto.

As per Article 226(1), every High Court within the territory of India has the power to issue
orders, directions, and writs to any individual or authority including the Government for the
enforcement of fundamental rights as well as other legal rights under its own local
jurisdiction.

Article 226(2) confers the power to the High Courts to issue orders, directions, and writs
outside their own local jurisdiction in the cases where the cause of actions lies wholly or in
part within their local jurisdiction.

Article 226(3) states that when an interim order has been passed under Article 226 by way of
injunction or stay against the respondent without:

1. i) providing the copy of the petition and evidential document to the respondent;

2. ii) giving an opportunity of being heard.

then, if the respondent moves to the High Court to cancel the interim order and provides a
copy of such petition to the petitioner, then, the High Court shall decide the application
within a period of two weeks of receiving such application or within the period of two weeks
from the date on which the other party received such application, whichever is later.

As per Article 226(4), the power conferred to the High Courts under Article 226 is not in
derogation to the powers conferred to the Supreme Court under Article 32(2).

Scope of Article 226

As held in the case of Bandhua Mukti Morcha v. Union of India, the scope of Article 226 is
much wider than Article 32 as it confers power to the High Courts to issue orders, directions,
and writs not only for the enforcement of fundamental rights but also for the enforcement of
legal rights which are conferred to the disadvantaged by way of certain statutes and are as
important as the fundamental rights.

Page No 14
Writs
As defined under Article 32 and Article 226, there are 5 writs, namely Habeas Corpus,
Mandamus, Certiorari, Prohibition, and Quo warranto.

Habeas Corpus

Habeas Corpus is a Latin term which means “produce the body”. It is a writ that is issued for
releasing an illegally detained person. It is issued to an individual or an authority to bring the
person who has been illegally detained before the court. This is done to know the grounds for
detention. The court decides the validity of the detention and in case of no legal justification
of detention, the person so detained is set free.

Article 22 of the Constitution of India mandates it for the police to present a detained person
before the magistrate within 24 hours of his arrest (excluding the travelling time), failure of
which would lead to the release of the detained person.

Important Judgements

1. ADM Jabalpur v. Shivakant Shukla

This case is also known as the „Habeas Corpus case‟. It is a landmark judgement
in which it was held that writ of Habeas Corpus cannot be suspended even at the
time of an emergency.

2. Sheela Barse v. State of Maharashtra

In this case, the court held that if any detained person is incapable of praying for
the writ of habeas corpus for himself, then somebody else may pray for the same
on his behalf. The court further emphasized upon the importance of legal
assistance and how legal aid to a poor person who is jailed is not only a mandatory
provision under Article 39A but also under Article 14 and 21 of the Constitution
of India.

3. Kanu Sanyal v. District Magistrate

In this case, the Supreme Court of India held that the court may decide upon the
legality of detention without having the detained person produced before it. The
court emphasized that the focus must be on the legality of the detention which
should be determined by looking into the facts and circumstances of the case. The
court further stated that the writ of habeas corpus is a procedural writ and not a
substantive writ.

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Mandamus

Mandamus is a Latin term which means “we command”. The writ of mandamus is issued by
a higher court to an inferior court or any public authority, commanding it to perform an
official duty imposed by the law. This writ is used to compel a public authority to discharge
its legal obligations and perform its legal duty effectively and efficiently.

Grounds for issuing a writ of mandamus

Writ of Mandamus can be issued against any public authority in certain cases:

1. misuse of discretionary power;

2. exceeding its scope of power;

3. ignoring relevant factors;

4. deciding on irrelevant factors;

5. acting with mala fide intentions.

Circumstances where the writ of mandamus cannot be issued:

1. Private body entrusted with public duty;

2. When the duty is discretionary in nature; and

3. When the duty arises out of a contract.

Important Judgements

1. Barada Kanta v. State of West Bengal

In this case, the court held that the writ of mandamus cannot be issued against any
private individual because the main essence of the writ of mandamus is to compel
the authority to perform its public duty and private individuals are not entrusted
with public duty.

2. Hemendra Nath Pathak v. Gauhati University

In this case, the petitioner prayed for a writ of mandamus against the university
where he studied because the university failed the petitioner even after he scored
passing marks which were required as per the statutory rules of the university. The
writ of mandamus was issued and the university was directed to declare him pass
as per the university rules.

Certiorari

Certiorari means “to be certified”. Writ of certiorari is issued by the higher court
to an inferior court to quash any wrongful order. This writ is both curative as well
as preventive.

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 Grounds for Certiorari

Writ of certiorari can be issued by the Supreme Court and High Court against any
inferior court, tribunal, or quasi-judicial body on certain grounds:

1. exceeding the jurisdictional limit;

2. violating the principle of natural justice;

3. passing a wrongful order or judgement;

4. overlooking the procedure established by law.

Important Judgements

1. T. C. Basappa v. T. Nagappa & Anr.

In this case, it was held that writ of certiorari may be issued when a court has
either acted without its jurisdiction or has acted beyond its jurisdiction. The court
also laid down the parameters for deciding the question of exercise of jurisdiction.

2. Surya Dev Rai v. Ram Chander Rai & Anr.

In this case, the apex court held that writ of certiorari can be issued against an
inferior court only and not against any higher court or court of the same hierarchy.

Prohibition

Writ of prohibition is issued by a higher court to a lower court, or a tribunal or a quasi-

judicial body to stop it from proceeding in a case because it either does not have jurisdiction
or it exceeds the jurisdiction in deciding the case. It is important to note that writ of
prohibition is issued against a judicial body only, and not against a legislative or an
administrative body.

Difference between Certiorari and Prohibition

 Writ of certiorari is issued to quash an order wrongfully passed by an inferior court

whereas writ of prohibition is issued to stop the court from proceeding in the case.

 Writ of prohibition is issued while the proceedings are pending whereas writ of
certiorari is issued when an order is passed.

Important Judgement

1. East India Company Commercial Ltd. v. Collector of Customs

In this case, the Supreme Court emphasized on the meaning of writ of prohibition
and stated that it is an order passed by a higher court directing a lower/inferior
court to stop the proceedings on the grounds that the court either does not have a
jurisdiction or the court is exceeding its jurisdiction in deciding the case.

Page No 17
 Quo Warranto

Writ of quo warranto means “by what authority”. This type of writ is issued by the
court against a person holding a public office over which he has no authority.

Conditions for quo warranto

1. The office needs to be a public office created by a statute;

2. A private person should have occupied the office wrongfully;

3. The office must have a public duty to perform;

4. The person must be using the office.

Writ of quo warranto can also be issued against a person who was initially
qualified to occupy the office, and later on became disqualified but still holds the
office.

Important Judgement

1. Jamalpur Arya Samaj v. Dr. D Ram & Ors.

In this case, the Patna High Court held that writ of quo warranto can be issued
against a person holding a public office wrongfully only. It is not applicable in the
case of a private office. The decision was so given when a petition was filed
praying for a writ of quo warranto against the working committee of a private
body, Bihar Raj Arya Samaj Pratinidhi Sabha. The Court denied issuing the writ.

Major Difference between Article 32 and Article 226

Basis of
Article 32 Article 226
difference

Article 32 is a fundamental Article 226 is a constitutional

Right
right. right.

Article 32 can be suspended

Article 226 cannot be suspended
Suspension if an emergency has been
even at the time of emergency.
declared by the President.

Article 32 has a narrow scope Article 226 has a broader scope as

as it is applicable only in case it is applicable not only in the case
Scope
of violation of a fundamental of violation of a fundamental right
right. but also of a legal right.

Page No 18
 Article 226 empowers the High
Article 32 empowers the
Court to issue a writ in its own
Supreme Court to issue writ
local jurisdiction only. Therefore,
Jurisdiction all over India. Therefore, the
High Courts have narrower
Supreme Court has broader
territorial jurisdiction as compared
territorial jurisdiction.
to the Supreme Court.

Since, Article 32 is a Article 226 confers Discretionary

fundamental right, the same power to the High Court which
Discretion
cannot be refused by the means it is at the discretion of the
Supreme Court. High Court to issue a writ or not.

Conclusion

With the same power of enforcing fundamental rights, Article 226 has a much broader scope
than Article 32 because it can also be used to enforce other legal rights conferred by the
Constitution or any other statute.

However, it is Article 32 which is known as the heart and soul of the Constitution and for the
fact that it is a fundamental right in itself cannot be refused. Whereas, Article 226 being a
constitutional right gives discretionary power to the High Courts. Further, it is the decision of
the Supreme Court under Article 32 which supersedes the decision of High Courts under
Article 226. Thus, with the difference in powers both articles ensure that the rights of the
citizens are protected and provisions of the constitution are upheld.

Page No 19
Independence of the judiciary
The independence of the judiciary shall be guaranteed by the State and enshrined in the
Constitution or the law of the country. It is the duty of all governmental and other institutions
to respect and observe the independence of the judiciary. The judiciary shall decide matters
before them impartially, on the basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.

The judiciary shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is within its
competence as defined by law.

There shall not be any inappropriate or unwarranted interference with the judicial process,
nor shall judicial decisions by the courts be subject to revision. This principle is without
prejudice to judicial review or to mitigation or commutation by competent authorities of
sentences imposed by the judiciary, in accordance with the law.

Everyone shall have the right to be tried by ordinary courts or tribunals using established
legal procedures. Tribunals that do not use the duly established procedures of the legal
process shall not be created to displace the jurisdiction belonging to the ordinary courts or
judicial tribunals. The principle of the independence of the judiciary entitles and requires the
judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the
parties are respected. It is the duty of each Member State to provide adequate resources to
enable the judiciary to properly perform its functions.

Freedom of expression and association

In accordance with the Universal Declaration of Human Rights, members of the judiciary are
like other citizens entitled to freedom of expression, belief, association and assembly;
provided, however, that in exercising such rights, judges shall always conduct themselves in
such a manner as to preserve the dignity of their office and the impartiality and independence
of the judiciary.

Judges shall be free to form and join associations of judges or other organizations to represent
their interests, to promote their professional training and to protect their judicial
independence.

Qualifications, selection and training

Persons selected for judicial office shall be individuals of integrity and ability with
appropriate training or qualifications in law. Any method of judicial selection shall safeguard
against judicial appointments for improper motives. In the selection of judges, there shall be
no discrimination against a person on the grounds of race, colour, sex, religion, political or

Page No 20
other opinion, national or social origin, property, birth or status, except that a requirement,
that a candidate for judicial office must be a national of the country concerned, shall not be
considered discriminatory.

Conditions of service and tenure

The term of office of judges, their independence, security, adequate remuneration, conditions
of service, pensions and the age of retirement shall be adequately secured by law. Judges,
whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age
or the expiry of their term of office, where such exists.

Promotion of judges, wherever such a system exists, should be based on objective factors, in
particular ability, integrity and experience. The assignment of cases to judges within the court
to which they belong is an internal matter of judicial administration.

Professional secrecy and immunity

The judiciary shall be bound by professional secrecy with regard to their deliberations and to
confidential information acquired in the course of their duties other than in public
proceedings, and shall not be compelled to testify on such matters. Without prejudice to any
disciplinary procedure or to any right of appeal or to compensation from the State, in
accordance with national law, judges should enjoy personal immunity from civil suits for
monetary damages for improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

A charge or complaint made against a judge in his/her judicial and professional capacity
shall be processed expeditiously and fairly under an appropriate procedure. The judge shall
have the right to a fair hearing. The examination of the matter at its initial stage shall be kept
confidential, unless otherwise requested by the judge.

Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour
that renders them unfit to discharge their duties. All disciplinary, suspension or removal
proceedings shall be determined in accordance with established standards of judicial conduct.

Decisions in disciplinary, suspension or removal proceedings should be subject to an

independent review. This principle may not apply to the decisions of the highest court and
those of the legislature in impeachment or similar proceedings.

Page No 21
Amendment of the Constitution: Meaning, Types, Procedure & Limitations

Meaning of the Amendment of the Constitution

The Amendment of the Constitution refers to the process of making changes such as
the addition, variation, or repeal of any provision of the Constitution in accordance with the
procedure laid down for the purpose. The purpose of Constitutional Amendments is to ensure
that the Constitution remains a living document capable of adapting to changing
circumstances while upholding its fundamental principles and values.

Provisions of Amendment of Indian Constitution

The Indian Constitution, being a living document, provides for its amendment. The detailed
provisions regarding the Amendment of the Constitution of India are contained in Article 368
in Part XX of the Indian Constitution. These provisions define the process and scope of
amending the Constitution.

Various aspects of the Amendment of the Constitution of India are dealt with in detail in the
sections that follow.

Procedure for Amendment to the Indian Constitution

 The procedure for the Amendment of the Constitution of India as per Article 368
is as follows:
o A bill for the amendment of the Constitution can be introduced only in
either house of the Parliament, not in the State Legislatures.
o The bill can be introduced either by a minister or by a private
member and does not require prior permission of the President.
o The bill must be passed in each House by a Special Majority, that is, a
majority (more than 50 percent) of the total membership of the House
and a majority of two-thirds of the members of the House present and
voting.
o Each House must pass the bill separately. In case of a disagreement
between the two Houses, there is no provision for holding a joint
sitting of the two Houses for deliberation and passage of the bill.
o If the bill seeks to amend the federal provisions of the Constitution, it
must also be ratified by the legislatures of half of the states by a Simple
Majority, that is, a majority of the members of the House present and
voting.

