Philosophy of the Constitution

Important Sources of Indian Constitution 

1.) Government of India Act 1935

 Federal Scheme
 Emergency Provisions
 Public Service Commissions
 Office of Governor
 Judiciary
 Administrative Details

2.) Constitution of the United States

 Preamble
 Fundamental Rights
 The federal structure of government
 Electoral College
 Independence of the judiciary and separation of powers among the three branches of the
government
 Judicial review
 President as Supreme Commander of Armed Forces
 Equal protection under law
3.) British constitution

 Parliamentary form of government

 The idea of single citizenship
 The idea of the Rule of law
 Writs
 Institution of Speaker and his role
 Law making procedure
 Procedure established by Law

4.) Irish constitution (Ireland

 Directive Principles of State Policy
 Nomination of members to Rajya Sabha
 Method of Election of President
5.) Australian constitution

 Freedom of trade and commerce within the country and between the states
 Power of the national legislature to make laws for implementing treaties, even on matters
outside normal Federal jurisdiction
 Concurrent List
6.) French constitution

 Republic and the ideals of Liberty, Equality and Fraternity in the Preamble

7.) Constitution of South Africa

 Procedure for amendment

 Election of Rajya Sabha members

8.) Constitution of Soviet Union (USSR)

 Fundamental Duties under Article 51-A

 A Constitutionally mandated Planning Commission to oversee the development of the
economy

9.) Constitution of Germany

 Emergency powers to be enjoyed by the Union

 Suspension of Fundamental Rights during an emergency.

10.) Constitution of Japan

Procedure Established by Law

11.) Constitution of Russia
 Fundamental Duties
 Idea of Social, Economic, and Political Justice in Preamble

What is preamble?

A preamble is an introductory statement in a document that explains the

document’s philosophy and objectives.
In a constitution, it presents the intention of its framers, the history
behind its creation, and the core values and principles of the nation.

The preamble basically gives idea of the following things/objects:

Source of the Constitution

Nature of Indian State
Statement of its objectives
Date of its adoption

History of the Preamble to Indian Constitution

The ideals behind the Preamble to India’s Constitution were laid down
by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent
Assembly on January 22, 1947.
Although not enforceable in court, the Preamble states the objectives of the
Constitution, and acts as an aid during the interpretation of Articles when
language is found ambiguous.

Components of Preamble
It is indicated by the Preamble that the source of authority of the
Constitution lies with the people of India.
Preamble declares India to be a sovereign, socialist, secular and
democratic republic.
The objectives stated by the Preamble are to secure justice, liberty,
equality to all citizens and promote fraternity to maintain unity and
integrity of the nation.
The date is mentioned in the preamble when it was adopted i.e. November
26, 1949.

Key words in the Preamble

We, the people of India: It indicates the ultimate sovereignty of the
people of India. Sovereignty means the independent authority of the State,
not being subject to the control of any other State or external power.
Sovereign: The term means that India has its own independent authority
and it is not a dominion of any other external power. In the country, the
legislature has the power to make laws which are subject to certain
limitations.
Socialist: The term means the achievement of socialist ends through
democratic means. It holds faith in a mixed economy where both private
and public sectors co-exist side by side.

It was added in the Preamble by 42nd Amendment, 1976.

Secular: The term means that all the religions in India get equal respect,
protection and support from the state.

It was incorporated in the Preamble by 42nd Constitutional Amendment,

1976.
Democratic: The term implies that the Constitution of India has an
established form of Constitution which gets its authority from the will of the
people expressed in an election.
Republic: The term indicates that the head of the state is elected by the
people. In India, the President of India is the elected head of the state.

Objectives of the Indian Constitution

The Constitution is the supreme law and it helps to maintain integrity in
the society and to promote unity among the citizens to build a great
nation.

The main objective of the Indian Constitution is to promote harmony

throughout the nation.
The factors which help in achieving this objective are:

Justice: It is necessary to maintain order in society that is promised

through various provisions of Fundamental Rights and Directive
Principles of State Policy provided by the Constitution of India. It
comprises three elements, which is social, economic, and political.

Social Justice – Social justice means that the Constitution wants to

create a society without discrimination on any grounds like caste, creed,
gender, religion, etc.
Economic Justice – Economic Justice means no discrimination can be
caused by people on the basis of their wealth, income, and economic
status. Every person must be paid equally for an equal position and all
people must get opportunities to earn for their living.
Political Justice – Political Justice means all the people have an equal,
free and fair right without any discrimination to participate in political
opportunities.
Equality: The term ‘Equality’ means no section of society has any special
privileges and all the people have given equal opportunities for everything
without any discriminations. Everyone is equal before the law.
Liberty: The term ‘Liberty’ means freedom for the people to choose their
way of life, have political views and behavior in society. Liberty does not
mean freedom to do anything, a person can do anything but in the limit set
by the law.
Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an
emotional attachment with the country and all the people. Fraternity helps
to promote dignity and unity in the nation.
Importance of Objectives: It provides a way of life. It includes fraternity,
liberty, and equality as the notion of a happy life and which can not be
taken from each other.

Liberty cannot be divorced from equality, equality cannot be divorced

from liberty. Nor can liberty and equality be divorced from fraternity.
Without equality, liberty would produce the supremacy of the few over the
many.
Equality without liberty would kill individual initiative.
Without fraternity, liberty would produce the supremacy of the few over
the many.
Without fraternity, liberty and equality could not become a natural course
of things.

Status of Preamble
The preamble being part of the Constitution is discussed several times in the
Supreme Court. It can be understood by reading the following two cases.
Berubari Case: It was used as a reference under Article 143(1) of the
Constitution which was on the implementation of the Indo-Pakistan
Agreement related to the Berubari Union and in exchanging the enclaves
which were decided for consideration by the bench consisting of eight
judges.
Through the Berubari case, the Court stated that ‘Preamble is the key to
open the mind of the makers’ but it cannot be considered as part of the
Constitution. Therefore, it is not enforceable in a court of law.
Kesavananda Bharati Case: In this case, for the first time, a bench of 13
judges was assembled to hear a writ petition. The Court held that:

The Preamble of the Constitution will now be considered as part of the

Constitution.
The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes
and provisions of the Constitution.
So, it can be concluded that preamble is part of the introductory part of the
Constitution.
In the 1995 case of Union Government Vs LIC of India also, the Supreme
Court has once again held that Preamble is the integral part of the
Constitution but is not directly enforceable in a court of justice in India.

Amendment of the Preamble

42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati
case, it was accepted that the preamble is part of the Constitution.

As a part of the Constitution, preamble can be amended under Article

368 of the Constitution, but the basic structure of the preamble cannot be
amended.
As of now, the preamble is only amended once through
the 42nd Amendment Act, 1976.
The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble
through 42nd Amendment Act, 1976.
‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and
‘Democratic’.
‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Fundamental Rights

General
12 Definition.
13 Laws inconsistent with or in derogation of the fundamental rights.
Right to Equality
14 Equality before law.
15 Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.
16 Equality of opportunity in matters of public employment.
17 Abolition of Untouchability.
18 Abolition of titles.
Right to Freedom
19 Protection of certain rights regarding freedom of speech, etc.
20 Protection in respect of conviction for offences.
21 Protection of life and personal liberty.
21A Right to education
22 Protection against arrest and detention in certain cases.
Right against Exploitation
23 Prohibition of traffic in human beings and forced labour.
24 Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25 Freedom of conscience and free profession, practice and propagation of
religion.
26 Freedom to manage religious affairs.
27 Freedom as to payment of taxes for promotion of any particular religion.
28 Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.
Cultural and Educational Rights
29 Protection of interests of minorities.
30 Right of minorities to establish and administer educational institutions.
31 [Repealed.]
Saving of Certain Laws
31A Saving of Laws providing for the acquisition of estates, etc.
31B Validation of certain Acts and Regulations.
31C Saving of laws giving effect to certain directive principles.
31D [Repealed.]
Right to Constitutional Remedies
32 Remedies for enforcement of rights conferred by this Part.
32A [Repealed.]
33 Power of Parliament to modify the rights conferred by this Part in their
application to Forces, etc.
34 Restriction on rights conferred by this Part while martial law is in force in any
area.
35 Legislation to give effect to the provisions of this Part.

About:

The Fundamental Rights are enshrined in Part III of the Constitution

(Articles 12-35).
Part III of the Constitution is described as the Magna Carta of India.

Magna Carta’, the Charter of Rights issued by King John of England in

1215 was the first written document relating to the Fundamental Rights
of citizens.
The Fundamental Rights: The Constitution of India provides for six
Fundamental Rights:

Right to equality (Articles 14–18)

Right to freedom (Articles 19–22)
Right against exploitation (Articles 23–24)
Right to freedom of religion (Articles 25–28)
Cultural and educational rights (Articles 29–30)
Right to constitutional remedies (Article 32)
Originally the constitution also included Right to property (Article
31). However, it was deleted from the list of Fundamental Rights by
the 44th Amendment Act, 1978.

It is made a legal right under Article 300-A in Part XII of the

Constitution.
Provision for Laws Violating Fundamental Rights: Article 13 of the
Indian constitution declares that all laws that are inconsistent with or in
derogation of any of the fundamental rights shall be void.

This power has been conferred on the Supreme Court (Article 32) and the
high courts (Article 226).
Further, the article declares that a constitutional amendment cannot be
challenged (as it is not a law).

However, the Supreme Court in the Kesavananda Bharati case

(1973) held that a Constitutional amendment can be challenged if it
violates a fundamental right.
Writ Jurisdiction: A writ is a legal order given by a court of law.

The Supreme Court (Article 32) and the High courts (Article 226) can
issue the writs of habeas corpus, mandamus, prohibition, certiorari
and quo-warranto.

Features of the Fundamental Rights:

Protected by Constitution: Fundamental Rights, unlike ordinary legal

rights, are protected and guaranteed by the constitution of the country.

Some of the rights are available only to the citizens while others are
available to all persons whether citizens, foreigners or legal persons like
corporations or companies.

Not Sacrosanct, Permanent, or Absolute: They are not sacrosanct or

permanent and the Parliament can curtail or repeal them but only by a
constitutional amendment act.

The rights are not absolute but qualified.

The state can impose reasonable restrictions on them, however, the

reasonability of the restrictions is decided by the courts.
Rights are Justiciable: The rights are justiciable and allow persons to
move the courts for their enforcement, if and when they are violated.

Any aggrieved person can directly go to the Supreme Court in case of

violation of any fundamental right.

Suspension of Rights: The rights can be suspended during the operation of

a National Emergency except the rights guaranteed by Articles 20 and 21.

Further, the six rights guaranteed by Article 19 can be suspended only

when there is an external emergency war or external aggression) [and not
on the ground of armed rebellion (i.e., internal emergency].

Restriction of Laws: Their application to the members of armed forces,

paramilitary forces, police forces, intelligence agencies and analogous
services can be restricted or abrogated by the Parliament (Article 33).

Their application can be restricted while martial law (military rule

imposed under abnormal circumstances) is in force in any area.

Right to Equality (Article 14, 15, 16, 17 and 18):

Equality Before Law: Article 14 says that no person shall be denied

treatment of equality before the law or the equal protection of the laws
within the territory of India.

The right is extended to all persons whether citizens or foreigners,

statutory corporations, companies, registered societies or any other type of
legal person.
Exceptions: As per article 361, the President of India or Governor of
states is not answerable to any court for the exercise of their powers/duties
and no civil or criminal proceedings can occur or continue against them in
any court during their term of office.

As per article 361-A, no civil or court proceedings can occur for a person
for publishing any substantially true report of either House of the
Parliament and State Legislature.
No member of Parliament (article 105) and State Legislature (article 194)
shall be liable to any court proceedings in respect of anything said or any
vote given by him in Parliament or any committee.
The foreign sovereigns (rulers), ambassadors and diplomats enjoy
immunity from criminal and civil proceedings.

Prohibition of Discrimination: Article 15 provides that no citizen shall be

discriminated on grounds only of religion, race, caste, sex or place of birth.

Exception: Certain provisions can be made for the women, children,

citizens from any socially or educationally backward class for their
upliftment (such as reservation and access to free education).

Equality of Opportunity in Public Employment: Article 16 of the Indian

constitution provides for equality of opportunity for all citizens in matters of
employment or appointment to any public office.

Exceptions: There are provisions for reservation in appointments or posts

for any backward class that is not adequately represented in the state
services.

Also, an incumbent of a religious or denominational institution may

belong to the particular religion or denomination.

Abolition of Untouchability: Article 17 abolishes ‘untouchability’ and

forbids its practice in any form. The enforcement of any disability arising
out of untouchability shall be an offence punishable in accordance with law.

A person convicted of the offence of ‘untouchability’ is disqualified for

election to the Parliament or state legislature. The acts of offences
include:

Preaching untouchability directly or indirectly.

Preventing any person from entering any shop, hotel, public place of
worship and place of public entertainment.
Refusing to admit persons in hospitals, educational institutions or hostels
established for public benefit.
Justifying untouchability on traditional, religious, philosophical or other
grounds.
Insulting a person belonging to scheduled caste on the ground of
untouchability.

Abolition of Titles: Article 18 of the constitution of India abolishes titles

and makes four provisions in that regard:

It prohibits the state from conferring any title on any citizen or a foreigner
(except a military or academic distinction).
It prohibits a citizen of India from accepting any title from any foreign
state.
A foreigner holding any office of profit or trust under the state cannot
accept any title from any foreign state without the consent of the President
of India.
No citizen or foreigner holding any office of profit or trust within the
territory of India can accept any present, emolument or office from or
under any foreign State without the consent of the president.
Right to Freedom (Article 19, 20, 21 and 22):

Protection of 6 Rights: Article 19 guarantees to all citizens the six rights

of freedom including:

Right to freedom of speech and expression.

Expressing one’s own views, opinions, belief and convictions freely by

word of mouth, writing, printing, picturing or in any other manner.

Right to assemble peaceably and without arms.

Includes the right to hold public meetings, demonstrations and take out
processions which can be exercised only on public land.
It does not protect violent, disorderly and riotous assemblies or strike.
Right to form associations or unions or co-operative societies.

It includes the right to form (and not to form) political parties,

companies, partnership firms, societies, clubs, organisations, trade unions
or anybody of persons.

Right to move freely throughout the territory of India.

The freedom of movement has two dimensions, viz, internal (right to

move inside the country) (article 19) and external (right to move out of
the country and right to come back to the country) (article 21).

Right to reside and settle in any part of the territory of India.

The right of outsiders to reside and settle in tribal areas is restricted to

protect the distinctive culture and customs of scheduled tribes and to
safeguard their traditional vocation and properties against exploitation.
Right to practice any profession or to carry on any occupation, trade
or business.

It doesn’t include the right to carry on a profession that is immoral

(trafficking in women or children) or dangerous (harmful drugs or
explosives, etc,).

Protection in Respect of Conviction for Offences: Article 20 grants

protection against arbitrary and excessive punishment to an accused person,
whether citizen or foreigner or legal person like a company or a corporation.
It provides that:

No person shall be convicted of any offence except for violation of a law

in force at the time of the commission of the act or subjected to a penalty
greater than that prescribed by the law.
No person shall be prosecuted and punished for the same offence more
than once.
No person accused of any offence shall be compelled to be a witness
against himself.

Protection of Life and Personal Liberty: Article 21 declares that no

person shall be deprived of his life or personal liberty except according to
procedure established by law. This right is available to both citizens and
non-citizens.

The right to life is not merely confined to animal existence or survival but
also includes the right to live with human dignity and all those aspects of
life which go to make a man’s life meaningful, complete and worth living.

Right to Education: Article 21 (A) declares that the State shall provide

free and compulsory education to all children of the age of six to fourteen
years.
This provision makes only elementary education a Fundamental Right and
not higher or professional education.
This provision was added by the 86th Constitutional Amendment Act of
2002
Before the 86th amendment, the Constitution contained a provision for free
and compulsory education for children under Article 45 in Part IV of the
constitution.
Protection Against Arrest and Detention: Article 22 grants protection to
persons who are arrested or detained.

Detention is of two types, namely, punitive (punishment after trial and

conviction) and preventive (punishment without trial and conviction).
The first part of Article 22 deals with the ordinary law and includes:

Right to be informed of the grounds of arrest.

Right to consult and be defended by a legal practitioner.
Right to be produced before a magistrate within 24 hours, excluding the
journey time.
Right to be released after 24 hours unless the magistrate authorises
further detention.
The second part of Article 22 deals with preventive detention law.
Protection under this article is available to both citizens as well as aliens
and includes the following:

The detention of a person cannot exceed three months unless an

advisory board (judges of high court) reports sufficient cause for
extended detention.
The grounds of detention should be communicated to the detenu.
The detenu should be afforded an opportunity to make a representation
against the detention order.
Directive Principles of Our State Policy: Part IV (Articles 36-51)

36 Definition.
37 Application of the principles contained in this Part.
38 State to secure a social order for the promotion of the welfare of the
people.
39 Certain principles of policy to be followed by the State.
39A Equal justice and free legal aid.
40 The organisation of village panchayats.
41 Right to work, to education and to public assistance in certain cases.
42 Provision for just and humane conditions of work and maternity
relief.
43 Living wage, etc., for workers.
43A Participation of workers in the management of industries.
43B Promotion of co-operative societies.
44 Uniform civil code for the citizens.
45 Provision for free and compulsory education for children.
46 Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections.
47 Duty of the State to raise the level of nutrition and the standard of
living and to improve public health.
48 The organisation of agriculture and animal husbandry.
48A Protection and improvement of environment and safeguarding of
forests and wildlife.
49 Protection of monuments and places and objects of national
importance.
50 Separation of judiciary from the executive.
51 Promotion of international peace and security.
Part IV of the Indian Constitution deals with Directive Principles of our State
Policy (DPSP).

The provisions contained in this Part cannot be enforced by any court, but these
principles are fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws.

The concept of Directive Principles of State Policy was borrowed from the Irish
Constitution. While most of the Fundamental Rights are negative obligations on
the state, DPSPs are positive obligations on the state, though not enforceable in a
court of law.

ARTICLE 36: DEFINITION

In this Part, unless the context otherwise requires, “the State” has the same
meaning as in Part III.

ARTICLE 37: APPLICATION OF THE PRINCIPLES CONTAINED IN THIS PART

The provisions contained in this Part shall not be enforced by any court, but the
principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making
laws.

ARTICLE 38: STATE TO SECURE A SOCIAL ORDER FOR THE PROMOTION OF THE WELFARE
OF THE PEOPLE

(1) The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in different areas
or engaged in different vocations.
ARTICLE 39: CERTAIN PRINCIPLES OF POLICY TO BE FOLLOWED BY THE STATE

The State shall, in particular, direct its policy towards securing –

(a) that the citizen, men and women equally, have the right to an adequate means
of livelihood;
(b) that the ownership and control of the material resources of the community are
so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration
of wealth and means of production to the common detriment; 
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the tender age of
children are not abused and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.

ARTICLE 39A: EQUAL JUSTICE AND FREE LEGAL AID

The State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities.

ARTICLE 40: ORGANISATION OF VILLAGE PANCHAYATS

The State shall take steps to organise village panchayats and endow them with such
powers and authority as may be necessary to enable them to function as units of
self-government.

ARTICLE 41: RIGHT TO WORK, TO EDUCATION AND TO PUBLIC ASSISTANCE IN CERTAIN

CASES

The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.

ARTICLE 42: PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK AND MATERNITY
RELIEF

The State shall make provision for securing just and humane conditions of work
and for maternity relief.
ARTICLE 43: LIVING WAGE, ETC., FOR WORKERS

The State shall endeavor to secure, by suitable legislation or economic organisation

or in any other way, to all workers agricultural, industrial or otherwise, work, a
living wage, conditions of work ensuring a decent standard of life and full
enjoyment of leisure and social and cultural opportunities and, in particular, the
State shall endeavour to promote cottage industries on an individual or co-
operative basis in rural areas.

ARTICLE 43A: PARTICIPATION OF WORKERS IN MANAGEMENT OF INDUSTRIES

The State shall take steps, by suitable legislation or in any other way, to secure the
participation of workers in the management of undertakings, establishments or
other organisation engaged in any industry.

ARTICLE 44: UNIFORM CIVIL CODE FOR THE CITIZEN

The State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India.

ARTICLE 45: PROVISION FOR FREE AND COMPULSORY EDUCATION FOR CHILDREN

The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all
children until they complete the age of fourteen years.

ARTICLE 46: PROMOTION OF EDUCATIONAL AND ECONOMIC INTERESTS OF SCHEDULED

CASTES, SCHEDULED TRIBES AND OTHER WEAKER SECTIONS

The State shall promote with special care the educational and economic interests of
the weaker sections of the people, and in particular, of the Scheduled Castes and
the Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation.

ARTICLE 47: DUTY OF THE STATE TO RAISE THE LEVEL OF NUTRITION AND THE
STANDARD OF LIVING AND TO IMPROVE PUBLIC HEALTH

The State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purpose of intoxicating drinks and of drugs
which are injurious to health.
ARTICLE 48: ORGANIZATION OF AGRICULTURE AND ANIMAL HUSBANDRY

The State shall endeavour to organize agriculture and animal husbandry on modern
and scientific lines and shall, in particular, take steps for preserving and improving
the breeds, and prohibiting the slaughter, of cows and calves and other milch and
draught cattle.

ARTICLE 48A: PROTECTION AND IMPROVEMENT OF ENVIRONMENT AND SAFEGUARDING

OF FORESTS AND WILDLIFE

The State shall endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country.

ARTICLE 49: PROTECTION OF MONUMENTS AND PLACES AND OBJECTS OF NATIONAL

IMPORTANCE

It shall be the obligation of the State to protect every monument or place or object
of artistic or historic interest, declared by or under law made by Parliament to be of
national importance, from spoliation, disfigurement, destruction, removal, disposal
or export, as the case may be.

ARTICLE 50: SEPARATION OF JUDICIARY FROM THE EXECUTIVE

The State shall take steps to separate the judiciary from the executive in the public
services of the State.

ARTICLE 51: PROMOTION OF INTERNATIONAL PEACE AND SECURITY

The State shall endeavour to –

(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of
organised people with one another; and
(d) encourage settlement of international disputes by arbitration.
Union Executive

The President of India (Articles 52-62)

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.

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.
(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.”

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 of presidential post

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 Representatives, 100 senators, and
the three additional electors from the District of Columbia.)
6. 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.
7. 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.
8. There are a total of 776 voters in both the Houses of Parliament.
The Electoral College also consisted of 4120 MLAs in the
states.
9. 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 can be broadly classified under 8 headings.

They are:

1. Legislative
2. Executive or Appointment powers
3. Judicial powers
4. Financial powers
5. Diplomatic powers
6. Military powers
7. Pardoning Powers
8. 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.
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.
Prime Minister 

Chapter I (Executive) of Part V of the Constitution (Union) deals

with President, Vice-President, Council of Ministers (COM) headed
by Prime Minister and Attorney General. Having already discussed
about President and Vice-President, let’s concentrate now on COM,
Prime Minister and Attorney General. While Indian President is the
head of the state, Indian Prime Minister is the head of the
government.

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.
(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.

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.
Introduction
Supreme Legislative Body: The Parliament is the legislative organ of
a Union government and the Parliament of India is its supreme
legislative body.

It occupies a pre-eminent and central position in the Indian

democratic political system due to the adoption of
the Parliamentary form of Government (‘Westminster’ model of
government).
First Parliament: The first general elections under the new
Constitution of India were held during the year 1951-52 and the first
elected Parliament came into existence in April, 1952.
Constitutional Provisions: Articles 79 to 122 in Part V of the
Constitution deal with the organisation, composition, duration,
officers, procedures, privileges and powers of the Parliament.
Frame of Reference for Parliament: The framers of the Indian
Constitution relied on the British pattern for Parliament rather than
the American pattern.

The President is not an integral part of the legislature in the USA,

however, in India, it is.

Organs of Parliament
Rajya Sabha (The Council of States):
About: It is the Upper House (Second Chamber or House of Elders)
and it represents the states and union territories of the Indian
Union.

The Rajya Sabha is called the permanent House of the

Parliament as it is never fully dissolved.
The IV Schedule of the Indian Constitution deals with the
allocation of seats in the Rajya Sabha to the states and UTs.
Composition: The maximum strength of Rajya Sabha is 250 ( out of
which 238 members are representatives of the states & UTs
(elected indirectly) and 12 are nominated by the President).

Current strength of the house is 245, 229 members represent the

states, 4 members represent the UTs and 12 are nominated by the
president.
Election of Representatives: The representatives of states are
elected by the members of state legislative assemblies.

The representatives of each UT in the Rajya Sabha are indirectly

elected by members of an electoral college specially constituted
for the purpose.

Only three UTs (Delhi, Puducherry and Jammu & Kashmir) have

representation in Rajya Sabha (others don’t have enough
population).
The members nominated by the President are those who have
special knowledge or practical experience in art, literature,
science and social service.

The rationale is to provide eminent persons a place in the house

without going through elections.
Functions: Rajya Sabha has an important role of reviewing and
altering the laws initiated by the Lok Sabha.
It can also initiate legislation and a bill is required to pass through
the Rajya Sabha in order to become a law.

Power:

State Related Matters: The Rajya Sabha provides representation to

the States. Therefore, any matter that affects the States must be
referred to it for its consent and approval.

If the Union Parliament wishes to remove/transfer a matter from

the State list, the approval of the Rajya Sabha is necessary.

Lok Sabha (The House of the People):

About: It is the Lower House (First Chamber or Popular House and

it represents the people of India as a whole.
Composition: The maximum strength of the Lok Sabha is fixed
at 550 out of which 530 members are to be the representatives of
the states and 20 of the UTs.

The current strength of Lok Sabha is 543, out of which 530

members represent the states and 13 represent the UTs.
Earlier, the President also nominated two members from the
Anglo-Indian community, but by the 95th Amendment Act,
2009, this provision was valid till 2020 only.
Election of Representatives: The representatives of states
are directly elected by the people from the territorial constituencies
in the states.
By the Union Territories (Direct Election to the House of the
People) Act, 1965, the members of Lok Sabha from the UTs are
chosen by direct election.
Functions: One of the most important functions of the Lok Sabha is
to select the executive, a group of persons who work together to
implement the laws made by the Parliament.

This executive is often what we have in mind when we use the

term government.

Powers:

Decisions in Joint Sitting: Any ordinary law needs to be passed by

both the Houses.

However, in case of any difference between the two Houses, the

final decision is taken by calling a joint session of both the
Houses.
Due to a larger strength, the view of the Lok Sabha is likely to
prevail in such a meeting.
Power in Money Matters: Lok Sabha exercises more powers in
money matters. Once the Lok Sabha passes the budget of the
government or any other money related law, the Rajya Sabha
cannot reject it.

The Rajya Sabha can only delay it by 14 days or suggest changes

in it, however, the former may or may not accept these changes.
Power over Council of Ministers: The Lok Sabha controls the
Council of Ministers.

If the majority of the Lok Sabha members say they have ‘no
confidence’ in the Council of Ministers, all ministers including the
Prime Minister, have to quit.
The Rajya Sabha does not have this power.

President:

About: The President of India is not a member of either of the

Houses and does not sit in the Parliament to attend its meetings
but s/he is an integral part of the Parliament.

S/He is the head of the state and is the highest formal authority in

the country.
Appointment: The elected Members of Parliament (MPs) and the
elected Members of the Legislative Assemblies (MLAs) elect the
President of India.

Powers:

Assent for Passing a Bill: A bill passed by both the Houses of

Parliament cannot become law without the President’s assent.

Summoning and Prorogation of Houses: He has the power

to summon and prorogue both the Houses, dissolve the Lok
Sabha and issue ordinances when the Houses are not in session.

Membership of Parliament
Qualifications:
Rajya Sabha: S/He should be a citizen of India and at least 30
years of age.

S/He should make an oath or affirmation stating that s/he will

bear true faith and allegiance to the Constitution of India.
According to the Representation of People Act, 1951, s/he should
be registered as a voter in the State from which s/he is seeking
election to the Rajya Sabha.

However, in 2003, a provision was made declaring, any Indian

citizen can contest the Rajya Sabha elections irrespective of the
State in which s/he resides.
Lok Sabha: S/He should be not less than 25 years of age.

S/He should declare through an oath or affirmation that s/he has

true faith and allegiance in the Constitution and that a/he will
uphold the sovereignty and integrity of India.
S/He must possess such other qualifications as may be laid down
by the Parliament by law and must be registered as a voter in any
constituency in India.
Person contesting from the reserved seat should belong to the
Scheduled Caste or Scheduled Tribe as the case may be.

Disqualifications:

On Constitutional Grounds:

If s/he holds any office of profit under the Union or state

government (except that of a minister or any other office
exempted by Parliament).
If s/he is of unsound mind and stands so declared by a court.
If s/he is an undischarged insolvent.
If s/he is not (or not anymore) a citizen of India.
If s/he is disqualified under any law made by Parliament.

On Statutory Grounds (Representation of People Act, 1951):

Found guilty of certain election offences/corrupt practices in the

elections.
Convicted for any offence resulting in imprisonment for two or
more years (detention under a preventive detention law is not a
disqualification).
Has been dismissed from government service for corruption or
disloyalty to the State.
Convicted for promoting enmity between different groups or for
the offence of bribery.
Punished for preaching and practising social crimes such as
untouchability, dowry and sati.

Tenure:

Rajya Sabha: Every member of Rajya Sabha enjoys a safe tenure of

six years.

One-third of its members retire after every two years. They

are entitled to contest again for the membership.
Lok Sabha: The normal term of Lok Sabha is five years. But the
President, on the advice of the Council of Ministers, may dissolve it
before the expiry of five years.

In the case of national emergency, its term can be extended for

one year at a time. But it will not exceed six months after the
emergency is over.

Officials:

Rajya Sabha: The Vice-President of India is the ex-officio Chairman

of the Rajya Sabha. S/He presides over the meetings of Rajya
Sabha.

In his absence the Deputy Chairman (elected by its members from

amongst themselves) presides over the meeting of the House.
Lok Sabha: The presiding officer of Lok Sabha is known as
Speaker.

S/He remains the Speaker even after Lok Sabha is dissolved till
the next House elects a new Speaker in her/his place.
In the speaker’s absence, a Deputy Speaker (elected by the House)
presides over the meetings.

Powers/Functions of Parliament
Legislative Functions: Only Parliament can make laws on the
subjects of the Union List. Along with the State Legislatures, the
Parliament is empowered to make laws on the Concurrent List.
In a subject not mentioned in any list, the residuary powers are
vested with the Parliament.
Financial Functions: It is the custodian of the public money. The
Government can neither impose any tax on the public nor spend the
money without the approval of the Parliament.

The budget is approved by the Parliament every year.

Electoral Functions: It participates in the election of the President of
India and also elects the Vice-President.

The Lok Sabha elects its Speaker and Deputy Speaker and the Rajya
Sabha elects its Deputy Chairman.
Power of Removal: Certain high functionaries may be removed from
office on the initiative of the Parliament.

It can remove the President, Judges of the Supreme Court and

High Courts through impeachment for violation of the Constitution.
Amendment of the Constitution: Most of the parts of the
Constitution can be amended by the Parliament by special majority.

Certain provisions can only be amended by the Parliament with the

approval of States.
The Parliament cannot change the basic structure of the
Constitution.
Power over Executive: Parliament exercises control over the
Executive through question-hour, zero hour, calling attention
notice, adjournment motion etc.

The government always takes these motions very

seriously because the government’s policies are criticized severely
and their likely impact on the electorate whom the government
would have to face ultimately.
Leaders in Parliament
Leader of the House: Under the Rules of Lok Sabha, the ‘Leader of
the House’ means the Prime Minister (or another minister who is a
member of Lok Sabha and is nominated by the PM to function as the
Leader of the House).

There is also a ‘Leader of the House’ in the Rajya Sabha who is a

minister and a member of the Rajya Sabha and is nominated by the
PM to function as such.
S/He exercises direct influence on the conduct of business.
The office of leader of the house is not mentioned in the
Constitution but in the Rules of the House.
Leader of the Opposition: The leader of the largest Opposition
party having not less than one-tenth seats of the total strength of the
House is recognised as the leader of the Opposition in a House.

S/He provides constructive criticism of the government

policies and to provide an alternative government.
The leader of Opposition in both the Houses were accorded
statutory recognition in 1977 and are entitled to the salary,
allowances and other facilities equivalent to that of a cabinet
minister.
The office of leader of the opposition is not mentioned in the
Constitution but in the Parliamentary Statute.
Whip: Every political party, whether ruling or opposition has its own
whip in the Parliament.

S/He is appointed by the political party to serve as an assistant

floor leader, charged with the responsibility of ensuring the
attendance of his party members in large numbers and securing
their support in favour of or against a particular issue.
He regulates and monitors their behaviour in the Parliament and
the members are supposed to follow the directives given by the
whip.
The office of ‘whip' is mentioned neither in the Indian Constitution
nor in the other two statues mentioned above. It is based on the
conventions of the parliamentary government.

Sessions of Parliament

Summoning:

Summoning is the process of calling all members of the Parliament

to meet.

The summoning of Parliament is specified in Article 85 of the

Constitution.
The President summons each House of the Parliament from time
to time.

However, the maximum gap between two sessions of

Parliament cannot be more than six months.
Sessions:

India does not have a fixed parliamentary calendar. By convention,

Parliament meets for three sessions in a year.

Budget Session: Longest session, starts towards the end of

January, and concludes by the end of April.
Monsoon Session: Second session, usually begins in July and
finishes in August.
Winter Session: Third session, held from November to December.

Adjournment:

An adjournment suspends the work in a sitting for a specified time,

which may be hours, days or weeks.
When the meeting is terminated without any definite time/date fixed
for the next meeting, it is called Adjournment sine die.
The power of adjournment as well as adjournment sine die lies with
the presiding officer (Speaker or Chairman) of the House.

Prorogation:

Unlike adjournment, Prorogation terminates a sitting as well as the

session of the House.
It is done by the President of India.
Prorogation is different from the dissolution (of Lok Sabha).
Quorum:

Quorum refers to the minimum number of the members required to

be present for conducting a meeting of the house.
The Constitution has fixed one-tenth strength as quorum for both
Lok Sabha and Rajya Sabha.

Joint Session of Parliament:

The Constitution of India, under Article 108, provides for the joint

sitting of the Lok Sabha and the Rajya Sabha, in order to break any
deadlock between the two.
The joint sitting is called by the President and is presided over by
the Lok Sabha Speaker.

In the speaker’s absence, the Deputy Speaker of the Lok Sabha

presides over the meeting.
In the absence of both, it is presided over by the Deputy Chairman
of the Rajya Sabha.
Lame Duck Session: It refers to the last session of the existing Lok
Sabha, after a new Lok Sabha has been elected.

Those members of the existing Lok Sabha who could not get re-
elected to the new Lok Sabha are called lame-ducks.
Devices of Parliamentary Proceedings
Question Hour:

The first hour of every parliamentary sitting is termed as Question

hour. It is mentioned in the Rules of Procedure of the House.
During this time, the members ask questions and the ministers
usually give answers. The questions are of three types:

Starred questions: These are distinguished by an

asterisk and require oral answers. Hence supplementary
questions can follow.
Unstarred questions: It requires a written answer and
hence, supplementary questions cannot follow.
Short notice questions: The matters of public importance and of
urgent character are considered under this type of questions.
These are asked by giving a notice of less than ten days and
are answered orally.

Zero Hour:

A Zero Hour is an Indian parliamentary innovation. It is not

mentioned in the parliamentary rules book.

Under this, the Members of Parliament (MPs) can raise matters

without any prior notice.
The zero hour starts immediately after the question hour and lasts
until the agenda for the day (regular business of the House) is taken
up.

In other words, the time gap between the question hour and the
agenda is known as zero hour.

Half-an-Hour Discussion:

It is meant for discussing a matter of sufficient public

importance, which has been subjected to a lot of debate and the
answer to which needs elucidation on a matter of fact.
The Speaker can allot three days in a week for such discussions.
There is no formal motion or voting before the House.

Short Duration Discussion:

It is also known as two-hour discussion as the time allotted for

such a discussion should not exceed two hours.
The members of the Parliament can raise such discussions on a
matter of urgent public importance.
The Speaker can allot two days in a week for such discussions.
There is neither a formal motion before the house nor voting.
This device has been in existence since 1953.

Motions in Indian Parliament

Privilege Motion  It is moved by a member when
he feels that a minister has
committed a breach of
privilege of the House or one
or more of its members by
withholding facts of a case or
by giving wrong or distorted
facts. Its purpose is to censure
the concerned minister.
 It can be moved in Rajya Sabha
as well as Lok Sabha.

Censure Motion  It should state the reasons for

its adoption in the Lok Sabha.
 It can be moved against an
individual minister or a group
of ministers or the entire
council of ministers.
 It is moved to censure the
council of ministers for
specific policies and actions.
 It can be moved only in Lok
Sabha.

Call-Attention Motion  It is introduced in the

Parliament by a member to call
the attention of a minister to a
matter of urgent public
importance, and to seek an
authoritative statement from
him on that matter.
 It can be moved in Rajya Sabha
 as well as Lok Sabha.

Adjournment Motion  It is introduced in the Lok

Sabha to draw the attention of
the House to a definite matter
of urgent public importance.
 It involves an element of
censure against the
government.
 It can be moved only in Lok
Sabha.

No-Day-Yet-Named Motion  It is a motion that has

been admitted by the
Speaker but no date has been
fixed for its discussion.
 It can be moved in Rajya Sabha
as well as Lok Sabha.

No Confidence Motion  Article 75 of the Constitution

says that the council of
ministers shall be collectively
responsible to the Lok Sabha.

o In other words,
the Lok Sabha can
remove the ministry
from office by
passing a no-
confidence motion.
o The motion needs the
support of 50
 members to be
admitted.
 It can be moved only in Lok
Sabha.

Motion of Thanks  The first session after each

general election and the first
session of every fiscal year is
addressed by the president.
o This address of the
president is
discussed in both the
Houses of Parliament
on a motion called
the ‘Motion of
Thanks’.
 This motion must be passed in
the House. Otherwise,
it amounts to the defeat of the
government.

Cut Motions  A cut motion is a special power

vested in members of the Lok
Sabha to oppose a demand
being discussed for specific
allocation by the government in
the Finance Bill as part of
the Demand for Grants.
 If the motion is adopted, it
amounts to a no-confidence
vote, and if the government
fails to jot up numbers in the
lower House, it is obliged to
 resign according to the norms
of the House.
 A motion may be moved to
reduce the amount of a
demand in any of the following
ways:
o Policy Cut Motion: It
is moved so that the
amount of
the demand be
reduced to
Re.1 (represents
disapproval of the
policy underlying the
demand).
o Economy Cut
Motions: It is moved
so that the amount of
the demand will be
reduced by a
specified amount.
o Token Cut Motions: It
is moved so that the
amount of
the demand is
reduced by
Rs.100 (expresses a
specific grievance).
 It can be moved only in Lok
Sabha.

Closure Motion  It is a motion moved by a

member to cut short the
 debate on a matter before the
House.
 If the motion is approved by the
House, debate is stopped
forthwith and the matter is put
to vote.
 There are four kinds of closure
motions:
o Simple Closure: It is
one when a member
moves that the
‘matter having been
sufficiently discussed
be now put to vote’.
o Closure by
Compartments: In
this case, the clauses
of a bill or a lengthy
resolution are
grouped into parts
before the
commencement of
the debate. The
debate covers the
part as a whole and
the entire part is put
to vote.
o Kangaroo
Closure: Under this
type, only important
clauses are taken up
for debate and voting
and the intervening
 clauses are skipped
over and taken as
passed.
o Guillotine Closure: It
is one when the
undiscussed clauses
of a bill or a resolut-
ion are also put to
vote along with the
discussed ones due
to want of time.

Point of Order  A member can raise a point of

order when the proceedings of
the House do not follow the
normal rules of procedure.
 A point of order should relate to
the interpretation or
enforcement of the Rules of
the House or such articles of
the Constitution that regulate
the business of the House and
should raise a question that is
within the cognizance of the
Speaker.
 It is usually raised by an
opposition member in order to
control the government.
 It is an extraordinary device as
it suspends the proceedings
before the House. No debate is
allowed on a point of order.
Special Mention  A matter which is not a point of
order or which cannot be raised
during question hour, half-an
hour discussion, short duration
discussion or under
adjournment motion, calling
attention notice or under any
rule of the House can be raised
under the special mention in
the Rajya Sabha.
 Its equivalent procedural
device in the Lok Sabha is
known as ‘Notice (Mention)
Under Rule 377’.

Legislative Procedure in Parliament

About: The legislative procedure is identical in both the Houses of
Parliament. Every bill has to pass through the same stages in each
House.
Bill: A bill is a proposal for legislation that becomes an act or law
when duly enacted.
Types of Bills: Bills introduced in the Parliament are of two
kinds; public bills (government bills) and private bills.
Classification: The bills introduced in the Parliament can be
classified into four categories:

Ordinary bills: concerned with any matter other than financial

subjects.
 Money bills: concerned with financial matters like taxation, public
expenditure, etc.
Financial bills: concerned with financial matters (but are different
from money bills).
Constitution Amendment Bills: concerned with the amendment of
the provisions of the Constitution.

Types of Bills

Public Bill Private Bill

It can be introduced by any member of

It is introduced in the parliament by a minister.
the parliament other than a minister.

It reflects the mood of the political

It reflects the policies of the government (ruling party).
party on public matters.

It is less likely to be passed by the

It has a greater chance to be passed by parliament.
parliament.

Its introduction in the house requires a

Its introduction in the house requires 7 days notice.
prior notice of one month.

It is drafted by the concerned department in consultation with Its drafting is the responsibility

the Law department.
of the members concerned.
Classification of Bills
Ordinary Bills

About: Every ordinary bill has to pass through the following five

stages in the Parliament before it finds a place on the Statute Book.
First Reading: It can be introduced in either House of
Parliament either by a minister or by any other member. The bill
is published in the Gazette of India.

The introduction of the bill and its publication in the Gazette

constitute the first reading of the bill.
Second Reading: It is the most important stage in the enactment of a
bill and involves three more sub-stages:

Stage of General Discussion: At this stage, the House can take any
one of the following four actions:

It may take the bill into consideration immediately or on some

other fixed date.
It may refer the bill to a select committee of the House.
It may refer the bill to a joint committee of the two Houses
It may circulate the bill to elicit public opinion.
Committee Stage: This committee examines the bill thoroughly and
in detail, clause by clause.

