1

Q.What is Constitutionalism

Introduction
Constitutionalism is a philosophy which is essential for a democratic setup. It
ensures that the freedoms of the individual are given primacy and the State
does not encroach upon the liberty of the citizen. It ensures that the
government is limited and prevents it from turning the democratic setup into
dictatorial and authoritative.

Meaning
Constitutionalism is a philosophy which is evolutionary in nature. But the
central point of Constitutionalism is a “Limited Government”.
Constitutionalism recognises the need for a government but at the same
time also insists upon restraining its (government’s) power.

According to Michel Rosenfeld, there is “no accepted definition of

constitutionalism but, broadly, modern constitutionalism requires imposing
limits on the powers of government, adherence to the rule of law, and the
protection of fundamental rights”.

According to Giovani Sartori, constitutionalism calls for restriction on the

arbitrary power of the State.

Similarly according to McIlwain, constitutionalism means “legal limitation on

government. It is the antithesis of arbitrary rule. Its opposite is a despotic
government, the government of will instead of the law.

Thus constitutionalism means the limitation of government by law. Magna

Carta (1215) implies Constitutionalism. It placed a restriction on the power
of England’s King John.

Carl Friedrich writes in his Constitutional Government and Democracy that

Constitutionalism is built on a simple idea, that the government is organised
by people and operated on behalf of the people, but is subject to a series of
restraints which attempt to ensure that the power which is needed for such
governance is not abused by those who are called upon to do the governing.
 2

Elements of constitutionalism
According to Louis Henkin Constitutionalism implies,

1. Popular sovereignty
2. The supremacy of the Constitution and Rule of Law
3. Political Democracy
4. Representative Limited Government
5. Separation of Power
6. Civilian Control of the Military force
7. Police governed by Law and Judicial Control
8. An Independent Judiciary
All these elements restrict the power of the State in a particular way.

According to Michel Rosenfield, modern Constitutionalism requires limits on

the power of the government along with the adherence to the Rule of Law
and protection of Fundamental Rights.

Negative and positive constitutionalism

Negative constitutionalism
It is to be noted that the traditional idea of Constitutionalism (as stated
above) is a Negative notion of Constitutionalism. Nick Barber calls it
“negative Constitutionalism”. In law, a negative understanding of an idea
means when it prevents an entity from doing a certain act.

The traditional understanding of Constitutionalism fails to explain the

positive role that the States play. The common understanding of
Constitutionalism is negative in nature because it considers Constitutionalism
as only restricting and limiting the power of the state. From the prism of
negative Constitutionalism, a State is a danger that needs to be constrained.
The role of law is to limit the dangerous capacities of the executive and
legislative branches. For instance, the purpose of Separation of power is to
protect the liberty of citizens, by restricting the arbitrary action of the state.
 3

Negative Constitutionalism requiring a constitutional structure which

prevents the State action is not always desirable. This understanding of
Constitutionalism makes it harder for the state to provide health-care and
poverty alleviation schemes, which requires government intervention. Thus
it is not desirable especially in India which is a welfare state and which
aspires to social and economic justice as well along with political justice.

It is because of this that Jeremy Waldron criticises negative

Constitutionalism as being anti-democratic. For Waldren, this understanding
of Constitutionalism is fundamentally flawed. For him, this understanding of
Constitutionalism is against the notion of Egalitarianism which for Waldron is
at the core of a Democracy.

Positive constitutionalism
Positive Constitutionalism challenges the understanding of seeing
Constitutionalism entirely in terms of limits upon the State. The positive
aspect of Constitutionalism requires the State to be seen in the light of a
“Welfare State”. The positive version of Constitutionalism requires the
creation of effective and competent state institutions to ensure the well
being of its citizens.

According to M.P. Singh if a Constitution ignores accommodation and respect

for diversity and plurality in a society then it fails to meet the requirement of
constitutionalism. Several older constitutions that have ignored this aspect
of constitutionalism have introduced it either through judicial interpretations,
amendments, appropriate legislation and constitutional application.

Need for constitutionalism

The requirement of Constitutionalism as a limitation on the power of the
state has been explained by Prof. B. O. Nwabueze in his
book “Constitutionalism in the Emergent States, 1973. According to him
“ the last 30 years (starting from 1973) has demonstrated that the greatest
danger to constitutional government in emergent states arises from the
human factor in politics”, specifically “from the capacity of politicians to
distort and vitiate whatever governmental forms may be devised”.

According to him, “a lot depends upon the actual behaviour of these

individuals and upon their willingness to observe the rules.
 4

He says that “the successful working of a constitution depends upon the

’democratic spirit’, that is, a spirit of, fair play, self-restraint and mutual
accommodation of differing interests and opinions. There can be no
constitutional government unless the wielders of power are prepared to
observe the limits upon governmental powers”.

In S.R. Chaudhuri v. State of Punjab (2001), constitutional restraints must

not be ignored or bypassed if found inconvenient or bent to suit “political
expediency”. We should not allow the erosion of principles of
constitutionalism.

In New India Assurance Company Ltd. v. Nusli Neville Wadia (2007), the
Court said that “For proper interpretation of Constitutional provisions not
only the basic principles of natural justice have to be borne in mind, but also
principles of constitutionalism involved therein.”

A constitution is no guarantee for constitutionalism

A written Constitution is no guarantee for Constitutionalism. Even Nazi
Germany had a constitution but that does not mean that it adhered to the
philosophy of Constitutionalism be it a negative or positive aspect of it.

As the Supreme Court said in S.R. Chaudhuri v. State of Punjab (2001) “the
mere existence of a Constitution, by itself, does not ensure
constitutionalism. What is important is the political traditions of the people
and its spirit and determination to work out its constitutional salvation
through the chosen system of its political organisation.”

Unless primacy to democratic policies and individual rights is not given

Constitutionalism cannot survive. Subtle assaults to individual rights
especially freedom of Speech and Expression and privacy, such as sedition
laws, surveillance laws, undermine Constitutionalism.

Agin in R.C. Poudyal v. Union of India (1994) court said that,

“Mere existence of a Constitution, by itself, does not ensure

constitutionalism or a constitutional culture. It is the political maturity and
traditions of people that give meaning to a Constitution which otherwise
would merely embody the political hopes and ideals”.
 5

For constitutionalism, a constitution needs to have some qualities which

would either restrain the government from acting against its citizens or
compel it to act for securing a dignified life to each one of them

Constitutionalism in India
Various Constitutional provisions contain in itself, inter-alia the philosophy of
Constitutionalism.

A state by the constitution

The Indian State is a result of the Constitution of India. Indian
Constitution not just provides the rights and immunities to the citizen, but it
also delineates the character and structure of the Indian State. Therefore it
can also be said that the powers and extent of the Indian State are limited
by the Constitution. Its actions are guided by the Directive Principle of State
Policy. The Indian State cannot function beyond what the Constitution
provides.

Article 21 and due process of law

Article 21 of the Indian Constitution provides that life and liberty cannot be
deprived except by a procedure established by law. This means that there
has to be a legal justification for the deprivation of life and liberty of a
person. The requirement of law for deprivation acts as a limitation on the
arbitrary exercise power of the legislature as well as the executive.

Further such a law should not be just a mere prescription, it must conform
to the American Due Process which involves law to have the element of
“Fundamental Fairness”.

In Swaran Singh v. State of U. P. (1998) the Court observed that public

power, including constitutional power, must never be exercised arbitrarily or
malafide, and ordinarily guidelines for fair and equal execution are
guarantees of valid use of power. The power being of the greatest moment,
cannot be a law unto itself but it must be informed by the finer canons of
constitutionalism.
 6

These requirements of Law and of Due process restrict the power of the
state. Any violation of these principles would enable the courts to strike
down the law.

Fundamental rights
Fundamental rights are the most basic bulwark against the arbitrary exercise
of the power of the state. Fundamental Rights act as restraints on the
states, directing states what not to do. They serve as negative covenants for
the state.

In IR Coelho v. State of Tamil Nadu and Ors (2007) court observed that the
principle of constitutionalism is now a legal principle which requires control
over the exercise of Governmental power to ensure that it does not destroy
the democratic principles and these democratic principles include protection
of Fundamental Rights. The principle of constitutionalism is based on the
principle of legality which requires the Courts to interpret the legislations on
the presumption that the Parliament would not intend to legislate contrary to
fundamental rights. The Legislature can restrict fundamental rights but it is
impossible for laws protecting fundamental rights to be impliedly repealed by
future statutes.

For instance, no law can be made by the state which treats two people who
are situated in equal circumstance unequally since it will amount to a
violation of Article 14 of the Indian Constitution. Similarly, Freedom of
Speech and expression under Article 19(1)(a) can be restricted only on the
ground mentioned in Article 19(2) only i.e. It can be restricted only if the
sovereignty and integrity of India, the security of the State, friendly relations
with foreign states, or public order, decency or morality is threatened or if
the speech is in relation to contempt of court, defamation or incitement to
an offence. The freedom of speech cannot be restricted by the state on any
other grounds. Thus, these restrictions on speech act as limits on the power
of the state in the sense that it delineates the extent to which the state can
curb freedom of speech.
 7

Written constitution
Indian Constitution being written, codified and regarded as supreme law of
the land, the Indian State is thus controlled and restricted. Restricted in the
sense that it cannot go beyond the limits and mandate of the Indian
Constitution. The mandate of the state cannot go beyond the Directive
Principles of State Policy, enshrined in Part IV of the Indian Constitution.

Being a written Constitution it firstly provides for a limited government,

which is the core of Constitutionalism. The sovereign powers are divided
among 3 organs of the government. Powers of each organ are defined by the
constitution and no organ or its instrumentalities can transgress its limits.

Further, a written Constitution provides for fundamental law of the land and
thus the legislature is bound by the Constitutional principles. The legislature
cannot make a law which violates the Constitution. Thus the power of the
Constitution is restricted.

In the State (NCT of Delhi) v. Union of India (2018), the court said that:

“The constitutional functionaries owe a greater degree of responsibility

towards this eloquent instrument for it is from this document that they
derive their power and authority and, as a natural corollary, they must
ensure that they cultivate and develop a spirit of constitutionalism where
every action taken by them is governed by and is in strict conformity with
the basic tenets of the Constitution”.

Separation of power
Separation of powers means that the powers of the state are divided among
the three principal organs of the government, which are “the Executive”,
“the Legislature”, and “the Judiciary”. Each of the organs is restricted to
transgress its limits and this system ensures a check on the power of the
other, thus restraining them from acting arbitrarily and unreasonably,
without due regard to due process.

In the State (NCT of Delhi) v. Union of India (2018), Chief Justice Mishra
observed that “The essence of constitutionalism is the control of power by its
distribution among several state organs or offices in such a way that they
 8

are each subjected to reciprocal controls and forced to cooperate in

formulating the will of the state.

