Gist Of Indian Polity: Yuvraj Ias

YUVRAJ IAS GIST OF INDIAN POLITY A Quick Way To Cover And Revise The Syllabus

FOR UPSC CIVIL SERVICES PREPARATION

Copyright © 2019 Yuvraj IAS All Rights Reserved. This Book Or Any Portion Thereof May Not Be Reproduced Or Used In Any Manner Whatsoever Without The Express Written Permission Of The Publisher Except For The Use Of Brief Quotations In A Book Review. Published By: Global Pro Publications Chandigarh, Punjab, India Email: [email protected] Sold By: Global Pro Sellers Chandigarh, Punjab www.yuvrajias.com

Contents 1. Historical Background of Indian Constitution .................................................................. 2 2. Making of The Constitution ............................................................................................... 5 3. Composition and Working of the Constituent Assembly ................................................ 6 4. Committees of the Indian Constitution........................................................................... 11 5. Drafting Committee.......................................................................................................... 12 6. Enactment and Enforcement of the Constitution........................................................... 13 7. Criticism of the Constituent Assembly ............................................................................ 14 8. Salient Features of the Constitution of India .................................................................. 15 9. Union and its Territory ..................................................................................................... 27 10. Citizenship......................................................................................................................... 34 11. Fundamental Rights ......................................................................................................... 41 12. Directive Principles of State Policy .................................................................................. 50 13. Fundamental Rights vs Directive Principles .................................................................... 54 14. Fundamental Duties ......................................................................................................... 56 15. Amendment of the Constitution ..................................................................................... 60 16. Basic Structure of the Constitution.................................................................................. 63 17. Parliamentary And Federal System.................................................................................. 66 18. Centre-State Relations ..................................................................................................... 76 19. Emergency Provisions in Indian Constitution ................................................................. 83 20. The President of India ...................................................................................................... 85 21. Vice President of India ..................................................................................................... 90 22. Council Of Ministers, Prime Minister and Attorney General .......................................... 92 23. Cabinet Committees ......................................................................................................... 95 24. Parliament ......................................................................................................................... 97 25. Parliamentary Committees............................................................................................. 100 26. Supreme Court................................................................................................................ 107 27. Governor ......................................................................................................................... 113 28. Chief Minister And Council Of Ministers In States ....................................................... 117 29. State Legislature ............................................................................................................. 121 30. High Courts And Subordinate Courts ........................................................................... 132 31. Panchayati Raj And Municipalities................................................................................. 140 32. Union Territories ............................................................................................................. 151 33. Scheduled and Tribal Areas ........................................................................................... 153 34. Lokpals and Lokayukts ................................................................................................... 156

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Historical Background of Indian Constitution Before 1947, India was divided into two main entities – The British India which consisted of 11 provinces and the Princely states ruled by Indian princes under subsidiary alliance policy. The two entities merged together to form the Indian Union, but many of the legacy systems in British India is followed even now. The historical underpinnings and evolution of the India Constitution can be traced to many regulations and acts passed before Indian Independence. Indian System of Administration Indian democracy is a Parliamentary form of democracy where the executive is responsible to the Parliament. The Parliament has two houses – Loksabha and Rajyasabha. Also, the type of governance is Federal, ie there is separate executive and legislature at Center and States. We also have self-governance at local government levels. All these systems owe their legacy to the British administration. Let us see the historical background of Indian Constitution and its development through years. Regulating Act of 1773        

The first step was taken by the British Parliament to control and regulate the affairs of the East India Company in India. It designated the Governor of Bengal (Fort William) as the Governor-General (of Bengal). Warren Hastings became the first Governor-General of Bengal. Executive Council of the Governor-General was established (Four members). There was no separate legislative council. It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal. The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774. It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives. Court of Directors ( the governing body of the company) should report its revenue. Pitt’s India Act of 1784

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Distinguished between commercial and political functions of the company. Court of Directors for Commercial functions and Board of Control for political affairs. Reduced the strength of the Governor General’s council to three members. Placed the Indian affairs under the direct control of the British Government. The companies territories in India were called “the British possession in India”. Governor’s councils were established in Madras and Bombay.

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Charter Act of 1813 

The Company’s monopoly over Indian trade terminated; Trade with India open to all British subjects. Charter Act of 1833

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Governor-General (of Bengal) became as the Governor-General of India. First Governor-General of India was Lord William Bentick. This was the final step towards centralization in the British India. Beginning of a Central legislature for India as the act also took away legislative powers of Bombay and Madras provinces. The Act ended the activities of the East India Company as a commercial body and it became a purely administrative body. Charter Act of 1853

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The legislative and executive functions of the Governor-General’s Council were separated. 6 members in Central legislative council. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra. It introduced a system of open competition as the basis for the recruitment of civil servants of the Company (Indian Civil Service opened for all). Government of India Act of 1858

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The rule of Company was replaced by the rule of the Crown in India. The powers of the British Crown were to be exercised by the Secretary of State for India He was assisted by the Council of India, having 15 members He was vested with complete authority and control over the Indian administration through the Viceroy as his agent The Governor-General was made the Viceroy of India. Lord Canning was the first Viceroy of India. Abolished Board of Control and Court of Directors. Indian Councils Act of 1861

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It introduced for the first time Indian representation in the institutions like Viceroy’s executive+legislative council (non-official). 3 Indians entered Legislative council. Legislative councils were established in Center and provinces. It provided that the Viceroy’s Executive Council should have some Indians as the nonofficial members while transacting the legislative businesses. It accorded statutory recognition to the portfolio system. Initiated the process of decentralisation by restoring the legislative powers to the Bombay and the Madras Provinces.

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India Council Act of 1892   

Introduced indirect elections (nomination). Enlarged the size of the legislative councils. Enlarged the functions of the Legislative Councils and gave them the power of discussing the Budget and addressing questions to the Executive. Indian Councils Act of 1909

1. This Act is also known as the Morley- Minto Reforms. 2. Direct elections to legislative councils; first attempt at introducing a representative and popular element. 3. It changed the name of the Central Legislative Council to the Imperial Legislative Council. 4. The member of Central Legislative Council was increased to 60 from 16. 5. Introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’. 6. Indians for the first time in Viceroys executive council. (Satyendra Prasad Sinha, as the law member) Government of India Act of 1919    

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This Act is also known as the Montague-Chelmsford Reforms. The Central subjects were demarcated and separated from those of the Provincial subjects. The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial subjects. Under dyarchy system, the provincial subjects were divided into two parts – transferred and reserved. On reserved subjects, Governor was not responsible to the Legislative council. The Act introduced, for the first time, bicameralism at center. Legislative Assembly with 140 members and Legislative council with 60 members. Direct elections. The Act also required that the three of the six members of the Viceroy’s Executive Council (other than Commander-in-Chief) were to be Indians. Provided for the establishment of Public Service Commission. Government of India Act of 1935

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The Act provided for the establishment of an All-India Federation consisting of the Provinces and the Princely States as units, though the envisaged federation never came into being. Three Lists: The Act divided the powers between the Centre and the units into items of three lists, namely the Federal List, the Provincial List and the Concurrent List. The Federal List for the Centre consisted of 59 items, the Provincial List for the provinces consisted of 54 items and the Concurrent List for both consisted of 36 items The residuary powers were vested with the Governor-General.

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     

The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial Autonomy’. It provided for the adoption of Dyarchy at the Centre. Introduced bicameralism in 6 out of 11 Provinces. These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United Province. Provided for the establishment of Federal Court. Abolished the Council of India. Indian Independence Act of 1947

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It declared India as an Independent and Sovereign State. Established responsible Governments at both the Centre and the Provinces. Designated the Viceroy India and the provincial Governors as the Constitutional (normal heads). It assigned dual functions (Constituent and Legislative) to the Constituent Assembly and declared this dominion legislature as a sovereign body. Points to be noted

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Laws made before Charter Act of 1833 were called Regulations and those made after are called Acts. Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were separated from District collector later by Cornwallis. From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government answerable to the legislature and people. The development of portfolio system and budget points to the separation of power. Lord Mayo’s resolution on financial decentralization visualized the development of local self-government institutions in India (1870). 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local selfgovernment. He is regarded as the ‘Father of local self-government in India’. 1921: Railway Budget was separated from the General Budget. From 1773 to 1858, the British tried for the centralization of power. It was from the 1861 Councils act they shifted towards devolution of power with provinces. 1833 Charter act was the most important act before the act of 1909. Till 1947, the Government of India functioned under the provisions of the 1919 Act only. The provisions of 1935 Act relating to Federation and Dyarchy were never implemented. The Executive Council provided by the 1919 Act continued to advise the Viceroy till 1947. The modern executive (Council of Ministers) owes its legacy to the executive council. The Legislative Council and Assembly developed into Rajyasabha and Loksabha after independence. Making of The Constitution The Constitution of India came into force on 26 January 1950. Although, the process of the evolution of the constitution had started many years before India got its independence. In fact, the constitution of India has originated from its struggle for

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independence from Britain as well as the demand for responsible and constitutional government. Most of its political part is borrowed from the constitution of Britain and has input from other constitutions as well. When India got its independence on 15 August 1947, the Constituent Assembly was set up as the sovereign body to frame the Constitution as well as ordinary laws. Although, the constitution of India is written in nature it has been amended several times. However, the amendment process is neither as rigid as we find in USA nor as flexible as we find in England. Composition and Working of the Constituent Assembly 1. In the year 1946, on 20 November a decision was taken to convene the first session of the Constituent Assembly on 9 December, 1946. 2. The members of the Constituent Assembly were chosen by indirect election by members of the Provincial Legislative Assemblies, according to the scheme recommended by the Cabinet Mission. 3. Elections to elect members from British India were held in July-August 1946. The Congress won 199 out of 210 general categories of seats. For these elections to the Constituent Assembly, only the Sikhs and the Muslims were reorganized as minorities and elections for the Constituent Assembly was not held on the basis of universal adult franchise. 4. The arrangement was: 5. 292 members were elected through the Provincial Legislative Assemblies. 6. 93 members represented the Indian Princely States. 7. 4 members represented the Chief Commissioners’ Provinces. 8. The total membership of the Assembly thus was to be 389. 9. It was also decided that out of that strength, 296 were to be from the British provinces and 93 to be from the princely Indian states. 10. The Congress also won three seats out of four Sikh seats from the Punjab, and three out of 78 seats reserved for Muslims and three seats from Coorg, Ajmer, Mewar and Delhi. The total tally of the Congress was 208 and the Muslim League won 73 out of 78 Muslim seats. 11. The Indian Muslim League tried its best to put hurdles in the smooth functioning of the Constituent Assembly, despite the best efforts of Nehru’s conciliatory gestures. 12. In this backdrop, the deliberations of the Constituent Assembly began on 9 December, 1946. 13. Before the commencement of deliberations of the Constituent Assembly, Nehru announced, “the first task of this Assembly is to free India through a constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity”. 14. The oldest member, Dr Sachchidanand Sinha was made the Provisional President of the Assembly but, the invitations were dispatched by the secretary of the assembly and not by the Viceroy, though he desired to do so.

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15. The first session was attended by 207 members. The Muslim League stayed away from the deliberations and the Congress Muslims attended the session. 16. On 11 December, Dr Rajendra Prasad was chosen by election as the first permanent Chairman of the Assembly. 17. Nehru moved the famous objectives resolution on 13 December and it was discussed for a week and they postponed the adoption of the objectives resolution as the members of the Muslim League were absent and the princely states were to join the Assembly. 18. However, as a result of the partition under the Mountbatten Plan of 3 June, 1947, a separate Constituent Assembly was set up for Pakistan and representatives of some Provinces ceased to be members of the Assembly. 19. As a result, the membership of the Assembly was reduced to 299. 20. The strength of the Indian provinces was thus reduced to 229 from 296 and of those of the princely states from 70 to 93. 21. Of these 284 were actually present on the 26th Nov, 1949 and appended their signatures to the constitution when it was finally passed. Working of the Constituent Assembly 1. In the session which took place between January 20 and 22, 1947, the objectives resolution was passed. 2. The third session of the Assembly took place from 28 April to 2 May 1947, and on 3 June the Mountbatten Plan was announced despite the absence of the Muslim League. 3. The Mountbatten Plan clearly made the partition of India as India and Pakistan certain. 4. After the declaration of Independence on 15 August, 1947, the Constituent Assembly became a sovereign body and also doubled as the legislature for the new state. It served as a constitution-making body as well as law-making organ. 5. A number of committees were created and of such committees, one was headed by B.N. Rao and the other to draft the constitution was headed by Dr B.R. Ambedkar. 6. In July 1946 itself a committee consisting of Nehru as the Chairman and Asaf Ali, K.T. Shah, D.R. Gadgil, K.M. Munshi, Humayun Kabir, R. Santhanam and N. Gopalaswamy Ayyangar as members was constituted to prepare material and proposals for the constitution. 7. The Constituent Assembly as well as the Congress Working Committee thoroughly discussed all the points. This was made clear by Austin as follows: “The Congress Assembly Party was the unofficial, private forum that debated every provision of the constitution and in most cases decided the fate before it reached the floor of the House. Every one elected to the Assembly on the Congress ticket could attend the meetings whether or not he was a member of the party or even close to it”. 8. In the constitution-making process, both Nehru and Sardar Patel played a very important role by their keen involvement. It was Nehru who spelt out the philosophy and basic features of the constitution and Sardar Patel played the decisive role in bringing in the representatives of the erstwhile princely states into the Constituent Assembly, in seeing to it that separate electorates were eliminated and in scotching any move for reservation of seats for religious minorities.

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Objective Resolutions 1. On 13 December, 1946, Pandit Jawaharlal Nehru moved the Objectives Resolution: 2. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; 3. WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts fo India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Soverign India, shall be a Union of them all; and 4. WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers and exercise all powers and functions of goverrnment and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and 5. WHEREIN all power and authority of the Soverign Independent India, its constituent parts and organs of government, are derived from the people; and 6. WHEREIN shall be guaranteed and secured to all the people of India justice, social economic and political : equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and 7. WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and 8. WHEREBY shall be maintained the integrity of the territory of the Republic and its soverign rights on land, sea, and air according to justice and the law of civilized nations; and 9. This ancient land attains its righful and honoured placed in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind. 10. This Resolution was unanimously adopted by the Constituent Assembly on 22 January 1947. 11. Late in the evening of 14 August, 1947 the Assembly met in the Constitution Hall and at the stroke of midnight, took over as the Legislative Assembly of an Independent India. 12. On 29 August, 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India. While deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled. 13. The Constitution of India was adopted on 26 November, 1949 and the hon’ble members appended their signatures to it on 24 January, 1950. In all, 284 members actually signed the Constitution. On that day when the Constitution was being signed, it was drizzling outside and it was interpreted as a sign of a good omen. 14. The Constitution of India came into force on 2 6 January, 1950. On that day, the Assembly ceased to exist, transforming itself into the Provisional Parliament of India until a new Parliament was constituted in1952

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Changes by the Independence Act 1. The Report on the functions of the Constituent Assembly under the Indian Independence Act, 1947, submitted by the Committee appointed by the President in pursuance of the decisions of the Assembly on the 20th August 1947 made all together five recommendations. 2. Its first recommendation was that, it is open to the Constituent Assembly to function as Legislature and that it should function as such. 3. While functioning as Legislature it should adopt the rules of the Legislative Assembly as far as possible with necessary amendments. 4. The necessary amendments should be made under the orders of the Please dent of the Constituent Assembly. 5. The work of the Constituent Assembly as a Constitution-making body and as an ordinary legislature should be separated and should be conducted in separate sessions to be held on separate days. 6. The power of prorogation should vest in the President and not in the Governor-General as found in the Adaptation of the Government of India Act. 7. After having made these recommendations, the Committee considered whether there were any difficulties which would stand in the way of giving effect to their recommendations and found three which they had to resolve in order to give effect to their recommendations. 8. The first was whether one and the same person should preside over both the bodies, the Constituent Assembly and the Legislature. This difficulty arose because section 22 of the Government of India Act, which related to the office of the Speaker, had been dropped by the Adaptations which have been carried out under the Indian Independence Act with the result that the President was the one person who has to preside over both, the Constitution-making body as well as the Legislature. Ordinarily speaking, this should not have created any difficulty, but in the circumstance where for instance the President is a Minister of the State, this difficulty may arise. Consequently the Committee thought that either of two courses has to be adopted; either the President should cease to be a Minister, or, if he continues to be a Minister, the Assembly should elect another officer to be called the Speaker or Deputy President whose functions it would be to preside over the Constituent Assembly when it is in session for the purpose of making laws. 1. The second difficulty which the Committee came across was with regard to the representatives of the States. The Constituent Assembly, when it would be meeting for the purposes of law making, would be operating upon the whole field which has been included in List No. 1 of the Seventh Schedule to the Government of India Act. The States had joined the Constituent Assembly on the basis of what is called the Instrument of Accession.The question that arose was whether a body of people, who are Members of the Constituent Assembly and who are bound by the Instrument of Accession and have responsibility for a shorter number of items, should be permitted to take part in motions and in debates relating to certain other subjects which were not included in the list contained in the Instrument of Accession. The Committee made the recommendation that notwithstanding the subjects contained in List No. 1 and the Instrument of Accession, the representatives of the Indian States should continue to take part in all

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motions that may relate to all subjects irrespective of the distinction between the two lists. 2. The third question which the Committee felt they had to deal with was the position of the Ministers. The question arose for consideration whether the Ministers who were Members of the Constituent Assembly should take part in the proceeding of the Constituent Assembly and also in the Legislature. Under that, therefore, the Ministers who were not Members of the Costituent Assembly will be eligible to sit in the Constituent assembly when its functions as a Legislature, without ceasing, to be Minister of State. 3. The question that remained was what was to happen with regard to their relationship to the Constituent Assembly. As they were not Members of the Constituent, Assembly, they were not entitled to participate in the work of the Constituent Assembly so far as it related to the making of the Constitution. The Committee came to the conclusion that it was necessary that their guarantee should be available to the Constituent Assembly in the matter of constitution-making and therefore just as Section 10 sub-clause (2) permits them to participate in the work of the Legislature so also the Constituent Assembly should make a provision which would permit Members of Government who are not Members of the Constituent Assembly also to participate in the work of the Constituent Assembly. 4. There were two other matters about which the Committee had made no recommendation. The first matter was the question of double membership. There were certain Members of the Constituent Assembly who were also Members of the Provincial Legislature. So far there is no anomaly, because the Constituent Assembly is not a Legislature. But when the Constituent Assembly begins to function as a Legislative Body, this conflict due to double membership will undoubtedly arise. 5. The second question about which the Committee had made no recommendation was related to the administrative- organization of the Assembly. As the administrative organization in the Assembly was a single unified organization, it was under the exclusive control of the President of the Constituent Assembly. So long as the Constituent Assembly had only this single and solitary function to perform, namely, to prepare the constitution, there was no difficulty, in this matter. But when the Constituent Assembly would function in its double capacity, once as the constitution-making body and another time as a law-making body with another person at the head of it, namely, the Speaker or the Deputy Speaker, questions with regard to the adjustment of the staff may arise. But the Committee thought that they were not entitled under the terms of reference to deal with this matter and therefore did not make any reference to it at all. 6. The functions of the Assembly were: 7. To continue and complete the work of Constitution-making which commenced on the 9th December, 1946, and 8. To function as the Dominion Legislature until a Legislature under the new Constitution came into being. 9. The business of the Assembly as a Constitution-making body would be clearly distinguished from its normal business as the Dominion Legislature, and different days or separate sittings on the same day would be set apart for the two kinds of business. 10. The members of the Assembly representing the Indian States were entitled to take part in the proceedings of the Assembly on all days get apart for the business of Constitution-making. They further had the right on days set apart for the functioning of

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the Assembly as the Dominion Legislature to participate in business, relating to subjects in respect of which the States have acceded to the Dominion. Work 1. When the Constituent Assembly first met on December 9, 1946 J.B. Kripalini, the then Congress President, proposed the name of Dr. Sachidananda for the post of the Provisional President. Later on December 11, Dr. Rajendra Prasad as elected as the President of the Constituent Assembly. 2. The manner in which the Constituent Assembly arrived at decisions was that of consensus defined as manner of making decision by unanimity or near unanimity. An effort was made to smoothen differences and arrive at compromises and agreement. 3. The objective was to overcome the biases and an element of overruling dissent, ingrained in decision by majority. Some constitutional experts believe that accommodation would be a better word than consensus to describe the procedure adopted in the Constituent Assembly as-most of the decisions were those of the Congress Party. 4. Issues which raised some heat before, compromises were arrived at included the centerstate-relations, Judiciary role in interpreting the constitution, the entire constitution of balancing personal rights and national integrity, personal rights and the needs of socio economic development and the matter of special rights for minorities and depressed class. 5. It took almost three years (two years, eleven months and seventeen days to be precise) to complete its historic task of drafting the Constitution for Independent India. 6. During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were spent on the consideration of the Draft Constitution. The eleventh session was held between 14 November to 26 November 1949. Committees of the Indian Constitution 1. The Constituent Assembly appointed several committees for framing the constitution. Some of the important committees were: 2. Union powers committee of members chaired by Jawaharlal Nehru. 3. The committee on Fundamental Rights and minorities of 54 members chaired by Sardar Patel. 4. The committee on Union constitution of 15 members with Jawaharlal Nehru-as Chairman. 5. The provincial constitution committee of 25 members chaired by K.R. Munshi. 6. These committees submitted their reports between April & August 1947. 7. This draft contained 240 clauses and 13 schedules in order to consider the Draft constitution; a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar was set up. 8. While the formal centers of the work of drafting the constitution were no doubt the Constituent Assembly and Drafting Committee, the Congress leaders held the important powers of decision-making. 9. In a way the Congress Working Committee was the real architect of the constitution in that most of the important decisions were arrived at on the basis of what the Congress leaders suggested.

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10. Granvile Austin points out those four men – Jawaharlal Nehru, Sardar Patel, Rajendra Prasad and Abul Kalam Azad – constituted a virtual oligarchy in the Assembly and dominated the proceedings by virtue of the prestige and power they enjoyed both in the Congress and in the Government. Important Committees of the Constituent Assembly IMPORTANT COMMITTEES OF THE CONSTITUENT ASSEMBLY AND THEIR CHAIRMEN Name of the Committee

Chairman

1.

Committee on the Rules of Procedure

Rajendra Prasad

2.

Steering Committee

Rajendra Prasad

3.

Finance and Staff Committee

Rajendra Prasad

4.

Credential Committee

Alladi Krishnaswami Ayyar

5.

House Committee

B. Pattabhi Sitaramayya

6.

Order of Business Committee

K.M. Munsi

7.

Ad hoc Committee on the National Flag

Rajendra Prasad

8.

Committee on the Functions of the Constituent Assembly

G.V. Mavalankar

9.

States Committee

Jawaharlal Nehru

10. Advisory Committee on Fundamental Rights, Minoritiesand Tribal and Excluded Areas

Vallabhbhai Patel

11.

J.B. Kripalani

Fundamental Rights Sub-Committee

12. North-East Frontier Tribal Areas and Assam Exluded & Partially Excluded Areas Sub-Committee

Gopinath Bardoloi

13. Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee

A.V. Thakkar

14.

Union Powers Committee

Jawaharlal Nehru

15.

Union Constitution Committee

Jawaharlal Nehru

16.

Drafting Committee

B.R. Ambedkar

Drafting Committee 1. On 29 August 1947, a Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor. 2. These members were Pandit Govind Ballabh Pant, Kanaiyalal Maneklal Munshi (K M Munshi, Ex- Home Minister, Bombay), Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar (Ex-Prime Minister, J&K and later member of Nehru Cabinet), B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer).

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3. The constitutional advisor was Sir Benegal Narsing Rau (who became First Indian Judge in International Court of Justice, 1950–54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara). 4. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947. A Draft constitution was debated and over 2000 amendments were moved over a period of two years. 5. Finally on 26 Nov. 1949, the process was completed and the Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete. 6. The Drafting Committee prepared the first Draft of the constitution. This was then circulated for the comments of jurists, lawyers, judges and other public men. 7. In the light of this criticism Drafting Committee prepared a second draft which consisted of 315 Articles and 9 Schedules. 8. The second Draft was placed before the Constituent Assembly in Feb, 21-1948. The Draft was then considered clause by clause by the Assembly. 9. The third reading commenced on Nov-14 and was finished on Nov-26, 1949. On this date the constitution received the signature of the President of the Assembly and was declared as passed. It had taken 2 years 11 months and 18 days to complete the task. Enactment and Enforcement of the Constitution 1. The tasks mentioned above continued till November 26, 1949 when the Constitution was adopted and some provisions came into force on that day itself. But the major part (remaining provisions) came into force on January 26, 1950. However, the Assembly continued to act as provisional parliament till the formation of new Parliament after the first general elections in 1951-52. 2. The Constitution of India is the world’s lengthiest written constitution with 395 articles and 8 schedules. It contains the good points taken from the constitutions’ of many countries in the world. It was passed on 26 Nov 1949 by the ‘The Constituent Assembly’ and is fully applicable since 26 Jan 1950. 3. The Constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It follows a British parliamentary pattern with a lower and upper house. It embodies some Fundamental Rights which are similar to the Bill of Rights declared by the United States constitution. It also borrows the concept of a Supreme Court from the US. 4. India is a federal system in which residual powers of legislation remain with the central government, similar to that in Canada. The constitution provides detailed lists dividing up powers between central and state governments as in Australia, and it elaborates a set of Directive Principles of State Policy as does the Irish constitution. 5. The constitution has provision for Schedules to be added to the constitution by amendment. The ten schedules in force cover the designations of the states and union territories; the emoluments for high-level officials; forms of oaths; allocation of the number of seats in the Rajya Sabha. A review of the constitution needs at least twothirds of the Lok Sabha and Rajya Sabha to pass it.

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6. The Indian constitution is one of the most frequently amended constitutions in the world. In fact the first amendment to it was passed after only a year of the adoption of the constitution and instituted numerous minor changes. 7. Many more amendments followed, at a rate of almost two amendments per year since 1950. 8. Most of the constitution can be amended after a quorum of more than half of th e members of each house in Parliament passes an amendment with a two-thirds majority vote. 9. Articles pertaining to the distribution of legislative authority between the central and state governments must also be approved by 50 percent of the state legislatures.

Enforcement of the Indian Constitution 1. India was officially declared to be a Sovereign Republic on 26th January, 1950 only in commemoration of above-said Purna Swaraj declaration. 2. In 1929, at the annual session of Congress at Lahore, “Purna Swaraj” or complete independence was accepted as the goal of the Congress. And on the banks of the river Ravi, at midnight on 31 December 1929, the tricolour flag of Indian independence was unfurled amidst cheer and jubilation. And 26 January 1930 was fixed as the first Independence Day. 3. Even before the independence, Congress had passed a resolution saying that from January 26 1930, India will celebrate its independence on January 26 every year. 4. To commemorate this historical day, it was decided to enforce the Constitution on 26th January 1950. 5. That is why, even though the Constitution had passed on Nov 26 1949, it came into force from January 26, 1950 and replaced the 1935 Government of India act. 6. On that day, Rajendra Prasad was sworn in as India’s first President, replacing the King as the head of the state. 7. Few of the Articles of the Constitution came into force on November 26, 1949 itself, that included Article 5,6,7,8,9,60,324,366,379,380,388,391,392 and 393. Criticism of the Constituent Assembly 1. Every great step in the history is followed by the criticism of the same. In the same manner, the Constituent Assembly was also criticized. Some of the points included: 2. The Constituent Assembly was not a representative body as its members were not directly elected by the people of India. 3. As the Constituent Assembly was created on the proposals of the British Government, some people didn’t consider it as a Sovereign body. 4. Some compared it to the framers of the American Constitution, who constituted the American Constitution in 4 months, stating that the constituent assembly consumed too much time. 5. Granville Austin even stated that “The Constituent Assembly was a one-party body”. 6. Critics stated it as a “Lawyer-Politician Domination.” 7. And above all, some even named it as a “Hindu Dominated Constituent Assembly”.

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Salient Features of the Constitution of India 1. Preamble of the Constitution: 2. The Preamble to the Constitution of India is a well drafted document which states the philosophy of the constitution. 3. It declares India to be a Sovereign Socialist Secular Democratic Republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation. 4. The Preamble is the key to the constitution. It states in nutshell the nature of Indian state and the objectives it is committed to secure for the people. 2. The Constitution mentions that India is a Democratic socialist state: 3. Although, right from the beginning the Indian Constitution fully reflected the spirit of democratic socialism, it was only in 1976 that the Preamble was amended to include the term ‘Socialism’. 4. It is now regarded as a prime feature of Indian state. 5. India is committed to secure social, economic and political justice for its entire people by ending all forms of exploitation and by securing equitable distribution of income, resources and wealth. This is to be secured by peaceful, constitutional and democratic means. 3. Right to Religious Freedom: 4. India gives special status to no religion. There is no such thing as a state religion of India. 5. This makes it different from theocratic states like the Islamic Republic of Pakistan. 6. Further, Indian secularism guarantees equal freedom to all religions. The Constitution grants the Right to Religious Freedom to all the citizens. 4. The Constitution of India provides for a democratic system: 5. The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights. 6. On the basis of these rights, the people freely participate in the process of politics. They elect their government. 7. Free fair and regular elections are held for electing governments. 8. For all its activities, the government of India is responsible before the people. The people can change their government through elections. 9. No government can remain in power which does not enjoy the confidence of the people. India is the world’s largest working democracy. 5. India is a Republic: 6. The Preamble declares India to be a Republic.

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7. India is not ruled by a monarch or a nominated head of state. India has an elected head of state (President of India) who wields power for a fixed term of 5 years. 8. After every 5 years, the people of India indirectly elect their President. 6. India is a Union of States: 7. Article I of the Constitution declares, that “India that is Bharat is a Union of States.” 8. The term ‘Union of State’ shows two important facts: 

That the Indian Union is not the result of voluntary agreement among sovereign states.



The states of India do not enjoy the right to secede from the Union.

1. At present, India has 28 States and 7 Union Territories. 7. Mixture of Federalism and Unitarianism: 8. While describing India as a Union of States, the Constitution provides for a federal structure with a unitary spirit. 9. Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with a unitary bias, or even as ‘a Unitarian federation.’ 10. Like a federation, the Constitution of India provides for: 

A division of powers between the centre and states,

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A written, rigid and supreme constitution and an independent judiciary with the power to decide centre-state disputes and a Dual administration i.e. central and state administrations.

1. India is a federation with some Unitarian features. This mixture of federalismUnitarianism has been done keeping in view both the pluralistic nature of society and the presence of regional diversities, as well as due to the need for securing unity and integrity of the nation. 8. Mixture of Rigidity and Flexibility: 9. The Constitution of India is rigid in parts. 10. Some of its provisions can be amended in a difficult way while others can be amended very easily. 11. In some cases, the Union Parliament can amend some parts of the Constitution by passing a simple law. 12. Article 368, of the Constitution provides for two special methods of amendment: 

Most of the provisions of the Constitution can be amended by the Union Parliament by passing an Amendment Bill by a majority of total membership and 2/3rd majority of members present and voting in each of its two Houses.



For the amendment of some specified parts, a very rigid method has been provided. Under it, first the Union Parliament passes the Amendment Bill by a majority of total membership and 2/3rd majority of members present and voting in each house , and

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then it goes to the State Legislatures for ratification. The Amendment gets passed only when it is approved by not less than one half of the several states of the Union. 1. Thus the Constitution of India is partly rigid and partly flexible. 9. Fundamental Rights: 10. Under its Part IIIC Articles 12-35), the Constitution of India grants and guarantees Fundamental Rights to its citizens. Initially, 7 Fundamental Rights were granted but after the deletion of the Right to Property from the list of Fundamental Rights (44th Amendment Act 1979) their number came down to six. 11. The Six Fundamental Rights are: 

Right to Equality: It provides for Equality before Law, End of Discrimination, and Equality of Opportunity, abolition of untouchability and abolition of Titles.



Right to Freedom: It incorporates six fundamental freedoms -freedoms of speech and expression, freedom to form associations, freedom to assemble peaceably without arms, freedom to move freely in India, freedom of residence in any part, and freedom of adopting any profession or trade or occupation. It ensures personal freedom and protection in respect of conviction for certain offences.

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Right against Exploitation: This Fundamental Right prohibits sale and purchase of human beings, forced labor and employment of children in hazardous jobs and factories.

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Right to Freedom of Religion: The grant of this right involves the freedom of conscience, religion and worship. Any person can follow any religion. It gives to all religions freedom to establish and maintain their religious institutions. Mo person can be compelled to pay any tax for the propagation of any religion. The state cannot levy a tax for any religion and constitution prohibits the imparting of religious instructions in schools and colleges.

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Right to Cultural and Educational Rights: Under this category the Constitution guarantees the rights of the minorities to maintain and develop their languages and cultures. It also confers upon them the right to establish, maintain and administer their educational institutions.

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Right to Constitutional Remedies (Art. 32): This fundamental right is the soul of the entire Bill of Rights. It provides for the enforcement and protection of Fundamental Rights by the courts. It empowers the Supreme Court and High Courts to issue writs for the enforcement of these rights.