It can also amend its provisions, but without altering the principles
underlying it.
Consideration Stage: The House, after receiving the bill from the
selected committee, considers the provisions of the Bill clause by
clause.

Each clause is discussed and voted upon separately.

Third Reading: At this stage, the debate is confined to the
acceptance or rejection of the bill.
If the majority of the members present and voting accept the bill,
the bill is regarded as passed by the House.

A bill is deemed to have been passed by the Parliament only when

both the Houses have agreed to it, either with or without
amendments.
Bill in the Second House: In the second House, the bill passes
through all the three stages. The second House may:

Pass the bill as sent by the first house (i.e., without amendments).

In such a case, the bill is deemed to have been passed by both the
Houses and is sent to the president for his assent.
Pass the bill with amendments and return it to the first House for
reconsideration.
Reject the bill altogether.
Not take any action and thus keep the bill pending.

If the second House rejects the bill altogether or does not take any
action for six months; a deadlock is deemed to have taken place
for which the president can summon a joint sitting of the two
Houses.
Assent of the President: Every bill after being passed by both
Houses of Parliament either singly or at a joint sitting is presented to
the President for his assent. The President may:

Give his assent to the bill.

Withhold his assent to the bill.
Return the bill for reconsideration of the Houses. Thus, the
President enjoys only a “suspensive veto.”

Money Bills & Financial Bills

Financial Bills

Characteristics Money Bills

Financial Bill-I Financial Bi

Constitutional Provisions: Article 110 deals with Article 117(1) deals Article

money bills. with Finance Bill 117(3) deals w
Finance Bills-I

Deals ‘only’ with the Also deals with Contains prov

provisions of Article matters of general ns involving
110. legislation (along expenditure fr
with provisions of Consolidated
article 110). Fund of India 
are not includ
Article 110.

Certification of Speaker: S/He decides whethe No No

r a bill is a money bill Certification required. Certification r
or not. red.

Introduced in: Only in Lok Sabha. Only in Lok Sabha. In both house
 President’s Recommendation: Needed to introduce Required Not required
them.

Bills in Rajya Sabha: Cannot be Can be amended or Can be

amended or rejected. rejected. amended or
rejected.

President’s Power: Can either accept or Can return it for Can return it f
reject a money bill but reconsideration. reconsideratio
cannot return it for
reconsideration.

Joint Sitting of the Houses: No provision to The President The President

resolve the deadlock. can summon. can summon.

Constitutional Amendment Bills

About: As per the Constitution of India, Constitution Amendment

Bills can be of three types requiring:

A Simple majority for their passage in each House.

A Special majority for their passage in each House
A Special majority for their passage and ratification by Legislatures
of not less than one-half of the States by resolutions to that effect
passed by those Legislatures.
House of Introduction: Under article 368, it can be introduced in
either House of Parliament and has to be passed by each House by
special majority.

There is no provision of joint sittings on a Constitution Amending

Bill (or in a Money Bill).
Joint Sitting Of Two Houses
About: Joint sitting is extraordinary machinery provided by the
Constitution to resolve a deadlock between the two Houses over the
passage of a bill.
Conditions of Deadlock: A deadlock is deemed to have taken place
under any one of the following three situations:

If the bill is rejected by the other House.

If the Houses have finally disagreed as to the amendments to be
made in the bill.
If more than six months have elapsed from the date of the receipt
of the bill by the other House without the bill being passed by it.
Applicability: The provision of joint sitting is applicable to ordinary
bills or financial bills only and not to money bills or Constitutional
amendment bills.

In the case of a money bill, the Lok Sabha has overriding powers,
while a Constitutional amendment bill must be passed by each
House separately.
Role of Speaker: The Speaker of Lok Sabha presides over a joint
sitting of the two Houses and the Deputy Speaker, in his absence.

If both are absent, the Deputy Chairman of Rajya Sabha presides.

Quorum: The quorum to constitute a joint sitting is one-tenth of the
total number of members of the two Houses.
Instances of Joint Sittings: Since 1950, the provision regarding the
joint sitting of the two Houses has been invoked only thrice. The bills
that have been passed at joint sittings are:

Dowry Prohibition Bill, 1960.

Banking Service Commission (Repeal) Bill, 1977.
Prevention of Terrorism Bill, 2002.

Parliamentary Privilege
About: Parliamentary privileges are certain rights and immunities
enjoyed by members of Parliament, individually and collectively, so
that they can “effectively discharge their functions”.

When any of these rights and immunities are disregarded, the

offence is called a breach of privilege and is punishable under law
of Parliament.
Privileges in the Constitution: The Constitution (Article 105 for
Parliament and Article 194 for State Assemblies) mentions two
privileges, i.e. freedom of speech in Parliament and right of
publication of its proceedings.
Provisions in the Rule Book: Rule No 222 in Chapter 20 of the Lok
Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of
the Rajya Sabha rulebook governs the parliamentary privileges.

Union and its Territory

India is a Union of States comprising twenty-eight States and eight Union Territories,
including the National Capital Territory of Delhi.
Article 1 Name and territory of the Union:
  India, that is Bharat, shall be a Union of States.
 The States and the Territories thereof shall be as specified in the First Schedule.
 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.

It says that India, that is Bharat, is a Union of States. There is an opinion that the term "Union
of States' implies that India is a unitary system of government and is federal only in a
secondary sense. However, the following explanation dispels such an interpretation.
In the Constituent Assembly, the Drafting Committee decided in favor of describing India as
a Union of States, although the Constitution is essentially federal in nature. Dr Bhimrao
Ramji Ambedkar explained the significance of the use of the expression 'Union' instead of the
expression 'Federation'.

Three reasons are given:

 Though the country and the people may be divided into different States for
convenience of administration the country is one integral whole, its people a single
people living under a single imperium derived from a single source. 
 The expression-India is a 'Union of States' was chosen as India was already a Union
at the time of the Constituent Assembly debates. 
  Further, there is a school of thought that federal constitutions grant the provincial
units the right to break away and since India does not give any such rights to the
States, it is not warranted to call ourselves federal.

Another reason can be added: Unlike the United States of America, where thirteen British
colonies voluntarily formed the federal State in 1776, in India, the States did not join
together. They were already in a Union. Therefore, the term federation did not technically
apply to India. The meaning of "to federate' is 'to join together". First Schedule (Articles 1
and 4) to the Constitution of India lists India's States and Union Territories: changes in their
boundaries; and the laws used to make that change. 

The States mentioned in the First Schedule of the Constitution are twenty-eight in number-
Andhra Pradesh, Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Goa, Gujarat,
Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra,
Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Punjab, Rajasthan, Sikkim, Tamil Nadu,
Telangana, Tripura, Uttaranchal, Uttar Pradesh, and West Bengal. 
The Union Territories mentioned in the First Schedule are eight in number and they are Anda
man and Nicobar Islands, Chandigarh, Delhi, Dadra and Nagar Haveli and Daman and Diu
(DNHDD), Jammu and Kashmir, Ladakh, Lakshadweep, and Puducherry.

There are two expressions used in the context of governance in India:

 Union of India
 Territory of India

The former includes States that share federal powers with the Union Government. The latter
includes not only States but all other territorial units like UTs and any other type of territory
as in the case of Puducherry in the fifties and Sikkim in the seventies. It is a geographical
expression.

'The Territory of India' comprises:

 Territories of the States

 Union Territories specified in the First Schedule
 Such other territories as there may be

The Government of India can acquire any territory by purchase, treaty, cession, conquest, or
any other method. 

ARTICLE 1(3)(C)
Article 1(3)(c) speaks of such other territories as may be acquired. It is a characteristic of the
sovereign Nation-State that it only speaks of acquiring territory but not giving away its
territory. In the Constitution, there is no method to give away Indian territory even by way of
exchange of territory or border settlement them Supreme Court in the Berubari case (1960)
laid down that the Constitution needs to be amended for giving away territory.

ARTICLE 2
Article 2 says that the Parliament may by law admit into The Union, or establish, new States
on such terms and conditions, as it thinks fit.
Article 2 thus makes the power of Parliament supreme and unquestionable except for due
process by the judicial review.

ARTICLE 3
Article 3 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.
 Increase the area of any State
 Diminish the area of any State
 Alter the boundaries of any State
 Alter the name of any State
While Article 2 is about the power of the Parliament, Article 3 is about the procedure.

Regarding Article 3, it is being debated as to whether the Article gives power to the Union
Government to abolish a State. It is argued that Article 3 does not grant such power. But
when two States can be merged to create a new State, it leads to the abolition of the original
State. Thus, the Parliamentary power of abolition does exist in Article 3. Similarly, an
existing State can be divided into two or more States which also means that the original State
is dissolved.
Article 3 says that the term State includes Union Territories (UTS) as well. The implication is
that a UT can be converted into a State just as a state can also be converted into a UT
While many UTs were converted into States since 1950, there is only one case of a State
becoming a UT. It is in 2019 when Jammu and Kashmir State was divided into two Union
Territories: Jammu and Kashmir, and Ladakh by the Jammu and Kashmir Reorganisation Act
(2019).
There are instances where the State legislatures passed a resolution for creating new States.
But whether such resolutions may be acted upon or not is the prerogative of the Union
Government. Uttar Pradesh Assembly in 2011 passed a motion by voice-vote to divide the
state into four smaller parts-Poorvanchal, Paschim Pradesh. Awadh Pradesh, and
Bundelkhand. It has only suggestive value but no material significance in Constitutional
terms.

CHANGING THE NAME OF THE STATE OR UNION

TERRITORY
Article 3 says that the procedure for the change in name of a State is the same as the
procedure for the creation of a State. In 2011, the name of 'Orissa' was changed to "Odisha'
It is the same procedure for the Union Territory also. 'Pondicherry' became 'Puducherry in
2006.
West Bengal State Assembly passed a resolution to change the name of the State from "West
Bengal to 'Bangla and sent it for the approval of the Union Government in 2016. The State
Assembly had proposed three names-Bangla (in Bengali), Bengal (in English), and bangal (in
Hindi). Centre wanted one name for the state in all three languages- Bengali, English, and
Hindi. In 2018, the State Assembly passed a bill to change the State's name from 'West
Bengal' to 'Bangla' in all three languages and sent it to the center. The Centre did not act on it
till mid-2020.

ARTICLE 4
Article 4 says that laws made under Articles 2 and 3 to provide for the amendment of the
First Schedule (Terri tory of India) and the Fourth Schedule (Allocation of seats in the
Council of States-Rajya Sabha) and supple mental, incidental, and consequential matters are
not to be deemed to be an amendment of the Constitution for the purposes of Article 368.
The need for Article 4 is as follows: When Parliament acts on Article 3 and creates new
territorial entities or changes names and area, the changes have to be reflected in relevant
provisions of the Constitution like the First Schedule and Fourth Schedule. Article 3 provides
for a simple majority to pass the Bill but an amendment to the Constitution needs a special
majority in Parliament. If the changes in the Constitution are to be deemed amendment', a
special majority will be required which may create delays, and States reorganization may
suffer. Therefore, Article 4 was rendered necessary.
For example, the Jammu and Kashmir Reorganisation Act (2019) requires changes in the
First and the Fourth Schedules in terms of names of States and Union Territories.
There are many other provisions in the Constitution that can be changed without the same
being 'Deemed Amendments' as we will see later in the Chapter on Constitution Amendment.
It needs mention that if the changes to the Fourth Schedule are to be made not as a
consequence but independently, it requires a Constitutional amendment under Article 368.
ARTICLE 3 AND FEDERALISM
A federation is one consisting of an 'Indestructible Union of Indestructible States' as in USA.
However, the Constitution of India allows the abolition of a State in Article 3. That is, in
India, the States are not indestructible'. Boundaries, area, and name of a State can be changed.
The process initiated by the Union Government and the role of the affected State is only to
express its opinion which is not binding on the Union Government. The Parliament needs to
pass the Bill only by a simple majority. The Council of States (Rajya Sabha) which is the
representative of the States does not have any special powers in this matter. The matter came
up for national attention in 2019 when the State of Jammu and Kashmir was dissolved and
divided into two Union Territories.
Thus, critics say that the process is unitary as the Union Government has disproportionate
power over the States in this vital matter. However, certain aspects justify the Constitutional
process in Article 3:

 President is given the power to refer Bill to the state concerned. The Bill cannot be
introduced in the Parliament without the Presidential recommendation which is given
only after the States have responded or the time given to them has expired. It acts as a
check against politicizing the matter to serve the partisan interests of any political
group. The President is a federal authority being elected by the Union and the States is
expected to balance the Provincial and National interests well.
 The need for political reorganization and integration after Independence in the face of
any provincial resistance was the overriding factor. 562 Princely states that were
undemocratic had to be absorbed into India and had to be made parts of different
States for democratic and administrative reasons. If such States had to be given
federal rights, the reorganization could not have been done and the National
integration would have suffered.
 The Constitution was drafted at a time when the country was partitioned and the
danger from centrifugal tendencies made the Constituent Assembly members feel the
need for a strong Center.

The provisions in Articles 2-3 are indeed unitary in content. But, as shown above, the need
for centralization of power was strongly felt for National unity and integrity.
In recent years, however, there has been an opinion that the Nation has acquired strength and
resilience after nearly seven decades of Independence and States may be given more powers
including the power to have a decisive voice in the formation of new States.
There is another dimension too concerning whether Article 3 is federal or otherwise.

In a 'holding together federation' classical principles of federalism can be diluted to suit the
historical. security, and developmental needs of the different States. The Centre and the
States need not be equal, the States also can differ in the powers and obligations that they
have, which is called "Asymmetric Federalism'. Article 370 gave a separate Constitution to
Jammu and Kashmir. Article 371 has special provisions for 10 States which are not available
to others.

THE CASE OF SIKKIM

Sikkim was originally a protectorate of India. Constitution was amended in 1974 to admit
Sikkim into India as an associate State. There was no such class of States called associate
State in the Indian Constitution at that time and so the Constitution was amended to create
such a category. The Tenth Schedule was introduced to place Sikkim in it as an associate
State. In 1975, the Constitution was amended again to make Sikkim a full State in India like
other States. The Tenth Schedule was deleted. There has never been another case of an
associate State since then.

Technically, it was not necessary to amend the Constitution as Article 2 gave the Parliament
complete power to determine the procedure of admission of new States. But the Government
chose to amend the Constitution for reasons of propriety and credibility.
A protectorate is a country that agrees to follow a defense and foreign policy that suits a
stronger country that protects its security in return.

REORGANIZATION OF STATES
Even before the Independence, the Government was exploring the appropriate basis for the
State reorganization. The need for such reorganization arose because the demarcation of
boundaries during the British rule suited the colonial administration and did not consider the
popular opinion and needs. Independent India needed administrative boundaries based on-
regional, cultural, and linguistic considerations. Many criteria were considered geography,
development, language, and so on. Each one had its own merits and demerits.

DHAR COMMISSION
The government was concerned that the States formed solely on a linguistic basis pose a risk
to the National unity as India has hundreds of languages. In 1948, Dr Rajendra Prasad, the
President of the Constituent Assembly, set up the Linguistic Provinces Commission,
popularly known as Dhar Commission to explore the feasibility and desirability of having
States formed based on language. It was a three-member committee headed by a former
Allahabad High Court Judge, SK Dhar.

Dhar Commission reported in 1948. It said that there is a need to create new Provinces for
administrative efficiency and recommended that the government should not opt for linguistic
State formation. Instead, for the reorganization of the Provinces of Madras, Bombay, Central
Provinces, and Berar, the Commission suggested the following bases:

 Geographical contiguity
 Financial viability
 Administrative efficacy

JVP COMMITTEE
The Indian National Congress at its Jaipur Session (1948) set up a high-level committee
called Linguistic Provinces Committee consisting of Jawaharlal Nehru, Vallabhbhai Patel,
and Pattabhi Sitaramiah to consider the Dhar Commission's recommendations. In its report
(JVP Report) the Committee suggested utmost caution in proceeding with the proposal for
the linguistic reorganization of States as it could balkanize the country which has hundreds of
well-developed languages.

The JVP Committee reluctantly accepted the linguistic basis for the formation of new States.
It chose democratic sensitivity as reflected in a quotation from the report: Taking a broad and
practical view, therefore we feel that the present is not an opportune time for the formation of
new provinces'.
People, in general, preferred the language-based States as was seen on the ground in the
many movements that were taking place.
It is comprised of Coastal Andhra and Rayala seema Regions. In 1956 Andhra State and the
Telangana region of Hyderabad State were joined to form a united Telugu-speaking State of
Andhra Pradesh.

STATES REORGANIZATION COMMISSION (1953-55)

For a comprehensive reorganization of states in the country, the Government of India
appointed the States Reorganization Commission (1953) Fazl Ali as the Chairman and KM
Panikkar and HN Kunzru as members. In 1955, the States Reorganization Commission
submitted its report.
Fazl Ali Commission recommended the formation of new States on the basis of language as
it held many advantages. It justified the linguistic formation of States, as in a country with
linguistic homogeneity, language provides the only rational basis for reconstituting the State
as language enables:

 Greater participation by people in governance

 Enhances the accountability and efficiency of the government
 Aids development of the state
 Prevents cultural and political alienation

However, the States Reorganisation Commission (SRC) was cautious and laid down the
following criteria to be satisfied for States are to be formed based on linguistic and cultural
unity:
 The creation of new States should strengthen and preserve national unity.
 Financial, administrative, and economic viability should govern the formation of new
States.
 It should aid the process of implementation of five years plans.

Parliament passed the States Reorganization Act (1956) based on the SRC report. This was
the beginning of the States' reorganization in India on a linguistic basis.
It was a historic development toward incorporating cultural identities into political and
administrative units It:

 Strengthened cultural diversity

  Helped administrative efficiency
 Enabled greater citizen participation
 Contributed to national integration based on unity in diversity and thus
 Enriched the federal system of governance.
 Prevented fissiparous tendencies like separatism and disintegration as grievances do
not accumulate and explode.

STATES: PART A, B, C, AND D

The Constitution of 1950 distinguished between three main types of States and a category of
Territories:

Part A States
Former Governors' Provinces of British India. were ruled by a Governor appointed by the
President. They had an elected State legislature.

Part B States
They were the former Princely States or groups of Princely States.

Part C States
They consisted of both the Former Chief Commissioners' Provinces and few Princely States,
and each was governed by a Chief Commissioner appointed by the President of India.

Part D Territory
It is not a State but a Territory. There was only one such Territory: Andaman and Nicobar
Islands, administered by a Lieutenant Governor appointed by the Central government.

STATES REORGANIZATION ACT (1956) AND THE

CONSTITUTION (SEVENTH AMENDMENT) ACT (1956)
The above 4-fold classification of the Indian Union was not viable nor democratic and secure.
Therefore, it had to be restructured. To do so, the Constitution (Seventh Amendment) Act
(1956) was made. It abolished the three categories of States (Part A, Part B, and the Part C
States); and created a new class of Territories called the Union Territories (UTS). Thus, after
the Seventh Amendment to the Constitution in 1956, there were only two classes of
Territories: States and UTS.
The States Reorganisation Act (1956) was made along with the Constitution (Seventh
Amendment) Act (1956) to revise the boundaries of States on linguistic lines.

POST-1956 TERRITORIAL REORGANIZATION

Since the States Reorganization Commission (SRC) report was acted upon first in 1956,
many new States.came into existence first in the south and west and later in the northwest and
the northeast. The last phase of the reorganization was in the north and central India in 2000.
The three new states were created in 2000 not based on language but primarily for economic
growth and good governance-Jharkhand, Chattisgarh, and Uttarakhand. Andhra Pradesh was
bifurcated and Telangana was created in 2014. In 2019, for security and cultural reasons.
Jammu and Kashmir were reorganized.

LINGUISTIC REORGANIZATION OF STATES: PROS AND

CONS

Supporters of linguistic States hold that the creation of linguistic States safeguarded the unity
of India. Pakistan was divided and Sri Lanka suffered protracted civil war (1982-2009)
because Bengali speakers in the former case and Tamil speakers in the latter were refused the
linguistic and cultural autonomy and the dignity they de served. On the other hand, the fact
that in India the citizens are free to educate and administer themselves in their own language
has created a feeling of security and empowerment. The other reasons for support are
outlined by the SRC report as detailed above.

However, critics hold the following: The linguistic reorganization of the States encouraged
various ethnic groups to demand statehood. A vast and diverse country like India cannot
satisfy the cultural aspirations of all cultural and ethnic groups. Such problems exist
concerning the Konkan region of Maharashtra/Goa, Nepali-speaking groups of Darjeeling,
Sikkim, and Assam, and Maithili and Avadhi language groups in Bihar. North Karnataka
wants a separate State.

Several political parties are ethnicity-based, and they build their strength by exploiting the
linguistic and ethnic identities of their constituencies.

The creation of the Telangana State in 2014 shows that people speaking the same language
may not be able to form a single State and prosper. It further shows the linguistic basis for the
creation of States is at best a partial remedy or no solution at all.

The Sarkaria Commission (1988) hinted at weaknesses of the linguistic reorganization of

States in this respect when it said: Very often, the sub-national sentiment which is initially
based on linguistic, religious or ethnic groupings, gains strength with a blend of economic
issues, such as those relating to economic backward ness. One of the most significant
developments has been the rise of linguistic chauvinism, rearrangement of the boundaries of
the States on a linguistic basis resulting in fissiparous tendencies.
The linguistic States were crucial for the reorganization of Territory after Independence. But
in the current times since the beginning of 2000, State formation took place for development,
security, and cultural identity.

NEW DEMANDS
There are demands for new States still like Harita Pradesh (western UP); Bundelkhand (UP);
Koshal (western Orissa): Telangana (AP); Kodagu (Karnataka); Vidarbha (Maharashtra);
Jatland (Haryana); Ladakh (Jammu and Kashmir); Bodoland (Assam); north Karnataka; and
Gorkhaland (West Bengal).

Examples of Haryana, Punjab, and Himachal Pradesh are shown as successful small States
Northeast is cited to show that without the reorganization, there would have been greater
levels of insurgency.
All the demands could not be met as
 They are not economically viable:
 National unity would be threatened;
 The small States may be unable to tackle political threats like Naxalism:
 It would lead to the proliferation of the States to a point of making federal
coordination difficult
 The small States are not necessarily better governed
 Resource sharing issues like river waters; The costs of setting up capital etc;

• Leave the parent State with drastically reduced resources (Andhra Pradesh 2014); and
The Higher rates of taxation on the citizens to raise the required resources for the following
reason

When a Union Territory (UT) becomes a State, it foregoes financial assistance that it enjoys
as a UT. It necessitates resorting to higher taxation to compensate for the central assistance
that is no longer available.
The demand for statehood has the following explanatory factors

 Development deficit due to the uneven development of the country.

 Those regions that have not seen fruits of growth want a new State;
 Population explosion-electorate today is about 900 million which is a five-fold
increase over the 1950's figure. It has created pressures that have found expression as
demands for special status;
 Cultural identities have become the basis for political agitations for separate
statehood; and
 Political parties also are instrumental in encouraging such demands for their own
ends.

REGIONALISM
Regionalism refers to people in a Region or a State coming together to demand and agitate
for more autonomy or a separate State for any of the following reasons:

 The collective feeling of neglect in the context of a centralized federal system as was
the case in Andhra Pradesh in the 1980's when the Telugu Desam Party emerged.
 The apprehension of the imposition of the culture of majority as in Tamil Nadu.
 Economic backwardness as in many States.
  Their resources are being spent on others as in Jharkhand.
 The State is too large for them to be given adequate attention for development, as in
Uttar Pradesh.
 Ethnic identity being asserted as in the Bodo region.

The approach of the government to regionalist demands is based on the understanding that
the challenge in India today is the quality of governance. The response to demand for new
States should be by way of the greater focus on the development.
 Grant of a separate state-Uttarakhand, Chattisgarh, and Jharkhand in 2000 and
Telangana in 2014.
 Constitutional establishment of the local self-government institutions (Seventy-Third
and Seventy-Fourth Amendment) Acts in (1992) to defuse the discontent that took the
form of regionalism.
 Special category States that receive the Central plan assistance at liberal terms.
  There are autonomous councils as in-Ladakh, Darjeeling, and Bodo where regions
enjoy autonomy in administration.
 Development boards (Article 371) for the backward regions of the States of
Maharashtra, Gujarat, and Karnataka.
 Finance Commission recommends grants for the underdeveloped States.
  Inclusions of languages in the Eighth Schedule of the Constitution for the cultural
development of the people as in the case of Bodos.
 The Fifth and the Sixth Schedule of the Constitution benefits tribal groups in certain
regions.
 Aspirational Districts initiative to develop the underdeveloped Regions. The
Government of India launched the 'Transformation of Aspirational Districts' initiative
in 2018 to improve human development, raise living standards and ensure inclusive
growth in 117 Aspirational districts selected based on indicators from health and
nutrition, education, agriculture, and water resources, financial inclusion and skill
development, and basic infrastructure. It operates in the eight socio-economically
backward States of-Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa,
Rajasthan, Uttaranchal, and Uttar Pradesh, referred to as the Empowered Action
Group (EAG) States.

Regionalism, as seen in Tamil Nadu, Andhra Pradesh, Assam, and elsewhere, has the effect
of stabilizing the polity with the following contributions:

 Democratic expression of regionalism ensures that the regional feeling of neglect does
not degrade into separatism.
 Checking the centralization tendency and help the States receive more powers and
thus develop 'cooper ative federalism'.
 Contribute to better management of 'cultural diversities' through devolution of power.
 Greater proximity of the government to the people and thus help evolve participative
planning systems.

KACHCHATIVU
Kachchativu is an uninhabited island in the Palk Strait between India and Sri Lanka. The
territory of India is defined in Article 1(2) of the Constitution read with First Schedule to the
Constitution. Entry 7 in Schedule 1 defines the territorial extent of the State of Tamil Nadu.
Kachchativu was never includ ed in the First Schedule. Since Kachchativu was never
mentioned in the Indian Constitution, a Con stitutional amendment is not necessary. The
transfer I was not ratified by the Union Cabinet which is the ratifying agency in India. But,
the International Court of Justice holds that non-compliance with a ratification requirement in
domestic law does not invalidate a treaty.

BERUBARI
In 1958, India and Pakistan signed an agreement that envisaged the transfer of four enclaves
of Cooch Behar to Pakistan, along with the southern half of a territory called the Berubari
Union, hitherto part of the Jalpaiguri district of West Bengal. The Parliament attempted to do
this by exercising its power under Article 3 of the Con stitution. When the State Assembly of
West Bengal raised objections, the President, in the exercise of his powers under Article 143,
referred the matter to the Supreme Court for its opinion.
In its advice given in 1960, the Constitution Bench of the Supreme Court said that it was
necessary to have a Constitution Amendment for implementation of the agreement as
nowhere in the Constitution it was mentioned how to hand over territory. Constitution only
talks of acquisition (Articles 2-3). However, it is not necessary to refer it to the
Assembly/Assemblies of the State/s concerned. The Parliament has the exclusive constituent
power in this matter.

ONE-HUNDREDTH CONSTITUTION AMENDMENT ACT

(2015)
The Enclaves or Chitmahals in West Bengal in India and Bangladesh were an issue between
the countries for a long time. After the partition of India in 1947, Cooch Behar district was
merged with India and Rang pur went to then-East Pakistan, which became Bangladesh in
1971. The Prime Ministers of India and Bang ladesh signed a Land Boundary Agreement in
1974 to exchange Enclaves. In 1974 Bangladesh ratified the proposed treaty but India did not.
The (One-Hundredth Constitution Amendment) Act was made in 2015 to incorporate the
changes. The (One-Hundredth Constitution Amendment) Act (2015) amended the First Sched
ule of the Constitution which defines the area of each State and Union Territory which
together constitute India.
There was no need to take the legislative opinion of the State concerned and thus no such step
was taken. Inside Bangladesh, there were 111 Indian Enclaves (17,160.63 acres), while inside
India, there were 51 Bangladeshi Enclaves (7.110.02 acres). The Enclave residents were
allowed to have citizenship of the country of their choice. The entire process of
implementation was completed by 2015.
Adverse possession is different from the issue of Enclaves. 'An adverse possession' in the
case of India Bangladesh relations is a Territory that belongs to one country and is in
possession of the other country. If India is in adverse possession, it is contiguous to India's
border and within Indian control but is legally part of Bangladesh. Residents of these adverse
possessions are Indian citizens. Similarly, Bangladesh also has Indian Territory in its adverse
possessions. The issue was settled in the same agreement. Adverse possessions are on the
border while Enclaves are inside each other's Territory.

SPECIAL CATEGORY STATUS

The concept of Special Category Status (SCS) was first introduced in 1969 when the Fifth
Finance Commission sought to provide certain disadvantaged states with preferential
treatment in the form of central grants. 10 States today enjoy the status: the eight states of the
northeast and the Himachal Pradesh and Uttarakhand. The Jammu & Kashmir enjoyed the
benefits till it was a State.
All other States barring these were treated as the General Category States (GCS). The
rationale for special status is that these States, because of inherent features, have a low
resource base and cannot mobilize resources for development. Features laid down by the
erstwhile National Development Council as criteria of eligibility for the SCS status are:

 Hilly and difficult terrain;

 Low population density or sizeable share of tribal population;
 Strategic location along borders with neighboring countries;
 Economic and infrastructural backwardness; and
 Non-viable nature of State finances.

The criteria mentioned as eligibility are so rigid that only some States qualify to be SCSS.
Therefore some States that demanded them were denied like Bihar and Andhra Pradesh.

Benefits for Special Category Status States

The Special Category Status States enjoy many types of financial advantages over others. Till
the year 2015, the Finance Commission recommended financial grants from the Center to
them.
Union Government financial assistance for plan projects like roads and ports is available at
very favorable terms. If 100 is given as plan financial assistance, the special category status
(SCS) State has to return only 10.790 is a grant. For the general category State, 740 is a grant
and 760 is a loan. They may also get some tax breaks for investors.

Finance Commission and The Special Category Status States

Under Article 275, Finance Commission recommends the Central government financial
grants to the States have a chronic revenue deficit. They are generally called 'non-plan grants'
and have been recommended for SCSS from the Fifth Finance Commission (1970-75)
onwards till the Fourteenth Finance Commission (2015 20) dropped the idea and chose to list
a new set of 11 States needing the Central government grants. Thus, for the Financial
Commission, there is no more a class of States called SCSS.
The grants under Article 275 that are called 'Post-Devolution Revenue Deficit Grants' were
made by the Fourteenth Finance Commission to the following eleven States-Andhra Pradesh,
Assam, J&K, Himachal Pradesh, Kerala, Manipur, Meghalaya, Mizoram, Nagaland, Tripura
and West Bengal (a total of 11 States). They are not the same as SCSS of the Government of
India (Gol).

Special Category Status States and Plan Assistance

There are 10 States that the Government of India (Gol) classifies as Special Category States
(SCSs) for its fiscal transfers for plan purposes which are known as Plan grants. They are the
same as the erstwhile SCSS.
The 10 States that still enjoy the Special Category Status for Gol are-Arunachal Pradesh,
Assam, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, and
Uttarakhand.
They enjoy favorable terms more grants and fewer loans-when the Centre gives financial
assistance for planned projects like education, health, rural roads, irrigation, etc as mentioned
above. It is based on the Gadgil Formula.

Gadgil Formula
The Constitution divides responsibilities between the Union government and the State
governments. States are given most of the regulatory, infrastructural, and developmental
responsibilities like police, public order, roads, buildings, irrigation, industry, health, and so
on. But matching fiscal resources are not rendered available. Borrowing powers of the States
are also limited (Article 293). The States were highly dependent on the Union government for
financing their development plans.
The imbalance between the responsibilities assigned and the revenue resources available
needs to be addressed. The mechanism developed since Independence is a variety of financial
transfers-grants and loans to the States given by the Centre.

Gadgil formula was formulated during the fourth five-year plan (1969-74) for the distribution
of central plan financial transfers amongst the States. It was named after Dhananjay
Ramchandra Gadgil, the then deputy chairman of the Planning Commission. The National
Development Council (NDC) approved the formula. The National Development Council
(NDC) in 1990 revised the formula which has since been popularly known as Gadgil-
Mukherjee formula after the name of the then Deputy Chairman of Planning commission and
the former President of India, Dr Pranab Mukherjee. The new revised formula as approved by
NDC is given in the following table. The Central assistance should be distributed among the
states based on the following criteria and the associated weights
 Fundamental Rights

INTRODUCTION

Some human actions are necessary for individual and social progress. That is,
they are the right actions. Throughout history, in all societies, such 'right
actions' are accepted and promoted, initially morally, and later legally. They
have been respected as essential to human development and any violation was
punished socially by the community. When they were later recognized as Legal
Rights, enforcement, and punishment were based on State Action. Thus, rights
are an inherent part of social and individual life.
When rights are conferred by law, they are called Legal Rights. For example,
the Right to Life and Personal Liberty; Freedom of Speech and Expression
Article 19; Freedom to Acquire and Own Property Article 300(A). and so on.
Legal Rights are protected by the State.
In modern times when Constitutional democratic governance is the norm,
Rights have been central to the relationship between the Citizens and the
Government.
A Right is a legal claim that a Citizen or any other individual is granted by the
Constitution or any Statute. As a result, if a Right is violated, it is the obligation
of the State under the law to restore it.
Rights limit government control over individuals and are protected against
arbitrary Government actions. A Right can be diluted or denied only according
to a procedure established by Constitution or Law. If a Right is restricted, the
concerned individual can approach the court challenging the legality of
restriction and seek justice.
Rights promote individual and collective development. For example, the Right
to Do Business helps society in myriad ways-productive use of human
resources, innovation and discovery, wealth creation, fiscal resources for the
State, and so on.
Rights being an integral part of Rule of Law, create equality, and establish a
level playing field among the people without any discrimination on economic,
social, biological, regional, or any other ground. Thus, they are Egalitarian in
nature.
Rights are inherently Social in nature. Rights have meaning only concerning the
community in which the individual lives. Even the Right to Privacy-acquires
meaning only concerning others. Rights exist within a community but their
nature varies according to the culture. For example, Marital Rights, Property
Rights, and so on differ according to the cultural background. Since Rights are
conferred on all, everyone respects the rights of everyone else.

NEGATIVE AND POSITIVE RIGHTS

Constitutionalists and political scientists make a distinction between Negative
and Positive Rights. According to this view, Positive Rights oblige action by the
State, whereas Negative Rights oblige inaction. Positive Rights are Economic
and Social Rights such as-food, housing, public education, employment, health
care, social security, etc. For these Rights, the Government is expected to
provide goods and services and thus show action. Positive rights are material
obligations of the State.
Negative Rights are Civil and Political Rights such as-freedom of speech,
private property, freedom from violent crime, freedom of worship, judicial
remedies (habeas corpus, etc), a fair trial, freedom from bonded and child labor,
and so on. It means the government is barred from violating them except in rare
circumstances. The role of the government is one of non-interference. Negative
Rights are a legal limitation on State action.

Five Generations of Rights

Rights can also be seen according to a sequence of Generations. First-
Generation of Rights are Negative Rights. Second-Generation of Rights are
Positive Rights. Third-Generation of Rights relates to intergenerational equity
involving environmental sustainability. For example, the Right to Clean
Surroundings, Clean Air, and Clean Water. Fourth-Generation of Rights relates
to animals. The Punjab and Haryana High Court declared in 2019 that all
animals are 'living persons' and have their own set of rights under Article 21.
Fifth-Generation of Rights involves the Rights of Natural Entities like Rivers
and Hills. For example, the New Zealand Parliament declared that the river, the
Whanganui, has the same 'Legal Rights' as a person. The Uttarakhand High
Court in 2018 declared the Ganga and Yamuna rivers as living entities.

Individual and Group Rights

There are Individual and Group Rights. Freedom of Speech and Expression,
Right to Life and Personal Liber ty, Right to Religion are some examples of
Individual Rights.
The Constitution of India confers Rights on groups as well based on-religion,
language, gender, culture, caste, and so on. Fundamental Rights include both
Individual and Group Rights. They overlap most of the time. It needs to be
mentioned that in India, there is affirmative action in favour of weaker sections
by way of reservation and other means of empowerment. However, there is no
Right to Reservation. It is within the discretion of the State whether to grant it
or otherwise.

RIGHTS AND DUTIES

Rights without Duties may not make a wholesome Citizen. Therefore,

Fundamental Duties were inserted into the Constitution by the Constitution
(Forty-Second Amendment) Act (1976) which are the obligations that Citizens
are expected to discharge. Fundamental Duties in Article 51(A) require citizens
to contribute to national and social development.

Types of Rights

Broadly, Rights can be classified as:

 Natural Rights
 Human Rights
 Civil Rights
 Civil Rights are further divisible into:
 Legal/statutory Rights
 Constitutional Rights
 Fundamental rights

Natural Rights
Natural Rights derive from human nature. They are inherent in everyone.
Everyone is born with Natural Rights. They are universal and independent of
any law made by State. They are inseparable from the person. However, like
other rights, they are not absolute.
Natural Rights are generally the same as Negative Rights. Examples are Right
to Life and Personal Liberty, Right to Free Speech and Movement, Right to
Privacy, and so on.

Human Rights
Human Rights are the same as Natural Rights with the difference that Natural
Rights accrue to animals also. Human Rights are essential for human well-
being. They are needed for dignified human life and are enjoyed irrespective of-
social, cultural, political, and other considerations. They are contained in the
United Nations Universal Declaration of Human Rights 1948.

Civil Rights

Human Rights are available to Citizens of contemporary democracies. Being

enjoyed by Citizens, they become Civil Rights. Some democratic constitutions
confer more rights and some relatively few. Together, the Rights enjoyed by
Citizens in general become Civil Rights.

Legal Rights
As Dicey proclaimed, the Law does not create a Right. It only recognizes and
protects a pre-existing Natural Right. It is a central part of the doctrine of the
Rule of Law. Legal Rights are Rights recognized by law, as the term shows.
Legal Rights can be-granted, expanded, restricted, suspended, and deleted. Not
all Natural Rights find expression in law. For example, till Justice KS
Puttaswamy (Retd) and Another vs The Union Of India and Others (2017) when
the Supreme Court declared the Right to Privacy was a Fundamental Right, it
was not given legal force.
An example of Rights given by the executive (The Union Cabinet) is Pradhan
Mantri Kisan Samman Nidhi Yojana in which farmers are transferred direct
cash.
Both have equal value in terms of enforceability by the State but the former is
relatively irreversible. The Judiciary may accord greater sanctity to the former
as they are enacted by the Parliament.
All Legal Rights have to be compatible with the Constitution.

Constitutional Rights

Some Rights are enshrined in the Constitution itself. They are Constitutional
Rights. There are two types of Constitutional Rights: Fundamental Rights and
other Rights.
The Fundamental Rights are the highest class of Rights under the Indian
Constitution. They are protected especially where the aggrieved person has
direct access to the Supreme Court. They are placed in a separate Part of the
Constitution (Part III).
There are other Rights outside Part III. They enjoy lesser protection relative to
the Fundamental Rights They are called Constitutional Rights. For example,
Right to Property, Right not to be Taxed except by the Parliamentary Law,
Right to Freedom of Trade, Commerce, and Intercourse throughout the of India.
Among the Legal and Constitutional Rights, there is a variety of Rights Civil,
Political, and Social. Civil and Political Rights enable a Citizen to participate in
civil and political life meaningfully without discrimination. Civil Rights
include-Right to Life and Personal Liberty, Free speech, and many others.
Political Rights include Right to Public Office, Right to Vote, Right to Contest
in an Election, direct democracy Rights like the Right to Recall and the Right to
Vote. Social rights relate to rights enjoyed based on-gender, language, ethnicity,
and so on.

FUNDAMENTAL RIGHTS
Fundamental Rights are important for the individual to live with dignity and the
society to evolve on democrat ic and equitable lines. There are political, social,
cultural, and economic rights among them.

Influences

Fundamental Rights were incorporated into the Indian Constitution as a result of

the following influences:
 Values that inspired the freedom struggle; Experience of the world's
leading democracies-the UK, USA, and France, with the recognition and
protection of individual rights in their Constitutions: Bill of Rights of UK
(1689), Bill of Rights of USA (1791) and Declaration of the Rights of
Man and of the Citizen (France 1789)

Highest Class of Rights

Among all the State-Enforced Rights, Fundamental Rights as the term shows,
occupy the crown position which is substantiated by the following:

 If a Fundamental Right is violated, the aggrieved individual can approach

the Supreme Court of India directly (Article 32) for remedy. For Rights
other than Fundamental Rights, the highest court of the first instance in
the High Court and the Supreme Court can only be approached to
challenge the High Court ruling-interim ruling or final.
 A law inconsistent with the Fundamental Rights is invalid to that extent
(Article 13).
 Only an Amendment to the Constitution can restrict them reasonably in
the public interest. The judiciary will test whether the restrictions are
reasonable and necessary in the public interest. The judicial test is even
more rigorous if the violation involves the 'Golden Triangle' of Articles
14, 19, and 21 (Supreme Court IR Coelho 2007).
Fundamental Rights, Citizens, and Aliens

Some Fundamental Rights-Articles 15, 16, 19, 29, and 30 are available to
Citizens only while others are enjoyable by Non-Citizens (Aliens) as well. The
reasons for limiting these Rights to Citizens only are self-evident in the content
of these Rights as we will see ahead.

Fundamental Rights and Basic Features

In the Keshavanda Bharati vs The State of Kerala (1973), the Supreme Court
laid down the concept of 'basic features' of the Constitution which lie beyond
the power of the Parliament to Amend. The Fundamental Rights as a whole do
not fall within it. Some Fundamental Rights, however, are intertwined with
basic features like equality, social justice, secularism, rule of law, etc, and thus
are not able to abridge.
The Parliament can amend the Fundamental Rights by amending the
Constitution according to the procedure laid down in Article 368. When the
Parliament so Amends the Constitution, the consent of half the State
Legislatures are not required. The State Legislatures cannot restrict
Fundamental Rights at all as they cannot initiate an Amendment to the
Constitution.