Conclusion
The design and character of the Indian Constitution ensure that the powers
of the Executive and the Legislature is limited so that the discretion given to
these organs does not turn into arbitrariness, an arbitrary exercise. The
Fundamental Rights, the basic structure, federal setup of the administration,
the amendment procedure all limit the State in a particular way.
 9

Ques 3. Discuss the major features of the Government of India Act

1935.
Answer:Government of India Act of 1935 marked the second milestone towards
a completely responsible government in India. It ended Diarchy and provided
the establishment of All India Federation. This act served some useful purposes
by the experiment of provincial autonomy, thus we can say that the Government
of India Act 1935 marks a point of no return in the history of constitutional
development in India.
Features of the Act

• It provided for the establishment of an All-India Federation consisting of

provinces and princely states as units. The Act divided the powers
between the Centre and units in terms of three lists—Federal List (for
Centre, with 59 items), Provincial List (for provinces, with 54 items) and
the Concurrent List (for both, with 36 items). Residuary powers were
given to the Viceroy. However, the federation never came into being as
the princely states did not join it.
 10

• It abolished diarchy in the provinces and introduced ‘provincial autonomy’

in its place. The provinces were allowed to act as autonomous units of
administration in their defined spheres.
• It provided for the adoption of diarchy at the Centre. Consequently, the
federal subjects were divided into reserved subjects and transferred
subjects. However, this provision of the Act did not come into operation
at all.
• It introduced bicameralism in six out of eleven provinces. Thus, the
legislatures of Bengal, Bombay, Madras, Bihar, Assam and the United
Provinces were made bicameral consisting of a legislative council (upper
house) and a legislative assembly (lower house). However, many
restrictions were placed on them.
• It further extended the principle of communal representation by providing
separate electorates for depressed classes (scheduled castes), women
and labour (workers).
• It abolished the Council of India, established by the Government of India
Act of 1858. The secretary of state for India was provided with a team of
advisors.
• It extended franchise. About 10 per cent of the total population got the
voting right.
• It provided for the establishment of a Reserve Bank of India to control the
currency and credit of the country.
• It provided for the establishment of not only a Federal Public Service
Commission but also a Provincial Public Service Commission and Joint
Public Service Commission for two or more provinces.
• It provided for the establishment of a Federal Court, which was set up in
1937.
 11

Ques 1. Elaborate Salient features of an Indian Constitution.

Answer: Every written constitution in the world has its own unique characteristics, and no
exception is the Indian Constitution. But the Indian Constitution has many prominent features
that distinguish it from the other Constitutions.

1. Longest written Constitution

The Indian constitution is the world's longest for a sovereign nation. At its enactment, it had
395 articles in 22 parts and 8 schedules. For example, the UK has no written constitution, while
the US Constitution contains only seven articles.

2. Taken from various sources

The Indian Constitution was framed from multiple sources including the 1935 Government of
India Act and Other Countries Constitutions.

3. Partly rigid and flexible

A rigid Constitution is one that requires a special procedure for its amendment, as for example,
the American Constitution.

A flexible constitution, on the other hand, is one that can be amended in the same manner as
the ordinary laws are made, as for example, the British Constitution.

The Constitution of India is neither rigid nor flexible but a synthesis of both

4. Parliamentary System of Govt.

The parliamentary system is based on the principle of cooperation and coordination between
the legislative and executive organs
 12

The Constitution establishes the parliamentary system not only at the Centre but also in the
states.

5. A Federation

Federal System with Unitary, The Indian Constitution includes all the federal characteristics of
governance such as dual government system (centre and state), division of powers between the
three state organs (executive, judiciary and legislature), constitutional supremacy, independent
judiciary and bicameralism (lower and upper house)

6. Fundamental Rights

Part III of the Indian Constitution guarantees six fundamental rights to all the citizens:

(a) Right to Equality (Articles 14–18),

(b) Right to Freedom (Articles 19–22),

(c) Right against Exploitation (Articles 23–24),

(d) Right to Freedom of Religion (Articles 25–28),

(e) Cultural and Educational Rights (Articles 29–30), and

(f) Right to Constitutional Remedies (Article 32).

Directive Principles of State Policy

 13

In Part IV of the Constitution, the Directive Principles of State Policies (DPSPs) aims to make
India a welfare state. Therefore, Dr B.R. Ambedkar calls the Directive Principles as the Indian
Constitution's novel feature. The Principles of the Directive are inherently unjustifiable, that is,
they are not enforceable for their violation by the courts.

7. Fundamental Duties

The Part IV-A of the Constitution (which consists of only one Article—51- A) specifies the eleven
Fundamental Duties viz., to respect the Constitution, national flag and national anthem; to protect the
sovereignty, unity and integrity of the country; to promote the spirit of common brotherhood amongst
all the people; to preserve the rich heritage of our composite culture and so on

8. Secular State

The Constitution of India stands for a secular state. It does not uphold any particular religion as the
official religion of the Indian State

9. An independent Judiciary

In India, unlike the United States where there is a two-tiered judiciary, a single judicial system prevails
with the Supreme Court at the top, the State and District High Courts and other subordinate courts
below and subject to the supervision of the High Courts

10. Single Citizenship

Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for
only single citizenship, that is, the Indian citizenship.
 14

Ques 9. Explain structure of court in India.

Answer:

As per the judiciary system, there are three levels of courts in India

District Courts: This is where most citizens go to for any dispute in their city or region. Each
state comprises many districts and has its own district or subordinate courts. And, the entire
district is presided over by the District Judge

High Courts: Each state has its own High Court, which is most certainly the highest judicial
authority of the state.

Supreme Court: This is at the top of all state and district courts, presided by the Chief Justice of
India. Because it is the highest authority of justice for the country, the decisions made by the
Supreme Court stands above all other courts. The Supreme Court of India is located in Mandi
House, New Delhi.

Ques 10. What is lokpal and lokayukta act?

Answer:

The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the Union level and
Lokayukta at the State level. Lokpal and Lokayuktas are statutory bodies and these do not have any
constitutional status. These institutions perform the function and role of an “Ombudsman” (an official
appointed to investigate individuals’ complaints against a company or organization, especially a public
authority). They inquire into allegations of corruption against certain public bodies/organizations and for
other related matters.

The person to be appointed as the chairperson of the Lokpal must be either:

The former Chief Justice of India; or

The former Judge of the Supreme Court; or

 15

An eminent person with impeccable integrity and outstanding ability, who must possess special
knowledge and a minimum experience of 25 years in matters relating to:

Anti-corruption policy;

Public administration;

Vigilance;

Finance including insurance and banking;

Law and management.

The maximum number of members must not exceed eight. These eight members must constitute:

Half members to be judicial members;

Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities and women.

The judicial member of the Lokpal must be either:

A former Judge of the Supreme Court or;

A former Chief Justice of the High Court.

The non-judicial member of the Lokpal needs to be an eminent person with flawless integrity and
outstanding ability. The person must possess special knowledge and an experience of a minimum of 25
years in matters relating to:

Anti-corruption policy;

Public administration;

Vigilance;

Finance including insurance and banking;

Law and management.

Ques 11. Explain independence of the judiciary system in India.

Answer:
 16

Judicial independence is the concept that the judiciary should be independent from the other branches
of government. That is, courts should not be subject to improper influence from the other branches of
government or from private or partisan interests. Judicial independence is important to the idea of
separation of powers.

Independence of the judiciary (also judicial independence) is the principle that the judiciary should be
politically insulated from the legislative and the executive power. That is, courts should not be subject to
improper influence from the other branches of government, or from private or partisan interests.

The rule of law, and judicial independence as its essential component, is a political achievement. All
judges have a duty to take care to preserve political and public support for the rule of law; senior judges
in particular have a duty to explain.

Ques 10. Discuss the major features of the Independence Act 1947.

Answer:
 17

Indian Independence Act 1947/ Lord Mountbatten Plan

On June 3, 1947, Lord Mountbatten put forward his plan which outlined the steps
for the solution of India’s political problem. The main purpose of the
Mountbatten Plan was the partition of India and the speedy transfer of
responsibility, initially in the form of Dominion Status.

India to be divided into India and Pakistan, two independent dominions.

There would be a separate constituent assembly for Pakistan to frame its

constitution.

The Princely states would enjoy the liberty to join either India or Pakistan or ever
remain independent.

August 15, 1947, was date fixed for handling over power to India and Pakistan.

The Act proclaimed lapse of British power over Indian States.

 18

Ques 9. What are the fundamental duties as per the constitution of

India?
Answer: The list of 11 Fundamental Duties under article 51-A to be obeyed by
every Indian citizen is given below:

• Abide by the Indian Constitution and respect its ideals and institutions,
the National Flag and the National Anthem.
• Cherish and follow the noble ideals that inspired the national struggle for
freedom
• Uphold and protect the sovereignty, unity and integrity of India.
• Defend the country and render national service when called upon to do
so.
• Promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities and to renounce practices derogatory to the dignity of women.
• Value and preserve the rich heritage of the country’s composite culture
• Protect and improve the natural environment including forests, lakes,
rivers and wildlife and to have compassion for living creatures
• Develop scientific temper, humanism and the spirit of inquiry and reform
• Safeguard public property and to abjure violence
• Strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement.
• Provide opportunities for education to his child or ward between the age
of six and fourteen years. This duty was added by the 86th Constitutional
Amendment Act, 2002.
 19

Ques 7. Discuss the major provisions of Emergency as per the

constitution of India.
Answer
EMERGENCY is defined as a situation, which is not normal, which calls for
immediate remedial action or remedy.
The Indian Constitution gives President the authority to declare three types of
emergencies: National Emergency, State Emergency and Financial
Emergency. Emergency provisions in India are borrowed from the Weimar
Constitution of Germany. Constitution of India envisages emergency of
following three types:

• Article 352- National Emergency

• Article 356-Emergency in state ( president’s rule)
• Article 360- Financial Emergency

Emergency Provisions
1. Article 352: Proclamation of Emergency.
2. Article 353: Effect of Proclamation of Emergency.
3. Article 354: Application of provisions relating to the distribution of revenues
while a proclamation of emergency is in operation.
4. Article 355: Duty of the Union to protect States against external aggression
and internal disturbance.
5. Article 356: Provisions in case of failure of constitutional machinery in State.
6. Article 357: Exercise of legislative powers under Proclamation issued under
Article 356.
7. Article 358: Suspension of provisions of article 19 during Emergencies.
8. Article 359: Suspension of the enforcement of the rights conferred by Part
III during emergencies.
9. Article 360: Provisions as to Financial Emergency.
 20

Imp Ques Difference between the National Emergency and

President’s Rule
Answer
National Emergency (Article 352) President’s Rule (Article 356)

National Emergency is proclaimed State Emergency is proclaimed under

under Article 352 on the ground of Article 356 when the State Government
war, external aggression and cannot be carried out according to the
armed rebellion. Constitutional provisions.

State Executive and legislature State Executive powers get vested in

perform their power as mentioned the Central. Governor works in the state
in List II of Schedule VII. on the advice of the President. State
Concurrent List power vests in the Legislative Assembly is dissolved or
Central Government. suspended.

The Proclamation may be The maximum period up to which State

continued for an indefinite time as Emergency may continue is three years
no maximum period is prescribed after which it will cease but it may be
but it is subject to renew every six further continued after the Constitutional
months. Amendment.

Fundamental Rights are There was no effect on the

suspended during National Fundamental Rights of the people of the
Emergency except Article 20 & 21. State.

Resolution for the continuation of

the proclamation of emergency Resolution can be passed with a simple
must be passed with a special majority in the Parliament.
majority.

The resolution for the revocation of Resolution for revocation of the

the proclamation can be passed by proclamation can be passed by
Lok Sabha. President in his discretion.

During this emergency, the Centre’s relation undergoes a

Centre’s relation undergoes a modification only with the state under
modification with all the States. the President’s Rule.

Ques 2. What are the Fundamental Rights? Explain in detail.