Page No 22
 o After duly passed by both Houses of Parliament and ratified by the
State Legislatures, where necessary, the bill is presented to the
President for his/her assent.
o The President must give his assent to the bill. He can neither withhold
his assent to the bill nor return the bill for reconsideration by the
Parliament.
o After the President‟s assent, the bill becomes an Act (i.e.
a Constitutional Amendment Act), and the Constitution stands amended
as per the changes made by the Act.

Types of Amendments in Indian Constitution

 Article 368 of Indian Constitution provides for two types of amendments:

o By a Special Majority of Parliament (50% of the total membership of
the House + 2/3rd of the members present and voting),
o By a Special Majority of Parliament plus ratification of 1/2 of the states
by a Simple Majority,
 One other type of amendment can be done by a Simple Majority of Parliament.
o However, these amendments are not deemed to be amendments for the
purpose of Article 368.
 Therefore, the Constitution can be amended in three ways:
o Amendment by a simple majority of the Parliament,
o Amendment by a special majority of the Parliament, and
o Amendment by a special majority of the Parliament and the ratification
of half of the State Legislatures.
 The process and scope of each type of amendment are discussed in detail below.

By Simple Majority of Parliament

 Several provisions in the Indian Constitution can be amended by a Simple

Majority i.e. 50 percent of members present and voting.
 It is to be noted that these amendments fall outside the scope of Article 368.
 A few examples of the provisions that can be amended by simple majority are:
o Admission or establishment of new states,

o Formation of new states and alteration of areas, boundaries, or names of

existing states,
o Abolition or creation of Legislative Councils in states, etc.

Page No 23
By Special Majority of Parliament

 The majority of the provisions in the Constitution can be amended only by a

Special Majority (more than 50 percent of the total membership of the -House and
a majority of two-thirds of the members of that House present and voting).
 The provisions that can be amended by Special Majority are:
o Fundamental Rights,

o Directive Principles of State Policy,

o All other provisions that are not covered by the first and third
categories.

By Special Majority of the Parliament and Consent of Half States

 The provisions of the Constitution that are related to the federal structure of the
Indian polity require for their amendment a Special Majority of the
Parliament along with the consent of half of the state legislatures by a Simple
Majority.
 The following points are to be noted w.r.t. these types of amendments:
o It does not require that all the states give their consent to the bill. The
moment half of the states give their consent, the formality is completed
and the bill is passed.
o The constitution has not prescribed any time limit within which the
states should give their consent to the bill.
 A few examples of the provisions that can be amended this way are:
o Election of the President and its manner,

o Extent of the executive power of the Union and the States,

o Provisions related to the Supreme Court and High courts, etc.

Page No 24
Basic Structure of the Constitution
 The Basic Structure of the Indian Constitution refers to a set of core principles
deemed essential, which cannot be destroyed or altered through amendments by
the Parliament. This concept, though not explicitly mentioned in the Constitution,
was established by the Supreme Court in the landmark Kesavananda Bharati case
(1973).
 The Doctrine of Basic Structure is a check on the amending power of the
Parliament and ensures that the fundamental ethos, principles, and the underlying
framework of the Constitution remain intact, preserving its spirit.

Significance of the Constitutional Amendment

The provision for amendment of the Indian Constitution carries multifarious significance as
listed below:

 Adaptability in Governance: The Constitution lays down fundamental principles of

governance. A diverse and constantly evolving country like India cannot be
governed by a set of fixed rules. The amendment of the constitution enables to
bring changes in governance as per needs and situations.
 Accommodating New Rights: With rising awareness, various sections of society
are becoming assertive of their rights. For example, of late, the LGBT community
has been demanding their rights. The amendment enables providing for such
rights.
 Evolution of New Rights: New interpretations of the Constitution led to
the evolution of new rights. For example, a new interpretation of the Right to Life
and Personal Liberty gave rise to the Right to Privacy. The amendment enables
accommodating such rights.
 Addressing Emerging Issues: It enables addressing new emerging trends like bans,
vigilantism, etc.
 Bringing Social Reform: It enables the eradication of outdated socio-cultural
practices to usher in modernity.

Page No 25
Criticism of the Amendment Procedure

The procedure for amendment of the Indian constitution has been criticized on the following
grounds:

 There is no provision for a special body for amending the Constitution such as
the Constitutional Convention or Constitutional Assembly. The constituent power
is vested in the Legislative Body itself i.e. the Parliament and the State
Legislatures (in a few cases).
 There is no provision for a special process for amending the Constitution. Except
for the requirement of Special Majority, the process of amendment is similar to
that of a legislative process.
 The power to initiate an amendment lies only with the Parliament. The states have
no such powers (except for passing a resolution to create or abolish state
legislative councils).
 A major part of the Constitution can be amended by the Parliament alone. Only in
a few cases, the consent of the state legislatures is required, and that too, only half
of them.
 Lack of provision for holding a joint sitting of both Houses of Parliament for
a constitutional amendment bill, sometimes, leads to the situation of a deadlock.
 The provisions relating to the amendment procedure, being too sketchy, leave a
wide scope for creating disputes and taking the matters to the judiciary.
The process of amending the constitution is a crucial aspect of maintaining the relevance and
adaptability of India‟s legal framework to changing societal needs and circumstances. These
constitutional amendments have played a significant role in shaping the country‟s governance
and legal framework. It ensures that the Constitution remains a living document, reflective of
its people‟s aspirations, challenges, and evolving societal values, ensuring its relevance and
efficacy for generations to come.

Page No 26
Important Amendments in the Indian Constitution

Amendments Provisions

1st Amendment It added the Ninth Schedule of the Constitution which includes a list of
Act of 1951 Central and State laws that cannot be challenged in courts.

– Three terms (i.e., socialist, secular, and integrity) were added in the
42nd Amendment
Preamble.
Act of 1976
– It added Fundamental Duties (new Part IVA) in the Constitution.

– It replaced the term „internal disturbance‟ with „armed rebellion‟

44th Amendment which was related to National Emergency (Article 352).
Act of 1978 – It deleted the Right to Property from the Fundamental Rights and
made it a legal right.

61st Amendment
It lowered the voting age from 21 years to 18 years.
Act of 1988

73rd Amendment It introduced the provisions related to Panchayati Raj Institutions,

Act of 1992 aiming to decentralize power to the grassroots level.

74th Amendment It introduced the provisions related to Urban Local Bodies, empowering
Act of 1992 Municipalities and Municipal Corporations.

86th Amendment It added that the State shall provide free and compulsory education to all
Act of 2002 children aged six to fourteen years.

97th Amendment This amendment gave constitutional status and protection to the
Act of 2011 cooperative societies.

It introduced the Goods and Services Tax (GST), a comprehensive

101st Amendment
indirect tax reform aimed at simplifying the tax structure and promoting
Act of 2016
economic integration.

102nd Amendment It gave Constitutional Status to National Commission for the Backward
Act of 2018 Classes.

103rd Amendment
It provides 10% reservation for Economically Weaker Sections (EWS).
Act of 2019

Page No 27
Amendments Provisions

It provides for the reservation of seats in the Lok Sabha and State
104th Amendment
Legislative Assemblies for members of Scheduled Castes and
Act of 2020
Scheduled Tribes till 25th January 2030.

105th Amendment It revived the power of the State Governments to identify Socially and
Act of 2021 Educationally Backward Classes (SEBCs).

It reserves one-third of all seats for women in Lok Sabha, State

106th Amendment
Legislative Assemblies, and the Legislative Assembly of the National
Act of 2023
Capital Territory of Delhi, including those reserved for SCs and STs.

Page No 28
President – Power, Function and Removal
The President of India is one of the most significant and powerful positions in the Indian
government.

 The President is the head of state and the first citizen of India. He holds a ceremonial
role, separate from the day-to-day administration of the government, which is the
responsibility of the Council of Ministers.
 However, the President still plays an important role in shaping the country's
direction and safeguarding the Constitution. The President is also the commander-in-
chief of the Indian Armed Forces.
 The main responsibilities of the President of India include:
o Ensuring the smooth functioning of the government: The President has the
power to appoint and dismiss government officials, including the Prime
Minister, and to summon and prorogue sessions of the Parliament.
o Upholding the Constitution: The President is responsible for ensuring that the
laws and actions of the government are in accordance with the Constitution of
India.
o Representing India: The President represents India at home and abroad and
receives foreign diplomats and dignitaries.
o The President also has a role to play in the legislative process.

Various Powers and Functions of the President of India

To fulfill the role of the President as the head of state, the Constitution of India grants the
President certain powers and functions. These powers and functions are designed to ensure
that the President can effectively serve as the head of the state and oversee the functioning of
the government. The powers and functions of the President of India can be analyzed under
the following categories:

Executive Power of President

The President of India is the formal head of the executive branch of the government, and all
actions taken by the government are carried out in his name.

 He has the power to establish rules for authenticating official documents and
instruments, as well as to streamline the administration of government business and
allocate tasks among ministers. (Article 77)
 He has the authority to appoint the Prime Minister and other ministers, as well as
other key officials such as the Attorney General, the Comptroller and Auditor
General, and State Governors etc. (Article 75)
 He can also request information from the Prime Minister and other ministers. He can
initiate investigations into the conditions of marginalized communities and promote
cooperation between the central government and the states. (Article 78)

Page No 29
  Additionally, he has the authority to appoint administrators for Union
Territories (Article 239) and has the power to declare certain areas as scheduled or
tribal areas (Article 244).

Judicial Powers of the President

The President of India has the power to appoint the Chief Justice and other judges of the
Supreme Court and High Courts.

 He also has the ability to consult the Supreme Court for advice on legal or factual
matters, though the advice given is not binding on him. (Article 143)
 Additionally, the President has the authority to grant clemency, including pardons,
reprieves, and commutations, to individuals convicted of offenses and can suspend or
reduce sentences. (Article 72)

Legislative Power of President

The President can summon and prorogue the Parliament and dissolve the Lok Sabha on the
advice of the Prime Minister. He also summons a joint sitting of both Houses of Parliament,
which is presided over by the Speaker of the Lok Sabha.

 He addresses the Parliament at the commencement of the first session after each
general election and the first session of each year. (Article 87)
 He sends messages to the Houses of Parliament, whether with respect to a bill
pending in the Parliament or otherwise. (Article 86)
 He appoints any member of the Lok Sabha to preside over its proceedings when the
offices of both the Speaker and the Deputy Speaker fall vacant. (Article 93)
 He nominates 12 members of the Rajya Sabha from amongst persons having special
knowledge or practical experience in literature, science, art and social service. (Article
80)
 He decides on questions as to disqualifications of members of the Parliament in
consultation with the Election Commission. (Article 103)
 His prior recommendation or permission is needed to introduce certain bills like the
money bills in the Parliament. (Article 117)
 He can promulgate ordinances when Parliament is not in session. (Article 123)

Financial Powers of President

 Money bills can be introduced in Parliament only with his prior recommendation.
 He causes to be laid before the Parliament the annual financial statement (i.e., the
Union Budget). (Article 110)
 No demand for a grant can be made except on his recommendation. (Article 113)
 He can make advances out of the contingency fund of India to meet any unforeseen
expenditure. (Article 267)

Page No 30
  He constitutes a Finance Commission after every five years to recommend the
distribution of revenues between the Centre and the states. (Article 280)

Diplomatic Powers and Functions

Diplomatic Powers and Functions of the President of India include

 The international treaties and agreements are negotiated and concluded on behalf of
the President. However, they are subject to the approval of the Parliament. (Article
253)
 He represents India in international forums and affairs and sends and receives
diplomats like ambassadors, high commissioners, etc.

Military Powers and Functions

Military Powers and Functions of the President of India include

 He is the supreme commander of the defense forces of India. In that capacity, he

appoints the chiefs of the Army, the Navy, and the Air Force. (Article 53(2))
 He can declare war or conclude peace, subject to the approval of the Parliament.

Emergency Powers and Functions

In addition to the normal powers mentioned above, the Constitution confers extraordinary
powers on the President to deal with the following three types of emergencies:

 National Emergency (Article 352)

 President‟s Rule (Article 356 & 365)
 Financial Emergency (Article 360)

What are the limitations upon the powers of the President of India?

The Constitution of India limits the President's powers to ensure that the President does not
become too powerful and to maintain the separation of powers among the branches of
government. Some limitations on the President's powers include

 The President's powers are subject to the provisions of the Constitution and the laws
passed by the Parliament. The President can either sign or return a bill passed by the
parliament. If the President signs the bill, it becomes law. If the President returns the
bill before it becomes law, the same bill can be reintroduced and passed by the
parliament again, and the President is bound to give the assent.
 The President's exercise of executive powers is subject to the advice of the Prime
Minister and the Cabinet. The President is bound by the Constitution to act on the
recommendation of the Prime Minister, and the final order is eventually issued by the
President.