10. Fundamental Duties of the Citizens: 11. In its Part IVA (Article 51 A) the Constitution describes the following Fundamental Duties of a citizen: 

Respect for the Constitution, the national flag and the national anthem;

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Cherish the noble ideals of the freedom struggle;

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Uphold and protect the sovereignty, and integrity of India;

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

Defend the country and render national service when called;

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Promote the common brotherhood of all the people of India and renounce any practice derogatory to the dignity of women;

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Preserve the rich heritage of the nation’s composite culture;

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Project the natural environment and have compassion for living creatures;

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Develop scientific temper, humanism and spirit of inquiry and reform;

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Safeguard public property and abjure violence;

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Strive for excellence in all individual and collective activity;

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Duty of the parents to send their children to schools for getting education;

12. The Fundamental Duties are, however, not enforceable by the courts. 11. Bi-Cameral Union Parliament: 12. The Constitution provides for a Bicameral Legislature at the Union level and names it as the Union Parliament. 13. Its two Houses are: The Lok Sabha and the Rajya Sabha. 14. The Lok Sabha is the lower, popular, directly elected house of the Parliament. It represents the people of India. 

Its maximum strength stands fixed at 550 members. The people of each state elect representatives in proportion to their population.



Members of the Lok Sabha are directly elected by the people of India. All men and women of 18 years or above of age whose names are registered in the voters lists vote in elections for electing the members of Lok Sabha.

1. Every voter of 25 years or above of age is eligible to contest elections to the Lok Sabha. 2. The tenure of the Lok Sabha is 5 years. But the President acting under the advice of Prime Minister can dissolve it earlier also. 1. The Rajya Sabha is the upper and, indirectly elected second House of Parliament. 

It represents the states of the Indian union.



Its maximum membership can be 250.

1. Out of these 233 members are elected by all the State Legislative Assemblies and 12 are nominated by the President from amongst eminent persons from the fields of Art, Science and Literature. 2. The Rajya Sabha is a quasi-permanent house. 1/3rd of its members retire after every two years. Each member has a tenure of six years. 1. Of the two houses, of Parliament, the Lok Sabha is a more powerful House. It alone has financial powers. The Union Council of Ministers is collectively responsible before

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the Lok Sabha. However, the Rajya Sabha is neither as powerless as the British House of Lords and nor the Lok Sabha is as powerful as the British House of Commons. 12. Parliamentary System: 13. The Constitution of India provides for a parliamentary system of government at the Centre as well as in every state of the Union. 14. The President of India is the constitutional head of state with nominal powers. 15. The Union Council of Ministers headed by the Prime Minister is the real executive. 16. Ministers are essentially the members of the Union Parliament. 17. For all its policies and decisions the Council of Ministers is collectively responsible before the Lok Sabha. 18. The Lok Sabha can remove the Ministry by passing a vote of no-confidence. 19. The Cabinet, in fact the Prime Minister has the power to get the Lok Sabha dissolved by the President. 20. On similar lines, a parliamentary government is also at work in each state. 13. Adult-Suffrage: 14. Another feature of the Constitution is that it provides for universal adult suffrage. 15. All men and women enjoy an equal right to vote. Each adult man and woman above the age of 18 years has the right to vote. 16. All registered voters get the opportunity to vote in elections. 14. Single integrated State with Single Citizenship: 15. India is the single Independent and Sovereign integrated state. 16. Presently it has 28 states and 7 Union Territories. 17. All citizens enjoy a common uniform citizenship. 18. They are entitled to equal rights and freedoms, and equal protection of the state. 15. Single Integrated Judiciary: 16. The Constitution provides for a single integrated judicial system common for the Union and the states. 17. The Supreme Court of India works at the apex level, High Courts at the state level and other courts work under the High Courts. 18. There are 21 State High Courts working in all parts of India.. The Supreme Court is the highest court of the land. It controls and runs the judicial administration of India. 16. Independence of Judiciary: 17. The Indian Constitution makes judiciary truly independent. It is clear from the following facts: 

Judges are appointed by the President,

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

Only persons with high legal qualifications and experience are appointed as judges,

1. Judges of the Supreme Court cannot be removed from office except through an extremely difficult process of implement. 2. The salaries of the judges are very high, 3. The Supreme Court has its own staff. 1. Indian judiciary has an autonomous organisation and status. 2. It works as an independent and powerful judiciary. 17. Judicial Review: 18. The Constitution is the supreme law of the land. 19. The Supreme Court acts as the guardian protector and interpreter of the Constitution. 20. It is also the guardian of the Fundamental Rights of the people. For this purpose it exercises the power of judicial review. 21. By it, the Supreme Court determines the constitutional validity of all laws made by the legislatures. It can reject any law which is found to be unconstitutional. 22. Judicial Activism: 23. Through the Public Interest Litigation system (PIL) as well as through a more active exercise of its powers, the Indian judiciary has been now very actively trying to secure all public demands and needs due to them under the laws and policies of the state. 19. Emergency Provisions: 20. The Constitution of India contains special provisions for dealing with emergencies. 21. It recognizes three types of possible emergencies: 

National Emergency (Article 352) an emergency resulting from war or external aggression or threat of external aggressions against India or from armed rebellion within India or in any of its part;



Constitutional Emergency in a State (Article 356), an emergency resulting from the failure of constitutional machinery in any state; or some states and



Financial Emergency (Article 360), an emergency resulting from a threat to financial stability of India.

1. The President of India has been empowered to take appropriate steps for dealing with these emergencies. During the period of an emergency, the powers of the President, actually of the PM and the Union Council of Ministers Cabinet increase tremendously. President can take all steps deemed essential for meeting an emergency. These are called emergency powers of the President. 20. Special Provisions relating to Scheduled Castes and Scheduled Tribes: 21. With a view to protect the interests of people belonging to Scheduled Castes and Scheduled Tribes, the Constitution lays down certain special provisions.

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22. It provides for reservation of seats in the legislatures for the people belonging to Scheduled Castes and Scheduled Tribes. 23. The President can nominate in the Lok Sabha not more than two members of the Anglo-Indian Community, in case he is of the opinion that this community is not adequately represented in the House. 24. Reservation of some jobs for the people belonging to SCs, STs and OBCs has also been in operation. 25. The reservation system has been now extended upto the year 2020. Presently, a bill for granting 33% reservation of legislative seats for women is in the process of getting enacted into law. 21. Provisions regarding Language: 22. The Constitution lays down special provisions for defining the Language of the Union, Regional Languages and Language of the Supreme Court and High Courts. 23. It states that the official language of the Union shall be Hindi in Devnagri script. 24. But along with this, it also provides for the continuance of English language. 25. A state legislature can adopt the language of the province as its official language. 26. English continues to be the language of the Supreme Court and the High Courts. 27. The Constitution gives a directive to the Union to develop Hindi and popularise its use. 28. In its Eighth Schedule, the Constitution recognises 22 modern Indian Languages — Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Nepali, Manipuri, Konkani, Sanskrit, Sindhi, Tamil, Telgu, Urdu, Bodo, Dogri, Maithli and Santhali. 22. A Constitution Drawn from several Sources: 23. In formulating the Constitution of India, the founding fathers used several sources. 24. The values and ideals of the national movement guided their path. 25. The national movement influenced them to adopt secularism as the ideal. Some provisions of Government of India Act 1935 were used by them and several features of foreign constitutions influenced them, and were adopted by them. 26. In adopting parliamentary system and bicameralism, the British Constitution influenced them. 27. The US Constitution influenced them in favour of republicanism, independence of judiciary, judicial review and bill of rights. 28. The progress of the (former) USSR after the 1917 Socialist Revolution influenced them to adopt socialism as a goal. 29. Likewise, they were influenced by the constitutions of Canada, Australia, Weimar Republic (Germany) and Ireland.

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With all these features, the Indian Constitution is a constitution best suited to the Indian environment. The Constitution has been helping India to organise and run her government and administration in an effective way both in times of peace and war. Preamble of Indian Constitution Introduction The word ‘Preamble’ means a preliminary or introductory statement in speech or writing. Every constitution has a preamble with which it begins and which embodies its objectives or basic purposes. The preamble, like the long title, is a part of statue and is an admissible aid to its construction. In the words of Dyer, C.J., the preamble is the “key to open the minds of the makers of the Act, and the mischief’s which they intended to redress.” The Constitution of India begins with a Preamble which describes the nature of the Indian State and the objectives it is committed to secure. The Preamble reads: We, the People of India having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens; Justice, social, economic, political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and to promote among them all; Fraternity, assuring the dignity of the individual and the unity and integrity of the nation; In our Constituent Assembly this, twenty sixth day of November 1949 do hereby Adopt, Enact and Give to ourselves this Constitution. The words ‘Socialist’, ‘Secular’, and ‘Integrity’ were initially not there in the Preamble. These were added by the 42nd Amendment (1976) of the Constitution. Essential Ingredients of the preamble – Reading the preamble, one can see the purposes, that it serves’, the declaration of: 1. 2. 3. 4.

The source of the constitution, Government, Objectives of the political system, and Date of its adoption and enactment.

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1. The source of the constitution: 2. The opening and closing words of the people, “we, the people of India, adopt, enact and give to ourselves this constitution” convey that the constitution emanated from the people and the sovereignty-under the constitution vested in the people. 3. Most of the modern constitutions emphasise the same principle. 4. Since the constituent Assembly enacted and adopted the constitution in the name of the people of India, the question has been asked whether the Assembly was really representative of the people of India. 2. Type of Government: 3. The polity assured to the people of India by the constitution is described in the preamble as a sovereign, socialist, secular, Democratic Republic. 3. Objectives of the political systems: 4. The preamble proceeds further to define the objectives of the Indian politics system. These objectives are four in number justice. Liberty, equality and fraternity. 4. Date of Adoption and Enactment: 5. The last part of the Preamble mentions the date, which is the twenty-sixth day of November, 1949 on which the constituent Assembly adopted, enacted and gave this constitution to the nation. The preamble came into force only on January 26, 1950. A proposal was made in the constituent Assembly that the preamble should come in to force on November 26, 1949, but the said proposal was rejected. Features of the Preamble 1. The preamble is like a ‘Jewel’ set in the constitution. The preamble is the most precious part of the constitution. It is a key to the constitution. It normally expresses the political, moral and religious values which the constitution is intended to promote. 2. It embodies the spirit of the constitution, the determination of the Indian people to unite them in a common adventure of building up a new and independent nation which will ensure the triumph of justice, liberty, equality and fraternity. It outlined the essentials of the constitution, which was to be formed by the constituent Assembly, and thus, laid down “the horoscope of our sovereign Democratic Republic.” 3. The preamble is the quiet essence of the Indian it embodies the basic philosophy and throws light on its It is a combination of the philosophy of job revolutions, the Persian and the French. 4. The preamble is the unique part of the constitution sense that it represents the entire constitution in its written words and much more, that it is a vital part of the constitution not in the sense that it is unalterable or amendable on the ground that it contains the basic features of the constitution, but sense that it enables one to understand the constitution. Key words in the Indian Preamble

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1. The expression ‘Sovereign‘ signifies that the Republic is externally sovereign. It had already ceased to be dependency of the British Empire by the passing of the Indian Independence Act, 1947. From the 15th of August, 1947, to the 26th January, 1950, her political status was that of a Dominion in the British common wealth of Nations. But with the inauguration of the present constitution, India became a Sovereign Republic like the United States of America. However, India is still a member of the Commonwealth of Nations. 2. The fact that India is a sovereign state is an essential attribute of sovereignty that a sovereign state can acquire foreign territory and can in case of necessity cede a part of its territory in favor of a foreign state. 3. It cannot be assumed that the preamble which declares India to be ‘Sovereign’ makes a serious inroad on one of the essential attributes of sovereignty itself. National territory, therefore, can be ceded by amending the constitution. 4. Legal sovereignty is vested in the people of India. The political sovereignty is distributed between the union and the states with greater weightage in favor of the fact that the State does not possess any absolute sovereignty. There exists a dual relationship in India; and citizens are citizens of India and not of the various state in which they are domiciled. 2. The word ‘Socialist‘ added by the 42nd Amendment is intended to bring out that ours is a socialist state which secure to its people, ‘Justice – Social, economic and political.’ 3. Its inclusion in the preamble was objected on the ground that it is a vague expression and means different to different persons. 3. The word ‘Secular‘ has also been added by the 42nd constitution Amendment Act, 1976. 4. It highlights that the state shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and right freely to practice and propagate religion. 5. The provisions of right to freedom of religion ensuring freedom of conscience and free profession, practice and propagation of religion, freedom to manager religious affairs and right to equality clearly implied that India is a “secular Republic”. 4. The term ‘Democratic‘ is comprehensive. 5. In a narrow political sense it refers only to the form of Government, a representative and responsible system under which those who administrate affairs of the state are chosen by the electorate and accountable to them. 6. But in its broadest sense, it embraces, in addition political democracy also social and economic democracy. The terms ‘democratic’ is used in this sense in the preamble. 5. The term ‘Republic‘ implies an elected head of the state. A democratic state may have on elected or a hereditary head. 6. Under a republican form, the head of the state, single or collective is always elected for a prescribed period. 7. By deciding to become a republic, India has chosen the system of electing of its citizens as its President the head of the state at regular intervals. 6. ‘Justice’ implies a harmonious reconcilement of individual conduct with the general welfare of society.

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7. The term ‘Liberty‘ is used in the preamble not merely in a negative but also in a positive sense. 8. Not only does it signify the absence of any arbitrary restraint on the freedom of individual action, but it also ensures the creation of conditions which provide the essential ingredients necessary for the fullest development of the personality of the individual. 8. ‘Liberty’ is incomplete without ‘Equality’. In fact, Liberty and Equality are complementary. 9. Equality does not mean that all human beings are equal mentally and physically. 10. It signifies equality of status, the status of free individuals and equality of opportunity. 9. Finally, the preamble emphasizes the objective of ‘Fraternity’ in order to ensure both the dignity of the individual and the unity of the nation. 10. By fraternity is understood a spirit of brotherhood, the promotion of which is absolutely essential in our country which is composed of people of many races and religions. 10. ‘Dignity’ as a word of moral and spiritual import imposes a moral obligation, on the part of the union to respect personality of the citizen and to create conditions of work which will ensure self- respect. 11. The incorporation of the phrase ‘dignity of the individual’ is an express rejection of the Hegelian theory on which modern totalitarianism is based. The unity of the nation stands on the basis of the dignity of the individual. 12. The use of words ‘unity and Integrity’ has been made to prevent tendencies of regionalism, provisionalism, linguism, communalism and secessionist and separatist activities more and more so that the dream of national integration on the lines of enlightened secularism is achieved. Significance of the Indian Preamble The significance of the Preamble lies in its components. It embodies the source of the Constitution i.e., the people of India. 1. The terms sovereign, socialist, secular, democratic, republic in the Preamble suggests the nature of the state. 2. The ideals of justice, liberty, equality, fraternity reflects the objectives of the Constitution. 3. It also contains November 26, 1949 as the date of adoption of the Indian Constitution. The philosophy of the Indian Constitution is reflected in the Preamble. 1. The independence of India earned through struggle for independence is sought to be emphasized by the use of the word ‘Sovereign’ in the Preamble. 2. The Gandhian ideal is aimed to be secured by the incorporation of the word ‘Socialist’ in the Preamble by the 42nd Amendment. The same amendment inserted the word ‘Secular’ to reflect the secular nature of Indian society.

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The word ‘Republic’ in the Preamble indicates that India has an elected head, though indirectly elected, the Indian President is the choice of the people of India. Fundamental values are further strengthened by the word ‘Democratic’ in the Preamble. To emphasize these values the Constitution framers have resorted to the use of the concepts like justice, liberty, equality and fraternity. Liberty is guaranteed to the individuals through the provision of Fundamental Rights, which are enforceable in the court of law. The Preamble secures to all citizens equality of States and opportunity in civic, political. The unity and integrity of the nation is sought to be secured by the use of the word ‘Fraternity’ in the Preamble and by the provisions of fundamental duties and single citizenship in the Constitution. An analysis of the preamble reveals that the source of the constitution is “We, the people.” 1. But the constitutions were neither framed by the people nor were the members of the Constituent Assembly directly elected representatives of people. 2. They were elected under the Cabinet Mission Plan during the British rule on the basis of restrictive franchise. 3. Yet the claim that the constitution is derived from the people is justified because of its broad-based popular acceptance ever since it came into force. Preamble as part of the Indian Constitution Unlike the Constitutions of the USA, Canada or even Australia, the Indian Constitution starts with an elaborate Preamble. The Preamble does not grant any power, but it gives a direction and a purpose to the Constitution. Ordinarily, the Preamble is not regarded as the part of the statute and earlier was not considered as forming the part of Indian Constitution. (Refer to In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845) But this view is no longer in existence. The Preamble is seen as an integral part of the Constitution and the Honorable Supreme Court has referred to it several times while interpreting the provisions of the Constitution. In the 1973 landmark case of Kesavananda Bharati v. Union of India(AIR 1973 SC 1461), the majority of the judges of the Bench laid down that the Preamble does form a part of the Constitution. Amendment of The Indian Preamble Any part of the Constitution may be amended as long as the basic structure of the Constitution is not violated. In the landmark judgment of the Kesavananda Bharati case, the SC propounded the Basic Structure Doctrine. As per this doctrine, the Parliament had the power to amend any part of the Constitution and there were no fetters on its power.

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Technically, no part is un-amendable. But the rider is that the amendment shouldn’t violate the Basic structure. The Preamble of the Constitution can be amended under Article 368 of the Constitution. However, the amendment is subject to the condition that it should not alter the “basic structure” of the Constitution. The doctrine of “basic structure” was devised by the Supreme Court in the Kesavananda Bharati case to prevent any misuse of the amending power granted to the Parliament. The Supreme Court stopped short of defining or clarifying what all constitutes the basic structure of the Constitution. In its various judgments, the Supreme Court has come to include some principles as the part of the basic structure. The ones relevant to the Preamble are: 1. Supremacy of the Constitution 2. Sovereign, democratic, republican nature of the Indian polity 3. Secular character of the Constitution 4. Unity and integrity of the nation 5. Welfare state 6. Rule of law 7. Independent judiciary 8. Principle of equality 9. Effective access to justice 10. Freedom and dignity of the individual The Preamble has only once been amended till date (i.e. 2017): in 1976, by the 42nd Constitutional Amendment Act. The Act added three new words: “socialist”, “secular” and “integrity” to the Preamble. Amendment under Article 368 means that to be passed, it requires a special majority (i.e., more than half of the membership and more than two-thirds of the members present and voting) in both the Houses of Parliament (i.e., Lok Sabha and Rajya Sabha). Union and its Territory Union of States ‘Union’ means anything to do with the whole country. If we talk about the Union Government, we may simply mean that it is a government which the whole country operates by not having any interrelation to any internal federation. But a Union Government actually runs along with the Federal government (having a few exceptions in some countries like the People’s Republic of China). Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people are living under a single imperium derived from a single source.

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The constitutional system of India is basically federal but with striking unitary features. To support this conclusion, let us look at some of the essential minimal features of the federal system. 1. Dual Government-In a federal system, there are two governments- a Union Government and a Government of each component state. While in a unitary state, there is only one government (likewise China). 2. Distribution of powers- A Federal state has the division of authority between the Central and state governments (Ex. Maharashtra) though the method of distribution may not be alike in federal system (Ex. Jammu and Kashmir). 3. Supremacy of the constitution-A Federal state derives its existence from constitution, just as corporation derives its existence from grant of statute by which it is created. Every power – executive, legislative, or judicial whether it belongs to centre or state is subordinate to and controlled by constitution likewise India 4. Authority of the Courts– Democracy is solely dependent on the distribution of powers. Distribution of powers among the Union and state governments and coordinate branches of government is secured by vesting in the courts a final power to interpret the constitution and nulify action of the Government or their organs, which violates the provision of the Constitution. But the following features of the federal system are not found in the system adopted by India: 1. Mode of formation– Voluntary agreement between the sovereign and independent states for administration of certain affairs, which is in the USA. 2. Position of the states in the federation. 3. Nature of polity– Dual citizenship, a double set of officials and a double system of courts, likewise in the USA. So, basically India has a federal system with striking unitary features. The Government of India did not itself adopt the name as India, it is provided for in our Constitution. Constitutionally our country is named as both Bharat as well as India. There had been many deliberations in our Constituent Assembly and finally the two names were adopted, citing various operational and historical reasons. On September 18, 1949, the Constituent Assembly deliberated upon the ‘namakaran’ or naming ceremony for the newborn nation. Various suggestions were made. In the end, the Assembly resolved as follows: “Article 1. Name and territory of the Union. 1.1. India, that is Bharat, shall be a Union of States.” The Indian constitution is Quasi-Federal. It has all the elements of a federation but still, the union government holds the last say. It is different from other types of unitary government as such union on certain issues can’t make laws on certain aspects and needs the consent of state to make it a nationwide law, a deviance from unitary

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structure. But at the same time, the union has special powers to override the state government’s laws through presidential means. This makes it un-Federal. Due to its amicable nature; India is called a Union of States and not as a Federation of States. A state cannot secede from India but states can join the Union of India(as in the case of Sikkim). On joining, such states wouldn’t have federal characteristics, which they enjoyed as a free country but would be in accordance to the parliament in Delhi; that is; under the Union government’s arbitrariness. This was done absolutely to make it clear that how the nature of states and its relation shall be, so that no question on its interpretation shall arise in future. However, Article 370 is a different and complicated story. Though by the wording of constitution which is a living document and agreement, it could be interpreted that when Jammu and Kashmir signed into the Indian Union, they are bound by its rules and wording of the constitution. But the thing is the Instrument of Accession was signed before the Agreement over adopting constitution so in legal terms, the first agreement is valid. And under those terms, someone got over excited and progressive by implementing terms like plebiscite, separate constitution and others. As a sovereign independent state, India is free both internally and externally to take her own decisions and implement these for her people and territories. The doctrine of “sovereignty of Parliament” is associated with the British Parliament and this principle has three implications: 1. The Parliament can make, amend, substitute or repeal any law. 2. The Parliament can make constitutional laws by the same procedure as ordinary laws. 3. The Parliamentary laws cannot be declared invalid by the Judiciary as being unconstitutional. In order words, there is no system of judicial review in Britain. Article 2 in the Constitution of India Admission or establishment of new States: The Parliament may by law admit into the Union, or establish, new States on such terms and conditions, as it thinks fit. Here we should pay attention to the phrase “Parliament may by law admit”. This expression further means that a new state may be admitted in the Union in the following means and ways: 1. A Union Territory may be raised to the status of full state. 2. A foreign territory acquired by India may be made a state of India and admitted into the union. 3. A territory separated from an existing state can be reorganized into a full fledged new state. Here we should note that Article 2 confers full discretion on the Parliament as to what terms should be imposed on the new states so admitted to the union. Parliament may

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by law means that whenever a new state is established,a legislation will require to b e enacted. Note: 1. Under this law, the Parliament can admit new states after acquiring them. Sikkim was admitted as a state in Indian union on 26 April 1975. 2. Article 2 provides for the admission or establishment of new states (which were previously not part of India). E.g. Sikkim 3. Whereas Article 3 provides for the formation or changes in the existing states of India. E.g. Chhattisgarh. Parliament’s Power to Reorganize the States Article 3 preserves India’s federal character. It states: “Formation of new States and alteration of areas, boundaries or names of existing States: Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State.” 1. 2. 3. 4.

Increase the area of any State. Diminish the area of any State. Alter the boundaries of any State. Alter the name of any State. Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired. How is a new state formed? By law, the Parliament can form a new state by separating territory from any state, by merging two or more states or parts of states. Parliament can also reduce or increase the area or alter the boundary of any state or even change its name. But first, a bill on the matter has to be referred by the President to the legislature of the affected state so that the legislature can express its views within a certain period. Once the President has ascertained the views of the state government, a resolution is tabled before the assembly. Once the resolution is passed by the assembly, it has to pass a bill creating the new state. Finally, a separate bill on the matter is introduced in Parliament on the recommendation of the President. Once this bill is passed by a two-thirds majority and ratified by the President, the new state is formed.

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How were states organized after Independence in 1947? British India had been divided into princely states under the control of local hereditary rulers, and provinces, which were directly governed by British officials. Upon Independence, the British colonial power dissolved the treaties they had with nearly 600 princely states letting them choose which side they wanted to join, India or Pakistan. Most joined India and a few went to Pakistan. Sikkim chose to become independent with a special protectorate status (and later merged with India in 1975). During the period 1947-50, the princely states were absorbed into the various provinces. Evolution of States and Union Territories Integration of Princely States The Cabinet Mission of 1946 made only a brief comment in relation to the states in its recommendations. The ‘Partition Plan’ of 3 June 1947 stated that the British government’s policy towards the states remained as explained in the Cabinet Mission’s memorandum. Indeed, until this point the Viceroy, Lord Mountbatten, had been preoccupied with the negotiations with Congress and Muslim League on Pakistan. With just a little over two months left for transfer of power, the future of the princely states hung in the balance. The question of the states was further complicated by the opposing positions adopted by the Congress and the Muslim League. The Congress leaders held that the states had to join either of two dominions. Mohammed Ali Jinnah claimed they could also opt to stay independent. By mid-June 1947, Travancore and Hyderabad, on encouragement from Jinnah, announced their decision to remain independent and sovereign entities. Congress leaders feared that this might lead to a ‘Balkanization’ of India. They passed a stern resolution stating that the lapse of paramountcy did not mean independence for the states, and that the people—as opposed to the princes—should decide the question of accession. Jinnah, for his part, issued statements espousing the right of the rulers to decide on accession and to remain independent. Thus the problem facing Mountbatten was to devise a form of accession that would simultaneously convince the princes to give up independence and remove the concerns of the Congress leadership. More importantly, the states would have to be convinced to accede prior to 15 August 1947. The solution to this conundrum was devised by Mountbatten’s constitutional advisor, V.P. Menon. Menon came up with a simple yet ingenious idea. The states would be asked to accede only in respect of defence, foreign affairs, and communications—issues over which they had long ago lost control. In all other matters, they would be unconstrained by the Union government. Even if it was not openly brandished by New Delhi, the states knew that they were weak and vulnerable to economic blockade. The measures taken against Junagadh (and later

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Hyderabad) would have reinforced this perception. Further, the princes realized that following Indian independence their subjects also expected democratic transformation. The states ‘People’s Congresses’ and ‘Praja Mandals’ were already engaged in mobilizing the people to press for such change. The wider currents of political change were increasingly proving difficult to resist. These considerations eventually led the ‘governors’ of newly amalgamated entities to sign fresh instruments of accession, ceding to the Union the powers to pass laws in respect of all matters falling within the federal and concurrent legislative lists of the Government of India Act of 1935. These entities, in short, merged with the Union of India. In return, these princes were offered a handsome ‘privy purse’, its size pegged to the revenue earned by the state. In addition, most of the rulers of the biggest states were given a place in the new constitutional order as governors and lieutenant governors, or offered attractive ambassadorial appointments. When the Indian Constitution came into force, it contained a fourfold classification of the States of the Indian Union: 1. Part A: Consisted of nine erstwhile Governor’s Provinces of British India. 2. Part B: Consisted of 9 erstwhile Princely States with Legislatures. 3. Part C: Consisted of Erstwhile Chief Commissioner’s Provinces of British India and some of the erstwhile Princely States, total 10 in number. 4. Part D: The Andaman and Nicobar Islands were kept as the solitary State. Dhar Commission – Fazl Commission The boundaries of the provinces in pre-1947 were drawn in a haphazard manner, and were not on linguistic basis and thus most provinces were multilingual and multicultural. It was incorporated in the Congress Party’s manifesto of 1945-46 that the provinces were to be redistributed on a linguistic basis. The promise was backed with the argument that it would make the administration easier, in view of to make linguistic identities in front, in place of more controversial ones, like caste and religion-based identities. But dramatically, post independence the stance of the top Congress brass was found completely contrary to this. Now Nehru and Sardar Patel were not in opposition to the linguistic states; they started apprehending this, saying that it could harm the national harmony and sovereignty. Nevertheless, to check the need and feasibility of such reorganization, the then President Rajendra Prasad constituted ‘Linguistic Provinces Commission’ headed by SK Dhar in 1948. It outright rejected the idea on basis of threat to national unity and administrative inconvenience. And its report came to the same conclusion as “the formation of provinces on exclusively or even mainly linguistic considerations is not in the larger interests of the Indian nation”. Besides this, it recommended the

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reorganization of the provinces by geographical contiguity, financial self-sufficiency, and ease of administration. The committee also advised against states based on linguistic basis citing prior importance of national security and economic development. But there arose opposition to the suggestions of the Dhar commission for which the JVP committee was made in 1948 to examine the question afresh. The JVP Committee comprised of Jawaharlal Nehru, Vallabhbhai Patel and Pattabhi Sitaramayya. Its report of 1949 affirmed that the time was not suitable for formation of new provinces, and in this manner, its approach was to temporize the matter for next ten years. Fazl Commission On December 22, 1953, Jawaharlal Nehru announced the appointment of a commission under Fazl Ali. The other two members of the commission were K M Panikkar and HN Kunzru. The commission submitted its report after taking into account the wishes and claims of people in different regions. It recommended the reorganization of the whole country into sixteen states and three centrally administered areas. However, the government did not accept these recommendations in toto. While accepting the Commission’s recommendation to do away with the four-fold distribution of states as provided under the original Constitution, it divided the country into 14 states and 6 union territories under the States Reorganization Act 1956. The states were Andhra Pradesh, Assam, Bihar, Bombay, Jammu and Kashmir, Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh and West Bengal. The six union territories were Andaman and Nicobar Islands, Delhi, Himachal Pradesh, Laccadive, Minicoy and Amindivi Islands, Manipur and Tripura. The Act was implemented in November, 1956.

New states created after 1956 Following are the new states in India created after 1956. State Gujarat and Maharashtra

The State of Mumbai was divided into two States i.e. Maharashtra and Gujarat by the Mumbai (Reorganisation) Act 1960

Kerala

Created by the State Reorganisation Act, 1956. It comprised Travancor and Cochin areas

Karnataka

Created from the Princely State of Mysuru by the State Reorganisation Act, 1956. It was renamed Karnataka in 1973

Nagaland

It was carved out from the State of Asom by the State of Nagaland Act, 1952

Haryana

It was carved out from the State of Punjab by the Punjab (Reorganisation) Act, 1966

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Himachal Pradesh

The Union Territory of Himachal Pradesh was elevated to the status of State by the State of Himachal Pradesh Act, 1970

Meghalaya

First carved out as a sub-State within the State of Asom by 23 Constitutional Amendment Act, 1969. Later in 1971, it received the status of a full-fledged State by the North-Eastern Areas (Reorganisation) Act 1971

Manipura and Tripura

Both these States were elevated from the status of Union-Territories by the North-Eastern Areas (Reorganisation) Act 1971

Sikkim

Sikkim was first given the Status of Associate State by the 35th Constitutional Amendment Act 1974. It got the status of a full State in 1975 by the 36th Amendment Act, 1975

Mizoram

It was elevated to the status of a full State by the State of Mizoram Act, 1986

Arunachal Pradesh

It received the status of a full state by the State of Arunachal Pradesh Act, 1896

Goa

Goa was separated from the Union-Territory of Goa, Daman and Diu and was made a full-fledged State of Goa, Daman and Diu Reorganisation Act 1987. But Daman and Diu remained as Union Territory

Chhattisgarh

Formed by the Constitutional Amendment Act, 2000 by dividing Madhya Pradesh on November 1, 2000

Uttarakhand

Formed by the Constitutional Amendment Act, 2000 by dividing Uttar Pradesh on November 9, 2000

Jharkhand

Formed by the Constitutional Amendment Act, 2000 by dividing Bihar on November 15, 2000

Citizenship Meaning and Significance The Constitution of India affirms that every individual is entitled to enjoy certain basic rights. Part III of the Constitution deals with these rights, which are known as Fundamental Rights. Originally there were seven categories of rights, but now there are only six. These are: 1. 2. 3. 4. 5. 6.

Right to equality Right to freedom Right against exploitation Right to freedom of religion Cultural and educational rights Right to constitutional remedies Right to Property (Article 31), originally a fundamental right, was omitted by the 44th Amendment Act, 1,978. The right to move straight to the Supreme Court for the enforcement of fundamental rights has been guaranteed under Article 32 (Right to Constitutional Remedies).

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However, it needs to be kept in mind that no individual right can come at the cost of the greater good, and that national interest always supersedes individual rights. Originally, the constitution of India did not contain any list of fundamental duties. In other words, enjoyment of fundamental rights was not conditional on the performance of fundamental duties. It was on this Soviet model that fundamental duties were added to the Indian Constitution by the 42nd amendment of the constitution in 1976. The fundamental duties are contained in Art. 51A. List of Fundamental Duties: Art. 51A, Part IVA of the Indian Constitution, specifies the list of fundamental duties of the citizens. It says “it shall be the duty of every citizen of India: 1. 2. 3. 4. 5.

To abide by the constitution and respect its ideal and institutions; To cherish and follow the noble ideals which inspired our national struggle for freedom; To uphold and protect the sovereignty, unity and integrity of India; To defend the country and render national service when called upon to do so; To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities, to renounce practices derogatory to the dignity of women; 6. To value and preserve the rich heritage of our composite culture; 7. To protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures; 8. To develop the scientific temper, humanism and the spirit of inquiry and reform; 9. To safeguard public property and to abjure violence; 10. To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. Further, one more Fundamental duty has been added to the Indian Constitution by 86th Amendment of the constitution in 2002. “Who is a parent or guardian , to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years.” The fundamental duties however are non-enforceable and non-justiciable in character. This means that no citizen can be punished by a court for violation of a fundamental duty. In this respect the fundamental duties are like the directive principles of the constitution in part IV. The directive principles lay down some high ideals to be followed by the state. Similarly, the fundamental duties in Art 51A, lay down some high ideals to be followed by the citizens. In both cases, violation does not invite any punishment. It is significant that the fundamental duties are placed at the end of part IV rather than at the end of part III of the constitution. While part III containing fundamental rights is justiciable, part IV containing the directive principles is not.