 21

Answer
There are six fundamental rights of Indian Constitution along with the
constitutional articles related to them are mentioned below:

1. Right to Equality (Article 14-18)

2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of religion,
gender, caste, race or place of birth. It ensures equal employment opportunities
in the government and insures against discrimination by the State in matters of
employment on the basis of caste, religion, etc. This right also includes the
abolition of titles as well as untouchability
2. Right to Freedom (Articles 19 – 22)
Freedom is one of the most important ideals cherished by any democratic
society. The Indian Constitution guarantees freedom to citizens. The freedom
right includes many rights such as:

• Freedom of speech
• Freedom of expression
• Freedom of assembly without arms
• Freedom of association
• Freedom to practice any profession
• Freedom to reside in any part of the country

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other
forms of forced labour. It also implies the prohibition of children in factories, etc.
 22

The Constitution prohibits the employment of children under 14 years in

hazardous conditions.
4. Right to Freedom of Religion (Articles 25 – 28)
This indicates the secular nature of Indian polity. There is equal respect given
to all religions. There is freedom of conscience, profession, practice and
propagation of religion. The State has no official religion. Every person has the
right to freely practice his or her faith, establish and maintain religious and
charitable institutions.
5. Cultural and Educational Rights (Articles 29 – 30)
These rights protect the rights of religious, cultural and linguistic minorities, by
facilitating them to preserve their heritage and culture. Educational rights are
for ensuring education for everyone without any discrimination.
6. Right to Constitutional Remedies (32 – 35)
The Constitution guarantees remedies if citizens’ fundamental rights are
violated. The government cannot infringe upon or curb anyone’s rights. When
these rights are violated, the aggrieved party can approach the courts. Citizens
can even go directly to the Supreme Court which can issue writs for enforcing
fundamental rights.

Ques 6. Write a note on the relations between the union and the
state.
Answer: India is a union of states. The constitution of India has divided the
legislative, executive and financial powers between the centre and the states,
 23

which gives the constitution a federal character whereas the judiciary is

integrated into a hierarchical structure.
The centre-state relations are divided into three parts, which are mentioned
below:

(A) Legislative Relations (Article 245-255)

Articles 245 to 255 in Part XI deals with different aspects of legislative
relations between centre and states. These include:
(1) Territorial jurisdiction of laws made by the Parliament and by the
Legislatures of States.
(2) Distribution of legislative subjects
(3) Power of the parliament to legislate with respect to a matter in the State
List
(4) Centre's control state legislation
However, Seventh Schedule of the Constitution provides for the distribution of
legislative powers between the centre and the states. The legislative subjects
are divided into List I (the Union List), List II (the Concurrent List) and List III
(the State List).

(B) Administrative Relations (Article 256-263)

Article 256 to 263 deals with the administrative relations between the centre
and the states. Article 256 states that "the executive power of every State
shall be so exercised as to ensure compliance with the laws made by the
parliament and any existing laws which apply in that State, and the executive
power of the Union shall extend to the giving of such directions to a State as
may appear to the Government of India to be necessary for that purpose".
Cooperation Between the Centre and the States Centre-State Relations
during Emergency.
 24

(C) Financial Relations (Article 268-293)

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

Ques 8. What is the Local Self-Government system in India?

Answer
Local self-government implies the transference of the power to rule, to the
 25

lowest rungs of political order. It is a form of democratic decentralization where

the participation of even the grassroot level of the society is ensured in the
process of administration.
Local government in India refers to governmental jurisdictions below the level
of the state.
India is a federal republic with three spheres of government: central, state and
local. The 73rd and 74th constitutional amendments give recognition and
protection to local governments and in addition, each state has its own local
government legislation.
The foundation of present local self-government was laid by The Panchayati
Raj System (1992).
Since 1992, local government in India takes place in two very distinct forms.
Urban localities, covered in the 74th amendment to the Constitution, have
Municipal Corporations but derive their powers from the individual state
governments, while the powers of rural localities have been formalized under
the Panchayati Raj System, under the 73rd amendment to the Constitution.
The local self-government started at village and district levels after 73rd and
74th amendments in 1993, it comprises of Gram Panchayats, Mandals, or
Taluka Panchayats and Zila Panchayats in Panchayati Raj Institutions. At urban
levels, there are Nagar Panchayats , Municipal Councils and municipal
corporations.
The main aim of the Local Self government was to involve the grassroot level
of population in decision making. Local bodies were also to serve the purpose
of the participation of people and training in politics.

Ques 4. Discuss three important Constitutional Amendments.

Answer
 26

1. Abolition of states according to classes and the introduction of

Union Territories and reorganisation of states by language (1956)
This was one of the first significant reforms of the boundaries of Indian states
and territories, organising them by the language spoken in those areas. This
systematically arranged the states and lowered the complexity of state
boundaries. Apart from this, it also abolished the classification of states by
progress and per-capita income of the states.
2. The mini-constitution (42nd amendment) inserted Socialism and
Secularism in the preamble, a provision on fundamental (1976):
Secularism and socialism were inserted to restore the faith of the nation that
minorities would be safe and not be exploited by the rich strata. Also, the rich
would not be allowed to dominate the country’s economy. The main reason to
add socialism was to promote social as well as economic equality in the country.
Similarly, the main reason to add secularism was to imply that there was no
official state religion of the country.
3. Right to Property deleted from the list of fundamental rights
(1978):
The fundamental right to property in India was removed to permit the
reorganisation of land and to facilitate land acquisition for developmental
projects. This was carried out by the Indian government at that time since it was
not affluent enough to pay people whatever they demanded their land.

Ques 5. Discuss the Power of the Parliament under Article 368 to

Amend the Constitution.
Answer:
Article 368 of the Indian Constitution provides the procedure of Amendment.
Indian Constitution is neither rigid nor flexible because under Article 368 the
 27

Constitution can be amended by a simple majority or by the special majority

and by the majority of not less than 2/3 members of each house. Indian
Constitution is both rigid as well as flexible i.e. it is difficult to amend but
practically flexible. As per Article 368 of the Indian Constitution, an
amendment can be introduced in either of the houses, later it can be passed
by a special majority or by a simple majority. Later if the bill is passed by the
majority, it will be sent to the President for his assent

Ques 9. Explain structure of court in India.

Answer:
 28

As per the judiciary system, there are three levels of courts in India
 29

District Courts: This is where most citizens go to for any dispute in their city or
region. Each state comprises many districts and has its own district or
subordinate courts. And, the entire district is presided over by the District Judge
High Courts: Each state has its own High Court, which is most certainly the
highest judicial authority of the state.
Supreme Court: This is at the top of all state and district courts, presided by
the Chief Justice of India. Because it is the highest authority of justice for the
country, the decisions made by the Supreme Court stands above all other
courts. The Supreme Court of India is located in Mandi House, New Delhi.

Ques 10. What is lokpal and lokayukta act?

Answer:
The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal
at the Union level and Lokayukta at the State level. Lokpal and Lokayuktas are
statutory bodies and these do not have any constitutional status. These
institutions perform the function and role of an “Ombudsman” (an official
appointed to investigate individuals’ complaints against a company or
organization, especially a public authority). They inquire into allegations of
corruption against certain public bodies/organizations and for other related
matters.
The person to be appointed as the chairperson of the Lokpal must be either:

1. The former Chief Justice of India; or

2. The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding ability, who
must possess special knowledge and a minimum experience of 25 years
in matters relating to:
o Anti-corruption policy;
o Public administration;
o Vigilance;
o Finance including insurance and banking;
o Law and management.
 30

The maximum number of members must not exceed eight. These eight
members must constitute:

• Half members to be judicial members;

• Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities
and women.
The judicial member of the Lokpal must be either:

• A former Judge of the Supreme Court or;

• A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an eminent person with
flawless integrity and outstanding ability. The person must possess special
knowledge and an experience of a minimum of 25 years in matters relating to:

• Anti-corruption policy;
• Public administration;
• Vigilance;
• Finance including insurance and banking;
• Law and management.

Ques 11. Explain independence of the judiciary system in India.

Answer:
Judicial independence is the concept that the judiciary should be
independent from the other branches of government. That is, courts should not
be subject to improper influence from the other branches of government or from
private or partisan interests. Judicial independence is important to the idea of
separation of powers.
Independence of the judiciary (also judicial independence) is the principle that
the judiciary should be politically insulated from the legislative and the executive
 31

power. That is, courts should not be subject to improper influence from the other
branches of government, or from private or partisan interests.
The rule of law, and judicial independence as its essential component, is a
political achievement. All judges have a duty to take care to preserve political
and public support for the rule of law; senior judges in particular have a duty to
explain.
 32

Ques 3. Discuss the powers and functions of a Governor.

Answer:
Executive Powers of the Governor
Every executive action that the state government takes, is to be taken in his
name.
How an order that has been taken up his name is to be authenticated, the rules
for the same can be specified by the Governor.
Legislative Powers of the Governor
The following are the legislative powers of the governor:

1. It’s in his power to prorogue the state legislature and dissolve the state
legislative assemblies
2. He addresses the state legislature at the first session of every year
3. If any bill is pending in the state legislature, Governor may/may not send
a bill to the state legislature concerning the same

Financial Powers of the Governor

The following are the financial powers and functions of the Governor:

1. He looks over the state budget being laid in the state legislature
2. His recommendation is a prerequisite for the introduction of money bill in
the state legislature
3. He recommends for the demand for grants which otherwise cannot be
given

Judicial Powers of the Governor

The following are the judicial powers and functions of the Governor:
He has the following pardoning powers against punishment:

1. Pardon
2. Reprieve
 33

3. Respite
4. Remit
5. Commute
 34

Ques 1. Discuss the major functions of Lok Sabha.

Answer:
1. Legislative:
The Lok Sabha can pass bills concerning all those subjects which have been
included in the Union List and the Concurrent List. It can pass bills regarding
state subjects also in emergencies or if Rajya Sabha by a resolution passed by
majority of its total members and 2/3 of its members present and voting
declared a particular -state subject of national importance.
2. Control over the Executive:
In a Parliamentary form of government, the most important function of a lower
House is “Control over the Executive”. The lower House of our Parliament is not
an exception. According to Article 75(3), the Council of Ministers is collectively
responsible to the Lok Sabha. This means, the ministry must tender resignation
if a vote of non-confidence is passed against it by the Lok Sabha.
3. Electoral Function:
Article 54 of the Constitution vests electoral functions with the Parliament. The
elected members of both the Houses of Parliament constitute a part of the
Electoral College for the election of President. Article 66 provides for the
election of the Vice-President by the members of both the Houses of Parliament
at a joint session. The Lok Sabha elects its speaker as well.
4. Financial:
The Lok Sabha’s control over purse is an undisputed fact. A money bill must be
initiated in the Lok Sabha. When passed by the Lok Sabha, it is to be
transmitted to the Rajya Sabha for its recommendations. The Constitution,
however, requires the Rajya Sabha to return it to the Lok Sabha with its
recommendations within 14 days from the date of receipt of the bill.
5. Discussions on Questions of Public Importance:
The Parliament possesses unlimited power of discussing and debating
questions. This is done usually on the occasion of the inaugural and annual
 35

address by the President of India. It is empowered to review and criticize the

work of the different departments of state during the discussion on the estimates
of expenditure, the appropriation and revenue bills. Through such criticism and
review, the members of House can get their grievances redressed.

Ques 12. What do you understand by judicial activism?