Page No 31
  The President's powers are subject to review by the judiciary. The judiciary can
examine the decisions made by the President, including the President's power to grant
pardons and reduce sentences.
 The President has limited legislative powers, confined to summoning and proroguing
the sessions, issuing ordinances and giving assent to the bills, and dissolving the Lok
Sabha, the lower house of the Indian Parliament.
 The President's power to grant pardons and reduce sentences is subject to the advice
of the Council of Ministers.
 The President's term in office is limited to five years, and the President can be
impeached by the Parliament for violation of the Constitution.
 The President's power to declare an emergency is subject to the approval of the
Parliament.

Hence, The President's powers are subject to several checks and balances to ensure that the
government maintains a balance of powers between the President, the Council of Ministers,
and the Parliament.

What are the different Veto Powers of the President?

 A bill can become an act only if it receives the assent of the President. When such a
bill is presented to the President for his assent, he has three alternatives (Article 111)
o Give his/her assent
o Withhold his/her assent
o Return the bill for reconsideration
 The veto power enjoyed by the executive in modern states can be classified into the
following four types:
o Absolute veto: withholding of assent to the bill passed by the legislature.
o Qualified veto: which can be overridden by the legislature with a higher
majority.
o Suspensive veto: which can be overridden by the legislature with an ordinary
majority.
o Pocket veto: taking no action on the bill passed by the legislature.

The President of India is vested with three–absolute veto, suspensive veto and pocket veto.
There is no qualified veto in the case of an Indian President; it is possessed by the American
President.

What are the discretionary powers of the President of India?

The President of India has the following discretionary powers based on different
situations(Situational Discretion):

 The President has discretion in inviting the leader or coalition of leaders to form a
government when no party or coalition holds a majority in the Lok Sabha.

Page No 32
  The decision to dissolve the Lok Sabha when the Council of Ministers loses its
majority in the Lok Sabha is left to the discretion of the President.
 The Indian President has discretionary powers to return the advice provided by the
Council of Ministers and ask for a reconsideration of a decision.

Moreover, the President of India does not enjoy any constitutional discretion along the lines
of the Governor of a state.

Article 61 discusses the procedure for the impeachment of the President. The President, as we
know, is the nominal head of the executive, is regarded as the first citizen of the country, and
is also the supreme commander of the Indian Armed Forces. The Parliament has the authority
to remove the President from his office through the process of impeachment in certain
circumstances. This procedure results in the removal of the President before the completion
of the term of his office, that is, five years.

Meaning of Impeachment
Before beginning with the topic, let us understand what the term “impeachment” means. The
term “impeachment” is derived from the French word “empeechier,” which means to impede
or hinder. In general terms, impeachment is the act of examining the integrity or validity of
something. Impeachment can be defined as a process that is to be followed in determining
whether a person holding a position should be removed from exercising the powers and
responsibilities vested in that position.

If it has to be defined from an administrative point of view, then it can be defined as the
process of bringing charges against a government official for some wrong-doing. It refers to
the act of formally accusing a public official of a serious offence related to their job, which, if
proved, results in the removal of the official. In India, the process of impeachment is to be
followed not only in the case of the removal of the President but also in the case of Vice-
President, judicial officers, especially the judges of the Supreme Court under Article 124(4),
and all civil officers.

When can the President be Impeached

Usually, the term of the President is five years, as provided in Article 56. There are various
ways in which the position of the President can become vacant. The following are the
possibilities:

1. Death of the President,

2. Resignation of the President (Article 56(a) and Article 56(2)),
3. Impeachment of the President for violation of the Constitution (Article 61),

Page No 33
 4. The Supreme Court declares the election of the President void (Article 71).
The President of India can be impeached by the Parliament before the end of the usual five
year term in case the President violates the Constitution of India. This has been provided
under Article 56(1)(b) as well as Article 61(1).

Article 56(1)(b) states that “the President may, for violation of the Constitution, be removed
from office by impeachment in the manner provided in Article 61.”

Clause (1) of Article 61 states that “when a President is to be impeached for violation of the
Constitution, the charge shall be preferred by either House of Parliament.”

The phrase “violation of the Constitution” has not been defined in the Constitution.

We can interpret the phrase to mean that a violation of the Constitution occurs when some act
is done or some procedure is adopted that is against the Constitution. It may be non-
conformity with the oath taken by the President under Article 60 or failing to carry out the
functions prescribed by the Constitution. Other possibilities include treason, corruption,
abuse of power, negligence of duties, bribery, violation of fundamental rights, gross
misconduct, etc.

Procedure for impeachment of the President

The procedure for impeachment has been stated under the remaining three clauses of Article
61. For the sake of understanding, we will be dealing with it in a step-by-step manner.

Special majority

In Article 61, the majority requirement to pass the resolution to impeach the President is a
two-thirds majority of the total membership of the House. This is a kind of special majority.

A special majority generally refers to a majority of two-thirds of the members of each House
present and voting. The requirement of a special majority is evident in various provisions of
the Constitution. For example,

1. Special Majority as per Article 249: Article 249 deals with the power of the
Parliament to legislate with respect to a matter that is mentioned in the State List
in the national interest. In this case, the special majority is described as the support
of not less than two-thirds of the members present and voting.
2. Special Majority as per Article 368: Article 368 deals with the power of the
Parliament to amend the Constitution and the procedure of the Constitution. In this
case, the special majority is described as a majority of the total membership of the

Page No 34
 House, and such a majority should not be less than two-thirds of the members of
the House present and voting.
3. Special Majority as per Article 368 when a specific type of amendment is
sought: The proviso of Article 368 states that when the amendment sought is
aimed at restructuring the federal system, then the majority requirement is a
special majority along with ratification of the legislatures of at least 50% of the
states.
Such a majority is required in matters related to a change in the following:

1. Article 54 (Election of President), Article 55 (Manner of Election of

President), Article 73 (Extent of the Executive Power of the Union), Article
162 (Extent of the Executive Power of the State), or Article 241 (High Courts for
Union Territories),
2. Chapter IV of Part V (The Union Judiciary), Chapter V of Part VI (The High
Courts in the States), or Chapter I of Part XI (Legislative Relations),
3. Any list mentioned in the Seventh Schedule,
4. The representation of states in Parliament,
5. The provisions of Article 368,
6. Special Majority as per Article 61: As discussed, Article 61 deals with the
impeachment of the President, and in this case, the special majority requirement is
two-thirds of the total membership of the House.

Election of the President

Article 54 states that the President is elected by the members of an electoral college, which
consists of:

1. The elected members of both the Houses of Parliament and

2. The elected members of the Legislative Assemblies of the States.
On the other hand, Article 55 states that in the election of the President, it is ensured that
there is uniformity in the scale of representation of the different states.

For the Legislative Assembly of the States, the total population of the state is divided by the
total number of elected members of the assembly. Then, the result is again divided by one
thousand. The final result is the number of votes that an elected member of the Legislative
Assembly of a State has in the election of the President. Further, if the division by one
thousand leaves a remainder of five hundred or more, then the number of votes allotted
increases by one.

Page No 35
For either of the Houses of Parliament, the total number of votes assigned to all the members
of the Legislative Assemblies of the States is divided by the total number of elected members
of both Houses of Parliament. The result is the number of votes that each elected member of
either of the Houses of Parliament has in the election of the President. Again, if the division
results in a fraction that is more than one-half, then it is counted as one.

The entire process of the election of the President is carried out by the Election Commission,
as stated under Article 324(1). According to Article 324(2), the Election Commission consists
of the Chief Election Commissioner and other such Election Commissioners as fixed by the
President. Moreover, the appointment of the Chief Election Commissioner and other Election
Commissioners is also made by the President.

The presidential election is done as per the “system of proportional representation by means
of the single transferable vote.” For the purpose of casting the vote, the system of secret
ballots is used.

System of proportional representation by means of the single transferable vote

For the sake of convenience, we will divide the phrase into two halves: proportional
representation and a single transferable vote. Now, we will understand these two terms
separately:

Proportional Representation: It is an election system where the number of seats allocated to

each party reflects the proportion of votes cast for that party. The electorate divisions are
proportionally represented by the elected party. The electorate means the people who are
allowed to vote in an election.
In simple terms, the political parties get the same representation or number of seats in the
legislature as the number of votes they get in the elections. To make it easier, let us consider
that “x%” of the electorate mass supports a political party, and that is the percentage of votes
the party has received in an election. So, the political party will have “x%” seats in the
legislature. The aim of proportional representation is that the legislative seats are allocated
according to the percentage of votes each political party receives from the voting mass.

 Single Transferable Vote (STV): The Single Transferable Voting System is a kind
of proportional representation system that uses a ranked preferential method of
voting to choose the best candidate among multiple vacancies. The voter ranks the
candidates in order of their preference. The ranking of all the candidates as per
preference ensures that backup preferences are provided by casting one vote. Let
us now simplify the concept for a better understanding.
The candidate needs a certain number of votes to be elected. This certain amount is known as
a quota. Each voter has one vote and has to number all the available candidates as per their
preference. The candidate who gets more votes than the quota gets elected. The extra votes
made for the elected candidate are then transferred to the second preferred candidate. Hence,

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the excess or rejected votes are not wasted but are transferred to the other preferred
candidate.

Another scenario may arise, which is that no candidate reaches the quota. In that case, the
least popular candidate, who received the least number of votes, is removed. Thereafter, the
people who voted for that removed candidate have their votes moved to their second
preferred candidate.

Thus, this system allows votes to be transferred to other preferred candidates in two cases:

1. The winning candidate surpasses the quota, or

2. The least preferred candidates are eliminated.

Secret ballot

As the name suggests, a secret ballot ensures that the vote is cast in secrecy. The voter cast
their vote secretly in an enclosure. This makes sure that no person gets to know which
candidate the voter voted for. The identity of the voter also becomes anonymous in this
process. The secret ballot system aims to provide a sense of fearlessness among the voters
and the voters can cast their vote without any external influence. The secret ballot is also
known as the Australian ballot.

Conclusion

The process of impeachment, though provided by the Constitution, has never been put into
practice. No President has faced impeachment in the history of the Indian Constitution. Still,
mention of the process has been made to cater to situations in which the President commits
some wrong-doing or is proved incapable of carrying out the duties and responsibilities
demanded by the position he holds.

The inclusion of the procedure of impeachment in the Constitution ensures that the President
is held accountable for any violation of the Constitution and for any misconduct during the
term of his office.

The process of impeachment, being a quasi-judicial process, requires a “special majority” of

two-thirds of the total membership of the house. Along with it, the criteria of the joint
committee investigation and the secret ballot system ensure that the principles of fairness,
transparency, and due process are maintained. The procedure of impeachment upholds the
constitutional government structure and is not a method to punish any individual. It upholds
the principles of democracy and accountability and secures the position of the law above
every individual.

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What are the constitutional safeguards for Civil Servants?
The Civil servants have not only been provided with Constitutional status under Article
308 but they have also been granted some protection under Article 311. By providing the
civil servants with these protections, the confidence of the public in the civil services is
maintained and the civil servants are also provided with the assurance that they can honestly
carry out their duties without any fear of unjust or unlawful removal from their office under
this doctrine.

The following are the protections available to a civil servant under Article 311 of the
Constitution:

1. No dismissal by subordinate authority

Under Clause 1 of Article 311, a civil servant can only be removed from his services by the
authority who had appointed him or some other person who has the same authority or rank as
the appointing authority. So, any person who is subordinate in authority to the appointing
authority, cannot remove a civil servant and in case he does remove him, the removal will not
be valid.

Illustration: A, a civil servant who was appointed by C. B who is a subordinate of C, removes

A from his office. Here such a removal will not be valid because B did not have the same
authority or rank as C (the appointing authority). But if D, who has the same authority as C,
removes A then such removal will be valid under Clause 1 of Article 311.

2. The reasonable opportunity of being heard

Under Clause 2 of Article 311, the civil servants are provided with the right of being heard.
This right embodies the principle of natural justice by giving a chance to the civil servant to
prove his innocence.

As per this Clause, to remove a civil servant from his post the following steps should be
followed:

1. Holding an enquiry in the allegations made against the civil servant. This enquiry
is known as departmental enquiry;
2. Providing the accused civil servant with the information about what charges have
been levelled against him;
3. Providing such a civil servant with a reasonable chance of being heard in the case.
This protection is very important because under his Article the Civil servant is provided with
a reasonable opportunity of being heard. While the clause mentions „reasonable opportunity‟
it does not define its meaning. When no clarification is provided for the meaning of
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reasonable opportunity, it appears to be ambiguous protection because there is no method to
determine whether a civil servant was provided with reasonable opportunity or not. Thus, the
meaning of reasonable opportunity has been taken in the same meaning as the principles of
natural justice are understood. Thus, a reasonable opportunity means that the accused is given
a chance of presenting his side of the case in order to disprove the charges levelled against
him and he should also have the chance to:

1. Present his arguments before the body which is conducting the enquiry;
2. Giving his statements as a witness;
3. Listen to the statements of witnesses against him;
4. Cross-examine the witnesses.
When such an opportunity is provided to a civil servant, the requirement of reasonable
opportunity being afforded to him will be fulfilled.