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These fundamental duties are not mere expressions of pious platitudes. Courts will certainly take cognizance of laws seeking to give effect to fundamental duties. Finally, the very fact that these duties figure in the constitution, keeps the door open for the duties to be given higher constitutional at status in future through constitutional amendments. Constitutional Provisions of Citizenship Indian nationality law largely follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli (citizenship by right of birth within the territory). The President of India is termed the first Citizen of India. Fundamental Rights Article Five of the Constitution, related to Citizenship at the commencement of the Constitution, states that: At the commencement of the Constitution, every person who had his domicile in the territory of India and1. Who was born in the territory of India; or 2. Either of whose parents was born in the territory of India; or 3. Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,   

shall be a citizen of India. Citizenship Act, 1955 Citizenship by birth

Article 5 of the Indian Constitution states that: Every person born in India, 1. On or after the 26th day of January, 1950, but before the 1st day of July, 1987; 2. On or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents was a citizen of India at the time of his birth; 3. On or after the commencement of the Citizenship (Amendment) Act, 2003, Where1. Both of his parents are citizens of India; or 2. One of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. Citizenship of certain people who have migrated to India from Pakistan

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Article 6 of the Indian Constitution mentions that: 1. Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if2. He or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and 3. In the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or 4. In the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefore to such officer before the commencement of this Constitution in the form and manner prescribed by that Government, provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. Rights of citizenship of certain migrants to Pakistan Article 7 of the Indian Constitution states that: Notwithstanding anything in Articles 5 and 6 of the Constitution, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: 1. Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948. Rights of citizenship of certain persons of Indian origin residing outside India Article 8 of the Indian Constitution states that: Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefore to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India. Persons voluntarily acquiring citizenship of a Foreign State not to be citizens

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Article 9 of the Indian Constitution mentions that: No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State. Continuance of the rights of citizenship Article 10 of the Indian Constitution states that: Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen. Parliament to regulate the right of citizenship by law Article 11 of the Constitution mentions that: Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. Acquisition of Citizenship Citizenship by descent: A person born outside India shall be a citizen of India by descent if, (a) On or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; (b) On or after the 10th day of December 1992, if either of his parents is a citizen of India at the time of his birth: Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India unless:(a) His birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period. (b) His father is, at the time of his birth, in service under a Government in India: Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless(a) His birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period.

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(b) Either of his parents is, at the time of his birth, in service under a Government of India. On or after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate. (i) Within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003, whichever is later; or (ii) With the permission of the Central Government, after the expiry of the said period: Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country. (1A) A minor who is a citizen of India by virtue of his section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age. (2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration. (3) Any male person born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only. Citizenship by Registration Subject to the provisions and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely: 1. A person of Indian origin who are ordinarily resident in India for seven years before making an application for registration. 2. A person of Indian origin who is ordinarily resident in any country or place outside undivided India. 3. A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration. 4. Minor children of persons who are citizens of India. 5. A person of full age and capacity whose parents are registered as citizens of India. 6. A person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration.

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7. A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration. Citizenship by naturalization Where an application is made by any person not being an illegal migrant for the grant of a certificate of naturalization, the Central Government may, if satisfied that the applicant is qualified for naturalization under the provisions of the Third Schedule, grant to him a certificate of naturalization: 1. Provided that if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified. 2. The person to whom a certificate of naturalization is granted shall on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalization as from the date on which that certificate is granted. Termination of Citizenship Any citizen of India who by naturalization, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of the Act regarding this, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India: 1. Provided that nothing shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs. 2. If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf. Offences 1. Any person who, for the purpose of procuring anything to be done or not to be done, knowingly makes any representation which is false in a material particular shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both. Single Citizenship of India The Constitution of India has established a single and uniform citizenship for the whole of the country. In a federal State like the United States of America there is dual citizenship. A citizen in a federal State owes firstly allegiance to the Unit and secondly to the union there are two sets of Government in a federal polity and thus it follow dual citizenship. But in case of India, though it is a Federal State; there is single citizenship.

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It implies that all Indian citizens owe allegiance to the Indian Union. Any citizen, irrespective of his birth or residence, is entitled to enjoy civil and political rights throughout India in all States and Union Territories. The Indian Constitution does not recognize State citizenship and as such there is no distinction between the citizens of two or more States. Further, there is an exception to this rule when applied to Kashmir. No one other than a permanent resident of Kashmir can acquire landed property in Kashmir; but it is a purely temporary provision to be abolished when Kashmir is fully integrated to the Indian Union. The claim of Fundamental Rights is common to all citizens. Article 15 of the Constitution provides that the State should not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Single citizenship is a great step forward in the creation of a united and integrated India. As a result, the citizens of India are clothed with common civil and political rights all over the country. A single citizenship for the entire country removes many of the artificial State barriers that prevailed in pre- independence days and facilitates the freedom of trade, commerce and intercourse throughout the territory of India. Currently, the Constitution of India does not allow dual citizenship and PIOs and OCIs are often mistaken as dual citizens or dual nationals. A PIO is simply defined to be a person registered as a PIO cardholder under the Ministry of Home Affairs scheme.1 An OCI is a person registered as an overseas citizen of India under section 7A of the Citizenship Act, 1955 (the “Act”). PIOs and OCIs essentially enjoy certain rights in India, on par with Indian nationals. In response to growing demands to introduce dual citizenship from its overseas diaspora, India introduced the concept of the person of Indian origin (a “PIO”) in 2002 and an overseas citizen of India (an “OCI”) in 2006 as categories of persons who enjoy certain legal rights in India. This article summarises the rights that PIOs and OCIs have in India and examines the impact of the recently introduced Citizenship (Amendment) Act, 2015 (the “Amendment Act”). The Amendment Act (which amended the Act) was introduced in the Lok Sabha on 27 February 2015 and passed by the Lok Sabha on 2 March 2015. The bill was subsequently introduced in the Rajya Sabha and was cleared on 4 March 2015. The bill received the assent of the President of India on 10 March 2015 and is deemed to have come into force on 6 January 2015. The Amendment Act introduces the concept of an ‘Overseas Citizen of India Cardholder’ (an “OCC”) that essentially replaces and merges together OCIs and PIOs. Fundamental Rights Introduction As a liberal democracy and proponent of people’s empowerment, India guarantees a set of rights considered essential to “preserve human dignity”.

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The Fundamental Rights, as embedded in the Indian Constitution, ensure equal and fair treatment of the citizens before the law. However, these rights are not absolute and are subject to restrictions under peculiar circumstances. Rights are claims that are essential for the existence and development of individuals. In that sense there will a long list of rights. Whereas all these are recognized by the society, some of the most important rights are recognized by the State and enshrined in the Constitution. Such rights are called fundamental rights. These rights are fundamental because of two reasons. First, these are mentioned in the Constitution which guarantees them and the second, these are justiciable, i.e. enforceable through courts. Being justiciable means that in case of their violation, the individual can approach courts for their protection. If a government enacts a law that restricts any of these rights, it will be declared invalid by courts. Such rights are provided in Part III of the Indian Constitution. The Constitution guarantees six fundamental rights to Indian citizens as follows: (i) Right to equality (ii) Right to freedom, (iii) Right against exploitation, (iv) Right to freedom of religion, (v) Cultural and educational rights, and (vi) Right to constitutional remedies. While these fundamental rights are universal, the Constitution provides for some exceptions and restrictions. The Fundamental Rights in Indian constitution acts as a guarantee that all Indian citizens can and will live their lives in peace as long as they live in Indian democracy. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil right. Originally, the Right to Property was also included in the Fundamental Rights, however, the Forty-Fourth Amendment, passed in 1978, revised the status of property rights by stating that “No person shall be deprived of his property save by authority of law.” Right to Equality 1. Article 14:- Equality before law and equal protection of law 2. Article 15:- Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth.

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3. Article 16:- Equality of opportunity in matters of public employment 4. Article 17:- End of untouchability 5. Article 18:- Abolition of titles, Military and academic distinctions are, however, exempted. Right to Freedom 1. 1. 2. 3. 4. 5. 6. 2. 3. 4.

Article 19:- It guarantees the citizens of India the following six fundamentals freedoms:Freedom of Speech and Expression Freedom of Assembly Freedom of form Associations Freedom of Movement Freedom of Residence and Settlement Freedom of Profession, Occupation, Trade and Bussiness Article 20 :- Protection in respect of conviction for offences Article 21 :- Protection of life and personal liberty Article 22 :- Protection against arrest and detention in certain cases Right Against Exploitation

1. Article 23 :- Traffic in human beings prohibited 2. Article 24 :- No child below the age of 14 can be employed Right to Freedom of Religion 1. Article 25:- Freedom of conscience and free profession, practice and propagation of religion 2. Article 26:- Freedom to manage religious affairs 3. Article 27:- Prohibits taxes on religious grounds 4. Article 28:- Freedom as to attendance at religious ceremonies in certain educational institutions Cultural and Educational Rights 1. Article 29:- Protection of interests of minorities 2. Article 30:- Right of minorities to establish and administer educational institutions 3. Article 31:- Omitted by the 44th Amendment Act Right to Constitutional Remedies 1. Article 32:- The right to move the Supreme Court in case of their violation (called the Soul and heart of the Constitution by BR Ambedkar) Nature of Fundamental Rights (a) Most Elaborate: One of the most conspicuous features of the Indian Bill of Rights is that it is the most elaborate chapter in the world.

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A full chapter containing twenty four articles is devoted to it. The voluminous size of the chapter is due to the enumeration of seven rights in the minutest details along with an elaborate set of limitations imposed upon them. Since the passage of 44th Amendment Act in 1978, right to property has ceased to exist as a Fundamental Right. It has been reduced to a mere legal right. As such, there are now six fundamental rights in the Constitution. (b) Negative and Positive Rights Rights incorporated in the Indian Constitution are of two types—Negative and Positive. Negative rights comprise constitutional restrictions on the state. Article 10 forbids the state to confer any title, other than a military or academic distinction, on any individual. It hardly confers any right. It imposes a restriction on the legislative and executive branches of the government. Likewise Article 17 abolishing untouchability removes a social evil. It hardly bestows a special privilege on the untouchables. Right to freedom, right to acquire, hold and dispose off (Article 19) property and right to religion and cultural and educational rights fall in the category of positive rights. In fact, it is difficult to draw a very clear line of demarcation between the two, yet the hairsplitters of the constitution point out one difference. Negative rights are absolute, but positive rights are hedged with restrictions. (c) Special Provision for their Enforcement These rights, both negative and positive, do not exist merely on the paper. They are guaranteed to the people as they are legally enforceable. A special right i.e., “right to Constitutional Remedies” has been introduced in the constitution to safeguard the rest of the fundamental rights. The Supreme Court is the guarantor and guardian of the fundamental rights. Even the High Courts, according to article 226, are empowered to issue writs for the enforcement of these rights, within the limits of their respective jurisdiction. (d) They are not Absolute Unlike that of American Bill of Rights, our fundamental rights are not absolute in character. Not only constitution has hedged these rights with restrictions, even the Parliament has been authorized to impose restrictions, if it deems fit. Besides, Parliament through procedure of amendment, can abrogate Fundamental Rights. The 24th and 25th amendments of the constitution (which curtailed right to private property and which eventually ceased to be Fundamental Right in 1976), for furtherance of Directive Principles pertaining to socialism, were upheld by the Supreme Court of

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India in its historic decision made on April 24, 1973. This further established that Fundamental Rights are not at all absolute as is presumed by some critics. (e) All Rights not of Equal Weight 1. All rights are not of equal weight. 2. A hierarchy of values is discernible. In the words of Justice M. Hidyatullah in the Golak Nath case (1967) “the right to property is the weakest of all rights.” Definition of Fundamental Rights Definition In this part, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. So in this article constitution provides definition of ‘the state’, the word which is widely used in the various fundamental rights. State as provided under Article 12 of the Constitution has four components: 1. 1. 2. 2. 1. 3. 1. 2. 3. 4. 4. 5.

The Government and Parliament of IndiaGovernment means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States The Government and Legislature of each State State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them. Local Authorities within the territory of India Authority means the power to make rules, bye- laws, regulations, notifications and statutory orders. Power to enforce them. Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund. Other Authorities Authorities other than local authorities working within the territory of India or, Outside the territory of India. * In Sukhdev v/s Bhagatram , LIC , ONGC ANDIFC were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy

1. Power to make regulations; 2. Regulations have force of law. *In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.

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Clearance of five tests In Union of India v/s R.C.Jain, to be a local authority, an authority must fulfill the following tests1. 2. 3. 4. 5.

Separate legal existence. Function in a defined area. Has power to raise funds. Enjoys autonomy. Entrusted by a statute with functions which are usually entrusted to The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .It has gained wider meaning which ensures that Part-III can be applied to a larger extent. Right to Equality The fundamental rights are guaranteed to protect the basic human rights of all citizens of India and are put into effect by the courts, subject to some limitations. One of such fundamental rights is the Right to Equality. Right to Equality refers to the equality in the eyes of law, discarding any unfairness on grounds of caste, race, religion, place of birth sex. It also includes equality of prospects in matters of employment, abolition of untouchability and abolition of titles. Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in detail. This fundamental right is the major foundation of all other rights and privileges granted to Indian citizens. It is one of the chief guarantees of the Constitution of India. Thus, it is imperative that every citizen of India has easy access to the courts to exercise his/her Right to Equality. Various articles under the Right to Equality are explained as follows: Right To Freedom In Indian Constitution The rights to freedom are the most important fundamental rights guaranteed by the constitution of India. It is the prevalence of these freedoms that make democracy meaningful. Article 19 of the constitution now provides six freedoms namely :

1. 2. 3. 4.

Right to freedom of speech and expression, Right to assemble peaceably and without arms, Right to form associations or unions, Right to move freely throughout the territory of India,

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5. Right to reside and settle in any part of the territory of India, 6. Right to practice any profession or to carry on any occupation trade or business. Right Against Exploitation The Rights against Exploitation is provided under Articles 23 and 24 of the Constitution of India. Right to personal liberty is never real if some people are exposed to exploitation by others. Articles 23 and 24 of the constitution are designed to prevent exploitation of men by men. Thus rights ensured by these two articles may be considered as complimentary to the individual rights secured by Articles 19 and 21 of the constitution. Article 23 of the Indian Constitution reads as follows: “Traffic in human beings and beggar and similar other forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.” “Nothing in this article shall prevent the state from imposing compulsory service for public purposes and in imposing such service the state shall not make any discrimination on grounds only of religion, race, caste of class or any of them.” Ever since the dawn of civilization in every society, the stronger exploited the weak. Slavery was the most prevalent and perhaps the cruelest form of human exploitation. Our constitution does not explicitly forbid slavery. Any form of exploitation is forbidden. Thus forcing the landless labour to render free service by the land-owner is unconstitutional. Equally, forcing helpless women into prostitution is a crime. The intention of the constitution is that whatever a person does must be voluntary. There must not be any element of coercion involved behind a man’s action. And hence the scope of Article 23 is far wide. The state however may call upon citizens to render national service in defence of the country. Thus conscription is not unconstitutional. But in compelling people to render national service, the state must not discriminate on grounds of race, sex, caste or religion. Article 24 forbids employment of child-labor in factories or in hazardous works. The article reads ”No child below the age of fourteen years, shall be employed to work in any factory or mine or, engaged in any other hazardous employment.” In an environment of all pervading poverty, children are often forced to seek employment to earn a living. Employers often find it less costly to engage child labour at a cheap price. But children so employed do not get opportunities for development. Thus, employment of child labor is a form of traffic in human beings. Hence it is justifiably –forbidden. But employment of child labor cannot be effectively checked unless there is overall improvement of economic conditions of the poorer sections of the society. This provision of the constitution remains a pious wish even today.

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Right to Freedom of Religion India does not accept any religion as state religion. India maintains absolute neutrality and impartiality towards all religions. Hence India is a perfect example of a secular stateflanked by theocracies in the East and West. A secular state does not seek to regulate human’s relations with God or his spiritual aspirations. Secularism is concerned with the regulation of men’s social relations. The provisions relating to “Right of Freedom of Religion” of the Articles 25 & 28 of the Constitution of India make India a secular state. To make assurance doubly sure, the 42nd amendment of the constitution inserts the term “secular” in the preamble of the constitution. Hence on the question of religion, India’s position is: 1. 2. 3. 4.

India has no state religion, State does not discriminate between religions, State cannot impose any tax to promote a religion or to maintain religious institution, Religious instructions cannot be imparted in educational institution run by state funds and 5. In educational institutions recognized by the state and receiving aid from the government, religious instructions cannot be compulsorily given to an unwilling students. 6. In educational institutions run by religious establishments, religious instructions can be given only to students willing to receive it. Religious instructions can be given to the minors only with the express consent of their guardians. Article 25 of Indian Constitution grants freedom to every citizen of India to profess, practice and propagate his own religion. The constitution, in the preamble professes to secure to all its citizen’s liberty of belief, faith and worship. Article 25 (1) allows every citizen to freely follow his own religion, subject to public order, morality and health. Thus in the name of religion, committing sati or infanticide cannot be permitted. The Hindu religious institutions of a public character must be thrown open to every Hindu. Caste system or untouchability cannot be practised in the case of entry into public Hindu temples. Besides these rights to the individuals to profess, practice and propagate religious of their choice, religious groups or denominations are given four rights. These are right to 1. 2. 3. 4. 5.

Establish and maintain institutions for religions and charitable purposes; To manage its own affairs in matters of religion; To own and acquire movable and immovable property, and To administer such property in accordance with law. (Article 26 of Constitution of India). The net position thus is, every individual citizen in India has full freedom of religion.

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6. No one is subjected to any social, economic or political discrimination simply on grounds of religion. 7. Discrimination in public employment on grounds of religion is prohibited by Article 16. Cultural and Educational Rights In India, it is essential to protect the interest and identities of the minority. Article 29 seeks to protect the interests of the minority communities. This article confers the freedom to all citizens, residing in different parts of the land, to conserve their distinct languages, scripts or cultures state shall not impose upon it any culture other than the community’s own culture. This article further assures that no citizen shall be denied admission into any state-run or state-aided educational institution on grounds only of religion, race, caste, language or any of them. Kerala Education Bill (1958) and State of Madras vs. Compakam (1951) may be referred to in connection with this right. Article 30 provides that all minority communities—religion or linguistic, have the right to establish and administer educational institutions of their choice. In granting aid to educational institutions, the state shall not discriminate on the grounds of religion or language. This article confers: 1. The right to establish an educational institution by the minorities. 2. The right to administer it. 3. The right to get state-grants for it without discrimination. The word minority has not been defined by the constitution. The Harijans are not regarded as minority; they are treated as part of ‘Hindu community. Backward classes are not minorities (Kerala Education Bill, 1958). The right stipulated in Article 30 is under the regulatory power of the state. So long as the minority is not deprived of their right guaranteed by the constitution, a law regulating certain matters concerning industrial relation, academic matters and the like shall not be considered as infringement on Article 30. But autonomy of a minority cannot be completely taken away (St. Stephens College vs. University of Delhi (1992). Right to Constitutional Remedies Article 32 of the Indian constitution provides for constitutional remedies against the violation or transgression of fundamental rights. The fundamental rights are of highest importance to the individuals. They are basic conditions for the fullest development of personality.

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Article 32, which was referred to “as the very soul of the constitution” by Dr. Ambedkar, provides for constitutional remedies. Clause 2 of Article 32 provides that, “The Supreme Court shall have the power to issue directions or order or writs including the writs in the nature of habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be appropriate for the enforcement of any of the rights conferred by” fundamental rights. The citizens are given the right to move—the Supreme Court in case of transgression of fundamental rights. The Supreme Court thus is constituted into a protector and guarantor fundamental rights. The right to constitutional remedy is itself a fundamental right. Besides the Supreme Court, the High Courts also have been given a role in the protection of fundamental rights. Under Art. 226 of the constitution, High Courts also can issue writs for the enforcement of fundamental rights. In case of transgression of fundamental rights the Supreme Court or the High Courts may issue five kinds of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and Quowarranto. 1. Habeas Corpus—Habeas Corpus literally means—that human person is sacred. Hence no man may be detained illegally. Whenever a man is detained, he must be produced before a court. This writ is a powerful safeguard against arbitrary arrest and detention. 2. Mandamus—meaning ‘command’, mandamus calls upon public servants to perform some duties. Thus mandamus is issued against dereliction of duty. 3. Prohibition—as the very term prohibition—suggests, this writ is issued by the Supreme Court or the High Courts, to prohibit inferior courts under them to overstep their jurisdiction. 4. Criterion—it enables a superior court of compels inferior courts to submit records of proceedings to the higher court. 5. Quo warranto—literally means by what right. This writ is issued to determine the legality of a person’s claim to public office. The purpose of this writ is to prevent usurpation of a public office by an undesirable or, unqualified person. Directive Principles of State Policy Introduction The Directive Principles of State Policy are the course of action or principles given to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions are contained in Part IV (Article 36-51) of the Constitution of India). Directive Principles of State Policies are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country.

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This concept has been derived from the Directive Principles given in the Constitution of Ireland, which provides for social justice), economic welfare foreign policy and legal and administrative matters. Directive Principles are classified under the following categories: economic and socialistic, political and administrative, justice and legal, environmental, protection of monuments and peace and security. In a conflict between fundamental rights and DPSPs, as in the Champakam Dorairajan Case (1952), the Supreme Court held that Article 37 expressly says that the directive principles are not enforceable by the court. Supreme Court mandated that the chapter on Fundamental rights in the constitution is sacrosanct and the directive principles have to conform to and run subsidiary to the chapter on Fundamental Rights. This means that Fundamental Rights were given superiority over the Directive Principles. This continued for a decade and half and some other cases such as Qureshi v/s State of Bihar, Sajjan Singh V/s State of Rajasthan cases court confirmed this stand. Directive means something which provides us with some guidance ‘Principles’, as we know, are ethics set by us which serve as a fundamental rule. ‘State’ refers to an area or territory having its own government(in this case Republic of India). ‘Policy’ refers to a proposed course of action to complete the objective. To sum up all, Directive Principles of State Policy refers to those principles, which should be kept in mind by the State while formulating policies. They are listed in Part IV from Article 36 to Article 51 in our constitution. Some of these principles are:1. To organise village panchayats and endow them with the necessary powers and authority to enable them to function as units of self governance. 2. To protect and improve the environment and to safeguard forests and wildlife. 3. To raise the level of nutrition and the standard of living of people and also to improve public health. A number of schemes like the Forest conservation act 1980 , Panchayati Raj 1992, Midday meal scheme 2004 are examples of how these principles influence our policy making, and are the moral conscience of our constitution. Features of Directive Principles 1. 2. 3. 4. 5. 6. 7.

The State should strive to promote the welfare of the people. The State should maintain social order through social, economic and political justice. The State should strive towards removing economic inequality. Removal of inequality in status and opportunities. To secure adequate means of livelihood for the citizens. Equal work opportunity for both men and women. Prevent concentration of wealth in specific pockets through uniform distribution of the material resources amongst all the strata of the society.

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8. Prevention of child abuse and exploitation of workers. 9. Protection of children against moral and material abandonment. 10. Free legal advice for equal opportunities to avail of justice by the economically weaker section. 11. Organisation of Village Panchayats which will work as an autonomous body working towards giving justice. 12. Assistance to the needy including the unemployed, sick, disabled and old people. 13. Ensure proper working conditions and a living wage. 14. Promotion of cottage industries in rural areas. 15. The state should endeavor towards a uniform civil code for all the citizens of India. 16. Free and compulsory education for children below the age of 14years. 17. Economic and educational upliftment of the SC and ST and other weaker sections of the society. 18. Prohibition of alcoholic drinks, recreational drugs, and cow slaughter. 19. Preservation of the environment by safeguarding the forests and the wild life. 20. Protection of monuments, places and objects of historic and artistic interest and national importance against destruction and damage. 21. Promotion and maintenance of international peace and security, just and honourable relations between nations, respect for international law and treaty obligations, as well as settlement of international disputes by arbitration. Classification of Directive Principles 1. Socialistic Directives Principal among this category of directives are 1. Securing welfare of the people (Article 38) 2. Securing proper distribution of material resources of the community as to best sub serve the common-good, equal pay for equal work, protection of childhood and youth against exploitation. etc. (Article 39) 3. Right to work, education etc. (Article 41) 4. Securing just and humane conditions of work and maternity relief (Article 42) 2. Gandhian Directives Such directives are spread over several Arts. Principal among such are: 1. To organize village panchayats (Article 40) 2. To secure living wage, decent standard of life, and to promote cottage industries (Article 43) 3. To provide free and compulsory education to all children up to 14 years of age (Article 45) 4. To promote economic and educational interests of the weaker sections of the people, particularly, the scheduled castes and scheduled tribes, 5. To enforce prohibition of intoxicating drinks and cow-slaughter and to organize agriculture and animal husbandry on scientific lines (Articles 46-48).

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3. Liberal intellectual directives Principal among such directives are: 1. 2. 3. 4.

To secure uniform civil code throughout the country. (Art.44) To separate the judiciary from the executive. (Art.50) To protect monuments of historic and national importance To promote international peace and security. New Directive Principles Directive Principle override Fundamental Rights: The amendment to Article 31C empowered all Directive Principles to ride over the Fundamental Rights, by stating that “no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights”. On 31 July 1980, in its judgement on Minerva Mills v. Union of India, the Supreme Court declared unconstitutional two provisions of the 42nd Amendment which prevent any constitutional amendment from being “called in question in any Court on any ground” and accord precedence to the Directive Principles of State Policy over the Fundamental Rights of individuals respectively. By the 44Th Amendment, A new directive principle has been inserted in article 38, which provides that State shall secure social order for promotion of welfare of the people. The Constitution of India in a Directive Principle contained in article 45, has ‘made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. India could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfill this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfill this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution. With a view to making right to free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in Parliament to insert a new article, namely, article 21 A conferring on all children in the age group of 6 to 14 years the right to free and compulsory education. The said Bill was scrutinised by the Parliamentary Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of Parliament, the proposed amendments in Part III, Part IV and Part IVA of the Constitution are being made which are as follows:-

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1. To provide for free and compulsory education to children in the age group of 6 to 14 years and for this purpose, a legislation would be introduced in Parliament after the Constitution (Ninety-third Amendment) Bill, 200l is enacted; 2. To provide in article 45 of the Constitution that the State shall endeavour to provide early childhood care and education to children below the age of six years; and 3. To amend article 5lA of the Constitution with a view to providing that it shall be the obligation of the parents to provide opportunities for education to their children. The Constitution of India in a Directive Principle contained in article 45, has ‘made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfill this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfill this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution. The 97 th Amendment Act of 2011 added a new Directive Principle relating to cooperative societies. It requires the state to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies (Article 43B). Fundamental Rights vs Directive Principles The directives differ from the fundamental rights in Part III of the Constitution or the ordinary laws of the land, the following ways: While the fundamental rights constitute limitations upon state action, the directive principles are in the nature of instruments of instruction to the government of the day to achieve certain ends by their actions. 1.

2. Fundamental rights are justiciable, but the directive principles are non-justiciable.

The directives, however, require to be implanted by legislation, and so long as there is no law carrying out the policy laid down in a Directives, neither the state nor individual can violate any existing law or legal right under colour of following a Directives. 3.

The fundamental rights lay down the negative obligation of the state. They are prohibitive in character and are, in fact, in the nature of injunctions requiring the state not to do certain things. Directive principles are, on the contrary, affirmative directions dealing with the positive obligations of the state towards the citizens.. 4.

The main objective of fundamental rights is to establish political democracy, by guaranteeing equality, liberty, religious freedom and cultural rights but the aim of 5.

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directive principles of state policy is to establish just social and economic order. 6. The court cannot declare any law as void on the ground that it contravenes the directives.

Relative Importance of DPs vis-a-vis FRs During the first sixteen years of the operation of the Constitution, the directive principles were considered subordinate to the fundamental rights: the courts struck down a number of laws enacted to implement directive principles on the ground that they violated the fundamental rights. The conflict has its root in the fact that fundamental rights are enforceable by the courts, while the directive principles are not so. However, the government tried to overcome the problem by amending the Constitution. When the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be abridged to implement the directive principles, the Government tried to overcome the limitation in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I rights. In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate the rights granted in Article 14 and 19. An attempt to enhance the scope of Article 3IC was made by the 42nd Amendment Act which gave primacy to any or all the directive principles and deprived the courts of the right to look into such cases. This attempt was foiled by the Supreme Court majority judgement in Minerva Mills Case which asserted that such total exclusion of judicial review would offend the basic structure of the Constitution. On the whole, however, the conflict between these two features of the Constitution is meaningless as they are, in reality complementary to each other. The courts have increasingly based their judgment on a harmonious reading of Part III and IV of the Constitution. The Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state.

Criticism of DPs 

Can lead to ‘situations of conflict’ between the center and the states

o If the Parliament passes a law to enforce DPs, even if it is beyond the fiscal reach of the states to implement the laws, failure to do so will be subject to art 256 (state governments are supposed to exercise their executive powers in accordance with the laws passed by the Parliament). If the state does not follow 256, then by art 365 (if the state does not follow the mandates of the Parliament, then the President can deem this to be a ‘breakdown of constitutional machinery’)  Social values combined with sentimental values – prevention of cow-slaughter and alcohol consumption combined with principles of social and economic justice (39b, 39c)!  It is said they imbibe the spirit of Fabian socialism – which is now losing relevance o

The ideas of 5 year plans, setting up large and diversified public sector and nationalization of key industries came from erstwhile USSR

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o

However, unlike USSR, India became a democracy with a Fabian aim of socialism – that is – achieve socialism through evolution, not revolution (e.g. Bolshevik Revolution of 1917)

o

After Liberalization, Privatization, Globalization (LPG) in 1991, leading to a restricted role of public sector, the very idea of socialism is under threat Fundamental Duties Introduction Originally, the constitution of India did not contain any list of fundamental duties. In other words, enjoyment of fundamental rights was not conditional on the performance of fundamental duties. The Fundamental Rights, the Directive Principles of the State Policy and the Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights for government policymaking and the behaviour and conduct of the citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India. The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not enforceable by the law. Democratic rights are based on the theory that rights are not created by the state. Individuals are born with right. It is on this theory that the Indians before independence raised the slogan that “freedom is our birth right.” The socialists on the other hand, make enjoyment or rights conditional on the fulfillment of duties. They claim that “he who does not work, neither shall he eat.” The constitution of the world’s first socialist country, that of Soviet Union contains a list of fundamental rights immediately followed by a list of fundamental duties. It is clearly asserted that the enjoyment of fundamental rights is conditional on the satisfactory performance of fundamental duties.

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It was on this Soviet model that fundamental duties were added to the Indian Constitution by 42nd amendment of the constitution in 1976. The fundamental duties are contained in Article 51A. Swarn Singh Committee Report The committee on constitutional amendments by the President of the Indian National Congress, popularly known as the Swaran Singh committee from the name of the chairman, reportedly felt that a chapter on fundamental duties for the citizen should be included along with the existing fundamental rights in the constitution. The reasoning behind this thought was fairly clear. Most people had tried to take maximum advantage of the fundamental rights while forgetting that they owe something to the community in return. And, the constitutions of a number of countries have a chapter on fundamental duties. The Swaran Singh committee, presumably after scrutiny of some of these constitutions, formulated an eight-point code of fundamental duties. The points were: 1. To respect and abide by the constitution and the laws, 2. To uphold the sovereignty of the nation and function in such a way as to sustain and strengthen its unity and integrity, 3. To respect the democratic institutions enshrined in the constitution and not do anything which may impair their dignity or authority, 4. Defend the country and render national service, including military service, when called upon to do so, 5. Adjure communalism in any form, 6. Render assistance and cooperation in the implementation of the directive principles of state policy, and promote the common good of the people, so as to subserve the interest of social and economic justice, 7. Abjure violence, protect and safeguard public property, and refrain from doing anything which may cause damage and destruction to such property, 8. Pay taxes according to law. The committee further recommended that a new directive be included in Article 39 to provide that the state shall direct its policy also to secure population control, through family planning or other suitable measures. It proposed that parliament may, by law, provide for the imposition of such penalty or punishment as may be considered appropriate for any noncompliance with, or refusal to, observe any of these duties. To safeguard the fundamental duties from being challenged in any court of law, the committee suggested the inclusion of an explicit provision that “no law imposing such penalty shall be called in question in any court on the ground of infringement of any of the fundamental rights or on the ground of repugnancy to any other provisions of the constitution.”

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The overall purpose of these proposals was to make the citizen responsible for the administration of the state. List of Fundamental Duties: Article 51A, Part IVA of the Indian Constitution, specifies the list of fundamental duties of the citizens. It says “it shall be the duty of every citizen of India: 1. 2. 3. 4. 5.