Answer:
 36

Judicial activism is the judicial philosophy that the courts can and should
go beyond the words of the constitution or a statute to consider broader societal
implications of its decisions.
It is sometimes used as an antonym of judicial restraint.
The definition of judicial activism and the specific decisions that are activist are
controversial political issues.
The question of judicial activism is closely related to constitutional
interpretation, statutory construction, and separation of powers.
The judiciary plays an important role in upholding and promoting the rights of
citizens in a country. The active role of the judiciary in upholding the rights of
citizens and preserving the constitutional and legal system of the country is
known as judicial activism.
Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing

constitutional principles when the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when
all other doors are closed. The Indian judiciary has been considered as
the guardian and protector of the Indian Constitution.
• There are provisions in the constitution itself for the judiciary to adopt a
proactive role. Article 13 read with Articles 32 and 226 of the
Constitution provides the power of judicial review to the higher judiciary
to declare any executive, legislative or administrative action void if it is in
contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation
made the judicial process more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere
spectator.
Previous
Lok Sabha
 37

Next

Ques 6. Elaborate the powers and functions of members of Rajya Sabha.

Answer :
Powers of members of Rajya Sabha
 38

• Legislative Powers
• Financial Powers
• Executive Powers
• Amendment Powers
• Electoral Powers
• Judicial Powers
• Miscellaneous Powers

1. Legislative Powers:
In the sphere of ordinary law-making the Rajya Sabha enjoys equal powers with
the Lok Sabha. An ordinary bill can be introduced in the Rajya Sabha and it
cannot become a law unless passed by it. In case of a deadlock between the
two Houses of Parliament over an ordinary bill and if it remains unresolved for
six months, the President can convene a joint sitting of the two Houses for
resolving the deadlock.
2. Financial Powers:
In the financial sphere, the Rajya Sabha is a weak House. A money bill cannot
be introduced in the Rajya Sabha. It can be initiated only in the Lok Sabha. A
money bill passed by the Lok Sabha comes before the Rajya Sabha for its
consideration. However, if within a period of 14 days, the Rajya Sabha fails to
pass the bill, the bill is taken to have been passed by the Parliament irrespective
of the fact whether the Rajya Sabha has passed it or not. If the Rajya Sabha
proposes some amendments and the bill is returned to the Lok Sabha, it
depends upon the Lok Sabha to accept or reject the proposed amendments.
3. Executive Powers:
“The Union Council of Ministers is collectively responsible before the Lok Sabha
and not the Rajya Sabha.” Lok Sabha alone can cause the fall of the Council of
Ministers by passing a vote of no-confidence.
4. Amendment Powers:
 39

Rajya Sabha and Lok Sabha can together amend the constitution by passing
an amendment bill with 2/3 majority in each House.
5. Electoral Powers:
The Rajya Sabha has some electoral powers also. The elected members of the
Rajya Sabha along with the elected members of the Lok Sabha and all the State
Legislative Assemblies together elect the President of India. The members of
the Rajya Sabha Lok Sabha together elect the Vice- President of India.
Members of the Rajya Sabha also elect a Deputy Chairman from amongst
themselves.
6. Judicial Powers:
(a) The Rajya Sabha acting along with the Lok Sabha can impeach the
President on charges of violation of the Constitution.
(b) The Rajya Sabha can also pass a special address for causing the
removal of a judge of the Supreme Court or of any High Court.
(c) The charges against the Vice-President can be leveled only in the
Rajya Sabha.
(d) The Rajya Sabha can pass a resolution for the removal of some high
officers like the Attorney General of India, Comptroller and Auditor General
and Chief Election Commissioner.
7. Miscellaneous Powers:
(a) Approval of the ordinances issued by the President,
(b) Ratification of an emergency proclamation,
(c) Making any change in the jurisdiction of the Supreme Court and the
High Courts, and
(d) Making any change in the qualifications for the membership of the Lok
Sabha and the Rajya Sabha.
 40

Ques 2. Differentiate between Lok Sabha and Rajya Sabha.

Answer:
Lok Sabha
 41

House of People, where people who are qualified to vote can elect their
representative by way of direct elections.It continues for 5 years
Note: It can be dissolved earlier by passing no-confidence motion Speaker
heads the house
25 is the minimum age to become a member 552 is the strength of the house.All
bills originate in Lok Sabha mostly and after passing through Rajya Sabha, they
are returned for Lok Sabha approval. It plays a major role in legislation.
Rajya Sabha
Council of States, where the representatives are indirectly elected by the
elected representative of the Assemblies of States and Union Territories It is a
permanent body.Vice President of India as the Chairman of the house heads
the house 30 is the minimum age to become a member 250 is the strength of
the house.Rajya Sabha has special powers to protect the states’ rights against
the Union.

Comparison between Lok Sabha and Rajya Sabha

Difference Lok Sabha Rajya Sabha

What it is
House of People Council of States
called?

Council of States, where the

House of People, where
representatives are indirectly
What is the people who are qualified to
elected by the elected
meaning of the vote can elect their
representative of the
name? representative by way of direct
Assemblies of States and
elections
Union Territories

It continues for 5 years

What is the
tenure of the Note: It can be dissolved It is a permanent body.
house? earlier by passing no-
confidence motion
 42

Difference Lok Sabha Rajya Sabha

Who heads the Vice President of India as the

Speaker
house? Chairman of the house

What is the
minimum age to
25 years 30 years
become a
member?

What is the
strength of the 552 members 250 members
house?

All bills originate in Lok Sabha

mostly and after passing
What are the Rajya Sabha has special
through Rajya Sabha, they are
functions of the powers to protect the states’
returned for Lok Sabha
house? rights against the Union.
approval. It plays a major role
in legislation.

Ques 8. What is Public Interest Litigation?

Answer:
 43

Public interest litigation is the use of the law to advance human rights and
equality, or raise issues of broad public concern. It helps advance the cause of
minority or disadvantaged groups or individuals.
Public interest cases may arise from both public and private law matters.
Public law concerns the various rules and regulations that govern the exercise
of power by public bodies.
Public interest litigation is most commonly used to challenge the decisions of
public authorities by judicial review.

Ques 7. What is Council of Ministers? Explain different types of

Council of Ministers. Explain the powers and functions of the Chief
Minister.
 44

Answer :The Council of Ministers is given to the supreme executive organ in

some governments. Councils of Ministers are usually composed of those
ministers who are responsible for a ministry, and are usually led by a President
of the Council of Ministers, a term that is usually translated as Prime Minister or
Premier.

Based on factors such as experience and seniority the Council of Ministers is

divided into the following:

• The Cabinet
• Minister of State
• Deputy Minister
• Parliamentary Secretaries

The powers and functions of CM can be classified under following heads:

With respect to council of ministers –
The following are the powers of CM with respect to state council of ministers –
1). He advises the Governor to appoint any person as a minister. It is only
according to the advice of CM the Governor appoints ministers.
2). Allocation and reshuffling of portfolios among ministers.
3). In case of difference of opinion; he can ask minister to resign.
4). Directs, guides and controls activities of all the ministers.
5). If the Chief Minister resign then full cabinet has to resign.
With Respect to Governor -
Under Article 167 of our constitution: The Chief Minister acts as a link
between Governor and state council of ministers. The functions with respect to
the Governor are as follows:
1). CM has to communicate to the Governor all the decisions of the council
of ministers relating to the administration of the states.
 45

2). Whenever the Governor calls for any information relating to the
decisions taken or regarding the administration, the CM has to provide him
the same
3). The Governor can ask for consideration of council of ministers when a
decision has been taken without the consideration of the cabinet.
4). CM advises Governor regarding the appointment of important officials
like Attorney General, State Public Service Commission (Chairman and
Members), State Election Commission etc.
With Respect to State Legislature –
1) All the policies are announced by him on the floor of the house.
2) He recommends dissolution of legislative assembly to the Governor.
3) He advises the Governor regarding summoning, proroguing the
sessions of State Legislative Assembly from time to time.

Other Functions:
1) At the ground level he is the authority to be in contact with the people
regularly and know about their problems so as to bring about policies on the
floor of the assembly.
2) He acts as the chairman of State Planning Commission.
3) He is the vice chairman of concerned zonal council in rotation for a period of
one year.
4) During emergencies he acts as the crisis manager in the state.

Ques 5. Explain powers and functions of Prime Minister.

Answer:
 46

The Prime Minister of India is the head of the government and country. He is
appointed by the President of India after the political party wins a general
election and nominates a candidate for the post. The leader of that political party
is hence appointed as the Prime Minister of India.
Powers of Prime Minister
Prime Minister of India serves the country by performing various functions. He
performs his functions taking responsibilities that are listed below

• The leader of Country: The Prime Minister of India is the Chief Head of
the Government of India.
• Portfolio allocation: The Prime Minister has the authority to assign
respective portfolios to the Ministers.
• Chairman of the Cabinet: The Prime Minister is the chairman of the
cabinet and conducts the meetings of the Cabinet. He can impose his
decision if there is a crucial opinion difference and conflict among the
members.
• Official Representative of the country: Prime minister represents the
country for high-level international meetings and he is the ambassador of
the country.
• The link between the President and the Cabinet: The Prime Minister
acts as the link and bond between the President and cabinet. He
communicates and transmits all decisions of the Cabinet to the President
which is related to the administration of the affairs of the Union and
proposals for legislation.
• Head: The Prime Minister is the head of many organisation and programs
like Nuclear Command Authority, NITI Aayog, Appointments Committee
of the Cabinet, Department of Atomic Energy, Department of Space and
Ministry of Personnel, Public Grievances and Pensions.
• Chief Advisor: He also plays the role of chief advisor to the President
 47

Previous

Ques 4. What are executive, financial, administrative and judicial

powers of a President?
 48

Answer:
Executive Powers of President
1. For every executive action that the Indian government takes, is to be
taken in his name
2. He may/may not make rules to simplify the transaction of business of the
central government
3. He appoints the attorney general of India and determines his
remuneration
4. He appoints the following people:
1. Comptroller and Auditor General of India (CAG)
2. Chief Election Commissioner and other Election Commissioners
3. Chairman and members of the Union Public Service Commission
4. State Governors
5. Finance Commission of India chairman and members
5. He seeks administrative information from the Union government
6. He requires PM to submit, for 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
7. He appoints National Commissions of:
1. Scheduled Castes (Read about National Commission for
Scheduled Castes in the linked article.)
2. Scheduled Tribes Read about (National Commission for Scheduled
Tribes in the linked article.)
3. Other Backward Classes (Read about National Commission for
Backward Classes in the linked article.)
8. He appoints inter-state council
9. He appoints administrators of union territories
10. He can declare any area as a scheduled area and has powers with
respect to the administration of scheduled areas and tribal areas

Legislative Powers of President

1. He summons or prorogues Parliament and dissolve the Lok Sabha
2. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of
deadlock
3. He addresses the Indian Parliament at the commencement of the first
session after every general election
4. He appoints speaker, deputy speaker of Lok Sabha, and
chairman/deputy chairman of Rajya Sabha when the seats fall vacant (to
 49

know the difference between Lok Sabha and Rajya Sabha check the
linked article.)
5. He nominates 12 members of the Rajya Sabha
6. He can nominate two members to the Lok Sabha from the Anglo-Indian
Community
7. He consults the Election Commission of India on questions of
disqualifications of MPs.
8. He recommends/ permits the introduction of certain types of bills (to read
on how a bill is passed in the Indian Parliament, check the linked article.)
9. He promulgates ordinances
10. He lays the following reports before the Parliament:
1. Comptroller and Auditor General
2. Union Public Service Commission
3. Finance Commission, etc.

Financial Powers of President

1. To introduce the money bill, his prior recommendation is a must
2. He causes Union Budget to be laid before the Parliament
3. To make a demand for grants, his recommendation is a pre-requisite
4. Contingency Fund of India is under his control
5. He constitutes the Finance Commission every five years

Judicial Powers of President

1. Appointment of Chief Justice and Supreme Court/High Court Judges are
on him
2. He takes advice from the Supreme Court, however, the advice is not
binding on him
3. He has pardoning power: Under article 72, he has been conferred with
power to grant pardon against punishment for an offence against union
law, punishment by a martial court, or death sentence.