Fundamental Rights, State and Private Persons

The Fundamental Rights essentially safeguard individuals from any arbitrary

State actions, but some rights are enforceable against private persons as well.
For example, the Abolition of Untouchability (Article 17) is a limitation on
State action as also on individual actions. Similarly, if any person denies
equality in access to public places (Article 15), it is a violation by a private
person. Also, Rights under (Article 19) like Freedom of Speech can be violated
by private entities. If a person is kidnapped, it is a violation of Personal Liberty
(Article 21). Bonded labor and child labor practiced by private entities is also an
example of (Articles 23-24 respectively).
But the agency that restores the rights and punishes the violators is the State
judiciary and the executive like the police. If the action against the State is
sought, it is called vertical application. If a private person is an alleged violator,
it is a horizontal application of rights.
Self-Executing and Enabling Fundamental Rights
Some Fundamental Rights need legislation to come into force. For example,

 Right to Education under Article 21(A)/

 Reservation under Articles 15-16
 Child Labor under Article 24 etc.

The Constitution (Eighty-Sixth Amendment) Act (2002) inserted Article 21(A)

in the Constitution of India to provide free and compulsory education of all
children in the age group of six to fourteen years as a Fundamental Right in
such a manner as the State may, by law, determine. The Right of Children to
Free and Compulsory Education (Right To Education) Act (2009) represents the
legislation envisaged under Article 21(A) The Amendments Act says that
legislation is needed for its coming into force. The need for the Citizenship
Amendment Act (2019) to be an enabling Act is that the State will have to look
into the State's capacity, implementation feasibility, fiscal resources, and other
related matters.
Abolition of child labor, in general, can be stated in the Constitution (Article
24) but necessary in-depth details of the law have to be provided by legislation.
Some Fundamental Rights, on the other hand, are self-executing which means
they do not need any legislation to come into effect. Most Fundamental Rights
fall in this category. Freedoms in Article 19 come into effect on their own.
Similarly, Right to Life and Personal Liberty, and Right to Religion (Article
25).

Not Absolute

Like all other rights, there are limitations on Fundamental Rights as well. Under
normal circumstances, reasonable restrictions may be imposed. Under the
National Emergency (Article 352), all Fundamental Rights can be suspended
except Articles 20-21. While literally, it may be so, it is inconceivable that the
Right against Untouchability (Article 17) can ever be restricted. In that sense,
Right against Untouchability is an Ab solute Right. So is the Right against Child
Labor.

Six Classes
There are six classes of Fundamental Rights in Part III of the Constitution. They
are:
 Right to Equality (Articles 14-18)
  Right to Freedoms (Articles 19-22)
 Right Against Exploitation (Articles 23-24)
 Right to Freedom of Religion (Articles 25-28)
 Cultural and Educational Rights (Articles 29-30)
 Right to Constitutional Remedies (Article 32)

ARTICLE 12
Article 12 defines 'The State' as including:

 The Government and the Parliament of India;

 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.
The definition is important because when anyone approaches courts against the
government, they have to show that the agency being challenged is a part of the
State. It is to be noted that the definition does not include the judiciary as no one
can have a claim on the judiciary.

State
The State is the political institution in a Nation. The most commonly used
definition of State is of Max Weber. It describes the State as a political
organization that maintains a monopoly of the legitimate use of force or threat
of use of force within a certain territory. Properties of the State are:
 Territory
 Population (Citizens)
 Government
 Sovereignty
According to the Oxford English Dictionary, State is an organized political
community under one government In a colony, State is sovereign but the
sovereignty is exercised by the imperial country as was the case of India till
1947 under British rule.
"Dominion is a unique term. It is an exclusively British term to refer to their
former colonies which had achieved independence but still remained under the
British Monarchy. They are semi-independent polities within the British
Empire. Their Head of the State is the British Monarch. Between 15 August
1947 (when India became Independent) and 26 January 1950 (the proclamation
of a republic), India was an independent dominion in the British
Commonwealth of Nations with a British Monarch as Head of the State.
State, Nation, and Government

State and Government are used synonymously for all practical purposes. But the
State is larger than the Government. Its operational arm is the Government. The
Government is the agency through which State power is exercised. The State
can be seen as an unbroken succession of different governments.

It is the Government that is composed of a political executive (ministers) and

permanent executive (bureaucracy in which the higher echelons are the civil
service and the lower ones are civil posts). The Bureaucracy is a specialized and
privileged body of officers who work under the ministers. The political head of
the Government changes with elections in democratic countries like India but
the Bureaucracy continues according to the career rules.
The State and the Nation go together but occasionally do not. The Nation is
made up of people who make up a nationality. They are the Nationals-a
community of people who share a common history, culture, ethnicity, and so on.
Nationality encompasses many cultures and ethnicities-multicultural.

The Nation is only people, the Nationals. When they have a Territory of their
own and also a government and external recognition, it becomes a Nation-State,
and 'Nationals' become 'Citizens'.
Not all Nationalities have a State. Nationalities without a State are Palestinians
and Kurds. But there cannot be a State without a Nation.

State and Civil Society

The State is the political entity. The Family is a private institution. All
institutions that fall in between can be called the Civil Society-Non-
Governmental Organizations (NGOs), Trade Unions, Pressure Groups, Media,
etc.

ARTICLE 13
Pre-Constitution Laws become void if they contradict the Fundamental Rights.
The State shall not make any law which takes away or abridges the
Fundamental Rights and if such a law is made, it shall be void.
Article 13 clarifies as to the contents of the word 'Law'. The Law includes
Legislative Acts, Ordinances, Orders, Bye-Laws, Rules, Regulations,
Notifications, Customs, or Usages. It does not include an Amendment Act duly
passed according to Article 368. The reason is that the Parliament acts in two
capacities-Legislative and Constituent. The Law covers the 'Legislative Acts'
but not the 'Constituent Output".
The Doctrine of an Eclipse

The Doctrine of an Eclipse is the result of the interpretation of Article 13(1) by

the Supreme Court.
To sum up, when the Pre-Constitution Law that is inconsistent with the
Fundamental Right becomes void, it stays in the Statute Book and is not
deleted. It is in eclipse. It revives when the inconsistency is removed.

ARTICLE 14

Equality before Law

The State shall not deny to any person equality before the law or equal
protection of the laws within the Territory of India. Equality before the law
means that irrespective of any other criteria, all persons-citizens, and others are
equal in the eyes of law. Equal protection of laws means 'like are treated alike'
or 'people in similar circumstances are treated similarly'.
While equality before the law is a necessary general provision, equal protection
of laws recognizes the fact that all people are not alike. There are vast
differences among groups requiring differential treatment. The Rich and the
Middle-class groups cannot be taxed similarly. Women have to be treated
differently. Weaker sections need separate laws. Resident and Non-Resident
Citizens need to be treated differently. Unequal people cannot be treated
equally.
Equal protection of laws is needed for progressive and equitable ends. Equality
of opportunity means the State should actively intervene to create a level
playing field for socially disadvantaged groups by way of affirm ative action,
health and education benefits, and so on. It adds substance to the general Rule
of Equality.
Equal protection of laws has been responsible for affirmative action in India.
The exception in matters is the President of India and the Governor of a State or
the Legislators or any other high Constitutional functionary who enjoy
privileges and immunities.

Rule of Law

Rule of Law is a basic feature of all modern Constitutional democracies. Rule of

Law implies there is no one above law. It means that every person is subject to
the law, including lawmakers. It stands in contrast to the idea that the ruler is
above the law, for example by divine right.
Prof. Albert Venn Dicey says Rule of Law has the following dimensions:

 No one is above the law and everyone, whatever be his rank or status, is
subject to the ordinary law of the land and the jurisdiction of the courts.
 Absence of arbitrary power on the part of the Government. There is a
written law that lays down the rights and responsibilities of citizens and
others; it also states clearly the powers, obligations, and limitations of
government action.
 Individual Liberties are the soul of democracy. They are inherent in men
and women. Therefore, the Constitution is not the source of Rights but
recognizes the Pre-Existing Rights and codifies the same for legal
protection. For example, Right to Life, Liberty, and Property are a part of
nature and history, and the law only reflects it. Right to Privacy was
always a necessary part of social life. It was formally recognized so by
the Supreme Court in the Puttaswamy case (2017) as an intrinsic part of
the Right to Life and Personal Liberty under Article 21 and as a part of
the freedoms guaranteed by Part III of the Constitution. People are born
with it and thus it is a natural right and needed to be recognized and made
formal and enforceable.

Rule of Law is characterized by the following:

 The notion of equality and equal protection of laws.
 Penal laws cannot be made retrospectively unless the criminal law is
being relaxed.
 Principles of natural justice-that is, fairness in penal laws.
 Separation of powers, since the fusion of powers in one authority, leads
to lack of accountability, dictator ship or absolutism, and denial of
liberties.

The idea that all are subject to the law, including kings, had its origin in Magna
Carta (1215). It was the basis of the Rule of Law. 'Howsoever high you may be,
the Law is above you' sums up the essence of Rule of Law.
Rule of law and constitutionalism are two sides of the same coin as both argue
for limited government, that is, accountability based on clearly laid down rules
and regulations.

LEGAL PERSON AND CITIZEN

Under Indian Law two types of Legal Person are recognized:

  Human beings who are natural persons
 Non-Human entities called juridical persons
 Juridical persons can be
 Inanimate (companies and idols), or
 Natural, for example, animals or forests, lakes, etc.

Legal Persons are given the almost same legal juridical personality as human
beings. They have rights and co-relative duties; they can enter into contracts;
sue and be sued, can possess and transfer property. Since these Non-Human
entities are 'voiceless' they are legally represented 'through guardians and
representatives' to claim their legal rights and to fulfil their legal duties and
responsibilities.
The Supreme Court's (2014) judgment in Animal Welfare Board of India vs A
Nagaraja ruled that animals are also entitled to Article 21 of the Constitution of
India: the Right to Life, Personal Liberty, and the Right to Die with Dignity.
In 2019, the Punjab and Haryana High Court ruled that the entire animal
kingdom has a distinct Legal Persona with Rights.
The Deity in the Temple is a 'Legal Person' who can engage in legal cases
through trustees in charge of the temple. The Supreme Court of India (SCI),
while deciding the Ayodhya case of Ram Janma bhoomi, considered the Deity
Rama in the specific Temple as a Legal Entity (2019). Similarly, in 2018 (SCI)
decided that the Deity Ayyappan is a Legal Per son in the Sabarimala Shrine of
Lord Ayyapan.
While Natural Persons acquire Legal Personhood when they are born,
Companies and Idols do so when they are instituted.
The Judicial Persons also enjoy Fundamental Rights but not the Rights which
are exclusive to the citizens Articles 15, 16, 19, 29, and 30 are exclusive to
Citizens. Others are enjoyable by all.

Reasonable Classification

Article 14 grants equal protection of the law. It means similar people are treated
similarly. Thus, it addresses the fact that there are differences among people
who are unjust and need state intervention for correction. Welfar security,
progressive considerations, and so on demand that the State classifies people
reasonably for dissimilar treatment for the ends mentioned earlier.
The following examples will substantiate the point. The reservation given to
economically weaker sections by the (One-Hundred and Third Constitution
Amendment) Act (2019) follows reasonableness in classification as it aims to
create a level playing field among all disadvantaged and further between the
advantaged and the disadvantaged.
But treating women of a certain age group-10-50 years-as a separate group and
disallowing them into a temple does not agree with the need for reasonableness.
It is a practice of inequality and is Arbitrary and Exclusionary

Special laws and measures to eliminate sexual harassment at the workplace for
women are allowed (Vishakha judgment 1997). Similarly, taxing women less is
reasonable but discriminating among women by region or religion, or caste for
taxation may constitute class legislation. It is Arbitrary and Unreasonable.
Execution of equal protection of laws necessarily is based on the notion of
reasonable classification. If the classification is not reasonable, it is not
maintainable in courts.
In The Indian Young Lawyers Association case (2018) related to the entry of a
certain age group within women into Sabarimala temple, it was argued that they
form a distinct group and a separate law may be applied to them. The Apex
court refused to accept this line of reasoning as it is not a reasonable
classification; is restrictive, and amounts to untouchability.
Essential goods and services can be exempted from taxation. Export income
may be left untaxed. Since goods may be singled out for exorbitantly high
taxation. All these examples amplify the reasonableness of classification.

Citizenship (Amendment) Act (2019) is criticized for following unreasonable

classification as it includes only some groups and some countries without
adequate justification.

Equality Before Law, President, and Governor

Article 361 provides the President of India and the Governor of a State
privileged status and thus departs from Article 14.

Article 361

 The President, or the Governor of a State, is not answerable to any court

for his official actions. Their actions are subject to judicial review. But
they are not personally liable. The President of India, however, can be
made answerable to a tribunal when his impeachment is underway
according to Article 61.
 No criminal proceedings whatsoever shall be instituted or continued
against the President, or the Governor of a State, in any court during his
 term of office. However, it is interpreted to mean that such petitions can
be moved after they retire, even for the actions that they had committed
while in office.
 No process for the arrest or imprisonment of the President, or the
Governor of a State, shall issue from any court during his term of office.
 Civil proceedings in which relief is claimed against the President or the
Governor are allowed during the term by giving two months' notice.

ARTICLE 15

Prohibition of discrimination on grounds of religion, race, caste, sex, or place of

birth.
 The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them.
 No Citizen shall, on grounds only of religion, race, caste, sex, place of
birth, or any of them, be subject to any restriction for:
 access to shops, public restaurants, hotels, and places of public
entertainment, or
 the use of wells, tanks, bathing ghats, roads, and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of
the general public,
 The State can make special provisions for women and children.
 The State can make special provisions for the advancement of any
socially and educationally backward classes of citizens or for the
Scheduled Castes/Tribes.
 The State can make special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes/Tribes for their admission to educational institutions including
private educational institutions, whether aided or unaided by the State.
Minority educational institutions are exempt under Article 30(1).
 The State can provide reservation to the economically weaker sections in
their admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of Article 30.

Article 15(6) was added by the (One-Hundredth and Third Constitution

Amendment) Act (2019) to provide reservation to Economically Weaker
Sections (EWSs).

Article 15 and Social Progress

Article 14 establishes equality before the law but historical facts of inequality
mandate that special treatment for the disadvantaged groups be given.
Therefore, the Constitution recognizes the need for special laws for women and
children. Also, affirmative action and reservation for Scheduled Castes (SCs),
Scheduled Tribes (STs), Socially and Economically Backward Classes
(SEBCS), Economically Weaker Sections (EWSs).
One of the main goals of Article 15 is to reform the traditional social order
which is beset with discrimination against certain sections.
The Supreme Court sought to balance the reservation-based preferential action
with general social good by limiting the quantitative extent of reservation
permissible. For example, 50% is the limit laid down by the court for all caste-
based reservations. Also, in the case of the (SEBCs), the creamy layer is
excluded.
Few scholars differentiate between reservation and affirmative action-the latter
includes scholarships, special educational assistance, etc.

Article 15 and Women

According to the Supreme Court, reservation of posts exclusively for women is

valid under Article 15(3) as Article 15(3) covers every dimension of positive
State action for women.
Provisions in the criminal law and procedural law in favor of women have been
accepted by the courts in view of their social weakness as a part of Article 15.
Reservation for women in local bodies (Panchayat and Nagarapalika bodies)
and educational institutions are supported by Article 15.

Judicial Rulings

The Women's Reservation Bill that is being nationally debated since 1996 is
also based on the protective provisions of Article 15(3): (One-Hundred and
Eighth Constitution Amendment) Bill was passed by the Rajya Sabha in 2010
but expired with the dissolution of the Fifteenth Lok Sabha in 2014.

Since 2010, the Supreme Court has consistently given the woman in the live-in
relationship the Rights of a Lawful Wife. In 2013, the Supreme Court had
framed guidelines for bringing live-in relationships within the purview of the
Domestic Violence Act.
Under the (Criminal Law Amendment) Act (2013), voyeurism is not a gender-
neutral offense. Only men are culpable for it not women. Stalking is an offense
only a man can commit to a woman. Rape is also not gender-neutral, only a man
can commit the offense on a woman.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act (2013) seeks to protect women from sexual harassment at their
place of work. The Act subsumed the Vishakha Guidelines of 1997.

Women and Adultery

Section 497 of the Indian Penal Code incorporates provisions for the adultery
law. It was penal only to men and not women. If a woman had a sexual
relationship with a man outside marriage (adultery) with the permission of the
husband, the man could not be charged with an offense. Otherwise, the man is
culpable.

Judicial Rulings

In the Joseph Shine vs The Union of India (2018), the Apex court ruled to scrap
the section as it was unconstitutional, degraded the status of women, and 'treats
a husband as the master', and is a violation of Article 15.
Adultery cannot be a criminal offense hereafter. It can be a ground for civil
issues like divorce.

The Indian Young Lawyers' Association Case (2018)

The Sabarimala temple in Kerala historically imposed a ban on the entry of

women of menstrual age (10-50 years). It was challenged in the Supreme Court.
The five-judge constitution bench in 2018 in its 4:1 verdict outlawed banning
entry of women to Kerala's Sabarimala temple as it is gender discrimination and
violates Article 15 and 25. It is also an act of untouchability (Article 17). Justice
Indu Malhotra gave a dissenting verdict.
The dissenting judge said that faith is outside the scope of law and regulation
by the government. The

Majority verdict said that courts should work as levelers in a society where law
and society put barriers to equality.
In 2020, the Supreme Court decided to refer its Sabarimala judgment to a nine-
judge Constitution bench and expanded the scope of the subject to address the
issue of gender equality in other faiths.
Haji Ali Dargah

The Bombay High Court in 2016 held that the ban imposed on women from
entering the sanctum sanctorum of the Haji Ali Dargah contravened Articles 14,
15, and 25 of the Constitution. The Supreme Court stayed the operation of the
ruling based on certain commitments of dargah management that it would make
adjustments.

Article 15 and Children

Children can be treated specially under Article 15. Free and compulsory
education; less harsh laws; banning child labour; mid-day meals in schools, and
having school uniforms are some examples of special treatment of children
given their unique social and biological status.
Lok Sabha in 2015 passed the Juvenile Justice (Care and Protection of Children)
Act that provides for trying juveniles aged between 16-18 years for heinous
crimes under the same laws as adults. It seeks to strike a 'fine balance' between
justice to victims and the Rights of Children. Under the law, any juvenile aged
between 16-18 years will stay in Borstal (special prison for children and
adolescents). But, under the new law, there is no provision for the death
sentence or life imprisonment for children and thus they are protected to that
extent. At the age of 21 years, their behavior will be assessed and if an offender
has reformed, his sentence may be cur tailed. Their cases will be tried by a
Juvenile Justice Board, which will include a psychologist and a child rights
activist.
The need for the law was that according to the National Crime Records Bureau
(NCRB), thousands of juveniles commit various crimes including heinous
crimes. Concerns, however, are expressed by some that the new law may be
misused against the poor, 'Adivasis', and other deprived sections of the society.

ARTICLE 16

Equality of Opportunity in Matters of Public Employment

It has the following essential content:

 There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State.
  No citizen shall, on grounds only of religion, race, caste, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against
in respect of any employment or office under the State.
 The Parliament may legislate that residence is a criterion for employment
in certain categories. For example, 'sons of soil policy' whereby people in
the vicinity of an area may have the employment reserved for them.
 Reservation in promotion for Scheduled Castes/Tribes social groups can
be allowed.
 The State can make any provision for the reservation of posts in favor of
any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State.
 Religious and denominational institutions can reserve employment in
them for those professing the religion. For example, church, mosque, etc.
 Provide reservations to citizens from Economically Weaker Sections
(EWSS) in government posts.

Descent and Residence are the two additional criteria found in Article 16 as
compared to Article 15.
If there is a government policy that only children of doctors can be eligible to
become doctors, it is an example of discrimination by descent.
Residence cannot be the basis for reservation. However, Article 16(3) makes
exceptions. That is, a State or a Union Territory can reserve certain posts for its
own residents. The Parliament alone is competent to make such laws for any
State or Union Territory for a limited period. The exception is made for reasons
of efficiency as knowledge of local conditions is essential, at times, for the
discharge of duties well. Jobs so reserved are generally subordinate in nature. It
is called 'sons of soil policy The Parliament in 1957 made the Public
Employment (Requirement as to Residence) Act for temporary duration for
preferential appointment to the residents of the State for the Non-Gazetted ranks
in the States of Andhra Pradesh, Himachal Pradesh, Tripura, and Manipur. The
Act expired later.
Exceptions can be made in religious bodies, for 'Sons of Soil Policy, backward
classes Scheduled Castes (SCS), Scheduled Tribes (STS), and Other Backward
Classes (OBCs), and Economically Weaker Sections (EWSs) as seen above.

Scheduled Castes, Scheduled Tribes, and Other Backward

Classes

Scheduled Castes (SCs) and Scheduled Tribes (STS) are the social groups in
India who are statutorily classified as such by the President of India-the former
because they were excluded from Hindu social order and so were denied social
participation and material benefits. The latter because of their remoteness that
denied them mainstream advantages. Thus, both groups are historically
disadvantaged in India. Under much of the British rule, they were called
Depressed Classes. The Constitution (Scheduled Castes) Order (1950) lists
more than a thousand Castes across India; and the Constitution (Scheduled
Tribes) Order (1950) lists about 750 Tribes across 22 States. The (Government
of India) Act (1935) introduced the term 'Scheduled Castes'. The social groups
who are backward other than the above two are known as Other Backward
Classes (OBCs), the term being the same as Socially and Educationally
Backward Classes (SEBCs). Scheduled Castes (SCs) are there in Hindu, Sikh,
Jain, and Buddhist groups. Scheduled Tribes (STS) and Other Backward
Classes (OBCs) can belong to any religion.

Criteria for Backwardness

The Mandal Commission adopted eleven criteria which could be grouped under
three major headings: Social, Educational, and Economic.

Social

 Castes/Classes are considered as socially backward by others.

 Castes/Classes which mainly depend on manual labor for their livelihood.
 Castes/Classes where early marriage is the norm.
 Castes/Classes where the female labor participation rate is higher.

Educational

 Castes/Classes where children do not go to school more than other State

average.
 Castes/Classes where the rate of student drop-out in the age group of 5-15
years is higher than the State average,
 Castes/Classes amongst whom the proportion of matriculates is below
the State average.

Economic

 Castes/Classes where the average value of family assets is below the

State average,
 Castes/Classes where the number of families living in kutcha houses is at
least above the State average,
  Castes/Classes where the source of drinking water is beyond half a km for
more than 50 percent of the households,
 Castes/Classes where the number of households having taken
consumption loans is above the State average.
In all three criteria where the gap between the Caste and the State average is
spoken of, it should be at least 25% either more or less-as the case may be.

CONSTITUTION (ONE HUNDRED AND THIRD

AMENDMENT) ACT (2019)

It amended Articles 15-16 of the Constitution by adding two new clauses which
empower the State to provide a maximum of 10 percent reservation for
Economically Weaker Sections (EWS) of citizens other than the Scheduled
Castes (SCs), the Scheduled Tribes (STS), and the Non-Creamy layer of the
Other Backward Classes (OBCs-NCL).
The new clause (6) of Article 15 allows the State to take any 'Special Provision'
including reservation in admissions to educational institutions, whether aided or
unaided, other than minority educational institutions under Article 30(1).

The new clause (6) of Article 16 allows reservations in appointments or posts

under the state. The reservation for the new category will be over and above the
existing scheme of 15%, 7.50%, and 27% reservations respectively for the
Scheduled Caste (SC), Scheduled Tribe (ST), and Other Backward Class
(OBC), thus bringing the total reservations to about 60%.

Challenge and Response

 The Constitution does not allow it. But the objection is not sustainable as
the Constitution has been amended.
 It violates the 50% limit set in the Indira Sahaney case (1992). The
answer is that the 50% limit applies only to caste-based reservations.
 50% limit is one of the basic features. But in none of the Apex court
verdicts is it mentioned so.

But the one objection that may not be struck down is the fact that only those
groups that are inadequately rep resented in the services under the State are
eligible for reservation in government posts according to Article 16. The verdict
is awaited.
The Act states that it is drafted with a will to mandate Article 46 of the
Constitution of India, a Directive Principle that urges the government to protect
the educational and economic interests of the weaker sections of society. While
socially disadvantaged sections have enjoyed participation in the employment in
the services of the State, no such benefit was provided to the Economically
Weaker Sections (EWSs).

RESERVATION IS NOT A FUNDAMENTAL RIGHT

Reservation is a quota of seats set apart for certain ethnic, social, or economic
groups. It is contained in Arti cles 15-16 for education and jobs respectively.
These Articles say that if the Government wants to give reservation, it can. That
is, the Right to Equality under Article 14 is not a barrier to it. It need not give
reservation if it does not want to. In other words, there is no constitutional
compulsion to give reservation.
These Articles say: Nothing in this Article shall prevent the State from making
any provision for certain stated groups. It means the State can give reservations.
Just as the State cannot be prevented, the State cannot be ordered to give
reservation either.
Reservation is not a Fundamental Right nor a Constitutional or Legal Right. It is
not a Right at all. It is moral on the part of the government under a Directive
Principle of State Policy (Article 46) that obliges the government to take care of
the interests of weaker sections like Scheduled Castes/Tribes groups.
Uttarakhand government's (2012) decision to fill up all posts in public services
in the State without reservation was challenged in the Apex court and the judge
said that there is no Right to Reservation under the Indian Constitution.
Mandamus (judicial order) thus cannot be given to the government to provide
reservation.

ARTICLE 17
Abolition of Untouchability

'Untouchability' is abolished and its practice in any form is forbidden. The

enforcement of any disability arising out of 'untouchability' shall be an offense
punishable under Law.

There are Two Important Legislations Related to Article 17

  The Protection of Civil Rights Act (1955) (PCRA), and
 The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act (1989) (PAA).

Initially, the Untouchability (Offenses) Act (1955), had been enacted to abolish
the practice of untouchability and social disabilities arising out of it against
members of the Scheduled Castes. It was amended in 1977 and is now known as
the Protection of Civil Rights Act (1955). Under the revised Act the practice of
untouchability was made both cognizable (a police officer can arrest the
accused person on a complaint without a magisterial warrant) and non-
compoundable (In certain offenses, the parties involved can come to a
compromise while the case is under trial in the court. This is 'Compoundable.
More serious offenses are called 'Non-Compoundable as they cannot be
withdrawn).

ARTICLE 18
Abolition of Titles

No Title, not being a military or academic distinction, shall be conferred by the

State.
No citizen of India shall accept any Titles from any foreign State.
An Alien in India working under the State can accept a Title from a foreign
State only with the consent of the President.
No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind
from or under any foreign State.
The British government had created an aristocratic class known as Rai Bahadurs
and Khan Bahadurs in India. The Constitution abolishes these Titles for the
reason that they create inequality. However, military and academic distinctions
can be conferred on the Citizens of India.
The Supreme Court, in 1995, upheld the validity of awards like Bharat Ratna
and Padma awards. The Apex court ruled that the awards of Bharat Ratna and
Padma Vibhushan could not be used by the recipient as a Title and did not,
accordingly, come within the Constitutional prohibition.
Article 18 is only a Constitutional enabling provision. Laws have to be made to
operationalize the general provisions found in the Article.

ARTICLE 19
Right to Freedom

Article 19(1) guarantees six Freedoms to the Citizens of India.

Articles 19(2-6) impose limitations on the Freedoms guaranteed by Articles 19

(1)(a-g).
Article 19(2) is a general list of eight grounds and the rest deal with each Right
individually.
The Right to Freedom in Article 19(1) guarantees to the citizens the following
six freedoms with respective restrictions:

 Freedom of Speech and Expression, which enable a citizen to participate

in public activities-Freedom of Expression includes Freedom of Press.
Reasonable restrictions can be imposed in the interest of public order, the
security of State, decency, morality, etc.
 Freedom to Assemble Peacefully Without Arms, on which the State can
impose reasonable restrictions in the interest of public order and
sovereignty and integrity of India.
 Freedom to Form Associations or Unions or Cooperative Societies on
which the State can impose reason able restrictions on this freedom in the
interest of public order, morality, and the sovereignty and integrity of
India.
 Freedom to Move Freely Throughout the Territory of India though
reasonable restrictions can be imposed on this Right in the interest of the
general public, for example, restrictions may be imposed on movement
and traveling, to control epidemics.
 Freedom to Reside and Settle in any part of the Territory of India which
is subject to reasonable restrictions by the State in the interest of the
general public or for the protection of the Scheduled Tribes (STS) from
exploitation and coercion.
 Freedom to Practice any Profession or to Carry on any Occupation,
Trade or Business on which the State may impose reasonable restrictions
in the interest of the general public. Thus, there is no right to carry on a
business which is dangerous or immoral. Also, professional or technical
qualifications may be prescribed for practicing any profession or
carrying on any trade.
The (Ninety-Seventh Amendment) to the Constitution in 2011 Amends Article
19(1)(c) to recognize the Right of People to form Cooperative Societies as a
Fundamental Right.
Article 19(2)
The State can impose reasonable restrictions on the exercise of the above Rights
on the following eight grounds:

 Sovereignty and Integrity of India

 Security of State
 Public Order
 Friendly Relations with the Foreign States
 Decency or Morality
 Contempt of Court
 Defamation or
 Incitement to an Offense.

Public order was the ground that was added by the Constitution (First
Amendment) Act (1951) by Amending Article 19(2). In 1963, Article 19(2) of
the Indian Constitution was Amended to insert 'The Sovereignty and Integrity of
India' as bases for reasonable restrictions by the Constitution (Sixteenth
Amendment) Act (1963).
The courts have the power to review the reasonableness of the restrictions and
strike them down if they are not justified.

Reasonableness
The Doctrine of Reasonableness is used as a concept of fairness and justice in
the judicial interpretation of a law related to the restriction of Rights. It says that
when Rights are restricted, the quantum of restriction should be reasonable: that
there should be a balance between the Private Right and the Public Purpose.
All the Rights mentioned in Article 19(1) are liable to be exercised with due
respect to a variety of public considerations as mentioned above. The
Constitution allows 'Reasonable Restrictions to be placed on each of the
Freedoms. The grounds based on which such 'Reasonable Restrictions may be
placed are stated but there is no mention of what constitutes 'Reasonableness'.
The Apex court in various rulings laid down certain criteria that makeup
'Reasonableness':

 The Nature of the Right is intended to be restricted-all rights do not enjoy

the same importance. For ex ample, Articles 14, 19, and 21 form the
'Golden Triangle' and enjoy greater protection.
 Purpose of the restriction.
  Extent and urgency to remedy a wrong.
 Retrospective penal restrictions are not allowed.
 Proportionality of the restriction, that is, the restriction should not be in
excess of requirement
 Prevailing conditions at the time.
 Whether the law in question provides reasonable safeguards.
 Can less restriction achieve the same purpose?
 Whether the law imposing them is Temporary or Permanent.
 Whether a reasonable man would consider the restrictions unreasonable.
 Whether the restriction is imposed by legislative act or by executive
decree without any legislative backing.
 The Reasonableness of the restriction and not of the law which permits
the restriction
 The Reasonableness of the restriction has to be judged not with reference
to the ground on which it is imposed, but with reference to the
Fundamental Right which is restricted.
 When a situation demands urgent action, the actions taken to ward off
danger may be considered reasonable at that point in time which would
not be considered otherwise reasonable.
 If the restriction disrupts the balance between the interest of the citizen
and collective demands like national security and public order.
 To implement a directive principle of state policy but the balance with
the rights cannot be tilted.

Article 19 and National Anthem

The National Anthem is the first stanza of the song Jan Gan Man, a poem
written by the late poet Rabindra Nath Tagore.
The Prevention of Insults to National Honour Act (1971) prohibits insult to the
country's National Symbols, including the National Flag, the Constitution, the
National Anthem, and the Map of India. Section 3 of the Act says that whoever
intentionally prevents the singing of the Jana Gana Mana' or causes disturbances
to any assembly engaged in such singing shall be punished with imprisonment
for a term, which may extend to three years, or with fine, or with both. Repeat
convict shall be punishable with imprisonment for a term, which shall not be
less than one year. 
Part IV A Article 51(A) of the Constitution stipulates Fundamental Duties of the
Indian Citizens which includes the Duty to abide by the Constitution and respect
its Ideals and Institutions, the National Flag, and the National Anthem.
In 1986, the Supreme Court gave its ruling in the Bijoe Emmanuel vs The State
of Kerala, popularly known as the National Anthem case.

The Background to the Ruling is as Follows: A Circular Issued by the

Education

Department of the Kerala State Government required that every day before
classes begin, the National Anthem should be sung in an assembly, and the
whole school should join in collectively singing the National Anthem Three
children belonging to a religious group called Jehovah's Witnesses stood but did
not sing and so were expelled from school. They did not sing because,
according to them, it was against the tenets of their religious faith to sing the
National Anthem. The expulsion order was challenged but the High Court
dismissed the writ petition. When they approached the Supreme Court of India,
the Apex court struck down the circular as unconstitutional, holding that the
punitive action violated Fundamental Rights:

 Violates their Fundamental Right guaranteed under Article 19(1)(a) (Free

Speech and Expression) as right to Silence is a part of Right to Free
Speech.
 Violates 25(1) (Individual Religious Rights).
 Prevention of Insults to National Honour Act (1971) does not mandate
singing
 Also, a Fundamental Right could not be restricted by a circular. It needs
a parliamentary Act.
 Further, the restriction did not base itself on any of the 8 grounds
mentioned in Article 19(2) that allowed Reasonable Restrictions.
 Nor was the restriction reasonable.

The Supreme Court in 2016 made it mandatory to play the National Anthem in
cinema halls before movie screenings to instill a sense of committed Patriotism
and Nationalism. All present in the hall are obliged to stand up to show respect
to the National Anthem. However, in 2018 the court withdrew this order. It is
not clear as to what constitutes 'Respect'. An order issued in 2018 by the
Ministry of Home Affairs (MHA) stated that "whenever the anthem is played,
the audience shall stand to attention'.

Article 19 and Press Freedom in India

There is no separate provision guaranteeing the Freedom of The Press, but the
Supreme Court held that Freedom of The Press is included in the Freedom of
Expression under Article 19(1)(a) of the Indian Constitution. Reasonable
restrictions apply to Freedom of Press too.
The National Commission to Review the Working of the Constitution
(NCRWC) recommended that Freedom of Press be explicitly granted and not
left to be implied in the Freedom of Speech.
However, Press Freedom has to respect the dignity of the legislature and
judiciary as otherwise it is treated as contempt. Freedom of Speech guaranteed
to the citizen is subordinate to the parliamentary privileges (Article 105 and
194) and in case of a clash between the two, the latter prevails.

Article 19 and Freedom Speech

Right to Protest

Right to Protest is Constitutional, being read into Article 19. The Supreme
Court (2012) pronounced a landmark judgment on the incident that took place
in 2011 at Ramlila Maidan, Delhi where Baba Ramdev and his supporters were
carrying on a protest against corruption and the prevalence of black money in
India. Police broke up the protest in the night to which the Apex court objected.
The right to peacefully protest subject to just restrictions is now an essential part
of Free Speech and the Right to Assemble. The judgment, however, imposes an
obligation on the protesters to obey every lawful order like Section 144 of CrPC
which empowers an executive magistrate to prohibit an assembly of more than
four persons in an area.
The Freedom of Speech does not include calling for forced 'Bandhs'. The
essence of the judicial position is this: people cannot be made to participate in
'Bandhs' under duress as it violates life and personal liberty under Article 21 and
also Article 19(1)(g) which is Right to Do Business.

Article 19 and Films and Books

The Freedom of Speech and Expression is the basis for writing books and
making films. The business dimension is covered by Article 19(1)(g). Before
the film and book are released to the public, there is scrutiny by the government
for their compatibility with the constitution and law. For example, the Central
Board of Film Certification (CBFC) has to clear the film for its public
screening. After the due process is complete, the film should be allowed to be
screened in the cinemas. If there are any law and order issues, under the
Constitution, it is a subject under List 2 and is the responsibility of the State
government.
The issue arose in the case of many films like Aarakshan, Padmavat, Article15,
etc.

Hicklin Test
With regard to some comedy shows, films, paintings, and books, the issue of
vulgarity came up. The Courts were approached for legal clarity. The Courts
judge the issue based on the 'Hicklin Test' where vulgarity and obscenity are
differentiated with the latter being considered illegal.
In several cases, the Indian Courts referred to the 'Hicklin Test'. The 'Hicklin
Test' for obscenity was established in the English case Regina vs Hicklin
(1868). At issue was the statutory interpretation of the word 'obscene'. It was
resolved that an act may be vulgar but not obscene. Obscenity is excessively
vulgar and involves depravity.
Obscenity is a criminal offense in a variety of Indian laws. The Indian Penal
Code (IPC) in Section 292 and Section 294 criminalize publishing obscene
books, singing obscene songs, and doing obscene acts in or near a public place.
The Information Technology Act (2008) punishes the online transmission or
publication of sexually explicit acts. The Post Office Act prohibits transmitting
obscene materials by post.

Article 19 and Intermediary Liability

Section 79 of the IT Act

Intermediaries are companies such as Google, Twitter, Whatsapp, Online-

Marketing places, etc. Governments across the world realized that these
intermediaries must be given protection from legal liability that could arise out
of illegal content posted by users. Governments protect intermediaries from
objectionable user-generated content because intermediaries are neither the
authors nor the publishers of the content. Protection, called safe harbor is
available if they follow certain rules.
Intermediaries should impose a set of rules and regulations on users.
Intermediaries are obliged to remove objectionable content within a certain
period from the time of receipt of the complaint.
These rules are essential for dignity, reputation, and privacy all being
Fundamental Rights

Article 19 and Hate Speeches

Hatred is a deep and emotional dislike. It can be directed against individuals,
groups, entities, objects, behaviours, or ideas. Hatred is often associated with
feelings of anger, hostility, disgust, and a disposition towards hostility.
Article 19 gives all the citizens the Right to Freedom of Speech and Expression
but subject to 'reasonable restrictions for preserving inter alia 'public order,
decency or morality'. Article 19(1)(a) can be restricted reasonably if it becomes
an obstacle to others enjoying their Rights. Thus, hate speeches are controlled.
The Constitution of India and hate speech laws aim to prevent discord among
social communities. The laws allow a citizen to seek the punishment of anyone
who shows the citizen disrespect on grounds of-religion, race, place of birth,
residence, language, caste or community, or any other ground whatsoever. The
laws specifically forbid anyone from outraging someone's 'religious feelings'.
The Indian Penal Code (IPC) has several clauses that make it necessary for the
person 'expressing himself or herself not to hurt sentiments or cause public
discord, something that is open to interpretation.

Freedom of Speech and Civil Servants

The Freedom of speech in Article 19 (1)(a) can be curtailed for the public
servants in the interest of discipline. Article 33 the government to so for certain
types of public servants armed forces, those in charge of keeping public order,
etc. Service rules are essential for discipline within the service-for example,
criticism in public of the superiors is not permitted. The objective is not to curb
Freedom of Speech and Expression but to ensure that government servants
effectively discharge their statutory duties and obligations. Thus, there is a
balance to be established between the organizational functioning and the
Freedom of Speech.

Sedition

Sedition is an offense against the State. Sedition is defined as conduct or

language inciting rebellion against the authority of a State. Sedition is related to
treason but treason is more serious. Treason is a betrayal of one's country by
waging war against it or by consciously and purposely acting to aid its enemies.
Section 124(A) of the Indian Penal Code defines sedition as an offense
committed when any person by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the government
established by law in India. Disaffection includes disloyalty and a feeling of
enmity.
Sedition is a non-bailable offense. Punishment under Section 124(A) ranges
from imprisonment up three years to a life term, to which fine may be added. A
person charged under this law is barred from a government job and has to live
without a passport.
Supporters say that the sedition law deters anti-national, secessionist, and
terrorist activities. Opponents say that;

 Section 124(A) is a relic of colonial repression and is not democratic.

 Dissent is a part of Article 19(1)(a) and needs an expansive scope.
 Terms in Section 124(A) like 'disaffection' are vague and can be misused.

In a landmark judgment in the Kedar Nath Singh vs The State of Bihar case
(1962), a five-judge bench of the Supreme Court upheld sedition law as
Constitutional. The Apex court held that a citizen has a right to say or write
whatever he likes about the Government, or its measures, by way of criticism or
comment, so long as he does not incite people to violence against the
Government established by law or with the intention of creating public disorder.
The Supreme Court clarified that the purpose of the crime of sedition was to
prevent the Government established by law from being subverted because the
continued existence of the Government established by law is an essential
condition of the stability of the State".
In 1979, India ratified the International Covenant on Civil and Political Rights
(ICCPR) with which sedition law is incompatible.

Article 19 (1)(g)
It gives citizens the Right to Practise any Profession, or to carry on any
Occupation, Trade, or Business.
The Profession is based on skills and knowledge. For example, doctor, engineer,
etc. The Occupation is what a person does for his living. Trade is the buying
and selling of goods and services. Business is any organized economic activity.

Section 144
Section 144 of the Code of Criminal Procedure (CrPC) (1973) enables an
executive magistrate to issue orders to prevent and address urgent cases of
apprehended danger or nuisance. The magistrate can order restrictions on
movement, carrying arms, and assembling unlawfully. Generally, assembly of
three or more people is prohibited under Section 144.
The order is to prevent danger to human life, health, or safety, or a disturbance
of the public tranquility, or a riot. The order lasts for a maximum of two months
and may be extended up to six months. The power under Section 144 Criminal
Procedure Code (CrPC), being remedial as well as preventive, is exercisable not
only where there exists present danger, but also when there is an apprehension
of danger.
An aggrieved individual can approach the High Court under Article 226 and the
Supreme Court under Article 32 by filing a writ petition if his Fundamental
Rights are at stake.
In the Anuradha Bhasin case (2020), the Supreme Court held that an order
passed under Section 144 (CrPC) should state the material facts to enable
judicial review. The power should be exercised in a bona fide and rea sonable
manner, and the same should be passed by relying on the material facts.
Repetitive orders under Section 144 (CrPC) would be an abuse of power. The
Court further stressed that principles of proportionality should be used and the
least intrusive measure applied.

ARTICLE 20
Protection in Respect of Conviction for Offenses

No person shall be convicted of any offense except for violation of the law in
force at the time of the commission of the act; nor be subjected to a penalty
greater than that which might have been given under the law in force at the time
of the commission of the offense. If a law is made in violation of the principle
mentioned above, it is invalid. Thus, retrospective criminal legislation is illegal.
No person shall be prosecuted and punished for the same offense more than
once. That is, double jeopardy for the offense committed only once is
unconstitutional.
No person accused of any offense shall be compelled to be a witness against
himself.
Ex post facto Laws (Retrospective Laws) are the ones that retrospectively make
changes in the legal consequences of acts committed prior to the enactment of
the law. Retrospective (Ex Post Facto) criminal law means the following:

 Criminalize actions that were legal when committed;

  Aggravate a crime by bringing it into a more severe category than it was
at the time it was committed;
 Change or increase the punishment prescribed for a crime, or
 Restrict the rules of evidence in order to make a conviction for a crime
more likely than it would have been at the time of the action for which a
defendant is prosecuted.