Illustration: A is a civil servant and corruption charges have been levelled against him. A
departmental enquiry is made to look into this matter and find out whether A is guilty or not.
But A is not informed about any of the charges which are made against him and he has not
been given a single opportunity to argue against these allegations and present evidence. The
enquiry concludes that A is guilty without listening to A and as a result A is removed from
his post. Such removal can be challenged by A in the Court and it will be held that the
departmental enquiry was not valid and the removal of A cannot be deemed to be valid as it
has violated the provisions of Article 311

The doctrine of pleasure is a concept embedded in the Indian Constitution that governs the
tenure of certain positions within the government. It establishes that individuals holding such
positions serve at the pleasure of the appointing authority, primarily the President or the
Governor. The doctrine of pleasure has been adopted from the British legal system.

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What is the Doctrine of Pleasure?
The Doctrine of Pleasure, originally derived from British common law, allows the Crown and
by extension in the Indian context, the President or the Governor, to terminate the services of
a civil servant without prior notice.
This means a civil servant holds office solely at the pleasure of the appointing authority. The
rationale behind this doctrine is based on public policy, ensuring that the government can
swiftly remove any official deemed unsuitable or detrimental to public interest, thus
maintaining effective and efficient administration.

Constitutional Provisions Related to the Doctrine of Pleasure

In the Constitution of India, this doctrine is encapsulated mainly in Articles 155 and 310.
Article 155 states that the Governor of a state holds office at the pleasure of the President,
emphasising the discretionary power of the President over such high appointments.
Article 310 further extends this principle to members of the Defence Services, Civil Services,
All-India Services and other individuals occupying military or civil posts under the Union or
State governments. These officials serve at the pleasure of the President or the Governor,
reinforcing the doctrine within the framework of public administration in India.
In the State of U.P. vs. Babu Ram Upadhya, the Supreme Court further clarified that the
Doctrine of Pleasure as outlined in Article 310 is not fettered by ordinary legislation. Acts
and rules formulated under Article 309, while important for regular governance, do not
diminish the President‟s or Governor‟s discretion under Article 310 unless explicitly
restricted by other constitutional provisions such as Article 311.

Article 311: Safeguarding Doctrine of Pleasure

Further tempering the Doctrine of Pleasure, Article 311 imposes substantial restrictions to
protect civil servants from arbitrary dismissal. It mandates that no civil servant be dismissed,
removed or demoted without a proper inquiry where they are informed of the accusations
against them and given a fair chance to defend themselves. This safeguard is crucial for
ensuring procedural fairness and preventing the abuse of power in public administration.

Judicial Interpretations and Landmark Judgments

The Doctrine of Pleasure, integral to the governance of public service in India, has been
profoundly shaped by judicial interpretations and landmark judgments, which elucidate its
application within the constitutional framework.
Roshan Lal Tandon v Union of India (AIR 1967 SC 1889)
This case highlighted that the rights and obligations of a government servant are primarily
determined by statute or statutory rules, which the government can unilaterally alter. This
ruling underscored the flexibility allowed to the government in managing its employees under
the Doctrine of Pleasure.
C Sankaranarayanan v State of Kerala (1971) 2 SCC

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The Supreme Court reinforced the supremacy of the Doctrine of Pleasure by ruling that the
powers conferred by Article 309 of the Constitution cannot be curtailed by any agreement.
This decision affirms the constitutional power over any private legal agreements.
State of U.P. v Babu Ram Upadhya (AIR 1961 SC 751)
In this decision, it was established that the Doctrine of Pleasure is not limited by any Act of
Parliament or rules made under Article 309. This emphasises the doctrine‟s constitutional
stature, placing it above ordinary legislative influence.
Union of India v Tulsiram Patel (AIR 1985 SC 1416)
This pivotal case detailed the balance between Articles 309, 310 and 311. The Supreme Court
recognised the necessity of the Doctrine of Pleasure for the dismissal of inefficient or corrupt
officials while simultaneously acknowledging the importance of security of tenure provided
by Article 311 for honest and competent servants.

Limitations and Exceptions of Doctrine of Pleasure

Although the Doctrine of Pleasure is a pivotal component of the Indian Constitution, enabling
public servants to serve at the discretion of the President or the Governor, it is circumscribed
by several specific limitations and exceptions. These constraints, as elucidated by judicial
interpretations and constitutional mandates, aim to balance the discretionary powers of the
executive with the protection of civil servants‟ rights.

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Powers and functions of Supreme Court
Article 124 of the Indian constitution states that there shall be a Supreme Court in India. Any
decision of the Supreme Court shall be binding upon all the subordinate courts. In India, there
is an independent judiciary so the traditional concept of natural justice and good conscience
should be maintained equal justice shall prevail. In India, there is a separate judicial system
so that the clarity and uniformity can be maintained.

Organization

There is a hierarchical system in the Indian judiciary. In India, the Supreme Court is the apex
judicial authority followed by the high court and then the district court and at last, there
comes Panchayat.

Composition
The composition of the Supreme Court is laid down in Clause 1 of Article 124. Article 124
(1) of the Indian Constitution states that the Supreme Court shall consist of the Chief Justice
of India and 33 other judges.

Appointment

The procedure for the appointment of Supreme Court judges is laid down in Article 124(2).
As per this provision, the appointment of a Supreme Court judge is made by the President on
the recommendation of the Supreme Court and high court judges.

Terms of office and removal

 As per Article 124(2A), Parliament has the power to determine the age
requirements for being a Supreme Court judge.
 As per Article 124(2), a Supreme Court judge can hold his office until he reaches
the age of 65. However, a judge may step down from the office in the following
ways:

1. By resignation – The judge can submit a resignation letter to the President.

2. By removal – A judge can also be removed from an office as per the procedure
laid down in clause 4.
3. By death.
Qualifications
Article 124(3) of the Indian Constitution states the following conditions for a person to
become a judge of the Supreme Court

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  He must be a citizen of India.
 If he is an eminent jurist.
 He must be a judge of a high court for at least five years.
 He has been an advocate of a high court for at least ten years or an advocate of two
or more such courts.

Procedure of impeachment

A judge of the Supreme Court stands removed if:

 A motion is signed by the 50 members of Rajya Sabha and 100 members of the
Lok Sabha.
 An inquiry committee consisting of a Supreme Court judge and chief justice of the
high court and an eminent jurist is constituted for the investigation of the charges.
 If the inquiry committee proves the charges then it is addressed in both the house
of parliament.
 If the motion is passed with two-third majority in both houses then the motion is
addressed to the president.
 The judge has the right to in order to prove that he is not guilty.
 If the president is satisfied with motion addressed to him, he may issue an order to
remove the judge.
The Judges (Inquiry) Act, 1968 provides for the procedure for the investigation.

Salary, Allowances, and other amenities

Salary allowances and other benefits of a Supreme Court judge have been stated under
Article 125 of the Indian constitution. The salaries and allowances of the judges are decided
by the Parliament and it must not vary to its disadvantage.

The other privileges a judge has is of a residence free of cost with a pension after his
retirement. A judge after his retirement can‟t hold the office for profit motive under state as
well as union government. He can‟t act in court after his retirement or under any other
authority as prescribed by law.

What are the jurisdiction and powers of the Supreme Court

The Supreme Court of India is the apex judicial authority in India. Under Article 141 it has
been stated that the decision of the Supreme Court is binding upon all the other courts. It
tends to regulate the judicial system of the country in order to maintain public peace and

Page No 43
protect it from any external transgression. Therefore it possesses a very wide range of powers
and functions which are discussed below:

Courts of record

Under Article 129 of the Indian constitution, it has been stated very clearly that the Supreme
Court of India is a court of record and has the power to punish contempt itself. A court of
record means the proceedings, decisions, or acts of a court which are enrolled for the
evidential matter and for interminable and testimonial purposes. They are unquestionable
when presented before any other court.

As a court of record, the Supreme Court has two powers:

1. Power to determine its jurisdiction, and

2. Power to punish for contempt of court.
In the case of Naresh Shridhar Mirajkar v. State of Maharashtra (1967), in which a judicial
order that prohibited the publication of certain evidence given by a witness in a suit was
challenged, the Supreme Court stated that it has the jurisdiction and power to decide on any
matter unless the Constitution has a provision regarding the same. In the case of Om Prakash
Jaiswal v. D.K. Mittal (2000), which was filed to challenge a judicial order passed by the
Allahabad High Court in proceedings initiated under Section 12 of the Contempt of Courts
Act, 1971, the Supreme Court stated that a writ issued by it must be respected and obeyed,
and the court has to protect itself from any that undermines its dignity.

Jurisdiction of the Supreme Court

Original Jurisdiction

Under Article 131 of the Indian constitution, the Supreme Court has original jurisdiction in
the following cases

 If there is a dispute between the government of India and one or more states
 Between the government of India and any state or states on the one side and one or
more states on the other side
 Between two or more states
Even the dispute arising in the election of the President and Vice President is dealt with by
the Supreme Court. In these matters, the Supreme Court has original jurisdiction to exercise
its power without the intervention of any other judicial authority. As the Supreme court is the
highest judicial authority it protects the fundamental rights of an individual from any kind of
infringement. Article 32 it has given the right to an individual to approach the supreme if

Page No 44
there is any violation of his fundamental rights. Under Article 32 a court can issue orders or
writs( habeas corpus, certiorari, mandamus, prohibition, quo-warranto).

The following are the writs that the Supreme Court can issue under Article 32:

1. Habeas corpus: The term habeas corpus literally means „to have the body of‟. This
writ can be issued against the government or any private party for illegally
detaining a person for no justifiable reason. It is issued to produce the illegally
detained person before the court.
2. Mandamus: The writ of mandamus is issued to compel a person who holds a
public office to discharge the duties he is legally bound to perform.
3. Certiorari: The term literally means „to be certified.‟ It is used by the Supreme
Court to quash an order passed by the lower courts in cases where there is an
excess of power or jurisdiction.
4. Prohibition: This writ is similar to certiorari, but instead of quashing, it prevents a
lower court from passing an order if the Supreme Court is of the opinion that it
exceeds its jurisdiction.
5. Quo warranto: The term quo warranto literally means „by what authority.‟ The writ
of quo warranto is issued against any party who claims to hold an office of public
authority, to which he is actually not entitled to hold.
This jurisdiction of the Supreme Court is subjected to certain limitations. These limitations
any kind of dispute arising from an agreement that was executed even before the constitution
was commenced. In case of fundamental rights, it only covers the legal aspects whereas the
rest of it is left untouched.

Appellate Jurisdiction

The Supreme Court is the apex judicial authority of appeals and enjoys constitutional, civil as
well as criminal appeals.

Constitutional appeal: under Article 132 of the constitution it has been stated that appeal for
any final judgement of the high court whether of civil or criminal nature for which the high
court issues a certificate stating that it contains a substantial question of law as to the
interpretation of the provisions of the constitution lies in the Supreme Court. Even if the high
court refuses to issue the certificate, the Supreme Court has the power to grant SLPin these
matters.

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Civil Appeals: Article 133 of the Indian Constitution provides that cases of civil nature shall
lie in the Supreme Court if the high court is satisfied with the following conditions and
certifies that

 The matter involves a substantial question of law

 If the high court thinks that this case needs to be decided by the Supreme Court.
Criminal Appeals: under Article 134(1) a criminal appeal shall lie in the Supreme Court
under the following circumstances:

 If the high court in an appeal has reversed the judgment of the lower court and
sentenced death penalty to the accused who has been acquitted.
 In the second situation when the high court itself has withdrawn a case from a
lower court and then sentenced the accused person death penalty.
 If a case is certified by the high court that it is fit for appeal in the Supreme Court.
Sometimes the Supreme Court is conferred with powers by the parliament in order
to deal with certain cases decided by the high court.
Interpretation of Constitution: Article 132 states that, if there is a High Court judgment,
decree, or order on any civil or criminal proceeding, that involves a substantial question
regarding the interpretation of the Constitution, there shall be an appeal to the Supreme
Court. Federal court‟s jurisdiction: Before the commencement of the Constitution, we had a
Federal Court that was established under the Government of India Act, 1935. It had the
jurisdiction to hear appeals on High Court decrees. The Supreme Court was established after
the Commencement of the Constitution. Hence, under Article 135, the Supreme Court
exercises the jurisdiction of the Federal Court. Special leave to appeal jurisdiction: Article
136 of the Indian Constitution provides that the Supreme Court has special leave to appeal
jurisdiction.

The Supreme Court has the jurisdiction to grant special leave petition to the final judgment
given by any lower courts except for the courts or tribunal which has been formed by the law
relating to armed forces. However, if the judgment or order is given by a high court(single
judge bench) then the no appeal for that matter will be entertained in the Supreme Court.

Under Article 138 of the Indian Constitution, the law expands the jurisdiction of the Supreme
Court in respect of subjects contained under the union list and shall also have jurisdiction
over any other subject for which the consent of state has been obtained.