Note: Pardoning powers of the president includes the following types:

• Pardon with the grant of pardon convicts both conviction and sentence
completely absolved
• Commutation with this nature of the punishment of the convict can be
changed
 50

• Remission reduces the term of the imprisonment

• Respite awards lesser punishment than original punishment by looking
at the special condition of a convict
• Reprieve stays the execution of the awarded sentence for a temporary
period
Diplomatic Powers of President
1. International Treaties and agreements that are approved by the
Parliament are negotiated and concluded in his name
2. He is the representative of India in international forums and affairs

Military Powers of President

He is the commander of the defence forces of India. He appoints:

1. Chief of the Army

2. Chief of the Navy
3. Chief of the Air Force

Emergency Powers of President

He deals with three types of emergencies given in the Indian Constitution:

1. National Emergency (Article 352)

2. President’s Rule (Article 356 & 365)
3. Financial Emergency (Article 360)

Ques 1. Define Bill. How does the bill become a law?

 51

Answer: In the Parliament of India, every bill passes through following stages
before it becomes an Act of Parliament of India:
First reading - Introduction Stage: Any member, or member-in-charge of the
bill seeks the leave of the house to introduce a bill. If the bill is an important one,
the minister may make a brief speech, stating its main features.
Second reading - Discussion Stage: This stage consists of detailed
consideration of the bill and proposed amendments.
Third reading - voting stage:This stage is confined only to arguments either in
support of the bill or for its rejection as a whole, without referring to its details.
After the bill is passed, it is sent to the other house.
Bill in the other house (Rajya Sabha): After a bill, other than a money bill, is
transmitted to the other house, it goes through all the stages in that house as
that in the first house. But if the bill passed by one house is amended by the
other house, it goes back to the originating house.
President's approval: When a bill is passed by both the houses, it is sent to
the President for his approval. The President can assent or withhold his assent
to a bill or he can return a bill, other than a money bill. If the President gives his
assent, the bill is published in The Gazette of India and becomes an Act from
the date of his assent.
If he withholds his assent, the bill is dropped, which is known as pocket veto.
The pocket veto is not written in the constitution and has only been exercised
once by President Zail Singh: in 1986, over the postal act where the government
wanted to open postal letters without warrant. If the president returns it for
reconsideration, the Parliament must do so, but if it is passed again and
returned to him, he must give his assent to it.

Ques 5. Explain the powers of High Court.

 52

Answer: The High Courts have several functions and powers which are
described below.
As a Court of Record

• High Courts are also Courts of Record (like the Supreme Court).
• The records of the judgements of the High Courts can be used by
subordinate courts for deciding cases.
• All High Courts have the power to punish all cases of contempt by any
person or institution.
Administrative Powers
1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer
the case to itself and decide the same.
5. It can enquire into the records or other connected documents of any
subordinate court.
6. It can appoint its administration staff and determine their salaries and
allowances, and conditions of service.

Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare
any law or ordinance unconstitutional if it is found to be against the Indian
Constitution.
Power of Certification
A High Court alone can certify the cases fit for appeal before the Supreme Court
 53

Ques 2. Differentiate between Common Law & Civil Law.

Answer:
Civil law is a comprehensive, codified set of legal statutes created by legislators.
A civil system clearly defines the cases that can be brought to court, the
procedures for handling claims, and the punishment for an offense.
Judicial authorities use the conditions in the applicable civil code to evaluate
the facts of each case and make legislative decisions.
While civil law is regularly updated, the goal of standardized codes is to create
order and reduce biased systems in which laws are applied differently from case
to case.
Common law draws from institutionalized opinions and interpretations from
judicial authorities and public juries.
Similar to civil law, the goal of common law is to establish consistent outcomes
by applying the same standards of interpretation.
In some instances, precedent depends on the case-by-case traditions of
individual jurisdictions.
As a result, elements of common law may differ between districts.
 54

Ques 10. What is Tort? Explain the areas of application of Tort Law
in India.
Answer:Tort is breach of some duty independent of contract which has caused
damage to the plaintiff giving rise to civil cause of action and for which remedy
is available. If there is no remedy it cannot be called a tort because the essence
of tort is to give remedy to the person who has suffered injury
Areas of application of Tort Law in India
Intentional Torts: This type of tort occurs when an individual intentionally
committed a wrongful act causing harm to another individual.
Negligence Torts: Failure to exercise a reasonable standard of care may
result in a negligent tort. For a negligent tort case to be successful, there need
to be four elements present: duty, breach of duty, causation, and damages.
Strict Liability Torts: In strict liability tort cases, the focus shifts from the
individual or party committing the tort to the act or incident itself. In other
words, strict liability cases do not take into consideration intent or even
negligence on the part of the wrongdoer.

Ques 11. How law of torts is different from crime.

Answer:
S.NO Tort Crime

The person who commits a The person who commits a crime is

1.
tort is known as ‘tortfeasor’. known as ‘offender’.

Proceedings take place in Proceedings take place in Criminal

2.
Civil Court. Court.

The remedy in tort is

3. The remedy is to punish the offender.
unliquidated damages.

It is not codified as it depends Criminal law is codified as the

4.
on judge-made laws. punishments are defined.
 55

S.NO Tort Crime

Private rights of the Public rights and duties are violated

5.
individuals are violated. which affects the whole community.
 56

Ques 9. ‘All contracts are agreements but all agreements are not
Contract’. Comment.
Answer:
All Contracts are Agreements
All Contracts are agreements as for the formation of a contract, an agreement
is always necessary. There cannot be a contract where there is no agreement.
Without an agreement, a contract cannot be formed. Therefore, All Contracts
are Agreements.
All Agreements are not Contracts
Only those agreements become contract which gives rise to a legal obligation.
If no legal duty is enforceable by an agreement, it can never be a contract. And
hence agreement is a broader term than Contract.
When Agreement becomes Contract
An agreement is regarded as a contract when it is enforceable by law. The
conditions of enforceability are stated in S. 10 of the Indian contract act 1872.
According to this section, an agreement becomes a contract when the
agreement is made for some consideration between the parties which are
competent to contract and are entering into Contract with their free consent and
has a lawful objective. A lease agreement between two bodies corporate was
held legal where it was signed by one only, representing both sides because he
was a director in both the legal entities.
 57

Ques 6. How judges of Supreme Court can be removed from their

office?
Answer: The Constitution of India also provides a set of regulations for the
removal of the Supreme Court judge. Article 124(4) mentions those Removal
regulations of the Supreme court judge as follows:
A judge of the Supreme Court shall not be removed from his office except by
an order of the President passed after an address by each House of
Parliament supported by a majority of the total membership of that House and
by a majority of not less than two-thirds of the members of that
House present and voting has been presented to the president in same
session for such removal on the ground of proved misbehaviour or incapacity.

Ques 7. What is arbitration? State it types.

Answer: Arbitration is a procedure in which a dispute is submitted, by
agreement of the parties, to one or more arbitrators who make a binding
decision on the dispute. In choosing
arbitration, the parties opt for a private dispute resolution procedure instead of
going to court.
TYPES OF ARBITRATION

• National & Foreign Arbitration

• Formal & Informal Arbitration
• Adhoc and Institutional
• Private & Statutory
• General & Specialised
• Contractual Arbitration
 58

Ques 3. What is judicial precedent?

Answer: Judicial precedent or decisions is a process which is followed by the
judges to take the decision.
In Judicial precedent, the decision is taken by following the similar cases
happened in the past. So judicial decision is based on the principle of stare
decisis i.e. “stand by the decision already made”.
There is a term called the doctrine of stare decisis which states that the court’s
decision becomes a precedent to be followed in future cases of a similar nature.
The reason why a precedent is recognized is that the verdict of the judiciary is
assumed to be correct. The use of precedents helps the litigant gain confidence
in the judicial system. The administration of the judicial decision becomes just
and fair.
There are two rules that apply to the doctrine of judicial precedents:
The first rule says that a court which is lower in a hierarchy is completely bound
by the decisions of courts which are above it.
The second rule states that higher courts are bound by their own decision in
general in matters of related to precedence.

Ques 4. Elaborate the role of Judiciary in India.

Answer: The judiciary of India plays a role in the following situations:

• Dispute Resolution: Whenever there is a dispute, the courts intervene

in providing solutions. Whether it’s a dispute between citizens, citizens,
and government, or between two state governments or even the central
and state governments, the court is responsible for dispute resolution.
• Judicial Review: The judiciary has the final hold on the Constitution of
India. As such, if there is any violation of the fundamentals of the
 59

constitution, the court can even overwrite laws passed by the Parliament.
This process is called Judicial Review.
• Upholding the Law and Enforcing Fundamental Rights: Almost all
Fundamental Rights of Indian citizens are defined in our constitution. In
case, any citizen feels that any of such rights are violated, they can
approach their local high courts or the Supreme Court.
 60

Ques 4. Explain the bundle of rights associated with Copyright.

Answer:
will be updated soon…..

Ques 5. What are the Civil Remedies for Infringement of Copy

Right?
Answer:Civil remedies: provide for injunctions, damages,interpretation of
accounts, delivery and destruction of infringing copies and damages for
conversion.
Types of Civil Remedies

• Interlocutory Injunctions
• Pecuniary Remedies
• Anton Pillar Orders
• Mareva Injunction
• Norwich Pharmacal Order

Interlocutory Injunctions: One of the most important

remedies for copyright infringement, in most cases, the relief is granted by
injunction. An injunction may either be interlocutory, one which is granted prior
to the trial and only until after the trial or further order, or it may be final and
permanent. Applications for interlocutory injunctions are frequently made in
actions for infringement of copyright since damages are rarely an adequate
remedy for the injury suffered by the plaintiff. The objective of an interlocutory
injunction is to provide the plaintiff immediate and temporary protection against
any continuous violation of his rights for which he cannot be adequately
compensated in terms of damages.
Pecuniary Remedies: Copyright owners who face infringement issue also
have the option to seek pecuniary remedies under Section 55 and 58 of the
 61

Copyright Act, 1957. Under the above section, an aggrieved plaintiff can seek
the following remedies:

• Accounts of profits which allows the Author of the right to claim the sum
of money equivalent to the profit which was made by the infringer through
their unlawful conduct.
• Compensatory damages which allow the Author of the right to claim the
adequate compensation and damages due to him for any loss he may
have suffered due to the infringement of his work.
• Conversion damage allows the Author to assess the quantification of
damages on the basis of the full value of the article converted.
Anton Pillar Orders: Only made in the most extreme of circumstances, this
type of order is drastic and its effects are far reaching.
Deriving its name from the Court of Appeals decision;
Mareva Injunction: It is an order in the form of an injunction which restrains
defendant by freezing his assets temporarily, thus preventing the defendant
from removing his assets outside the jurisdiction while pending hearing. This is
so that the Plaintiff can obtain the redressal from the decree or award that may
be passed in the action or in reference. This form of injunction is quite recent,
dating back to the 1975’s and is derived from the case Mareva Compania
Naviera SA v. International Bulk Carriers SA.
Norwich Pharmacal Order: Orders of this kind are granted to determine
relevant information from third parties to support any evidence which is
presented before the court by either the plaintiff or the defendant. These orders
are most commonly preferred when copyright infringement takes place online,
which requires the disclosure of the infringers from online service providers.
 62

Ques 2.What is Patent? Explain the characteristics of Patent.