An 'Ex Post Facto Law' may also decriminalize certain acts or alleviate possible
punishments. For example, by reducing punishment from rigorous
imprisonment to simple imprisonment. If an 'Ex Post Facto Law' gives relief, it
is valid.
In (2010) the Supreme Court in Selvi vs The State of Karnataka case ruled that
the use of a Truth Serum' by police in questioning suspects is illegal and a
violation of their Fundamental Rights in Article 20 (extraction of self-
incriminating evidence is illegal) and Article 21 (the due process must be
followed while denying the Right to Life and Personal Liberty).

ARTICLE 21
Protection of Life and Personal Liberty

No person shall be deprived of his life or personal liberty except according to

the procedure established by law. Eighty-Sixth Amendment Act introduced
Article 21(a) which is the Right to Education. However, it is only an enabling
provision and was made operational by the Government relevant legislation.
The Right of Children to Free and Compulsory Education Act (2009) or the
Right to Education Act (RTE) fleshes out the provisions of the law.

Article 21 and Right to Life and Inferred Rights

Everyone has the inherent Right to Life. It is a natural Right but in the modern
world, it is a basic Human Right that is recognized and protected by law. Article
21 says that no one shall be arbitrarily deprived of his life.
Life is not mere survival and physiological life but life with dignity. It means
the Right to Elementary Edu cation, the Right to Release and Rehabilitation of
Bonded Labor, the Right to Health, and the Right to Clean Surroundings and
Environment.
In the last many decades, the courts have been expanding the scope of the Right
to Life and Personal Liberty. Article 21 has been enriched in a number of cases
to safeguard the rights of different sections of society. In Francis Coralie vs The
Union Territory of Delhi (1981) former Chief Justice of India, P N Bhagwati
said 'the Right to Life includes the Right to Live with Human Dignity and all
that goes along with it, namely, the bare necessities of life such as adequate
nutrition, clothing, and shelter.
In Bandhua Mukti Morcha vs The Union of India (1984) dealing with the
question of bonded laborers. The Supreme Court observed that it is the
Fundamental Right of everyone to live with human dignity, free from
exploitation.
Over the years, the Supreme Court expanded the scope of the Right to Life to
include many rights in it like the following:

 The Right to Elementary Education (Mohini Jain vs The State of

Karnataka case 1992 and the Unnikrishnan case 1993),
 The Right to Livelihood (Olga Tellis 1985).
 The Right to Life with Dignity (Maneka Gandhi case 1978). It was
further augmented in the Shayara Bano 2018, Sabarimala 2018, and
Adultery 2018 judgments.
 Bonded Labor should not only be identified and released but must be
suitably rehabilitated (Neerja Choudhary vs State of MP 1984).
 In Visakha vs State of Rajasthan (1997), the Right against Sexual
Harassment was read into the Right to Life.
 The Right against Honor Killing.
 The Right against Lynching.
 The Right to Clean Surroundings; Right to Privacy, and Right to Health.
 The Right to Sleep is a part of the Right to Life (Baba Ramdev Case
2011).

The Right to Personal Liberty broadly consists of the freedom of the individual
to pursue the physical, mental, ethical and spiritual goals of life without being
unduly interfered with by any outside agency, including the State. Personal
Liberty means a person's right not to be subjected to imprisonment, arrest, or
other physical coercion in any manner except in line with the law. The Right to
Personal Liberty as it evolved in India through many judicial rulings, includes;

 The Right to Privacy

 The Right to Travel Abroad
 The Right to Free Legal Aid
 The Right to Marry a Person of One's Choice
 The Right to Speedy Justice
 The Right to Fair Trial
 The Right to Bail
 The Right Against Handcuffing
  The Right Against Solitary Confinement
 The Right Against Custodial Death
 The Right Against Public Hanging
 Doctor's assistance

Euthanasia

Euthanasia, also called mercy killing, is an act of painlessly putting to death

persons suffering from a severe ly painful and incurable disease or allowing
them to die by withholding treatment or withdrawing artificial life-support
measures.
Passive Euthanasia involves the withdrawal of treatment or food which will lead
to death. Active Euthanasia involves killing by injection of poison in similar
conditions.
In 2011, the Supreme Court while responding to the plea to end the life (mercy
killing or Euthanasia) of Aruna Shanbaug, who was sexually assaulted and
attacked and was driven into a vegetative state, allowed Passive Euthanasia in
India. In 2014, the matter was referred to a larger bench by the Supreme Court.
The 5-judge verdict was delivered in 2018.
It legalized Passive Euthanasia by means of the withdrawal of life support to
patients in a permanent vegetative state. It involves the notion of 'Next Friend'.
A Next friend is a person who represents another person who is under disability
or otherwise unable to maintain a suit on his or her own behalf and who does
not have a legal guardian.
It permitted living will and Passive Euthanasia as a part of the Right to a
Dignified Life. A Living Will is also called an advance healthcare directive and
is a legal authorization in which a person states what actions should be taken for
his health if he is no longer able to make decisions for himself because of illness
or incapacity. It has no power after death.

Article 21 and Right to Reputation

The Supreme Court in Subramanian Swamy vs The Union of India (2016)
upheld the constitutional validity of the criminal defamation laws (Sections 499-
502) of the Indian Penal Code (IPC) ruling that they are not in conflict with the
Right to Free Speech. The Apex court ruled that the Right to Dissent does not
mean an unfettered right to damage a reputation. One is bound to tolerate
criticism, dissent, and discordance but is not expected to tolerate a defamatory
attack. The court said that the reputation of a person is an integral part of the
Right to Life granted under Article 21 of the Indian Constitution.
The Criminalization of defamation meant that defamation is an attack on
society. The justification according to the Apex court lies in the fact people
work hard and build a reputation in multiple ways and if reputation is damaged,
society suffers as there is no incentive for the public and creative life. Thus,
defamatory behavior is a criminal offense.

Article 21 and Law Against Lynching

The Supreme Court in the Tehseen S Poonawalla vs The Union Of India (2018)
case recommended that the Parliament may make a special law against
lynching, asserting that fear and respect of law constitute the foundation of a
civilized society. It laid down guidelines to the Centre and the States such as
fast-tracked trials, victim compensation, deterrent punishment, and disciplinary
action against lax law-enforcing officials. Currently, lynching is covered under
the Indian Penal Code (IPC).
Lynchings were rampant in the USA against Blacks in the US from 1880-1960.
USA laws define lynchings as a specific crime that has the following properties:

 There must be evidence that a person was killed;

 The person must have met death illegally;
 A group of three or more persons must have participated in the killings;
and
 The killing is carried out in public.

The public nature of the crime is intended to make it an impact crime, to

intimidate not only the person lynched but to make an entire community afraid
of exercising its Constitutional Rights under Articles 14, 19, 21, and more.
These communities are based on-sex, race, caste, or religion, characteristics that
define their identity who is protected in Article 15 of the Constitution of India
with a Fundamental Right to Non-Discrimination.
Based on the US experience, In India, we are in need of a separate law.
Criminal Law is in the Concurrent List and so Centre and States both can make
laws. In 2019, anti-mob lynching laws were made by Manipur, Rajasthan, and
West Bengal.

Article 21 and Right to Privacy

All over the world, the Right to Privacy is read as an essential ingredient of
personal liberty. In recent years, due to welfare considerations, the rise of social
media, technological developments, public order, and national security reasons
and pandemics, the Right to Privacy has been in news. In India, the Constitution
or Statute does not expressly recognize the Right to Privacy.

Privacy involves a person's:

 Right to His Physical Body;

 Right to Informational Privacy; and
 The Right to Privacy of Choice.
Physical Privacy could be defined as preventing intrusions into one's physical
space or solitude for security and personal dignity. There may be safety
concerns, for example, prevention of crime or stalking. It guarantees the Right
of the people to be secure in their persons, houses, unreasonable searches, and
seizures. It also includes the Right to Solitude, Intimacy, and Anonymity.
Solitude is a physical separation from others. Intimacy is the privacy of two or
more persons spending their time together. Anonymity is where an individual
seeks Freedom from Identification, even when in a public space, for example,
on a digital platform.
Privacy involves Confidentiality. It is different from Secrecy. Secrecy is of two
types; illegal acts being hid den or legal acts being kept away from public
notice. The latter is a part of privacy.
Control over one's personal information is the concept that privacy is the claim
of individuals, groups, or institutions to determine for themselves when, how,
and to what extent information about them is communicated to others.
Informational Privacy is necessary as it is a part of life and personal liberty and
Freedom of Speech and Expression. Also, if personal information is made
public, it can be used to the disadvantage of the person. For example, if a
person's medical records are put in the public domain-Acquired
Immunodeficiency Syndrome (AIDS), Tuberculosis (TB), Covid-19, etc the
person is likely to be stigmatized and ostracised. His social and physical life
may be in danger.
Privacy of Choice involves the dress that a person wears, the food he consumes,
the academic line of edu cation he chooses, the person he befriends, the person
he marries, the reproductive choice of the number of children he has, and so on.
Privacy is essential for life, liberty, and dignity. However, the absolute Right to
Privacy is like all other rights not allowed. What is honored is an individual's
reasonable expectation of privacy. There has to be a careful balancing of the
requirements of privacy with legitimate concerns of the State because privacy is
the terrorist's best friend.
Constitutional Position
 Physical privacy enjoys constitutional recognition in Article 19(1)(d-e) to
move freely throughout the Territory of India, and to reside and settle in
any part of the Territory of India respectively.
 Personal Informational Privacy is relatable to Article 21, and
 The Right to Privacy of Choice is enshrined in Articles 19(1)(a-c), 20(3),
21, and 25 (Right to Religion) of the Constitution.

Telephonic Communications and Right to Privacy

Telephonic Communications have been covered within the Freedoms. The
Right Free Speech and Expression is protected from unauthorized interception
though it can be reasonably restricted. The Indian Telegraph Act (1885) allows
interception of telecommunications only on the occurrence of any 'public
emergency' or in the interest of public safety. Only a competent authority can
permit the interception of telephonic communications if it is in the interest of
sovereignty and integrity of India, the security of the State, friendly relations
with the Foreign States or public order, or for preventing incitement to the
commission of an offense. If any of these conditions is not satisfied, telephonic
interceptions are unconstitutional.
The intercepted materials disclosures are neither prohibited nor can at present
be penalized. However, if the conversations so tapped are private in nature and
have no bearing whatsoever on the functioning of the State, it would ordinarily
be expected from the competent authority to direct that such intercepts are
maintained in absolute secrecy and its disclosure and use are prohibited. Here
the interplay of Public Interest, Right to Privacy, and Right to Information can
be seen and it is necessary to balance the three.

Temporary Suspension of Telecom Services (Public Emergency or Public

Safety) Rules (2017) 

There was no legal framework to govern internet shutdowns till 2017. Rules
were made in 2017 containing details regarding temporary internet shutdowns.
These Rules are called the Temporary Suspension of Telecom Services (Public
Emergency or Public Safety) Rules (2017). They provide for the manner in
which directions to suspend telecom services are to be issued. These Rules were
issued under the Indian Telegraph Act (1885).
The Rules mention that an Order for Suspension of Telecom Services must
contain reasons for the issuance of such directions. Every such Order for
Suspension of Telecom Services is reviewed by a Review Committee. Right to
Privacy and Right to Information
The relationship between the Right to Privacy (Article 21) and Information
(Article 19) is both convergent and adversarial. Both are necessary to empower
the citizens in a democracy and hold the government accountable. But RTI
increases access to information and the Right to Privacy withholds it. The two
need to be harmonized.

Privacy Law: UN and India

Internationally the Right to Privacy has been protected in several conventions.
Universal Declaration of Human Rights (1948) (UDHR) under Article 12
provides that: 'No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, or to attacks upon his honor and
reputation. Everyone has the right to the protection of the law against such
interference or attacks'.

Information Technology (Amendment) Act (2008) added the following two

Sections relating to Privacy:
 Implementation of reasonable security practices for sensitive personal
data or information and provides for the compensation of the person
affected by wrongful loss or wrongful gain.
 Imprisonment for a period of up to three years and/or a fine up to Rs
5,00,000 for a person who causes wrongful loss or wrongful gain by
disclosing personal information of another person while providing ser
vices under the terms of lawful contract.

Juvenile Justice Act 2015 guarantees that 'every child shall have a right to
protection of his privacy and confidentiality, by all means, and throughout the
judicial process'. Juvenile Justice Act makes the child's privacy a Statutory
Right.

Right to Marry
Hadiya case 2018

Hadiya from Kerala, in 2016 was reported to be missing by her father, who
initially filed a police case and then a habeas corpus petition in the Kerala High
Court to trace her. She had converted to Islam and married a Muslim man. In
2017, Hadiya's marriage was annulled by the High Court of Kerala on the
grounds of a report submitted by the National Investigation Agency (NIA) to
the Supreme Court of India (SCI), saying that Hadiya was a victim of
Indoctrination. The Kerala High Court order was challenged in the Supreme
Court of India that in 2018 restored Hadiya's marriage.

Article 21 and Procedure Established by Law and Due Process of Law

As seen above, Article 21 allows the Right to Life and Personal Liberty to be
deprived by the State if a Statutory procedure is followed. The expression
'procedure established by law' means procedure laid down by a legislative act or
Constitution. The procedure established by law in Article 21 implies the
following three elements:

 There must be a law justifying interference with a person's life or

personal liberty.
 The law should be a valid one. For example, in making the law, the
procedure is followed.
 The procedure laid down by the law is binding.

In the Gopalan case (1950), the Supreme Court ruled that it was enough if the
legal procedure was followed and that the courts could not inquire into the
reasonableness of the procedure. It was overturned when the Supreme Court in
the Menaka Gandhi case expanded the scope of judicial review in the protection
of Article 21 applied the American Jurisprudence the principle of due process of
law to restrictions on Article 21 based on the following arguments.

 Article 19 and 21 cannot be separated and understood as water tight

compartments and the same criteria of reasonableness as in Article 19
must be applied for Article 21 too.
 Merely following the procedure established by law is not enough. The
courts have the Right to Review and Question the Reasonableness of Law
itself.
 Restrictions must be reasonable, just, and fair and should not be arbitrary.
The procedure established by law is a part of and is subject to the wider concept
of due process.

Due Process of Law

Rule of Law requires that law has to be fair and reasonable to be able to protect
life, liberty, and dignity. Not only should the procedure but also the substance
should be fair and reasonable. This is the essence of the expression 'Due Process
of Law' as it obtains in the USA. It is discussed in the context of the protection
of the Right to Life, liberty, and property. In the USA, the Supreme Court
scrutinizes the law as it is made and implemented to ensure that 'Due Process' is
followed. Otherwise, it is nullified. When a government harms a person without
following the exact course of the law, it constitutes a violation of 'Due Process'
and offends the 'Rule of Law
Due Process is the legal requirement that the State must respect all Legal Rights
that are owed to a person while limiting his Freedoms. Due Process balances the
power of law of the land with the individual person and his Rights.
The constitutional guarantee of due process of law prohibits all levels of
government from arbitrarily or unfairly depriving individuals of their basic
Constitutional Rights to Life, Liberty, and Property
The Procedural Due Process sees if the law is clearly written and whether it
grants the:

 Right to a Fair and Public Trial

 Right to be Present at the Trial
 Right to an Impartial Jury
 Right to Self-Defense and so on.

The Substantive Due process can be the basis for pronouncing the law
unconstitutional if the law-making agen cy has no power to make the law,
disproportionate punishment is given; retrospective application of Penal Lawy
is made; vulnerable Sections are not shown sufficient consideration, and
children are treated like adults in Penal Laws, etc.

ARTICLE 22
There are two types of detention that the State can make:
When a person already has committed an offense and there is adequate proof of
it. When a person has to be prevented from committing an offense it is called
Preventive Detention. Article 22 deals with both types. It lays down safeguards
against the arbitrary use of power. The provisions of Article 22 can be broadly
divided into three parts:

 Rules and Safeguards for ordinary detention;

 Exceptions to Safeguards, and
 Safeguards in relation to Preventive Detention.

The first part of the Article grants certain rights against arbitrary arrest and
detention to all people. The second part says that the rights are not given to
Enemy Aliens and those who are put under Preventive Detention.
The rights against arbitrary arrest in ordinary detention are:

 Right to be informed of the grounds of arrest;

 Right to consult, and to be defended by a legal practitioner of his choice,
and
 Right to be produced before the nearest judicial magistrate within 24
hours if detained upon arrest. 24 hours exclude the time necessary for the
journey from the place of arrest to the court of the magistrate; and no
such person shall be detained in custody beyond the said period without
the authority of a magistrate.

The rights mentioned above are not available when a person is detained under
preventive detention law. There are specific Safeguards for preventive detention
as follows:

 Communicate to such person the grounds on which the order has been
made unless such disclosure is against the public interest.
 Detention beyond three months is possible only when an Advisory
Board consisting of persons who are/or have been/or are qualified to be
appointed as Judges of a High Court has endorsed.
 Give the detainee the earliest opportunity of making a representation
against the order.

It is noteworthy that for a preventive detainee, there is no Right to Consult and

to be defended by, a legal practitioner of his choice. There is no time limit for
making a representation against the order. The reason is that, in preventive
detention cases, the collection of evidence to justify detention takes time.
The Parliament may allow detention for more than 3 months in the laws that it
makes under Article 22. The following laws make room for such relaxation:
National Security Act (NSA), Conservation of Foreign Exchange and
Prevention of Smuggling Act (COFEPOSA), and Prevention of Terrorism Act
(POTA) have a provision to detain beyond 3 months.
Preventive Detention Laws in India
Entry 9 of List I of the Constitution allows the Parliament to enact Preventive
Detention Laws for reasons connected with the security of a State, the
maintenance of public order, the maintenance of supplies and services essential
to the community, or persons subjected to such detention.
Entry 3 of List III of the Constitution of India allows the Parliament and State
Legislatures to pass Preventive Detention Laws in times of peace for the
maintenance of public order, or maintenance of supply and services essential to
the community.

Some Preventive Detention Laws in India

 Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act (COFEPOSA) National Security Act (NSA)
 Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act (PBMSECA)
 Unlawful Activities (Prevention) Act (UAPA)

ARTICLE 23
Article 23 of the Indian Constitution explicitly prohibits and criminalizes human
trafficking and forced labor. Begar is described as labor or service which a
person is forced to give without receiving any remuneration for it. It is also
known as 'Debt Bondage'. Forced labor is working for less than minimum wage,
according to the Apex court.
However, the State can impose compulsory service for a public purpose without
any discrimination grounds only of religion, race, caste, or class,
Legislations against human trafficking are the following

 Immoral Traffic Prevention Act (ITPA) 1956;

 Bonded Labour System (Abolition) Act 1976; and
 Juvenile Justice (Care and Protection) Act 2000.

ARTICLE 24
It bans Child Labor. It says: 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. It is an enabling provision like some other Fundamental Rights
and needs legislation to come into force.
The Child Labour (Prohibition and Regulation) Act (1986) is the legislation to
check child labor. The Child Labour (Prohibition and Regulation) Amendment
Act (2016) strengthens it.

ARTICLE 25
It grants the Right to Religion of One's Choice and Freedom of Conscience
which is the Right to Follow One's Own Beliefs in matters of Religion and
Morality. Article 25 says: Subject to public order, morality, and health, all
persons are equally entitled to Freedom of Conscience and the Right to Profess,
Practise, and Propagate Religion Freely.
The Government can make laws for regulating or restricting any economic,
financial, political or other secular activity which may be associated with
religious practice; providing for social welfare and reform or the throwing open
of Hindu Religious Institutions of a public character to all classes and sections
of Hindus Article 25(2)(b) uses the term 'Hindus' for all classes and sections of
Hindus, Jains, Buddhists, and Sikhs as they have emanated from the Hindu
religion.
(The wearing and carrying of kirpans shall be deemed to be included in the
profession of the Sikh religion).

Limitations on Religious Freedom

The limitations of Article 25 are of three types:

 Public order, morality, and health;

 Other provisions of Part III of the Constitution; and
 Matters related to social reforms.

"Public order' means public peace, safety, and tranquility. The other limitation
is 'morality' which is discrimination between Good and Bad. Health
considerations can be invoked if a religion refuses vaccination; asks its
followers to go on fast excessively and so on. The Haryana Legislature
disqualified persons having more than two children from holding panchayat
posts. It was challenged in the High Court on grounds that it was against the
personal laws of Muslims. The High Court upheld the law on grounds of health
for women.
The Temples may be thrown open to all Hindus which was not the case earlier
as some sections were not allowed. It is a measure of social reform. A person
should exercise his religious freedoms while respecting the Fundamental Rights
of others. For example, the Right to Propagate does not include the Right to
Convert others as it means the violation of their Right to Religious Freedom.
One's practice of religion cannot go against another person's Fundamental
Rights. It is often seen in religions denying rights to women entry to religious
places; property; education, and so on.
The State is empowered to regulate secular activities associated with religious
practices with the object of bringing about social reform: activities of an
economic, commercial, or political character.

Conversions
The people of India are given the Freedom of Conscience and the Right to
Freely Profess, Practise, and Propagate religion subject to public order,
morality, health, and so on-Article 25(1).
There has been a debate about whether Article 25(1) can be understood as
granting to the people the Right to Convert another person to one's own religion.
But the Constitution bench of the Supreme Court, in Rev Stanislaus vs The
State of Madhya Pradesh case (1977) ruled that Article 25(1) does not give the
Right to convert but only the Right to Spread the tenets of one's own religion.
The substance of the judgment is:

 Article 25(1) gives the Freedom of Conscience to all religions and not to
one particular religion.
 The Right to Convert another person is a violation of his own Freedom
of Conscience. What is freedom for one is freedom for the other in equal
measure.
 If the conversions are permitted, they may be indulged in by every
religion and the result is bound to be chaos and destabilization.

The Supreme Court delivered the verdict about the legislation made in Madhya
Pradesh and Orissa to outlaw conversions based on force, fraud, and allurement
that exploit the vulnerability in the social situation
Thus, only voluntary conversions are valid in India.
Some States, in India, have passed Anti-Conversion Laws under Public Order
which is in List-II (State list) as religion is not in any of the three Lists in the
Seventh Schedule.

The Doctrine of Essentiality

In the Shirur Mutt case (1954), the Apex court laid down the Doctrine of
Essentiality which says that some practices essential to religion others are not.
essential features believed to agree with the Constitutional values in India.
However, in that ruling, it left it to the religious organization to decide for itself
what is essential to the religion and ruled out any authority of an outside agency
in the matter. Later, the court took over the function to spell out what is
essential to religion with reference to the Constitution.
Any religious practice has three types of practice:

 Practices that are compatible with the Constitution and its values like
gender equality, non-violence, etc.
 Practices that are not related to the Constitution offering of food to the
idol, prayers at a certain time. clothes to wear, etc.
 Practices which go against the Constitution like an animal and human
sacrifice.

The Courts uphold the first set of practices; leave the second to the religion
itself, outlaw the third. The Apex court applied the principle in Ismail Faruqi vs
The Union of India (1994) when the Centre's acquisition of the disputed site in
Ayodhya was challenged. The bench ruled that a mosque was not essential to
the practice of Islam because Muslims could offer namaz anywhere. It causes a
debate as to whether the court can assume the role of arbiter in matters to do
with faith.

Fundamental Rights and Personal Laws

Personal Laws relating to marriage, divorce, adoption, inheritance, etc. In India,
people belonging to different religions and faiths are governed by different sets
of Customary and Statutory Laws in respect of matters relating to family affairs,
i.e., marriage, divorce, succession, adoption, etc. like:

 The Indian Divorce Act (1869)

 The Indian Christian Marriage Act (1872)
 The Indian Succession Act (1925)
 The Child Marriage Restraint Act (1929)
 The Parsi Marriage and Divorce Act (1936)
 The Dissolution of Muslim Marriage Act (1939)
 The Special Marriage Act (1954)
 The Hindu Marriage Act (1955)
 The Foreign Marriage Act (1969)
 The Muslim Women (Protection of Rights on Divorce) Act (1986)
 Muslim Women (Protection of Rights on Marriage) ordinance (2018).
Those who do not want to be governed by Personal Laws but want general laws
to apply can register their marriage under the Special Marriage Act (1954).
Hindu Marriage Act (1955) codifies customary law prevalent among Hindus. It
applies to Hindus and also to Buddhists, Sikhs, Jains, and also those who are not
Muslims, Christians, Parsis, or Jews by religion. The Act does not apply to
members of any Scheduled Tribes (STS) unless the Central Government by
notification in the Official Gazette otherwise directs.
Judiciary is divided about whether the law can regulate faith. The point of view
that says that personal laws go against the Fundamental Rights is based on the
following:

 Rule of Law
 Right to Equality (Article 14)
 Prohibition of Gender-Based Discrimination (Article 15)
 Protection of Life with Dignity (Article 21)
 Right to Freedom of Religion (Article 25) subject to social reform.

Those who say that personal laws are compatible with the Fundamental Rights
quote the following:

 Women can have separate laws under Article 15.

 Article 25 gives Freedom of Religion.
 It is also argued that Freedom to Manage Religious Affairs-Article 26(b),
also provides support for personal laws.
 The Constitution protects Personal Laws under Article 29(1), which
guarantees protection of the cultural interests of minorities.

Shayara Bano Case (2017)

Triple Talaq is a form of Islamic divorce, especially among adherents of Hanafi
Sunni Islamic schools of juris. prudence. It permits any Muslim man to legally
divorce his wife by saying Talaq (Arabic for 'divorce) three times oral or
written. There has to be a time period within which it has to be done otherwise
it is invalid. Some have done it in one breath. It is called instant Triple Talaq. It
is controversial. Those questioning the practice have raised issues of justice,
gender equality, human rights, etc.
In 2017, the Supreme Court deemed instant Triple Talaq (Talaq-Ebiddah)
unconstitutional in a case called Shayara Bano vs The Union of India and
Others. The five-judge bench examined whether instant Triple Talaq had the
protection of the Constitution-if this practice is safeguarded by Article 25(1)
that guarantees the Fundamental Right to Profess, Practice, and Propagate
Religion. The Court also had to establish whether or not instant Triple Talaq
was an essential feature of Islamic belief and practice.
The majority ruling invalidated it based on Article 14 and life with dignity in
Article 21. The Court based its ruling on Article 13 says that any law violative
of the Fundamental Rights is null and void. The Muslim Personal Law (Shariat)
Application Act (1937) that deals with marriage, succession, inheritance
contains instant Triple Talaq and thus becomes invalid to that extent.

However, there is still some ambiguity about whether Personal Laws are 'Laws
that can be subjected to their compliance with the Constitutional ideals of
equality, non-discrimination, and dignity

ARTICLE 26
Freedom to Manage Religious Affairs

Subject to public order, morality, and health, every religious denomination or

any section thereof shall have the Right:

 To establish and maintain institutions for religious 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 the law.
The establishment of an educational institution comes within the meaning of the
expression Charitable Purpose' Article 25(1) and Article 26 are subject to public
order, morality, and health. Article 25(1) grants the freedom to individuals
while Article 26 provides for groups, both majority, and minority-every
religious denomination, or any section thereof, to exercise the Rights
complementarily.
Both are complementary. To Profess and Propagate, there is a need for
educational, charitable, and other institutions.
There is an argument that Article 26(b) conflicts with Article 25. The reason is:
Article 25 gives the Right to Pray for all. Article 26 gives a religious group the
Right to Manage its Own Affairs in Matters of Religion. One interpretation of
Article 26(b) is that it can deny Rights to Women to enter religious places. But
the Apex court ruled in the Sabarimala case in (2018) that Article 14 that
provides equality is a part of the 'Golden Triangle' and prevails over other
rights.
ARTICLE 27
No person shall be compelled to pay any taxes for the promotion or
maintenance of any particular religion. The Supreme Court (2011) upheld the
constitutional validity of Central assistance to subsidize airfare for Haj pilgrims.
The Governments incur some expenditure for the Kumbh Mela, Mansarover,
etc. Similarly, some State governments provided facilities to Hindus and Sikhs
to visit temples and gurdwaras in Pakistan.
The reason for these schemes to be considered legal is that the government is
not collecting any specific tax for the promotion of any particular religion. The
cost is being incurred from the Consolidated Fund of India or of a State which is
a common pool. Also, all religions are benefiting from such schemes.

ARTICLE 28
No religious instruction shall be provided in any educational institution wholly
maintained out of State funds. Nothing in clause (1) shall apply to an
educational institution which is administered by the State but has been
established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.
No person attending any educational institution recognized by the State or
receiving aid out of State funds shall be required to take part in any religious
instruction unless such person or, if such person is a minor, his guardian has
given his consent thereto.

Thus, there are three types educational institutions that are dealt with in Article
28:

 Wholly maintained by State funds,

 Established under any endowment or trust but administered by the State,
and
 Recognized by the State or receiving aid out of State funds.

The three are treated differently under Article 28. In educational institutions
wholly maintained by State funds, clause (1) prohibits religious instruction
entirely. Clause 2 allows religious instruction. Clause (3) allows it conditionally
with parent/guardian permitting. The fourth class of institutions is entirely
private and the government does not even recognize them. They may impart
religious instruction.
The Supreme court clarified that the term religious instruction in Article 28(1)
has a restricted meaning Teachings of customs, ways of worship, practices, etc
and rituals cannot be allowed in educational institutions. However, moral
teaching is allowed
It is important to note that State funds can be granted to do research on religion
and it does not constitute a violation of Article 28(1).

Cultural and Educational Rights

Protection of Interests of Minorities

Articles 29 and 30 of the Constitution are given under the Title "Cultural and
Educational Rights'. Both Articles protect and guarantee certain collective rights
for minorities to help them preserve their language, religion, and culture. These
rights also contribute to preserving the rich diversity of the country. Article 30
mentions the word minority and includes only religious and linguistic
minorities. However, the definition of minority is not found in the Article.

ARTICLE 29
Any section of the citizens residing in the Territory of India or any part thereof
having a distinct language, script, or culture of its own shall have the Right to
Conserve the same.
No citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language, or any of them.
Article 29 aims at ensuring that all languages and cultures in India grow. The
culture can be ethnic, regional, or religious. In order for cultures to be
maintained, members of the culture who are Citizens of India should have
access to education. Thus, Articles 29(1-2) are to be read together as they are
complementary. It is noteworthy that one of the grounds on which
discrimination is prohibited in Article 29(2) is language as otherwise, the right
is defeated.
Article 29(2) and Article 15(1) both Articles prohibit discrimination. But the
scope of Article 15(1) is wider and the grounds of discrimination are more. It
does not include the criterion of language. Article 29(2) bars educational
discrimination on grounds that include language. It is necessary because
education is for the conservation of culture.

ARTICLE 30
Right of Minorities to Establish and Administer Educational Institutions

All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
Clause (A) in making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority the State shall ensure that the amount fixed will be on market lines.

The State shall not, in granting aid to educational institutions, discriminate

against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language Clause (A)
was inserted in the Article during the (Forty-Fourth Amendment) of the Indian
Constitution in 1978. The primary objective is to ensure that acquisition of
educational property of minority institutions should be based on full
compensation. It is relatable to Article 26 where the right to set up charitable
(including educational) institutions is granted.
Both linguistic and religious minorities can set up educational institutions. They
may take government aid or may not. In both cases, there is room for
government regulation for efficiency, quality of instruction, discipline, health,
sanitation, and the like. Such regulations are no restrictions on the substance of
the right which is guaranteed. They secure the proper functioning of the
institution, in educational matters.

Complementary Relation Between Article 29 and 30.

Articles 29-30 are connected. Article 30 is necessary for the fulfillment of
Article 29. Article 29(1) is general protection given to sections of citizens to
conserve their language, script, or culture. Article 30 is a special right to
minorities based on religion or language to establish and administer educational
institutions of their choice. While Article 29(1) confers right on any section of
the citizens which is interpreted to include the majority section. Article 30(1)
confers the right only on minorities based on religion or language. While Article
29(1) is concerned with the Right to Conserve Language, Script, or Culture,
Article 30(1) deals with the Right of Minorities to establish and administer
educational institutions of their choice that fulfills their rights under Article 29.

TMA Pai Foundation and Others vs The State of Karnataka and Others
Case (2002)
In TMA Pai Foundation and Others vs The State of Karnataka and Others case
2002, the Apex court ruled that:
 The Right to Administer Minority Educational Institutions (MEIS) is not
absolute.
 The State can apply regulations to aided and unaided MEIs to achieve
educational excellence.
 Aided MEIs should admit a certain percentage of non-minority students
 The percentage of non-minority students to be admitted to an aided MEI
to be decided by the State or university. 
Minority for Article 30 is to be defined for each State because minorities differ
from State to State. Hindus who make up the majority at the national level (82%
of the Indian population) are a minority in four States (Punjab, Nagaland,
Mizoram, and Meghalaya).

Lingayats
Lingayatism is a Shaivite religious tradition in India in the State of Karnataka.
Lingayats are a Hindu Sect and have been demanding that they be recognized as
a minority religious group. The Karnataka State Minorities Commission formed
a seven-member panel to study the demand. In 2018, based on the Nagamohan
Das committee recommendation, the Karnataka government approved the
separate religious status. The benefits that the Lingayats get are: RTE quota
does not apply to them, and under Article 30 they get additional benefits.
Lingayats are, however, not a national minority.

ARTICLE 31
Article 31 was the Right to Property and was originally a Fundamental Right,
but was repealed in 1978 by the (Forty-Fourth Amendment) Act and made into
a Constitution Right-Article 300(A). The reason is that when socialism was
made into a Preambular value in 1976 by the (Forty-Second Amendment) Act,
retaining the Right to Property as a Fundamental Right was seen to be
contradictory
Not being a Fundamental Right, the aggrieved person cannot approach the
Supreme Court directly

Article 31(A, B, C)
These Articles are covered under 'Saving of Certain Laws in the Constitution of
India. It means these pro visions are saved from being declared null and void for
their conflict with the specified Fundamental Rights These Articles are added to
the Constitution by two amendment acts: First in 1951 and Twenty-Fifth in
1971.

Constitution (First Amendment) Act (1951)

The Constitution (First Amendment) Act (1951) added to the Constitution

Articles 31(A-B) along with the Ninth Schedule. The need for the amendments
was seen for the following reasons:

 For redistributive policies like conferring ownership on the tiller, the

abolition of zamindars, giving security of tenure to tenants, fixing a
ceiling limit on personal holding of agricultural land, and redistributing
the surplus land among the landless.
 In urban reforms, measures were made to provide affordable housing to
people, redevelop slums, control rents, acquire property, and impose a
ceiling on urban land ownership.
 To regulate private enterprise and nationalize sick industries.

When the above egalitarian aims were sought to be enforced, Articles 14,
1901XX0, and 31 came in the way. Therefore, the Constitution (First
Amendment) Act (1951) was made to overcome the limitation.

Article 31(A)
Saving of laws providing for the acquisition of estates, etc. If a law is made for
implementing agrarian reforms like abolition of zamindari, right to the tiller,
redistribution of land, etc, it cannot be struck down by the courts on grounds
that it is inconsistent with any of the rights conferred by Articles 14, or 19.
Such a law can be made by the Centre or the States. The protection of Article
31(A) (1) applies to a law made by a State Legislature only if it has been
reserved for the President's consideration and has received his assent.

Article 31(B)

Validation of certain Acts and Regulations. None of the Acts and Regulations
specified in the Ninth Schedule shall be deemed to be void on the ground that
such Act, Regulation, or Provision is inconsistent with the Fundamental Rights.

Ninth Schedule

The Ninth Schedule flows from Article 31(B) which was introduced by the
Constitution (First Amendment) Act (1951) to ensure certain laws remain valid
even if they are inconsistent with the Fundamental Rights. Once a particular law
is included in the Ninth Schedule it becomes fully protected against challenge in
a Court of Law for violating any Fundamental Right. It can be the State Law or
the Central Law. However, such laws have to be placed in the Ninth Schedule
by amending the Constitution. In one amendment, more than one law can be
placed. Furthermore, it acts retrospectively to confer validity on Acts and
Regulations which have been previously declared void under Article 13 by
courts. As a result, any legislation which is previously declared void by the
Supreme Court on the ground that it violated any of the Fundamental Rights,
receives protection if such void legislation is introduced in the Ninth Schedule
by the Constitutional Amendment.
Objectives of ninth schedule are broadly:

 Agrarian Reforms Laws

 Abolish the zamindari system and usher in socialism
 Bring the weaker section of the society into the mainstream
 Promote social change towards the constitutional goal of egalitarianism
 Urban Land Reforms
 National Security
 Social Justice

Some examples are of laws in the Ninth Schedule are:

 The industries (Development and Regulation) Act (1951);

 The Monopolies and Restrictive Trade Practices Act (1969), and
 The Foreign Exchange Regulation Act (1973).
In 1994, the Tamil Nadu Backward Classes, Scheduled Castes/Tribes
(Reservation of Seats in Educational Institutions and of Appointments or Posts
in the Services under the State) Act (1993), was included in the Ninth Schedule
of the Constitution through the (Seventy-Sixth Constitution Amendment). The
Tamil Nadu law gave 69% reservation. Placing it in the Ninth Schedule was
done to protect the law from being invalidated by the Apex court as it was seen
to violate the 50% limit on the caste-based reservation that was set in the Indira
Sahaney case (1992).
There is no mention as to what type of laws can be placed in the Ninth
Schedule.
Waman Rao Case (1981) verdict of the Apex court stated that any amendments
or additions to the Schedule after the Keshavananda Bharti Case (1973) verdict
would have to be examined with respect to their compatibil ity with the basic
structure of the Constitution. The same was reasserted in the IR Coelho case
(2007). That is, basic features cannot be negated by law in the Schedule.
Presently, the Schedule consists of about 284 Acts. Most of them are related to
the land ceiling and are passed by the State Legislatures. They are placed in the
Ninth Schedule by the Parliament by Constitution Amendment Act.
The Ninth Schedule was conceived as a novel and innovative way of ensuring
that parliamentary legislation of a progressive kind is not caught in litigation
and delay.
Questions raised by the frequent recourse to the Ninth Schedule:

 It is an escape from judicial review.

 Judicial review is a basic feature of the Constitution and it cannot be
abridged. To insert in the Ninth Schedule an Act which is nullified by the
Apex court is to belittle the basic structure of the Constitution in a
colorable way.
 Its impact on the separation of powers and checks and balances if judicial
review is denied.

An important aspect of the controversy around the Ninth Schedule pertains to

the relationship between the Parliament and the Judiciary-the conflict between
the representative legislature that needs to respond to the needs of the people
and the judicial insistence on universal rights and due process.

Differences between Article 31(A) and 31(B) are:

 Article 31(A) is primarily for agrarian reform. Article 31(B) has no such
limitation.
 Article 31(A) has protection only against two Fundamental Rights-
Articles 14 and 19.
  Article 31(B) has immunity against all Fundamental Rights.

Article 31(C)
The (Twenty-Fifth Amendment) of the Constitution (1971) added a new clause,
Article 31(C), to the Constitution. Article 31(C) says that a law giving effect to
the policy of the State towards securing the principles specified in clause (b) or
clause (c) of Article 39 shall be deemed to be void on the ground that it is
inconsistent with any of the rights conferred by Articles 14 and 19.

Article 31 and Right to Property

Originally the Constitution provided the Right to Property as a Fundamental

Right in Article 19(1)D) and Article 31. The Right to Property came under
pressure from the Parliamentary laws and from amendments to Article 31 by
way of the addition of Articles 31(A, B, and C).
Finally, (Forty-Fourth Amendment) Act (1978) deleted Article 31 as a
Fundamental Right. It now appears as Article 300(A). The difference is that it is
only a Constitutional Right and not a Fundamental Right any longer. The
objective of initially limiting and later removing the Right to Property as a
Fundamental Right is to implement socialistic policies to benefit the have-nots.

ARTICLE 32
Right to Constitutional Remedies

Rights without remedies are merely formal and lack force. Therefore, the
Constitution contains a Fundamental Right that is meant to remedy violations of
all Fundamental Rights. Article 32 was incorporated in the India’s Constitution
to assure that the citizens and individuals are not subject to unreasonable denial
of Fundamental Rights. It lays down constitutional remedies. Any individual,
whose Fundamental Right has been violated by the State or a private party, has
the right to approach the Supreme Court of India directly for enforcement of the
rights. Dr Bhimrao Ramji Ambedkar, who was the chairman of the drafting
committee of the Indian Constitution, rightly called this Article the very soul of
the Constitution and the very heart of it. Recognizing the importance, the
provision of Constitutional Remedies itself has been included as a Fundamental
Right. By including 32 in the Fundamental Rights, the Supreme Court has been
made the protector and guarantor of these Rights.
Article 32 Remedies for enforcement of rights conferred by this Part:

 The Right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
 The Supreme Court shall have the power to issue writs, including writs
like-habeas corpus, mandamus. prohibition, quo warranto, and certiorari
for the enforcement of any of the rights conferred by this Part.
 Without prejudice to the powers conferred on the Supreme Court by
clauses (1 and 2), the Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

Article 32 has writs that can be issued by the Supreme Court in Défense of the
Fundamental Rights. Writs were a part of English law. They are known as
prerogative writs because originally, they were the prerogative of only the
British Crown also, because they were issued in the name of the Crown. In
course of time, they became accessible to the common man. There are five writs
available for restoration of rights.