Advisory Jurisdiction

Under Article 143 it has been stated that the Supreme Court on many occasions have given
advice to the government as well as the president, if the matter is related to the interest of the
public or if there arises a substantial question of law. The Supreme Court after the profound
inquiry reports to them.
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Powers of the Supreme Court of India

 Being the supreme judicial authority of the country it protects the constitution and
enlightens us with the provisions of the constitution through its grand vision which
is considered to be final.
 The power to interpret the Indian Constitution is vested in the Supreme Court of
India.
 It is the custodian of fundamental rights. Under Article 32 every citizen of India
has the Locus Standi to move to court in order to seek legal remedy if there is any
kind of infringement to fundamental rights.
 Under Article 129 Supreme Court is the court of record. Its judgment is
unquestionable and are accepted by all the lower courts as precedents. Under
Article 141 the decision of the high court is considered to be final and binding
upon all the lower courts and regarded as law.
 If any law is passed by the parliament or the state legislature which does not
comply with the provisions of the Indian constitution or is given jurisdiction that
they even do not possess will be declared void by the Supreme Court through
judicial review.
 The Supreme Court under Article 137 has the power to review its owns
judgement; if new evidence are found, if a fact is related to the records of the came
to the light and if there are enough reasons to suffice for a review Supreme Court
itself states that nothing can restrain it from reviewing its own decisions if it is
satisfied with its effects over the general public.
 The Supreme Court is conferred with the power to make rules for carrying out its
practice and procedure.
 The Supreme Court has the power to appoint its officers and servants. For
example, the Chief Justice of India or the other Supreme court judges is appointed
by it to carry out its functions. Though the person has to be qualified for the job.
 Supreme Court under Article 129 has the power to punish a person if found guilty
of contempt of court. Contempt of court basically means hampering the
proceedings of the court neglecting its order, defying its authority which ultimately
results in disrespect of the Court. The consequences arising out of it includes both
civil or criminal penalties depending upon the gravity of the consequences.
 Appeals under The Peoples Representation Act 1951 can be filed in the Supreme
Court.
 As per Article 140 of the Indian Constitution, the parliament may confer additional
powers not mentioned in the Constitution, to the Supreme Court if it is essential
for the effective functioning of the Supreme Court.

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 Under Article 139A, the Supreme Court suggested it has the power to transfer
cases under Article 139A. It can do so under the following circumstances, namely,
when the Supreme Court and a High Court have cases that are on the same or
similar questions of law, the Supreme Court may withdraw the cases pending
before the High Court and if the Supreme Court finds it crucial to transfer cases for
the purpose of upholding justice.
 The Supreme Court has the rule-making power under Article 145. The Supreme
Court can make rules on the following matters with the president‟s approval:
1. Persons practicing before the court.
2. Procedure for appeals.
3. Proceedings for the enforcement of fundamental rights.
4. Proceedings in the court regarding the transfer of cases.
5. Regarding appeal on a High Court judgment where it has reversed an
order of acquittal and declared a death sentence instead.
6. Cost of proceedings
7. Bail
8. Stay of proceedings
9. Regarding providing a summary determination of any appeal that the
Court considers frivolous
10. Regarding enquiry for suspension of a Public Service
Commission member.

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Independence of the judiciary in India
It is very amusing that though our Indian constitution never mentioned about judicial review
yet the apex judicial authority possess the power of judicial review. It has been stated under
Article 32 and 226 that both the Supreme cCurt as well the high court is conferred with the
power of judicial review of the following things-

 Judicial review of the legislative and administrative actions

 Judicial review of the quasi-judicial proceedings
India is a democratic type of country in which there is the separation of powers between the
legislative, executive and judiciary. They have their own independence and perform their
functions accordingly. However, to assure that such independence does not turn out arbitrary,
checks and balances between the organs must be maintained. The functioning of a democratic
country explicitly lies over the independence of these organs. If the legislative and
administrative actions turns out to be unconstitutional or it does not comply with the
provisions of the constitution then the court has the power of judicial review in order to
restrict such exercises. The ambit of the judicial review has now expanded to the concept of
socio-economic justice. In order to keep a check on this power judicial restraint is necessary.
Under Article 32 a person can approach the court if there is any infringement of his
fundamental rights. Judicial review is the basic structure of the Indian constitution which
can‟t be curtailed by the amendment. The powers of judicial review enshrined under the
Indian constitution are partial or limited in nature as it only deals with unconstitutional
exercises performed through administrative and legislative action or whether it deals with the
fundamental rights.

Quasi-Judicial function and Judicial Review

Quasi-judicial functions is neither a judicial function nor administrative function. The quasi-
judicial act has the appropriate jurisdiction which is sanctioned by the law while determining
the basic rights that an individual has in order to enjoy his fundamental freedom. If a tribunal
or an authority has been constituted by the law and are conferred the powers of deciding a
matter are subject to judicial review.

Administrative Action and Judicial Review

The ambit of judicial review is limited to three grounds in case of administrative action.

 In the case of unreason ability or irrationality

 Unlawfulness or illegality
 Proportionality and procedural impropriety

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Judicial review of a decision matter process whenever it has been depraved through
irrationality and ignorance of such essential factors that no reasonable authority conferred
with the power could have made such a decision, follows the due procedure of law and
through examination takes the relevance of the factors.

Conclusion

It can be concluded that the Supreme Court is the apex judicial authority of India. The
Supreme Court has very wide jurisdiction and it enjoys enormous powers and functions that it
performs for the general interest of the public. It is the protector of the fundamental rights of
an individual and through its grand vision interprets the provisions of the constitution. It
guarantees socio-economic justice to the citizens of India and makes laws which are
unquestionable and binding upon all the other courts.

Page No 50
Separation of powers

In India, a separation of functions rather than of powers is followed. Unlike in the US, in
India, the concept of separation of powers is not adhered to strictly. However, a system of
checks and balances has been put in place in such a manner that the judiciary has the power
to strike down any unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between
the various organs in the classical sense because it is impractical. The Constitution of India
embraces the idea of separation of powers in an implied manner. Despite there being no
express provision recognizing the doctrine of separation of powers in its absolute form, the
Constitution does make the provisions for a reasonable separation of functions and powers
between the three organs of Government.

Three Organs of Government

1. Legislature: The chief function of the legislature is to enact laws

o It is the basis for the functioning of the other two organs, the executive and the
judiciary.
o It is also sometimes accorded the first place among the three organs because
until and unless laws are enacted, there can be no implementation and
application of laws.

2. Executive: The executive is the organ that implements the laws enacted by the
legislature and enforces the will of the state.

o It is the administrative head of the government.

o Ministers including the Prime/Chief Ministers and President/Governors form
part of the executive.

3. Judiciary: The judiciary is that branch of the government that interprets the law,
settles disputes and administers justice to all citizens.

o The judiciary is considered the watchdog of democracy, and also the guardian
of the Constitution.

Page No 51
 o It comprises of the Supreme Court, the High Courts, District and other
subordinate.

 Purpose
It is to prevent abuse of power by a single person or a group of individuals. It will
guard the society against the arbitrary, irrational and tyrannical powers of the state,
safeguard freedom for all and allocate each function to the suitable organs of the state
for effective discharge of their respective duties.

Meaning Of Separation Of Powers

Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a function in
one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to their
mandate only).

Thus, these broad spheres are determined, but in a complex country like India there often
arises conflict and transgression by one branch over the other.

Significance of the Doctrine

This principle ensures that autocracy does not creep into a democratic system. It protects
citizens from arbitrary rule. Hence, the importance of the Separation of Powers doctrine can
be summed up as follows:

 Keeps away autocracy

 Safeguards individual liberty
 Helps create an efficient administration
 Judiciary's independence is maintained
 Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status Of Separation Of Powers In India

 Under the Indian Constitution:

o Legislature- Parliament ( Lok Sabha and Rajya Sabha), State legislative bodies
o Executive- At the central level- President, At the state level- Governor
o Judiciary- Supreme Court, High Court and all other subordinate courts

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  Some of Articles of the constitution:
Article 50: This article puts an obligation over the State to separate the judiciary from
the executive. But, since this falls under the Directive Principles of State Policy, it is
not enforceable.

Articles 53 and 154: It provide that the executive power of the Union and the State
shall be vested with the President and the Governor and they enjoy immunity from
civil and criminal liability.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct
of a judge of the Supreme Court or High Court. They can do so only in case of
impeachment.

Article 123: The President, being the executive head of the country, is empowered to
exercise legislative powers (Promulgate ordinances) in certain conditions.

Article 361: The President and Governors enjoy immunity from court proceedings.,
they shall not be answerable to any court for the exercise and performance of the
powers and duties of his office.

There is a system of checks and balances wherein the various organs impose checks on one
another by certain provisions.

 The judiciary has the power of judicial review over the actions of the executive and
the legislature
 The judiciary has the power to strike down any law passed by the legislature if it is
unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
 It can also declare unconstitutional executive actions as void.
 The legislature also reviews the functioning of the executive.
 Although the judiciary is independent, the judges are appointed by the executive.
 The legislature can also alter the basis of the judgment while adhering to the
constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The Constitution
guarantees that the discretionary power bestowed on any one organ is within the democratic
principle.

Conclusion
The doctrine of separation of powers in the strict sense is undesirable and unpractical and
therefore till now it has not been fully accepted in any of the country, but this does not mean
that the doctrine has no relevance in the world of today. The logic behind this doctrine is still

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valid.

The logic behind the doctrine is of polarity rather than strict classification, meaning thereby
that the centre of authority must be dispersed to avoid absolutism. It has been well said by
Lord Action, "Power corrupts and absolute power tends to corrupt absolutely" Conferment of
power in a single body leads to absolutism. Thus, though it is important that power shouldn't
get concentrated in one hand, a system of checks and balances must be maintained for a
smooth functioning.

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Attorney General of India: Power and
Functions
Articles 76 and 78 deal with the Attorney General of India. The Attorney General of India is
the highest law officer of the country. He is responsible to assist the government in all its
legal matters. The President appoints the Attorney General (AG). The person who is
appointed should be qualified to be appointed a judge of the Supreme Court. That means, he
should be a judge of some high court for five years or an advocate of some high court for ten
years.

The Attorney General of India is appointed by the President of India under Article 76(1) of
the Constitution and holds office during the pleasure of the President. He must be a person
qualified to be appointed as a Judge of the Supreme Court. Articles 76 and 78 deal with the
Attorney General of India. The Attorney General of India is the highest law officer in the
country. He is responsible for assisting the government in all its legal matters.

Appointment and Term of office

The President appoints the Attorney General. The person who is appointed should be
qualified to be appointed a judge of the Supreme Court. That means he should be a citizen of
India and a judge of some high court for five years or an advocate of some high court for ten
years, or should be an eminent jurist, in the opinion of the president.

The constitution does not provide for fixed tenure to the AG. So, he holds office during the
pleasure of the president. He can be removed by the president at any time. There is no
procedure or ground mentioned in the constitution for his removal.

The AG receives such remuneration as the president may determine. The constitution has not
fixed the remuneration.

Duties and Functions

Below are the duties and functions of the AG:

(1) He gives advice to the Government of India upon such legal matters, which are referred or
assigned to him by the president.

(2) He performs such other duties of a legal character that are referred or assigned to him by
the president.

(3) He discharges the functions conferred on him by or under the Constitution or any other
law.

In the performance of his official duties,

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(1) He appears on behalf of the government of India in all the cases in the Supreme Court in
which the Government of India is concerned.

(2) He appears on behalf of the government of India in any reference made by the president
to the Supreme Court under Article 143 of the constitution.

(3) He appears on behalf of the government of India in any case in a high court in which the
Government of India is concerned if the Government of India requires so.

Rights and Limitations

Following are the Rights of the AG:

(1) In the performance of his duties, he has the right to audience in all courts in the territory
of India.

(2) He has the right to speak or to take part in the proceedings of both the Houses of
Parliament and their joint sittings but without a right to vote.

(3) He has the right to speak or to take part in the meeting of any committee of the
Parliament of which he is named as a member but without a right to vote.

(4) He enjoys all the privileges and immunities that are available to a member of parliament.

Below mentioned are the Limitations placed on the Attorney General:

(1) He should not advise or hold a brief against the Government of India.

(2) He should not defend accused persons in criminal cases without the permission of the
government of India.

(3) He should not accept appointment as a director in any company without the permission of
the government.

It should be noted that the AG is not debarred from private legal practice. He is not a
government servant as he is not paid fixed salary and his remuneration is decided by the
president.

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What is a PIL?
PIL has not been defined in any Indian statute. However, Courts have interpreted and defined
PIL. The Hon‟ble Supreme Court of India has, in the case of Janata Dal v. H.S.Chaudhary,
[(AIR 1993 SC 892) ], held that lexically, the expression „PIL‟ means a legal action started
in a court of law for the enforcement of pblic/general interest where the public or a particular
class of the public some interest (including pecuniary interest) that affects their legal rights or
liabilities.

PILs are considered to be the most effective as well as the most commonly used judicial tool
to safeguard the environment due to their many advantages including but not limited to
speedy results, nominal court fees, relaxed procedural rules and the wide variety of
investigative techniques available to courts like special committees.

Who can file a PIL?

Any individual or organisation can file a PIL either in his/her/their own standing i.e. to
protect or enforce a right owed to him/her/them by the government or on behalf of a section
of society who is disadvantaged or oppressed and is not able to enforce their own rights.

The concept of “Locus Standi” has been relaxed in the case of PILs so as to enable the
Hon‟ble Court to look into grievances that are filed on behalf of those who are poor, illiterate,
deprived or disabled and are unable to approach the courts themselves.

However, only a person acting in good faith and who has sufficient interest in the proceeding
will have the locus standi to file a PIL. A person who approaches the Hon‟ble Court for
personal gain, private profit, political or any oblique consideration will not be entertained.

Suo moto cognizance may also be taken by the Court.

Where can a PIL are filed?