Answer:A patent is used to prevent an invention from being created, sold, or
used by another party without permission. Patents are the most common type
of intellectual property rights that come to people’s minds when they think of
intellectual property rights protection. A Patent Owner has every right to
commercialize his/her/its patent, including buying and selling the patent or
granting a license to the invention to any third party under mutually agreed
terms.

Ques 3. Design the different stages of filing a Patent in India with the
help of block diagram.
Answer:The patent can be filed by the two ways namely; provisional
specification and complete specification.
The patent will be published right after 18 months from the date of filing.
If the person wants to get the patent published before 18 months, he will have
to pay the statutory fee for the publication. The second step for publication is
that the request for examination shall be in 48 months.
The third step is the examination and it’s not automatic unlike the publication
and the applicant will have to fill the requisite form for the publication.
Anyone can file it on behalf of the applicant.
Timeline is 48 months for filing of the application from the priority date.
The patent examiner will be according to the patent orientation.
The patent examiner will check the patent database and other credentials on
the three important criteria for the patent.
The examiner will check the applicability under sections 3 and 4 respectively.
The examiner will check the clerical mistakes as well.
The drawing sheets and formatting guidelines are to be followed as well.
The first examination report will be created after the patent is being ensured as
authentic by the examiner.
 63

A reply shall be given within the 6 months of the first examination report by the
applicant.
After the reply given for the examination, if the examiner needs further
clarification for the invention, he shall have the applicant present physically or
via video conference.
A parallel system runs in the patent application for the opposition of the patent.
There can be two types of opposition, namely, the pre-grant opposition and the
post-grant opposition.
The pre-grant opposition is filed after the publication and before the grant of the
patent and it can be filed by anyone, whereas the post-grant opposition can be
filed only by the person skilled in the art.
The oppositions shall be substantiated by the evidence and the grounds must
be followed before the filing of the opposition.
The timeline for filing post-grant opposition is one year after the grant of patent
and not after that.
64
 65

Ques 7. State the objectives of Right to Information Act,2005.

Answer:
The objective of Right to information act
1. To provide a legal framework of citizens democratic Right to access to
information under the control of public authorities.
2. To promote transparency and ensure accountability.
3. To harmonise conflicting interest and priorities in operations of
government, and use of resources.
4. To promote the practice of revelation of information to preserve
democratic ideals.
5. To promote accountability in the functioning of every public authority,
thereby reduce corruption.

Ques 8. Elaborate the salient features of Information Technology

Act, 2000.
Answer:

• All electronic contracts made through secure electronic channels are

legally valid.
• Legal recognition for digital signatures.
• Security measures for electronic records and also digital signatures are
in place
• A procedure for the appointment of adjudicating officers for holding
inquiries under the Act is finalized
• Provision for establishing a Cyber Regulatory Appellant Tribunal under
the Act. Further, this tribunal will handle all appeals made against the
order of the Controller or Adjudicating Officer.
• An appeal against the order of the Cyber Appellant Tribunal is possible
only in the High Court
 66

• Digital Signatures will use an asymmetric cryptosystem and also a hash

function
• Provision for the appointment of the Controller of Certifying Authorities
(CCA) to license and regulate the working of Certifying Authorities. The
Controller to act as a repository of all digital signatures.
• The Act applies to offences or contraventions committed outside India
• Senior police officers and other officers can enter any public place and
search and arrest without warrant
• Provisions for the constitution of a Cyber Regulations Advisory
Committee to advise the Central Government and Controller.
 67

Ques 1. What is Intellectual Property Right? Explain different types

of IPR.
Answer:Intellectual property rights are the rights given to persons over the
creations of their minds. They usually give the creator an exclusive right over
the use of his/her creation for a certain period of time.
Intellectual property (IP) refers to creations of the mind, such as inventions;
literary and artistic works; designs; and symbols, names and images used in
commerce
Types of Intellectual Property Rights
Patent
A patent is used to prevent an invention from being created, sold, or used by
another party without permission. Patents are the most common type of
intellectual property rights that come to people’s minds when they think of
intellectual property rights protection. A Patent Owner has every right to
commercialize his/her/its patent, including buying and selling the patent or
granting a license to the invention to any third party under mutually agreed
terms.
There are three different categories that patents can fall under:

• Utility:A utility patent protects the creation of a new or improved product,

process, composition of matter, or machine that is useful
• Design:A design patent protects the ornamental design on a useful item
• Plant:A plant patent protects new kinds of plants produced by cuttings or
other nonsexual means.

Trademark
Trademarks are another familiar type of intellectual property rights protection. A
trademark is a distinctive sign which allows consumers to easily identify the
particular goods or services that a company provides. Some examples include
McDonald’s golden arch, the Facebook logo, and so on. A trademark can come
 68

in the form of text, a phrase, symbol, sound, smell, and/or color scheme. Unlike
patents, a trademark can protect a set or class of products or services, instead
of just one product or process.
Copyright
Copyright does not protect ideas. Rather, it only covers “tangible” forms of
creations and original work–for example, art, music, architectural drawings, or
even software codes. The copyright owner has the exclusive right to sell,
publish, and/or reproduce any literary, musical, dramatic, artistic, or
architectural work created by the author.
Trade Secret
Trade secrets are the secrets of a business. They are proprietary systems,
formulas, strategies, or other information that is confidential and is not meant
for unauthorized commercial use by others. This is a critical form of protection
that can help businesses to gain a competitive advantage
 69

Ques 6. What is a Digital Signature?

Answer:A digital signature is a mathematical technique used to validate the
authenticity and integrity of a message, software or digital document. As the
digital equivalent of a handwritten signature or stamped seal, a digital signature
offers far more inherent security, and it is intended to solve the problem of
tampering and impersonation in digital communications.
Digital signatures can provide the added assurances of evidence of origin,
identity and status of an electronic document, transaction or message and can
acknowledge informed consent by the signer.
 70

Ques1. What is Sole Proprietorship? Discuss its characteristics.

Answer:
General Idea:
Sole Proprietorship is the oldest and functioning from times immemorial in one
form or the other.
Sole means individual and this proprietorship suggests business owned or
controlled by one man with or without the help of family members or few
employees.
Formal Definition:
“Individual entrepreneurship is the form of business organisation at the head of
which stands an individual as the one who is responsible, who directs its
operations and who alone runs the risk of failure”.By L.H.Haney
According to James Stephenson, “A sole trader is a person who carries on
business exclusively by and for himself.”
Characteristics:
1. Sole Proprietorship:

• The individual carries on business exclusively by and for himself.

• He invests his own capital and controls the whole business.
• He bears all the risks and is the master of all the profits.
2. Free from Legal Formalities:

• A sole trader business is not expected to meet any legal requirement.

 71

• A sole trader may engage in any business unless licence is required

under law.
3. Unlimited Liability:

• In sole trade business, liability is unlimited.

• The proprietor bears all the losses arising from the business.
• His private property is also liable for the business obligations.
4. Sole Management:

• The sole trader manages the whole business himself.

• He prepares the plans and executes them under his own supervision.
• He is not required to consult anyone else in taking decisions.
• The ultimate authority to manage and control rests with the proprietor.
5.Secrecy:

• All the decisions are taken by the proprietor himself.He is in a position to

keep his affairs to himself and maintain perfect secrecy in all matters.
6.Freedom regarding Selection of Business:

• A sole trader is at freedom to select any business of his choice.He is

independent.

Ques2. Discuss the advantages and disadvantages of Sole

Proprietorship.
Answer:
Advantages:

• It's simple and affordable

• Sole proprietors can employ others and grow their business. Sole
proprietorships can hire others and enjoy the tax benefits from doing so.
• Operating freedom and flexibility
 72

• Owners have complete and direct control over all decision making
because it’s one man army.
Disadvantages:

• Owners are fully liable.

• Self-employment taxes apply to sole proprietorships.
• Raising capital is difficult
• It’s Harder to Sell Your Business.Since a sole proprietorship is attached
to an individual by nature, it’s all but impossible to sell or hand down your
business to someone else.
 73

Ques 18. Explain the different kinds of meetings and their proceedings.
Answer:
There are 4 types of meetings

1. General Meetings
1. Statutory General Meeting
2. Annual General Meeting
3. Extraordinary General Meeting
2. Meetings of Creditors Debenture-holder‟s
3. Class Meeting
4. Meetings of Board of Directors

Statutory General Meetings

1. A public limited company having share capital is required to hold a statutory
meeting.
2. Such a statutory meeting is held only once in the lifetime of the company.
3. Such a meeting must be held within a period of not less than one month or
within a period not more than six months from the date on which it is entitled to
commence business i.e. it obtains
certificate of commencement of business.
Annual General Meeting
1. Must be held by every type of company, public or private once a year.
2. Not more than 15 months must elapse between two AGMs.
However, a company may hold its first annual general
meeting within 18 months from the date of its incorporation.
3. A notice of at least 21 days before the meeting must be given to members
unless consent is accorded to a shorter notice by members, holding not less
than 95% of voting rights in the company.
4. The notice of the meeting must be accompanied by a copy of the annual
accounts of the company, director‟s report on the position of the company for
the year and auditor‟s report on the accounts.
 74

5. The notice must state that the meeting is an annual

general meeting. The time, date and place of the meeting
must be mentioned in the notice.
6. The AGM must be held on a working day during business
hours at the registered office of the company or at some other place within the
city, town or village in which the registered office of the company is situated.
Extra Ordinary General Meetings
1. Every general meeting (i.e. meeting of members of the company) other than
the statutory meeting and the annual general meeting or any adjournment
thereof, is an extraordinary general meeting.
2. Such meeting is usually called by the Board of Directors for some urgent
business which cannot wait to be decided till the next AGM.
3. Every business transacted at such a meeting is special business.
4. An explanatory statement of the special business must also accompany the
notice calling the meeting.
Debentures Holder’s Meeting
1. A company issuing debentures may provide for the holding of meetings of
the debenture holders.
2. At such meetings, generally any matters pertaining to the variation in terms
of security or to alteration of their rights are discussed.
3. All matters connected with the holding, conduct and proceedings of the
meetings of the debenture holders are normally specified in the Debenture Trust
Deed.
4. The decisions at the meeting made by the prescribed majority are valid and
lawful and binding upon the minority.
Creditors Meetings
1. Sometimes, a company, either as a running concern or in the event of winding
up, has to make certain arrangements with its creditors. Meetings of creditors
may be called for this purpose. E.g. in case of winding up of a company, a
meeting of creditors and of contributories is held to ascertain the total amount
 75

due by the company and also to appoint a liquidator to wind up the affairs of the
company.
Class Meetings
1. Class meetings are meetings which are held by holders of a particular class
of shares, e.g.,preference shareholders.
2. Such meetings are normally called when it is proposed to vary the rights of
that particular class of shares.
3. At such meetings, these members discuss the pros and cons of the proposal
and vote accordingly.
4. Class meetings are held to pass resolution which will bind only the members
of the class concerned, and only members of that class can attend
Meeting of Board of Directors
Notice: Notice of every meeting of the board of directors of company has to be
sent to all the directors at their usual address in India. Failure to do so will render
the resolutions passed at such meeting, null and void.
Quorum: The quorum for a meeting of the board of directors of company shall
be one-third of its total strength or two directors whichever is higher. If the
meeting cannot be held for want of quorum it stands adjourned till the same day
of the next week at the same time and place.
Every meeting of the board must have a chairman to preside over it. The articles
usually name the chairman who shall preside over the board meeting. If the
articles do not name the chairman, the director may elect a chairman of the
meeting.
 76

Ques 9. What is the Memorandum of Association? Explain the contents

of Memorandum of Association.
Answer:One of the most essential documents in the formation of a company is
Memorandum of Association or MoA. It shows the main objectives of the
company and its goals in the long term.
The MoA regulates the incorporated company activities such that it can
undertake activities that are mentioned in MoA.
The number of persons signing the form varies as per the type of company
(seven in case of public company while two members for private). The main
clauses of MoA can be as follows:
1. Name: It should include the name of the company that has been approved by
the registrar of companies.
2. Registered Office: The clause mentions address and name of the
company in which it is situated. Name giving is not mandatory, but it is essential
to submit a company name within 30 days of its incorporation.
3. Objects clause: Most important clause while filling MoA is it defines the
objectives for which a company is raised. Any activity cannot be undertaken
that is not stated in objects clause.
There are two types of object clauses namely, main objects and other objects.
4. Liability clause: This clause is all about liability of each shareholder as
per amount invested by them or the shares they own.
5. Capital Clause: It refers to the clause of raising authorized capital by
issuing of shares
6. Association clause: It contains the statement by those who sign the MoA
and who accept MoA and also the consent of buying qualification shares.
 77

Ques 7. Differentiate between Private and Public Limited Company.