Habeas Corpus

The Writ of Habeas Corpus is a remedy available to a person who is confined

without legal justification. The words Habeas Corpus mean 'to have the body.
The court issues the writ which has to be obeyed by the detaining authority by
producing the person before the court. Since, setting an illegally detained person
free, facilitates the enjoyment of rights, it is called the 'Great Writ'.
Habeas Corpus protects an individual against arbitrary imprisonment. Under
Articles 32 and 226, any person can move for this writ to the Supreme Court
and the High Court respectively. The applicant may be the prisoner or any
person acting on his behalf.
Habeas Corpus has certain limitations. It is only a procedural remedy; it is a
guarantee against any detention that is forbidden by law, but it does not
necessarily protect other rights, such as the entitlement to a fair trial. If an
imposition such as jail without trial is permitted by the law, then Habeas Corpus
may not be a useful remedy. If the court issues a Habeas Corpus Writ, it does
not mean the person is innocent. It only means that detention is illegal.
The difference between bail and the writ of Habeas Corpus is that the former
wants a release from jail while he may not be questioning the legality of the
detention. The latter challenges the very detention as illegal. Parole on the other
hand is a conditional release from jail of a person who has been convicted and
imprisoned. Parole is granted because of 'good' behavior and that the prisoner
does not pose a threat to society being released from prison before sentence for
a brief time. For Parole, no money/fees need to be paid. For bail, it has to be.

Mandamus
The word Mandamus means 'we command'. The Writ of Mandamus is a
command issued to direct public or semi-public authority commanding him to
discharge a specific official public duty. This writ is used when the inferior
public or semi-public office has refused to discharge its official duty or
undertakes actions beyond its jurisdiction. Mandamus commands activity in the
former case and inactivity in the latter.
The Writ is used for securing judicial enforcement of public duties. It is not
issued if the authority has discretion. That is, the official duty must be a
statutory requirement.
The duty sought to be enforced must have two qualities:

 It must be a public duty.

 It must not be discretionary.

The Constitution, through Articles 226 and 32, enables Mandamus to be issued
by the High Court and the Supreme Court, respectively
Mandamus has less scope compared to Habeas Corpus-while Habeas Corpus
can be issued against the actions of a private person, Mandamus can be issued
only to a public semi-public body.
Mandamus does not lie against the President or the Governor of a State for the
exercise of their duties and power (Article 361) as they work on the advice of
the Council of Ministers. It does not lie also against a private individual or body
except where the State is in collaboration with such a private party.
It is a discretionary remedy and the Supreme Court may refuse if an alternative
remedy exists. Continuing Mandamus is a Writ of Mandamus issued by the
higher judicial bodies-the Supreme Courts and the High Courts in India-in
general, public interest asking the officer or the authority to perform its task
expeditiously and independently under judicial supervision, for preventing a
miscarriage of justice.
The Doctrine of Continuing Mandamus, first introduced in the late 1970s, has
been used in cases of Vineet Narain vs The Union of India (1997). As it
essentially seeks to enable the judiciary to directly control the bureaucracy,
bypassing the political regime, it is both appreciated as a necessary and
desirable judicial intervention; and also criticized for overreach and breaking
the chain of command in a parliamentary democracy where the civil servant is
accountable to the political executive who in turn reports to the Parliament. It
also is seen as weakening the separation of powers.
In a normal Mandamus Writ, the court orders that a certain action be done or
not done and violation carry punishment for contempt of court. In the
Continuing Mandamus, the court undertakes continuous supervision of the
implementation of the judicial writ. For example, in the Vineet Narain vs The
Union of India Case (1997) involving corruption charges against senior political
leaders including the Prime Minister, the Apex court directed the Central
Bureau of Investigation (CBI) to come under the purview of the Apex court
regarding the case and not to take orders from the Union Minister whose
Ministry has the Central Bureau of Investigation (CBI) under its jurisdiction.
It has been applied to cleaning the air around the Taj Mahal and the waters of
the Ganga, and to mitigate travel conditions in commuter trains and the road
surface, traffic, and vehicle conditions, in cities.

Prohibition
A Writ of Prohibition is issued to an inferior court or semi-judicial body
(tribunal), preventing the latter from exercising jurisdiction which not belong to
it. It is generally issued before the trial of the case begins. Prohibition
commands inactivity. Prohibition available only against judicial or quasi-
judicial authorities and is not available against a public officer who is not vested
with judicial functions.

Certiorari

In Latin, it means to be informed of or to be ascertained. Essentially, it is a Writ

issued by a superior court and is directed to one of inferior judicial jurisdiction,
commanding the latter to certify and transfer the record in the particular case to
another court of the semi-judicial body with jurisdiction. The reason is that the
original body does not have the jurisdiction or there are irregularities involved.
The higher court can quash a portion or total of the proceedings that have
already taken place. Certiorari is issued after the proceedings have commenced.
It is a Writ with the same scope as Prohibition. It is issued after proceedings
begin to quash (if necessary) the proceedings and transfer the case to a
competent court. If the judgment has already been given, a Certiorari Writ is
issued to quash it.
The following are the circumstances under which Prohibition and Certiorari are
issued:
  When the judicial body does not have jurisdiction
 Exercises excessive jurisdiction
 Acts based on a law that is itself struck down

Quo Warranto
It means by what authority? The Writ of Quo Warranto enables inquiry into the
legality of the claim which person asserts to a public office and to oust him
from such a position if he is holding it illegally without d credentials. The
holder of the office has to show to the court under what authority he holds the
office. It is issued when

 The office is of public and of a substantive nature;

 Created by Statute or by the Constitution itself, and
 The respondent has asserted his claim to the office.

It can be issued even though she has not assumed the charge of the office. The
fundamental basis of the proceeding of Quo Warranto is that the public has the
interest to see that a lawful claimant occupies a public office.
Que Warranto can be issued against Ministers including the Chief Minister or
the Prime Minister. The challenge is available when there is any fraudulent
information about citizenship, age, education, etc. In other words, membership
of the legislature is under question as the basis for becoming a minister is that
he should be a Member of The Legislature. Appointment to public office can be
challenged by any person whether or not his Fundamental or any Legal Right is
infringed. Thus, there is no need for locus standi

ARTICLE 33
Power of the Parliament to modify the rights conferred by this Part in their
application, etc. The Parliament may, by law, determine to what extent any of
the rights conferred by this Part shall, in their application to,

 The members of the Armed Forces;

 The members of the Forces charged with the maintenance of public order,
 Persons employed in any bureau or other organization established by the
State for purposes of intelligence or counterintelligence, or
 Persons employed in, or in connection with, the telecommunication
systems set up for the purposes of any Force, bureau or organization
 referred to in clauses (a-c), be restricted or abrogated to ensure the proper
discharge of their duties and the maintenance of discipline among them.
The members of the armed forces do not enjoy Fundamental Rights in the same
manner as others, due to the operation of Article 33 of the Constitution.
When a soldier wanted to retain a beard for religious reasons and was denied the
same right by the State, the Supreme Court upheld the action of the State based
on Article 33.
The Supreme Court protected court-martial proceedings from
unconstitutionality by utilizing Article 33. The importance of discipline,
cohesion, and unity within the armed forces is the basis for parliamentary action
based on Article 33.

ARTICLE 34
Restriction on rights conferred by this Part while martial law is in force in any
area.

Martial Law
Conditions of extreme disturbance and disorder may sometimes arise when the
civil authorities, even with the help of the armed forces, are unable to bring the
situation under control. In such cases, Martial Law may be imposed in the
disturbed area.
Martial Law means the supersession of the civil authority by military authority,
whose sole stated object is to restore stability and order, as expeditiously as
possible, to enable the civil authority to resume charge and the functioning of
essential services vital to the community.
Martial Law may also imposed when there is a complete breakdown of civil
administration eg, during an insurrection against the Government. By imposing
Martial Law a military commander assumes the role of Martial Law
Administrator and takes control of the affected area. He may, however, require
the civil authorities to discharge their normal functions under such conditions as
may be prescribed by him. The entire civilian administration is subordinated to
the martial law administrator. A country's constitution has to allow it.
It is different from a military coup which is the replacement of the political
government or monarchical power by the military in an illegitimate way though
with the proclaimed intention of restoration of order. Constitutions do not allow
it.

The Armed Forces (Special Powers) Act (AFSPA)

The Armed Forces (Special Powers) Act (1958) is a law made by the Parliament
which applies only to the Seven States of the North East-Arunachal Pradesh,
Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura. In 1990, the
Parliament passed a similar law to apply to Jammu and Kashmir.
There is a section containing the definitions and three sections that constitute
the essence of the Armed Forces (Special Powers) Act (AFSPA).
Section 3 enables the Governor of the State or the Central government to
declare the whole or part of the State as a 'disturbed area'. Once it is so declared,
armed forces can be used in such areas in aid of the civil power'.

Armed Forces' means the Army, the Air Force, and the Central Armed Police
Forces Central Reserve Police Force (CRPF). Border Security Force (BSF),
Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF).
No time limit has been prescribed for the continuance of the declaration
Once the armed forces are deployed, they will enjoy special powers under
Section 4. Not only superior officers but any 'non-commissioned officer
(includes a jawan) will enjoy such special powers as given below,

 If an order is promulgated and assembly of five or more persons is

prohibited, the officer may, if he thinks it is necessary, fire upon the
person even to the causing of death
 The officer may destroy any shelter or structure from which armed
attacks are likely.
 The officer may arrest, without a warrant, any person against whom the
officer has a reasonable suspicion that he has committed or is about to
commit a cognizable offense and may use such force as may be
necessary to make the arrest.
 The officer may enter any premises, without a warrant, to recover any
person, property, arms, or ammunition and may use such force as may be
necessary.

Section 5 requires that any person arrested shall be brought to the nearest police
station with the least possible delay. The differences from the normal criminal
procedure need to be noted. Latter mandates that the arrested person be brought
before a magistrate while the Armed Forces (Special Powers) Act (AFSPA)
wants him to be brought to a police station. Not within 24 hours, but with the
least possible delay.
Section 6 gives immunity against prosecution. In the case of the Armed Forces
(Special Powers) Act (AFSPA) (1958), the Government of India used article
355 of the Constitution to confer power in the hands of Governors. "Keeping in
view the duty of the Union under Article 355 of the Constitution to protect
every State against internal disturbance, it is considered desirable that the
Central government should also have the power to declare areas as 'disturbed',
to enable its armed forces to exercise the special powers'

Article 35(A)
Article 35(A) was added to the Constitution through a Presidential Order, Le,
The Constitution (Application to Jammu and Kashmir) Order (1954)-issued by
the President of India in 1954, exercising the powers conferred by the clause (1)
of the Article 370 of the Indian Constitution, and with the concurrence of the
Government of the erstwhile State of Jammu and Kashmir.
Following the accession of Jammu and Kashmir (J&K) to the Indian Union in
October 1947, The Maharaja ceded control over the Défense, external affairs,
and communications (the 'ceded subjects") to the Government of India
Discussions for furthering the relationship between the State and the Union
continued, culminating in the 1952 Delhi Agreement, whereby the Governments
of the State and the Union agreed that Indian citizen ship would be extended to
all the residents of the State but the State would be empowered to legislate over
the rights and privileges of the State subjects, who would be called 'permanent
residents. Following the adoption of the provisions of the Delhi Agreement by
the Constituent Assembly of the Jammu and Kashmir, the President of India
issued the Constitution (Application to Jammu and Kashmir) Order (1954),
through which Indian citizenship was extended to the residents of the State, and
simultaneously the Article 35(A) was inserted into the Indian Constitution
enabling the State Legislature to create a class of citizens in J&K called the
permanent residents and define the privileges of the permanent residents in
relation to property, employment, and education
Article 35(A) led to the denial of benefits to non-permanent residents-buying
immovable property, acquiring land applying for government jobs, any kind of
scholarships and aids, and other public welfare projects.
In 2019, Article 35(A) was deleted by a Presidential Order under the power of
Article 370, overriding the (1954) Presidential Order.
FUNDAMENTAL RIGHTS AND NATIONAL
EMERGENCY
Under the Indian Constitution, a national emergency can be imposed by the
President when national security is threatened (Article 352). Such proclamation
impacts the Fundamental Rights in the following way:

Article 358

Article 358 comes into effect immediately after the proclamation of the
National Emergency. Article 19 is automatically suspended when a
Proclamation of Emergency is made on grounds of war or external aggression.
That is, if the proclamation is on grounds of armed rebellion, Article 19 cannot
be suspended under Article 358

Article 359

Article 359 suspends the enforcement of the rights conferred by Part III during
emergencies. It suspends the right to move any court for the enforcement of
such of the Part III rights (except Articles 20-21) as may be mentioned in the
President's order and all proceedings pending in any court for the enforcement
of the rights so mentioned shall remain suspended for the period during which
the Proclamation is in force or for such shorter period as may be specified in the
order. Such order should be laid before each House of the Parliament.
It must be clearly seen that Article 359 suspends the enforcement and not the
right itself. The Constitution amended by the Constitution (Forty-Fourth
Amendment) Act (1978) and it was provided by article 359(1) (A) that Articles
20-21 cannot be suspended when a proclamation of emergency is in operation.
A more detailed presentation is found in the Chapter on National Emergency.

Additional District Magistrate (ADM) Jabalpur

The President of India declared an Emergency on the ground of internal

disturbance (Forty-Fourth Amendment Act replaced with an armed rebellion in
1978 in 1975). Under Article 359 (1), Articles 14, 21, and 22 were suspended in
their enforcement. At that time, before the (Forty-Fourth Constitution
Amendment) Act (1978), Articles 21-22 could be suspended. The High Courts
were approached for issuance of a Habeas Corpus Writ The common grounds
for questioning the detention orders were a violation of the Right to Life and
Liberty under Article 21. The High Courts ruled that judicial scrutiny was
within their purview and granted Habeas Corpus. The Union Government
challenged the High Court decisions in the Supreme Court.
This was the case of Additional District Magistrate (ADM) Jabalpur vs
Shivakant Shukla (1976). The court had to decide whether a writ petition under
Article 226 to enforce Article 21 in case of a detention order was maintainable
during an emergency when the government suspended the said Article.
The case was heard by a five-member Constitution bench. In a ruling of 4:1,
with the dissenting judgment being of Justice Khanna, the Supreme Court held
that since the Presidential order clearly suspended the enforcement of Article 21
under Article 359(1) of the Constitution, no person had any Legal Right to
move the High Court under Article 226 (or the Supreme Court under Article 32)
to enforce any Right to Personal Liberty if detained under the Act.

IMPORTANT CONSTITUTION AMENDMENTS TO FUNDAMENTAL

RIGHTS

Articles 15-16 were amended for the empowerment of the Scheduled

Castes/Tribes and Other Backward Class es communities-the First and Ninety-
Third Amendment Act.
The Right to Property was originally included as a Fundamental Right.
However, the Forty-Fourth Amendment Act (1978) removed it from Part III.
Article 31(C), inserted into the Directive Principles of State Policy by the
Twenty-Fifth Amendment Act (1971) seeks to upgrade the Directive Principles
of State Policy (DPSPs) with reference to Articles 14 and 19 The Right to
Education for 6-14-year-old children was made one of the Fundamental Rights-
Article 21(A), by the Eighty-Sixth Constitutional Amendment (2002).
One-Hundred and Third Constitutional Amendment Act (2019) for
Economically Weaker Section (EWS) reservation.

FUNDAMENTAL RIGHTS: GAINS AND LOSSES

The Fundamental Rights have seen a mixed record since the inception of the
Constitution in 1950: On the one hand, they are expanded by way of

 Article 15 being strengthened with protection to women and other

deprived groups.
 Article 16 being strengthened with protection to deprived groups.
 Article 21 being enlarged with the doctrine of Inferred Rights' leading to
a large group of rights under the Right to Life and Personal Liberty.
  Due process of law under Article 21(A), being adopted in the Menaka
Gandhi case in 1978 to strengthen judicial protection of rights.
 Article 21(A) Right to Privacy was read into Article 21-Personal Liberty.
 Minority protection in the educational sphere being given additional
attention by the amendment of Article 30.

On the other, they have been diluted in the following way

 Protection from Article 13 was removed by the Twenty-Fourth
Amendment Act.
 Pressure from the Directive Principles of State Policies (DPSPs).
 Removal of Right to Property from Part III.

PANDEMIC AND THE FUNDAMENTAL RIGHTS

The lockdown of the country late March 2020 due to the threat to life from
Covid-19 impacted on the people and their Fundamental Rights in multiple
ways. Disaster Management Act 2005 and 1897 Epidemic Diseases Act were
invoked and both have provisions for severe restriction of Fundamental Rights.
The policy of the government is to try to balance various rights like the Right to
Life with the Right to Movement, Privacy, and Business.
Section 144 of IPC, quarantine (isolating people), and social distancing restrict
the Freedom of Movement. Article 19 is eroded. Besides, it has serious
repercussions on the economy which impacts the Right to Do Business in
Article 19(1)(g).
The Right to Assemble being denied affects the production and sale of goods
and services. The Right to Pray under Article 25 as religious places are closed.
The Right to Health which is inferred from Article 21 is also denied when the
hospitals are unable to admit patients and charge exorbitantly
Technology apps for contact tracing were criticized for their denial of the Right
to Privacy. At the same time, the citizens of the country have to discharge their
Fundamental Duties-Article 51(A) to maintain peace, harmony, and the spirit of
brotherhood, especially during the Covid-19 pandemic.
 Directive Principles of State Policy

INTRODUCTION

Fundamental Rights (Part II of the Indian Constitution) discussed are the bedrock of political
democracy with the help of individual rights, they ensure that democracy prevails and the
roots of democracy run deep Fundamental Rights are essential for individual development,
which are essential for an individual to attain full physical, intellectual, moral, and spiritual
development.
Individual Rights can be effectively enjoyed and become meaningful only when social
security and eco nomic well-being are ensured. Directive Principles of State Policy aim at
creating a new socio-economic order to provide a firm foundation for political democracy in
India.
Directive Principles of State Policy are contained in Part IV of the Indian Constitution in
Article 36-51. They are instructions/directions given to all present and future governments in
India-Federal and State governments to make policies and legislation incorporating these
principles. The Directive Principles of State Policy, thus guide public policy.

STATE: LAISSEZ-FAIRE, WELFARE AND SOCIALIST

Depending on the role played by the State, there are the following types:

 Laissez-faire is a French term meaning 'let do, let go, let pass'. It is a form of
economic organization where the markets operate with minimal government control.
It is a minimalist State,
 The Welfare State is one where the responsibility of social welfare rests with the
State. It seeks to give employment to the jobless, remove poverty, provide for social
security, take care of women and other marginalized sections like SC/Ts in India,
ensure distributional justice, and so on.
 Socialist State is where the State owns a part of the economy for the public good
 Communist State where the State owns the entire economy and there is no private
property

The Directive Principles of State Policy provide for the Welfare State

INFLUENCES
The concept of Directive Principles as incorporated in the Constitution of India,
is influenced by various fac Firstly, the Directive Principles of State Policy as
an idea was borrowed from the Constitution of Irel Ireland took them from the
Spanish Constitution.

Secondly, the Government of India Act (1935) contained a set of such

Instruments of Instructions Thirdly, the leadership of the freedom struggle
representing liberal democratic ideals of the west chose to include them in
Indian Constitution as moral guidelines for the public policy of the Welfare
State. That is the Directive Principles of State Policy were intended to help the
Government play a positive role in rebuilding India as a model democracy with
socialist content

Fourthly, contemporary socialist ideas had impacted the framers of the

Constitution. For example, the Directive Principles of State Policy related to
worker welfare, minimization of inequality, etc. Fifthly, the Constituent
Assembly was influenced by the ideas of Mahatma Gandhi like Panchayati Raj
promotion of village industries, etc.

The Directive Principles of State Policy do not always remain moral guidelines.
They may be elevated is the level of rights too as we have seen in recent
decades. As Indian democracy strengthened and the eco grew, the State found
the need and resources to convert some of these Directive Principles of State
Policy ins Fundamental and other Rights. For example, the Right to Education
was made a Fundamental Right in 2002 by the Eighty-Sixth Amendment Act. It
was till then a part of Article 41 which is a Directive Principle of Sta Policy.
Right to Work since 2005 has been a limited legal right-limited to the rural
adults for 100 days each in a year under Mahatma Gandhi National Rural
Employment Guarantee Act (MGNREGA). thus some Directive Principles of
State Policy became Positive Rights. Uniform Civil Code which is a Directive
Principle of Stam Policy under Article 44 is also progressively becoming a
right-Right to Equality and Life with Dignity

The Constitution of India declares that the Directive Principles of State Policy
are "fundamental in the governance of the country' (Article 37). Both the
Legislature and the Executive should apply the Directive Principles of State
Policy while making and implementing policies in social, political, and
economic spheres. Judiciary complements them.

CLASSIFICATION OF DIRECTIVE PRINCIPLES

The Directive Principles of State Policy are very comprehensive in their scope
in include alt all nomic aspects. They guide State activity in political, economic,
social, environmental, educational, culture and international areas. The
Directive Principles of State Policy can be broadly classified into the flowing
categories:
 . Socialistic
 Gandhian
 Social
 International
 Other

The Directive Principles of State Policy and Socialism

Socialism is a worldview in which the Government owns a part of the economy

and makes policies that sim to minimize inequalities. The aim is to prevent the
concentration of wealth in a few hands. I grants the Right Work Socialist
policies are necessary for an underdeveloped country like India with a large
section of the population being poor
The Directive Principles of State Policy that are socialistically oriented are:
 Article 38
 Article 39
 Article 41
 Article 42
 Article 43
 Article 45
 Article 46
 Article 47

The above Directive Principles of State Policy direct the State to make policies
for distribution of wealth, leg on Right to Work and Education: Right to Public
Assistance in case of unemployment, old age, sickness, disablement, living
wage which is equal for equal work, and care of the weaker sections
The Constituent Assembly chose Welfare State over the Minimalist State. The
Minimalist State discharges law and order responsibilities internally and keeps
security from external threats. Government, under Minimal tor Laissez-faire
State, does not take up socio-economic interventions.

Gandhian Principles
The philosophy of Mahatma Gandhi centres around the empowerment of people
through decentralization of political power to villages and economic power to
the village industries. It is embodied in the Traditional Indian Institutions of
participatory governance called Panchayati Raj and Nagarapalika bodies. The
economic democracy that Gandhian ideals speak of is based on Village and
Cottage industries as they are labour-intensive help dispersal of power
geographically and also in terms of economic benefits, and prevent the
concentration of wealth Further, Mahatma Gandhi advocated the banning of
cow slaughter and banning the consumption of intoxicating substances. The
above elements of Gandhian ideology are found in the Directive Principles of
State Policy in the following Articles of the Constitution:

 Article 40 (Panchayati Raj)

 Article 43 (Village and Cottage Industries)
 Article 47 (prohibition) 
 Article 48 (Banning of Cow Slaughter)
The Directive Principles of State Policy and Social Integration
The Directive Principles of State Policy encompass a wide range of State
activity. They impose social obligations on Federal and State Governments
which are to be enacted into law. Gender Disparities; Caste Exploitation; Inter-
Religious divergences on vital areas of social life like marriage and succession;
backwardness of certain social sections like the Dalits are some of the social
areas in need of progressive change. While Fundamental Rights address some of
the above problems on a justiciable basis (Articles 15, 16, and 17), the Directive
Principles of State Policy contain instructions to the Government to eradicate
social imbalances with public policy. These are:

 Protection and Development of Children (Articles 39, and 45)

 Right to Education (Article 41)
 Maternity Relief (Article 42)
 Uniform Civil Code (Article 44)
 Early childhood Care and Education (ECCE) (Article 45)
 The Welfare of Weaker Sections (Article 46)
 Improvement of Health Standards (Article 47)

International Relations
Indian foreign policy, since Independence, stood for peace and security in the
world and multilateralism (nations working together). Our initiation of the non-
alignment as the bedrock of foreign policy to defuse global tensions and build
an independent and stable base for national development is a classical example.
Our support for decolonization, opposition to apartheid and advocacy of
democratization of United Nations and universal and non-discriminatory
disarmament are consistent with Article 51 which says the following:
To state shall:

 Promote international peace and security.

 Aim at the settlement of international disputes by arbitration.
 Also, aim at maintaining just and honourable relations with other
countries. Thus, seeking peace and cooperation is a Constitutional
directive.
DIRECTIVE PRINCIPLES OF STATE POLICY:
CHARACTERISTICS
Broadly, the following features of the Directive Principles of State Policy can
be said to be their characteristics. 
 Non- justiciable
 Amplification of Preamble
 Socio-Economic Justice.
 Guidelines for Public Policy

Substantiates Preambular Values

Socialism and democracy are enshrined in the Pre amble to the Indian
Constitution. In fact, the word socialist' was incorporated into the Preamble by
the (Forty-Second Amendment) Act (1976). Socialism is elaborated in Articles
38-39. Secularism is found in Article 44 where the goal of a Uniform Civil
Code is mentioned. Social justice is also substantially contained in Part IV as
seen above.
Preamble commits the government to equality and justice-social, political, and
economic. It is given substance by Articles 38-39 where redistribution of
material resources for the entire community is promised

Non-Justiciable

Non-Justiciable means that if a legal provision is not implemented by the

government, courts cannot be approached to order the government to implement
the provision. It is entirely up to the government to operationalize the provision
or not.
Article 37 says that the Directive Principles of State Policy are Non-Justiciable
but are fundamental to the governance of the country. They are moral guidelines
for the government to make positive socio-eco nomic policies for inclusive
growth. The Directive Principles of State Policy are not mere pious
declarations. It was the intention of the framers of the Constitution that the
Directive Principles of State Policy should guide the State for the socio-
economic and political reconstruction of the country. The same is stated in
Article 37.
The Directive Principles of State Policy are in the nature of 'Instruments of
Instruction to the Government for making appropriate policies of socio-
economic change.
Guidelines to Public Policy
Public Policy is essentially the pol icy of the Government. Public Poli cy is
made by the Executive conventionally, at times with a legislative Act. The
Directive Principles of State Policy influence a wide gamut of government
policies-economic policies, like agrarian reform; banking and taxation policy;
employment generation, political decentralization; closing gender disparities;
factory legislation, unifying personal laws; preschool child care, environmental
stability; prohibition, and divesting the executive of its judicial responsibilities
and powers. Certain important government policies have been enacted by
parliamentary laws: education, labour, environment, etc. Judiciary also
contributes to it occasionally-education, food, environment, gender equity, etc.

As State Obligations
Almost every Directive Principle of State Policy begins with a form of
government commitment to collective action. The words backing each
obligation, such as 'strive to promote' (Article 38) 'direct its policy towards
securing' (Article 39).'endeavour to secure. ‘(Article 43)."take steps." (Article
43A). the educational and economic interests. (Article 46)...endeavour to raise
the level of nutrition.... (Article 47), indicate a promise and mandate for
implementation of these principles. Therefore, the State is under a
Constitutional moral mandate to ensure its operationalization to build an
inclusive and sustainable society.

THE DIRECTIVE PRINCIPLES OF STATE POLICY IN

DETAIL

Article 36

"The State' has the same meaning as in Part III (Fundamental Rights).

Article 37
The provisions contained in this Part shall not be enforceable (justiciable) by
any court, but the principles there in laid down are nevertheless fundamental in
the governance of the country and it shall be the duty of the State to apply these
principles in making laws
As already discussed, the Directive Principles of State Policy are non-
justiciable. It means that no one can go to court to get a judicial order to the
government to implement the Directive Principles of State Policy That is, the
Directive Principles of State Policy have no legal sanction. The government
may implement them for moral, political, and electoral considerations.
The Directive Principles of State Policy are fundamental to governance which
means that the government needs to keep in consideration these ideals while
making laws. Similarly, the courts also give importance to the Directive
Principles of State Policy while adjudicating on laws. A law may be struck
down if it goes against the Directive Principles of State Policy

Article 38
State to secure a social order for the promotion of the welfare of the people-

1. The State shall secure a social order in which justice, social, economic,
and political, shall inform all the institutions of national life.
2. The State shall minimize the inequalities not only among individuals but
also amongst groups of people

Article 39
Certain principles of policy to be followed by the State: The State shall, in
particular, direct its policy towards securing

1. The Right to an Adequate Means to Livelihood;

2. That the ownership and control of the material resources of the
community are so equitably distributed,
3. That concentration of wealth is prevented;
4. That there is equal pay for equal work for both men and women:
5. That children are not forced by economic necessity to enter avocations
unsuited to their age or strength.
6. That children are given opportunities and facilities to develop in a healthy
manner and in conditions freedom and dignity and that children are
protected against exploitation.
Article 39A
Equal justice and free legal aid. The State shall secure that the operation of the
legal system promotes justice, on a basis of equal opportunity, and shall, in
particular, provide free legal aid to ensure that opportunities for securing justice
are not denied to any citizen because of economic or other disabilities.
Legal Aid implies ging fie legal service so the poor and needy who can afford
the services of a lawyer legal proceedings. Unless legal aid is given to the
needy, due process of law may have been compromised.
Legal Aid is to be provided under Article 39A and thus is a constitutional
obligation of the State and right of the citizens Justice Krishna lyer regards it as
a catalyst that enables equality of opportunity Articles 14,21 and 22 implicitly
contain it.
Legal Aid is confirmed in various Apex court verdicts as a part of the Right to
Life and Personal liberty.

Legal Services Authorities Act, 1987

Legal Authorities Act, 1987 prescribes the criteria for eligibility for aid:

 A member of e Scheduled Caste/Tribe

 A victim of trafficking in human beings or beggar as referred to in Article
23 of the Constitution
 A woman or a child
 A mentally ill or otherwise disabled person
 A victim of a mass disaster, ethnic violence, caste atrocity, flood,
drought, earthquake, or industrial disaster.
 An industrial workman.
 In custody, including custody in a protective home under Immoral Traffic
(Prevention) Act, 1956, or in a juvenile home under the Juvenile Justice
Act, or in a psychiatric hospital under the Mental Health Act, or
 In receipt of annual income less than a prescribed amount

National Legal Services Authority is headed by the Chief Justice of India or his
nominee. It is the Apex body constituted to lay down policies and principles for
making legal services available under the provisions of this act to frame the
most effective and economical schemes for legal services. It also disburses
funds and grants to State Legal Services Authorities and Non-Governmental
Organizations (NGOs) for implementing free legal aid schemes and
programmes.
In every State, State legal authority is constituted and is headed by the Chief
Justice of the High court. A serving or retired judge of the high court is
nominated as its executive chairman.
District legal services authority is constituted in every district to implement
legal aid programmes and the district judge of that particular district is its ex-
officio chairman.
Taluk legal services committees are constituted for each of the Taluk or Mandal
or for groups of Taluks or Mandals to coordinate the activities of legal services
in the Taluk and to organize Lok Adalats. Every Taluk legal services committee
is headed by a civil judge operating within the jurisdiction of the committee
who is its ex-officio chairman.
Free legal aid can be denied under the following circumstances

 Comtempt of court
 Lying under oath
 Proceedings related to elections
 Economic offences and offences against social laws
 Defamation
 Proceedings related to elections

Article 40

Organization of village panchayats-The State shall take steps to organize village

panchayats and endow them with such powers and authority as may be
necessary to enable them to function as units of self-government.

Article 41

Right to Work, to Education, and to Public Assistance in certain cases. The

State shall, within the limits of its economic capacity and development, make
effective provision for securing the Right to Work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want

Right to work
In a country with a high level of unemployment and labour-surplus like India,
there is a need for the Right to Work as a measure of social justice and for
economic growth. Article 41 commits the Government to it. Howes er, Article
41 says that the Right to work can be given within the limits of economic
capacity and development In other words, if the government has resources and
the development paradigm permits the same, the right can be given. It will help
create assets; remove poverty, lead to better use of human resources, and social
indicators will improve. The Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA) partially fulfills Article 41.

Article 42

Provision for just and humane conditions of work and maternity relief. The
State shall make provision for se curing just and humane conditions of work and
for maternity relief

Article 43

The living wage, etc for workers. The State shall endeavour to secure, by
suitable legislation or economic organization or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co-operative basis in rural areas.
A living wage means the wage necessary for a person to achieve a certain
specific standard of living. It is different from the minimum wage which is set
by law and may not meet the requirements of a living wage.

Article 43A

Participation of workers in the management of industries. The State shall take

steps, by suitable legislation or in any other way, to secure the participation of
workers in the management of undertakings, establishments or other
organizations engaged in any industry. The (Forty-Second Constitutional
Amendment) Act, 1976.
The Ninety-Seventh amendment to the Indian Constitution inserts a new
directive principle into Part IV of the constitution-cooperatives-in Article 43B,
which reads: "The State shall endeavour to promote voluntary formation,
autonomous functioning, democratic control and professional management of
cooperative societies". The amendment came into force in 2012.
Article 44

Uniform Civil Code for the citizens. The State shall endeavour to secure for the
citizens a Uniform Civil Code throughout the Territory of India.

Personal Laws and The Status of Women

Pre-1947
Before Independence, there were moral distortions in the Hindu law. Women
were denied equality in terms of property and remarriage rights. Social
reformers like Ishwar Chandra Vidyasagar campaigned against the dis
criminatory customs and British made laws to bring in, justice: Hindu Widow
Remarriage Act of 1856, Married Women's Property Act of 1923, and the
Hindu Inheritance (Removal of Disabilities) Act, 1928, which permitted a
Hindu Woman's Right to Property.
The passing of the Hindu Women's Right to Property Act of 1937, also known
as the Deshmukh Act, led to the formation of the B. N. Rau committee to
determine the necessity of common Hindu laws. The committee recommended a
Uniform Civil Code,

Post-1947

Personal Laws of different religions in India do injustice to women and need

changes. It is one of the reasons for adopting the Uniform Civil Code.
The Hindu Succession Act makes provision for a Hindu Undivided Family to
ensure that property remains with the male line of descent. Son and father have
equal shares but daughter has only a share in the father's share. A Woman's
Right to Agricultural Property is also similarly restricted to prevent
fragmentation of land. holdings. The law is changed as detailed ahead.

Some Muslim personal laws have been codified in the Shariat Act 1937, the
Dissolution of Muslim Marriages Act, 1939, and the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Under the Muslim Personal Laws,
Women's Right to Property is limited to half of what their brothers get. The
1937 Act categorically denies women any right to agricultural land. Polygamy
among Muslims remains an issue. The Muslim Personal Law makes man the
sole guardian of a child. Some portions of the law were changed.
Roman Catholic Church does not accept divorce under the Indian Divorce Act.
Hindu Succession Act, 2005 Amendments

The Hindu Succession Act, 1956 governs the succession to the property of a
deceased Hindu. The Hindu Succession Act is applicable to any person who is a
Hindu. It includes Buddhists, Jains, and Sikhs within its ambit.
The amendment to the Hindu Succession Act in 2005 entitles the daughter a
share in the property that was denied in the earlier system. It entitles her to be a
Karta of the family. A Karta is the head of the family. This change can be quite
significant in terms of social equations. However, it relates to only coparcenary
property. In the case of the acquired property, there is no restriction on the
ability of anyone to will away the property in any manner that they desire.
Muslim personal laws also came in for reform both through the judicial review
and parliamentary laws.

Muslim Women (Protection of Rights on Marriage) Act, 2019

After the Apex court verdict sought the Parliament to make a law on Muslim
divorce in the Shayara Bano case, the Parliament made the law. Essential
features of the Act are:

 All declarations of instant Triple Talaq, including in written or electronic

form to be void and illegall
 Instant Triple Talaq as a cognizable offence with a maximum of three
years imprisonment and a fine.
 The offence will be cognizable only if information relating to the offence
is given by the wife or one of her blood relatives.
 The offence is non-bailable. However, there is a provision that the
magistrate hearing the case may grant bail to the accused, only after
hearing the wife and if the magistrate is satisfied that there exist
reasonable grounds for granting the bail.
 The wife is entitled to a subsistence allowance with the amount to be
decided by the magistrate.
 The wife is entitled to seek custody of her minor children from the
marriage. The manner of custody to be determined by the magistrate.
 The offence may be compounded (converted into a monetary value) by
the magistrate upon request of the aggrieved woman.
Supporters say that it levels the field for Muslim women as other religions do
not have instant divorce: works as a deterrent; retains family as a meaningful
and viable social institution; protect children, and establishes justice.
Opponents say that marriage is a civil act and divorce cannot be criminalized.
As divorce is civil in all religions, it violates the Uniform Civil Code. Also,
criminalization makes strain in marriage irreversible.

Goa Family Law

Goa is the only State to have a Uniform Civil Code in India. Goa has its own
personal laws that are vastly different from the rest the country due to its unique
history. It is called Goa Civil Code or Goa Family Law. It codifies civil laws for
the residents of Goa. It covers all residents of Goa, irrespective of religion,
ethnicity, or language. It comes from the Portuguese Civil Code 1867, which
was introduced in Goa in 1870. The civil code continued in Goa even after its
merger with the Indian Union in 1961. It is different from Indian civil laws in
the following ways:

 A married couple jointly holds ownership of all the assets owned before
the marriage or acquired after the marriage by each spouse. In case of a
divorce, each spouse is entitled to a half share of the assets. However, the
law also allows ante nuptial agreements, which may state a different
division of assets in case of a divorce. These agreements also allow the
spouses to hold the assets acquired before marriage separately. Such
agreements cannot be changed or revoked.
 Parents cannot disinherit their children entirely. At least half of their
property has to be passed on to the children compulsorily. This inherited
property must be shared equally among the children.
 Muslim men, who have their marriages registered in Goa, cannot practice
polygamy.
 There is no provision for a verbal divorce.

Critics hold that:

 The Hindu men have the Right to Bigamy under specific circumstances:
if the wife fails to deliver a child by the age of 25, or if she fails to deliver
a male child by the age of 30. For other communities, the law prohibits
bigamy.
 The Roman Catholics can solemnize their marriages in church after
obtaining a No Objection Certificate from the Civil Registrar. For others,
 only a civil registration of the marriage is accepted as proof of marriage.
The Catholics marrying in the church are excluded from divorce
provisions under the civil law.

Article 45
Provision for free and compulsory education for children. The State shall
endeavour to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.
The above contents are replaced by the (Eighty-Sixth Amendment) Act, 2002
by the following: The State shall endeavour to provide Early Childhood Care
and Education (ECCE) for all children until they complete the age of six years.

Article 46

Promotion of educational and economic interests of Scheduled Castes/Tribes,

and other weaker sections. The State shall protect them from social injustice and
all forms of exploitation,

Article 47

Duty of the State to raise the level of nutrition and the standard of living and to
improve public health, and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health

Article 48

The organization of agriculture and animal husbandry. The State shall

endeavour to organize agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving
the breeds, and prohibiting the slaughter, of cows and calves and other milch
and draught cattle.

Article 48A

Protection and improvement of environment and safeguarding of forests and

wildlife. The State shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country.
Article 49

Protection of monuments and places and objects of national importance. It shall

be the obligation of the State so protect every monument or place or object of
artistic or historic interests, declared by or under low made by the Parliament to
be of national importance, from spoliation, disfigurement, destruction, removal,
disposal, or export as the case may be

Article 50

Separation of the judiciary from the executive. The State shall take steps to
separate the judiciary from the c the public services of the State
The need for separation of the Judiciary from the Executive is:

 It is necessary for independence of the judiciary.

 It helps in specialization:
 Such separation helps in better governance as there will be more checks
and balances based on the doctrine of separation of powers
 Rule of Law also demands that the separation take place as otherwise, the
judicial role of the executive may not be impartial, and
 Civil Rights are better protected.

According to the Law Commission Fourteenth Report), 1958, separation means

officers will devote their e entirely to judicial duties and this fact leads to
efficiency in the administration of justice."
The essential feature of the scheme for the separation since Independence was
the transfer of purely judicial functions as the trial of criminal cases from the
executive to a new set of judicial officers. Previously, under the CrPC and other
relevant codes, the functions of a magistrate fell into three classes.

 'Police' functions e.g. The handling of unlawful assemblies

 Administrative functions e.g. Issuance of licenses for firearms and similar
functions, and
 Judicial functions e.g. The trial of criminal cases.

When separation was effected. the judicial functions were transferred to courts.
Thus, executive magistrates and judicial magistrates were separated. The former
were given functions like sanction of prosecution etc while judicial functions
were with the latter.

Article 51

Promotion of international peace and security. The State shall endeavour to:

1. promote international peace and security;

2. maintain just and honourable relations between nations;
3. foster respect for international law and treaty obligations in the dealings
of organized peoples with one another, and
4. encourage settlement of international disputes by arbitration.

IMPLEMENTATION OF THE DIRECTIVE PRINCIPLES OF

STATE POLICY

Even though the Directive Principles of State Policy are not justiciable,
government Suo Moto made many policies in pursuit of the principles. Since
the commencement of the Constitution, there has been substantial legislation to
implement the Directive Principles of State Policy. As detailed below:
First Amendment Act is for implementing land reforms. It was followed by the
Fourth, Seventeenth, Twenty-Fifth, Forty-Second, and Forty-Fourth
Amendment Acts (Articles 38-39).
Child Labour (Prohibition and Regulation) Act, 2016. India in 2017 ratified
core International Labour Organisation (ILO) conventions 138 and 182 on Child
Labour to fight against the menace and achieve the objective of a child labour-
free nation (Article 39).
The Seventy-Third Constitutional Amendment Act, 1992 is in pursuit of
implementing Article 40-panchayats. The Mahatma Gandhi National Rural
Employment Guarantee Act (MNREGA) 2005 is operating in the entire country
since 2008. It gives shape to Article 41, Right to Work.
Pradhan Mantri Kisan Samman Nidhi (PM-KISAN) (Article 41)
Ajeevika (National Rural Livelihoods Mission) also finds its base in Article 41.
There has been much welfare legislation to make the conditions of the work
humane for the workers, Factory laws, the Industrial Disputes Act, 1947 are
some examples.
Maternity Benefit (Amendment) Act, 2017. (Article 42)

Code on Wages, 2019 for minimum wages. (Article 43)

Promotion of the cottage industries has been one of the main aspects of the
economic policy of the gov ernment and there is in existence the Khadi and the
Village Industries Commission for the purpose. The Nine ty-Seventh
Amendment) Act 2012 promotes cooperatives which is a Gandhian dream.

Pradhan Mantri Ujjwala Yojana (PMUY) aims to safeguard the health of

women and children by providing poor households with a clean cooking fuel-
Liquefied Petroleum Gas (LPG) so that they don't have to com promise their
health in smoky kitchens or wander in unsafe areas collecting firewood. It is in
pursuit of many Directive Principles of State Policy (DPSPs) like Articles 39,
47, and 48A, etc.

The (Eighty-Sixth Amendment) Act, 2002 makes provisions for early childhood
care and education (Article 45)

The Food Security Act, 2013 is to give effect to Article 47. The Nation Rural
Health Mission (NRHM) The Nation Urban Health Mission (NUHM) are based
on Article 47.