PILs are extensions of Writ Jurisdiction. Therefore, PILs may be filed either before the
Hon‟ble Supreme Court of India under Article 32 of the Indian Constitution or any High
Court under Article 226 of the Indian Constitution.

However, even a simple letter or a postcard addressed to the Chief Justice of India or the
Chief Justice of a High Court may suffice. The court may then choose to take cognizance of
the letter and convert it into a PIL as in the case of Rural Litigation & Entitlement Kendra,
Dehradun vs. State of Uttar Pradesh [(AIR 1989 SC 594)], where the Hon‟ble Court
converted a letter raising the issue of unauthorised and illegal mining in Mussoorie Hills into
a writ petition under Public Interest Litigation.

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Laws governing PIL in India
Over the years, the courts in India have formulated various principles with respect to PILs:

 Relaxed rule of locus standi- PILs can be filed by any person for the welfare of
others who are disadvantaged and are thus unable to approach the courts
themselves. Thus, the general rule of locus standi has been relaxed in cases of PILs
to protect and safeguard the interests and rights of these disadvantaged people.
 Relaxed procedural rules- Courts have treated even a letter or a telegram as a PIL
as in the case of Rural Litigation & Entitlement Kendra, Dehradun vs. State of
Uttar Pradesh (see here). Even the law regarding pleadings has been relaxed by
the courts in cases of PILs.
 Intervention by the courts– Courts has also highlighted the fact that Article 14 &
21 of the Constitution of India and the International Conventions on Human Rights
provide for a fair and reasonable trial. Thus, Courts must intervene when injustice
is done to many.
 Question of maintainability- The Government may not be allowed to raise
questions as to the maintainability of the PIL if the court is prime facie satisfied
that there is a variation of any constitutional rights of a disadvantaged category of
people.
 Principle of Res Judicata- The principle of res judicata or any principles analogous
to it would depend on the circumstances and facts of the case and the nature of the
PIL.
 Appointment of a Commission- In special circumstances, a court may appoint a
Commission or other bodies to investigate. In the event that the Commission takes
over a public institution, the Court may direct management of it.
 PILs regarding constitutionality or validity of a statute or a statutory rule–
Ordinarily, the High Court should not entertain such a petition by way of a PIL.
 Complete Justice– Under Article 142 of the Constitution of India, the Hon‟ble
Supreme Court of India has the discretionary power to pass a decree or order as
may be necessary to do complete justice. However, while high courts may pass
orders to do complete justice, they do not have powers akin to those granted to the
Hon‟ble Supreme Court under Article 142.
 Misuse of PILs– Courts are extremely cautious to ensure that PILs are not misused
as the misuse of PILs would defeat the very purpose for which it was conceived
i.e. to come to the rescue of the poor and the downtrodden. The courts have, time
and again, reiterated this fact as in the case of Kushum Lata v. Union of India
{[(2006) 6 SCC 180] (see here)}. However, courts have held that even if the
petitioner had approached the court for his own private interest due to his personal

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 grievances, the court may treat it necessary to inquire into the subject of the
litigation and its state of affairs in furtherance of public interest.
 Formulation of various concepts– In environmental law cases, the courts have
formulated and evolved several concepts including the Polluter Pays Principle, the
Precautionary Principle, the Public Trust Doctrine and Sustainable Development.

What are some essentials of drafting a PIL?

The following are some of the essential steps that should be followed when drafting a PIL:

 Collection of information– The first step of drafting a PIL would be to collect all
relevant information pertaining to the issue.
 Collation of documents– All documents regarding the case including photographs
if any, must be collated.
 Court in which it is to be filed– The Petitioner must decide in which he/she/it
wants to file the PIL, whether before the Hon‟ble Supreme Court or the High
Court of that State.
 Form of the PIL– A PIL can be in the form of a Petition or even a letter or
postcard. In the event that the PIL is to be filed before the Hon‟ble Supreme Court
of India, the letter/postcard must be addressed to the Chief Justice of India. In the
event that the PIL is to be filed before a High Court, the letter/postcard must be
addressed to the Chief Justice of that particular High Court.
 Public Litigation Guidelines– When drafting a PIL, one must look at the Public
Litigation Guidelines applicable for the particular court before which one intends
to file the PIL. The same are usually available on the websites of the respective
courts.
 Details to clearly stated– The following details must be clearly stated:
1. Petitioner‟s name, postal address, email address, phone number,
occupation, annual income and PAN number.
2. Proof of identity of the Petitioner must be annexed.
3. Facts of the case.
4. Nature of the injury.
5. Any personal interest that he/she/it may have.
6. Details of any litigation involving the petitioner which could have a
legal nexus with the issue involved in the PIL.
7. The class of persons for whose benefit the PIL is being filed and how
they are incapable of accessing the courts themselves.

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 8. In the event that any representations have been made to any authorities
regarding the issue, the details of the same.
9. Any person/body/institution that may be affected by the PIL must be
joined as a party.
10. The Petitioner must also state that he/she/they are able to pay costs, if
any, that may be imposed by the court.
 Appearance in court- The Petitioner may either appoint an advocate or choose to
appear in person.

What is a Doctrine of Collective responsibility?

The definition of “Collective responsibility” can be provided with the perception or idea that
involves individuals of a group to act responsibly in order to fix the damage or harm that has
been caused by other individuals in the society or in the group. To the contrary, collective
guilt has been identified with the conception of individual behaviour that signifies the guilt
within them for the harm or damage brought by the other individuals in the group or society.

In this context, “Collective responsibility” contributes to the fundamental judgments of

responsibility that are correlated with certain other aspects of responsibilities of
Councils. “Responsibility of councils” is more or less associated with perceived entitativity,
inference of commission, percept authority and inference of omission.

Principles of “Collective Responsibility”

The principle of collective responsibility is considered the cornerstone of parliamentary form

of the government. In this aspect that two basic components to the collective responsibility

 The first one is the notion that ministers are able to conduct honest and open
conversation before reaching to the final consensus and thereby the deliberation can
be kept private
 The second one is related to the position of cabinet that can be agreed upon by all the
ministers that are required to follow as well as the vote with the government for the
position.

“Responsibility of Individual and collective responsibility”

The responsibility is provided with the convention where the individuals associated with the
government or the organisation can be held accountable for the decisions or actions taken by
that government or organisation as a whole. Therefore, “Collective responsibility” is
increased by the responsibilities of individuals in the group to measure their actions and to
project that accordingly. It has been precisely constituted in constitution and convention
that “individual and collective responsibility” is to measure the authority and duty for the
actions of other people in the group by ignoring and tolerating them even in case the

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individuals are not actively collaborating in the actions. “Collective responsibility”, followed
by the “individual and collective responsibility” has-been addressed in the constitutional
convention that has been considered as the cornerstone of cabinet government ever since the
18th century.

Benefits of “Collective Responsibilities”

 The collective responsibility avoids the contradictions between the Council of

Ministers and cabinet.
 It provide benefits to the political loyalty and the party of the Prime Minister
 The collective responsibility helps to make the policy decision as well as the passing
legislation.
 The collective responsibility is a consensus building machine among Ministers

Drawbacks of “Collective Responsibilities”

 The collective responsibility curbs the inner part of democracy where the cabinet
ministers have to openly agree with the decision of the prime minister.
 The initiatives of the individual ministers are curved giving away to the initiative of
the party.
 On the other hand any urgent attention can be delayed due to the issues of collective
responsibility which is the biggest drawback of collective responsibility.

Conclusion

The following discussion has been addressed by signifying the contribution of “Collective
responsibility”. In order to do so, “Collective responsibility” has been defined with its
specific aspects in terms of the responsibility of individuals and that of the Council. In this
context, “individual and collective responsibility” has emerged with the role of individuals in
order to act and conduct an entire organisation in terms of defining and objectifying the
actions and activities imposed by the members of the organisation. In addition to that,
the “Responsibility of councils” has been signified as well with their responsibilities in terms
of the judgement and decision interpreting the further accommodation of Lok Sabha.
The legislative competence of the Centre and States in India is demarcated in the Constitution
of India through the three lists under Schedule VII. The power to levy tax or fee is not
coextensive with each other and different meanings have been ascribed to the term „fee‟ and
„tax‟. Initial judgments of the Hon‟ble Supreme Court have carved „quid pro quo test‟
between the fees collected and the services rendered to identify fees from tax. Tax was
considered to be a general burden for public welfare whereas levy of fee corelates to
expenses incurred by the government in rendering a service. The fees collected were to be
kept in a separate funds and not to be added to the Consolidated Fund.

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Case laws
The first major case to discuss the difference between a tax and a fee was Commissioner,
Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR
1963 SC 966. In this case, the Supreme Court held that a levy is a fee when, firstly, the
amount raised through the levy correlates to expenses incurred by the government in
rendering a service. Hence, there must be an element of quid pro quo. Secondly, the funds
collected must not be merged with the Consolidated Fund and must be earmarked specifically
for the expenditure incurred by the government in rendering the services.

These two elements were further solidified by the Supreme Court in the case of Mahant Sri
Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400 where it was held that the fee
must be the consideration for certain services which the individuals received, and it must not
be merged in the general revenue of the State to be spent for general public purposes. The
two above mentioned principles of a fee have undergone a substantial change through later
judicial pronouncements, and the strict necessity of both has been diluted.

In the case of Sreenivasa General Traders v. State of A.P., 1983 4 SCC 353, it was held that
Co Relationship between the levy and the services rendered/expected is one of general
character and not of mathematical exactitude. It is only necessary that a „reasonable
relationship‟ exists between the levy of the fee and the services rendered.

In the case of Krishi Upaj Mandi Samiti & Ors. v. Orient Paper & Industries Ltd., (1995) 1
SCC 655, the validity of market fees levied by market committees on the sale and purchase of
bamboos was in question. The Court in para 21 of this judgment summarised the
jurisprudence on the distinction between tax and fee, inter alia, on the following counts:

1. The subjects on which fees can be imposed has been separately covered under
Schedule VII of the Constitution,
2. Public interest seems to be at the basis of all imposition but in a fee, the reason for
the imposition of the levy is some special benefit that is conferred and accruing to
the person on whom the fee is levied.
3. In determining whether the levy is a fee, the true test must be whether its primary
and essential purpose is to render specific services to a specific area or classes.
4. It is not a postulate of a fee that it must have relation to the actual service rendered.
However, the rendering of service has to be established and the service so rendered
cannot be remote.
5. To satisfy the test of quid pro quo, a good and substantial portion of the fee must
be shown to be expended for the purpose for which the fee is levied.

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 6. Further, while it is not necessary to confer the whole of the benefit on the payers of
the fee but some special benefit must be conferred on them which has a direct and
reasonable correlation to the fee.

Delegated Legislation
Introduction
According to M.P. Jain, “ the term is used in two different senses:

 to exercise the legislative power by subordinate agents, or

 the subsidiary rules themselves which are made by the subordinate authority in
pursuance of the powers conferred on it by the legislature”.
Delegated legislation is generally a type of law made by the executive authority as per the
powers conferred to them by the primary authority in order to execute, implement and
administer the requirements of the primary authority. It can be said that it is the law made by
any person or authority under the power of parliament. It is also known as subordinate
legislation in administrative law. It allows the bodies beneath the primary authority or
legislature to make laws according to the requirement. Through an act of Parliament,
Parliament has full authority to permit any person or authority to make legislation. An act of
parliament creates a framework of a particular law which tends to be an outline of the
purpose for which it is created. The important object of this is that any legislation by such
delegation should be according to the purposes as laid down in the act.

The main feature is that it allows the state government to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament. If there is any requirement
then sanctions can also be altered by the delegated legislation as the technology changes. It is
believed that when such authority is delegated by the Parliament to any person or authority it
enables such person or the authority to provide more detail to the act of the Parliament.

For example, the local authority has power conferred by the superior one to make or amend
laws according to the requirement of their respective areas. The delegated legislation plays a
very important role as the number of them are more than the acts of the Parliament. It has the
same legal standing as the act of Parliament from which it is created.

There are three forms of delegated legislation i.e., statutory instrument, orders in council and
by-laws.

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Statutory instruments

They are the one which is formed by the government. For example – a parent act is an act
which permits the parliament for making the law. Orders in the council are generally made by
the government when there is a need and it can affect the public at large as well as an
individual.

By-Laws

They are created by the local authority which is approved by the Central Government. There
are many reasons for the delegation of the legislature. The parliament does not have that
much time to deliberate and debate about every topic. Therefore, delegated legislation helps
in making laws rapidly than the Parliament and the procedure of the Parliament is also very
slow as the bills for every law needs to pass from every stage. Further, it is also believed that
the Member of Parliament does not possess the technical ability which is required to make
law.

For example – making any law regarding taxation requires knowledge as well as experience
which can be done by the person who is professional in that field. In the case of welfare
purpose, the local authority can understand the needs of the people in his area more
effectively than others. The democratic bodies have many important powers for the
delegated legislation which can be easily used for updating the legislation according to the
requirement which leads to social welfare.

But there should be control over delegated legislation. Delegated legislation is controlled by
the Parliament and the Judiciary. Parliament has the overall control over the delegated
legislation as it takes account with the statutory committees which make law through bills.
The main object of parliamentary control is to look that there is no abuse or unnecessary use
of the powers given to rulemaking authorities.