Answer:
Public Limited Company Private Limited Company

The public company refers to a A Private Ltd. the company is

company that is listed on a one that is not listed on a stock
recognised stock exchange and exchange and is held privately by
traded publicly. the members.

There must be at least seven The private company can be

members to start a public started with a minimum of two
company. members.

There is no limit on the maximum a private company can have a

number of members in a public maximum of 200 members,
company. subject to certain conditions.

A public company should have at the Private Ltd. company can

least three directors have a minimum of 2 directors.

It is compulsory to call a statutory

There is no such compulsion in
general meeting of members, in
the case of a private company.
the case of a public company.

The issue of The issue of

prospectus/statement instead of prospectus/statement instead of
the prospectus is mandatory in the prospectus is not required in
case of a public company a private company

To start a business, the public

a private company can start its
company needs a certificate of
business just after receiving a
commencement of business after
certificate of incorporation.
it is incorporated.

The shareholders of a public The transferability of shares of a

company can freely transfer their Pvt. Ltd. company is completely
shares. restricted

A public company can invite the A private company has no right

general public for subscribing to invite the public for
shares of the company. subscription.
 78

Ques 23. Explain the role of engineers in E-Governance.

Answer:
General Perspective
The role of engineering has suffered many changes over the last few decades,
although its concept which is based on trial and error has remained an essential
element of the scientific-technological method; where social, environmental and
human factors define the most suitable solution to manage a particular issue.
Thus, the engineer's role is continuing reshaped according to the new
challenges and necessities implicated by specialized disciplines on the areas
of E-governance. The role of engineers in the field of E-governance is focus on
identifying the needs of the public and to design the process which is more user
friendly, secured and fast. Some of the guiding principles for reforming E -
governance with the help of technology are:

• Form simplification and field reduction — Forms should be made simple

and user friendly and only minimum and necessary information should be
collected.
• Online applications and tracking - Online applications and tracking of their
status should be provided.
• Online repositories - Use of online repositories e.g., for certificates,
educational degrees-, identity documents, etc. should be mandated so
that citizens are not required to submit these documents in physical form.
• Integration of services and platforms — Integration of services and
platforms e.g., Aadhaar platform of Unique Identity Authority of India
(UIDAI), payment gateway, Mobile Seva platform, sharing of data through
open Application Programming Interfaces (API) and middleware such as
National and State Service Delivery Gateways (NSDG/SSDG) should be
mandated to facilitate integrated and interoperable service delivery to
citizens and businesses.
 79

• Databases and information in electronic form - The workflow inside

government departments and agencies should be automated to enable
efficient government processes and also to allow visibility of these
processes to citizens .IT should be used to automate respond and
analyse data to identify and resolve persistent problems . these would be
largely process improvements

Ques 19. What are the qualifications required to be an Auditor of Company?

 80

Answer:According to the provision in Section 226 of the Companies Act,

According to the provision of Chartered Accountants Act, 1949, a person, who
is a member of the “Institute of Chartered Accountants of India” qualified and
can be appointed as an Auditor of the Company.
Any firm whose all partners are qualified and practicing Chartered Accountants
and those who possess the above mentioned eligibility such firm can practice
in the name of the firm.
A person holding a certificate under “Restricted Auditor’s Certificate” (Part B
State) Rules, 1956 is also qualified to act as auditor of a Company.

Ques 17. What are the duties and responsibilities of a Director?

Answer:
Powers of Directors
1. Issue Debentures
2. Borrow Money
3. Invest Funds
4. Market
5. Loans
RIGHTS
1. To take part in meetings of board and in the affairs of the corporation.
2.Right of Remuneration
3. Compensation in case of premature termination of services.
DUTIES
1. Distribute Work On Business Lines Act In GOOD FAITH
2. Exercise Reasonable Care
3. Must Exercise that skill which is reasonably expected of him
4. Attend Meeting
 81

Ques 16. Explain the Legal Position of a Director.

Answer:
1. Directors are trustees of the company’s money and property. They
safeguard them and use them for and on behalf of the company.
2. The position of director is like an agent. They have to function as per the
provisions contained in the Articles of the company and the Company Law.
Their actions are not their personal transactions, but they are the transactions
done for and on behalf of the company. Therefore, they cannot be sued for
the all intra vires acts( within the powers) done by
them on behalf of the company
3. Director as Partner Directors held shares. The members of the company
also hold shares. The directors work as the representatives of the members.
Thus, they are liked partners of the members of the company.
 82

Ques3. What is Partnership? Discuss its characteristics.

Answer:A partnership is an unincorporated association of two or more
individuals to carry on a business for profit. Many small businesses, including
retail, service, and professional practitioners, are organized as partnerships.
A type of business ownership in which two or more people share the assets,
liabilities, and profits.
Characteristics:
Limited life:
The life of a partnership may be established as a certain number of years by
the agreement.
Mutual agency
In a partnership, the partners are agents for the partnership. As such, one
partner may legally bind the partnership to a contract or agreement that
appears to be in line with the partnership's operations.
Unlimited liability
Partners may be called on to use their personal assets to satisfy partnership
debts when the partnership cannot meet its obligations.
Ease of formation
Other than registration of the business, a partnership has few requirements to
be formed
Transfer of ownership
Although it is relatively easy to dissolve a partnership, the transfer of
ownership, whether to a new or existing partner, requires approval of the
remaining partners.
Management structure and operations
In most partnerships, the partners are involved in operating the business.
Relative Lack of regulation
Most governmental regulations and reporting requirements are written for
corporations
 83

Number of partners
The informality of decision making in a partnership tends to work well with a
small number of partners.

Ques 4. Discuss the advantages and disadvantages of Partnership.

Answer:
Advantages:

• Shared decision making and management responsibilities.

• Easier to raise capital than in a sole proprietorship.
• Few government regulations.
• Business losses are shared by all partners.
Disadvantages:

• Partnerships may lead to disagreements.

• Some entrepreneurs are not willing to share responsibilities and profits.
• Secrecy may not be maintained.
• Power get distributed.
• Profit distributed.

Ques 5. Differentiate between Sole Proprietorship and Partnership

form of Business Ownership.
Answer:
Sole Proprietorship Partnership

Definition
 84

It is a business model where two or

It is a business model where an
more persons agree to carry on
individual is an owner as well
business and share profits and
as the operator of the business.
losses mutually.

Business act

Governed by the Indian

Comes under no specific act
Partnership Act, 1932

Owner called as

Individual members known as

Sole Proprietor partners and collectively known as
a firm.

Incorporation Required

Not required Voluntary

Minimum Members

One Two

Maximum Members

Only One 100

Freedom to operate

The decision needs to be mutually

Decision-making rests with the
acceptable to all partners. A
proprietor only, hence full
difference of opinion can arise and
freedom to operate.
cause loss of business.

Liability
Rests with the proprietor only Shared by partners of the firm

Finance

Scope of raising capital is Scope of raising capital is relatively

limited. high.
 85

Ques 8. Explain the different stages of Formation of Company in

detail.
Answer:
For convenience the whole process of company formation may be divided into
the following four stages:
1.PromotionStage
2.IncorporationorRegistrationStage
3.CapitalSubscriptionStage
4. Commencement of Business Stage.
Stage 1: Promotion Stage:
Promotion is the first stage in the formation of a company. The term ‘Promotion’
refers to the aggregate of activities designed to bring into being an enterprise
to operate a business. It presupposes the technical processing of a commercial
proposition with reference to its potential profitability. The meaning of promotion
and the steps to be taken in promoting a business are discussed in brief here.
Promotion of a company refers to the sum total of the activities of all those who
participate in the building of the enterprise upto the organisation of the company
and completion of the plan to exploit the idea. It begins with the serious
consideration given to the ideas on which the business is to be based.

Stage 2. Incorporation or Registration Stage:

Incorporation or registration is the second stage in the formation of a company.
It is the registration that brings a company into existence. A company is properly
constituted only when it is duly registered under the Act and a Certificate of
Incorporation has been obtained from the Registrar of Companies.

Procedure to Get a Company Registered:

 86

In order to get a company registered or incorporated, the following procedure is

to be adopted:
(A) Preliminary Activities:
Before a company is incorporated, the promoter has to take decision regarding
the following:
1. To decide the name of the company
2. Licence under Industries Development and Regulation Act, 1951
(B) Filing of Document with the Registrar:
1. Memorandum of Association
2. Articles of Association
3. List of directors
4. Written consent of directors
5. Statutory declaration
Certificate of Incorporation:
On the registration of memorandum and other documents, the Registrar will
issue a certificate known as the Certificate of Incorporation certifying under his
hand that the company is incorporated and, in the case of a limited company
that the company is limited.
Effects of Incorporation:
The certificate of incorporation is conclusive evidence of the fact that:
(i) The company is properly incorporated and duly registered;
(ii) The terms of the Memorandum and Articles are within the law;
(iii) All requirements of the Act in respect of registration have been complied
with;
(iv) A private company can start its business after getting the certificate of
incorporation; and
(v) With the issue of certificate, the company takes birth with a separate legal
entity.
 87

Stage 3. Capital Subscription Stage:

A private company or a public company not having share capital can commence
business immediately on its incorporation. As such ‘capital subscription stage’
and ‘commencement of business stage’ are relevant only in the case of a public
company having a share capital. Such a company has to pass through these
additional two stages before it can commence business.
Under the capital subscription stage comes the task of obtaining the necessary
capital for the company.
For this purpose, soon after the incorporation, a meeting of the Board of
Directors is convened to deal with the following business:
1. Appointment of the Secretary. In most cases the appointment of a pre-tem
secretary (who is appointed at the promotion stage) is confirmed.
2. Appointment of bankers, auditors, solicitors and brokers etc.
3. Adoption of draft ‘prospectus’ or ‘statement in lieu of prospectus’.
4. Adoption of underwriting contract, if any.
Besides the above mentioned business, the Board also decides as to whether:
(i) a public offer for capital subscription is to be made, and
(ii) Listing of shares at a stock exchange is to be secured.
The company will now proceed to obtain the permission of the Controller of
Capital Issue, New Delhi, under the Capital Issue Control Act, 1947 if a public
offer for sale of shares and debentures exceeding Rs. one crore is to be made
during a period of 12 months, unless the issue fulfils the conditions of exemption
as laid down in the Capital Issue (Exemption) Order, 1969.
The Capital Issue Control Act, 1947 however, does not apply to a private
company, a banking company, an insurance company, and a government
company provided it does not make an issue of securities to the general public.