To abide by the constitution and respect its ideal and institutions; To cherish and follow the noble ideals which inspired our national struggle for freedom; To uphold and protect the sovereignty, unity and integrity of India; To defend the country and render national service when called upon to do so; To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional diversities, 6. To renounce practices derogatory to the dignity of women; 7. To value and preserve the rich heritage of our composite culture; 8. To protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures; 9. To develop the scientific temper, humanism and the spirit of inquiry and reform; 10. To safeguard public property and to abjure violence; 11. To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. “ Further, one more Fundamental duty has been added to the Indian Constitution by 86th Amendment of the constitution in 2002, who is a parent or guardian , to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years. Features and Characteristics of Fundamental Rights 1. The Fundamental Rights are not absolute. They are subject to reasonable restrictions. They strike a balance between individual liberty and social Security. But the reasonable restrictions are subject to Judicial review. 2. All the Fundamental Rights can be suspended except the fundamental rights guaranteed under article 20 and 21. Right to freedom is automatically suspended during Emergency. Some of the Fundamental rights are for the Indian citizens only, but some can be enjoyed by both citizens and aliens. 3. Fundamental Rights can be amended but they cannot be abrogated. The abrogation of Fundamental rights will violate the basic structure of the Constitution. 4. Fundamental Rights are both positive and negative. The negative rights prevent the state from doing certain things. Article 15 prevents the state from making discrimination. 5. Some Fundamental Rights are available against the state. Some rights are available against individuals. 6. The Fundamental Rights are justifiable. A citizen may approach the court of law when his fundamental rights are violated.

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7. Some Fundamental rights may not be available to personnel serving in the defense forces. They cannot enjoy all the fundamental rights. 8. The fundamental rights are social and political in character. No economic rights have been guaranteed to the Citizens of India, although without them the other rights are of little or of no significance. Criticism of Fundamental Rights 1. As fundamental duties are not included in Part III (fundamental rights) of the constitution, no constitutional legal remedies for enforcement of duties, but the Parliament is free to provide by suitable legislation. Critics have pointed out that this list of fundamental duties miss some important duties such as cast vote, pay taxes, family planning etc. 2. Some complicated terms such as ‘composite culture’ or ‘noble ideas’ are difficult to understand by common man and lead to violation of any of fundamental duties. The Supreme Court ruled that as people of this country are different in number of ways. 3. The Fundamental Duties are vague:Even if citizens intend to obey these duties, it is not possible for them to do the same because they do not know what to do or how to do, for instance, how to maintain the sovereignty, integrity or glorious heritage of the country, or have scientific temper, etc. Actually, these duties are expressed in vague language, and cannot provide any guidance to citizens. Citizens look for definite statement of duties to be followed by them and not those impractical duties. 4. The Fundamental Duties are beyond the jurisdiction of the court:As these duties are beyond the jurisdiction of the court, the awakening of citizens on these duties is not possible. These duties have to be given a legal shape. It is difficult to ascertain whether they are obeyed or violated by a citizen. It is difficult to determine whether a citizen has or has not maintained the sovereignty of the country as mentioned in fundamental duties. Justice Verma Committee The Government of India appointed a committee to “operationalise suggestions to teach fundamental duties to the citizens of India” under the chairmanship of Justice JS Verma in 1998, which submitted its report in October 1999. The committee reported that “duty to vote at elections, actively participate in the democratic process of governance and pay taxes should be included in Article 51A of the Constitution.” Justice Verma Committee Report (1999) on operationalization of fundamental duties observed: “Education is a sub-system of the total social system and it is in this context that the recommendations stated in this chapter should be viewed. Of course, a longterm strategy for developing a value-based society can come only through the instrumentality of right education and training”. Unfortunately, the Justice Verma Committee’s recommendation on the fundamental duties has not been implemented till date in letter and spirit.

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Significance of Fundamental Duties The responsibility of doing or of not doing some work is known as duty. Duty is that positive or negative work that a man has to do, he may be willing for that or not. The fundamental duties are those duties which are essential for every citizen for his/her own progress, for the progress of the society and for the well-being of the nation. The importance of the fundamental duties is: 1. The Fundamental Duties are non-controversial in nature: Politicians of different views agree on the utility and importance of Fundamental Duties. They are in the best interest of the country and awaken patriotism among the citizens. 2. The Fundamental Duties are the ideals and the guidelines for the individual:These rights are ideal in nature and lead the citizen in the right direction. The environment of selfishness is rampant in the country. There is no balance between the interests of the society and individual. This tendency is eroding the society. Fundamental duties would serve as an ideal behaviour to all of them. 3. The Fundamental Duties create consciousness among the people:The fulfillment of the fundamental duties are voluntary and not compulsory. They will slowly awaken the conscience of the people to do their duties. Amendment of the Constitution Introduction Amending the Constitution of India is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India. However, there is another limitation imposed on the amending power of the constitution of India, which developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala. Procedure of Amendment The procedure of amendment makes the Constitution of India neither totally rigid nor totally flexible, rather a curious mixture of both. Some provisions can be easily changed and for some others, special procedures are to be followed. Despite the fact that India is a federal state, the proposal for amending the constitution can be initiated only in the House of the Union Legislature and the State Legislatures have no such power.

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In case of ordinary legislation, if both houses of the Parliament disagree, a joint session is convened. But in case of amendment of bills, unless both the houses agree, it cannot materialize, as in such cases there is no provision for convening the joint session of both the Houses of the Parliament. In fact, there are three methods of amending the Constitution. But Article 368 of the constitution which lays down the procedure for amendment mentions two methods. 1. An amendment of the constitution may be initiated only by the introduction of a Bill for the purpose in either house of Parliament and when a bill is passed in each house. 2. By a majority of total membership of that house. 3. By a majority of not less than two-thirds of the members of that house present and voting, it shall be presented to the President who shall give his assent to the Bill and there upon the Constitution shall stand amended in accordance with the term of the Bill. 4. Most of the provisions of the constitution can be amended by this procedure. 5. For amending certain provisions a special procedure to be followed, 6. A Bill for the purpose must be passed in each house of Parliament by a majority of total membership of the house, 7. By a majority of not less than two-thirds of the members of that house present and voting and 8. It should be notified by the legislatures of not less than one-half of the states before the Bill is presented to the President for assent. 9. The provisions requiring this special procedure to be followed include10. Manner of the election of the President, 11. Matters relating to the executive power of the union and of the state, representation of the states in Parliament 12. Matters relating to the Union Judiciary and High Courts in the states 13. Distribution of legislative powers between the union and the states 14. any of the list in the seventh schedule 15. Provisions of Article 368 relating to the procedure for amendment of the constitution etc. 16. There are certain provisions which require simple majority for amendments. They can be amended by the ordinary law making process. They include: 17. Formation of new states and alteration of areas, boundaries or names of existing ones. 18. Creation or abolition of Legislative Councils in the states. 19. Administration and control of scheduled areas and scheduled Tribes. 20. The salaries and allowances of the Supreme Court and High Court Judges. 21. Laws regarding citizenship. 22. It is significant that the laws passed by Parliament to change the above provisions would not be deemed to be amendments of the Constitution for the purpose of Article 368. Types of Amendments There are three types of bills that seek to amend the Constitution: 1. Bills that are passed by Parliament by Simple Majority. 2. Bills that have to be passed by Parliament by Special Majority.

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3. Bills that have to be passed by Special Majority and also to be ratified by not less than one-half of the State Legislatures. Bills that are passed by Parliament by Simple Majority 1. Such Bills are not deemed as ‘Constitution Amendment Bills’ within the meaning of Article 368[1]. These bills are passed by both Houses of Parliament by a simple majority of members present and voting. It consists of: 1. Admission or establishment of new States, formation of new States, and alteration of areas, boundaries or names of existing States. Bills relating to such matters require the recommendation of the President for introduction. 2. Creation or abolition of Legislative Councils in the States. Bills relating to such matters require the prior adoption of necessary resolution by the State Legislative Assembly concerned. 3. Administration and control of Scheduled Areas and Scheduled Tribes. 4. Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. 2. Bills that have to be passed by Parliament by Special Majority 3. The procedure for such bills is prescribed under Article 368 (2) of the Constitution. These can be introduced in either House of Parliament. Also, such bills can never be treated as Money Bills or Financial Bills. Thus, no recommendation of President is needed for introducing these bills. 4. These bills have to be passed by a majority of the ‘total membership’ of that House and by a majority of not less than two-thirds of the members of that House ‘present and voting’. 5. Bills that have to be passed by Special Majority and also to be ratified by not less than one-half of the State Legislatures 6. This comprises of Constitutional Amendment Bills which seek to make any change in articles relating to: 1. The Election of the President. 2. The extent of the Executive Power of the Union and the States. 

The Supreme Court and the High Courts.

1. Any of the Lists in the Seventh Schedule. 2. The representation of States in Parliament. 3. The provisions of Article 368 itself. 1. The ratification by the State Legislatures has to be made by resolutions to that effect. And such resolutions must be passed before the Constitution Amendment Bill is presented to the President for Assent. Criticism of the Constitutional Amendment Procedure 1. The Constitution can be amended five to seven times by the Parliament; and only in the manner provided.

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2. Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended. 3. In Abdul Rahiman Jamaluddin v. Vithal Arjun (AIR 1958 Bombay, 94, (1957), the Bombay High Court held that any attempt to amend the Constitution by a Legislature other than Parliament, and in a manner different from that provided for, will be void and inoperative.) 4. The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of C. Golak Nath and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13: “The State shall not make any law which takes away or abridges the rights conferred by [the charter of Fundamental Rights]”. The term “law” in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the twenty-fourth Amendment of the Constitution of India which declared that “nothing in Article 13 shall apply to any amendment of this Constitution”. 5. The current limitation on amendments comes from Kesavananda Bharati v. The State of Kerala, where the Supreme Court ruled that amendments of the constitution must respect the “basic structure” of the constitution, and certain fundamental features of the constitution cannot be altered by amendment. The Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that “there shall be no limitation whatever on the constituent power of Parliament to amend …this Constitution”. However, this change was itself later declared invalid by the Supreme Court in Minerva Mills v. Union of India. 6. The issue of whether an entire constitutional amendment is void for want of ratification or only an amended provision required to be ratified under proviso to clause (2) of article 368 was debated before the Supreme Court in Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), in which the constitutional validity of the Tenth Schedule of the Constitution inserted by the 52nd Amendment in 1985 was challenged. Basic Structure of the Constitution Emergence of the Basic Structure According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence.

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The phrase ‘basic structure’ itself cannot be found in the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973. The Parliament’s authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures. This was in keeping with the ruling Congress party’s electoral promise of implementing the socialistic goals of the Constitution[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. Property owners — adversely affected by these laws — petitioned the courts. The courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of the Constitution through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review. The Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951, as a means of immunizing certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule — pertaining to acquisition of private property and compensation payable for such acquisition — cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary – which upheld the citizens’ right to property on several occasions – from derailing the Congress party led government’s agenda for a social revolution. Property owners again challenged the constitutional amendments which placed land reforms laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution. Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Union of India [5]) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens. Significantly though, two dissenting judges in the Sajjan

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Singh v. Rajasthan case raised doubts whether the fundamental rights of citizens could become a plaything of the majority party in the Parliament. Emergence of the Basic Structure Concept- the Kesavanada milestone Inevitably, the constitutional validity of the amendments was challenged before a full bench of the Supreme Court (thirteen judges). Their verdict can be found in eleven separate judgements. Nine judges signed a summary statement which records the most important conclusions reached by them in this case. Nevertheless, the seminal concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict. All judges upheld the validity of the Twenty-fourth amendment saying that the Parliament had the power to amend any or all provisions of the Constitution. All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution. However they were clear that an amendment to the Constitution was not the same as a law as understood by Article 13 (2). It is necessary to point out the subtle difference that exists between two kinds of functions performed by the Indian Parliament: 1. It can make laws for the country by exercising its legislative power. 2. It can amend the Constitution by exercising its constituent power. Constituent power is superior to ordinary legislative power. Unlike the British Parliament which is a sovereign body (in the absence of a written constitution), the powers and functions of the Indian Parliament and State legislatures are subject to limitations laid down in the Constitution. The Constitution does not contain all the laws that govern the country. The Parliament and the state legislatures make laws from time to time on various subjects, within their respective jurisdictions. The general framework for making these laws is provided by the Constitution. Parliament alone is given the power to make changes to this framework under Article 368. Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament. Another illustration is useful to demonstrate the difference between Parliament’s constituent power and law making powers. According to Article 21 of the Constitution, no person in the country maybe deprived of his life or personal liberty except according to procedure established by law. The Constitution does not lay down the details of the procedure as that responsibility is vested with the legislatures and the executive. The Parliament and the state legislatures make the necessary laws criminalizing offensive activities for which a person may be imprisoned or sentenced to death. The executive lays down the procedure of implementing these laws and the accused person

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is tried in a court of law. Changes to these laws may be incorporated by a simple majority vote in the concerned state legislature. There is no need to amend the Constitution in order to incorporate changes to these laws. However, if there is a demand to convert Article 21 into the fundamental right to life by abolishing death penalty, the Constitution may have to be suitably amended by Parliament using its constituent power. Most importantly, seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament’s constituent power was subject to inherent limitations. The Parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution.

Basic Features of the Constitution The concept of the basic structure of the Constitution included: 1. 2. 3. 4. 5. 6. 7.

The Supremacy of the Constitution. A Republican and democratic form of government. The secular character of the Constitution. Separation of powers between the legislature, executive and the judiciary. The federal character of the Constitution. The mandate to build a welfare state contained in the Directive Principles of State Policy. The unity and integrity of the nation. Hegde and Mukherjea identified a separate and shorter list of basic features:

1. 2. 3. 4. 5.

Sovereignty of India Democratic character of the polity Unity of the country Essential features of the individual freedoms secured to the citizens Mandate to build a welfare state Jaganmohan Reddy stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:

1. Sovereign democratic republic. 2. Parliamentary democracy. 3. Three organs of the State. Parliamentary System Introduction A parliamentary system is a system of democratic government in which the ministers of the Executive Branch derive their legitimacy from and are accountable to a Legislature or parliament; the Executive and Legislative branches are interconnected. It is a political

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system in which the supreme power lies in a body of citizens who can elect people to represent them. A representative democracy is merely a system where a small subset of people (representatives) is granted power to legislate/rule on the behalf of the parts of the populace they represent. As such, every parliamentary system is a representative one (since the Parliament is a form of representation, by definition). However, not every representative system mast be a parliamentary one. For example, presidential system – like USA – have executive branch is 100% independent of legislature. The term representative democracy is principally used to distinguish it from participatory (or direct) democracy, in which citizens directly debate and vote on legislation, policy and the appointment of citizens to execute those policies. A Parliamentary democracy is just an individual model of how a representative democracy might work, in that representatives are elected who in turn elect an executive (the Government). It is also worth pointing out that a Parliamentary democracy need not be purely representative, as events like referenda or plebiscites are examples of more direct democracy and can happily exist alongside an elected Parliament. Furthermore, the concept of “representative democracy” can be used in a normative way to discuss the way in which a legislature or executive is or isn’t demographically representative of the people it supposedly represents. Features of Parliamentary Form of Government The features of Parliamentary form of Government have been discussed below: 1. Existence of a Titular or Constitutional Ruler: 2. The first characteristic feature of the parliamentary system is the existence of a Titular of Constitutional Ruler. 3. Legally the administration of all the affairs of the state is conducted by the head of the state. 4. In reality, however, the administration is carried by the Council of Ministers. 5. The Monarch or the President, as the case may be, is the head of the state, but not th e head of the government. 6. Absence of Separation of Powers: 7. In the parliamentary system the principle of separation of powers is not adopted. 8. Here the three departments of government work in close, intimate contact, sharing some of the powers and functions of one another. 9. Main Role of the Lower House in Ministry-formation: 10. In the parliamentary government the lower house of the legislature, i.e., the popular chamber plays a vital role in the formation of the ministry. 11. The leader of the party or alliance which wins the majority in this house is appointed the Prime Minister or Chancellor. 12. The constitutional ruler appoints the other members of the ministry on his advice.

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13. Responsibility to the Legislature: 14. In such a system the Cabinet or Ministry has to remain responsible to the legislature for all its activities and policies. 15. In countries having bi-cameral legislatures, the Cabinet remains responsible to the lower house composed of the people’s representatives. 16. Collective Responsibility: 17. The ministerial responsibility to the legislature may again be of two kinds; Individual responsibility, and collective responsibility. 18. Individual responsibility means that the minister in charge of a department must be answerable for the activities of his department. 19. But when the ministers remain jointly or collectively responsible to the legislature for the policies and activities of the government, it is called ‘collective responsibility’. 

Since no individual minister can unilaterally perform any business of government without the consent of the Cabinet, the entire Ministry or Cabinet has to remain accountable for the errors of the minister concerned.

6. Intimate relationship between the Legislature and the Executive: 7. In the parliamentary system an intimate relationship exists between the executive and the legislative departments. 8. So they can easily control each other. 9. The leaders of the majority party or alliance in the legislature become the members of the Cabinet or Ministry. 10. Naturally, the ministers can easily extend their influence on the legislature. Consequently, the programs and policies of the Cabinet are backed by a majority inside the legislature. 11. Leadership of the Prime Minister: 12. The leadership of the Prime Minister is another major feature of the parliamentary system. 13. The leader of the majority party in the legislature becomes the Prime Minister. 14. Though, in theory, he is ‘primus inter pares’, i.e. ‘first among equals’, in reality, he possesses much greater power and status than the other ministers. 15. As the undisputed leader of the majority party or alliance in the legislature he plays the most vital role in the determination and execution of government policies. 16. Indeed, the success of parliamentary democracy depends, to a great extent, on the personality, efficiency and charisma of the Prime Minister. 17. Existence of a Strong Opposition: 18. The existence of one or more strong and well-organized opposition party or parties is the hall-mark of the parliamentary system. 19. By criticizing the errors of the government, the opposition can compel it to adopt welfare measures and prevent it from becoming despotic. Judged from this angle, the opposition can be called the life-force of parliamentary democracy. 20. Cabinet Dictatorship: 21. In the parliamentary system of government the cabinet has to perform manifold functions. It is the Cabinet which: 22. formulates well-considered policies of the Government after reviewing both the national and international issues,

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23. takes necessary, arrangements for passing laws to implement the policies formulated by it, 

determines the matters to be included in the agenda of the central legislature,

1. controls and directs the administrative departments so that laws, Government orders, etc. are to be implemented properly, 2. co-ordinates the activities of different departments of the Government, 3. prepares the draft budget in consultation with the Prime Minister and takes necessary initiative to get it passed in the legislature,  

formulates economic policies and takes necessary steps for implementing the same, advice’s the constitutional head to take necessary action during emergency or unforeseen situation, etc. In this way the Cabinet acts as ‘the keystone of the political arch’ or has become the ‘steering wheel of the ship of the state’. In fact, in the parliamentary system of government as the cabinet members are the leaders of the majority party or alliance in the legislature. Features of Presidential Form of Government The presidential form of government is that in which the executive is not responsible to the legislature. An example of such a system of Government is the United States of America (U.S.A) Essential features

1. The president is the real executive. There is no nominal or ceremonial executive. All the powers are vested in the hands of the president. 2. The powers of the three organs namely, legislature, executive and judiciary are separated and vested in different persons. 3. Though the three organs of the government are kept apart, they are also connected by the system of checks and balances. Each organ of government exercises checks on the other two organs so that a sort of balance is established. 4. The tenure of the president is fixed. The tenure of office cannot be lessened or increased under any circumstances. President can be removed by the legislature only by a process of impeachment. Merits of a Presidential Form of Government 1. A stable government is possible. 2. Under a presidential form of government, experts are appointed as heads of the departments without consideration of their party affiliations. The president may appoint persons who belong to the opposition parties. 3. There is continuous and consistent policy. 4. Highly suitable during the period of national crisis. 5. There is no chance for concentration of powers.

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Demerits of the Presidential Form of Government 1. 2. 3. 4.

The executive is not responsible to the legislature and can do whatever it pleases. There is always the possibility of deadlocks between the legislature and the executive. It is not a flexible form of government. The Presidential executive finds it difficult to follow a vigorous foreign policy, as there is no harmonious relationship between the executive and the legislature. The executive may follow a policy which may not be acceptable to the legislature. Reasons for Adoption of the Parliamentary System in India India’s founding fathers did a lot of analysis in deciding the structure and shape of our democracy. Let us not try to trivialize that. They ensured that what we got followed the best practices of the period back then. Instead of copying, they spent a lot of time in poring over international systems and arguing on relative merits & demerits. The Parliamentary system ensures a better representation of the populace and well suited for countries with huge diversity. For instance, if only one person has to be the leader, only the majority community will rule. In a parliamentary system you can have leaders from various communities and the smaller groups could form alliances to keep a check on the majority. The parliamentary system is also better in protecting against an autocratic one-man rule. India did not just copy the British Constitution, instead the Constituent Assembly took inspirations from various constitutions and modified them as per India’s own requirements. Comparing a monarch with a president is a basic mistake for the simple reason that the former is hereditary while the latter is elected. Secondly, we adopted the parliamentary democracy because this system is based on the principle of co-operation and co-ordination between the legislative and executive organs and limits the scope of conflicts between the two while the presidential system is based on the doctrine of separation of powers between the two organs. The parliamentary system ensures greater responsibility and answerability and that is what our forefathers had hoped for. To say that presidential form is more effective than parliamentary system would again be wrong. It certainly makes the President more powerful, high-handed and his government more stable but if that means that the Government is more effective, it is certainly not. In the presidential system, responsibility, answerability and transparency suffer. Difference between the Indian and the British Models

1. In Britain, the head of the state is either King or Queen of the royal family while in India, the elect head of the state or president is elected after every 5 years. 2. In Britain, the Prime minister should be a member of the Lower House, while in India, the Prime Minister can be a member of the Lower House (Lok Sabha) or Upper House (Rajya Sabha).

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3. In Britain, Ministers should be Members of Parliament (MPs) while In India, it is not necessary for a Minister to be a MP, but this is only for a period of 6 months. 4. In Britain, the Opposition forms a ‘shadow cabinet’ in contrast to the ruling party’s cabinet, and prepare their minister for future ministerial office. In India there is no such concept. 5. In Britain, the Ministers are legally bound to their responsibility, while in India, there is no such legal limitation for ministers. 6. In Britain, the Parliament is supreme but in India, the Parliament is not supreme and has limited powers. 7. In Britain the Prime Minister selects and assigns portfolios to the ministers whereas the same is done by the President in India as per Art.75. 8. The President always acts upon the advice of the Prime Minister . However before the 42nd and 44th amendment it was not obligatory on the President to act upon the advice of the Prime Minister. 9. The ministers of Britain are invariably selected among the members of the parliament whereas in India any one can hold the position of Minister at the pleasure of the president, with due qualification as per law, even if he is not a member of both the houses. But he has to get elected within six months to either of the houses. 10. In the United Kingdom, the cabinet serves as a unit before the Parliament and Sovereign. Its views are placed by the cabinet as a single whole before the Parliament and Sovereign as if they are views of one man. In India, the President can ask the Prime Minister to place a subject before the council of ministers if it is not discussed and decided by the Cabinet. 11. The President of India can demoralize the cabinet by resorting to frequent exercise of suspensive veto and the Council Ministers can hardly take any action on this, except through impeachment which is a laborious and time consuming process. Federal System Introduction A federal government is a system that divides up power between a strong national government and smaller local governments. Let us take a look at how power plays out between the national and local governments, and the benefits of a federal government. A unitary form of government is a country that is run by a single unit of power, known as the central government. This central government makes all of the decisions, laws, and policies for the entire country. This is a very commonly used form of governance in the world, mainly due to its extreme advantages that it offers. While it may seem all good, there are some significant downfalls that should definitely be taken into account when looking at unitary government as a whole. Federal Features of the Indian Constitution The Indian federal system of today has many such characteristics which are essential for a federal polity. The main federal features of the Indian Constitution are as follows:

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1. Written Constitution: 2. The Indian Constitution is a written document containing 395 Articles and 12 schedules, and therefore, fulfils this basic requirement of a federal government. 3. In fact, the Indian Constitution is the most elaborate Constitution of the world. 4. Supremacy of the Constitution: 5. India’s Constitution is supreme and not the hand-made of either the Centre or of the States. 6. If for any reason any organ of the State dares to violate any provision of the Constitution, the courts of laws are there to ensure that dignity of the Constitution is upheld at all costs. 7. Rigid Constitution: 8. The Indian Constitution is largely a rigid Constitution. 9. All the provisions of the Constitution concerning Union-State relations can be amended only by the joint actions of the State Legislatures and the Union Parliament. 10. Such provisions can be amended only if the amendment is passed by a twothirds majority of the members present and voting in the Parliament (which must also constitute the absolute majority of the total membership) and ratified by at least one-half of the States. 11. Division of Powers: 12. In a federation, there should be clear division of powers so that the units and the centre are required to enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon the functions of others. 13. This requisite is evident in the Indian Constitution. 14. The Seventh Schedule contains three Legislative Lists which enumerate subjects of administration, viz., Union, State and Concurrent Legislative Lists. 15. The Union List consisted of 97 subjects, the more important of which are defence, foreign affairs, railways, posts and telegraphs, currency, etc. 16. The State List consisted of 66 subjects, including, inter-alia public order, police, administration of justice, public health, education, agriculture etc. 17. The Concurrent List embraced 47 subjects including criminal law, marriage, divorce, bankruptcy, trade unions, electricity, economic and social planning, etc. 18. The Union Government enjoys exclusive power to legislate on the subjects mentioned in the Union List. The State Governments have full authority to legislate on the subjects of the State List under normal circumstances. And both the Centre and the State can’t legislate on the subjects mentioned in the Concurrent List, The residuary powers have been vested in the Central Government. 19. Independent Judiciary: 20. In India, the Constitution has provided for a Supreme Court and every effort has been made to see that the judiciary in India is independent and supreme. 21. The Supreme Court of India can declare a law as unconstitutional or ultra Vires, if it contravenes any provisions of the Constitution. 22. In order to ensure the impartiality of the judiciary, our judges are not removable by the Executive and their salaries cannot be curtailed by Parliament. 23. Bicameral Legislature:

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24. A bicameral system is considered essential in a federation because it is in the Upper House alone that the units can be given equal representation. 25. The Constitution of India also provides for a bicameral Legislature at the Centre consisting of Lok Sabha and Rajya Sabha. 26. While the Lok Sabha consists of the elected representatives of people, the Rajya Sabha mainly consists of representatives elected by the State Legislative Assemblies. 27. However, all the States have not been given equal representation in the Rajya Sabha. 28. Dual Government Polity: a. In a federal State, there are two governments—the national or federal government and the government of each component unit. b. But in a unitary State there is only one government, namely the national government. So, India, as a federal system, has a Central and State Government. Unitary Features of the Constitution Single Citizenship: 1. The Indian federation is a dual polity with a single citizenship for the whole of India. 2. There is no State citizenship. 3. Every Indian has the same rights of citizenship, no matter in which State he resides. A Strong Centre: 1. The result of the distribution of powers between the federation and the units is that the State Governments are governments of limited and enumerated powers. 2. Though the Union Government is also a government of limited and enumerated powers, it has, under certain circumstances, power even over the State Governments and the residuary power over the whole territory. Single Constitution for the Union and the States: 1. The Indian Constitution embodies not only the Constitution of the Union but also those of the States. 2. Furthermore, the States of the Indian Union have a uniform Constitution. 3. The amending process both for the Constitution of the Union and the States is also the same. Centre can change the name and boundaries of States: 1. In India, the Centre has a right to change the boundaries of the States and to carve out one State out of the other. 2. In fact, this has been done in India, not only once but several times. 3. In the fifties, Andhra Pradesh was carved out of Madras State. 4. Shortly thereafter, the States Reorganisation Commission was established and a chain of events unfolded.

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5. There is perhaps no State whose boundaries have not been changed at one stage or another. 6. The right of the Centre to change the boundaries of the States is against the federal setup. Single Unified Judiciary: 1. In India, the Supreme Court and the High Court’s form a single integrated judicial system. 2. They have jurisdiction over cases arising under the same laws, constitutional, civil and criminal. 3. The civil and the criminal laws are codified and are applicable to the entire country. 4. To ensure their uniformity, they are placed in the Concurrent List. Unitary in Emergencies: 1. The Indian Constitution is designed to work as a federal government in normal times, but as a unitary government in times of emergency. 2. Under the Constitution, the President of the Republic has been given emergency powers. 3. An emergency can arise both in the political and financial fields. Common All-India Services: 1. The Constitution has certain special provisions to ensure the uniformity of the administrative system and to maintain minimum common administrative standards without impairing the federal principle. 2. These include the creation of All-India Services, such as the Indian Administrative and Police Services and placing the members of these services in key administrative positions in the States. Inequality of Representation in the Council of States: 1. There is bicameralism in India but in the Council of States, States have not been given equal representation. 2. Here population system has been followed and bigger States have been given greater representation than the smaller ones. Appointment of Governor by President: 1. The Heads of the State—the Governor—are appointed by the President. 2. They hold office during his pleasure. 3. This enables the Union Government to exercise control over the State administration. Appointment of the High Court Judges by the President: 1. Appointments to the High Courts are made by the President, and the Judges of the High Courts can be transferred by the President from one High Court to another.

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The Office of the Comptroller and Auditor-General: 1. The Comptroller and Auditor-General of India has an organisation managed by the officers of the Indian Audit and Account Services, a central service, who are concerned not only with the accounts and auditing of the Union Government but also those of the States. Centralized Electoral Machinery: 1. The Election Commission, a body appointed by the President, is in charge of conducting elections not only to Parliament and to other elective offices of the Union, but also to those of the State Legislature. Flexible Constitution: 1. The Indian Constitution is not very rigid. Many parts of the Constitution can be easily amended. Special Powers of Council of State over State List: 1. The Parliament is also authorized by the Constitution to make laws on any subject mentioned in the State List, if the Council of States passes a resolution by a two-thirds majority declaring a particular subject or subjects to be of national importance. 2. Similarly, the Parliament can pass laws on the items of State List, if it is deemed essential by the Government of India to honor an international obligation. 3. In short, in India the Centre can encroach on the field reserved for the States as and when it feels necessary. Control over State Laws: 1. Certain laws passed by the State Legislature cannot come into operation unless they have been reserved for the approval of the President of India. 2. Thus, all the laws concerning the acquisition of property, all laws on Concurrent List which are contrary to the laws passed by the Parliament; and the laws concerning the sales-tax on essential commodities, etc. need the approval of the Central Government. 3. Moreover, the Governor of a State reserves the right to reserve any Bill passed by the State Legislature for the consideration of the President. The President may accord his approval to such a bill or may withhold his assent. Financial Dependence of States: 1. In a federation, as far as possible, States should be financially self-sufficient so that these enjoy maximum autonomy. 2. But in India, the States depend on the Centre for all development. 3. They have much less sources of income but many more needs of expenditure. 4. This financial dependency has very much hindered the growth of States on federal lines.

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Centre-State Relations India is a union of states. The constitution of India has divided the legislative, executive and financial powers between the centre and the states, which gives the constitution a federal character whereas judiciary is integrated in a hierarchical structure. The centre-state relations are divided into three parts, which are mentioned below: (A) Legislative Relations (Article 245-255) (B) Administrative Relations (Article 256-263) (C) Financial Relations (Article 268-293) Legislative Relations Articles 245 to 255 in Part XI deals with different aspects of legislative relations between centre and states. These include: (1) Territorial jurisdiction of laws made by the Parliament and by the Legislatures of States. (2) Distribution of legislative subjects (3) Power of parliament to legislate with respect to a matter in the State List (4) Centre's control state legislation However, Seventh Schedule of the Constitution provides for the distribution of legislative powers between the centre and the states. The legislative subjects are divided into List I (the Union List), List II (the Concurrent List) and List III (the State List). 

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At present, there are 100 subjects in the Union list which includes subjects such as foreign affairs, defence, railway, postal services, banking, atomic energy, communication, currency etc. At present, there are 61 subjects in the State list. The list includes subjects such as police, public order, roadways, health, agriculture, local government, drinking water facilities, sanitation etc. At present, there are 52 subjects in the concurrent list. The list includes subjects such as education, forests, protection of wild animals and birds, electricity, labour welfare, criminal law and procedure, civil procedure, population control and family planning, drugs etc. Article 245 empowers the centre to give directions to the states in certain cases in regards to the exercise of their executive powers. Article 249 empowers the parliament to legislate with respect to a matter in the State List in the national interest. Under Article 250, the parliament becomes empowered to make laws on the matters related to state list when national emergency (under Article 352) is in operation.

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Under Article 252, the parliament is empowered to legislate for two or more States by their consent. Administrative Relations Article 256 to 263 deals with the administrative relations between the centre and the states. Article 256 states that "the executive power of every State shall be so exercised as to ensure compliance with the laws made by the parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose". Cooperation Between the Centre and the States The constitution lays down various provisions to secure cooperation and coordination between the centre and the states. These include: (i) Article 261 states that "Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State". (ii) According to Article 262, the parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (iii) Article 263 empowers the President to establish an inter-State Council to inquire into and advise upon disputes between states, to investigate and discuss subjects in which some or all of the States, or the Union and one or more of the States, have a common interest. (iv) As per Article 307, Parliament may by law appoint such authority as it considers appropriate for carrying out the purposes of the constitutional provisions related to the inter-state freedom of trade and commerce. Centre-State Relations during Emergency (i) During a national emergency (under Article 352), the state government become subordinate to the central government. All the executive functions of the state come under the control of the union government. (ii) During a state emergency (under Article 356), the president can assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or authority in the State other than the Legislature of the State. (iii) During the operation of financial emergency (under Article 360), the Union may give directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose. Financial Relations

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The Constitution deals with the centre-state financial relations in Article 268-293 of Part XII. Allocation of taxing powers The Constitution has provided the union government and the state governments with the independent sources of revenue. It allocates the powers to centre and the states in the following way: (i) The parliament has exclusive power to levy taxes on the subjects mentioned in the Union List. (ii) The state legislatures has exclusive power to levy taxes on the subjects mentioned in the State List (iii) Both the parliament and the state legislature are empowered to levy taxes on the subjects mentioned in the Concurrent List. (iv) The parliament has exclusive power to levy taxes on the matters related to the residuary subjects.