Cases

In the case of Narendra Kumar v. Union of India, it was held by the Supreme Court that the
provision under Section 3(5) of the Essential Commodities Act, 1955, which explains that any
rules framed under the Act must be presented before both the houses of the Parliament.
Therefore, clause 4 of Non – Ferrous Control Orders, 1958 has no effect until it is presented
in the Parliament.

There are a number of rules in the area of judicial control over the delegation of legislation
which is laid down by the judiciary.

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In Chandra Bhan’s case, it was held that the delegation of legislation must be reasonable and
should not suffer from any unreasonableness.

Delegated legislation should protect the rule of law and there should be no arbitrariness.
Rules framed which violates the Parent Act are illegal. Rules framed which violates any other
statute should also be considered as void. Delegated legislation made with mala fide intention
is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It has
a better version of explanation about the Control Mechanism of Delegated Legislation.

Factors responsible for the rapid growth of Delegated Legislation

 Pressure on Parliament – The number of activities in states is expanding which

requires law and it is not possible for the Parliament to devote sufficient time to
every matter. Therefore for this, the Parliament has made certain policies which
allows the executives to make laws accordingly.
 Technicality – Sometimes there are certain subject matters which requires
technicality for which there is a requirement of the experts who are professional in
such fields and members of Parliament are not experts for such matters. Therefore,
here such powers are given to experts to deal with such technical problems like
gas, atomic, energy, drugs, etc.
 Flexibility – It is not possible for the Parliament to look after each contingency
while passing an enactment and for this certain provisions are required to be
added. But the process of amendment is very slow as well as the cumbersome
process. Thus, the process of delegated legislation helps the executive authority to
make laws according to the situation. In the case of bank rate, policy regulation,
etc., they help a lot in forming the law.
 Emergency – At the time of emergency, it is not possible for the legislative to
provide an urgent solution to meet the situation. In such case delegated legislation
is the only remedy available. Therefore, in the times of war or other national
emergencies, the executives are vested with more powers to deal with the
situation.
 The complexity of modern administration – With the increasing complexity in
modern administration and the functions of the state being expanded and rendered
to economic and social spheres too, there is a need to shift to new reforms and
providing more powers to different authorities on some specific and suitable
occasions. In a country like Bangladesh, where control over private trade, business
or property may be needed to be imposed, and for implementation of such a policy
so that immediate actions can be taken, it is needed to provide the administration
with enough power.

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And so, therefore for immediate and suitable actions to be taken there has been an immense
growth of delegated legislation in every country and being that important and useful it
becomes a non-separable part in the modern administrative era.

Advantages of Delegated Legislation

 Save time for the legislature.

 Allow for flexibility.
 Expert opinion is required in legislation.
 Parliament is not always present in the session.
 Used as an experimental basis.
 It is restored to use it in a situation of emergency.
 Can be easily Settle down with consulting the required party of the case.
Criticism of Delegated Legislation

 It has a long duration of bearing for legislative control because the legislature is
the supreme organ of the state as it consists of three main organs which are:
Judiciary, Legislative and Executive.
 All of them have to work with or in relation to each other and it should be done in
a balanced way on the basis of power given to each organ for working effectively.
Instead of various advantages, delegated legislation has weakened the legislative
control executive.
 The executive has become stronger with delegated legislation, it can easily
encroach the rules and regulation of legislation by making rules.
 This concept opposes the rule of Separation of Power.
 Lack of relevant discussion before framing the law.
 It is not in acceptance with the principle of rule of law.
 It is not stable in nature, it keeps on fluctuating on the ground of Political changes.

Classification of Delegated Legislation

Power to bring Act into Action As it is already given that in a specified date this Act will
come into force prescribed by Central or State Government by giving a notice in the Official
Gazette.

In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to
bring the Act into force and it should not be excessive in delegated power of legislation. So,

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here the court rejected the contention that the power was excessive in nature as per
prescribed. It was practically difficult for enforcement. Therefore, power is given to the
executive authority to decide the date of enforcing the act.

Conditional Legislation the rules are framed or designed by the legislature but to implement
or enforce it, is done by the executive organ, so executive has to look that what all conditions
need to be fulfilled to bring it in operation. If all conditions are satisfied then it is well and
good otherwise notice will be issued to bring the law into operation and it is known as
Conditional Legislation.

Condition legislation is of following types

 Power to bring the act into action.

 Power to extend the time period or life of the act.
 Power to extend the application of the act to any territory and to make restriction
or make an alteration in the act itself.
 Exempt the operation on certain ground or subjects of territories.
Power to fill in the blanks of the format – A rough format is prepared by the legislature and
pass on to the executive to fill up with all the necessary blanks or elements needed by the
subordinate legislation.

Power face in removing difficulties – Power to modify the statute maybe given to the
government by removal of difficulties clause.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control
3. Executive or Administrative Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it‟s not only
the right but the duty of the legislature to look upon its agent, how they are working.

It is a fact that due to a delegation of power and general standards of control, the judicial
control has diminished and shrunk its area.

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In India “Parliamentary control” is an inherent constitutional function because the executive
is responsible to the legislature at two stages of control.

1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be delegated for completing
the particular task, and it also observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

1. Direct control
2. Indirect control

Direct control

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament.
It includes three important part as per the degree of control needs to be exercised.

1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into
impact then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular format then
it becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into operation then it
will be directory in nature.

Indirect control

This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

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 2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council.

Judicial Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is
within the ambit of the constitution as prescribed. Judicial review is more effective because
court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As
per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate
that State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.

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Conclusion
If in India, Parliamentary control overlaps the delegated legislation then it is mandatory that
the committee of parliament need to be strong enough and separate laws should be made and
passed which give a uniform rule for laying down and publication purposes. A committee
must contain a special body to look on the delegated work whether it‟s going in the right
direction and effectively or not. All the three organs should focus on their work and do not
interrupt unnecessarily to prevent chaos in the system.

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What is Consolidated Fund of India
Article 266(1) of the Indian Constitution establishes the Consolidated Fund of India. This
fund gathers all government revenues, such as taxes, fees, duties and other receipts, along
with loans raised by the government and recoveries of loans granted.

The money in this fund covers the government‟s routine expenses, including salaries,
pensions, infrastructure projects, defence, debt servicing, and various other costs.

Control over the Consolidated Fund lies with the government, but its resources can only be
accessed with Parliament's approval, which is obtained through Appropriation Bills. These
bills specify the nature and amounts of expenses allowed for withdrawal.

The Consolidated Fund integrates all government revenues and expenditures into a single
account, ensuring transparency and accountability in public finance. It helps the government
manage its finances effectively and ensures that expenditures are authorised and in line with
budget priorities.

An important aspect to consider is that no money can be withdrawn from this fund without
the approval of Parliament. This requirement for parliamentary authorisation ensures
transparency and accountability in resource allocation. Furthermore, each state in India can
establish its own Consolidated Fund of State, mirroring the central authority's structure and
guidelines.

Components of the Consolidated Fund of India

Now that you know the consolidated fund meaning, let‟s explore its main components.
The Consolidated Fund of India is primarily divided into five sections:

1. Capital Account (Receipts)

2. Capital Account (Disbursements)
3. Revenue Account (Receipts)
4. Revenue Account (Disbursements)
5. Disbursements Charged on the Consolidated Fund

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Different Revenue Sources for the Consolidated Fund of India

The Consolidated Fund of India serves as the primary repository for all government revenue,
drawing from various sources and transactions. These include:

 Income from Indirect Taxes

Indirect taxes, such as the Goods and Services Tax (GST), make up a substantial part of the
fund. These taxes apply to goods and services at the point of sale or consumption.

 Income from Direct Taxes

This comprises income tax collected from individuals and corporate bodies. It includes taxes
on salaries, investments, and business profits.

 Revenue from Government Services

The fund also includes income derived from offering a wide array of public services and
activities, such as administrative fees, licences, and permits.

 Profits and Dividends from Public Sector Enterprises

Public Sector Undertakings (PSUs) contribute through the profits and dividends generated
from their activities. These state-owned companies significantly bolster the government's
revenue.

 Proceeds from Disinvestment, Loan Recoveries and Debt Repayments

This segment encompasses the proceeds from selling government assets, loan recoveries, and
debt repayments. These funds come from strategic divestments and the retrieval of
outstanding loans.

Expenses Charged on the Consolidated Fund of India

Out of India‟s Consolidated Fund are also paid several key expenses that do not require a
parliamentary vote. These are known as non-votable charges. The expenses include:

 Parliamentary Salaries: It covers the salaries and allowances of the Chairman and
Deputy Chairman of the Rajya Sabha and Deputy Speaker of the Lok Sabha.
 Salaries and Pensions of Judges: This includes the allowances, salaries, and pensions
of Supreme Court judges. The pensions of high court judges are also paid out of
India‟s Consolidated Fund.

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  Costs related to the President's Office: This includes the salaries, allowances, and
other expenses related to the President of India's office.
 Pensions of High Court Judges: It is important to note that the pensions paid to high
court judges are paid out of the Consolidated Fund of India, not the State
Government.
 Supreme Court Expenses: All administrative expenses of the Supreme Court,
including the salaries, perks, and pensions of its judges and staff, are paid out of this
fund.

Overall, the Consolidated Fund of India underlines the nation's commitment to fiscal
responsibility and transparency.

The need for rigorous parliamentary approval and the allocation of funds for essential
expenditures from the Consolidated Fund highlights India's dedication to fiscal discipline.

As the country progresses toward economic growth and inclusive development, the
Consolidated Fund helps the government with responsible financial management for the
welfare of all its citizens.

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Election Commission of India (ECI)
 The Election Commission of India (ECI) is a permanent and independent
established by the Constitution of India to ensure free and fair elections in the
country.
o Since it is established directly under the provisions of the Constitution,
it is a Constitutional Body.
 The ECI is an All-India body in the sense that it is common to both the Central and
the State governments.
 The Constitution vests the Election Commission of India (ECI) with the power of
superintendence, direction, and control of elections to
o Parliament – Lok Sabha and Rajya Sabha
o State Legislatures – State Legislative Assembly and State Legislative
Council (if exist)
o Office of President of India
o Office of Vice-President of India
 It is to be noted that the ECI is not concerned with conducting elections
to Panchayats and Municipalities in the States.
o For this purpose, the Constitution of India provides for a separate State
Election Commission in each State.

Constitutional Provisions related to the Election Commission of India (ECI)

 Article 324 of the Constitution of India deals with the provisions related to
the Election Commission of India (ECI).
o The article contains detailed provisions regarding the composition of
the ECI, appointment and service conditions of its members, powers
and functions of the ECI, and other related aspects.

Composition of Election Commission of India

Article 324 of the Constitution has made the following provisions about the composition of
the Election Commission of India:

 It shall consist of the Chief Election Commissioner (CEC) and such number of
other Election Commissioners (ECs) as the President may from time to time fix.
 The appointment of CEC and other ECs shall be made by the President.

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  When any other Election Commissioner is so appointed, the Chief
Election Commissioner shall act as the Chairman of the ECI.
 The President may also appoint after consultation with the ECI such Regional
Commissioners (RCs) as he may consider necessary to assist the ECI.
 The conditions of service and tenure of office of the Election Commissioners and
the Regional Commissioners shall be determined by the President (subject to any
related law made by the Parliament).

Appointment of Members of ECI

As per the Chief Election Commissioner and other Other Election Commissioners
(Appointment, Conditions of Service and Term of Office) Act, 2023, the Chief Election
Commissioner and the Election Commissioners are appointed by the President of India on the
recommendation of a three-membered Selection Committee consisting of:

 The Prime Minister of India

 A Union Minister nominated by the Prime Minister
 The Leader of Opposition (LoP) in the Lok Sabha
A Search Committee headed by the Cabinet Secretary suggests five names to the Selection
Committee. The Selection Committee is not bound to these name suggestions and may
consider any person other than those suggested by the Search Committee. It is to be noted
that the process of appointment of the Chief Election Commissioner and the Election
Commissioners has changed recently in 2023. Before this, they were appointed by the
President on the recommendation of the Union CoM.

Term of Members of ECI

According to the Election Commission (Conditions of Service of Election Commissioners

and Transaction of Business) Act, 1991, the Chief Election Commissioner and the Election
Commissioners hold office for a term of 6 years or until they attain the age of 65
years, whichever is earlier.

Resignation of Members of ECI

According to the Election Commission (Conditions of Service of Election Commissioners

and Transaction of Business) Act, 1991, the Chief Election Commissioner and the Election
Commissioners can resign at any time by writing to the President.

Removal of Members of ECI

Removal of the Chief Election Commissioner

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  The Chief Election Commissioner can be removed in the same manner and on the
same grounds as a judge of the Supreme Court.
o In other words, he/she can be removed by the President on the basis of a
resolution passed to that effect by both Houses of Parliament with
a Special Majority, either on the grounds of proved misbehaviour or
incapacity.

Removal of Election Commissioner and Regional Commissioners

 Any other Election Commissioner or a Regional Commissioner is removed from

office on the recommendation of the Chief Election Commissioner.
o Thus, the protection of security of tenure, which is available to the
Chief Election Commissioner, is not available to the other Election
Commissioners.