The Prime Minister's Overarching Scheme for Holistic Nutrition (POSHAN

Abhiyaan) or The National Nutrition Mission of 2018 is the Government of
India's flagship programme to improve nutritional outcomes for children,
pregnant women, and lactating mothers. Prime Minister's Overarching Scheme
for Holistic Nutrition (POSHAN Abhiyaan) directs the attention of the country
towards the problem of malnutrition, (Article 47). Prohibition policy in various
States is another example,

Regarding Article 48, the green revolution and the research in biotechnology are
aimed at modernizing agri culture and animal husbandry. India is permitting
Genetically Modified (GM) organisms and crops like Bacillus thuringiensis (Bt
cotton) in India for boosting productivity.

The Ministry of New and Renewable Energy (MNRE) in 2019, launched the
Pradhan Mantri Kisan Urja Suraksha Evam Utthan Mahabhiyan (PM KUSUM)
Scheme for farmers for installation of solar pumps and grid-connected solar and
other renewable power plants in the country. The Environment Protection Act.
1986; the Wild Life Act; The National Forest Policy 1988 are some exam
ples for implementation of Article 48A. The Government is taking many steps
for countering climate change centrally sponsored programme for climate-
resilient agriculture. 
The Archaeological Survey of India, The Ministry of Culture, is responsible for
archaeological studies and the preservation of the archaeological heritage of the
country in accordance with the various acts of the Indian parliament. 
To implement Article 49, twelve cities were identified for development under
Pilgrimage Rejuvenation and

Spirituality Augmentation Drive (PRASAD) by the Ministry of Tourism

The Heritage City Development and Augmentation Yojana (HRIDAY) scheme

aimed at preserving and revitalizing the soul and unique character of the
heritage cities in India. The criterion for the selection of these cities is their rich
heritage and cultural history.

Separation of the judiciary from the executive is being done by amending the
CrPC Appointment of judges of the High Courts and the Supreme Court is
being done on the recommendation by a collegium of judges of the higher
judiciary since 1993, based on Article 50.

The efforts of India to secure international peace are many like participation in
the peacemaking operations of the United Nations (UN). India has been the
largest troop contributor to UN missions since its inception. More than 2,00,000
Indians have served in 49 of the 71 UN Peacekeeping missions established
around the world since 1948

India pioneered Non-Aligned Movement to defuse the cold war after the second
world war.

THE SUPREME COURT AND THE DIRECTIVE PRINCIPLES OF STATE

POLICY

Article 37 of the Constitution specifically states that the Directive Principles of

State Policy in the Constitution

are non-justiciable. The Constitution leaves it to the State to take up action for
the Directive Principles of State Policy
The Supreme Court enforced certain Directive Principles by reading them into
certain Fundamental Rights. Thus, the Right to Education mentioned in Article
45 has been held to be part of Article 21 of the Constitution in Unnikrishnan vs
The State of Andhra Pradesh, 1993. The Supreme Court in Sheela Barse vs The
State of Maharashtra, 1983, directed various steps for extending

the benefit of Article 39A to under trial prisoners. The Supreme Court also
allowed the Directive Principles of State Policy to override certain Fundamental
Rights if public interest demanded it (I R Coelho 2007) by upholding
Prohibition; banning beef consumption etc.

In the Bandhua Mukti Morcha Case (1984), the recognized the Right to Live
with Human Dig under Article 21 which is made up of a family of associated
rights as mentioned in the Directive Principles State Policy in Articles 39, 41,
42, 44, 45, 47, etc. For afforestation and clean air, the Apex court give y rulings.
The Supreme Court ensured that the mid-day meal scheme in schools continued.
Visakha's judges for women's dignity and security in workplaces is based on the
Directive Principle of State Policy Article 42 The Supreme Court wanted the
government to legislate on the abolition of instant Triple Talaq. Its come

bution to turning principles into positive rights is well recognized THE

DIRECTIVE PRINCIPLES AND THE FUNDAMENTAL RIGHTS: THE
RELATIONSHIP

The Fundamental Rights and the Directive Principles are not opposed but are
complementary to each other Both ultimately aim at the welfare and the well-
being of the people. While Directive Principles are noo-ja ticiable, it does not
imply that they need not be implemented. They are fundamental to the
governance of the country as Article 37 says. The Fundamental Rights have
legal sanction while the Directive Principles of Su Policy enjoy moral and
political sanction. The real strength of Directive Principles is derived from a
vigilan public opinion. The Fundamental Rights and the Directive Principles of
State Policy constitute the conscient of the Constitution. Both the Fundamental
Rights and the Directive Principles of State Policy are essential for a welfare
state-democratic socialism. Both aim at building social and human capital The
differences are:
Fundamental Rights are essentially individual rights. Directive Principles are in
the nature of instruments

of instructions to the Government of the day to undertake collective positive

actions. • The Fundamental Rights are enforceable in the courts, hence are
justiciable. But the Directive Principles are not enforceable in the courts, thus
they are non-justiciable. Justiciable means that if Fundamental Rights are
violated, the aggrieved individual can move the courts for the protection of their
Fundamental Rights. Non-justiciable means that citizens can not go to court to
secure the implementation of the Direc tive Principles. The Directive Principles
of State Policy are made non-justiciable as their implementation requires
resources; society may not be ready for their implementation-The Uniform Civil
Code; they need time for introduction-local self-government institutions, etc.

• The Fundamental Rights aim at establishing political democracy in India while

Directive Principles at tempts to provide socio-economic foundations to Indian
democracy.

Evolution of the Relationship

Since the commencement of the Constitution in 1950, the inherent tension

between the Fundamental Rights and the Directive Principles of State Policy
surfaced. The Directive Principles of State Policy could not be

implemented without the Fundamental Rights being restricted. The Parliament

has the obligation to promote justice by implementing Article 39. When they
conflicted with the Fundamental Rights Articles 14 and 19, the laws were
challenged and the Supreme Court most of the time upheld the parliamentary
laws.
The Supreme Court in the Shankari Prasad case, 1952, and Sajjan Singh case in
1965 said that Article 13 did not come in the way of the parliament's power to
limit the Fundamental Rights if the limitation is by way of Constitutional
Amendment Act. The background is as follows: Article 13 bars a law from
abridging a Funda mental Right. It was debated as to whether a Constitutional
Amendment Act is law or not. The Supreme Court in the above two cases ruled
that the Constitution Amendment Act is not law and so can restrict Fundamental
Rights.

Thus, the balance swung in favour of the Directive Principles of State Policy In
1967, the Supreme Court reversed its earlier decisions in Golaknath vs The
State of Punjab. A bench of eleven judges (the largest till then) of the Supreme
Court deliberated as to whether any part of the Fundamental Rights provisions
of the Constitution could be revoked or limited by amendment of the
Constitution. The Supreme Court in its ruling. by a majority of 6:5, held that an
amendment of the Constitution could not abridge Fundamental Rights Law in
Article 13 included Constitution Amendment Act. The balance was in favour of
FR

Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard
arguments in Kesavananda Bharati vs The State of Kerala. The Supreme Court
reviewed the decision in Golaknath vs The State of Punjah. The Court held, by a
margin of 7:6, that although no part of the constitution, including fundamental
rights, was beyond the amending power of Parliament (thus overruling the 1967
case), the "basic structure of the Consti tation could not be eroded even by a
constitutional amendment. Thus, in the Keshavananda Bharati case 1973, the
constituent power of the Parliament was partly restored. There was a new
balance between the two parts of the Constitution

In the Forty-Second Amendment Act in 1976, all the Directive Principles of

State Policy were given prece It was struck down in the Minerva Mills case
verdict (1980) as it nullifies judicial review which is a basic

feature of the Constitution, the court added another basic feature,

complementary relation between Fundamen al Rights and Directive Principles
of State Policy and so it can not be upset. That is the legal position since then. It
is to be noted that Fundamental Rights could be diluted by the Direc tive
Principles of State Policy only if the public interest is served (Coelho verdict
2007)
Relevant Constitution Amendment Acts

1. Shankari Prasad Case, 1952 2. Sajjan Singh Case, 1965

3. Golaknath vs The State of Punjab, 1967

Twenty-Fourth Amendment Act, 1971

The Constitution Twenty-Fourth Amendment 1971 was made to overcome the

Supreme Court judgment in the Golak Nath case. It said that Article 368
empowers the Parliament to amend any part of the Constitution.

Twenty-Fifth Amendment Act, 1971

It introduced Article 31C which provides that if any law is passed to give effect
to the Directive Principles con tained in clauses (b) and (c) of Article 39, such
law shall not be deemed to be void on the ground that it takes away or abridges
any of the rights contained in Articles 14, 19 or 31.

Forty-Second Constitution Amendment Act, 1976

In this Constitution Amendment Act, all the Directive Principles of State Policy
were given prec edence over all Fundamental Rights.

The Constitution Amendments to The Directive Principles of State Policy The

Forty-Second Forty-Fourth, Eighty-Sixth, and Ninety-Seventh Constitution
Amendment Act brought abou changes in the Directive Principles of State
Policy as follows Four Directive Principles were added by the Forty-Second
Amendment

To secure opportunities for the healthy development of children (Article 391)

To promote equal justice and to provide free legal aid to the poor (Article 39 A)
To take steps to secure the participation of workers in the management of
industries (Article 43A). To protect and improve the environment and to
safeguard forests and wildlife (Article 4BA)..

The Forty-Fourth Amendment Act of 1978 added article 3842) which said that
the State shall, in particular, strive to minimize the inequalities in income, and
endeavour to eliminate inequalities in status, facilities, and opportunities, not
only amongst individuals but also amongst groups of people residing in
different areas or en gaged in different vocations

The Eighty-Sixth Amendment changed the subject of article 45 and brought it

among Fundamental Rights as Article 21A for children of 6-14 age. The same
article was now a Directive Principle to State to take care of children below 6
years.

Article 438 inserted by the Ninety-Seventh Amendment act in 2011 says that
the State shall endeavour to promote voluntary formation, autonomous
functioning, democratic control, and professional management of the co-
operative societies.

The Directive Principles of State Polley outside Part IV In addition to the

Directives that are found in Part Four of the Indian constitution, there are certain
other direc tives in other Directives in other Parts of the Constitution addressed
to the state and non-justiciable like the rest They are the following:

- Article 335 says that in reserving jobs for the Scheduled Caste and Tribes in
Government, doe attention should be paid to efficiency in administration.

Article 351 enjoins the state to promote the use of Hindi so that it may be
developed as a medium of com

munication.

Article 350A enjoins the state and the local authorities to impart primary
education to the linguistic mi

norities in their mother tongue.

The above could not be accommodated into Part IV as they were placed in the
relevant parts of the Constitution They are also non-justiciable

President of India

INTRODUCTION

India adopted the Westminster model of democracy from Britain where there is
a separation between the cer emonial and the actual State power. In Britain, the
monarch is the Head of State having ceremonial powers. The actual power rests
with the Union Council of Ministers headed by the Prime Minister. The former
is the de jure (in letter of law) head and is called Head of State. The latter is the
de facto (in actual fact) Head of Government In India, the place of the British
monarch is taken by the President of India though with sub stantial differences.
For example, India is a republic The head of the State is elected and is not a
hereditary

In some democratic systems, there is no such distinction-the head of the State is

also the head of the gov emment. The US Presidency represents this form The
President of India is the first citizen and represents the entire Indian Nation.
S/he is largely ceremonial

in his status

PRESIDENT AND THE CONSTITUTION

All three organs of the Union Government-executive, legislature and the

judiciary-The President, The Vice President, The Parliament, and The Judiciary,
Attorney-General for India and the Comptroller and Auditor Gen eral of India
(CAG) are contained in Party of the Constitution (Article 52-151)
Article 52 states that there shall be a President of India. It means, the office can
never be vacant. It indi cates the critical importance of the office in relation to
so many functions of legislation, administration, and Justice

According to Article 53, the executive powers of the Union shall be vested in
the President. The Executive powers involve appointments, removal, legislation
through ordinance when the legislature is not in session, and so on

ELECTION OF THE PRESIDENT

Preference for Indirect Election

India is a republic as declared by the Preamble to the Constitution of India

Republic is a State in which supre power is held by the people and their elected
representatives. It has an elected or nominated Head of the Sta and not a
monarch. Being a republic, India chose to have an elected President

The Constituent Assembly debated whether the President should be directly or

indirectly elected. Some preferred direct election of the President but the
suggestion was rejected on the following grounds:

• If the President of India is elected directly by the people, it will be a partisan

process the President sal represent a particular political party that denies the
office universal character. He may not work impartially a directly elected
President will insist on enjoying real powers and not satisfied with a ceremonial
role a thus clash with the council of ministers

if the Presidency and the Council of Ministers come from different parties, it
may create friction at de

highest level and paralyze governance

Framers of the lodian Constitution once chose to have an indirectly elected Feet
by ng an cloni college with elected representatives from parliament and the state
assemblies

Manner of Election
Article 54 of the Constitution says: The President shall be elected by the
members of an electoral college con

The elected members of both Houses of Parliament, and • The elected members
of the Legislative Assemblies of the States (including National Capital Territory
of

sisting of

Delhi and the Union Territory of Puducherry after the Constitution Seventieth
Amendment Act, 1992). Article 54 says that in Articles 54 and 55, 'State'
includes the National Capital Territory of Delhi and the Union Territory of
Puducherry

Article 54 was not amended when Jammu and Kashmir were bifurcated into two
Union Territories with only Jammu and Kashmir having an Assembly.
Therefore, as of mid-2020, members of the Legislative Assembly of Union
Territory of J & K are not a part of the Electoral College for the election of the
President.

Electoral College

The Constitution India does not provide for a special electoral college that is
specifically elected to elect the President of India as in the case of America (in
the United States of America (USA), members of Electoral Col lege are elected
by the electorate and the body ceases to exist once the election is over.) In India,
the Electoral College is made up of the elected Members of Parliament and
elected Member of Legislative Assembly of all States and the two Union
Territories of National Capital Territory of Delhi and Puducherry as of mid-
2020. The nominated Members of the Parliament and Legislative Assemblies
are not members of the electoral college. Some States have Legislative Council.
The members of the Legislative Councils of the State Legislatures have also
been excluded from the Electoral College. The members act in their non-
legislative and elective capacity

while electing the President.

The Election of the President of India is by the system of proportional

representation by means of a single transferable vote as provided by Article 55
of the Constitution. This system is chosen for the following reason: Is this
system, a candidate to be elected will have to obtain the quota. There is a
formula to calculate the quota. Is the case of the President, the quota is 50%
plus I of the valid votes cast-that is, a simple majority. It is necessary

for the President to get more than 50% of valid votes as she represents the
nation and can not be elected by plurality (largest number of votes though not
majority) of votes as in the Lok Sabha and Assembly elections If none of the
contestants gets majority/quota a nanoff election is not held. Runoff election is
when the sp wo candidates by votes polled go into the next and final round- as
in the case of the French Presidential elec sons. The process is tedious and not
warranted for a ceremonial head of the State. Therefore, the proportional ystem
with single transferability is chosen. Under this, there is no second round of
voting but only coming of second preference votes as we will see ahead

Lead of the S

elected S

President wa pek impartial Proportional Representation by Means of Single

Transferable Vote The Constitution provides for the election of the President by
the system of proportional representation by means of the single transferable
vote. Two fundamental principles are laid down in Article 55.

monial role ag

friction at the

college co

to secure as far as possible, uniformity in the scale of representation of

different States of the Union, and

to secure parity between the States as a whole and the Union. Both the
principles aim to do justice to the federal ideas. For the purpose of securing
such uniformity among states and parity between the Centre and the States, the

following method is laid down The value of the vote of elected Members of
Legislative Assembly is calculated. The same formula is used to calculate the
value of the vote of elected Memebrs of Legislative Assembly of each and
every State. The formala is as follows

Total Population of the State (by 1971 census) is divided by total number of
elected Members of Legislative Assembly. The resultant number is further
divided by 1000, Fractions exceeding one half are counted as one Thus, the
value of the vote of an elected member of the assembly of each State is found
out. The number of elected Member of Legislative Assembly of the State
assembly is known.

The total value of votes of all the elected members of all the State/Union
Territory Assemblies is calculated as inputs are available. The total value is
divided by the total number of elected members of both Houses of the
Parliament to arrive at the value of the vote of an elected MP. Thus, the Centre-
State parity is respected (Article

55)

Uniformity in the scale of representation of states is arrived at by following the

same principle for fixing the value of the vote of an elected Members of
Legislative Assembly for all the States.

The number value of votes are based on the population in the 1971 census and
not the popula tion, as a result of the Forty-Second Amendment. The aim is to
encourage efforts to stabilize the population by adopting family programs in the
states by ensuring that states are not penalized for their population equilibrium.
The Eighty-Fourth Amendment says the 2031 census will replace the 1971
census because demo graphic stabilization is expected to be achieved by 2026,

Proportional Representation

Article 55(3) of the Indian Constitution requires that the President should be
elected in accordance with the system of proportional representation by means
of a single transferable vote.

In the ordinary mode of election known as 'first past, the post system' or 'winner
takes all system', a can didate getting a plurality of votes (relative majority -one
who gets the most number of votes among the contest ants) is elected-even if, in
percentage terms, it means only a minority of the votes. It means he has more
votes than any of his rivals. Very often such candidates secure far less than the
simple majority of votes polled. The 'first past the post' principle can not be
applied for Presidential election for the reason that the President should have
secured a majority of the valid votes cast as he represents the Nation.

Proportional Representation as adopted in the Presidential election is associated

with the 'Single Transfer able Vote, which means that each elector (a member of
the electoral college) has only one vote but it is trans ferable. Voter expresses
his preferences in the single vote that he casts-first preference, second
preference, etc

11.4

Chapter 11

A candidate, to be elected, requires obtaining a quota. If no candidate gets a

quota on the basis of fir preference votes, the candidate who gets the least
number of votes is eliminated. Those who voted for him as first preference will
have their second preferences counted and they are distributed among those in
the fray. The process continues till such time that a candidate is finally elected.
Thus, votes are 'transferable--if they are of second, third, four, etc. preference.

Quota of Votes

Under the Proportional Representation system, a quota is fixed for being

elected. Any member who secures the necessary quota of votes is declared
elected. The quota is arrived at by dividing the total value of valid votes cast by
the members of the electoral college divided by the total numbers of candidates
to be elected; plus one, and one is added to the quotient. The formula for quota
may be represented as follows:

The value of the vote of each elected Member of Legislative Assembly is the
same for a State Assembly but dif fers from State to State as populations and the
number of elected Members of Legislative Assembly is different. The value of
the vote of an elected MP is the same for all Members of Parliament.
When we total the value of the vote of all elected Member of Parliament, it
should be the same as that of the total value of the votes of all elected Members
of Legislative Assembly of the States. That is the Centre-State parity that
Article 55 provides.

PRESIDENT OF INDIA: A FEDERAL INSTITUTION

The following facts make the President of India a federal institution The
electoral college has Legislative Assemblies of States There is parity between
the Centre and the States

Conduct of Election of President

Under Article 324(1) of the Constitution of India, the Election Commission of

India is vested with the pow er of superintendence, direction, and control of
conducting the elections to the offices of the President and

Vice-President of India. Detailed provisions are made under the Presidential and
Vice-Presidential Elections

Act, 1952, and the rules made thereunder.

The election to the offices of the President and the Vice-President is regulated
by the Presidential and Vice-Presidential Elections Act, 1952. Secretary-
General of the Lok Sabha or the Rajya Sabha is appointed by the Election
Commission as returning officer along with one or more assistant returning
officers

The nomination for a presidential candidate has to be proposed and seconded by

50 electors each. The security deposit is Rs. 15,000 which is forfeited if the
candidate does not get at least 1/6 of the total valid vote. If voter fails to mark
the first preference, or marks the preference in a fashion other than the one
prescribed by the Election Commission, the vote becomes invalid. A total of 77
votes were declared invalid during counting for the fifteenth presidential
election in 2017.
The ballot paper in the Presidential Election does not contain any election
symbol. The office of the Presi

dent is considered above party politics and free from political ideology. The
ballot paper has two columns with the headings "Name of Candidate" and
"Order of Preference". Each Elector may mention as many preferences as there
are contesting candidates. However, if an Elector does not want to place his/her
preferences on the ballot paper, the vote cannot be declared invalid on this
ground. The preferences are to be marked in numbers and must not be indicated
in words. Electronic voting machines are not used in the Presidential Election.

Election Dispute

An election petition calling in question an election to the office of the President

may be presented-within 30 days from the date of publication of the result of the
election to the Supreme Court by any candidate at such election or any twenty
or more electors joined together as petitioners. Every petition calling in question
an election shall be posted before and be heard and disposed of by a Bench of
the Court consisting of not less than five Judges,

Fifteenth Presidential Election

The Fifteenth Presidential election, in order to elect the Fourteenth President,

was held in India in July 2017. Babu Rajendra Prasad was President for two
terms and so 15 elections were held and 14 Presidents have held office. Ram
Nath Kovind became Fourteenth President of India. Ram Nath Kovind. He
secured about two-thirds of the votes from the electoral college. He was
administered oath by the Chief Justice of India in the Central Hall in the
Parliament House.

Conscience Vote

The Elected Members of Parliament and The Members of Legislative Assembly

are free to abstain from voting in the Presidential election. They can vote the
way they choose. There cannot be a whip issued by the party. Such a whip
amounts to influencing the voter and is illegal. Thus, there is a conscience vote
in the Presidential elections.
Members of the electoral college-elected The Members of Parliament and The
Member of Legislative Assembly do not act in their legislative capacity and
therefore are not subject to anti-defection law of the Tenth Schedule to the
Constitution of India.

Lame Duck Electoral College

Election of the President can be held even if some seats in the Electoral College
are vacant. Such election cannot be called in question on the ground of any
vacancy existing for any reason. The phrase, 'the elected Members of
Legislative Assemblies of States' means only those who are actually in office at
the time of the Presidential

Election. The elected members of a suspended Assembly (Article 356) are

entitled to take part in the Presiden tial election but not the dissolved Assembly
Election of the President by a lame-duck Electoral College where the Lok Sabha
members are not present

as the Lok Sabha is dissolved at the time of the Presidential election, is an open
question and there is no Co stitutional or statutory law in this regard. Lame
Duck means one who can not take substantive and significant decisions.
Different meanings of Lame

Duck can be explained: Lame Duck President, Parliament, and Prime Minister
The first two are applicable to the United States (US) polity. The US President
is considered 'Lame Duck if he is not re-contesting and is continuing as
President even after his successor is elected but has not assumed day as there is
a time gap of few months between the election and the swearing in-November-
January period. Barad Obama in 2016 is an example. That means: Lame duck is
a President who is in office but whose successor has already been elected. So he
can not take substantive decisions like policymaking, important appointments,
elc

Members of United States (US) Congress in similar circumstances are also

considered Lame Duck Lame Duck session is an expression used for the United
States (US) Congress-House of Representatives and Senate under the following
conditions: Take the example of the House. Members of the House of
Representatives serve two-year terms and are considered for re-election every
even year. In 2020, for example. The elections are held in November. Some
sitting members don't contest or are defeated. Newly elected members function
from the next January but start sitting in the House from November itself.
Therefore, the Nov-Dec session of the House does not take up substantial
business as some members are due to be replaced soon. It is called Lame Duck
session.

Lame Duck sessions are not seen in the parliamentary form of government like
in India. However, in India, the parliament session that does not take up any
substantive work is the session that is the last session before the General
Election-February 2014 or 2009. Propriety demands that no Bill be passed and
the regular budget is withheld. Only interim budget is conventionally presented.
It may be called Lame Duck parliament.

Lame Duck government is the following: Once the general elections to Lok
Sabha are announced, even when the Lok Sabha is not dissolved, the incumbent
Prime Minister and Ministers become Lame Duck government.

Qualifications (Article 58)

A person eligible for election as President should be:

a citizen of India; not less than thirty-five years in age,

should be qualified to be a member of the Lok Sabha, and should not hold an
office of profit under the Government.

The offices of the President, Vice-President, Governor of a State or the Minister

for the Union or a State, are not offices of profit for this purpose. Certain offices
of profit under the Government have also been declared as not to disqualify the
holders thereof for being chosen as President. A Member of Parliament or of a
State Legislature including the respective Presiding Officers can seek election to
the office of the President but if any one of them is elected President, he is
deemed to have vacated his seat in Parliament or the State Legislature as the
case may be, on the date on which he enters upon his office as President.

Term of Office (Article 56)

The President holds office for a term of five years from the date on which he
enters upon his office. Even after the term expires, he continues to hold his
office until his successor enters upon the office. The Presidential election must
be held before the expiration of his term of office. The Election Commission
shall issue the

notification on or as soon as conveniently may be, after, the sixtieth day before
the expiration of the term of office of the out-going President

According to article 57, he is eligible fir re election the president may resign
before the expiration if his 

term of office by writing under his hand addressed to the Vice-President. The
resignation is forthwith required so be communicated to the Speaker of the Lok
Sabha. Emoluments of the President are Rs. 5,00,000 per month. Pension of Rs.
1,50,000 per month is paid to him/ her after retirement for the rest of his life.

IMPEACHMENT

Article 61

Article 61 deals with the Presidential impeachment and it is clearly and

categorically titled "Impeachment. But

the Article also uses the word removal. Therefore, there is a need for closer
analysis. It is important to understand what impeachment means. Commonly, it
is used synonymously with removal from office. However, the actual meaning
is different. Impeachment is the process by which either House of Parliament
levels charges against a Constitutional authority. Such a legislative move does
not remove the authority from office. It sets in motion an investigation by the
other House or any other agency. If the charges are upheld and the other House
passes a motion for removal with the stipulated majority, the authority is
removed. Thus, impeachment is essentially the statement of charges that is
endorsed by the legislature for investigation. (We need to see Article 61
verbatim from the Constitution of India.)

Procedure for impeachment of the President:

House of Parliament.

No such charge shall be preferred unless

a the proposal to prefer such charge is contained in a resolution which has been
moved after at least Your

teen days notice in writing signed by not less than one-fourth of the total
number of members of be

a President is to be impeached for violation of the Constitution, the charge shall

be preferred by either

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
membendith of the House

3. When a charge has been so preferred by either House of Parlament, the other
House shall stripe the charge or cause the charge to be investigated and the
President shall have the Right to Appear and to be

represented as 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 nostal membership of the House by which the charge
was investigated or cause to be investigated declaring that the charge preferred
against the President has been sustained such resolution shall have the effect of
tomo ing the President from his office as from the date on which the resolution
is so passed

In simple terms

The Presidential impeachment for violation of the Constitution follows the

process as given below The charge may be preferred (initiated) by either House
of Parliament Conditions are the following:
 at least fourteen days' notice in writing:

the motion should be signed by not less than one-fourth of the total membership
of the House, and such resolution should be passed by a majority of not less
than two-thirds of the actal membership of the House in which the resolution
originates

When a charge has been so preferred by either The House of Parliament, the
other House will investigate the charges or cause the charges to be investigated.
The House that is in charge of the investigation is presided on by the Speaker or
the Chairman as the case may be. The President has the right to appear and be
represented a such investigation in his defence.

If the investigation upholds the charges of violation of the Constitution against

the President and a resol tion is passed by a majority of not less than two-thirds
of the total membership of the other House, the Preside stands removed from
the date on which the resolution is passed by the second House. The President,
however, continues to discharge his official functions during the period of
investigation

Thus, the steps in the process are:

1. One House prefers the charges to impeach: 2. President is given 14 days

notice as a matter of natural justice; 3. After the vote in the first House, the
second House takes up the charges for investigation: 4. President can defend
himself which is again a part of natural justice, 5. If the charge's is/are proved,
the second House passes a resolution of removal, and 6. President stands
removed from that date.

Note that the majority required is 2/3 of the total membership in each House
unlike any other resolution in Parliament. Also, the first House impeaches-that
is, starts the process of removal by endorsing the investigation into charges of
violation of the Constitution. The second House investigates, and if found valid,
endorses the charges made by the first House. The end result is removal.

Some Constitutions allow the authority to continue in office while the inquiry
proceedings are being con ducted, some do not. In India, he continues to
function till he is removed.
In India, the term impeachment is used for the President because the procedure
is as described above. No other Constitutional authority is removed according to
this procedure and so this term is not used for any other office. For example, the
Comptroller and Auditor General (CAG), judges of the Supreme Court and the
High Courts, and the Chief Election Commissioner are removed. That is, the
first House itself initiates the charges and takes up an investigation which needs
to be supported by the second House Requirements, grounds for removal, and
the majority needed in each House are different and far less rigorous.

In the United States, the process is similar. The Constitution of the United
States gives Congress the author ity to remove the president of the United States
from office in two separate proceedings. The first one takes place in the House
of Representatives which impeaches the President by approving articles of
impeachment through a simple majority vote. The second proceeding, the
impeachment trial, takes place in the Senate. There, conviction on any of the
articles requires a two-thirds majority vote and results in the removal from
office. We have seen the process in vivid detail in 2019-20 when there was a
futile attempt to impeach Donald Trump, the

Forty-Fifth President of the United States. The difference between the India and
the United States (US) is that in India either the House of parliament can initiate
the process while in the US, only the House can.

Oath of Office

Before the President enters upon his office, an oath of office is administered to
him by the Chief Justice of India or in his absence, by the senior-most Judge of
the Supreme Court available, in the form set out in Article 60 of the
Constitution. The President takes oath/affirmation to protect, preserve, and
defend the Constitution. The oath is as follows:

1. (name), do swear in the name of God (or solemnly affirm) that I will
faithfully execute the office of Pres ident (or discharge the functions of the
President) of the Republic of India, and will to the best of my ability to
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 the Republic of India.
Succession to Presidency (Article 62)

The Constitution provides that when a vacancy in the office of the President
occurs by reason of his death, resig tion of removal or otherwise, the Vice-
President acts as the President until the new President enters upon his office.
The election is required to be held within six months from the date of
occurrence of the vacancy The Constitution also provides that when the
President is unable to discharge his functions owing to absence. sess, or any
other cause, the Vice-President shall discharge his functions until the date on
which the President resumes his duties

However, the Constitution does not provide for cases where a vacancy occurs in
the offices both of the President and the Vice-President simultaneously, or
where the Vice-President while acting as, or discharging the Bunctions of, the
President is unable to do so.

The Constitution empowered Parliament to make such provisions as it thinks fit

for the discharge of the functions of the President in any contingency not
provided for in the Constitution. Parliament accordingly. enacted the President
(Discharge of Functions) Act, 1969. It says that in such cases, the Chief Justice
of India or, in his absence, the senior-most Judge of the Supreme Court
discharges the functions of the President.

When the Vice-President, Shri VV Giri, who was acting as the President in the
vacancy caused by the death of the President, Dr Zakir Husain, resigned from
the office of the Vice-President in 1969, the Chief Justice of India, Shri M.
Hidayatullah, discharged the functions of the President.

President's Privileges

The privileges of the President are the following:

•he enjoys immunity for the official acts (Article 361);

no criminal proceedings can be instituted against him for his official and
personal acts while he is in office,

and civil proceedings cannot be instituted for his official acts but in his personal
actions, they can be instituted only after two months notice.
Independence of the Office of the President

The independence is maintained by the following Constitutional provisions:

fixity of tenure-5 years term

impeachment process is a difficult one Article 361 and judicial immunity

Immunity against criminal proceedings

Emoluments and allowances are fixed by the Parliament and charged on the
Consolidated Fund of India.

They cannot be reduced while he is in service.

The President and The Union Council of Ministers: Article 74

India is a parliamentary form of democracy modelled after the British system

where the Council of Ministers headed by the Prime Minister is the effective
Head of the Government and the President (the British counterpart being the
Monarch) is only the ceremonial Head of State without substantial real powers.

Before the Forty-Second Amendment, Article 74(1) stated that 'there shall be a
Council of Ministers with the Prime Minister at the head to aid and advise the
President in the exercise of his functions'. However, there was legal ambiguity
whether the advice of the Council of Ministers is binding on the President.
Forty-Second Amendment of the Constitution of India (1976) made it explicit
that the President shall, 'act in accordance with

such advice.

The Forty-Fourth Amendment (1978) gave the President discretionary power of

a limited nature. It added that the President can return the advice for
reconsideration once. But if the Council of Ministers sends the same advice
again to the President then the President must accept it. Thus, there is
procedural discretion available to the President though not substantial
discretion. The Constitution (Forty-Fourth Amendment) Act 1978 made two
changes in the powers of the President to

invest the institution with greater strength:

• Article 74 has been amended to make it possible for the President to return the
advice of the Council of

11.10 Chapter 11

Ministers once for reconsideration.

• Article 352 is amended to the effect that the written advice of the Union
Cabinet (the word Cabinet is found only in Article 352 of the Constitution) is
necessary for the President to proclaim the national Emergency It is meant to
ensure that the Prime Minister without the approval of the Cabinet can not
recommend. Also, the written advice renders it open to judicial review.

Both Amendments strengthen the President of India and make governance more
accountable. A similar power of asking for reconsideration is not available to
the Governor of a State though the latter has substantially more discretionary
powers.

POWERS OF THE PRESIDENT

Executive or Administrative Powers

While there is no definition of executive powers in the Constitution, they

basically refer to policymaking, policy execution, appointment and removal of
high Constitutional and statutory dignitaries, and related matters. Exec utive
encompasses three levels-at the highest is the ceremonial President of India.
President acts on the aid and advice of the political executive that is the Prime
Minister heading the Union Council of Ministers. Below it is

Article 53 says that all executive powers of the Union are vested in the
President. The President can exer cise them on his own or by his subordinates.
The President appoints the Prime Minister and on his advice other ministers in
the Council.
the permanent civil service

The President can seek information from the Prime Minister and also enforce
collective responsibility of the Council of Ministers which is the centrepiece of
policymaking in the parliamentary system of democracy

(Article 78).

The President has significant powers with regard to the Fifth and Sixth Schedule
provisions in relation to tribals. He can declare that an area in a state is a
scheduled area.

The President directly administers the Union Territories, that is through his
administrators like the Lieuten ant Governor or otherwise. However, the powers
of the President, like in other fields, are subject to the advice of the Council of
Ministers headed by the Prime Minister (Article 74).

Appointments made by the President

President appoints the following:

The Prime Minister and his advice rest of the Ministers in the Union Council

• The Governors of States

• The Judges of the Supreme Court and the High Courts

• The Chief Election Commissioner and The Election Commissioners and The
Regional Election Commis sioners, if any

The Comptroller and Auditor General

The Union Public Service Commission (UPSC) Chairman and Members The
Chairmen and Members of The Statutory Commissions like National Human
Rights Commission (NHRC), Minorities Commission, etc

The Chairman and Members of the Finance Commission every five years The
Special Officer for Linguistic Minorities.
The Attorney General

The power of removal in some cases rests with the President. For example, the
Governor of a state, Attorney General, et holds office during the time they enjoy
the pleasure of the President. Others can be removed by elaborate procedures
the Supreme Court and the High Courts judges can be removed by a
parliamentary vote by a special majority for 'proved misbehaviour or incapacity
and on that basis the President removes them. Similar is the case with The
Comptroller and Auditor General and Chief Election Commissioner. Election
Com sioners are however removed by the President after consulting the Chief
Election Commissioner. The Union Public Service Commission Members,
under certain circumstances, are removed by him.

The President being the guardian of the Constitution, can ask the PM heading
the Council of Ministers to prove majority in Lok Sabha at any time when there
is room to doubt if the government enjoys the majority or not.

The diplomatic powers of the President include the following:

All treaties and agreements are signed by India in the name of the President He
appoints High Commissioners of India (ambassadors to Commonwealth
countries are called High Commissioners) and ambassadors; and receives the
credentials of the ambassadors and High Commis sioners of other countries.

Military Powers

They are the following:

He is the Supreme Commander of Defence Forces, and War and peace are
declared in his name.

Judicial Powers

The President
appoints the Chief Justice and other judges of the Supreme Court and the High
Courts. removes the judges mentioned above if the two Houses of the
Parliament pass resolutions to that effect by the special majority for 'proved
misbehaviour and incapacity (Article 124).   may seek the advisory opinion
of the Supreme Court (Article 143). Mercy powers (Article 72).

However, even while the above powers are classified conventionally as judicial
powers, none of the above is technically considered a judicial power and are
executive powers. The reason is: judicial power is that which is exercised
independently and on conducting hearings. President's appointment powers are
exercised on the advice of Collegium and thus are not independent. Removal of
judges is by parliamentary vote. President's mercy powers like most other
powers are exercisable on the advice of the Council of Ministers and so is not
an independent power.

Mercy Powers

The President can issue the following orders of mercy to the convicted people in
India (Article 72) Pardon means absolving the convict of all guilt and
punishment. Commutation is the reduction of punishment from a death sentence
to life

Remission is a quantitative reduction of a punishment without affecting the

nature of punishment, imprisonment example, 2 years of rigorous punishment
becomes year of rigorous punishment. Former Calcuna High Court judge C. S.
Karnan made an appeal before newly sworn-in President Ram Nath Kovind
seeking remission of the six-month jail term awarded to him by the Supreme
Court for contempt of court Respite means a reduction of punishment in view of
a special fact, for example, pregnancy or old age • Reprieve is a stay of death
sentence or life imprisonment pending an appeal for pardon or commutation

President's Clemency Powers: Critical Appraisal

The need for the mercy powers of the President is the following:
The importance of Article 21 which guarantees the Right to Life.   sovereign
power is meant to keep public faith in the criminal justice system The fallibility
of the judgment of the Apex court.

The judicial verdict may be too harsh and the convict deserves relief

Based on the same evidence and on some other factors like remorse, a record of
behaviour, and so on, the President can give relief partly or wholly

The power entrusted is a power belonging to the people and reposed in the
highest dignitary of the State. President being the symbol of people in a
republican country like ours.

The personality of the President and his/her value system is also a factor in the
exercise of mercy powers. For example, former President KR Narayanan (1997-
2002) is known as a 'no hanging President. Thus, the President acts on a wholly
different plane from that of the Court, the latter being guided exclu sively by
evidence.

Criteria for Clemency

The following are the legitimate and relevant considerations for the exercise of
the pardon power.

The seriousness of the offence

.There is a shade of doubt about the convict's guilt The health of the prisoner,
especially any serious illness from which he may be suffering

• Post-Conviction conduct, character, and reputation

• Remorse and Atonement

The effect on the family members of the victim

The period of imprisonment undergone and the remaining period. 
The interest of society and the convict

Age Income

Disabilities

Motive

Sufficiency of evidence

Disagreement among judges

Delays

The years spent in a cell awaiting the gallows

If there is a possibility, however remote, that the prisoner could be innocent.

As with almost all other powers this power is also exercisable on the advice of
the Council of Ministers headed by the Prime Minister, it is not to be exercised.
The Supreme Court can review the decisions of the President The Supreme
Court has categorically ruled that the power of pardon cannot be exercised for
considerations of religion, caste, ethnicity, or political loyalty. The exercise of
mercy powers should not be mala fide or is arbitrary The Presidential power of
mercy is not considered a judicial power as the President does not hear any
arguments; also, the power is exercised on the advice of the Union Council of
Ministers.

Death Penalty

The death penalty means putting to death an offender sentenced to death after
conviction by a court of law of a

criminal offense. The process takes place according to an elaborate mechanism

laid down in law. Capital pun ishment should be distinguished from
extrajudicial executions carried out without due process of law. The judicial
order that a guilty person is punished by death is known as a death sentence. A
prisoner await ing execution is said to be on death row.

Examples of crimes punishable by death in India include aggravated murder,

offences resulting in death, terrorism, certain cases of rape, kidnapping, and
drug trafficking; treason, espionage, and military offenses in certain cases;
honour killings (usually the murder of a woman or girl by male family members
with the accusa tion that she has ruined family honour or community honour).
The death penalty is not a mandatory punishment for the above-listed crimes.
But such crimes may attract the death penalty. The Supreme Court ruled that the
mandatory death penalty is unconstitutional. Fifty-Six countries retain capital
punishment; 106 countries have completely abolished it for all crimes.

The United Nations General Assembly adopted non-binding resolutions many

times calling for a global moratorium on executions, with a view to eventual
abolition. China is said to execute more people than all other countries
combined. 

The reasons for having the death penalty in the statute books are: to prevent
such crimes by harsh punish

ment: those who commit such heinous crimes are non-reformable; victims have
expectations of justice etc. Arguments against it are: there is no evidence that
deterrence works; fallibility of judicial process; there are no born criminals;
object of punishment is reform; death is final and irreversible; there are no
objective stand ards for a death sentence; disadvantaged sections are vulnerable
to it while privileged sections are not.

Death Penalty under Indian Law

Under Article 21 of the Constitution of India, no person can be deprived of his

life except according to the pro cedure established by law, India has the death
penalty in 46 provisions under various Acts, where the death penalty is
prescribed for specific crimes as mentioned above. Due process is followed.
The legal process a allows a convict to go from the trial court to the High Court
and to the Supreme Court that can even allow curative petition before
confirmation of death sentence, is the due process. President of India and
Governor of a State
have the power to show mercy and par don a convict. After the mercy petition is
disposed off, the Supreme Court can be approached again.

Article 21 of the Constitution shows that the founding fathers recog nized the
rights of the state to regulate law and order and impose the death penalty on a
person in accordance with the fair, just, and reasonable pro cedure established
by valid law. The

justiciability of Article 21 has been further strengthened when the Supreme

Court added due process of law to protection of life and personal liberty the
Maneka Gandhi case in 1978.

The Supreme Rulings on the Death Penalty

The Supreme Court's five-judge Constitution Bench judgment in Bachan Singh

vs State of Punjab (1980) laid down the basic rules about penalty and mercy in
India. It introduced the doctrine of rarest of rare crimes which say that the death
penalty is to be given for exceptionally cruel and grave crimes. It should be
given only when the crime is heinous because punishment should be
proportional to the gravity of the crime, and when any other punishment is
clearly inadequate. Courts must consider the aggravating features of the crime,
as well as the mitigating factors of the criminal- that is, those features that make
the convict deserve the death penalty and those that to moderate the punishment
respectively.

In the Machhi Singh vs The State of Punjab 1983, the Apex court laid down five
aspects of crime in order to identify the rarest of rare crimes deserving death
sentence. These five categories are:

manner of commission of murder (brutality);

the motive for commission of murder (cold-blooded and pre-meditated);

anti-social or socially abhorrent nature of the crime (dowry deaths, honour
killings, etc);

the magnitude of crime (terrorism), and   the personality of a victim of

murder (child or person or helpless woman).