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However, in case of tax revenue distribution, article 268 states that duties are levied by the Union but are collected and appropriated by the States; Service tax levied by Union and collected and appropriated by the Union and the States (Article 268-A); Taxes levied and collected by the Union but assigned to the States (Article 269); Taxes levied and collected by the Union but distributed between the Union and the States (Article 270). Surcharge on certain duties and taxes for purposes of the Union (Article 271) Under Article 275, the parliament is authorized to provide grants-in-aid to any state as parliament may determine to be in need of assistance, and different sums may be fixed for different States. Under Article 282, the union or a state may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws. Under Article 352, during the operation of national emergency, the distribution of revenues between the centre and the states can be altered by the president. Under Article 360, during the financial emergency, the executive authority of the Union shall give directions to any State to observe such canons of financial propriety as may be specified in the directions and to the give the directions as the President may deem necessary and adequate for the purpose.

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The important recommendations of the first administrative reforms commission related to the centre-state relations are:

1. 2. 3. 4. 5.

Establishment of an Inter-state council under Article 263 Decentralization of powers to the states as much as possible More transfer of financial resources to the states Arrangements for devolution in such a way that the states can fulfil their obligations Advancement of loans to states should be related to as ‘the productive principle’. Deployment of central armed forces in the states either on their request or otherwise During state emergency, under Article 356, President's Rule can be imposed in event of the failure of constitutional machinery in a state. Inter-State Relations Introduction Although in a Federal system, each of the states or units have complete sovereignty in their territorial limits, but these states or units can never remain in isolation from each other; so it is necessary to lays down certain rules of comity which units or states are required to observe and follow while contacting with each other. These are:

1. 2. 3. 4.

Recognition of Public Acts Inter State Water Disputes Coordination b/w States Inter State Council Freedom of Inter State Trade & Commerce In addition, Zonal Councils have been created to strengthen the federal system and to foster or develop habits of cooperative working among states and/or Union. Inter State Water Disputes Article 262 of the Constitution states that: “Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any Inter State river or river valley. Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such Inter State water dispute or complaint.” As per above provisions, the Parliament has enacted two laws so far:

1. a) River Boards Act (1956) 

Provides for regulation and development of Inter State river and river valleys ,

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And, 1. b) Inter State Water Disputes Act (1956) 

Empowers the Government of India to set up a Water Dispute Tribunal for settlement of Inter State water disputes b/w 2 or more states. The decision of tribunal shall be final and binding on the parties to dispute. Till now, six water tribunals have been established and these are Krishna, Godavari, Narmada, Ravi & Beas, Cauvery and 2nd Krishna Water disputes tribunals. Inter-State Councils The Union Government, constituted a Commission in 1988 under the Chairmanship of Justice R.S. Sarkaria to review the working of the existing arrangements between the Union and the States. One of the important recommendations of Sarkaria Commission was for establishing a permanent Inter-State Council as an independent national forum for consultation with a mandate well defined in accordance with Article 263 of the Constitution of India. Article 263 of the Constitution states that: “If at any time it appears to the President that the public interests would be served by the establishment of a Inter State Council charged with the duty of:

1. Inquiring into and advising upon disputes which may have arisen between States; 2. Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; 3. Making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, It shall be lawful for the President by order to establish such Inter State Council, and to define the nature of the duties to be performed by it and its organisation and procedure.” In exercise of power, President has already constituted the Central Councils of: 1. Health 2. Local Self Government 3. Indian Medicine 4. The Council shall consist of the: 1. Prime Minister who is the Chairman, 2. Chief Ministers of all states who are members,

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3. Chief Ministers of the Union Territories and administrators of Union Territories as members, 4. Six Union Ministers of cabinet rank in the union council of ministers nominated by the Prime Minister, who are also members. Establishment of Inter-State Councils As per the advice of the Sarkaria Commission, the V.P. Singh led Government constituted an Inter State Council in 1990 which consisted of the following members:1. 2. 3. 4.

PM as its Chairman; CMs of all the States; CMs of all the UTs which have legislative assemblies; Six Cabinet Ministers (including Home Minister) to be nominated by PM. The Council is a recommendatory body to investigate and discuss subjects, in which some or all of the states or the union government have a common interest, recommendations for the better coordination of policy and action, matters of general interest to the states. The inter-state council is not a permanent constitutional body for coordination between the states and union government. It can be established ‘at any time’ if it appears to the President that the public interests would be served by the establishment of such a council. A Standing Committee of the Inter-State Council has been constituted for continuous consultation and processing of matters for the consideration of the Council. The Standing Committee comprises of Union Home Minister as Chairman and 5 Union Ministers of Cabinet Rank and 9 Chief Ministers of States as Members nominated by the Chairman of the Inter-State Council. Public Acts, Records and Judicial Proceedings As power and jurisdiction of each of the states is limited to its territory, the acts and records of one state may not get recognition in other state without any binding provision to do so. So, the Constitution provides that “Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State” (Article 261). So laws or statutes of one state get similar recognition in other states. The Parliament has power to law down manner and conditions to enforce above provisions. Similarly, final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. Inter-State Trade and Commerce

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Article 301 of the Constitution states that no restrictions can be imposed on trade, commerce and intercourse throughout the territory of India (i.e. between two states or Union Territories as the case may be) except the following restrictions that are included under Article 302 to 305:1. The Parliament can impose non discriminatory or fair or unbiased restrictions (i.e. giving preference to one state over other) on Inter State trade or commerce in Public interest, such as the Essential Commodities Act (1956) to control the production, supply or distribution of coal, steel, cotton, iron and petroleum. 2. Even unfair or biased restrictions can be imposed by the Parliament in case of scarcity of goods in any part of India. 3. The State Legislature may, by law, impose reasonable restrictions on freedom of Inter State trade or commerce in Public Interest but such law or amend shall be moved only with prior sanction of the President. 4. The State Legislature may, by law, impose any tax on imported goods from other states which similar to goods produced in that state but not to discriminate between goods so imported and goods so produced. Zonal Councils Zonal Councils are statutory bodies (i.e. not provided in the constitution) created by an act of Parliament called the State Reorganisation Act (1956). The Zonal Councils are the outcome of the re-organisation of the states on basis of language or culture. Other factors are river or mode of communication, security, basis and needs of economic development, law and order. The objectives to crate Zonal Councils are to strengthen federal system and to foster or develop habit of Cooperative working among states and/or the Union. Each Zonal Council consists of: 1. The Home Minister of the Central Government, who acts as the Chairman for all the Zonal councils. 2. The Chief Ministers of all the states in the Zone (each CM act as Vice Chairman by rotation and holds office for 1 year). 3. Two ministers from each of the states in the Zone. 4. The Administrator of each Union Territory in the Zone. At present there are Six Zonal Councils and these are as follows:1. 2. 3. 4. 5. 6.

Northern – Having its Headquarters at Delhi. Central – Having its Headquarters at Allahabad. Eastern – Having its Headquarters at Calcutta. Western – Having its Headquarters at Mumbai. Southern – Having its Headquarters at Chennai. North Eastern – Which was created in 1971. North-Eastern Council

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The North Eastern Council is the nodal agency for the economic and social development of the North Eastern Region, which consists of the eight States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura. The North Eastern Council was constituted in 1971 by an Act of Parliament. The Constitution of the Council has marked the beginning of a new chapter of concerted and planned endeavor for the rapid development of the Region. Over the last thirty five years, the NEC has been instrumental in setting in motion a new economic endeavor aimed at removing the basic handicaps that stood in the way of normal development of the region and has ushered in an era of new hope in this backward area full of great potentialities. Emergency Provisions in Indian Constitution The Indian Constitution gives President the authority to declare three types of emergencies: National Emergency, State Emergency and Financial Emergency. Emergency provisions in India are borrowed from Weimar Constitution of Germany. Constitution of India envisages emergency of following three types:    

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Article 352- National Emergency Article 356-Emergency in state ( president’s rule) Article 360- Financial Emergency National Emergency Under article 352, if the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect. Emergency can be declared over the complete territory of India or any part thereof. President can declare emergency only on the written advice of the cabinet A special majority is required to approve an emergency resolution. Once approved, emergency shall operate for a maximum period of not more than six months. Lok Sabha has the power to disapprove the operation of national emergency at any time, if not less than 1/10th members of Lok Sabha in writing to the speaker, if house is in session, or to the president, then speaker or president as the case may be, shall convene a special session of Lok Sabha within 14 days and if such a resolution is passed, president shall revoke national emergency. Amendments 38th Constitutional Amendment Act 1975: It empowered president to proclaim national emergency on different grounds even though an emergency is already under operation 42nd Constitutional Amendment Act 1976: (i)It empowered president to modify or vary national emergency. Under the original constitution, only the imposition or revocations were possible. (ii) Under the original constitution, president could have imposed national emergency only over complete territory of India. This amendment enabled him over a part of the country.

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44th Constitutional Amendment 1978: It was enacted to prevent the misuse of emergency power by the executive. Effects of National Emergency

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On Executive- State governments are not dismissed, they continue to operate, but are brought under the effective control of the centre, which assumes the power to give instructions to state government, which shall abide by such directions. On Legislature- State legislatures continue to operate and legislate, but parliament assumes concurrent legislative power on state subjects and a law such enacted by parliament, shall cease to operate at the expiry of six months after the revocation of national emergency, to the extent of incompetency. On Financial relations- President can suspend the distribution of financial resources between centre and states and centre can make use of any national resource to fight the cost on the basis of which, emergency is declared. On Fundamental Rights- Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). As per Article 358, when a proclamation of national emergency is made, the six fundamental rights under article 19 are suspended only when National Emergency is declared on the ground of ware or external aggression and not on the grounds of armed rebellion Article 359 authorises the president to suspend the right to move any court for the enforcement of fundamental rights during a National Emergency except for article 20 and article 21 President’s Rule (State Emergency)

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As per Article 355, it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. Under article 356, if president is satisfied on the report of governor or otherwise that there exist a great emergency where the administration of the state cannot be continued in accordance with the provisions of constitution, by invoking article 355, any person can dismiss state government and take over the state administration on to himself and declare that parliament will enact law on behalf of state legislature.

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Effects of President Rule (State Emergency) On Executive- State government is dismissed and the executive power of the state is exercised by the centre. On Legislature- State legislature does not function to legislate; state legislative assembly is either suspended or dissolved. On Financial relation- There is no impact on the distribution of financial resources between centre and the state. Amendments 1.42nd Constitution Amendment Act, 1976 extended the period of state emergency from 6 months to 1 year.

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2. 44th Constitution Amendment Act, 1978 reverted back the operation of state emergency to 6 months. Further it divided the maximum period of 3 years of operation into 1 year under ordinary circumstances and 2 years under extra ordinary circumstances, for which the stipulated conditions shall have to be satisfied. Financial Emergency Under article 360- If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect. This emergency is never imposed in India. The President of India Part V of the Constitution (The Union) under Chapter I (The Executive) lists out the qualification, election and impeachment of the President of India. The President of India is the head of state of the Republic of India. The President is the formal head of the executive, legislature and judiciary of India and is also the commander-in-chief of the Indian Armed Forces. Although Article 53 of the Constitution of India states that the President can exercise his or her powers directly or by subordinate authority, with few exceptions, all of the executive authority vested in the President are, in practice, exercised by the Council of Ministers (CoM). Part V The Union Chapter I The Executive ARTICLE 52 : THE PRESIDENT OF INDIA There shall be a President of India. ARTICLE 53 : EXECUTIVE POWER OF THE UNION (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union Shall be vested in the President and the exercise thereof shall be regulated by law. (3) Nothing in this article shall – (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or (b) prevent Parliament from conferring by law functions on authorities other than the President.

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ARTICLE 54 : ELECTION OF PRESIDENT The President shall be elected by the members of an electoral college consisting of – (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. Explanation: In this article and in article 55, “State” includes the National Capital Territory of Delhi and the Union territory of Pondicherry. ARTICLE 55 : MANNER OF ELECTION OF PRESIDENT (1) As far as practicable, there shall be uniformity in the scale of representation of the different States at the election of the President. (2) For the purpose of securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the legislative Assembly of each state is entitled to cast at such election shall be determined in the following manner; – (a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly; (b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be further increased by one; (c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of the elected members of both Houses of Parliament, fractions exceeding one-half being counted as one and other fractions being disregarded. (3) The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot. Explanation: In this article, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census. ARTICLE 56 : TERM OF OFFICE OF PRESIDENT (1) The President shall hold office for a term of five years from the date on which he enters upon his office: Provided that – (a) the President may, by writing under his hand addressed to the Vice-President, resign his office; (b) the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in article 61. (c) the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

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(2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People. ARTICLE 57 : ELIGIBILITY FOR RE-ELECTION A person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution be eligible for re-election to that office. ARTICLE 58 : QUALIFICATIONS FOR ELECTION AS PRESIDENT (1) No person shall be eligible for election as President unless he – (a) is a citizen of India; (b) has completed the age of thirty-five years, and (c) is qualified for election as a member of the House of the People. (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. Explanation: For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State. ARTICLE 59 : CONDITIONS OF PRESIDENT’S OFFICE (1) The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President. (2) The President shall not hold any other office of profit. (3) The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule. (4) The emoluments and allowances of the President shall not be diminished during his term of office. ARTICLE 60 : OATH OR AFFIRMATION BY THE PRESIDENT Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say – “I, A.B., do swear in the name of God / solemnly affirm that I will faithfully execute the office of President (or discharge the function of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.”

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ARTICLE 61 : PROCEDURE FOR IMPEACHMENT OF THE PRESIDENT (1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament. (2) No such charge shall be preferred unless – (a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days’ notice in writing signed by not less than one-fourth of the total number of members of the House has been given of their intention to move the resolution, and (b) such resolution has been passed by a majority of not less than two-thirds of the total membership of the House. (3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation. (4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed. ARTICLE 62 : TIME OF HOLDING ELECTION TO FILL VACANCY IN THE OFFICE OF PRESIDENT AND THE TERM OF OFFICE OR PERSON ELECTED TO FILL CASUAL VACANCY (1) An election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term. (2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject to the provisions of article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office. Info-Bits Related to the President of India 1. Salary of Indian President is Rs.5 lakh. Until 2017, the President used to get Rs 1.50 lakh per month. In Budget 2018, it was increased to Rs 5 lakh per month. 2. In addition to the salary, the President receives many other allowances and free facilities which include free medical, housing, and treatment facilities (whole life). 3. The Government of India spends around Rs.2.25 crore rupees annually on other expenses like President’s housing, staff, food and hosting of guests. 4. Indian President’s salary is 7000$*12=84,000$, which is much lower when compared to US President’s salary of 4,00,000$. 5. The president of the United States of America is also indirectly elected by the people through the Electoral College, but to a four-year term. He is one of only two nationally elected federal officers, the other being the Vice President of the United States. (In total, there are 538 electors, corresponding to the 435 members of the House of

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6.

7.

8. 9.

Representatives, 100 senators, and the three additional electors from the District of Columbia.) Under The Presidential and Vice-Presidential Elections Act, 1952, a candidate, to be nominated for the office of president of India needs 50 electors as proposers and 50 electors as seconders for his or her name to appear on the ballot. The general principle in Indian Presidential election is that the total number of votes cast by Members of Parliament equals the total number of votes cast by State Legislators. There are a total of 776 voters in both the Houses of Parliament. The Electoral College also consisted of 4120 MLAs in the states. The formula to determine the value of the vote of an MLA = Population of the state ÷ (No. of M.L.A.s in the state X 1000).

10. The formula to determine the value of the vote of an MP = Total value votes assigned to all the M.L.A.s ÷ Total number of MPs. 11. Each MP had a vote value of 708 in the Presidential Election 2012. 12. Legislators from larger states cast more votes than those from smaller states. 13. If a state has few legislators, then each legislator has more votes; if a state has many legislators, then each legislator has fewer votes. 14. JFYI: The President of India moves around in a custom built heavily armoured Mercedes Benz S600 Pullman Guard (which costs around Rs. 12 Crore). 15. Nominated members cannot vote in the Presidential election. But they can participate in President’s impeachment. 16. PS: Nominated members can participate in Vice-President’s election and removal. 17. MLAs are involved in the Presidential election, but they have no role in President’s impeachment. President’s impeachment resolution requires a special majority of both houses of the parliament to pass. Powers of Indian President Powers of Indian President can be broadly classified under 8 headings. They are : 1. 2. 3. 4. 5. 6. 7. 8.

Legislative Executive or Appointment powers Judicial powers Financial powers Diplomatic powers Military powers Pardoning Powers Emergency powers There are articles outside Chapter 1 of Part V related with powers of President of India like Article 72 and Articles 352-360. We shall discuss in detail each of them later.

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Article 72: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any persons convicted of any offence – (a) in all cases where the punishment of sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial. (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force. Vice President of India Introduction 

The election of the Vice-President, like that of the President, shall be indirect and in accordance with the system of proportional representation by means of the single transferable vote.

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But his election shall be different from that of the President Inasmuch as the State Legislatures Shall have no part in It

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While in order to be a President, a person must be qualified for election as a member of the House of the People, in order to be Vice President, he must be qualified for election as a member of the Council of States. The reason for this difference is obvious, namely, that the Vice- President is normally to act as the Chairman of the Council of States. Though there is no specific provision (corresponding to Art. 57) making a VicePresident eligible for re-election, the Explanation to Art. 66 suggests that a sitting Vice-President is eligible for re-election and Dr. S. Radhakrishnan was, in fact, elected for a second term in 1957 The Vice-President is the highest dignitary of India, coming next after the President. No functions are, however, attached to the office of the Vice-President as such. No machinery having been prescribed by the Constitution to determine when the President is unable to discharge his duties owing to absence from lndia or a like cause, it becomes a somewhat delicate matter as towho should move in the matter on the any particular occasion. It is to be noted that this provision of the Constitution has not been put into use prior to 20th June, 1960, though President, Dr. Rajendra Prasad had been absent from India for a considerable period during his foreign tour in the year 1958. It was during the 15-day visit of Dr. Rajendra Prasad to the Soviet Union in June 1960. that for the first time, the Vice-President, Dr. Radhakrishnan was given the opportunity

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of acting as the President owing to the 'inability' of the President to discharge his duties. The second occasion took place in May, 1961, when President Rajendra Prasad become seriously ill and incapable of discharging his functions.

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After a few days of crisis, the President himself suggested that the Vice-President should discharge the functions of the President until he resumed his duties.

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It appears that the power to determine when the President is unable to discharge his duties or when he should resume his duties has been understood to belong to the President himself. In the event of occurrence of vacancy in the office of both the President and the VicePresident by reason of death. resignation, removal etc. the Chief Justice of India or in his absence the seniormost Judge of the Supreme Court available shall discharge the functions until a new President is elected.

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In 1969 when on the death of Dr. Zakir Hussain, the Vice-President Shri V. V. Giri resigned, the Chief Justice Shri HIDYATULLAH discharged the functions. When the Vice-President acts as, or discharges the functions of the President, he gets the emolument of the President; otherwise; the gets the salary of the chairman of the Council of States When the Vice-President thus acts as, or discharges the functions of the President he shall cease to perform the duties of the Chairman of the Council of States and then the Deputy Chairman of the Council of States shall acts as it Chairman Determination of doubts and disputes relating to the election of a President or Vice-President

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Determination of doubts and disputes relating to the election of a President or VicePresident is dealt with in Art. 71, as follows-

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Such disputes shall be declded by the Supreme Court whose jurisdiction shall be exclusive and final.

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No such dispute can be raised on the ground of any vacancy in the electoral college which elected the President or Vice-President

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If the election of a President or Vice-President is declared void by the Supreme Court, acts done by him prior to the date of such decision of the Supreme Court shall not be invalidated.

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Barring the decision of such disputes, other matters relating to the election of President or Vice-President may be regulated by law made by Parliament. It is the second highest position in the country Elections: He is elected by all MP’s of parliament [nominated + elected]. It is held in accordance with the system of proportional representation.

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Re-election is allowed any number of times. He cannot be an MP / MLA; if such a person is elected he may have to vacate his position in that house on joining office of vice president. Terms and Conditions of Office: He holds office for a term of 5 years but can continue even further till his successor joins. He can resign in writing to the president. Rajya Sabha can remove him an absolute majority which needs to be agreed by Lok Sabha with simple majority. Since no grounds for removal are mentioned in the constitution he can be removed for any reason. No formal impeachment needed.

1. 2. 3. 4.

All electoral disputes are resolved by the Supreme Court whose decision is final. If the election is declared void then decisions made till then aren’t invalidated. Qualifications Citizen of India 35 and above yrs of age Qualified to be member of Rajya Sabha Doesn’t hold office of profit in India under any government or public authority. Powers and functions: Vice president is the ex-officio chairman of the Rajya Sabha and has powers and functions similar to the speaker of the Lok Sabha.

In the event of the presidents inability to work due to any reasons or a vacancy in the office of the president due to any reason he can act as the president. However this is only for 6 months till the next president is elected. Thus the office was created to maintain continuity in the Indian state. Council Of Ministers, Prime Minister and Attorney General Council of Ministers ARTICLE 74 : COUNCIL OF MINISTERS TO AID AND ADVISE PRESIDENT (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

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(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. ARTICLE 75: OTHER PROVISIONS AS TO MINISTERS (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent. of the total number of members of the House of the People. (1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule. The Attorney-General for India ARTICLE 76 : ATTORNEY-GENERAL FOR INDIA. (1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney- General for India. (2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force. (3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India. (4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.

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Conduct of Government Business 77. Conduct of business of the Government of India.—(1) All executive action of the Government of India shall be expressed to be taken in the name of the President. (2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. ARTICLE 78 : DUTIES OF PRIME MINISTER AS RESPECTS THE FURNISHING OF INFORMATION TO THE PRESIDENT, ETC. —It shall be the duty of the Prime Minister— (a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and (c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council. Info Bits Related with COM, PM and AG 1. The prime minister is responsible for aiding and advising the president in distribution of work of the Government to various ministries and offices and in terms of the Government of India (Allocation of Business) Rules, 1961. The co-ordinating work is generally allocated to the Cabinet Secretariat. 2. By Article 75 of the constitution of India, remuneration of the prime minister as well as other ministers are to be decided by the Parliament. In 2010, the prime minister’s office reported that he did not receive a formal salary, but was only entitled to monthly allowances. 3. The Attorney General, like an Advocate General of a State is not supposed to be a political appointee, in spirit, but this is not the case in practice. Every time a party comes to power in the general elections, all the law officers resign and law officers loyal to the new party are appointed. 4. The Attorney General has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote. 5. Unlike the Attorney General of the United States, the Attorney General of India does not have any executive authority, and is not a political appointee, those functions are performed by the Law Minister of India. 6. The Attorney General is assisted by a Solicitor General and four Additional Solicitors General. (Non-constitutional posts.)

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7. The Cabinet is a smaller body than Council of Ministers which consists of a few important senior ministers who are in charge of separate departments. The Cabinet is described as “a wheel within a wheel”. It is the nucleus of the Council of Ministers. 8. Cabinet exercises all powers on behalf of the Council of Ministers. The policy decisions are taken in the Cabinet. 9. There are three categories of ministers (COM), in descending order of rank:  Union Cabinet Minister: senior minister in-charge of a ministry. A cabinet minister may also hold additional charges of other Ministries, where no other Cabinet minister is appointed.  Minister of State (Independent Charges): with no overseeing Union cabinet minister for that portfolio.  Minister of State (MoS): junior minister to overseeing cabinet minister, usually tasked with a specific responsibility in that ministry. For instance, an MoS in the Finance Ministry may only handle taxation. Cabinet Committees Introduction In a parliamentary democracy, a Cabinet Minister with the title of Prime Minister is the Executive head of the Government, while the Head of State is a largely ceremonial monarch or president. The Executive branch of the Government has sole authority and responsibility for the daily administration of the State bureaucracy. The Prime Minister selects the team of Ministers in the Cabinet and allocates portfolio. In most cases, the Prime Minister sets up different Cabinet Committees with select members of the Cabinet and assigns specific functions to such Cabinet Committees for smooth and convenient functioning of the Government. A Cabinet Committee can be either set up with a broad mandate or with a specific mandate. Many a times, when an activity/agenda of the Government acquires prominence or requires special thrust, a Cabinet Committee may be set up for focussed attention. In all areas delegated to the Cabinet Committees, normally the decision of the Cabinet Committee in question is the decision of the Government of the day. However, it is up to the Prime Minister to decide if any issue decided by a Cabinet Committee should be re-opened or discussed in the full Cabinet. The Parliament of India is the federal and supreme legislative body of India. It consists of two houses – the Lower House – House of the People called Lok Sabha and the Upper House- Council of States called Rajya Sabha. Though the political party /coalition that have the absolute majority ( i.e at least one seat more than 50 percent of total seats contested and decided) in Lok Sabha forms the Government, the Prime Minister and the members of the Cabinet can be from either House of Parliament. In 1961, the Government of India Transaction of Business Rules (TBR), 1961 were framed, which inter-alia prescribed the procedure in which the Executive arm of the Government would conduct its business in a convenient and streamlined manner.

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In terms of the TBR, 1961, inter-alia, there shall be “Standing Committees of the Cabinet” as set out in the First Schedule to the TBR, 1961, with the functions specified therein. The Prime Minister may, from time to time, amend the Schedule by adding to or reducing the numbers of such Committees or by modifying the functions assigned to them. Every Standing Committee shall consist of such Ministers as the Prime Minister may from time to time specify. Conventionally, while Ministers with Cabinet rank are named as ‘members’ of the Standing Committees of the Cabinet, Ministers of State, irrespective of their status of having ‘Independent Charge’ of a Ministry/Department, and others ‘with rank of’ a Cabinet Minister or Minister of State are named as ‘special invitees’. The Second Schedule to TBR 1961, lists the items of Government business where the full Cabinet, and not any Standing Committee of the Cabinet should take a decision. However, to the extent there is a commonality between the cases enumerated in the Second Schedule and the cases set out in the First Schedule, the Standing Committees of the Cabinet shall be competent to take a final decision in the matter, except in cases where the relevant entries in the respective Schedules themselves preclude the Committees from taking such decisions. Also, any decision taken by a Standing Committee may be reviewed by the Cabinet. Functions of Cabinet Committees 1. To take decisions in respect of appointments specified in Annexure I to the First Schedule to the Government of India (Transaction of Business) Rules, 1961. 2. To take decisions in respect of empanelment specified in Annexure II to the First Schedule to the Government of India (Transaction of Business) Rules, 1961. 3. To decide all cases of disagreement relating to appointments between the Department or Ministry concerned and the Union Public Service Commission. 4. To decide cases of extension of tenure, under the Central Staffing Scheme(s) or relevant central tenure norms, of officers belonging to the All India Services and other Group ‘A’ Services beyond the prescribed limits. 5. To decide cases relating to lateral shift of officers serving on Central deputation. 6. To decide cases of premature repatriation of officers serving with the Central Government to their parent cadre or Department. 7. To decide cases relating to inter-cadre deputation or transfer of All India Services Officers. 8. To decide cases of extension of service beyond the age of superannuation under Fundamental Rule 56(d). 9. To decide all cases of disagreement with the recommendations of the Search-cumSelection Committee constituted in accordance with the statutory requirements or the relevant instructions of the Department of Personnel and Training in respect of officers of the rank or pay (pay band plus Grade Pay) equivalent to or higher than a Joint Secretary of the Central Government. 10. To consider and decide representations, appeals and memorials from officers of the rank or pay (pay band plus Grade Pay) equivalent to or higher than a Joint Secretary in the Central Government, except from those working in the cadre, against adverse remarks.

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11. To decide all cases of disagreement, including in the order of preference of the Public Enterprises Selection Board panel, between the administrative Ministry or Department concerned and the Public Enterprises Selection Board. 12. To decide all cases of inter-company transfers of Chairman, Managing Director and functional Directors of Public Sector Undertakings between holding companies and subsidiaries and within the subsidiaries including Memorandum of Understanding signing Public Sector Undertakings. 13. To decide all cases relating to intra-company transfer of Managing Director and functional Directors of Public Sector Undertakings including Memorandum of Understanding signing Public Sector Undertakings. 14. To decide cases relating to employment or re-employment of any person, who has attained the age of superannuation, in any Department of the Government of India, any State-owned public corporation, company or enterprise, in a post, appointment to which requires approval of the Appointments Committee of the Cabinet. Parliament Chapter II Parliament ARTICLE 79 : CONSTITUTION OF PARLIAMENT There shall be a Parliament for the Union which shall consists of the President and two Houses to be known respectively as the Council of States and the House of the People. ARTICLE 80 : COMPOSITION OF THE COUNCIL OF STATES – (1) The Council of States shall consists of – (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories. (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. (3) The members to be nominated by the President under sub-clause (a) and clause (1) shall consists of persons having special knowledge or practical experience in respect of such matters as the following, namely: – Literature, science, art and social service. (4) The representatives of each State in the Council of States shall be elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5) The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe.

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ARTICLE 81 : COMPOSITION OF THE HOUSE OF THE PEOPLE (1) Subject to the provisions of article 331, the House of the People shall consists of – (a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and (b) not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide. (2) For the purposes of sub-clause (a) of clause (1), – (a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ration between that number and the population of the State is, so far as practicable, the same for all States; and (b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State: Provided that the provisions of sub-clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions. (3) In this article, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census. ARTICLE 82 : READJUSTMENT AFTER EACH CENSUS Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each state into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine: Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House: Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment: Provided also that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to readjust the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies under this article. ARTICLE 83 : DURATION OF HOUSES OF PARLIAMENT (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

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(2) The House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of 5 years shall operate as a dissolution of the House: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. ARTICLE 84 : QUALIFICATION FOR MEMBERSHIP OF PARLIAMENT A person shall not be qualified to be chosen to fill a seat in Parliament unless he – (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. ARTICLE 85 : SESSIONS OF PARLIAMENT, PROROGATION AND DISSOLUTION (1) The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its lasting sitting in one session and the date appointed for its first sitting in the next session. (2) The President may from time to time – (a) prorogue the Houses or either House; (b) dissolve the House of the People. ARTICLE 86 : RIGHT OF PRESIDENT TO ADDRESS AND SEND MESSAGES TO HOUSES (1) The President may address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members. (2) The President may send messages to either House of Parliament, whether with respect to a Bill then pending in Parliament or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration. ARTICLE 87 : SPECIAL ADDRESS BY THE PRESIDENT (1) At the commencement of the first session after each general election to the House of the People and at the commencement of the first session of each year the President shall address both Houses of Parliament assembled together and inform Parliament of the causes of its summons. (2) Provision shall be made by the rules regulating the procedure of either House for the allotment of time for discussion of the matters referred to in such address.

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ARTICLE 88 : RIGHTS OF MINISTERS AND ATTORNEY-GENERAL AS RESPECTS HOUSES Every Minister and the Attorney-General of India shall have the right to speak in, and otherwise to take part in the proceeding of, either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote. Info- Bits related with Parliament 1. The total elective membership is distributed among the States in such a way that the ratio between the number of seats allotted to each State and the population of the State is, so far as practicable, the same for all States. 2. The Council of States is designed to maintain the federal character of the country. The number of members from a state depends on the population of the state (e.g. 31 from Uttar Pradesh and one from Nagaland). 3. Supreme Court can strike down certain provisions/amendments of Indian Constitution, if it feels that the provisions are unconstitutional or alter the basic structure of the constitution. But striking down does not take away the provisions from the Constitution. To take away the provisions, Parliament has to present a Constitution Amendment bill to repeal the provisions. Parliamentary Committees Introduction The work done by the Parliament in modern times is not only varied in nature but is considerable in volume. The time at its disposal is limited. It cannot, therefore, give close consideration to all the legislative and other matters that come up before it. A good deal of its business is, therefore, transacted by what are called the Parliamentary Committees. Ad hoc and Standing Committees The Parliamentary Committees are of two kinds, Ad hoc Committees and the Standing Committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed for specific purposes. Apart from the Ad hoc Committees, each House of Parliament has Standing Committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The usual ad hoc Committees

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are Select/Joint Committees on Bills and the Railway Convention Committee. Lok Sabha has the following Standing Parliamentary Committees with membership indicated against each. Some of these Committees are Joint Committees, as Members of both the Houses of Parliament are nominated/elected to them as per rules/relevant provisions in the Acts. They are the Committees on Public Accounts, Public Undertakings, the Welfare of Scheduled Castes and Scheduled Tribes, Offices of Profit, Salaries and Allowances of Members of Parliament, Empowerment of Women and Library Committee. Apart from the above Standing Committees, there are Departmentally Related Standing Committees (DRSCs) covering under their jurisdiction various Ministries/Departments of the Government of India: Financial Committees 1. Committee on Public Accounts The Committee on Public Accounts is constituted by Parliament each year for examination of accounts showing the appropriation of sums granted by Parliament for expenditure of Government of India, the annual Finance Accounts of Government of India, and such other Accounts laid before Parliament as the Committee may deem fit such as accounts of autonomous and semi-autonomous bodies (except those of Public Undertakings and Government Companies which come under the purview of the Committee on Public Undertakings). The Committee consists of not more than 22 members comprising 15 members elected by Lok Sabha every year from amongst its members according to the principle of proportional representation by means of single transferable vote and not more than 7 members of Rajya Sabha elected by that House in like manner are associated with the Committee. The Chairman is appointed by the Speaker from amongst its members of Lok Sabha. A Minister is not eligible to be elected as a member of the Committee. If a member after his election to the Committee is appointed a Minister, he ceases to be a member of the Committee from the date of such appointment. With the coming into force of the Constitution of India on 26th January, 1950, the Committee became a Parliamentary Committee under the control of Speaker. Its Secretarial functions were transferred to the Parliament Secretariat (now Lok Sabha Secretariat). Functions of the Committee The Examination of the Appropriation Accounts relating to the Railways, Defence Services, P&T Department and other Civil Ministries of the Government of India and Reports of the Comptroller and Auditor-General of India thereon as also the Reports of

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the Comptroller and Auditor-General on Revenue Receipts mainly form the basis of the deliberation of the Committee. In scrutinising the Appropriation Accounts and the Reports of the Comptroller and Auditor-General thereon, it is the duty of the Committee to satisfy itself: 1. That the money shown in the accounts as having been disbursed were legally available for and, applicable to the service or purpose to which they have been applied or charged. 2. That the expenditure conforms to the authority which governs it. 3. That every re-appropriation has been made in accordance with the provisions made in this behalf under rules framed by competent authority. One of the duties of the Committee is to ascertain that money granted by Parliament has been spent by Government within the scope of the demand. It considers the justification for spending more or less than the amount originally sanctioned. If any money has been spent on a service in excess of the amount granted by the House for the purpose, the Committee examines with reference to the facts of each case, the circumstances leading to such an excess and makes such recommendations as it may deem fit. The Committee examines cases involving losses, nugatory expenditure and financial irregularities. 2. Committee on Estimates The Estimates Committee, constituted for the first time in 1950, is a Parliamentary Committee consisting of 30 Members, elected every year by the Lok Sabha from amongst its Members. The Chairman of the Committee is appointed by the Speaker from amongst its members. A Minister cannot be elected as a member of the Committee and if a member after his election to the Committee, is appointed a Minister, he ceases to be a member of the Committee from the date of such appointment. The term of office of the Committee is one year.