Salary and Allowances of the Members of the ECI

According to the Election Commission (Conditions of Service of Election Commissioners

and Transaction of Business) Act, 1991, the Chief Election Commissioner (CEC) and two
Election Commissioners (ECs) receive equal salaries, allowances, and other prerequisites that
are similar to those of the judge of the Supreme Court.

The Chief Election Commissioner Vis-a-vis Election Commissioners

As per the Election Commission (Conditions of Service of Election Commissioners and

Transaction of Business) Act, 1991:

 The Chief Election Commissioner and the two other Election Commissioners are
equal in terms of their powers and other perquisites.
 In case of a difference of opinion amongst the Chief Election Commissioner
and/or two other Election Commissioners, the matter is decided by the
Commission by majority.
Thus, though the Chief Election Commissioner is the chairman of the Election Commission,
the other Election Commissioners have an equal say in deciding a matter.

Power and Functions of ECI

The powers and functions of the Election Commission of India can be classified into three
categories as explained below

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Administrative Functions

 to determine territorial areas of electoral constituencies based on the Delimitation

Commission Act of Parliament.
 to prepare and periodically revise electoral rolls and to register all eligible voters.
 to notify the dates and schedules of elections and to scrutinize nomination papers.
 to grant recognition to political parties and allot election symbols to them.
 to determine the Model Code of Conduct (MCC).
 to prepare a roster for publicity of policies of political parties on radio and TV.
 to cancel polls in the event of rigging, booth capturing, etc.
 to request the President or Governor to requisition the staff necessary for
conducting elections.
 to supervise the machinery of elections throughout the country to ensure free and
fair elections.
 to register political parties for elections and grant them the status of national or
state parties based on their poll performance.

Advisory Functions

 to advise the President on matters relating to disqualifications of members of

Parliament.
 to advise the Governor on matters relating to disqualifications of members of the
State Legislature
 to advise the President whether elections can be held in a State under the
President‟s Rule.

Quasi-Judicial Functions

 to act as a court for settling disputes related to granting recognition to political

parties and allotment of election symbols to them.
 to appoint officers to inquire into disputes relating to electoral arrangements.

Assisting Machinery of ECI

The Election Commission of India (ECI) relies on a well-structured machinery comprising

various roles and responsibilities to support the electoral process:

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Deputy Election Commissioners (DEC)

These Commissioners are drawn from civil services and appointed by the ECI with a tenure
system. They are assisted by the Secretaries, Joint Secretaries, Deputy Secretaries, and Under
Secretaries.

Chief Electoral Officer (CEO)

These officers are appointed at the State level, by the Chief Election Commissioner in
consultation with the State Government.

District Returning Officer (DRO)

These officers are appointed at the district level. The Collector acts as the DRO for every
constituency in the district.

Returning Officer (RO)

These officers are appointed by the DRO for every constituency.

Presiding Officer (PO)

These officers are appointed by the DRO for every polling booth.

Independence of Election Commission of India (ECI)

Constitutional Provisions Ensuring Independence of ECI

Article 324 of the Indian Constitution has made certain provisions to ensure the independent
and impartial functioning of the Election Commission of India (ECI). The most important of
them can be seen as follows:

 The Chief Election Commissioner (CEC) is provided with the security of

tenure. He/she can be removed only in the manner and on the same grounds as
mentioned in the Constitution.
 Though the Constitution does not protect the security of tenure for other Election
Commissioners or a Regional Commissioner, they cannot be removed from office
except on the recommendation of the CEC.
 The service conditions of the Chief Election Commissioner and other Election
Commissioners cannot be varied to his/her disadvantage after their appointment.

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Factors Hampering the Independence of ECI

1. The Constitution has not prescribed the qualifications for members of the Election
Commission of India.
2. The Constitution has not specified the term of members of the Election
Commission of India.
3. The Constitution has not prohibited varying service conditions of Election
Commissioners after their appointment.
4. The Constitution has not debarred retiring Election Commissioners from any
further appointment by the Government.

Supreme Court‟s Directions to Promote Independence of ECI

In Anoop Baranwal vs Union of India Case (2023), the Supreme Court gave the following
directions to ensure the independence and neutrality of the Election Commission:

 Appointment of the Chief Election Commissioner (CEC) and the other Election
Commissioners (ECs) shall be made on the recommendations of a three·member
committee consisting of the following:
o The Prime Minister,
o The Leader of the Opposition in the Lok Sabha and
o The Chief Justice of India.
 The grounds for removal of the other Election Commissioners should be the same
as that of the Chief Election Commissioner i.e., on the like grounds as a Judge of
the Supreme Court subject to the recommendation of the Chief Election
Commissioner.

Issues with Election Commission of India

Apart from the above-mentioned factors, the ECI faces several other challenges which
hamper its impartial and effective functioning. Some of the prominent challenges faced by
the ECI are as follows:

 Political Interference – The ECI faces pressure from political parties and powerful
interest groups, which seek to influence electoral outcomes through unfair means.
Such political interference undermines the autonomy and impartiality of the ECI,
posing a threat to the credibility of elections.

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  Limited Powers – The ECI‟s power to enforce its decisions and punish offenders is
limited. This hinders its ability to effectively implement regulations and ensure
compliance with electoral laws.
 Electoral Fraud and Malpractice – The ECI grapples with the perennial challenge
of combating electoral fraud and malpractice, such as voter intimidation, use of
money and muscle powers, etc.
 Electoral Violence – Electoral violence, including clashes between political parties
and attacks on polling booths, continues to remain a significant concern for the
ECI.
 Technological Challenges – With the increasing use of technology in elections, the
ECI faces challenges related to the security and integrity of the electoral process.
For example, the rigging of Electronic Voting Machines (EVMs).
 Disinformation and Fake News – The proliferation of disinformation, hate
speeches, and fake news on social media platforms poses a challenge to the ECI‟s
efforts to ensure informed and fair elections.
 Electoral Reforms – Implementing comprehensive electoral reforms to address
systemic issues, such as regulations of political party funding, internal party
democracy, etc is a persistent challenge for the ECI.

Some important doctrines

Doctrine of colourable legislation

The doctrine of colourable legislation is a pivotal concept in the jurisprudence of

constitutional law in India. It operates under the premise that what cannot be done directly
should not be done indirectly, ensuring that the legislative powers granted by the Constitution
are not misused under the guise of legality. This principle, often termed the “Fraud on the
Constitution,” seeks to maintain the sanctity of the demarcated powers between different
levels of government.

Doctrine of Repugnancy

Repugnancy is an inconsistency or contradiction between two or more parts of a Statute.The

Doctrine of Repugnancy deals with conflict between two pieces of legislation which when
applied to the same facts produce different results.Where a law made by the Legislature of a
State with respect to one of the matters enumerated in the Concurrent List contains any
provision repugnant to the provisions of an earlier law made by Parliament or an existing law
with respect to that matter, then, the law so made by the Legislature of such State shall, if it
has been reserved for the consideration of the President and has received his assent, prevail in
that State.

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 This doctrine was included as a mechanism to resolve this repugnancy between the powers of
the Parliament and State legislatures.This doctrine reflects the quasi-federal structure of the
COI. It has clearly laid down the powers of the Parliament and State legislature to avoid
inconsistencies and conflicts.

What are the Landmark Case Laws of Doctrine of Repugnancy?

 M. Karunanidhi v. Union of India (1979):
o In this case, the Supreme Court summarized the test of repugnancy and defined repugnancy
as:
 Where the provisions of a Central Act and a State Act in the Concurrent List are fully
inconsistent and are absolutely irreconcilable, the Central Act will prevail, and the State Act
will become void in view of the repugnancy.
 Where however a law passed by the State comes into collision with a law passed by
Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the
repugnancy and the provisions of the Central Act would become void provided the State Act
has been passed in accordance with clause (2) of Article 254.
 Where a law passed by the State Legislature while being substantially within the scope of the
entries in the State List entrenches upon any of the Entries in the Central List, the
constitutionality of the law may be upheld by invoking the doctrine of pith and substance if
on an analysis of the provisions of the Act it appears that by and large the law falls within the
four corners of the State List and entrenchment, if any, is purely incidental or
inconsequential.

 Bharat Hydro Power Corporation. Ltd. v. State of Assam (2004):

o The Supreme Court held that if the two enactments operate in different fields without
encroaching upon each other, then there will be no repugnancy.

 Deep Chand v. State of U.P. (1959):

o The Supreme Court held that both the Central and State laws occupied the same field,
the State law were held to be void to the extent of repugnancy and the Central law would
prevail.

Doctrine of occupied field

The Doctrine of Occupied Field addresses legislative conflicts in India‟s federal structure,
ensuring clarity when both Parliament and State Legislatures legislate on the same subject.
The Doctrine of Occupied Field posits that when Parliament enacts legislation on a subject
within its competence, especially those in the Concurrent List, State Legislatures cannot
legislate inconsistently on the same subject. This doctrine ensures legislative harmony and
prevents conflicts between central and state laws.

JUDICIAL INTERPRETATIONS
 State of Kerala v. Mar Appraem Kuri Co. Ltd. (2012) 7 SCC 106: The Supreme
Court held that the Chit Funds Act, 1982, a central legislation, occupied the field
concerning chit funds. Consequently, any state legislation inconsistent with the central act
would be void unless it received Presidential assent.
 M. Karunanidhi v. Union of India (1979) 3 SCC 431: The Court clarified that for the
doctrine to apply, there must be a direct inconsistency between the central and state laws,

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 making it impossible to obey both. If both laws can operate without conflict, the doctrine
does not apply.
The Doctrine of Occupied Field plays a crucial role in maintaining the balance of legislative
powers in India‟s federal structure. It ensures that once a legislature has legislated
comprehensively on a subject, the other legislature cannot encroach upon that field, thereby
preventing conflicts and ensuring legal clarity.

Doctrine of Pith and substance

The doctrine states that within their respective spheres the state and the union legislatures are
made supreme, they should not encroach upon the sphere demarcated for the other.

 However, if one among the state and the Centre does encroach upon the sphere of the
other, the courts will apply the Doctrine of Pith and Substance.
 If the pith and substance i.e., the true object of the legislation pertains to a subject
within the competence of the legislature that enacted it, it should be held to be intra
vires although it may incidentally encroach on the matters not within the competence
of the legislature.
The Privy Council applied this doctrine in Profulla Kumar Mukherjee v Bank of Khulna.

 In this case, the Bengal Money Lenders Act of 1946 enacted by the State Legislature
was challenged with the contention that parts of the legislation dealt with promissory
notes; a central subject.
 The Privy Council while upholding the validity of the impugned legislation stated that
the Bengal Money Lenders Act was in pith and substance a law relating to money
lenders and money lending – a state subject even though it incidentally trenches upon
Promissory note – a central subject.
In State of Bombay v FN Balsara, the Bombay Prohibition Act was challenged on the ground
that it accidentally encroaches upon import and export of liquor across custom frontier – a
central subject. The court while upholding the impugned legislation declared that the Act was
in pith and substance a State subject even though it incidentally encroached upon a central
subject

What is the Doctrine of Territorial Nexus

The Doctrine of territorial nexus states that laws made by state legislature are not applicable
outside the state. It is only applicable when there is a sufficent nexus between the state and
the object.

It is invoked during the following instances.

 Whether a particular state has extra-territorial operation.

 If there is a territorial nexus between the subject- matter of the Act and the state
making the law.

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The Doctrine of Territorial Nexus signifies that the object to which the law applies need not
be physically located within the territorial boundaries of the state. Instead it should have a
sufficient territorial connection with the state.

The state can levy a tax on person, object or any transaction not only when it is situated
within its territorial limits, but also when it has a sufficient and real territorial connection with
it. it means that laws passed by a state legislature are not applicable outside of it unless there
is an adequate connection between the state and the object. Article 245 of the Indian
Constitution serves as the foundation for its power. In this doctrine of territorial nexus, the
term "territorial" simply means "related to territory, region, or location," and the term "nexus"
simply means "related to people, things, or events." Additionally, the idea of territorial nexus
serves as a framework for interstate extraterritorial operations

 According to the Doctrine of territorial nexus, laws enacted by state legislatures apply
only within the state and not elsewhere unless there is a proper relationship between
the object and the state.
 According to the doctrine of territorial nexus, the Indian parliament has the authority
to enact laws pertaining to Indian territory, extraterritorial territory, or causes that
have an impact there.
 States are subject to the Territorial Nexus Doctrine, which is frequently used in
situations involving tax regulations.
 According to this idea, it's critical for governments and objects to have a sufficient
geographical nexus.
 States collect taxes on individuals, things, and things located inside their borders, but
according to the doctrine of territorial nexus, states are also permitted to charge taxes
on territory outside their borders if there is a sufficient and legal nexus.
 This theory governs taxation on non-Indian citizens.

Supreme Court Judgements in which doctrine of territorial nexus is used

State of Bombay vs R.M.D. Chamarbaugwala 1957

 A non-resident of Bombay had published a crossword puzzle competition in a

newspaper that is circulated in Bangalore. However, the newspaper was widely
published in Bombay as well.
 This invited many people to enrol by paying a fee.
 The State government levied a tax on these fees, but the organizer challenged in the
Supreme Court stating he is residing outside Bombay.
 However, the Supreme Court ruled that the tax levy is valid as there is sufficient
territorial nexus and asked the organizer company to pay the tax.

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