In 2014, in the Shatrughan Chauhan case, the Supreme Court held that the death
sentence of a condemned prisoner is automatically commuted to life
imprisonment on the ground of delay on the part of the President in deciding the
mercy plea. However, the assessment of unconscionable delay is a matter of
judicial opinion and the court did not quantify it.

The doctrine of rarest of the rare has to an extent been rendered redundant for
various reasons as pointed out by the Law Commission in 2015 in its 262
reports. The Commission recommended the abolition of the death penalty
except in terror-related cases. Terror-related cases also should in due course be
ineligible for the death penalty. The reasons are:

Deterrence is not proved; It is judge centric, and It disadvantages the vulnerable.

The current debate in India has acquired a new aspect: judicial rulings should
give due weight to the rights of victims and society as against the rights of the
convict. The context is that in 2020, four death convicts were hanged for the
brutal and murderous rape in the Nirbhaya case. The four Nirbhaya convicts
separately and re peatedly approached the courts for relief which delayed the
execution.

The arguments for victim-centered justice want that the court should set short
deadlines for death row.com victs to seek legal remedies; the court should limit
the time for filing the curative petition; mercy plea should be filed within a
week of the issuance of death warrant; If mercy plea has already been rejected,
death warrant should be issued within the next seven days and execution carried
out a week thereafter. If multiple convicts are involved, as in the Nirbhaya case,
they may be hanged separately.
Those who argue against the death sentence say that since death is irreversible,
there should be ample opportunity to see if it is flawed.

President and Governor and Mercy Powers

President and Governor have their mercy powers in relation to their respective
jurisdiction-Union List and State List, in Article 72 and 161 respectively. On
Concurrent List subjects both have the power depending on whose

Law is the basis for prosecution- State or Union law President is not higher than
Governor. However, the one power only President has cancellation of guilt and
restoration of innocence in case of a death sentence. Governor can so for all
other penalties except the death penalty. For example, life imprisonment can be
completely ancelled by the Governor Governor can commute a death sentence
but can not pardon the convict: complete cancellation of a judicial order.

Besides, a sentence by a Court Martial can be undone by the President and not
the Governor

Legislative Powers of President

According to Article 79, the Parliament consists of the President and the two
Houses of Parliament the Coun cil of States (Rajya Sabha) and the House of the
People (Lok Sabha). Thus the President is the Head of Union executive as well
as a constituent part of the Parliament. The President is made a component part
of the Parlia ment as it is a characteristic feature of Westminster type of
parliamentary democracy where the Executive is a part of the Legislature.
Besides, a Bill passed by the Parliament becomes law only after the President
assents to (Article 111). President has multiple parliamentary responsibilities as
we will see ahead.

Summon, Prorogue and Dissolve

The President shall from time to time summon each House of Parliament to
meet at such time and place as be 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. President summons from time to time cach House of
Parliament, prorogues both the Houses or either House; and dissolves the Lok
Sabha (Article 85). Summon means to call the House into the session. Prorogue
means to terminate a session. Dissolve means to end the life of Lok Sabha and
pave way for general elections to constitute a new Lok Sabha.

Address the Parliament and Send Messages 

At the commencement of the first session after each general election to the Lok
Sabha and at the commence

of the first session of each year (calendar year), the President addresses both
Houses of the Parliament

assembled together and informs the Parliament of the causes of its summons
(Article 87). President has the Right to Address either House of the Parliament
or both Houses assembled together any other time of his choice; and send
messages to either House, whether with respect to a Bill then pending in
Parliament or otherwise (Article 86). However, since the commencement of the
Constitution, the President has not so far addressed a House or Houses together
under this provision.

As Article 87 makes it clear, the Address is to be to both Houses of the

Parliament assembled together. In other words, it means that if at the time of
commencement of the first session of the year, the Lok Sabha has been
dissolved and the Rajya Sabha has to meet, then the Rajya Sabha can have its
session without the Presi dent's Address. During the dissolution of the Lok
Sabha in 1977 and 1991, the Rajya Sabha had its sessions in February 1977 and
June 1991, respectively without the President's Address

The President's Address to both Houses of Parliament assembled together is a

constitutional obligation for the President. It is a statement of the government
policy of which, as the constitutional head, he is the symbol. The discussion on
the Address is initiated by a Motion of Thanks moved by a member and
seconded by another member and is put to vote. It is adopted with or without
amendments.
Appointment of Protem Speaker and Protem Chairman

The President appoints pro tem Chairman of the Rajya Sabha Article 91(1) and
pro tem Speaker of the Lok Sabha-Article 95(1) under certain circumstances.
Protem Chairman of Rajya Sabha is appointed from among

the members of Rajya Sabha when the offices of the Chairman and the Deputy
Chairman of Rajya Sabha are vacant. Protem Speaker is appointed in the new
Lok Sabha to swear in the newly elected members after the general election.

Sh Virendra Kumar was sworn in as Protem Speaker of Seventeenth Lok Sabha

by President Ram Nath Kovind. The main duty of the pro-tem speaker is to
administer the oath of office to newly elected members of the Lok Sabha after
the general election. He presides over the House when the Speaker is being
elected. Once the new Speaker is elected, the pro tem speaker ceases to be so.
The powers of the pro tem speaker are not defined. But it is assumed that he has
all the powers that the Speaker has till the Speaker is elected. That is, he is the
de facto Speaker.

The context in which the Protem Speaker is appointed is the following: The
Constitution does not expressly use the term 'Protem Speaker: The office of the
Speaker becomes vacant immediately before the first meeting of the new Lok
Sabha. In that case, the duties of the Speaker are to be performed by a Member
of the House appointed for this purpose by the President. He is the Protem
Speaker. He serves as a temporary Speaker till the new Speaker is sworn in

In the meanwhile, the newly elected members have to be sworn in. The
Constitution says that every Mem ber of the Parliament, before taking his seat in
the House, is required to make and subscribe to the oath or affirmation before
the President or before the person appointed by him in that behalf. (Article 99)
The Pro tem Speaker thus is appointed by the President and discharges this
function of the President on behalf of the President.

There are no 'Rules of Procedure laid down for the appointment of Protem
Speaker. Pro-tem Speaker is entitled to all rights, privileges, and immunities of
the Speaker under the Constitution of India.
Nomination

The President nominates to the Rajya Sabha twelve persons having special
knowledge and practical experience in respect of such maners as literature,
science, art, and social service. (Article 80) The President also nom nated to the
Lok Sabha not more than two members to represent the Anglo-Indian
community, if he is of the opinion that the community is not adequately
represented in the Lok Sabha. (Article 331)

Anglo-Indian Nomination

Article 334 of the Indian Constitution gave reservation to the Anglo-Indian

community for 20 years after the commencement of the Constitution and was
extended from time to time till 2020. In January 2020, the A glo-Indian reserved
seats in the Parliament and State Legislatures of India were abolished by the
104th Come tutional Amendment Act, 2019 for the reason that their numbers
were minimal

Disqualification of Members of Parliament

The President is the authority to disqualify a member of parliament under

certain circumstances. Grunds of disqualification of a Member of Parliament are
given in Article 102. Article 103 says that before the Pres ident decides on the
disqualification, The President shall obtain the opinion of the Election
Commissio and shall act according to such opinion. Such disqualification,
according to Article 102, can arise from the following:

• If a member holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law
not to disqualify its holder If he is of unsound mind and stands so declared by a
competent court, If he is an undischarged insolvent,
If he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgment of allegiance or adherence to a
foreign State; If he is so disqualified by or under any law made by Parliament.

Not all cases of disqualification are dealt with by the President of India. For
example, defection-based disqual ification is in the jurisdiction of Speaker and
Chairman of Lok Sabha and Rajya Sabha respectively as far as parliament
members are concerned.

Prior Recommendation of the President for Some Bills

The President's prior recommendation for the introduction of a Bill is required

for the following:

• Introduction of a Bill relating to the formation of new States or alteration of

areas, boundaries or names

of existing States (Article 3).

• Money Bill-Article 110.

• Financial Bill (B) after it is introduced but before it is taken up for

consideration Second-Reading) Article

117(3)

Introduction of a Bill or moving of an amendment affecting taxation in which

States are interested or

changing the definition of agricultural income'. • State Bills restricting freedom

of trade (Article 304).

It is clear that the above provisions centre around either of the two features as
given below: • Federalism and the rights of the states

• Money matters.
The role given to the President is to preserve the federal character and ensure
that fiscal (financial) stability and Joint Session of Parliament

In the case of disagreement between the two Houses on a Bill (other than a
Money Bill and Constitution Amend ment Bill), the President may summon a
joint sitting of both Houses-Article 108(3). (Details in the Chapter on

the Parliament).

Laying of Statements, Reports, etc.

The President causes to be laid before both Houses of the Parliament in respect
of every financial year. •Statement of the estimated receipts and expenditure of
the Government of India (Budget) for that year

(Article 112).

 Statements showing supplementary or additional grants or excess grants

(Article 115) Reports of constitutional bodies such as;

Comptroller and Auditor-General of India, (Article 151)

• Finance Commission, (Article 281) • Union Public Service Commission,

(Article 323)

• Commissions for the Scheduled Castes and Scheduled tribes (Article 338) 

Backward Classes Commission, (Article 340)

• Commissioner for Linguistic Minorities, (Article 350B)

Promulgation of Ordinances

The Parliament is not in session round the year. There are times when either of the two
Houses or both the Houses are not in session. There may arise a need for making law-new
law or amend the existing law. In such circumstances, the Constitution enables the President
to promulgate an ordinance. It is an executive law that comes into force as it is promulgated.
However, it has to be converted into legislation after the parliament meets

For example, the President Ram Nath Kovind promulgated the Epidemic Diseases
(Amendment) Ord nance, 2020, aimed at protecting healthcare professionals against violence.
It was the need of the hour and Parliament was not in session. It amended the Epidemic
Diseases Act, 1897.

12 ordinances were promulgated between April-June 2020 due to the abnormal conditions
created by the

lockdown

Article 123 says that if at any time, except when both Houses of Parliament are in session, the
President is satisfied that circumstances exist which render it necessary for him to take
immediate action, he may promul gate Ordinance as the circumstances require. Like most
actions, it is also exercised on the advice of the Union Council of Ministers. An Ordinance so
promulgated by the President has the same force and effect as an Act of the Parliament.
Every Ordinance has to be laid before both Houses of Parliament and it ceases to operate at
the expiration of six weeks from the date of reassembly of Parliament. It may be disapproved
before the expiration of that period if both Houses pass a resolution to that effect.

The President may issue an Ordinance to:

• Enforce the provisions of a Bill introduced in, and pending before a House; • To enforce the
provisions of a bill already passed by one House but not yet passed by the other House,

On an entirely new matter, or

• For a temporary purpose. 

The contents of the Bill to convert the ordinance into legislation may be different from the
contents of the or dinance.

The ordinance can not be promulgated to amend the Constitution. But can be promulgated on
every legis lative matter including the contents of the Money Bill.

The Parliament in session can be prorogued if there is an urgent need to promulgate an

ordinance. The ordinance may be promulgated even when the Lok Sabha is dissolved. Also,
in the interim when a new Lok Sabha has been elected but not constituted- members not
sworn in.

Ordinances can be promulgated any number of times if there is an objective need. An

ordinance to Amend Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement was prom ulgated thrice before being allowed to lapse in
2015. The President. Enemy Property (Amendment and Valida tion) Ordinance was
promulgated five times till 2016,

If re-promulgation takes place only to bypass parliament and ordinance become the basis of
governance, it is called ordinance raj. It involves the government avoiding making legislation
and instead rely on ordinances because legislative debate and vote may unsettle the party in
power. Only genuine cases of re-promulgation will be allowed by the judiciary.

Rule by the ordinance is against the spirit of the parliamentary democracy. Therefore, there
are safeguards built into the Constitution like:

• Promulgation is permitted only when either House or both are not in session

 It cannot amend the Constitution

• The Parliament needs to be explained the reasons for the Ordinance

It cannot last for more than 6 weeks after parliament reconvenes

. The Parliament-both the houses independently of each other-can pass a resolution seeking
its discontin uation before the period of 6 weeks expires after the reassembly of the
Parliament
. Whenever a Bill seeking to replace an Ordinance with or without modification is introduced
in the House, a statement explaining the circumstances which had necessitated legislation by
Ordinance, is required to

be placed before the House along with the Bill   Judicial review is also a limitation on
recourse to the ordinance (Cooper's case verdict 1970).

Constitutional experts and others have objected to the frequent resort to the power to issue an
Ordinance by the Government, particularly on dates too close to a session of the Parliament.

Of late, ordinances have become necessary for one additional reason: coalition government,
lacking in a majority in the Rajya Sabha is not in a position to have the Parliament pass the
Bill. But international treaties may require that the Parliament enact legislation. Or the Nation
needs law immediately. In such circumstances, the Government promulgates and re-
promulgates the ordinances to make the necessary law. It should not be considered a misuse
of the powers.

mul nion t of the tion In Cooper's case (1970) and the A K Roy case (1982), the Supreme
Court upheld the power of courts to review the justification for the ordinance. The Supreme
Court in D. C. Wadhwa vs State of Bihar (1986) ruled that it is unconstitutional to re-
promulgate ordinances, unless in exceptional circumstances. The primary author ity to enact
legislation in the legislature.

Veto powers

Vet (Latin for "I forbid") means that a party has the right to stop unilaterally a certain piece of
legislation. The President of India has veto powers with regard to a Bill passed by the
Parliament and under certain circumstances the State legislature also, A Bill becomes an Act
only after the President assents to it. After a Bill has been dly passed by Parliament, it is
presented to the President for his assent. He has the option of assenting to it or exercising any
of the following types of veto (Article 111)

• Withhold assent, that is, reject the Bill, in which case that is the end of the Bill. It is called
an absolute veto. Technically, he may reject any Bill except a Constitution Amendment Bill.
Usually, he rejects in following conditions:

1. in case of Private member's Bill;

2. State bill, or
3. Union Bill has not been passed following the correct procedure.

A private member is a Member of Parliament who is not a minister. He has as much power as
the minister to introduce any Bill in the House to which he belongs. That includes Money Bill
also though conventionally, Money Bill is introduced only by the Finance minister. If the
private member's Bill is passed by the Parliament and the government is disinclined to see it
as law, it may advise the President to reject it.

A State Bill may be reserved for Presidential assent by the Governor of the State (Article
200) and the Pres ident may return it for repassage by the state legislature any number of
times (Article 201). Effectively, it is an absolute veto as the State legislature can not prevail
over the President.

The President may reject it by withholding his assent also. It is called the absolute veto. The
President Venkataramanan withheld assent from the Members of Parliament (Salary,
Allowances, and Pensions) Bill 1991 as it was not introduced with his prior recommendation.
It is an example of an absolute veto.

He may return the Bill if it is not a Money Bill to the Parliament with a message for
reconsideration of the Bill or any specific provision thereof. When a Bill so returned is passed
by both the Houses again by a simple majority, with or without amendment, the President
cannot withhold assent. It is called a suspensive veto.

The President cannot cast a suspensive veto for a Money Bill. He can, however, cast an
absolute veto-that is, be can reject it.

Fact Check

The President also has a pocket veto. Since the law does not prescribe any time limit for the
President to decide on a Bill, he may not commit himself either way for any reason. The
pocket veto means not acting on a bill sent to him after due passage by the legislature. He
may do so for any number of rea sons. Generally, the pocket veto is used to buy time in
circumstances of political fluidity- for example, in the run-up to general elections, if the
Parliament passes a Bill which the President believes may not be accepted by the party that
may succeed, he may sit on the Bill till there is clarity. The President Pranab Mukherjee gave
his assent to the Maharashtra Animal Preservation (Amendment) Bill in 2015. But the Bill
was passed in the Maharashtra Assembly in 1995 and the Governor sent it to the President for
his assent but did not receive
presidential approval until 2015.

deat for tis

In 1986, the President of India, Gyani Zail Singh exercised pocket veto with regard to the
Indian Post Office (Amendment) Bill as in his opinion it was violative of Fundamental Rights
in Article 19 as the Bill author ized intercepting the mail. He did not want to use the
suspensive or absolute veto and so took no decision-used the pocket veto. It was the first time
that a President used a pocket veto. The President R. Venkataraman in 1991 returned it to
Rajya Sabha. In other words, used a suspensive veto. The Bill survived the dissolutions of the
Lak Sabha as it was returned to the Rajya Sabha. It was withdrawn about a decade later.

A Constitution Amendment Bill shall be assented to by the President (Twenty-Fourth

Amendment Act 1971). There is no other Bill which denies the President the power of
absolute veto. Technically, he can still car pocket veto but that is against the spirit of Article
368

The Money Bill cannot be returned to the Parliament but assent can be withheld- that is, there
is no scope for a suspensive veto but the absolute veto is allowed.

The need for the Presidential veto arises because

1.  he legislative does not have competence breached

2.  Bill is ill-conceived
3. Bill is hastily passed
4. If he has suggestions about how to improve the Bill 
5.  If Fundamental Rights and other Preambular values are violated
6. If the procedure is not followed.

In sum, there are substantive and procedural grounds for the President to exercise his veto,
Generally, in 1 parliamentary democracy of the Westminster type like ours where the
Presidency is a ceremonial institution veto powers are exercised on the advice of the Union
Council of Ministers. For example, rejection of a privat member's Bill. A private member's
bill is a bill introduced by a Member of Parliament who is not a minister 3 may have found
support for parliamentary passage but is against the priorities of the Government. Council of
Ministers may advise the President to reject it. If a State Bill is repugnant with a Union law,
the President may reject it or return with suggestions for modification through a repassage by
the state legislature. If the state de not comply, the President may persist any number of times
by returning it.

Presidential Veto and State Bills

The Constitution lists certain special circumstances under which a state bill should receive
the assent of t President in order to become a law. Thus, under Article 31A a State Bill
providing for compulsory acquisition
or requisition of property is not valid unless it has been reserved for the consideration of the
President and has mceived his assent. The underlying idea is as follows under article 31A it is
necessary to pay compensation for the property acquired or requisitioned but the adequacy of
the compensation cannot be questioned in courts. In the absence of judicial scrutiny, the
Centre while giving assent can ensure that the states do not take away private property
without compensation and further that compensation is given on certain uniform principles
throughout the country

Similarly, under Article 31C some types of state Bills providing for the acquisition of
property have to obtain the assent of the President to become law. Such Bills cannot be
questioned in courts for violation of Fundamental Rights and so the Presidential power
enables the state laws not to contain provisions violating the Fundamental Rights

Under Article 200 the Governor of a State has to reserve for the consideration of the
President, any bill by the Legislature, which in his opinion would prejudicially affect the
powers of the High Court. This provision enables the Centre to safeguard the status of the
High Courts under the Constitution. Under Article 201, the Governor of a State may reserve
any Bill passed by the state legislature for Presidential assent.

Under Article 254(2), a State law in respect of a matter in the concurrent list which is
repugnant to existing central law on the same matter may be reserved for Presidential assent
by the Governor. If it is assented to by the President, it will remain valid. If the law is not
referred to the President and assent is not taken, there is the possibility of judicial
nullification due to repugnance.

Under Article 288(2) a state law which imposes a tax in respect of water or electricity stored,
generated, consumed, distributed, or sold by any authority established by parliamentary
legislation for regulating or developing any inter-state river or river valley, has no effect
unless it has received the President's assent. The reason is that central scrutiny is necessary to
prevent the states from undertaking taxing measures that would hamper the proper
development of inter-state rivers.

Article 304(b) empowers the State government to impose reasonable restrictions on the
freedom of trade and commerce within that state or with another state, as may be necessary
for the public interest. However, no such bill is to be introduced or moved in the state
legislature without the previous sanction of the President Under Article 360 when a
proclamation of financial emergency is in operation, the central executive author ity extends
to giving direction to states requiring all money bills or financial bills to be reserved for the
consideration of the President after they are passed by the state legislatures. 
Under all the above circumstances it is mandatory for state bills to receive the assent of the
President. If the President vetoes the bill, it cannot become a valid law. Any such Bill can be
assented to or rejected or returned by the President. There is no time limit for him. He may
delay without any limit. He may return the Bill any number of times. The President cannot
return a Money Bill of the state that is sent to him. He may assent to it or reject it.

When a Bill is returned, the President may direct the Governor to return the Bill to the
Legislature of the State together with such a message. When a Bill is so returned, the
legislature shall reconsider it accordingly within a period of six months from the date of
receipt of such message and, if it is re-passed with or without amendment, it shall be
presented again to the President for his consideration. It is not binding on the President. 188
State bills were sent for the consideration of the President Pranab Mukherjee during his term
(2012

2017). He assented to 155 Bills.

Emergency Powers

If the President is satisfied that a grave emergency exists whereby the security of India or any
part of its territory is threatened, whether by war or external aggression or armed rebellion,
(Article 352); there is a failure of constitutional machinery in a State (Article 356), or a
situation has arisen whereby the financial stability or credit of

India or of any part of its territory is threatened, (Article 360) he issues a Proclamation for the
purpose. These Proclamations need parliamentary approval.

Financial powers

Tha president of india enjoys financial powers

No money bill can be introduced in the Parliament without the recommendation of the
President. • The President of India is responsible for the presentation of the Annual Financial
Statement (Annual Budget).

• Financial Bills require the prior recommendation of the President. Some other money-
related Bills as mentioned elsewhere also need the President's prior permission to be

introduced in the Parliament.

• President causes the reports of the Finance Commission to be tabled in the Parliament.

President and the Prime Minister

Article 78

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. 1. 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; 2. 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

3. if the President so requires, to submit for the consideration of the Council of Ministers any
matter on which decision has been taken by a Minister but which has not been considered by
the Council.

The President has unique power under Article 78 which casts upon the Prime Minister a duty
to provide information to the President voluntarily on matters of governance. Decisions of the
council of ministers relating to the administration of the affairs of the union and proposals of
legislation must be communicated to him. The President may seek more information on the
same or any other matter. Whereas all decisions of the council of ministers must necessarily
be communicated to the President, any other information relating to the administration or
legislation is also to be furnished at the request of the President. It helps him to understand
the working of the government

Article 78 empowers the President to enforce the collective responsibility of the Council of
Ministers to Lok Sabha.
The President does not participate in the decision-making process of the cabinet but by
exercising his right under article 78, he can influence the decision-making process of the
government indirectly. Article 78 embodies the principle that the President, like the British
monarch, has the 'right to be consulted, encourage, and warn (Walter Bagehot).

All major decisions of the government are collectively taken by the council of ministers.
Collective responsibility means that members of the Council of Ministers should have
freedom for discussions prior to coming to a collective decision on policy matters. Once a
position has been agreed in Cabinet, all ministers are expected to abide by that position; not
to criticize it in public; and vote with the government, or else resign from office,

The Minister who has breached collective responsibility is expected to resign. If he does not
resign, the Prime Minister can have him removed as a Minister by advising the President to
do so.

The importance of the principle in parliamentary democracy is that the entire council is
committed to the e set of priorities and follows them in public policy. A breakdown of
collective responsibility can be destsning and may mean a lack of unity of purpose and
absence of coherence and consistency.

The power under Article 78 is a discretionary power. The very nature of the power under
Article 78 is such that it cannot be used in harmony with Article 74. That is, the Council of
Ministers can not advise the President exercise the power according to their priorities.

If the Prime Minister violates his duty under Article 78, no sanction is prescribed in the
Constitution. But parliamentary democracy, it is the prerogative of the Lok Sabha to take
cognizance of the matter and vote the government out by a no-confidence motion under
Article 75(3) of the Constitution

President and Caretaker Government

Lok Sabha has a life of five years. Months before the five-year term ends, general elections
are held. While the elections are being held. Lok Sabha is still in force as its term is not
exhausted. As soon as the general elections are announced, the incumbent government
becomes Lame Duck-it can not take substantive decisions due to reasons of propriety. All
important decisions have to wait till the new government is sworn in. When the results of
elections are announced, the incumbent government-the Prime Minister heading the Council
of Ministers-resigns, But the President asks them to continue in power. It is called caretaker
government till it is ferworn in (2009 and 2019) or a new government is sworn in (2004 and
2014). It is also a Lame Duck if it is defeated

In 2004, the National Democratic Alliance (NDA) government advised the President to
dissolve the Lok Sabha prematurely. President asked the Prime Minister to continue as the
caretaker. Thus, a government that continues to be in office even after the dissolution of Lok
Sabha is a caretaker government.

A caretaker government is not a Constitutional concept but a practical compulsion as there

cannot be a Constitutional vacuum because there is no provision for the President's rule at the
centre. The opric for the President are the following:

• Let the incumbent government exit. But it will create a constitutional vacuum and so is not
a valid choice. • The President to take over the responsibility of administration for which
there is no Constitutional sanction because we are a parliamentary democracy. The case is
different in the State when President's rule is imposed as the state comes under the
governance of a democratically elected central government.

The most appropriate option is to ask the incumbent ministry to continue to take care of the
Government till a successor is sworn in. A Caretaker government like the Charan Singh
Ministry in 1979 lasted 5 months; the Gujral ministry lasted

4 months in 1997-98 and the Vajpayee ministry lasted longer in 1999.

An important question is whether crucial decisions regarding national security; foreign

policy; international treaty obligations like patent laws; economic policy like FDI, support
prices for farmers; transfers of senior officials, etc could be taken by the caretaker
government. In fact, Kargil tragedy exposed the nation to international hostility when the
caretaker government was in power. There is, thus, the need to lay down norms governing the
caretaker government. The President must evolve conventions in such political circumstances
for the governance of the country.

Recurrence of the minority governments; their inherent instability; and the relatively long
periods for which caretaker governments are in power forced the ceremonial Presidency' to
become a 'working Presidency" The conventions for the relationship between the President
and the Council also have to be redefined in such a context.
Constitutional Role of President

The President of India, the Head of the State, is a formal position. Real power rests with the
Prime Minister heading the Council of Ministers-called Head of the Government. Article 74,
as seen above, says that the President shall act on the aid and advice of the Council of
Ministers. The role of the Head of State is to 'reign and not rule-similar to the British Crown.

British Constitutional expert Walter Bagehot said that a 'constitutional monarch" has the right
to be consulted, to encourage, and to warn'. It applies to the President of India as well since
the roles are almost identical. The powers of the President are interpreted in different ways by
different scholars-some say that he has only a ceremonial role while a few others say that his
role is substantive. However, the consensus opinion is that the President of India almost
always acts on the aid and advice of the Council of Ministers except under the following
circumstances when he acts on his own:

In selecting the Prime Minister from among the contenders when general elections result in a
hung parliament.

In the dissolution of the Lok Sabha when the Council of Ministers is voted out or resigns and
advises the President to dissolve the Lok Sabha but a significant portion of the life of Lok
Sabha still remains. The President is expected to exercise his discretion in such circumstances
to explore the possibility of forming an alternative

Asking the Council of Ministers to reconsider the advice-Article 74(1)   Article 78

powers direct the Council of Ministers to prove its majority if there is any indication that they
may have lost it. It is particularly true in the coalition era.

The President uses his discretion while exercising the above powers. There are other
functions the President that he exercises independently of the Council of Ministers but

on the basis of advice from others. They are:

• Appointment of judges to the higher judiciary which takes place on the advice of the
Collegium. Disqualifying members of the Parliament in consultation with the Election
Commission (Article 103).

Presidential Form of Government

Presidential democracy, the classical American type, is characterized by the executive and the
legislature being completely separated. Neither the President nor his cabinet can be members
of the legislature. If they are members, they have to resign. It is the opposite of the
characteristic feature of parliamentary democracy where the executive-ministers-are
necessarily members of the legislature. It is being recommended for India as it carries the
following advantages:

The President has a fixed tenure and removal through impeachment is very difficult and thus
ensures stability.

 Since a member of the cabinet need not be a legislator, the choice becomes wider.   
the directly elected President will be dynamic and will carry enormous political capital that
can be con

verted into nation-building.

On closer scrutiny, none of the above advantages is strong enough for India to adopt the
system.

Indian polity is stable since 1999 when no government fell prematurely. Wide choice for
appointment as ministers is available in India too as a non-member of the Parliament can be
appointed a minister with the proviso that within six months he or she has to become a
member of the legislature. A directly elected President can become authoritarian. In fact,
India needs more decentralization.
INTRODUCTION

The Attorney General for India is the chief legal advisor of the Government of India and its
primary lawyer in the Supreme Court of India and High Courts. The Attorney General is the
highest law officer in the country. He is appointed by the President of India under Article
76(1) of the Constitution and holds office during the pleas ure of the President. He receives
such remuneration as the President may determine.

The General must be a person qualified to be appointed as a Judge of the Supreme Court. The
Anorney General is responsible for giving advice to the Government of India in legal matters
referred to him. He also performs other legal duties assigned to him by the President.
The Attorney General is to be consulted only after the Ministry of Law has been consulted.
All references to the Attorney General are made by the Law Ministry.

The Attorney General has the right of audience in all Courts in India. Article 88 of the
Constitution of India expressly provides that every Minister and the Attorney-General for
India shall have the right to speak in, and take part in the proceedings 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 be entitled to vote.

The Attorney General appears on behalf of the Government of India in cases in the Supreme
Court and High Courts in which the Government of India is concerned. Attorney General
represents the Government of India in any reference made by the President to the Supreme
Court under Article 143 of the Constitution.

Attorney General is not a government servant and is not debarred from private legal practice.
But he cannot appear against the Government of India. He cannot defend an accused in the
criminal proceedings and accept the directorship of a company without the permission of the
Government.

Law officer is a term that applies to the three: Attorney General for India, Solicitor General
of India, and the Additional Solicitors General. The Attorney General is assisted by a
Solicitor General and many Additional Solicitors General.

Advocate General for the State government is the counterpart of Attorney General for India.
He is a legal advison to the State government. The post is created by the Constitution of India
and corresponds to that of the Attorney General for India. The Governor of each state shall
appoint a person who is qualified to be appointed as judge of the High Court as the Advocate
General.

SOLICITOR GENERAL OF INDIA

The Solicitor General for India is subordinate to the Attorney General of India. The Solicitor
General for India is the second law officer of the country; assists the Attorney General; and is
himself assisted by many Additional Solicitors General for India. It is not a Constitutional
post like the Attorney General. Like the Attorney General for India, the Solicitor General and
the Additional Solicitors General advise the Government and appear on behalf of the Union
of India in courts as they have a right of audience in all courts in the country. Union Law
Ministry appoints the solicitor and additional solicitor general.

INTRODUCTION

The Parliament refers to the national representative and legislative body. That is, it represents
people and makes laws. Its other functions include holding the Executive responsible,
deliberating on various im portant public issues, and enforcing discipline on some
Constitutional authorities.

Parliamentary democracy is a distinct form of polity. It is a system of democratic government

in which the party or a group of parties with a majority in the parliament forms the
government; its leader becomes prime minister. The Prime Minister chooses members of the
ruling party or coalition as ministers.
The Constituent Assembly of India was formed to draft the Constitution of India. In 1946.
Following India's independence from the British Government in 1947, its members served as
the nation's first Parliament. On 26 January 1950, the Constitution took effect
(commemorated as Republic Day), and the Constituent Assembly became the Provisional
Parliament of India and continued till after the first general elections for Lok Sabha under the
new constitution in 1951-52.

Rajya Sabha came into force in 1952. Parliamentary democracy in India is based on the
British model of democracy. It is referred to as the Westminster model of parliamentary
democracy. (Palace of Westminster, the seat of the British parliament.) In this model, the
importance of Parliament in the political system is central. So much so that in the British
pattern, parliament is sovereign- that is, there is no authority above parliament. The actions of
Parliament are unquestionable. In India, however, parliament is not sovereign for the
following reasons:

•India has a federal system where States enjoy their powers independently of the parliament
normally. • Parliament is a creature of the written Constitution and is thus limited by it,
unlike Britain that has an unwritten Constitution.

• Indian Constitution gives the judiciary power to nullify a law made by the legislature.

Parliamentary democracy is a basic feature of the Constitution as ruled by the Supreme

Court. Article 79, says that there shall be Parliament for the Union which shall consist of the
President and two Houses to be known as the Rajya Sabha or Council of States or Upper
House which is the federal chamber, and the Lok Sabha or House of the People which is the
Popular chamber or Lower House. Even though the President of India is not a member of the
parliament, he is a part of the Parliament for the following reasons:

In a parliamentary system, the Executive is a part of the Legislature unlike the Presidential
form of democracy where there is a strict separation between the two institutions. Bills
passed by the Parliament need Presidential assent before they become laws. • President
performs certain legislative duties like summoning and proroguing the Parliament;
recommending tha introduction of certain bills in tha parliament etc. 
President of India and Parliament

The President is the constitutional head of the Republic of India. He is elected by an electoral
college that in cludes elected members of both Houses of Parliament and the elected members
of the Legislative Assemblies of the States and Union Territories. The President performs the
following constitutional functions in relation to parliament

. He invites the leader of the majority party to form the Government after a new Lok Sabha is
duly elected. He summons the House of Parliament to meet from time to time. . He has the
power to prorogue a session of either of the two Houses and dissolve the Lok Sabha.

• The President has to assent to a Bill before it can be a law. . If either or both the Houses are
not in session, the President can promulgate Ordinances having the same

validity as a law passed in Parliament.

The President has the right to address either or both Houses of Parliament.

• The President has the power to call both Houses for a joint sitting/session in case a dispute
arises over

passing a Bill.

. He nominates 12 members of the Rajya Sabha and has the right to nominate up to two
members from the Anglo Indian community to the Lok Sabha if they are underrepresented, in
his opinion.

Thus, the President is a constituent part of the Parliament.

BICAMERAL LEGISLATURE

India parliament is bicarmeral that is it has two chambers-tha popular house and tha federal
house..

RAJYA SABHA
Rajya Sabha is the federal house representing the States and the Union Territories with
assemblies. The maxi mum strength of Rajya Sabha is two hundred and fifty (250), of which
238 are to be elected and 12 are nomi nated by the President of India. The strength sanctioned
(total membership) of Rajya Sabha is two hundred and forty-five (245), of which 233 are
elected and 12 are nominated by the President. There is a difference between the maximum
and total membership as members can be added from new territories that may be acquired or
for any other reason. All States and the three Union Territories of Delhi, Puducherry, and
Jammu and Kashmir (Un ion Territories with Assembly) are represented in the Rajya Sabha.
The allocation of the seats in Rajya Sabha is contained in the Fourth Schedule to the
constitution. The Fourth Schedule is dedicated to it as the number is a fixed one. There is no
similar Schedule for the Lok Sabha because the number changes with the growth of the
population. The number of representatives for each state is dependent upon the population.
Article 80 provides that the Rajya Sabha shall consist of:

Twelve members nominated by the President from amongst persons having special
knowledge or practical experience in respect of such matters as literature, science, art and
social service. Not more than two hundred and thirty eight (238) representatives of the States
and the Union Territories.

The elected members of the (233 Mem bers) Rajya Sabha are elected by the elected members
of the Assemblies of States and three Union Territories of Delhi, Puducherry, and Jammu and
Kashmir, by the system of proportional representation using the single transfer able vote.
These three Union Territories are represented in Rajya Sabha as they have assemblies. No
other Union Terri tory has an assembly and so has no rep resentation in the Rajya Sabha.

The Council of States was set up under the Constitution, in 1952. Dr. Radhakrishnan was the
first Chairman

of Rajya Sabha. He was the longest-serving Chairman (1952-) 

Qualifications

Article 84 of the Constitution lays down the qualifications for membership of Parliament. A
person to be quali fied for the membership of the Rajya Sabha should possess the following
qualifications:

. He must be a citizen of India and make and subscribe before some person authorized in that
behalf by the Election Commission an oath or affirmation according to the form set out for
the purpose in the Third Schedule to the Constitution.

 He must possess such other qualifications as may be prescribed on that behalf by or
under any law made

Qualifications

.He must be not less than 30 years of age,

by the Parliament.

Disqualifications

Article 102 of the constitution lays down that a person shall be disqualified for being chosen
as, and for being. a member of either house of parliament

If he holds any office of profit under the Government of India or the government of any state,
other than an office declared by the Parliament by law not to disqualify its holder.

If he is of unsound mind and stands so declared by a competent court.

If he is an undischarged insolvent. (that is if he owes money to anyone and is unable to pay,

and the court did not discharge him of the obligation to repay as he could not convince the
court of the genuineness of

his incapacity to repay).

If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or
is under any acknowledgment of allegiance or adherence to a foreign State.

If he is so disqualified by or under any law made by the Parliament.

Besides, the Tenth Schedule to the Constitution provides for disqualification of the members
on the ground of defection. 
OATH

As required under article 99 of the Constitution, every member before taking his seat in tha
parliament has to make and subscribe to an oath or affirmation

TERM

Rajya Sabha is a permanent House and is not subject to dissolution. However, one-third of
Members of Rajya Sabha retire after every second year. A member who is elected for a full
term serves for six years. The election held to fill a vacancy arising otherwise than by
retirement of a member on the expiration of his term of office is called 'Bye-election'. The
vacancy is called a casual vacancy. A member elected in a bye-election remains a member for
the remainder of the term of the member who prematurely vacated the seat.

Rajya Sabha, when it was constituted in 1952 had 216 members-12 nominated by the
President and the remaining 204 elected to represent States. As a result of the reorganization
of States and the formation of new States and Union Territories, the number of elected seats
in the Rajya Sabha allotted to States and Union Terri tories has changed from time to time
since 1952. It needs to be explained as to who retired after two years and four years when
Rajya Sabha was first constituted in 1952. The President, after consultation with the Election

Commission, made an order in 1952 for curtailing the term of office of some of the members
so that as nearly as one-third of the members retire after every two years. Election
Commission by drawing of lots decided whe should retire and when. That is how the initial
order was established.

SEATING

The members have to sit in such order as the Chairman determines from time to time. The
Treasury Benches are on the right-hand side of the chamber, while the Opposition Benches
are on the left-hand side, and in between other parties are assigned seats as per their
numerical strength in Rajya Sabha from right to left of the chamber The allotment of vacant
seats to Members is made by the Secretary-General keeping in view the seniority of
Members, requests received from Party Leaders/Whips, and need for the contiguity of seats
of a party.

SALARY, ALLOWANCES AND PENSION

The salary, allowances, and pension to Members are regulated by the provisions of the
Salary, Allowances, and Pension of Members of Parliament Act, 1954 and the Rules made
thereunder. Amendments to the Salary, Allow ances, and Pension of Members of Parliament
Act, 1954 were made in 2018.

At present, a Member of Parliament is entitled to 100,000/- per month as salary, 70,000/- per
month as Constituency Allowance, 760,000/- per month as Office Expense Allowance. A
Member also gets a daily allow ance of 2,000/- for the period of residence on duty. Daily
allowance will be paid only when he/she signs the register maintained for the purpose.

Every person who has served as a Member of either House of Parliament for any period is
entitled to a pension of 25,000/- per month from 2018-19. Where any person has served for a
period exceeding five years, he/she shall be paid an additional pension of 2000/- per month
for every year above five years. For calculation of years for the determination of additional
pension, the period of nine months or more is treated as one complete year.

ELECTORAL PROCESS

The representatives of the States and the Union Territories in the Rajya Sabha are elected by
the method of in direct election by the system of proportional representation using the single
transferable vote.

REFORM

In 2003, Parliament amended the Representation of People's Act, 1951 to make two crucial
changes:

To do away with the domicile/residency condition. • To replace the secret ballot with the
open ballot.
Section 3 of Representation of the People Act originally said that a candidate seeking election
to Rajya Sabha should be 'ordinarily resident' in the State that he wants to represent. By
amending this Section of Representa tion of People Act, the Government opened the contest
for a resident anywhere in the Country who is registered as a voter in any constituency of the
country.

The purpose of the first change was to remove the discrepancy in the eligibility criteria for
both the Houses of Parliament a candidate for Lok Sabha can contest from anywhere in the
country if he is registered as a voter anywhere in the country but it was not so for Rajya
Sabha.

ELECTION PROCEDURAL

In a large number of cases, representatives from various States in Rajya Sabha were those
who traditionally were not in that state, but for election to the Rajya Sabha, got enrolled as
voters in that particular state by acquiring property or otherwise. The residency clause, thus,
was flouted frequently by many The reason for the adoption of the open ballot is that in the
context of the growing money power in Rajya Sabha elections, secrecy was thought to
conceal corruption and so an open ballot was introduced.

In the proportional system of representation, the number of valid votes required to secure the
victory of a candi date at the election is called a quota. If at the end of any count the value of
ballot papers credited to a candidate is equal to or greater than the quota, that candidate is
declared elected. We have seen this in the Presidential election process

The ballot paper bears the candidate names, and the elector marks on its preferences
(preference 1,2, so on). First preference votes are counted to see who is elected. Some may
get elected and some may not be, with the first preference votes. Some may get more votes
than the quota. Then, the candidates with surplus votes provide second preference votes to
those in the fray. Next, the candidate who comes last is eliminated and his second preference
vote is transferred to those in the fray. In this process, the required number of candidates end

up being elected. As mentioned, an amendment to the Representa tion of People Act was
made in 2003 to make the ballot open: Rule 39AA of the Conduct of Election Rules
prescribes how voting should take place in the RS elections. The rule states that the
authorized agent of the political party to which the voter(Member of Legislative Assembly)
belongs should verify the bal lot paper without which the vote will be treated inva lid. The
vote is invalid if:
. It is not shown to the authorized agent and also If he shows it to anyone else.

Since 2004, the elections to the Rajya Sabha are being held in the open ballot system as
described above. Very recently in 2016, the vote of one MLA was rejected because he
showed his vote to a person other than the au thorized agent of the party. In 2017, the
Election Commission of India rejected the votes of two elected Mem bers of the Legislative
Assembly in Gujarat for the same reason.

Party loyalties need to be authenticated but those who vote against the party candidate cannot
be disquali fied as legislators because the anti-defection law does not apply to RS elections. It
is a conscience vote. In such a situation, an open ballot is the only way that the party can
control the way the legislator votes.

Rajya Sabha's election procedure can be described as 'conditionally open' as the vote shall be
shown only

to the authorized agent of the party and not to anyone else.