Functions The functions of the Estimates Committee are: 1. To report what economies, improvements in organisation, efficiency or administrative reform, consistent with the policy underlying the estimates may be effected. 2. To suggest alternative policies in order to bring about efficiency and economy in administration. 3. To examine whether the money is well laid out within the limits of the policy implied in the estimates. 4. To suggest the form in which the estimates shall be presented to Parliament.

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The Committee calls for preliminary material from the Ministry/Department, statutory and other Government bodies in regard to the subjects selected for examination and also memoranda from non-officials connected with the subjects for the use of the Members of the Committee. The Committee, from time to time, appoints one or more Sub-Committees/Study Groups for carrying out detailed examination of various subjects. 3. Committee on Public Undertakings The Committee on Public Undertakings is a Parliamentary Committee consisting of 22 Members—fifteen elected by the Lok Sabha and seven by the Rajya Sabha, from amongst their Members, according to the principle of proportional representation by means of a single transferable vote. The Chairman is appointed by the Speaker from amongst the Members of the Committee. A Minister is not eligible to become a Member of the Committee. If a Member after his election to the Committee is appointed a Minister, he ceases to be a Member of the Committee from the date of such appointment. The term of the Committee does not exceed one year. Functions The functions of the Committee on Public Undertakings are: 1. To examine the reports and accounts of Public Undertakings specified in the Fourth Schedule to the Rules of Procedure and Conduct of Business in Lok Sabha. 2. To examine the reports, if any, of the Comptroller and Auditor General of India on the Public Undertakings. 3. To examine, in the context of the autonomy and efficiency of the Public Undertakings whether the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices. 4. To exercise such other functions vested in the Public Accounts Committee and the Estimates Committee in relation to the Public Undertakings as are not covered by clauses (a), (b) and (c) above and as may be allotted to the Committee by the Speaker from time to time.

Departmentally Related Standing Committees A full-fledged system of 17 Departmentally Related Standing Committees came into being in April, 1993. These Committees cover under their jurisdiction all the Ministries/ Departments of the Government of India. These Committees are as under:

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1. Committee on Commerce 2. Committee on Home Affairs 3. Committee on Human Resource Development 4. Committee on Industry 5. Committee on Science & Technology, 6. Environment & Forests 7. Committee on Transport, Culture and Tourism 8. Committee on Agriculture 9. Committee on Information Technology 10. Committee on Defence 11. Committee on Energy 12. Committee on External Affairs 13. Committee on Finance 14. Committee on Food, Civil Supplies and 15. Public Distribution 16. Committee on Labour and Welfare 17. Committee on Petroleum & Chemicals 18. Committee on Railways 19. Committee on Urban and Rural Development Out of the 17 Committees, 6 Committees (Sl. No. 1 to 6) are serviced by the Rajya Sabha Secretariat and 11 Committees (Sl. No. 7 to 17) by the Lok Sabha Secretariat. Each of these Standing Committees consists of not more than 45 members—30 to be nominated by the Speaker from amongst the members of Lok Sabha and 15 to be nominated by the Chairman, Rajya Sabha from amongst the members of Rajya Sabha. A Minister is not eligible to be nominated to these Committees. The term of members of these Committees is one year. With reference to the Ministries/Departments under their purview, the functions of these committees are: 1. Consideration of Demands for Grants. 2. Examination of Bills referred to by the Chairman, Rajya Sabha or the Speaker, Lok Sabha as the case may be. 3. Consideration of Annual Reports. 4. Consideration of national basic long term policy documents presented to the House and referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be. These Committees do not consider matters of day-to-day administration of the concerned Ministries/Departments. Other Committees Committees Relating to the Day-to-Day Business of the House 1. Business Advisory Committee

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The Business Advisory Committee of Lok Sabha consists of 15 members including the Speaker who is the ex-officio Chairman. The members are nominated by the Speaker. Almost all sections of the House are represented on the Committee. The function of the Committee is to recommend the time that should be allotted for the discussion of such government legislative and other business as the Speaker, in consultation with the Leader of the House, may direct to be referred to the Committee. The Committee, on its own initiative, may also recommend to the Government to bring forward particular subjects for discussion in the House and recommend allocation of time for such discussions. The decisions reached by the Committee are always unanimous in character and representative of the collective view of the House. The Committee generally meets at the beginning of each Session and thereafter as and when necessary. 2. Committee on Private Members’ Bills and Resolutions This Committee consists of 15 members and the Deputy Speaker is its Chairman when nominated as a member of the Committee. The Committee is nominated by the Speaker. The functions of the Committee are to allot time to Private Members’ Bills and Resolutions, to examine Private Members’ Bills seeking to amend the Constitution before their introduction in Lok Sabha, to examine all Private Members’ Bills after they are introduced and before they are taken up for consideration in the House and to classify them according to their nature, urgency and importance into two categories. The Committee, thus, performs the same function in relation to Private Members’ Bills and Resolutions as the Business Advisory Committee does in regard to Government Business. The Committee holds office for a term not exceeding one year. 3. Committee on Rules A Committee on Rules shall be constituted to consider matters of procedure and conduct of business in the Council and to recommend any amendments or additions to these rules that may be deemed necessary. Constitution 1. The Committee on Rules shall be nominated by the Chairman and shall consist of sixteen members including the Chairman and the Deputy Chairman. 2. The Chairman shall be the Chairman of the Committee. 3. The Committee nominated under sub-rule (1) shall hold office until a new Committee is nominated. 4. Casual vacancies in the Committee shall be filled by the Chairman.

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5. If the Chairman is for any reason unable to act as the Chairman of the Committee, the Deputy Chairman shall act as the Chairman of the Committee in his place. 6. If the Chairman or the Deputy Chairman, as the case may be, is for any reason unable to preside over any meeting, the Committee shall choose any other member to act as the Chairman of the Committee for that meeting. 4. Committee on Absence of Members from the Sittings of the House To consider applications from members for leave of absence from the sittings of the House and examine every case where a member has been absent for a period of 60 days or more, without permission, from the sittings of the House. House-Keeping Committees

1. General Purposes Committee To advise the Speaker on such matters concerning the affairs of the House as may be referred to it by the Speaker from time to time. 2. House Committee To deal with all questions relating to residential accommodation for members of Lok Sabha and also exercise supervision over facilities for accommodation, food, medical aid and other amenities accorded to members in members’ residences and hostels in Delhi. 3. Library Committee To consider and advise on such matters concerning the Library as may be referred to it by the Speaker from time to time. Also to consider suggestions for the improvement of the Library and assist members of both Houses in fully utilising the services provided by the Library. 4. Joint Committee on Salaries and Allowances of Members of Parliament To make rules, after consultation with the Central Government to provide for travelling and daily allowances, medical, housing, telephone, postal, water, electricity, constituency and secretarial facilities etc. to members of both Houses. Consultative Committees The Ministry of Parliamentary Affairs constitutes Consultative Committees of Members of both the Houses of Parliament, which are attached to various Ministries, and arranges meetings thereof. The Minister/Minister of State in-charge of the Ministry concerned acts as the chairman of the Consultative Committee of that Ministry. The main purpose of these Committees is to provide a forum for informal discussions between the Government and Members of Parliament on policies and programmes of

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the Government and the manner of their implementation. Meetings of these Committees are held both during the session and inter-session period of Parliament. After the constitution of the 14th Lok Sabha, 32 Consultative Committees attached to various Ministries were constituted. Besides this, 16 Informal Consultative Committees of the sixteen Railway Zones have also been constituted. Unlike the Consultative Committees attached to the Ministries, meetings, of these Informal Consultative Committees are to be arranged during Session periods only. Supreme Court Introduction On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges – leaving it to Parliament to increase this number. In the early years, all the Judges of the Supreme Court sat together to hear the cases presented before them. As the work of the Court increased and arrears of cases began to cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978 and 26 in 1986. As the number of the Judges has increased, they sit in smaller Benches of two and three – coming together in larger Benches of 5 and more only when required to do so or to settle a difference of opinion or controversy. The Supreme Court of India comprises the Chief Justice and 30 other Judges appointed by the President of India. Provisions exist for the appointment of a Judge of a High Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court. The proceedings of the Supreme Court are conducted in English only. Supreme Court Rules, 1966 are framed under Article 145 of the Constitution to regulate the practice and procedure of the Supreme Court. Organisation of the Supreme Court At the time of the inauguration of the Constitution, the Supreme Court consisted of one Chief Justice and seven other Judges. Presently, the Supreme Court consists of a Chief Justice and thirty other Judges. Provisions for the Appointment of Ad hoc (Temporary) Judges The Constitution provides for the appointment of ad hoc judges if at any time the number of judges available is not sufficient for the quorum to hold or continue any session of the Court, the Chief Justice of India, with the prior consent of the President, can request in writing the attendance of a High Court judge as an ad hoc judge in a session of the Supreme Court for a definite period.

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Judges The Judges of the Supreme Court are appointed by the President after consultation with some sitting Judges of the Supreme Court and the High Courts in the states. In the appointment of other judges, the President consults the Chief Justice of the Supreme Court and while appointing the Chief Justice, he consults other judges or some of them. Appointment of the Chief Justice Regarding the method of appointment of the Chief Justice of India, the seniority principle is respected and followed. Whenever there is a vacancy in the office of Chief Justice of India, the senior-most judge of the Supreme Court is elevated to this office. Appointment of an Acting Chief Justice In case the office of the Chief Justice suddenly falls vacant or when the Chief Justice may be unable to perform his duties due to absence or otherwise, the President can appoint an Acting Chief Justice. The President appoints the next senior-most judge of the Supreme Court as the acting-Chief Justice. He continues to perform his duties till the appointment of a new Chief Justice or till the resumption of office by the regular Chief Justice. Qualifications for the Judges Each judge of the Supreme Court possesses the following essential qualifications: 1. He is a citizen of India. 2. He has been, for at least 5 years, a judge of a High Court or of two or more such Courts in succession; or 3. He has been an advocate of a High Court for at least ten years; or 4. He is, in the opinion of the President, a distinguished jurist. Form of oath or affirmation To be made by the Judges of the Supreme Court: A person having been appointed Chief Justice (or a Judge) of the Supreme Court shall solemnly affirm that: 1. He will bear true faith and allegiance to the Constitution of India as by law established, 2. That he will uphold the sovereignty and integrity of India, 3. That he will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will, 4. And that he will uphold the Constitution and the laws.

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Tenure Supreme Court judges retire at the age of 65. However, there have been suggestions, including from the judges of the Supreme Court of India, to provide for a fixed term for the judges there including the Chief Justice of India.

Removal of a Judge of the Supreme Court The procedure relating to the removal of a judge of the Supreme Court is regulated by the Judges Inquiry Act, 1968, by the process of impeachment. There are two grounds for removal – proved misbehaviour or incapacity. A judge of the Supreme Court can be removed from his office by an order of the President. The President can issue the removal order after an address by the Parliament, supported by a special majority of each House of Parliament (that is, a majority of the total membership of that House and a majority of not less than two thirds of the members of that house present and voting), has been presented to the President in the same session of Parliament for such a removal. The step-wise process is: 1. A removal motion signed by 100 members (in case of Lok Sabha) or 50 members (in case of Rajya Sabha) is to be given to the Speaker/Chairman. (The removal motion can be introduced in any of the two Houses of Parliament). 2. The Speaker/Chairman may admit and reject the motion. 3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges. The Committee should consist of the Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a distinguished jurist. 4. If the committee finds the judge to be guilty of the charges (misbehaviour or incapacity), the House in which the motion was introduced, can take up the consideration of the motion. 5. Once, the House in which removal motion was introduced passes it with special majority, it goes to the second House which also has to pass it with special majority. 6. After the motion is passed by each House of the Parliament by special majority, an address is presented to the President for removal of the judge. 7. Finally, the President passes an order removing the judge. So far, no judge of the Supreme Court has been impeached. The only case where an impeachment motion was initiated and the Inquiry Committee found the judge guilty, was of Justice V Ramaswami of the Supreme Court (1991-1993). But, this motion was defeated in the Lok Sabha. Salaries of Supreme Court Judges There shall be paid to the Chief Justice of India, by way of salary, one lakh rupees A Judge of the Supreme Court shall be paid ninety thousand rupees.

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Pension payable to Judges a pension shall be payable in accordance with the provisions of Part I of the Schedule to a Judge of the Supreme Court on his retirement if, but only if, 1. He has attained the age of sixty-five years. 2. His retirement is medically certified to be necessitated by ill-health. Acting Chief Justice The Chief Justice of India and the Judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution. Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India. Whenever there is any doubt about the fitness of the senior most Judge to hold the office of the Chief Justice of India, consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for appointment of the next Chief Justice of India. After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment. Appointment of Ad Hoc Judges Article 127 of the Constitution provides that if at any time there should not a quorum of Judges of the Supreme Court available to hold or continue any session of the Court the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned request, in writing, a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to attend, for such period as may be necessary, the sittings of the Supreme Court . Whenever the necessity for such an appointment arises, the Chief Justice of India will consult the Chief Justice of the High Court concerned whether a Judge is available to attend the sittings of the Supreme Court. The Chief Justice of India will then communicate to the Union Minister of Law, Justice and Company Affairs the name of the Judge and the period for which he will be required to attend the sittings of the Supreme Court, certifying that the release of the Judge has been agreed to by the Chief Justice of the High Court concerned and the Chief Minister of the State. The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister, who will advise the President as to the person to be appointed to attend the sittings of the Supreme Court. As soon as the President gives his consent to the appointment, the Secretary to the Government of India in the Department of Justice will

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1. Iinform the Chief Justice of India, who will formally request the Judge concerned, in writing, to attend the sittings of the Supreme Court as an ad hoc Judge 2. Announce the appointment and issue the necessary notification in the Gazette of India. Retired Judges Under Article 128 of the Constitution, the Chief Justice of India may, at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. Whenever, the necessity for such an appointment arises, the Chief Justice of India will informally sound the retired Judge, whom he proposes to recommend, as to the latter’s willingness to serve and will there upon communicate to the Union Minister of Law, Justice and Company Affairs the name of the Judge and the period for which he will be required to sit and act as a Judge of the Supreme Court. If the Union Minister of Law, Justice and Company Affairs considers it desirable to bring any point to the notice of the Chief Justice of India or to suggest some other name, he may by personal correspondence convey his suggestions to the Chief Justice of India. On obtaining the views of the Chief Justice of India finally the Union Minister of Law, Justice and Company Affairs will put up the proposal to the Prime Minister who will advise the President as to the person to be appointed to sit and act as a Judge of the Supreme Court. As soon as the President gives his consent to the appointment, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of India and will announce and issue the necessary notification in the Gazette of India. Seat of Supreme Court The Supreme Court shall sit in Delhi or in any such place or places, as the Chief Justice of India may, with the approval of the president from time to time, appoint. Procedure of the Court The Supreme Court can, with the approval of the president, make rules for regulating generally the practice and procedure of the Court. The Constitutional cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges. All other cases are usually decided by a bench consisting of not less than three judges. The judgements are delivered by the open court. All judgements are by majority vote but if differing, then judges can give dissenting judgements or opinions. Independence of the Judiciary

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Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional provisions are discussed below: Security of Tenure: The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision. Salaries and Allowances: The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away. Making judiciary independent: No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge. Power to punish for contempt:

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Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself. Separation of the Judiciary from the Executive: Article 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control. Other Powers Article 129 declares the Supreme Court as a Court of Record, and thus its proceedings are recorded for perpetual verification and testimony its records are admitted in evidence and cannot be questioned in any court of law and it has the power to punish by fine and imprisonment any person guilty of contempt or its authority. 1. The decision of the Supreme Court is binding on all courts within the territory of India. However the Supreme Court is not bound by its earlier decision it can come to a different decision if it is convinced that it had made an error or harmed public interest. 2. The Supreme Court can make rules regarding the practice and procedure of the court with the approval of the President. 3. The Supreme Court can appoint its officers and servants in consultation with the UPSC and determine their conditions of service in consultation with the President. 4. The Supreme Court can recommend to the President the removal of the Chairman and members of the UPSC. 5. Under Article 139-A the Supreme Court may transfer to itself cases from one and more High Courts it these involve question of law or of great significance. The Supreme Court may transfer cases from one High Court to another in the interests of Justice. Governor The Governor is the head of a state, just as the President is the head of the republic. He is the nominal head of a state, while the CM is the executive head. All Executive actions in the state are taken in the name of the Governor. However, in reality he merely gives his consent to the various executive actions. The real powers in the executive dealings of a state rest with the Chief Minister and the Council of Ministers. According to an amendment in the Constitution of India, brought about in 1956, the same person can be the Governor of two or more states. Apart from the governors in the states, Lieutenant-Governors are appointed in the Union Territories of Delhi, the Andaman and Nicobar Islands and Pudducherry.

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All other union-territories are governed by an Administrative Head (an IAS officer). The only exception is Chandigarh. The governor of Punjab is also the lieutenant governor of Chandigarh. The powers of the Lieutenant Governor of a union-territory are equivalent to the powers of a Governor of a state in India. Both are appointed by the President of India for a term of 5 years. Eligibility Criteria A Governor is appointed on the advice of the Union Council of Ministers, or in reality on the advice of the Prime Minister. For the President to consult the Chief Minister of the concerned state, before the appointment of a Governor is not a constitutional requirement. But a healthy convention grew up that the Chief Minister was consulted. But in the case of appointment of several Governors, this convention has not been obeyed. A Governor may be simultaneously assignee to more than one state. Thus, on many occasions, the Governor of Assam was also the Governor of Meghalaya, Nagaland, Tripura, etc. A Governor is appointed for a period of 5 years. The President, if he so pleases may extend his tenure. A vacancy in the Governor’s post arises, if: 1. 2. 3. 4.

The Governor completes his tenure, The Governor resigns, The Governor dies in office, and The Governor is removed from office by the President. The Governors also have often been transferred from one state to another. As per the Constitution of India, the following are the eligibility criteria for the appointment of the Governor in a particular state:

1. 2. 3. 4.

He or she must be a citizen of India. He or she must have completed 35 years of age. He or she must not hold any other office of profit. He or she must not be a member of the Legislature of the Union or of any other state. There is no bar to the selection of a Governor from amongst the members of the Legislature, provided that on appointment, he or she immediately ceases to be a Member of the Legislature. Conditions of Governor’ office

1. The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have

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2. 3.

4.

5.

vacated his seat in that House on the date on which he enters upon his office as Governor. The Governor shall not hold any office of profit. The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and emoluments, allowances and privileges. Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine. The emoluments and allowances of the Governor shall not be diminished during his term of office. The monthly salary of a Governor is Rs 1,10,000, as specified in the Governor’s (Emoluments, Allowances and Privileges) Act of 1982. The Governor is also entitled to certain benefits and allowances, which shall not be diminished during his office term of five years. In addition to the monthly salary, the Governor is entitled to a number of special facilities such as medical facilities, residence facilities, traveling facilities, reimbursement of phone and electricity bills, and many other allowances. The Governor is provided an official residence free of rent. The Governor and his or her family is also provided free medical attendance for life. A fixed amount of money is also allotted as the Governor’s traveling expenses across the country. Term of the Governor A governor of a state in India holds office for a period of five years, but it is subject to termination earlier if:

1. The Governor is dismissed by the President, at whose pleasure he holds the office. In reality, the President is advised by the Prime Minister of the country, who decides the dismissal of the Governor of a state, usually on the grounds of gross delinquency namely corruption, bribery and violation of the Constitution. 2. The Governor resigns from his post. There is no retirement age of the Governor, as he or she stays in office for a fixed term. There is no provision for a Governor to be impeached from office, unlike that of a President. Powers of the Governor Like the President of India, the Governor of a state has certain executive, legislative and judicial powers. He or she also possesses certain discretionary or emergency powers. But, unlike the President, the Governor does not have any diplomatic or military powers. Executive powers 1. The Governor has the power to appoint the Council of Ministers including the Chief Minister of the state, the Advocate General and the members of the State Public Service

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2. 3. 4.

5.

Commission. However, the Governor cannot remove the members of the State Public Service Commission as they can only be removed by an order of the President. The Governor is consulted by the President in the appointment of the Judges of the state High Court. The Governor appoints Judges of the District Courts. In case the Governor feels that the Anglo-Indian community has not been adequately represented in the Vidhan Sabha, he or she can nominate one member of the community to the Legislative Assembly of the state. In all the states where a bicameral legislature is present, the Governor has a right to nominate the members, who are “persons having special knowledge or practical experience in matters such as literature, science, art, co-operative movement and social service”, to the Legislative Council. Legislative Powers

1. As the Governor is said to be a part of the State Legislature, he has the right of addressing and sending messages, summoning, deferring and dissolving the State Legislature, just like the President has, in respect to the Parliament. Although these are formal powers, in reality, the Governor must be guided by the Chief Minister and his Council of Ministers before making such decisions. 2. The Governor inaugurates the state legislature and the first session of each year, by addressing the Assembly, outlining the new administrative policies of the ruling government. 3. The Governor lays before the State Legislature, the annual financial statement and also makes demands for grants and recommendation of ‘Money Bills’. 4. The Governor constitutes the State Finance Commission. He also holds the power to make advances out of the Contingency Fund of the State in the case of any unforeseen circumstances. 5. All bills passed by the Legislative Assembly become a law, only after the Governor approves them. In case it is not a money bill, the Governor holds the right to send it back to the Vidhan Sabha for reconsideration. But if the Vidhan Sabha sends back the Bill to the Governor the second time, then he has to sign it. 6. The Governor has the power to promulgate an ordinance when the Legislative Assembly is not in session, and a law has to be brought into effect immediately. However, the ordinance is presented in the state legislature in the next session, and remains operative for a total of six weeks, unless it is approved by the legislature. Judicial Powers 1. The Governor can grant pardons, reprieves, respites or remission of punishments. He can also suspend, remit or commute the sentence of any person convicted of an offence against the law. 2. The Governor is consulted by the President in the appointment of the Chief Justice to the High Court of that particular state. Emergency Powers

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1. In case no political party bags a majority in the Vidhan Sabha of the state, the Governor holds the power to use his discretion to select the Chief Minister. 2. The Governor informs the President in an official report, of a particular emergency arisen in the state, and imposes ‘President’s Rule’ on the behalf of the President. The Governor, in such circumstances, overrides the advice or functions of the Council of Ministers, and directs upon himself, the workings of the state. Constitutional Position of the Governor The Governor is the Constitutional head of the States. According to the Constitution, whether a matter of his discretion, the decision of the Governor is final and the validity of anything done by him as a matter of his discretion cannot be questioned. The State Governor has constitutional discretion in the following cases: 1. 2. 3. 4.

Reservation of a Bill for the Consideration of the President; Recommendation for the imposition of the President’s Rule in the State; Exercising his functions as the administrator of an adjoining union territory. In the States of Assam, Meghalaya, Tripura and Mizoram the Governor determines the amount payable to an autonomous Tribal District Council. 5. Seeking information from the Chief Minister with regard to the administrative and legislative matters of the state. In addition to these, a Governor may exercise his discretionary powers to meet political exigencies in the following cases 6. Appointing the Chief Minister when no party has acquired clear cut majority in the State Legislative Assembly and when the Chief Minister dies when in office. 7. Dismissal of the Council of Ministers when they loose the confidence of the State Legislative Assembly. 8. There are some other cases where the Governors of specific States may Consult the Council of Minister headed by the Chief Minister but acts, in his discretion, some of them may be cited as follows: 9. Maharashtra – establishment of separate development boards for Vidarbha and Marathwada. 10. Assam – with respect to the administration of tribal areas. 11. Establishment of separate development boards of Kutch and Saurashtra in Gujarat. 12. Nagaland – observance of land and order so long internal disturbance on the Naga Hills continue etc. These discretionary powers of the Governor make him more than a mere constitutional head and enhance his powers in the State administration. These powers enable him to act more as an agent of the Centre in State administration. Chief Minister Introduction According to the Indian Constitution, the elected head of the Council of Ministers in a State is the Chief Minister. Although, the Governor is the official ‘head of the state’, yet it is the Chief Minister who is vested with the ‘de facto’ executive powers.

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The Chief Minister is the real head of a State, unlike the Governor, who is the ceremonial head. Since India has adopted the Westminster Model of constitutional democracy, it is the CM who oversees the day-to-day functioning of the state government. According to the Indian Constitution, in the everyday administration, the Chief Minister is assisted by the Council of Ministers, which consists of cabinet ministers, deputy ministers and others. The Chief Minister is appointed by and sworn in by the Governor. Appointment of the Chief Minister The appointing authority of the Chief Minister is the Governor, who suggests a vote of confidence procedurally in the state legislature, to establish the selection of the Chief Minister. According to the Westminster model of parliamentary system that India follows, the Chief Minister is not elected directly by the people of a state. The people only elect particular representatives from various constituencies in a state, as members of the state legislature or the Vidhan Sabha (MLAs). These representatives, especially from the majority party which forms the government, then choose the Chief Minister from among them. The tenure of the Chief Minister is for a period of five years, when the state legislative assembly is dissolved and fresh elections are held. However, the tenure of the Chief Minister can be terminated by the governor before the period of five years, when the majority party loses the confidence vote in the state legislative assembly. Oath, Term and Salary Before assuming office, the Chief Minister takes an Oath, stating that: He solemnly affirms that: 1. He will bear true faith and allegiance to the Constitution of India as by law established, 2. He will uphold the sovereignty and integrity of India, 3. He will faithfully discharge the duty upon which he is about to enter. The tenure of the Chief Minister is for five years, when the state legislative assembly is dissolved and fresh elections are held in the Vidhan Sabha (Legislative Assembly). However, the tenure of the Chief Minister can be terminated by the governor before the period of five years, when the majority party/alliance loses the confidence vote in the state legislative assembly. The Chief Minister can also resign from his or her post before the completion of the term. There is no age for the retirement of the Chief Minister. Although, the minimum age for becoming the Chief Minister is 25 years, there is no upper age limit till when he or she can serve the post of a Chief Minister.

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The salary of the Chief Minister of a state in India, like that of the prime minister of the country, is accompanied by a number of other allowances, besides the basic pay, such as constituency allowances, sumptuary allowances ( tax free) and daily allowances. The salary of the CM is decided by the respective state legislatures in the country, as per Article 164 of the Indian Constitution. Thus it varies from one state to another. Powers and Functions of the Chief Minister The powers and functions enjoyed by the Chief Minister are similar to those of the Prime Minister of India, within a restricted jurisdiction of a state. Some of these are mentioned below: 1. The Chief Minister holds the executive powers of state government. He/she has the power to form his council of ministers, choosing members of his party for particular ministries within the working of the state. The core council of ministers is called the Cabinet, members of which are decided by the Chief Minister. The various departments are allotted to various ministers by the Chief Minister. Ministers are removed from their portfolios, if the Chief Minister does not like his/her performance. 2. The Chief Minister is the link between the Governor and the Council of Ministers. He is required to communicate to the Governor the workings of the various wings of the government. Similarly, the advice and suggestions of the Governor are communicated to the council of ministers by the Chief Minister. 3. The Chief Minister has a pivotal role in the financial matters of a state, including the budget, basic infrastructural and developmental priorities of the state, financial planning and economic growth of the state and others. 4. The Chief Minister is the chief spokesperson of the government of a State. With the help of the media, the Chief Minister communicates all policies and decisions to the people of the state. He holds regular or periodic press conferences wherein he/she makes the citizens of a state aware of the functioning of the government. Council of Ministers in States PART VI of the Constitution deals with the other half of Indian federalism, ie the States. Article from 152-237 deals with various provisions related to States. It covers the executive, legislature and judiciary wings of the states. Articles 163-164 deals with Council of Ministers (CoM) in states. Article 163: Council of Ministers to aid and advise Governor (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

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(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court. 164: Other provisions as to Ministers (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date* (7.1.2004: vide Notification No. S.O. 21(E), dated 7.1.2004.) as the President may by public notification appoint. (1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

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Info-bits related to Council of Ministers in States 1. President of India does not have existence without council of ministers, but Governor has (at the time of President’s rule). 2. The minimum strength of council of ministers in a state as per Constitution is 12 and maximum is 15 percent of Legislative Assembly. 3. Oaths for ministers : oaths of office and of secrecy. 4. The Governor has discretionary powers and the validity of acts done using the discretionary powers cannot be questioned. State Legislature Introduction India is a Union of States. At present, there are 28 States in the Indian Union and each one of them has a Legislature. The State Legislature is a law making body at the State level. Organisation of the State Legislature The Constitution of India provides for a legislature in each State and entrusts it with the responsibility to make laws for the state. However, the composition of a state Legislature can be different in different states. It can be either bicameral or unicameral. Presently, six states (Andhra Pradesh, Bihar, Jammu and Kashmir, Karnataka Maharashtra and Uttar Pradesh) have bi-cameral legislatures. The rest of the states have uni-cameral Legislatures. In case of a bicameral state legislature, the Upper House is known as the State Legislative Council (Vidhan Parishad) and the lower house as the State Legislative Assembly (Vidhan Sabha). Where there is only one House of the State Legislature, it is known as the State Legislative Assembly. Orissa has a unicameral legislature with Orissa Legislative Assembly as its all powerful house. The Legislative Council or the Vidhan Parishad is the Upper Chamber of the State Legislature. The Union Parliament has the power to create or abolish the Legislative Council in various states on the basis of resolutions adopted by special majority in the Assemblies. Article 169, related to the abolition or creation of Legislative Councils in the States, states that the Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council, or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two thirds of the members of the Assembly present and voting. Composition of the two Houses Strength of Legislative Assemblies

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The Legislative Assembly (Vidhan Sabha) of a State shall normally consist of not more than 500 and not less than 60 members (vide Article 170 of the Constitution). However, there are exceptions in the case of Legislative Assemblies for the States of Goa, Mizoram and Sikkim which consist of 40, 40 and 32 members respectively. The strength of the Legislative Assembly of the Union Territory of Pondicherry has been fixed as 30 under the provisions of the Government of Union Territories Act, 1963. The Governor of a State has the power to nominate one member of the Anglo-Indian community, if this community is not adequately represented in the House. As in case of the Lok Sabha, some seats are reserved for the members of Scheduled Castes and Schedule Tribes. The tenure of Vidhan Sabha is five years, but the Governor can dissolve it before the completion of its term on the advice of the Chief Minister. It may be dissolved by the President in case of constitutional emergency proclaimed under Article 356 of the Constitution. The National Capital Territory of Delhi has been provided with a Legislative Assembly under the Constitution (Sixty-Ninth Amendment) Act, 1991. The Election Commission has accordingly divided the National Capital Territory of Delhi into single-member territorial constituencies by its order dated 22nd September, 1992. The total number of seats in the Legislative Assemblies in various States and Union Territories and the number of seats reserved for the Scheduled Castes and the Scheduled Tribes in such Assemblies shall not be readjusted until the relevant figures of the first census taken after the year 2000 have been published. Constituencies All the parliamentary constituencies for purposes of elections to the Lok Sabha and all the Assembly Constituencies for purposes of elections to the Legislative Assemblies of States and Union Territories, except the National Capital Territory of Delhi, have been delimited on the basis of the 1971 census. In the case of the Legislative Assembly for the National Capital Territory of Delhi, the delimitation has been done on the basis of 1991 census as provided in the Govt. of National Capital Territory of Delhi Act, 1991. The extent of each such Parliamentary and Assembly Constituencies (except the Assembly Constituencies in the States of Arunachal Pradesh, Goa and Mizoram and the National Capital Territory of Delhi) is given in the Delimitation of Parliamentary and Assembly Constituencies order, 1976 issued by the Election Commission under the provisions of section 9 of the Representation of the People Act, 1950. The constituencies in which seats are reserved for the Scheduled Castes and the Scheduled Tribes are also indicated in that Order. Readjustment of seats after every census Under Article 82 of the Constitution, the Parliament by law enacts a Delimitation Act after every census.

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After coming into force commencement of the Act, the Central Government constitutes a Delimitation Commission. This Delimitation Commission demarcates the boundaries of the Parliamentary Constituencies as per provisions of the Delimitation Act. The present delimitation of constituencies has been done on the basis of 2001 census figures under the provisions of Delimitation Act, 2002. `Notwithstanding the above, the Constitution of India was specifically amended in 2002 not to have delimitation of constituencies till the first census after 2026. Thus, the present Constituencies carved out on the basis of 2001 census shall continue to be in operation till the first census after 2026. Composition of State Legislative Council The popular name of the State Legislative Council is the Vidhan Parishad. The total membership of a Legislative council cannot be normally less than 40 and more than l/3rd of the total membership of the State Legislative Assembly. The membership of the Vidhan Parishad includes elected as well as nominated representatives from several types of constituencies. The following formula is used: (i) 1/3rd members are elected by the members of State Legislative Assembly. (ii) 1/3rd members are elected by local bodies of the state. (iii) 1/12th members are elected by teachers of at least three years standing, serving educational institutions of the state. (iv) 1/12 members are elected by state university graduates of not less than three yearsstanding. (v) 1/6th members are nominated by the Governor of the state. Any citizen of India who is not less than 30 years of age, who possesses all the qualifications as laid down by the Parliament, who is not a member of any other legislature or Union Parliament can become a member of the State Legislative Council either by winning an election or by securing the Governor’s nomination. The Legislative council is a semi-permanent House. It is never dissolved as a whole. 1/3rd of its members retire after every 2 years and each member has a term of 6 years. Duration of the two Houses Duration of Legislative Assembly The term of the Legislative Assembly is five years. But it may be dissolved even earlier than the five years, by the Governor on the request of the Chief Minister.

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The term of the Legislative Assembly may be extended during an Emergency, but not more than six months at a time. In the State of Jammu and Kashmir, the tenure of the Legislative Assembly is 6 years. The Legislative Council is the Upper House in the State. Just like the Rajya Sabha, it is a permanent House. The members of a state’s Upper House are selected based on the strength of each party in the Lower House and by state gubernatorial nomination. The term of each member is 6 years and 1/3 members of the House retire after every two years. The upper house of a state assembly, unlike the Upper house of the Parliament, can be abolished by the lower house, if it passes a specific law bill, which states to dissolve the upper house, and gets it attested in both houses of parliament and then signed by the President into law. Many of the states have abolished the upper house by the above mentioned method, as the upper house causes unnecessary problems and issues. Duration of the Council The Legislative Council is not subject to dissolution, but 1/3 of its members retire after every two years. It implies that the term of its members is six years. Like the Rajya Sabha, the Legislative Council is a permanent body, only a fraction of its members are being changed every third year. Membership of the State Legislature Qualifications In order to become a Member of the Vidhan Sabha a person must: 1. 2. 3. 4.

Be a citizen of India; Have attained the age of 25 years; Have his/her name in the voters’ list; Must not hold any office of profit i.e.; should not be a government servant. In order to be a member of the Legislative Council a person should:

1. 2. 3. 4.

Be a citizen of India, Have attained the age of 30 years; Be a registered voter in the State; Not hold any office of profit. The Vidhan Parishad is partly elected and partly nominated. Most of the members are indirectly elected in accordance with the principle of proportional representation by means of single transferable vote system. Different categories of members represent different interests. Disqualification for Election to Vidhan Sabha–

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If you want to stand as a candidate for election to the Legislative Assembly of a State (other than the State of Jammu and Kashmir) or of a Union Territory from an assembly constituency, you must not suffer from any of the following disqualifications, constitutional and statutory: 1. Constitutional Disqualifications for Membership of the Legislative Assembly of a State (other than Jammu and Kashmir and the Legislative Assembly of a Union Territory). These are contained in Article 191 of the Constitution of India. 1. In the first place, you must not hold any office of profit under the Government of India or the Government of any State other than an office declared by the Legislature of the State by law not to disqualify its holder. The various State Legislatures have made laws declaring different offices of profit which will not disqualify a holder of such an office for being chosen as and for being a member of the Legislative Assembly of that State. 2. In the second place you must not be of unsound mind and must, not stand so declared by a competent court. 3. In the third place you must not be an undischarged insolvent. 4. In the fourth place, you will be disqualified if you are not a citizen of India or you have voluntarily acquired the citizenship of a foreign State or if you are under any acknowledgement of allegiance or adherence to a foreign State. In simple words, you must not be an alien or a foreigner. 5. And, lastly, you must not be disqualified by or under any law made by Parliament. Disqualification on Ground of Defection The Constitution (Fifty-second Amendment) Act, 1985 popularly known as the antidefection law came into force w.e.f. 1 March 1985. It amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of the State Legislatures and added a new schedule i.e. the Tenth Schedule to the Constitution setting out certain provisions as to disqualification on ground of defection. In articles 102/191, a new clause (2) has been inserted which reads as follows: “A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.” The main provisions of the Tenth Schedule are— Grounds of Defection 1. 1. 2. 3.

The grounds on which disqualification can be incurred are as under: Members belonging to political parties Member elected otherwise than as candidate set up by any political party Nominated Members A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he

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takes his seat after complying with the requirements of article 99 or as the case may be, article 188. Oath or Affirmation Form of oath or affirmation to be made by a member of the Legislature of a State:“I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will 1. bear true faith and allegiance to the Constitution of India, 2. uphold the sovereignty and integrity of India, 3. faithfully discharge the duty upon which I am about to enter.” An MLA’s salary differs from state to state, there is no fixed salary for the MLA’s in every state of India. For instance, the Telengana government has recently hiked the monthly salary of MLA’s to 163% i.e from 83,000 to 2.5 Lakhs INR. Odissa MLA’s are the lowest paid with the salary of 20,000 per month. MLA’s are not limited with their salaries, they also get special allowances from the government, such as free Rail travel, limited Air travel in First Class, Free Housing and many more. Vacation of Seats 1. Member of the House of the People elected to the Council of States If a person is already a member of the House of the People and has taken his seat in that House, but is subsequently elected to the Council of States, his seat in the House of the People will become vacant on the date of his election.

2. Member of the Council of States elected to the House of the People If a person is already a member of the Council of the States and has taken his seat in that Council, but is subsequently elected to the House of the People, his seat in the Council of states will become vacant on date of his election. 3. Election to more than one seat in either House of Parliament or in the House or either House of a State Legislature A person may be elected to more than one seat in the House of the People of the Council of States or in the House or either House of the Legislature of a State. In such a case, he shall have to resign all, but one of such seats, within fourteen days from the date of such election or, where the dates of his election are different in respect of different seat, fourteen days from the last of those dates. The communication should be addressed to the Speaker or Chairman of the House concerned or if necessary, to the

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Deputy Speaker or the Deputy Chairman of the House, or, failing that, to the Election Commission. 4. Election to both Parliament and State Legislature A person cannot be a member of both the Parliament and of a House of the Legislature of a State. If he has been elected both to the Parliament and to the Legislature of a State, he should resign one of his seats within fourteen days from the date of publication in the Gazette of India or in the Official Gazettes of the State, whichever is later, of the declaration that he has been so elected. Election to both Houses of a State Legislature A person cannot be a member of both Houses of the Legislature of a State. If he has been elected to both the Houses, he should immediately consult the Secretaries of the Houses in order to ascertain how he should vacate his seat in one House or the other. He will have to resign his seat in one of the Houses according to the provisions made in this behalf under Article 190(1) of the Constitution. Sessions of State Legislature Summoning The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Adjournment An adjournment suspends the work in a sitting for a specified time which may be hours, days or weeks. Adjournment sine die means terminating a sitting of the state legislature for an indefinte period. The power of the adjournment as well as adjournment sine die lies with the presiding officer of the House. Prorogation The presiding officer (Speaker or Chairman) declares the House adjourned sine die, when the business of the session is completed. Within the next few days, the governor issues a notification for prorogation of the session. However, the governor can also prorogue the House which is in session. Unlike an adjournment, a prorogation terminates a session of the House. Dissolution Although the legislative assemblies complete their normal tenure as prescribed by the Indian Constitution, yet their dissolution at an earlier date is not uncommon.

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As per the provisions of Article 356 of the Indian Constitution, the state Assembly can be dissolved when any of the following factors prevent the state government from functioning as per the Constitution: 1. 2. 3. 4. 5.

When the state Assembly fails to form a government and elect a leader as Chief Minister Whenever there’s a breakdown of a coalition If Assembly elections are postponed for unavoidable reasons Insurgencies and internal subversions Prevention or facilitation of bifurcation of states According to Article 365, if a state government fails to exercise its executive powers in compliance with the directions given by the Union government, the responsibility shifts to the governor of the state to assess the situation and recommend the dissolution of state Assembly to the Union cabinet. This proclamation is made by the President only when the governor is convinced that the state cannot function in accordance with the provisions of the Constitution. Quorum The quorum of the meetings of a State Assembly is 1/10 of its membership or ten whichever is greater. This is so until the Assembly fixes the quorum otherwise, by law. Language of State Legislature The Supreme Court has held that there is no bar against a State Legislature declaring a language used in the State as an official language for the convenience of its citizens. This means that a widely-used language in a State, once declared an official language by the State Legislature, would find a place in official communications, advertisements and even signposts. Article 345 of the Constitution says “the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State.” Rights of Ministers and Advocate-General Every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise to take part in the proceedings of, the legislative Assembly of the State or, in the case of a State having a Legislative Council, both Houses, and to speak in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member, but shall not, by virtue of this article, be entitled to vote. Legislative Procedure in State Legislature Ordinary Bills The primary function of the State Legislature, like the Union Parliament, is law-making. The State Legislature is empowered to make laws on State List and Concurrent List.

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The Parliament and the Legislative Assemblies have the right to make the laws on the subjects mentioned in the Concurrent List. But in case of contradiction between the Union and State law on the subject the law made by the Parliament shall prevail. Ordinary bills can be introduced in either of the Houses (if the State Legislature is bicameral), but Money bill is first introduced in the Vidhan Sabha. After the bill is passed by both Houses, it is sent to the Governor for his assent. The Governor can send back the bill for reconsideration. When this bill is passed again by the Legislature, the Governor has to give his assent. You have read when the Parliament is not in session and if there is a necessity of certain law, the President issues Ordinance. Similarly, the Governor can issue an Ordinance on the State subjects when legislature is not in session. The Ordinances have the force of law. The Ordinances issued are laid before the State Legislature when it reassembles. It ceases to be in operation after the expirty of six weeks, unless rejected by the Legislature earlier. The Legislature passes a regular bill, to become a law, to replace the ordinance. This is usually done within six weeks after reassembly of Legislature. Financial Powers The State Legislature keeps control over the finances of the State. A money bill is introduced first only in the Vidhan Sabha. The money bill includes authorisation of the expenditure to be incurred by the government, imposition or abolition of taxes, borrowing, etc. The bill is introduced by a Minister on the recommendations of the Governor. The money bill cannot be introduced by a private member. The Speaker of the Vidhan Sabha certifies that a particular bill is a money bill. After a money bill is passed by the Vidhan Sabha, it is sent to the Vidhan Parishad. It has to return this bill within 14 days with, or without, its recommendations. The Vidhan Sabha may either accept or reject its recommendations. The bill is deemed to have been passed by both Houses. After this stage, the bill is sent to the Governor for his assent. The Governor cannot withhold his assent, as money bills are introduced with his prior approval. Position of a State Legislature The State Legislature occupies the same position in a state as is the position of the Parliament in the Union. There is, however, a difference of degree in their relative powers. Indian Unitarian Federalism makes the Union Parliament more powerful than each state legislature. Further, there are several specific limitations on the powers of a state legislature. Limitations on the Powers of State Legislature 1. Prior consent of the President of India for introduction of some Bills:

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There are certain bills which can be introduced in a state legislature only with the prior consent of the President of India.

2. Reservation of bills by the Governor for President’s Assent: There are certain bills, which after having been passed by the state legislature, can be reserved by the Governor for the consent of the President. Such bills become laws only after the President has given his assent. 3. Limitation that can be imposed by the Rajya Sabha: The Union Parliament gets the power to pass laws on the State List, (for one year) if the Rajya Sabha adopts a resolution (supported by 2/3rd majority of the members present and voting) and declares a state subject mentioned in the resolution as a subject of national importance. 4. Limitations during national Emergency: When a national emergency (Under Art. 352) is in operation, the Parliament is empowered to pass a law on any subject of the State List. The law so passed operates during the period of emergency and for six months after the end of the emergency. 5. Limitations during a Constitutional Emergency: During the operation of constitutional emergency in a state under Art 356, the Union Parliament gets the authority of making laws for that state. The State Legislature stands either dissolved or suspended. 6. Discretionary Powers of the Governor: Discretionary powers of the Governor of a state also constitute a limitation on the State Legislature. Whenever he acts in his discretion, he is beyond the jurisdiction of the State Legislature. Acting in his discretion, the Governor can even dissolve the State Legislative Assembly. 7. Precedence of Union Laws on the Concurrent Subject: They State Legislature and the Union Parliament, both have the concurrent power to make laws on the subjects of the Concurrent List. If both the Union Parliament and a State Legislature pass a law on the same subject of the Concurrent List and there is inconsistency between the two, the law passed by the Union Parliament gets precedence over the corresponding state law. Thus each state legislature in India exercises law-making powers over the subjects given to it by the Constitution. However, even in respect of these, it exercises law-making powers under the above constitutional limitations. Nevertheless in general the State

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Legislatures act as important and powerful legislatures in all the 28 States and 2 Union Territories of India. Comparison of the two Houses The legislative assembly and legislative council are terms for the State Governments. The Legislative Assembly (Vidhan Sabha) is the lower house of the state government consisting of directly elected members of the people (similar to the Lok Sabha at the centre). The Legislative Council (Vidhan Parishad) is the upper house of the state government consisting of indirectly elected members i.e. municipal bodies and panchayats elect them, and some are nominated by the Governor (this is similar to the Rajya Sabha at the centre). However, only 8 states of India have a Legislative Council, as it is not a very powerful or a necessary house. All states have a Legislative Assembly, though. The Legislative Council does not enjoy equal Legislative powers with Legislative Assembly. It is a mere advisory chamber. In the first journey of a bill it can interpose some delay i.e. 3 months. In second journey, the Council shall have no power to withhold the Bill for more than a month. In case of disagreement between the two Houses, there is no provision of a joint sitting. Legislative Assembly

Legislative Council

1. To be a member a person should not be less than 25 years of age 2. The term of the house is of 5 years

1. To be a member a person should not be less than 30 years of age 2. It is a permanent house. Not a subject to dissolution

3. The limit of the members is 60 to 500 3. The limit of the members is 40 to 1/3 of the total members of the assembly Members are elected by direct election 4. 1/3 are elected by MLA’s 1/3 by members of local bodies 1/12 elected by graduates 1/12 elected by teachers 1/6 nominated by Governor

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5. Both Money and Non- Money bills can be initiated

6. It can participate in the elections of the President 7. No-Confidence Motion can be passed

8. It can pass a resolution for the creation and abolition of Legislative Council in the State

5. Only Non- Money Bills can be initiated

6. It cannot participate in the elections of the President 7. No-Confidence Motion cannot be passed 8. It cannot pass a resolution for the creation and abolition of Legislative

High Courts Introduction There are 24 High Courts at the state and union territory level of India, which together with the Supreme Court of India at the national level, comprise the country’s judicial system. Each High Court has jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts is a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian Constitution. The High Courts are the principal civil courts of original jurisdiction in each state and union territory. However, a High Court exercises its original civil and criminal jurisdiction only if the subordinate courts are not authorized by law to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or federal law. However, the work of most High Courts primarily consists of appeals from lower courts and writ petitions in terms of Article 226 of the constitution. Writ jurisdiction is also original jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies. The appeal order is the following: Tehsil-Kotwali- Criminal/Civil Courts – District – High Court – Supreme Court. Each state is divided into judicial districts presided over by a District and Sessions Judge. He is known as a District Judge when he presides over a civil case and a Sessions Judge when he presides over a criminal case. He is the highest judicial authority below a High Court judge. Below him, there are courts of civil jurisdiction, known by different names in different states.

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Under Article 141 of the Constitution, all courts in India (which includes High Courts) are bound by the judgments and orders of the Supreme Court of India by precedence. Organisation of High Court 1. Every High Court shall consists of a Chief Justice and such other judges as the President of India may from time to time appoint. 2. Besides, the President has the power to appoint: 3. Additional Judges for a temporary period not exceeding two years, for the clearance of areas of work in a High Court; 4. An acting judge, when a permanent judge of a High Court (other than Chief Justice) is temporarily absent or unable to perform his duties or is appointed to act temporarily as Chief Justice. 5. But neither an additional nor an acting Judge can hold office beyond the age of 62 years (by 15th Amendment) Act age of retirement raised from 60 to 62. Judges Appointment of Judges Every Judge of a High Court shall be appointed by the President. In making the appointment, the President shall consult the Chief Justice of India, the Governor of the State (and also the Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice). Qualification of Judges For appointment as a judge of a High Court the person must be an Indian citizen who has worked as a judge in any court in India for a period not less than ten years. Advocates with a ten year standing in any High Court are also eligible besides jurists whom the President of India may consider as eminent.

Oath or affirmation by Judges of High Courts Every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. Tenure of Judges The age of retirement in respect of the Judges of the High Court stands at 65 years. They cannot be removed except though impeachment by both Houses of the Parliament in accordance with the procedure prescribed in the Constitution.

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No judge has so far been removed by impeachment. In one instance where the impeachment proceedings had been initiated, the address could not muster the requisite majority. Removal of Judges A motion of impeachment addresed to the President and signed by 100 memebers of the Lok Sabha or 50 members of the Rajya Sabha, delivered to the Speaker of Lok Sabha or the Chairman of the Rajya Sabha. The motion shall be investigated by 3 judges of the Supreme Court and a distinguished Jurist. If a judge is found “incapable or misbehaving”, a motion and report will be considered in each House. The judge is than removed by majority of 2/3 present and voting in each house. Finally, the President orders the removal of the Judge. Removal of a High Court Judge does not find direct place in Article 217 of the Constitution of India. Under proviso (b) of Article 217, it has been laid that the procedure mentioned in article 124 would apply. Salaries and Allowances of High Court Judges The High Court and the Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2015 was introduced in the Lok Sabha on August 13, 2015. The Bill amends the High Court Judges (Salaries and Conditions of Service) Act, 1954 and Supreme Court Judges (Salaries and Conditions of Service) Act, 1958. The Bill states that a period of 10 years will be added from April 2004 to the service of a Judge, for the purpose of providing pension. This would be applicable to a judge who has been an advocate of a High Court for at least 10 years. The 1954 and 1958 Acts provide for leave on full allowances and half allowances. The Bill adds that casual leave for Supreme Court and High Court judges will be computed in a manner to be prescribed. Under the 1954 Act and the 1958 Act, the monthly rate of leave allowances, while on leave on full allowances, would be equal to the monthly rate of his salary, for the first 45 days of leave. Thereafter, it would be 55% of the monthly salary rate for the Chief Justice of High Court (CJHC), 50% for Chief Justice of India (CJI), 55% for other Supreme Court judges, and 60% for other High Court judges. The rate of leave allowance for leave on half allowance would be 25% of monthly allowance rate for a CJI, 27.5% for a CJHC and other SC judges, and 30% for other HC judges. The Bill amends this to state that Judges would have the option of availing leave on full allowances, half allowances, or partly full and partly half allowances. Transfer of a Judge Article 222 in the Constitution is related to the transfer of a Judge from one High Court to another.

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The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963 , as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. Independence of High Court The Independence of the High Court can be given as: 1. Appointment: As after the “Second and Third judges Case”, the appointment of a judge of High Court lies within judiciary itself and completely aloof from powers of executive and legislature. 2. Tenure: The security of tenure is guaranteed till the retirement age of 65 years; as a High Court judge can’t be removed except by address of President which is subjected to procedure as above defined. 3. Emoluments: The Judges are entitled to fix salary and service conditions as determined by Parliament. But they cannot be changed to their disadvantage after appointment, except in case of a Financial Emergency. The expenses of the High Court are charged on the Consolidated Fund of the State, which is not subjected to vote of State legislature. 4. Retirement: A retired judge can be appointed as a Judge of the High Court for a temporary period, as deemed fit by the Chief Justice of the High Court. 5. Conduct of Judges: The conduct of the Judges of High Court can’t be discussed in Parliament unless any motion of impeachment has been moved. 6. Powers: Both the Parliament and the State Legislature are not authorized to cut the powers and jurisdiction of High Court as guaranteed by constitution. Jurisdictions The following are the Jurisdictions and Powers which the High Courts enjoy all over the country. 1. Original jurisdiction: The Constitution of India does not give a detailed description of the original jurisdiction of the High Court. It is accepted that the original jurisdiction of a High Court is exercised by issue of Writs to any person or authority including Government. Article 226 of the Constitution vests in the High Court the power to issue writs for the restoration of the Fundamental Rights. This power of the High Court does not derogate the similar power conferred on the Supreme Court in Article 32 of the Constitution. The original jurisdiction of the High Courts also extends to the matters of admiralty, probate, matrimonial and contempt of Court cases. The High Courts have also full powers to make rules

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to regulate their business in relation to the administration of justice. It can punish for its own contempt. 2. Appellate Jurisdiction: The appellate jurisdiction of High Court extends to both civil and criminal cases. In civil cases, its jurisdiction extends to cases tried by District judges. In the criminal cases it extends to the cases decided by the Sessions and Additional Sessions Judges. Thus, the jurisdiction of the High Court extends to all cases under the State or federal laws. Its jurisdiction can be enlarged by the Parliament and the State Legislature. The Parliament exercises exclusive power to make laws touching the jurisdiction and power of all Courts with respect to the subjects on which it is competent to legislate. It can also legislate on subjects enumerated in the Concurrent List. Likewise, a State Legislature has the power to make laws touching the jurisdictions and powers of all Courts within the State with respect to all subjects enumerated in the State List and the Concurrent List. But as regards the subjects in the Concurrent List the Union law prevails in case of conflict. Powers Power of Superintendence: A High Court has the power of Superintendence over all Courts and Tribunals, except those dealing with the armed forces functioning in the State. In exercise of this power it may:1. Call for return from such Courts. 2. May issue general rules and prescribe forms for regulating the practice and proceedings of such Courts, and 3. Prescribe forms in which books and accounts are being kept by the Officers of any Court. This power has made the High Court responsible for the entire administration of Justice in the State. It is both judicial as well as administrative in nature. The Constitution does not place any restriction on its power of superintendence over the subordinate Courts. It may be noted the Supreme Court has no similar power vis-a-vis the High Court. Power of Transfer of Cases to High Court If the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may :-

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1. Either dispose of it, or 2. Determine the said question of law and return the case to the Court from whom it had been withdrawn together with a copy of its judgment on such a question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment. By vesting these powers in the High Court the framers of our Constitution have safeguarded the possible multiplicity of constitutional interpretation at the level of subordinate Court. The High Court has also got ample powers to call for the records of any case from any subordinate Court to satisfy itself about the correctness and legality of the orders passed by the subordinate Courts. The High Court may either be moved by any interested party to exercise its power of revision. Even without being so moved, it can suo moto call for records and pass necessary order. Control over its Officers and Employees The High Court has complete control over its officers and employees. Appointments of officers and servants are to be made by the Chief Justice or such other Judge or Officer of the High Court as the Chief Justice may direct. However, the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court except after consultation with the State Public Service Commission. Subject to any of the Act of the State Legislature, the conditions of service of those officers and servants of the High Court are to be such as may be prescribed by rules made by the Chief Justice of the High Court or by some other Judge or Officer of the High Court authorised by the Chief Justice to be make such rules. The power of appointment also includes powers to suspend or dismiss. The administrative expenses of the High Court, including all salaries, allowances and pension’s payable to its officers, are charged upon the Consolidated Fund of the State. Court of Record Finally, a High Court is also a court of Record. Its decision will be binding on its subordinate Courts. Its proceedings and decisions have evidential value and they cannot be questioned by the subordinate Courts. Further, it can punish for contempt of itself. Some High Courts exercise jurisdiction over the Union territories. To make the exercise of this jurisdiction effective, the restrictions are imposed on the power of the State Legislatures to make law with respect to that jurisdiction. When a High Court exercises jurisdiction in relation to a Union territory, the Legislature of that State has no power to increase, restrict or abolish that jurisdiction of the High Court.

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Subordinate Courts Constitutional Provisions The Articles 233 to 237 in the Constitution describe the provisions to regulate the organization of Subordinate Courts and to ensure their independence from the Executive. Appointment of District Judges Appointments of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Appointment of other Judges Appointment of other Judges (other than district judges) to the judicial service of a state is to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court. Control over Subordinate Courts The control over district courts and courts subordinate including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing shall be construed as taking away from such persons any right of appeal which he may have under the law regulating the conditions of his service. Interpretation The District Judge is the representative of the High Court in the District. He administers works distribution in the Subordinate Courts in the District. His is the most important post of the District. The subordinate courts covering the civil cases, in this aspect are considered as Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court, which are also known as Sub Courts, Subordinate Courts. All these courts are treated with ascending orders. The subordinate courts covering the criminal cases are Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, and Chief Judicial Magistrate Court along with family courts which are founded to deal with the issues related to disputes of matrimonial issues only. The status of Principal Judge of family court is at par with the District Judge Article 309 of the Constitution which occurs in chapter 1 of Part XIV deals with the recruitment and conditions of service of persons serving the Union or a State. It empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or

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of any State. The proviso however says that until the appropriate Legislature shall make the rules, it shall be open to the President, in the case of services under the Union, and to the Governor, in respect of the services under the State, to make rules for the said purpose. Article 310, which incorporates pleasure clauses, is not relevant for the present purpose. Structure and Jurisdiction District Courts: Constitution The basis of structuring of district courts in India is mainly depending upon the discretion of the state governments or the union territories. The structure of these courts is mainly made considering several factors like the number of cases, distribution of population, etc. Depending upon these factors, the state government takes the decision of numbers of District Courts to be in operation for single district or clubbing together different adjacent districts. Normally, district courts exercise their power of juridical service in district level. These courts are covered by the administrative power of the High Courts under which the district courts are covered. The judgments of the district courts are subject to review to the appellate jurisdiction of the respective high court. Village Courts The village courts are named as Lok Adalat or Nyaya Panchyat which means the service of justice extended to the villagers of India. This is the system for resolving disputes in micro level. This conceptual model had been started to be sued from the state of Gujarat consisting of a judge and two assessors since 1970s. The Law Commission had recommended in 1984 to form the Nyaya Panchayats in the rural areas with the people of educational attainment. The latest development had been observed in 2008 through initiation of Gram Nyaylayas Act which had sponsored the concept of installation of 5000 mobile courts throughout the country. These courts are assigned to judge the petty cases related to civil and criminal offence which can generate the penalty of up to 2 years imprisonment. Jurisdiction The district courts are mainly run by the state government appointed district judges. There are additional district judges and assistant district judges who are there to share the additional load of the proceedings of District Courts. These additional district judges have equal power like the district judges for the jurisdiction area of any city which has got the status of metropolitan area as conferred by the state government. These district courts have the additional jurisdictional authority of appeal handling over the subordinate courts which are there in the same district specifically in the domain of civil and criminal affairs

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There are in total 351 district courts in operation out of which 342 are of states while 9 are of union territories. Panchayati Raj Evolution of Panchayati Raj 1. Balwant Rai Mehta Committee In 1957, the Balwant Rai Mehta Committee recommended for the introduction of a three-tier Panchayati Raj System in India. Following the recommendations of this committee report, the then government of India and the State Governments too took different measures to strengthen the Panchayati Raj system existing at that time. It was with this purpose the Balwant Rai Meheta Committee was appointed by the Central Government of India in 1957. The committee recommended for the establishment of the three-tier Panchayati Raj system in India. These three-tires are: 1. The Gram-Panchayats at the village level or at the bottom, 2. The Panchayat Samiti at the block level or in the middle and 3. The Zilla Parishad at the district level. It was recommended that these three-tires would have to be related with each other. The committee also discussed about the philosophical basis of the Panchayati-Raj-system. The Panchayati Raj system acts as a link between the local leadership and the government. The local leadership always enjoys the trust of the local people and it is this local leadership which translates the governmental policies and decisions into action. That is why the Gram-Panchayat is considered as the lowest unit of the government. Its aim is to use the panchayat as the means or medium for proper implementation of the governmental policies and programmes. It may be mentioned in this regard that the basic idea of Mahatma Gandhi was to establish the Panchayati Raj as an independent self-government system or as independent republic. However, in course of time, the Panchayati Raj system lost much of its popularity and popular participation in it also became insignificant. First state to launch Panchayati Raj The implementation of Panchayat Samiti and Zila Parishad Act of September 2, 1959 came into effect from October 2 when the Panchayati Raj was formally launched from Nagaur, Rajasthan. Andhra Pradesh launched the scheme soon after, on October 11, while Assam, Karnataka and Madras launched it in 1960. One by one all the other States followed the suit later. Ashok Mehta Committee In December 1977, the Janta Government appointed a committee on Panchayati Raj institutions under the chairmanship of Ashok Mehta. It submitted its report in August 1978 and

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made 132 recommendations to revive and strengthen the declining Panchayati Raj System in the country. Its main recommendations are: 1. The three-tier system of Panchayati Raj should be replaced by the two-tier system, that is, Zila Parishad at the district level, and below it, the Mandal Panchayat consisting of a group of villages covering a population of the 15000 to 20000. 2. A district should be the first point for decentralization under popular supervision below the state level. 3. Zila Parishads should be the executive body and made responsible for planning at the district level. 4. There should be an official participation of political parties at all levels of Panchayat elections. 5. The Panchayati Raj institutions should have compulsory powers of taxation to mobilize their own financial resources. 6. There should be a regular social audit by a district level agency and by a committee of legislators to check whether the funds allotted for the vulnerable social and economic groups are actually spent on them. 7. The state government should not supersede the Panchayati Raj institutions. In case of an imperative supersession, election should be held within six months from the date of supersession. 8. The Chief Electoral Officer of state in consultation with Chief Election Commissioner should organise and conduct the Panchayati Raj elections. 9. Development functions should be transferred to the Zila Parishad and all development staff should work under its control and supervision. 10. A minister for Panchayati Raj should be appointed in the state council of ministers to look after the affairs of the Panchayati Raj institutions. 11. Seats for SC and ST should be reserved on the basis of their population. 12. G.V.K. Rao Committee The G.V.K. Rao Committee- was set up by the Planning Commission in 1985. It recommended for the revival of Panctiayati Raj institutions and highlighted the need to transfer powers to democratic bodies at the local level. The two important suggestions that this committee made were: 1. That the ‘district’ should be the basic unit of planning and programme implementation. 2. Zilla Parishads should become the principal body for the management of all development programmes which can be handled at that level. 3. Zila Parishads should to be given prime importance and all developmental programs at that level to be handed to it. 4. Post of DDC (District Development Commissioner) to be created acting as the chief executive officer of the Zila Parishad. 5. Regular elections to be held. 4. L.M. Singhvi Committee The Government of India set up in 1986 L.M. Singhvi Committee to prepare a concept paper on the revitalisation of the Panchayati Raj institutions. It recommended that the Panchayati Raj should be constitutionally recognised, protected and preserved, by the inclusion of a new chapter in the Constitution.

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Its recommendations were: 1. Constitutional recognition for PRI institutions. 2. Nyaya Panchayats to be established for clusters of villages Though the 64th Constitutional Amendment bill was introduced in the Lok Sabha in 1989 itself, the Rajya Sabha opposed it. 73rd Amendment Act of 1992 The 73rd Amendment (together with the 74th) was called ‘a silent revolution’ for various reasons. 1. First of all, the PRIs no longer operated at the whim of state governments and their laws. They were a part of the Constitution and enjoyed the status of institutions of self-government, as parliament at the federal level and legislative assemblies at the state level. 2. The amendment prescribed regular elections every five years and election within six months of the dissolution of any PRI. To ensure free, fair, and timely elections there was a provision for the setting up of a state election commission. 3. The most revolutionary provision wais the reservation of one-third of the seats for women in local bodies, along with the reservation of seats for scheduled castes and scheduled tribes in proportion to their regional populations. 4. The amendment laid down 29 functions to be entrusted to the PRIs.  To maintain a democratic ethos, popular accountability, and transparency, the amendment emphasized the need for periodic meetings of the gram sabha, composed of all adults in each village. These meetings would approve ongoing programmes and financial allocations. 5. In brief, the amendment visualised the allocation of funds, functions, and functionaries to the bodies to ensure genuine and effective democratic decentralisation. Mandatory and Discretionary Powers Important mandatory provisions were: 1. The establishment in every state (except those with populations below 2 million) of panchayats at the village, intermediate and district levels (Article 243B). 2. Direct, elections to all- seats in the panchayats (lowest elective tier) at all levels (Article 243 C). 3. Compulsory elections to panchayats every five years. 4. If a panchayat was dissolved prematurely, elections must be held within six months, with the newly elected members serving the remainder of the five year term (Article 243E). 5. Reservation of seats in all panchayats at all levels for SCs/ STs (Article 243D). 6. Reservation of one—third of all seats in all panchayats at all levels for women, with the reservation for women applying to the seats reserved for SC/STs (Article 243D). 7. Indirect elections to the position of panchayat chairperson at the intermediate and district levels (Article 243C). 8. Reservation of the position of panchayat chairperson at all levels for SC/STs in proportion to their share in the state population (Article 243D). 9. Reservation of one-third of the positions of chairperson at all three levels for women (Article 243D).