NOTA IN THE RAJYA SABHA ELECTIONS

According to the ruling of the apex court in the People's Union for Civil Liberties (PUCL)
case in 2013, all elec tions conducted based on the Representation of People Act had to have
the None of the Above (NOTA) button on the Electronic Voting Machine (EVM). The Rajya
Sabha elections were thus included in them. The Election
Commission had issued a circular in 2014 that the provision of None of the Above (NOTA) is
included in the Rajya Sabha elections too. From 2014 onwards, biennial elections to the
Rajya Sabha have been held complying with the rules of the Election Commission (EC) that
None of the Above (NOTA) option is made available. Ba

it was challenged in the apex court. In 2018, the Apex court ruled that the None of the Above
(NOTA) button be removed for the Rajya Sabha elections for the following reasons:
. It is an open ballot. 
• The candidate has to vote for the party on whose ticket he has become a Member of the
Legislative As sembly. That is the reason for making the ballot open. Vote is transferable

PRESIDING OFFICERS CHAIRMAN AND DEPUTY CHAIRMAN

The Presiding Officers of the Rajya Sabha have the responsibility to conduct the proceedings
of the House. The Vice-President of India is ex-officio Chairman of the Rajya Sabha. The
Rajya Sabha also chooses from amongst its members, a Deputy Chairman. There is also a
Panel of Vice-Chairmen in the Rajya Sabha, the members of which are nominated by the
Chairman, Rajya Sabha. In the absence of the Chairman and Deputy Chairman, a member
from the Panel of Vice-Chairmen presides over the proceedings of the House.

CHAIRMAN

The Vice-President of India is the ex-Officio Chairman of Rajya Sabha (Article 64). The
Vice President draws his salary as the Chairman of the Rajya Sabha which in his ex-officio
roles that are, by being the Vice President of India, he functions as the Chairman of Rajya
Sabha. The Vice-President is elected by the members of an electoral college consisting of all
the members of both Houses of Parliament, both elected and nominated-by the system of
proportional representation using the single transferable vote.

The Vice-President holds office for a term of five years from the date on which he enters
upon has office He is removed by a motion initiated in the Rajya Sabha and passed in that
House by an effective majority (the majority of all the then members of the House) and
agreed to by the Lok Sabha by a simple majority (the major ity of the votes polled).

As the Presiding officer, the Chairman of the Rajya Sabha is the guardian of the prestige and
dignity of the House. He safeguards the privileges and immunities of the members
individually and the House collectively He issues warrants to execute the orders of the
House, where necessary. For example, to punish anyone who commits contempt of the
House.

Under the Constitution, the Chairman shall exercise a casting vote in the case of an equality
of votes-Article 100(1). However, during proceedings for his removal, he does not preside at
that sitting. He cannot also vote on such a resolution as he is not a member. The Constitution
also lays down certain powers and duties of the Chairman:

He is empowered to adjourn the House or to suspend its sitting in any event including the
absence of the quorum 
• In case of resignation of a member from the House, the Chairman is required not to accept
the resignation if he is satisfied that such resignation is not voluntary Or genuine. 

. Under the Tenth Schedule to the Constitution, the Chairman determines the question about
disqualification of a member of the Rajya Sabha on the ground of defection. He also makes
rules for giving effect to the provisions of that Schedule. 

Enforce respect for privileges.

The Chairman may permit a member who is unable to express himself in Hindi or English, to
address the House in his mother tongue. The Rajya Sabha Secretariat functions under the
control and direction of the Chairman.

Various powers are conferred on the Chairman under Rules of Procedure of the Rajya Sabha
in connection with the admissibility of motions etc. The Chairman's consent is required to
raise a question of breach of privilege in the House. Parliamentary Committees where
members are drawn from the Rajya Sabha, whether set up by Be Chairman or by the House,
work under his guidance. He appoints Chairmen and nominates members to 8 Departmentally
Related Standing Committees and they are under his administrative control. He is the
Chairman of the Business Advisory Committee, Rules Committee, and the General Purposes
Committee. The Chairman's lings cannot be questioned or criticized and to protest against the
ruling of the Chairman is a contempt of the House and the Chairman

The Chairman does not take part in the deliberations of the House except in the discharge of
his duties as the Presiding Officer. However, on a point of order (when the correct procedure
is not being followed) raised or on his own, he may address the House at any time on a matter
under consideration to assist members in their deliberations. Maintenance of order in the
House is a fundamental duty of the Chairman and he has disciplinary powers like suspension
of membership and may also adjourn the sitting of the House in case of grave disorder. Some
statutes also confer duties on the Chairman:

Rules made under the Salary, Allowances, and Pension of Members of Parliament Act, 1954,
do not take effect until they are approved and confirmed by the Chairman and the Speaker.

• Under the Judges (Inquiry) Act, 1968, the Chairman, in case of members of Rajya Sabha
submitting a petition, has to constitute a Committee and select its members, upon receipt of a
motion for the removal of a judge of the Supreme Court or a High Court, for an investigation
into the grounds on which the removal of a judge is prayed for, provided he accepts the
motion. He may reject the motion after seeing the material presented to him and consulting
any legal counsel if necessay

DEPUTY CHAIRMAN

The Deputy Chairman is elected by the members of the Rajya Sabha from among themselves,
the Duties of the office of the Chairman are performed by the Deputy Chairman while the
office of Chairman is vacant, or during any period when the Vice-President is acting as (when
the office of the President falls vacant), or discharging the functions of the President (when
the President is unable to discharge functions due to illness or otherwise). She has the same
powers as the Chairman when presiding over a sitting of the House,

The Deputy Chairman can speak in the House, take part in its deliberations, and vote as a
member on any question before the House, but s/he can do so only when the Chairman is
presiding. When the Deputy Chairman himself/herself is presiding, s/he cannot vote except in
the event of an equality of votes casting vote to break the tie.

The Deputy Chairman holds office from the date of his/her election and vacates the office
if's/he ceases to be a member of the House. S/he may resign his/her addressing the letter to
the Chairman. He may be removed from
office by a resolution of Rajya Sabha moved after fourteen days notice of the intention to
move the and passed by a majority of all the then members of the House. It is called an
effective majority The salary of the Deputy Chairman, like the Chairman, is charged on the
Consolidated Fund of India is not subjected to the vote of the Houses

Chairman Pro Tem

When the offices of the both Chairman and the Deputy Chairman are vacant, the duties of the
office of the Cha man are performed by such members of the Rajya Sabha as the President
may appoint for the purpose (A 91). The member so appointed is known as the Chairman pro
tem. For the first time in the Rajya Sabha when the Vice-President (Shri B). D. Jatti) was
acting as the President and the post of Deputy Chairman held by Sh Godey Murahari having
fallen vacant in 1977 as the latter was elected to the Lok Sabha, the Vice-President act ing as
President appointed Shri Bansari Das, a member of Rajya Sabha, as Chairman pro tem until
the Demey Chairman was chosen.

The Panel of Vice-Chairmen

The Chairman, from time to time nominates from amongst the members of the House, a panel
of not more than six Vice-Chairmen. In the absence of the Chairman and the Deputy
Chairman, one of them presides over the House.

The Vice-Chairman, when presiding over a sitting of the House, has the same powers as the
Chairman when so presiding. He is, however, free to participate fully in all discussions in the
House, A Vice Chairman while presiding cannot vote in the first instance, and has to exercise
a casting vote in the case of an equality of votes

Non-Panel Member Presiding

When neither the Chairman nor the Deputy Chairman nor a Vice-Chairman is present to
preside, such other member as may be determined by the House acts as the Chairman. The
practice is that the outgoing presiding officer requests a member to take tha chair with tha
approval of tha house. 
Leader of the House

The leader of the House is an important parliamentary functionary who assists the Presiding
Officer in the conduct of the business. The leader of the Rajya Sabha is the Prime Minister if
he is a member of the House. Otherwise, a Minister who is a member of the House is
nominated by the Prime Minister to function as the Leader of the House. Under the rules, the
Leader of the House is consulted by the Chairman regarding the ar rangement of Government
business in the House, allotment of days or allocation of time for discussion on the
President's Address, Private Members' business on any day other than Friday, discussion on
No Day-Yet-Named Motions, Short Duration Discussions and consideration and return of a
Money Bill. He is also consulted by the Chairman in the matter of adjournment or otherwise
of the House for the day in case of death of an outstanding personality, national leader, or
international dignitary. In the era of coalition governments, his task has become more
challenging.

Leader of the Opposition (LOP)

In Rajya Sabha until 1969, there was no Leader of the Opposition statutorily. Till then, the
practice was to call the Leader of the party in Opposition having the largest number of the
members as the Leader of the Opposition, without according him any formal recognition,
status, or privilege. The office of Leader of the Opposition was

given official recognition through the Salary and Allowances of Leaders of the Opposition
1977.The Act says that the Leader of the Opposition should satisfy three He should satisfy
three of the conditions:

. He should be a member of tha house 

.The Leader in Rajya Sabha of the party in opposition to the Government bring the greatest
numerical strength
. Be recognized as such by the Chairman, Rajya Sabha

The post carries the status of a cabinet minister. According to directions issued by the
Presiding Officer of Rajya Sabha, the minimum numerical strength required for recognition
as an opposition petlitical party is one-tenth of the soal membership of the House
QUORUM

Under Article 100 of the Constitution, the quorum to constitute a meeting of either House of
the Parliament is one-tenth of the total number of members of the House. If at any time
during a meeting of a House there is no

grum, it shall be the duty of the Chairman, either to adjourn the House or to suspend the
meeting until there

saquorum

VOTE IN THE HOUSE

The procedure regarding Visting in the House is governed by article 1001) of the
Continuation and Rules of the Rules of Procedure and Conduct of Business in the Lok Sabha
and the Raya Sabha. The various methods adopted for voting in the Lok Sabha are:

Viler Viste: It is a simple method for deciding a question put by the Chair on a metion made
by a Member Under this method, the question before the House is determined by the Ayes or
the Noes, as the case may he Doision: Division is a method of taking a vote that physically
counts members voting. There are three methods of holding a Division (a) by operating the
Automatic Vote Recording Equipment (b) by distributing "Ayes

and Noes slips in the House, and (c) by Members going into the Lobbies. Parliament
chambers have sep

ante division lobbies for the 'Ayes' and "Noes to facilitate physical division. However, the
method of re

anding votes in the Lobby has become obsolete ever since the installation of the Automatic
Vote Recording

Machine

If any member challenges the decision of the Chair in the voice vote, the Chair shall ender
division. Then the

division bell is rung. After the bell stops, all the doors to the Chamber are closed and nobody
can enter or leave

the Clumber till the division is over

Recording of votes by the distribution of slips: The method of recording of votes by Members
on Ayes and Noes slips is generally resorted to in case of (i) sudden failure of the working of
the Automatic Vote Recording Equipment; and (ii) at the commencement of the new Lok
Sabha before the seats/division numbers have been allotted to Members.

A physical count of Members in their places instead of a formal division: If in the opinion of
the Chair, a Division is unnecessarily claimed she may ask the Members who are for Ayes
and those for Noes, respec tely, to rise in their places and on a count being taken, s/he may
declare the determination of the House. In such a case, the particulars of voting of the
Members are not recorded.

Secret Ballet: During an open voting period, the individual results are shown by the Ayes,
Red for "Noes and Yow Abstain on the Individual Result Display Panel. Secret voting, it held
on similar lines except that the Light Emitting Diode (LED) on the Individual Result Display
Panel only white light to show that the yote has been recorded is decided three Colours:
Green

Casting Vote: If in a Division the number of Ayes and Noes is equal, the question vote of the
Chair which shall be exercised to break the tie by the ca

POWERS OF THE RAJYA SABHA The powers of Rajya Sabha can be studied under the
following subbeads

•Legislative

• Deliberative

•Constituent

• Disciplinary Federal

Legislative

The legislation is the most important business of Rajya Sabha. The power of Rajya Sabha is
equal to the Lak Sabha in all cases of legislation except the Money Bill A Bill can be
introduced in either House of Parliam A Bill has to be passed in each House of Parliament
and receive Presidential assent before it becomes an Act of Parti t. In the event of a deadlock
between the two Houses on a Bill other than a Mmey Bill or a Conte tion Amendment Bill,
the issue is resolved at a joint sitting of the two Houses The bills were passed in a joint
session called to overcome the objection and rejection by Rajya Sabha

1. The Dowry Prition Bill, 1959 was passed by Lok Sabha Rajya Sabha insisted on
amendments to which Lok Sabha did not agree. The Bill was passed in 1961 at a joint sitting
2. The Banking Service Come (Repeal) Hill, 1978 was passed by Lok Sabha was later
rejected by Rajya Sabha, It was passed in 2018 at a joint sitting 3. The Prevention of
Terrorism But, 2002 passed by Lok Sabha was rejected by Rajya Sabha and was later

passed at a joint sitting in 2002

Rajya Sabha and Constituent Power

A Constitution Amendment Bill gives independent power to the Rajya Sabha and the
Constitution does not provide for a joint session in case of a deadlock. The Rajya Sabha can
ensure that a Constitution Amend ment Bill does not become lew because if Rajya Sabha
defeats it, the Constitution Amendment Bill is dead as there is no joint session in this case.
The rationale is that the federal Constitution belongs both to the Ces tre and the States and
Rajya Sabha as the custodian of federal rights of States should be given independent powers

Rajya Sabha used the power to reject and amend such Bills a few times. Rajya Sabha had
voted against

the Twenty-Fourth Constitution Amendment Bills 1970 that sought to terminate privy purses
and privileges of

former Indian States; Sixty-Fourth Amendment Bill of 1989 relating to panchayats and Sixty-
Fifth Amendment

Bill relating to Nagar Panchayats and Municipalities.

Constitution (One Hundred and Second Amendment) Bill, 2018 to give constitutional status
to the National Commission for Backward Classes (NCBC) was passed by the Lok Sabha in
2017 and Rajya Sabha passed the Bill after making one amendment. However, Lok Sabha did
not adopt the amendment made by the Rajya Sabha and instead adopted different
amendments to the Bill. It was passed by the Rajya Sabha

Financial
Under the Constitution, financial legislation has been divided into two categories-Money
Bills and Financial Bills. The former contains only and exclusively money clauses and the
latter, apart from money clauses also contains other matters. In the latter class, as we shall see
ahead, there are again two types of Bills. One of them is a Bill which, if enacted and brought
into operation would involve expenditure from the Consolidated Fund of India is also called a
Financial Bill. Such a Bill, however, can be introduced in Rajya Sabha.

For Money Bills, the Rajya Sabha is empowered to make only recommendations. When a
Money Bill which is transmitted to Rajya Sabha is not returned to the Lok Sabha within
fourteen days, it is deemed to have been passed by both Houses at the expiration of the said
period in the form it was passed by the Lok Sabha.

However, in the case of Financial Bills, the Rajya Sabha has equal powers in deciding the
content of the Bills, like an ordinary Bill.

The Annual Budget of the Government is laid before the Rajya Sabha also, although the
Budget speech is made in Lok Sabha only,

The Rajya Sabha has no powers to vote on the Demands for Grants of the
Ministries/Departments which is the exclusive domain of Lok Sabha. However, the twenty-
four Departmentally-related Parliamentary Standing Commit tees which have thirty-one
members, ten from the Rajya

Sabha and twenty-one from the Lok Sabha, examine

the Demands for Grants of the respective Ministries/ Departments of the Government of India
and report.

There is Rajya Sabha representation in both Public Accounts Committee and Committee on
Public Under takings though not the Estimates Committee. Rajya Sabha has 7 out of a total of
22 in the Public Accounts Committee but Chairperson is invariably from Lok Sabha. There
are 7 members of Rajya Sabha out of a total of 22 in the Committee on Public Undertakings.
Deliberative

One of the important functions of the Rajya Sabha is to focus public attention on major issues
affecting policies of the Government and administration and to provide a forum for
ventilation of public grievances. This respon sibility is discharged through deliberations on
General Budget, Railway Budget, Motion of Thanks on the Pres ident's Address and working
of various Ministries/Departments, passing Bills and on various policy statements made by
the Government. Rajya Sabha also places its views on various international issues.

Disciplinary

The Rajya Sabha, along with the Lok sabha has a constitutional mandate to ensure
institutional and personal integrity on the part of constitutional and other statutory
functionaries. In pursuit of the mandate, it has im peachment (The President of India) and
removal powers (members of the higher judiciary, etc). These powers are to be exercised in
association with Lok Sabha.

Federal

The Constitution has classified the subjects for legislation into three lists:

1. Union List

2. State List

3. Concurrent List

The Union List includes those subjects over which Parliament has exclusive authority to
make laws, while the Concurrent List enumerates those subjects over which it has authority
along with the States. State List is normally within state government jurisdiction exclusively.
Regarding the State List, over which the States have exclusive jurisdiction, Parliament can
assume authority under certain conditions.

Under, Article 249, the Rajya Sabha may pass a resolution, by a majority of not less than
two-thirds of the members present and voting, to the effect that it is necessary or expedient in
the national interest that Parliament should make a law concerning any matter enumerated in
the State List. As a result, the Parliament becomes empowered to make a law on the subject
specified in the resolution for the whole or any part of the territory of India. Such a resolution
remains in force for a maximum period of one year but this period can be extended by one
year at a time by passing a further resolution.

Under Article 312, if Rajya Sabha passes a resolution by a majority of not less than two-
thirds of the mem bers present and voting declaring that it is necessary or expedient in the
national interest to create one or more All India Services common to the Union and the
States, Parliament may then by law provide for the creation of such service or services. For
example, All India Judicial Service (AIJS). This power is routed through the Rajya Sabha is
important from a federal perspective as All India Services are recruited by the Union and
serve in the state administration predominantly due to which cooperative federalism is needed
for their smooth and effective functioning.

RAJYA SABHA AND EMERGENCY

Under the Constitution, the President is em powered to issue Proclamations in the event of a
national emergency, in the event of fail ure of constitutional machinery in a State, or in the
case of financial emergency. Normally, every such Proclamation has to be approved by both
the Houses of the Parliament within a stipulated period. Under certain circum stances,
however, the Rajya Sabha enjoys special powers in this  regerd If a proclamation

 is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok
Sabha takes place within the period allowed for its approval, then the Proclamation can
remain effective if, a resolution approving it is passed by the Rajya Sabha.

Thus, Rajya Sabha ensures national security, financial stability, federal rights of States, and
constitutional governance in States.

Non-federal Features of Rajya Sabha

The non-federal features of the Rajya Sabha are:

• All States do not have the same number of representatives in the Rajya Sabha as in the US
Senate. • Rajya Sabha has no special powers about the territorial integrity of States (Article 3)
and thus cannot de fend the principle of 'indestructibility' of the state concerned.

Article 249 is also non-federal as the big 10 States can overrun the rest while passing the
resolution thus denying equality to States.

In the Presidential election, the value of the vote of the elected Members of Legislative
Assembly of big States like Uttar Pradesh is far more than small states thus giving the former
a decisive advantage. 

THE RAJYA SABHA'S CONTROL OVER EXECUTIVE

The Rajya Sabha is the federal house. Unlike the popular house which is the Lok Sabha, the
federal house is not meant to unseat the political executive, ministers. Article 75 vests such
powers with the Lok Sabha as it states that the Council of Ministers is collectively
responsible to the Lok Sabha. The Rajya Sabha has no powers like the Lok Sabha in this
matter-no-confidence motion; cut motions; adjournment motion; and censure motions are
with the Lok Sabha exclusively.

The Rajya Sabha normally can not defeat a Bill as the Bill could still be passed in a joint
session where the Lok Sabha has more than double the numerical strength.

However, Rajya Sabha can hold the executive responsible in the following ways:
By asking questions
Equal power in the impeachment of President of India. 
• Original power in the removal of the Vice President of India.

• Rejection of Constitution Amendment Bill in which case the Bill needs to be reintroduced
as there is no possibility of tha joint session. 

• Special Mention: Under the rules of Procedures and Conduct of Business in the Council of
States, mem bers are allowed to make special Mentions in Rajya Sabha. If a Minister so
desires, he may make a state ment on the subject with the permission of the Presiding Officer.
The main advantage of this device is to bring to the notice of the House and the Government
the matters and happenings urgent public impor tance which take place in or outside the
country.
The Motion of Papers: There is no provision for adjournment motion in the Rajya Sabha as
the Council of Ministers is responsible only to the Lok Sabha-Article 75(3). But there is a
'Motion for Papers', like in the House of Lords in Britain. Under a 'Motion for Papers, the
Council could discuss any matter of real public importance and the right of the reply is given
to the member moving the motion.

THE UTILITY OF THE RAJYA SABHA

It represents States and thus has a federal purpose:

It is the permanent House and so has benefits for the country like it can ratify proclamation of
Emergency when the Lok Sabha is not in session or dissolved. It means the proclamation can
continue.

•At the same time, it can ensure that emergency provisions are not misused. Unless Rajya
Sabha ratifies the proclamation of emergency and President's rule independently, it does not
come into force. Thus, democ racy and the interests of the States can be protected.

• The Constitution cannot be amended unless Rajya Sabha, sitting independently of the Lok
Sabha passes the Bill. That is, there is no joint session in case of a deadlock. Thus, Nation
and States' interests are pro tected.

It has 12 nominated members who add to the quality of parliamentary proceedings and

policymaking.   It enables law-making to become more sober when the representatives of
the people are carried away by emotional issues, an advantage all second chambers in
bicameral legislatures have.

• It delays the passage of a Bill so that the other House can reflect more on its desirability.

Thus, Rajya Sabha has enormous utility in the parliamentary democracy of ours. In recent
years, there had been many Bills that were delayed by the Rajya Sabha and some were denied

passage. For example, the Juvenile Justice (Care and Protection of Children) Bill 2014 was
delayed. But some scholars opine that such blocking of legislation does harm to the
governance of the country. Some say that polit ical consensus needs to be built more firmly
across the full spectrum of political popular opinion and differences
ironed out. Delay is an essential function of the Rajya sabha for consensus to emerge. There
is another opti too that RS is playing a constructive role in keeping out the Bills that are
hastily passed by the Lok Sabha

RAJYA SABHA 250 SESSIONS

Winter Session of the Parliament in 2019 was the Upper House's 250th session that came 67
years after its fire sitting in 1952. Since the Upper House came into being in 1952, a total of
3,818 Acts of Parliament have bee made. The House held 5,466 sittings. The representation
of women in Rajya Sabha increased from 15 memben (6.94%) in 1952 to 26 women
members (10.83%) in 2019,

RAJYA SABHA AND SOCIO-ECONOMIC TRANSFORMATION

The success of a legislature depends on the extent to which it brings about the progress of the
people. Rajya Sabha has been an integral part of the socio-economic transformation of India
since it came into being in 1952 Examples are the passing of:

• Prevention of Food Adulteration (Amendment) Act, 1974

Bonded Labour System (Abolition) Act, 1976

Child Labour (Prohibition and Regulation) Act, 1986 Transplantation of Human Organs Act,
1994)

Hindu Marriage and Divorce Bill, 1952   Muslim Women (Protection of Rights on
Marriage) Act, 2019

Introduction of GST, 2017.

RAJYA SABHA AND PRIVATE MEMBERS' BILLS

Since in the parliamentary system a large part of the time of Parliament is devoted to the
Government legislative business, legislative initiatives by private members often do not
succeed. So far, only fourteen Private Mes bers' Bills were passed till 2020 out of which five
were introduced in the Rajya Sabha. For example, the Indian Penal Code (Amendment) Bill,
1963. The Rights of Transgender Persons Bill, 2014 was a private member's bill passed by
the Rajya Sabha in 2015 and sent to the Lok sabha, but lapsed with the dissolution of the 16th
Lok Sabha in 2019.

RAJYA SABHA: AN ASSESSMENT

Rajya Sabha since 1952 played a constructive and effective role in our polity. Its performance
in the legislative field and in influencing the Government policies has been quite significant.
Rajya Sabha worked in a cooper ative spirit with Lok Sabha for law-making except for a few
times where the differences were irreconcilable. It enabled the constitutional evolution of
democratic lines. Rajya Sabha prevented hasty legislation. It preserved the integrity of the
federal principle. As a federal chamber, it has worked for the unity and integrity of the nation
and has reinforced the faith of the people in parliamentary democracy.

LOK SABHA

Lok Sabha (House of the People) is composed of representatives of the people chosen by
direct election based on universal adult suffrage. The maximum strength of the House
envisaged by the Constitution is 552 out of which 530 members to represent the States, 20
members to represent the Union Territories and not more than

two members of the Anglo-Indian community to be nominated by President, if, in his

opinion, the community is not adequately represented in the House.

However, there are changes made in 2019-20. It is in the 104th Constitution Amendment Act
2020 that omit ted nomination of Anglo Indians to the Lok Sabha. The 17th Lok Sabha has
no reservation by the nomination of the community. Thus, the total membership of the Lok
Sabha is 543 Maximum membership is 550. Before the conversion of Jammu and Kashmir
into two Union Territories, all the Union Territories together had 13 members in Lok Sabha.
Post-conversion, Union Territories have 19.

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. The sanctioned strength of the Lok Sabha at present is
545 members including the Speaker and two nominated members-referred to as the total
membership. Of these, 530 members are directly elected from the States and from the Union
Territories.
The Lok Sabha was duly constituted for the first time on 17 April 1952 after the first General
Elections held from 25 October 1951 to 21 February 1952. The First Session of the First Lok
Sabha commenced on 13 May 1952

The Lok Sabha is elected for a term of five years and the expiration of the said period of five
years shall operate as a dissolution of the House. The Constitution, however, gives the power
to the President to dissolve the lower house of Parliament before the expiry of the five years.
Thus, Lok Sabha, unless sooner dissolved, continues for five years from the date appointed
for its first meeting. However, while a Proclamation of Emergency is in oper ation, this
period may be extended by Parliament for a period not exceeding one year at a time and not
extending beyond a period of six months after the proclamation has ceased to operate.

PRESIDING OFFICER

DURATION

The Speaker and the Deputy Speaker are the Presiding Officers of the Lok Sabha. The Lok
Sabha elects both first the Speaker and later the Deputy Speaker. The conduct of Business in
Lok Sabha is the responsibility of the Presiding Officers. Deputy Speaker may not be elected
at times as is the case in the Seventeenth Lok Sabha (as of mid-2020).

THE SPEAKER

In the Lok Sabha, both Presiding Officers-the Speaker and the Deputy Speaker are elected
from among its members by a simple majority of members present and voting in the House.
No specific qualifications are pre scribed for being elected the Speaker. The Constitution only
requires that he should be a member of the House. One of the first acts of a newly constituted
House is to elect the Speaker. Usually, a member belonging to the ruling party is elected the
Speaker. But in times of coalition governments, a member of a party other than the ruling
coalition can be elected the Speaker. For example, Somnath Chatterjee CPI (M), who
belonged to a
party that only gave "outside support to the coalition was elected Speaker in 2004. (A party
that gives out support is one that supports the government in the Lok Sabhia for it to survive
but does not join the govern and have its ministers. Such a government is a minority
government).

The Deputy Speaker post is conventionally given to the opposition party. It is not mandatory
to have th

Deputy Speaker. The 17th Lok Sabha has no Deputy Speaker elected as of mid-2020. The
post remained vaca The Speaker pro-tem (a newly elected member sworn in by the President
and appointed Pro-Tem Speaker to swear in the newly elected members of House) presides
over the sitting in which the Speaker is elected if is a newly constituted House. If the election
falls later in the life of a Lok Sabha the Deputy Speaker or another member of the House
chosen for the purposes, presides.

TERM OF OFFICE

The Speaker holds office from the date of his election till immediately before the first
meeting of the Lok Sabha which is newly constituted after the dissolution of the one to which
he was elected. On the dissolution of the Lok Sabha, although the Speaker ceases to be a
member of the House, he does not vacate his office. He is eligible for re-election

The Speaker may, at any time, resign from office by writing under his hand to the Deputy
Speaker. The Speaker can be removed from office only on a resolution of the House passed
by a majority of all the then men bers of the House-effective majority. It is mandatory to give
a minimum of 14 days' notice of the intention to move the resolution. The Speaker may lose
his post when he loses membership of the House, for example, when his election to the House
is set aside. There is no convention in India that the Speaker resigns from the party on whose
ticket he is elected unlike in Britain. Anti-defection Law however allows the Speaker and the
Deputy Speaker to leave and return to the party without attracting disqualification provisions.

At the commencement of the House or from time to time, the Speaker shall nominate from
amongs members a panel of not more than ten Chairmen, any one of whom may preside over
the House in the abse the Speaker and the Deputy Speaker. The Speaker has extensive
functions to perform in matters administre judicial, and regulatory. His decisions are final and
binding.

When the Offices of both the Speaker and the Deputy Speaker fall vacant, the duties of the
Office of Speaker are performed by such Member of the Lok Sabha as the President may
appoint for the purpose. T person so appointed is known as the Speaker Pro Tem
CASTING VOTE

Article 100 of the Indian Constitution says that the Speaker/Chairman of the one presiding
shall not vote in t first instance, but shall have and exercise a casting vote in the case of an
equality of votes. That is, the Speake votes on those rare occasions when there is a tie-
equality of votes. When is a tie, the presiding offic shall exercise his casting vote according to
the Constitution. To date, the Speaker of the Lok Sabha has not ben called upon to exercise
this unique casting vote. The convention as to how the Speaker should exercise his cas ing
vote is that he always supports the status quo. For example, if a Bill has equal votes for and
against, he vote against it if the Bill seeks to change the status quo.

When proceedings are taking place for his removal, he has a vote except when there is a tie.
That is, t Speaker has to withdraw his vote in case of a tie and thus produce a decisive result.
For example, if 250 member voted for his removal and 250 against, there is a tie. Speaker can
be presumed to have voted against his removal When he withdraws his vote, there are 249
votes against removal and 250 for his removal and so the Speake stands removed.

There is only one instance where the casting vote option was exercised and it was in the
Rajya Sabha when MA Baby did so on in 1991 when the voting was tied on the Resolution
moved by the opposition seeking dis Aval of the Code of Criminal Procedure (Amendment)
Ordinance.

SPEAKER'S REGULATORY ROLE

Speaker of the Lok Sabha and Chairman of the Rajya Sabha are the two presiding officers
belonging to two diferent houses. They are given vast powers of regulation, which are as
follows:

A Presiding Officer decides on the admissibility of a Question. A Presiding Officers decides

the forms in which amendments may be moved to the Motion of Thanks to the President's
Address With regard to moving amendments to a Bill, the permission of the Chair is required.
He/she regulates dis

cussions in the House. The Speaker decides as to when a member shall speak and how long
he/she shall speak, his left to him/her to ask a member to discontinue her speech. The Speaker
also has control on what a particular member said and whether that should go on records as
part of the proceedings. If she/he is satisfied, the Speaker can direct a member to withdraw
from the House for a specific period.
A member who flouts her orders or directions may be named by the Speaker and in such
cases, she may have to withdraw from the House. On questions of points of order, it is she
who finally decides whether the matter mised is in order or not.

The Speaker also has certain residuary powers under the Rules of Procedure. All matters
which are not specifically provided under the rules and all questions relating to the working
of the rules are regulated by her. In exercise of this power and under her inherent powers, the
Speaker issues from time to time directions which are generally treated as sacrosanct as the
Rules of Procedure

On matters regarding the interpretation of constitutional provisions relating to the House or

the Rules of Procedure, she often gives rulings that are respected by members and are
binding.

Under the Constitution, the Speaker enjoys a special position as certain matters on the
relations between the Two Houses of Parliament are concerned. She/he certifies Money Bills
and her certification is final

A Speaker presides over joint sittings called in the event of disagreement between the two
Houses on a leg se measure. Recognition of parliamentary parties it is the Speaker who lays
down the necessary guidelines for such recognition. A Speaker decides on granting
recognition to the Leader of the Opposition in the Lok

islative measure. Recognition of parliamentary parties it is the Speaker who lays down the
necessary guidelines

for such recognition. A Speaker decides on granting recognition to the Leader of the
Opposition in the Lok

Sabha

Following the 52 Constitution amendment, the Speaker is vested with the power relating to
the disquali fication of a member of the Lok Sabha on grounds of defection. Speaker guards
the dignity of the House and privileges of its members. The Speaker makes obituary
references in the House, formal references to important national and international events, and
the farewell address after every Session of the Lok Sabha and also when the term of the
House expires.

SPEAKER AND PRIVILEGES

The Speaker is the guardian of the rights and privileges of the House, its Committees and
members. It depends solely on the Speaker to refer any question of privilege to the
Committee of Privileges for examination, inves tigation, and report. It is through her that the
decisions of the House are communicated to outside individuals and authorities. It is the
Speaker who decides the form and manner in which the proceedings of the House are
published. She also issues warrants to execute the orders of the House, wherever necessary
and delivers repri mands on behalf of the House.

SPEAKER AND MEMBERS

The Speaker is both a member of the House as also its Presiding Officer. Speaker has to
ensure parliamentary decorum. For this, she is invested with wide-ranging disciplinary
powers under the rules. Speaker has discipl nary powers of suspension for misconduct on the
part of the members. On cut motions and few other motions, Speaker has the final say about
their admissibility.

SPEAKER'S SPECIAL POSITION

Under the Constitution, the Speaker enjoys a special position:

. He certifies Money Bill and it is final (Article 110):

• Presides over joint sittings which are summoned to resolve a disagreement between the two

Houses;   Decides on granting recognition to the Leader of the Opposition in the Lok
Sabha, and

. Following the Fifty-Second Constitution amendment 1985, the Speaker is vested with the
power relating to the disqualification of a member of the Lok Sabha on grounds of defection.

SPEAKER AND COMMITTEES

The Committees, constituted by him or by the House, function under the overall direction of
the Speaker. The Chairmen of most Parliamentary Committees are nominated by him.
Committees like the Business Advisory Committee, the General Purposes Committee (The
functions of the Committee are to consider and advise on such matters concerning the affairs
of the House as may be referred to it by the Chairman from time to time) and the Rules
Committee works directly under his Chairmanship.
He is the ex-Officio President of the Indian Parliamentary Group (IPG), set up in 1949, which
functions as the National Group of the Inter-Parliamentary Union (IPU) and the main branch
of the Commonwealth Parlia mentary Association (CPA).

It has been said of the office of the Speaker that while the members of Parliament represent
the individual constituencies, the Speaker represents the full authority of the House itself. He
symbolizes the dignity and power of the House. His unique position is illustrated by the fact
that he is placed very high in the Warrant of Precedence in our Country, standing next only to
the President, the Vice-President, and the Prime Minister. Speaker's salary and allowances are
charged to the Consolidated Fund of India to help him discharge his duties without fear or
favour.

Speaker pro Tempore or temporary Speaker is not specified in the Consti tution but is implied
in it. According to Article 94 of the Constitution, the office of the Speaker becomes vacant
immediately before the first meeting of the new Lok Sabha. In that case, the du ties of the
Speaker are to be performed by a Member of the House appointed for this purpose by the
President as

Speaker pro tem. Similarly, according to Article 99 of the Constitution, every member of the
House shall, be fore taking his seat, make an oath or affirmation according to the Third
Schedule of the Constitution, before the President or a person appointed by him. For this
purpose, normally, apart from the Speaker pro tem, three other elected Members of the Lok
Sabha, before whom the other Members may make or subscribe the oath/ affirma tion, are
also appointed by the President. Senior-most Members (in terms of several years of
membership of the House) are conventionally chosen for the purpose, even though there have
been exceptions to this practice.
During the XIV Lok Sabha in 2004, the Member of Parliament proposed to be appointed as
the Speaker pro tem was also to be subsequently proposed for election as Speaker. It was
decided to have two pro tem Speakers. Somnath Chatterjee was appointed by the President as
Speaker Protem to perform the duties of the office of Speaker from the commencement of
sitting of 14th Lok Sabha till the swearing of the newly elected members was completed. As
Somnath Chaterjee became a candidate for the post of Speaker. President appointed
Balasaheb Vikhe Patil as Speaker Pro Tem to perform the duties of the office of the Speaker-
primarily to preside over the sitting of the House for the election of the Speaker. Somnath
Chatterjee was the second Pro-tem Speaker after GV Mavalankar to have been elected as the
Speaker of the Lok Sabha.

The Constitution does not mention any functions for the Pro Tem Speaker. Technically the
functions and powers are the same as the Speaker.

Virendra Kumar was the Pro Tem speaker of the Seventeenth Lok Sabha.

PROCEDURES IN HOUSE

The Rules of Procedures and Conduct of Business in Lok Sabha and Directions issued by the
Speaker from time to time regulate the procedure in Lok Sabha. For various items of business
to be taken up in the House the time is allotted on the recommendations of the Business
Advisory Committee.

TIME OF SITTING

When in session, Lok Sabha holds its sittings usually from 11 a.m. to 1 p.m. and from 2 p.m.
to 6 p.m.

QUESTION HOUR

Generally, the first hour of a sitting of Lok Sabha is devoted to Questions and that hour is
called the Question Hour. It has a special significance in the proceedings of Parliament.
Every Minister whose turn it is to answer questions has to stand up and answer for his or his
administration's acts of omission and commission if the question is starred- that is, a question
for which an oral answer is sought from the Minister. No Member can raise questions on the
Address by the President.

ZERO HOUR

It has no formal basis in the Parliament rules. It was developed by convention to enable
members to raise matters of public importance on the floor of the House. Zero Hour
immediately follows question hour. It begins at 12 o'clock after Question Hour. Zero Hour is
observed in both the Houses of the Parliament

MOTIONS AND RESOLUTIONS

A motion is a proposal for eliciting a decision or expressing the opinion of the House on a
matter of public in portance. Every decision to be made by the House must be proposed as a
"Motion. The consent of the Presiding Officer is essential to initiate a motion. A motion is so-
called as it sets the House in motion and the business of the House essentially takes place on
the basis of motions.

Government motions involve seeking approval of the House for a policy of the government.
Private mes bers' motions focus on eliciting the opinion or decision of the House on a
particular matter. Motions fall into three principal categories

1. Substantive Motions 2. Substitute Motions

3. Subsidiary Motions

A substantive motion is a self-contained independent proposal. It is drafted in such a way as

to be capable of expressing the decision of the House. Some examples of a substantive
motion are the motion of thanks on the President's Address, the motion of no-confidence,
motion for the impeachment of persons in high authority. All substantive motions need not be
voted upon.

A substitute motion is moved in the place of the original motion. It proposes an alternative to
the original motion. It may even be for the withdrawal of the motion.

A Subsidiary motion changes another motion- amendment or withdrawal of a motion. It has

no independent standing

Subsidiary motions fall into three categories:

1. Ancillary Motion is moved for proceeding with the business. For example, the Bill be
taken into consider ation.

2. Superseding Motion is moved in the course of the debate on another question and seeks to
supersede that question. It is dilatory (cause delay) in nature. For example, motion to propose
that the Bill be referred to a
Committee.

3. Amendment. Amendment may be to a Bill, Resolution, or Motion.

RESOLUTIONS

A Resolution is a procedural means to initiate a discussion on any matter of general public

interest. A Resolution is a Substantive Motion that is voted upon.

Government resolutions are initiated by ministers. Statutory resolutions may be moved either
by a minister or by a private member to make changes in existing law. For example,
Information Technology Act Rules and rules related to Foreign Direct Investment (FDI) in
multi-brand retail were amended by a statutory resolution.

DIFFERENCE BETWEEN A MOTION AND A RESOLUTION

All Resolutions are Substantive Motions that are necessarily voted upon. All substantive
motions may not be voted upon. 

THE RELATIVE POSITION OF THE TWO HOUSES

The Constitution envisages that both the Lok Sabha and the Rajya Sabha have equal status
and position. The two Houses at the same time enjoy special powers as given below.

The Lok Sabha has the following special or exclusive powers:

Union Council of Ministers is collectively responsible to the Lok Sabha, Article 75(3).
Budget is presented in the Lok Sabha, Article 112.

Demands for grants can be introduced only in the Lok Sabha. Money Bill. Article 110 or a
Financial Bill, Article 117(1) can be introduced only in the Lok Sabha.

Speaker's decision about whether a Bill is a Money Bill or not is final.

.Prime Minister generally comes from the Lok Sabha. .Estimates Committee has its entire 30
members drawn from the Lok Sabha.

.The Lok Sabha has 545 members which are more than double that of the Rajya Sabha. Its
numerical supe riority helps in the joint session of the Parliament which is presided over by
the Speaker.

A joint session is presided over by the Speaker and in his absence the Deputy Speaker of the
Lok Sabha

The Lok Sabha has the power of moving a resolution for the discontinuation of national
emergency as provided by the Forty-Fourth Amendment Act, Article 352. The Rajya Sabha
has special or exclusive powers which are contained in Articles 249, 312, 352, 356, and

Under Article 249, the Rajya Sabha can enable the Parliament, bypassing a resolution
supported by two thirds of the members present and voting, that Parliament should make laws
concerning any matter enu

merated in the State List specified in the resolution, in the national interest.

Resolutions can be passed by the Rajya Sabha by a majority of 2/3 of the members present
and voting. under article 312, for the creation of one or more All-India services by the
Parliament, if it is deemed to serve the national interest. The services such as the Indian
Administrative Services, Indian Police Service, Indian Forest Service, and the All India
Judicial Service are All Indian Services.

Under Articles 352, 356, and 360, the Rajya Sabha can approve the Proclamations of
emergency-nation al, state, and financial respectively-initially or extended them subsequently
while Lok Sabha is not in session or under dissolution.

•Except for the above, there is equality between the two Houses: The Constitution requires
the laying of several papers on the table in both the Houses, notably amongst them are the
Budget, supplementary demands for grants, Ordinances, and Proclamations issued by the 

President, reports of Constitutional and statutory functionaries such as the Comptroller and
Auditor Gen eral. the Finance Commission, the Commissioners for the Scheduled Castes and
Scheduled Tribes, the Backward Class Commission, the Commissioner for Linguistic
Minorities and the Union Finance Com
Both Houses also participate in the matter of elections of the President and the Vice-
President. Both participate in the impeachment of the President, a Judge of the Supreme
Court or a High Court, and The Comptroller and Auditor General (CAG) of India.

mission.

DIFFERENCES BETWEEN LOK SABHA AND RAJYA SABHA

The following are the differences:

.Members of Lok Sabha are directly elected based on universal adult franchise. Members of
Rajya Sabha are elected by the elected members of State/Union Territory Assemblies by the
system of proportional representation using a single transferable vote.

• The normal life of every Lok Sabha is 5 years while the Rajya Sabha is a permanent body
and the member has a term of 6 years. The Rajya Sabha has a nominated component-12
members of intelligentsia which the Lok Sabha does

not have. Lok Sabha has nominated Anglo-Indians if they are not sufficiently represented in
the opinion

of the President.