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The discretionary provisions were: 1. 2. 3. 4. 5.

The transfer of powers and functions to Gram Sabha. The mode of election of chairperson of a panchayat at village level. Reservation of OBCs. To decide the taxes, duties, tolls and fees for which a panchayat shall be authorised. To make provision for maintenance of accounts and auditing of panchayats. PESA Act of 1996 (Extension Act) Village level democracy became a real prospect for India in 1992 with the 73rd amendment to the Constitution, which mandated that resources, responsibility and decision making be passed on from central government to the lowest unit of the governance, the Gram Sabha or the Village Assembly. A three tier structure of local self government was envisaged under this amendment. Since the laws do not automatically cover the scheduled areas, the PESA Act was in acted on 24 December 1996 to enable Tribal Self Rule in these areas. The Act extended the provisions of Panchayats to the tribal areas of nine states that have Fifth Schedule Areas. Most of the North eastern states under Sixth Schedule Areas (where autonomous councils exist) are not covered by PESA, as these states have their own Autonomous councils for governance. The nine states with Fifth Schedule areas were:

1. 2. 3. 4. 5. 6. 7. 8. 9.

Andhra Pradesh Chhattisgarh Gujarat Himachal Pradesh Jharkhand Maharashtra Madhya Pradesh Orissa Rajasthan Objectives of the PESA Act The fundamental spirit of the Panchayat Extension Act for tribal areas under 5th Schedule is that it devolves power and authority to Gram Sabha and Panchayats rather than delegation; hence it paves way for participatory democracy. The provision under constitution and the composition under this act call for every legislation on the Panchayat in 5th Schedule area be in conformity with the customary law, social and religious practices and traditional management practices of the community resources. It also directs the state government to endow powers and authority to make Gram Sabha and Panchayats function as Institutions of Local Self Governance, specifically on matters of enforcing prohibition of sale and consumption of intoxicant; ownership of minor forest produce; power to prevent alienation of land and restoration of unlawfully alienated land, management of village markets, control over money lending, etc.

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PESA also empowered gram sabha of the Scheduled Areas to approve plans, programmes for social and economic development, identify beneficiaries under poverty alleviation programmes, certify utilization of funds by gram Panchayats, protect natural resources, including minor forest produce and be consulted prior to land acquisition. PESA make sure that each tier of the Local Governance is independent and Panchayats at higher level should not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha. Further, it also calls for creating the appropriate levels of Panchayats similar to 6th Schedule area, where the Administrative boundaries are Autonomous enough for self-rule. All the states with scheduled areas within their geographical boundaries were mandated to amend their existing Panchayati Raj acts incorporating provisions of PESA within a year, that is, by 24 December 1997. Provisions under PESA include the following: 1. 2. 3. 4. 5. 6.

7. 8. 9.

Gram Sabha at the Para, Majra and Tola levels. Gram Sabha to protect the traditions, beliefs and culture of the tribal communities. Local disputes to be resolved by the Gram Sabha. Gram Sabha to manage and protect common properties based on their traditional systems of management and protection. The administration to seek permission from the Gram Sabha in case of land acquisition. Gram Sabha to have the rights over minor forest produce; powers to restore land to the tribals and control over money-lending to tribals, tribal welfare activities by social organizations and local plans and sub-plans for the development of tribal areas and communities. Gram Sabha to have the control over local markets and melas. Gram Sabha to have rights to control the distillation, prohibition and manufacture of liquor. District panchayats to have rights and powers similar to the district panchayats falling under Sixth Schedule. The Fifth Schedule suggests that the Governor and the Tribes Advisory Council (TAC) should protect/promote the welfare and advancement of the Scheduled Tribes. It follows that the correct or harmonious interpretation of PESA would be the recognition of the traditional tribal political institutions of self governance. Such a conclusion also follows since the PESA must be read in conjunction with the Fifth Schedule, which deals with the Scheduled Tribes of the Fifth Schedule Areas and given the fact that PESA has as its backdrop the recommendations of the Bhuria Committee, which was instrumental in formulating the PESA. Key Features of the Model PESA Rules

1. The Gram Panchayat shall be deemed to be the Executive Committee of the Gram Sabha. The Secretary of the Gram Panchayat will be deemed to be the Secretary of the Gram Sabha and the Gram Sabha will hold a meeting at least once in two months. 2. A person who is a member of a Scheduled Tribe will be selected as chairperson for the meeting of the Gram Sabha for one year by consensus. In the case of non-consensus, amongst the members present, the oldest lady from the Scheduled Tribes would be the chairperson.

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3. The quorum of the meeting of the Gram Sabha will be one fifth of the total members. There shall be a separate quorum for women, which will be one third of the general quorum. 4. The Gram Sabha may constitute Standing Committees viz. Peace Committee, Justice Committee, Resource Planning and Management Committee, Intoxication Control Committee, Debt Control Committee, Market Committee, Sabha Kosh Committee and others as deemed appropriate by the Gram Sabha in order to fulfil its responsibilities regarding various aspects of the working of the village, whose members shall be elected in an open meeting of the Gram Sabha among members of the Gram Sabha. Besides, temporary and ad-hoc committees may be constituted as per requirement. The tenure of all the Standing Committees will be of one or two years as decided by the Gram Sabha. 5. If under any Act on any subject such as forest, irrigation management, etc., a body or committee is constituted by any government department, the same will be treated as a Standing Committee of Gram Sabha on that subject. Notwithstanding the provisions in the concerned Act, that body or committee will be accountable to Gram Sabha. 6. The Gram Sabha will maintain a Gram Sabha Kosh which will consist of the contribution received in any form including voluntary contributions of cash and goods and the labour of villagers; amount received through the government from minor forest produce, minor minerals etc; and surcharges imposed on the consumption of the resources or fines levied by the Gram Sabha. The Gram Sabha will have the complete right of its usage as per its own decisions. 7. Process of dispute resolution by the Gram Sabha has also been listed out in the Model Rules. 8. The Gram Sabha will ensure that resources are utilized in such a way that: 9. Livelihood means are sustained. 10. Inequality among the people does not increase. 11. Resources are not confined to a few people. 12. The Gram Sabha will ensure that no land belonging to Scheduled Tribes is transferred to non ST persons. It shall be competent to enquire into any land transactions, or authorize the Peace Committee to do so, on the basis of complaints or suo motto. If the Gram Sabha is of the opinion that attempts are being made to alienate lands belonging to STs, it may issue instructions to prohibit the transaction and its decision in such cases shall be final. 13. Gram Sabha shall be mandatorily involved in all decision relating to land-acquisition; peace & security and dispute resolution; management of natural resources; agriculture and land; mines and minerals; intoxication control; minor forest produce; management of markets; money lending; identification of beneficiaries; approval of plans; supervision and review of social sector schemes as well as local institutions such as schools, hospitals, etc. 14. Gram Sabha is competent to maintain separate registers for the details of the 15. Births 16. Deaths 17. Marriages 18. Festivals 19. Persons going outside the village to make livelihood. 20. It will be mandatory for the Gram Panchayat to obtain a certification of utilization of all funds from the Gram Sabha for works undertaken in its areas. 21. If a Gram Sabha is of the opinion that any State Legislation is not in consonance with the customary law, social and religious practices and traditional management practices of the community resources, it may pass a resolution to that effect, and forward it to the State Government through the District Collector. The State Government shall take necessary action on it.

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Municipalities Evolution of Urban Bodies Historical Perspective The history of local self-government in India under the British rule can be conveniently divided into four phases. The first phase may be assumed to have ended in 1882, when Lord Ripon issued his well-known resolution on local self-government. The second phase covers developments from 1882 to 1919, when more powers were transferred from the centre to the provinces, and the recommendations of the Decentralisation Commission of 1907, besides discussing other matters, suggested some changes in local selfgovernment. The third phase extended up to 1935, during which the Indian Taxation Enquiry Committee (1925) considered the problems of local taxation, along with central and provincial finances. The Simon Commission of 1930, reversed the process of decentralisation, by recommending strict control of the state over local bodies. The fourth phase covers developments up to 1947. During this phase, the struggle for independence was intensified and with the introduction of provincial autonomy in 1937, and coming into power of congress ministries in many provinces, local bodies, particularly village panchayats, received a great stimulus and there was democratisation of local bodies. And “local self-government” became a mere annexe to the national political stadium, where the struggle for independence was moving towards its climax. The Nagarpalika bill In August 1989, Rajiv Gandhi’s Government introduced the 65th Constitutional Amendment Bill (i.e. Nararpalika Bill) in the Lok Sabha. The Bill aimed at strengthening and revamping the municipal bodies by conferring a constitutional status on them. Although the bill was passed in the Lok Sabha, it was defeated in the Rajya Sabha in October 1989, and hence, lapsed. The National front Government under V.P. Singh introduced the revised Nagarpalika Bill in the Lok Sabha in September 1990 again. However, the bill was not passed and finally lapsed due to the dissolution of the Lok Sabha. P.V. Narasimha Rao’s government also introduced the modified Municipalities Bill in the Lok Sabha in September 1991.

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It was passed in both, the Lok Sabha and the Rajya Sabha, in December 1992. After that, the bill was approved by the required number of state legislatures. It was assented by the President of India in April 1993. It emerged as the 74th Constitutional Amendment Act of 1992, and came into force on 1 st of June, 1993. The Provisions of the Bill were: 1. The state legislatures can decide the composition of municipalities. 2. The state legislatures can decide whether they want committees at the ward level or other levels within a municipal area. 3. The state legislatures will decide the power and authority they want to give municipalities. 4. Seats will be reserved for scheduled castes, scheduled tribes and women. 5. The tenure of the municipalities will be five years. 6. The power to impose taxes will be decided by the state legislatures. 7. A finance commission will be constituted to review the financial position of the municipalities. 8. The subjects to be looked after by municipalities include urban planning, land use regulations, urban forestry, urban poverty alleviation and slum improvement. 74th Amendment Act of 1992 The 74th Amendment Act gave Constitutional status to the Municipalities. It has brought them under the purview of the justiciable part of the Constitution. In other words, the state governments are under constitutional obligation to adopt the new system of municipalities in accordance with the provisions of the Act. Composition 1. All the members of a municipality shall be elected directly by the people of the municipal area. 2. For this purpose, each municipal area shall be divided into territorial constituencies to be known as wards. 3. The state legislature may provide the manner of election of the chairperson of a municipality. It may also provide for the representation of the following persons in a municipality 4. Persons having special knowledge or experience in municipal administration without the right to vote in the meetings of municipality. 5. The members of the Lok Sabha and the state Legislative Assembly representing constituencies which comprise wholly or partly the municipal area. 6. The members of the Rajya Sabha and the State Legislative CouncilØ registered as electors within the municipal area. Wards Committees 1. There shall be constituted a wards committee, consisting of one or more wards, within the territorial area of a municipality having population of three lakhs or more. 2. The state legislature may make provision with respect to the composition and the territorial area of a Wards Committee and the manner in which the seats in a wards committee shall be filled. 3. It may also make any provision for the constitution of committees in addition to the wards committees.

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Reservation of Seats 1. There shall be provisions for the reservation of seats for the scheduled castes and the scheduled tribes in every municipality in proportion of their population to the total population in the municipal area. 2. Further, there shall be the reservation of not less that one-third of the total number of seats for women (including the number of seats reserved for women belonging to the SCs and STs). 3. The state legislature may provide for the manner of reservation of offices of chairpersons in the municipalities for the SCs, the STs and the women. 4. It may also make any provision for the reservation of seats in any municipality or offices of chairpersons in municipalities in favour of backward classes. Duration of Municipalities 1. 2. 3. 4. 5.

There shall be a five-year term of office for every municipality. However, it can be dissolved before the completion of its term. Further, the fresh election to constitute a municipality shall be completed: Before the expiry of its duration of five years. In case of dissolution, before the expiry of a period of six months form the data of its dissolution.

Disqualification 1. A person shall be disqualified for being chosen as or for being a member of a municipality if he is so disqualified: 1. Under any law for the time being in force for the purposes of elections to the Legislature of the state concerned; or 2. Under any law made by the state legislature. 2. However, no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years. 3. Further, all questions of disqualifications shall be referred to such authority as the state legislature determines. Types The following eight types of urban local bodies are created in India for the administration of urban areas: 1. 2. 3. 4. 5. 6. 7. 8.

Municipal Corporation Municipality Notified Area Committee Town Area Committee Cantonment Board Township Port Trust Special Purpose Agency

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1. Municipal Corporation The urban local government which works for the development of any Metropolitan City with a population of more than one million is known as the Municipal Corporation. The members of the Municipal Corporation are directly elected by the people and are called Councilors 2. Municipality Municipalities in India came into being in the British era. The first of the municipalities in India was in the city of Chennai as the Municipal Corporation in the year 1688. This was followed by the setting up of the subsequent municipalities in India in the states of Maharashtra and West Bengal. Presidents of these municipalities in India were elected by Lord Mayo’s Resolution of 1870. The present structure and configuration of the municipalities of India came into being after Lord Ripon’s Resolution of 1882. The basic structure of the municipalities in India has not changed much since 1882. In the year 1992, the 74th Constitutional Amendment Act came into being and brought with it specifications regarding the responsibilities and the powers of the municipal units in India. The periodical elections followed the 1992 Act with timely elections and reconstruction of the municipal government. The number of councilors in a particular municipal area depends upon the total population of that region. Also, the elected councilors are the ones who choose among the nominated councilors. 3. Notified Area Council A Nagar Panchayat or Notified Area Council (NAC) or City Council in India is a settlement in transition from rural to urban. The 74th Amendment made provisions relating to urban local government. The three-tier structure is municipal corporation, municipal council and nagar panchayat. 4. Town Area Committee A town area committee is set up for the administration of a small town. It is a semimunicipal authority and is entrusted with a limited number of civic functions like drainage, roads, street lighting, and conservancy. It is created by a separate Act of a state legislature. Its composition, functions and other matters are governed by the Act. It may be wholly elected or wholly nominated by the state government or partly elected and partly nominated 5. Cantonment Board

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A Cantonment Board is one of civic administration body in India under control of Ministry of Defence. The Board comprises elected members besides ex-officio and nominated members as per the Cantonments Act, 2006. The term of office of a member of a Board shall be five years. The Cantonment Board consists of eight elected Members, three nominated Military Members, three Ex-officio Members (Station Commander, Garrison Engineer and senior executive Medical Officer), one representative of the District Magistrate. Cantonments is divided into four categories, namely, 1. Category I – population exceeds fifty thousand 2. Category II – population exceeds ten thousand, but does not exceed fifty thousand 3. Category III – population exceeds two thousand five hundred, but does not exceed ten thousand 4. Category IV – population does not exceed two thousand five hundred. It takes care of mandatory duties like of provision of public health, water supply, sanitation, primary education and street lighting etc. As the resources are owned by government of India, it can’t levy any tax. The Government of India provides the financial assistance. 6. Township This type of urban government is established by the large public enterprises to provide civic amenities to its staff and workers who live in the housing colonies built near the plant. The enterprise appoints a town administrator to look after the administration of the township. He is assisted by some engineers and other technical and non-technical staff. Thus, the township form of urban government has no elected members. In fact, it is an extension of the bureaucratic structure of the enterprises. 7. Port trusts The Port Trusts are established in the port areas like Mumbai, Kolkata, Chennai and so on, for two purposes: 1. To manage and protect the ports. 2. To provide civil amenities. A port trust is created by an Act of Parliament. It consists of both elected and nominated members. Its Chairman is an official. Its civic functions are more or less similar to those of a Municipality. 8. Special Purpose Agency In addition to the area- based urban bodies (or multipurpose agencies, i.e., municipal corporations, municipalities, notified area committees, town area committees, cantonment

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boards, townships and port trusts), the State Governments have set up certain agencies to undertake designated activities or specific functions which legitimately, belong to the domain of municipal corporations or municipalities or other local urban governments. In other words, these are function-based and not area based. They are known as ‘single purpose’ or ‘uni-purpose’ or ‘special purpose’ agencies or ‘functional’ local bodies. Some such bodies are: 1. 2. 3. 4. 5. 6. 7.

Town Improvement Trusts. Urban Development Authorities. Water Supply and Sewerage Boards. Housing Boards. Pollution Control Boards. Electricity Supply Boards. City Transport Boards. Union Territories Introduction Article 1 of the Indian Constitution says that India shall be a Union of States. The territory of India shall comprise the territories of the States; the Union territories specified in the First Schedule; and such other territories as may be acquired. And the Union Territories are administered by the President through an Administrator appointed by him/her. UTs are ruled directly by the Central Government through the Lieutenant Governor as the administrator. He is appointed by the Central government and is also a representative of the President of India. Although UTs have the option of forming respective governments and having a Legislature with elected Members and a Chief Minister (like New Delhi and Puducherry), yet the powers of such governments are lesser than the state governments. Creation of Union Territories As far as history goes, the Union Territories were either not a part of India during independence or they were too small to be made into a state as per the provision of the Constitution. During the discussion on Reorganization of States in 1956, the States Reorganisation Commission recommended creation of a different category for these territories since they neither fit the model of a state, nor do they follow a uniform pattern when it comes to governance. It was observed that these “economically unbalanced, financially weak, and administratively and politically unstable” territories would not survive as separate administrative units without depending heavily on the Union government. Thus the Union Territories were formed.

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In certain cases, the government of India deliberately chose not to merge smaller territories with the neighbouring states due to a host of reasons. While in some cases the status of “Union Territory” was assigned to a region for safeguarding the rights of indigenous cultures, there had been other instances wherein a portion of geographical landmass was made into a union territory to maintain military prowess and also to avert political turmoil. Administration of Union Territories Article 239 (1) provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. Instead of appointing an Administrator from outside, the President may appoint the Governor of a State as the Administrator of an adjoining Union Territory and where a Governor is so appointed, he shall exercise his functions as such Administrator independently of his council of Ministers. All the Union Territories are thus administered by an Administrator as the agent of the President and not by Governor acting as the head of a State. The President as the executive head of a Union Territory does not function as the head of the Central Government, but as the head of the Union Territory under powers specially vested in him under Art. 239. Under Article 239, the President occupies, in regard to Union Territories, a position analogous to that of a Governor in a State. Though the Union Territories are centrally administrated under the provisions of Article 239, they do not become merged with the Central Government. Administrators have been assigned to: 1. 2. 3. 4.

Chandigarh Dadra & Nagar Haveli Daman and Diu Lakshadweep Islands Lieutenant Governors have been assigned to:

1. Delhi 2. Pondicherry 3. Andaman & Nicobar Islands Special Provisions for Delhi The National Capital Territory of Delhi is a metropolitan region, spread over 1,484 square kilometres of area. It is a Union Territory as well as a State, as it has a High Court, Legislative Assembly, and a Council of Ministers, headed by the Chief Minister.

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There are 70 assembly constituencies and seven parliamentary constituencies in Delhi. Lieutenant Governor is the ceremonial head of the state who is appointed by the President of India. Delhi is neither a State, nor a Union Territory. It used to be a full-fledged Union Territory till 1991, when the 69th Amendment of the Constitution gave it a special status. The amendment declared the Union Territory of Delhi to be formally known as National Capital Territory of Delhi. A system of diarchy was introduced under which the elected Government was given wide powers, excluding law and order which remained with the Central Government. The actual enforcement of the legislation came in 1993. The major points of the 69th amendment were as follows: 1. There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. 2. The Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. 3. There shall be a Council of Ministers consisting of not more than ten percent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. 4. In the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision 5. The Council of Ministers shall be collectively responsible to the Legislative Assembly Advisory Committee for Centrally Administered Union Territories The advisory committees comprise of elected members, government officials and eminent people of the territory. The committees cover a wide ground and ensure popular participation in administration. The administration of union territories is a special responsibility. There are three such committees to advice about: 1. Andaman and Nicobar Islands 2. Lakshadweep and Minicoy Islands 3. Chandigarh Scheduled and Tribal Areas Article 244 in the Constitution speaks about the administration of Scheduled Areas and Tribal Areas. 1. The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in Meghalaya, Tripura and Mizoram.

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2. The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the state of Assam, Meghalaya, Tripura and Mizoram. Administration of Scheduled Areas The President may at any time by order 1. Direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area. 2. Increase the area of any Scheduled Area in a State after consultation with the Governor of that State. 3. Alter, by way of rectification of boundaries, any Scheduled Area. 4. On any alteration of the boundaries of a State on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area. 5. Rescind, in relation to any State of States, any order or orders made under these provisions and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas. The Governor of each State having Scheduled Areas shall annually, or whenever so required by the President, make a report to the President regarding the administration of Scheduled Areas in that State. The Union Government shall have executive powers to give directions to the States as to the administration of the Scheduled Areas. Para 4 of the Fifth Schedule provides for establishment of a Tribes Advisory Council (TAC) in any State having Scheduled Areas. If the President so directs, there will be established a TAC in a State having Scheduled tribes but not Scheduled Areas, consisting of not more than twenty members of whom, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State. If the number of representatives of the STs in the Legislative Assembly of the State is less than the number of seats in the TAC to be filled by such representatives, the remaining seats shall be filled by other members of those Tribes. The TAC shall advise on such matters pertaining to the welfare and the advancement of the STs in the State as may be referred to them by the Governor. The Governor may make rules prescribing or regulating: 1. The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof. 2. The conduct of its meetings and its procedure in general. 3. All other incidental matters. The Governor may, by public notification, direct that any particular Act of Parliament or of the Legislature of the State shall or shall not apply to any part in the State, subject to such exceptions and modifications, as specified.

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The Governor may make regulations for the peace and good government of any area in the State which is for the time being a Scheduled Area. Such regulations may 1. Prohibit or restrict the transfer of land by or among members of the Scheduled tribes in such area; 2. Regulate the allotment of land to members of the STs in such area; 3. Regulate the carrying on of business as money-lender by persons who lend money to members of the STs in such area. In making such regulations, the Governor may repeal or amend any Act of Parliament or of Legislature of the State or any existing law after obtaining assent of the President. No regulations shall be made unless the Governor, in case a TAC exists, consults such TAC. Administration of Tribal Areas If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions. The Governor may include any area, and exclude any area, create a new autonomous district, increase the area of any autonomous district, diminish the area of any autonomous district, unite two or more autonomous districts or parts thereof so as to form one autonomous district, alter the name of any autonomous district, define the boundaries of any autonomous district. There shall be a District Council for each autonomous district consisting of not more than thirty members, of whom not more than four persons shall be nominated by the Governor and the rest shall be elected on the basis of adult suffrage. There shall be a separate Regional Council for each area. Each District Council and each Regional Council shall be a body corporate by the name respectively of “the District Council of (name of district)” and “the Regional Council of (name of region)” shall have perpetual succession and a common seal. The administration of an autonomous district shall be vested in the District Council and the administration of an autonomous region shall be vested in the Regional Council for such region. The Governor shall make rules for the first constitution of District Councils and Regional Councils in consultation with the existing tribal Councils or other representative tribal organizations within the autonomous districts or regions concerned, and such rules shall provide for: 1. 2. 3. 4. 5. 6. 7.

The composition of the District Councils and Regional Councils and the allocation of seats. The delimitation of territorial constituencies for the purpose of elections to those Councils. The qualifications for voting at such elections and the preparation of electoral rolls. The qualifications for being elected at such elections as members of such Councils. The term of office of members of Regional Councils. Any other matter relating to or connected with elections or nominations to such Councils. The procedure and the conduct of business (including the power to act notwithstanding any vacancy) in the District and Regional Councils.

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8. The appointment of officers and staff of the District and Regional Councils. The tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram are separately dealt with and provisions for their administration are to be found in the Sixth Schedule to the Constitution. Part X of the Constitution is concerned with the administration of Scheduled Areas and Tribal Areas. The Constitution makes special provisions for the administration of certain areas called Scheduled Areas, presumably because of the backwardness of the people of these Areas. Subject to legislation by Parliament, the power to declare an area as a “Scheduled area” is given to the President. Lokpals and Lokayukts Introduction Global Scenario An ombudsman, ombuds, or public advocate is an official, usually appointed by the government or by parliament, but with a significant degree of independence, who is charged with representing the interests of the public by investigating and addressing complaints of maladministration or a violation of rights. In some countries an Inspector General, Citizen Advocate or other official may have duties similar to those of a national ombudsman, and may also be appointed by a legislature. Below the national level an ombudsman may be appointed by a state, local or municipal government. Unofficial ombudsmen may be appointed by, or even work for, a corporation such as a utility supplier, newspaper, NGO, or professional regulatory body. The typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systematic issues leading to poor service or breaches of people’s rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector (for example, contracted service providers). In some cases, there is a more restricted mandate, for example with particular sectors of society. More recent developments have included the creation of specialized Children’s Ombudsman and Information commissioner agencies. In some jurisdictions an ombudsman charged with handling concerns about national government is more formally referred to as the “Parliamentary Commissioner” (e.g. the United Kingdom Parliamentary Commissioner for Administration, and the Western Australian state Ombudsman). In many countries where the ombudsman’s responsibility includes protecting human rights, the ombudsman is recognized as the national human rights institution. The post of ombudsman had by the end of the 20th century been instituted by most governments and by some intergovernmental organizations such as the European Union.

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Lokpals A Lokpal is an anti-corruption authority or ombudsman who represents the public interest. The concept of an ombudsman is borrowed from Sweden. The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption. The Lokpal and Lokayuktas Act was passed in 2013 with amendments in parliament, following the Jan Lokpal movement led by Anna Hazare. The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level. The term “Lokpal” was coined by Dr. L.M.Singhvi in 1963. The concept of a constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar Sen in the early 1960s. The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok Sabha in 1969, but did not pass through the Rajya Sabha. Subsequently, ‘lokpal bills’ were introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister in the Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in 2008, yet they were never passed. Forty five years after its first introduction, the Lokpal Bill is finally enacted in India on 18 December 2013. The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption against the prime minister, other ministers, and MPs. The Administrative Reforms Commission(ARC) recommended the enacting of the Office of a Lokpal, convinced that such an institution was justified, not only for removing the sense of injustice from the minds of citizens, but also to instill public confidence in the efficiency of the administrative machinery. Following this, the Lokpal Bill was, for the first time, presented during the fourth Lok Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and thus the bill was not passed. Status of 2011 Lokpal Bills The bill was revived several times in subsequent years, including in 2011. Each time, after the bill was introduced to the House, it was referred to a committee for improvements, to a joint committee of parliament, or to a departmental standing committee of the Home Ministry. Before the government could take a final stand on the issue, the house was dissolved again. Several conspicuous flaws were found in the 2008 draft of the Lokpal Bill. The basic idea of a Lokpal is borrowed from the Office of the Ombudsman, which has the Administrative Reforms Committee of a Lokpal at the Centre,[clarification needed] and Lokayukta(s) in the states. Anna Hazare fought to get this bill passed, and it did pass on 27 December 2011, with some modifications. These were proposed as the Jan Lokpal Bill. However, Hazare and his team, as well as other political parties, claimed that the Lokpal Bill passed was weak, and would not serve its intended purpose. So the proposed bill by the ruling Congress Party has yet to be accepted in the Rajya Sabha. Lokpal and Lokayukt Bill, 2011

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The Lokpal and Lokayuktas Bill, 2011, introduced on December 22, 2011, was passed by the Lok Sabha on December 27, 2011. The Bill was taken up for consideration and passing in the Rajya Sabha, which referred it to a Select Committee. The Bill provides for establishment of the Lokpal at the centre and Lokayuktas in the states for inquiring into complaints of corruption against certain public servants. The Bill, once passed, shall be applicable to states if they give their consent to its application. The members of the Lokpal (Lokayuktas) shall be appointed by the President (Governor) on the basis of the recommendations of the Selection Committee. The Selection Committee for the Lokpal shall comprise of the Prime Minister (Chief Minister), Speaker of the Lower House, Leaders of the Opposition of the Lower House, the Chief Justice of India (Chief Justice of the High Court) or a judge of the Supreme Court nominated by him, and an eminent jurist nominated by the President (Governor). The Bill makes it mandatory for the Selection Committee to constitute a search committee of at least seven members. At least 50% of the members shall be from among SC, ST, OBC, women or minority communities. The Selection Committee may consider a candidate other than one recommended by the Search Committee. The Lokpal and Lokayuktas shall consist of one chairperson and up to eight members. The Chairperson shall be the CJI or a present or former judge of the Supreme Court or a nonjudicial member with specified qualifications (Chief Justice or a Judge of a High Court). Fifty percent of the other members shall be judicial members (judges of the Supreme Court and Chief Justices of the High Court in case of Lokpal and judge of a High Court in case of Lokayuktas). A non-judicial member is required to have 25 years experience in anti-corruption policy, public administration, vigilance and finance. At least 50 per cent of the members of both bodies shall be from among SC, ST, OBC, minorities and women. Members of the Lokpal may be removed by the President after an inquiry by the Supreme Court. The Supreme Court may inquire based on a reference from the President. Such reference may be made by the President on his own, or on a citizen’s petition if the President is satisfied by it, or on a petition signed by 100 MPs. A Lokpal can enquire into offences under the Prevention of Corruption Act, 1988 (PCA) committed by: The PM with specified safeguards, 1. 2. 3. 4.

Current and former Union Ministers, Current and former MPs, Group A, B, C, D officers, Employees of a company, society or a trust set up by an Act of Parliament, or financed or controlled by the central government. 5. Employees of association of persons that

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6. Have received funding from the government and have an annual income above a specified amount; or 7. Have received public donation and have an annual income above a specified amount or received foreign funding above Rs 10 lakh a year. An inquiry against the PM has to be held in-camera and approved by a 2/3rd majority of the full bench of the Lokpal. The PM cannot be investigated if the complaint is related to international relations, external and internal security, public order, atomic energy and space. The Lokayuktas shall have jurisdiction over the CM, Ministers, MLAs, all state government employees and certain private entities (including religious institutions). The Lokpal’s inquiry wing is required to inquire into complaints within 60 days of their reference. On considering an inquiry report the Lokpal shall: 1. Order an investigation. 2. Initiate departmental proceedings. 3. Close the case and proceed against the complainant for making a false and frivolous complaint. The investigation shall be completed within 6 months. The Lokpal may initiate prosecution through its Prosecution Wing before the Special Court set up to adjudicate cases. The trial shall be completed within a maximum of two years. The Bill specifies a similar procedure for Lokayuktas. The Bill removes the requirement of sanction for initiating investigation and prosecution. The Bill penalises false and frivolous complaints with imprisonment for a maximum of one year and a fine of up to one lakh rupees. The Bill amends the PCA to enhance penalties for a public servant for corruption from maximum of five years to seven years. For criminal misconduct and habitually abetting corruption, the jail term is increased from seven years to ten years. Lokayukta The Lokayukta is an anti-corruption authority orombudsman (An ombudsman is an official, appointed by the government or by parliament to represent the interests of the public). He works along with the Income Tax Department and the Anti Corruption Bureau. The Lokayukta (sometimes referred to the institution itself) investigates allegations of corruption and mal-administration against public servants and is tasked with speedy redressal of public grievances. The range of powers vary. In, say, Delhi, the Lokayukta inquires into allegations of corruption, misuse of authority and wrong doings of public functionaries including Chief Minister, Ministers and MLAs. And civil servants/bureaucrats, judiciary, police and the Delhi Development Authority are excluded from its ambit.

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In Karnataka, which in the 1980s was the first state to move to get a Lokayukta and where there has been much controversy over the teeth that the office has, the new powers promised to the Lokayukta keep the Chief Minister, ministers, MPS and MLAs out of the purview. Structural Variations The structure of the lokayukta is not same in all the states. Some States like Rajasthan, Karnataka, Andhra Pradesh and Maharashtra have created the lokayukta as well as upalokayukta, while some others like Bihar, Uttar Pradesh and Himachal Pradesh have created only the lokayukta. There are still other states like Punjab and Orissa that have designated officials as Lokpal. This pattern was not suggested by the ARC in the states. Appointment The lokayukta and upalokayukta are appointed by the governor of the state. While appointing, the governor in most of the states consults: 1. The chief justice of the state high court. 2. The leader of Opposition in the state legislative assembly. The Lokayukta is usually a former High Court Chief Justice or former Supreme Court judge and has a fixed tenure. Qualifications Judicial qualifications are prescribed for the lokayukta in the States of Uttar Pradesh, Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam. But no specific qualifications are prescribed in the states of Bihar, Maharashtra and Rajasthan. Tenure In most of the states, the term of office fixed for lokayukta is of 5 years duration or 65 years of age, whichever is earlier. He is not eligible for reappointment for a second term. Investigations and Scope of Cases Covered Any citizen can make his/her complaints of corruption directly to the Lokayukta against any government official or elected representative. Lokayukta’s power varies from State to State. In some States, the Lokayukta inquires into allegations against public functionaries including Chief Minister, Ministers and MLAs. While some has the power to investigate into civil servants/bureaucrats, judiciary and police. Lack of prosecution powers, adequate staff, funds and lack of independence are some of the limitation of the Lokayukta.

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