Stage 4. Commencement of Business Stage:

 88

After getting the certificate of incorporation, a private company can start its
business. A public company can start its business only after getting a’ certificate
of commencement of business’.
After getting the certificate of incorporation:
(i) A public company issues a prospectus of inviting the public to subscribe to
its share capital,
(ii) A minimum subscription is fixed, and
(iii) The company is required to sell a minimum number of shares mentioned in
the prospectus.
After making the sale of the required number of shares a certificate is sent to
the Registrar stating this fact, along-with a letter from the banks, that it has
received application money for such shares.
The Registrar scrutinizes the documents. If he is satisfied, then issues a
certificate known as Certificate of Commencement of Business. This is the
conclusive evidence of the commencement of the business.

Ques 13. How the Prospectus is being registered under the Registrar
of the Company?
 89

Answer:
Prospectus is any Document, Notice, Circular, Advertisement, inviting
the money to be raised from the public. It is a device for the public ltd company
to collect the capital after its incorporation. When the public company or the
promoters of the public company decide that the money should be raised from
the public by the way of the invitation for offers to the subscription of the shares
or debentures of the company, a document is drawn up which is known as
prospectus.
The objective of issuing the prospectus is to let the public know of
the establishment of the company, its objects, its prospects, to induce the
investors to purchase its shares or debentures.
Section 2(70) of the Companies Act, 2013 defines a prospectus as
“A prospectus means any documents described or issued as a prospectus and
includes any notices, circular, advertisement, or other documents inviting
deposit from the public or documents inviting offer from the public for the
subscription of shares or debentures in a company.”
A document shall be called a prospectus if it satisfies following conditions:

• The document should invite the subscription to public share or

debentures, or it should invite deposits
• Such an invitation should be made to the public.
• The invitation should be made by the company or on the
behalf company.
• The invitation should relate to shares, debentures or such
other instruments.
Contents of a prospectus:

• Address of the registered office of the company

• Name and address of company secretary, auditors,
bankers, underwriters etc.
 90

• Dates of the opening and closing of the issue.

• Declaration about the issue of allotment letters and refunds within the
prescribed time.
• A statement by the board of directors about the separate bank account
where all monies received out of shares issued are to be transferred.
• Details about underwriting of the issue.
• Consent of directors, auditors, bankers to the issue, expert’s opinion if
any.
• The authority for the issue and the details of the resolution passed
therefore.
• Procedure and time schedule for allotment and issue of securities.
• Capital structure of the company.
• Main objects and present business of the company and its
location.
• Main object of public offer and terms of the present issue.
• Minimum subscription, amount payable by way of premium, issue
of shares otherwise than on cash.
• Details of directors including their appointment and
remuneration.
• Disclosure about sources of promoter’s contribution.
• Particulars relation to management perception of risk
factors specific to the project, gestation period of the project, extent of
progress made in the project and deadlines for completion of the
project.
Filing of copy with the registrar
As stated under sub-section 4 of section 26 of the Companies Act, 2013, the
prospectus is not to be issued by a company or on its behalf unless on or
before the date of publication, a copy of the prospectus is delivered to the
registrar for registration. The copy should be signed by every person whose
 91

name has been mentioned in the prospectus as a director or proposed director

or the assigned attorney on his behalf.
Delivery of copy of the prospectus to the registrar
As per section26(6) of the Companies Act 2013, the prospectus
should mention that its copy has been delivered to the registrar on its face.
The statement should also mention the document submitted to the registrar
along with the copy of the prospectus.
Registration of prospectus
Section26(7) states about the registration of a prospectus by the registrar.
According to this section, when the registrar can register a prospectus when:

• It fulfils the requirements of this section, i.e., section 26 of the

Companies Act, 2013; and
• It contains the consent of all the persons named in the
prospectus in writing.
Issue of prospectus after registration
If a prospectus is not issued before 90 days from the date from which a
copy was delivered before the registrar, then it is considered to be invalid.

Ques 14. What is Preference Share? Explain different types of

Preference Shares.
Answer:Preference shares, more commonly referred to as preferred stock,
are shares of a company's stock with dividends that are paid out to
shareholders before common stock dividends are issued
Types of Preference Shares:
1. Cumulative Preference Shares

1. Fixed rate of divident is guaranteed

2. At the time of inadequate profit, they will not lose anything
 92

3. Arrear will get in subsequent years

2. Non-Cumulative Preference Shares

1. Fixed rate of divident is guaranteed

2. At the time of inadequate profit, they will not get anything

3. Participating Preference Share

1. Fixed rate of divident is guaranteed

2. Entitled to share the surplus profit

4. Non-Participating Preference Shares

1. Fixed rate of divident is guaranteed

2. Does not share the surplus profit

5. Redeemable Preference Shares

1. Shares which a company may repay after a fixed period of time or

earlier

6. Irredeemable Preference Shares

1. It do not carry the arrangement for redemption

2. Shares are repayble only at winding up

7. Convertible Preference Shares

1. It can be converted into Equity shares within a certain period

8. Non-Convertible Preference Shares

1. It can not be converted into Equity shares

Ques 15. Differentiate between Equity and Preference Shares.

Answer:
 93

Basis of
Equity shares Preference Shares
differentiation

Also known as
Preference shares are the
ordinary shares. Equity
shares which promise the
share is the foundation
holder a preference over
Definition of the company as it
the equity shares. These
raises fund. These
can be converted to
cannot be converted to
equity shares
preference shares

• Under preference
• Equity shares do shares, based on
not have right to time, cumulative or
receive dividend non-cumulative are
Dividend • Under this the entitled for the
rate of dividend dividend
is fluctuating • Here, the rate of
dividend is fixed

Voting rights under Do not have any voting

Voting rights
general meeting rights

These come in various

types like:

These are considered • Convertible and

as ordinary shares and non-convertible
Types
thus they do not have • Cumulative and
any types non cumulative
• Non participatory,
etc.

During liquidation,
shareholders will have
residual right over the The shareholders will
Liquidation asset even after the have first right after the
repayment to repayment
preference shares of
the company

They are primarily

Do not have any
Participation responsible for the
participation rights in the
rights management of the
company's management
company
94
 95

Ques 24. Elaborate the need for reformed engineering serving at the
Union and State level.
Answer:
To learn more than one discipline: Various streams of engineering are
becoming more interdisciplinary. To solve the problems in future will need
sufficient understanding of more than one area and the same would be true for
mechanical, civil and other engineering areas, as good designs will need
integrated understanding of user, society, environment etc.
Need for new skills: As more focus is on self-reliance under the umbrella of
"Atmanirbhar", it will invariably mean a greater focus on the manufacturing
sector and developing indigenous technologies and solutions.
India as a land of opportunity: With the development of a vibrant start-up
ecosystem in the country, students are more opting for entrepreneurial
ambitions so the necessary skills and training should be imparted to the
students for the said career.
Need to move to a Research Ecosystem: There is a need to have a vibrant
corporate research ecosystem to motivate the students for further research
work as it is a more services driven industry and customer centric market so
more innovations and creativity is the key to the success

Ques 6. What is a Joint Stock Company? Discuss its characteristics.

Answer:
 96

A joint-stock company is a business owned by its investors, with each investor

owning a share based on the amount of stock purchased.
Joint-stock companies are created in order to finance endeavors that are too
expensive for an individual or even a government to fund. The owners of a
joint-stock company expect to share in its profits.

Characteristics:
1. Separate Legal Entity:A joint stock company is an individual legal entity,
apart from the persons involved. It can own assets and can because it is
an entity it can sue or can be sued.
2. Perpetual :Once a firm is born, it can only be dissolved by the functioning
of law. So, company life is not affected even if its members keep
changing.
3. Number of Members: For a public limited company, there can be an
unlimited number of members but minimum being seven. For a private
limited company, only two members. In general, a partnership firm cannot
have more than 10 members in one business.
4. Limited Liability: In this type of company, the liability of the company’s
shareholders is limited. However, no member can liquidate the personal
assets to pay the debts of a firm.
5. Transferable share :A company’s shareholder without consulting can
transfer his shares to others. Whereas, in a partnership firm without any
approval of other partners, a partner cannot move his share.
6. Incorporation: For a firm to be accepted as an individual legal entity, it
has to be incorporated. So, it is compulsory to register a firm under a joint
stock company.

Ques 26. Discuss the problem of Alienation and Secessionism in few

states creating hurdles in Industrial development.
 97

The Northeast region of India comprising of eight states – Assam, Nagaland,

Manipur, Arunachal Pradesh, Mizoram, Tripura and Sikkim. North East India
is a region poorly connected to the Indian mainland by a small corridor –
Siliguri Corridor with a narrow width of only 23 kilometres. North Eastern India
has been facing problems of Alienation and Secessionism for near 5
decades, but things are now settling down and peace started to prevail.
Nagaland, Manipur, Assam and Tripura had been witnessing conflict since
1950-60 period, but since 1990, the intensity of conflicts started to decrease.
Now the only state where prominent Alienation and Secessionism exist is
Manipur. But in this region several armed factions operate. Some groups call
for a separate state, others for regional autonomy while some extreme groups
demand complete independence.
Reasons for Problem of Alienation and Secessionism North East India:

• Historical reasons – loosely administered under British India.

• Tensions between these states and the central government.
• Tensions between tribal people, who are natives of these states, and
migrant peoples from other parts of India.
• Geographical reasons – not well connected with present Indian
mainland.
• Developmental reasons – Poorly developed due to lack of fund from
Centre/States.
• Environmental reasons.
• Military reasons – AFSPA (Armed Forces Special Power Act).
• Foreign Policy – Look easy policy and market changes bought.
• External support – China and Myanmar.
Problems of Alienation and Secessionism in North East India creating
hurdles in Industrial development.

• Security situation in the region has improved considerably in Assam

and Meghalaya in particular facilitating conducive atmosphere for
 98

investment and development. The Northeast Industrial Policy initiated

by the Government of India further contributed in encouraging
investment and industries in the region.
• However, the Northeast will not attract big industries because the
region is resource deficit, and does not have economies of scale to
match. Moreover, the security situation in the whole of the region has
not improved uniformly.
• The North East Council (NEC) and the Ministry for the Development of
the North East Region (DoNER) have become fund disbursing agencies
instead of strategic planning agencies. At present approximately Rs.
11,000 crores are lying idle with the Ministry of DoNER.

Recommendations to solve North East India Industrial Developmental

Problems:

• The Ministry of the Development of the North East region (DoNER) be

merged with the North East Council (NEC) for better strategic planning
and coordination of various developmental projects in the region.
• Focus of the Ministry f DoNER and NEC should be on investment in
mega-projects which will make big difference to the development of the
region.
• Institutional capacities in the North east should be developed urgently.
• Pragmatic land use policy should be formulated for attracting industries
in the region. Micro, small and medium enterprises should be
encouraged.
• Local tourism should be promoted. Tourists residing in the eight North
Eastern states should be encouraged to travel within the region.
• Niche tourism or high-end tourism should be encouraged. Medical and
higher education tourism should be encouraged.
 99

• The North east should become a single economic unit without disturbing
the political boundaries of the states. No internal traffic barriers in the
region. Exclusive five-year plan for the North east focusing on
development of infrastructure.
 100

Ques 25. What is the role of I.T. professionals in Judiciary?

Answer
Role of IT Professionals in Judiciary:
Extensive use of Information Technology by diverse organizations the world
over has resulted in enhanced efficiency, effectiveness and optimal use of
resources. Computers as well as electronic communication devices such as
facsimile machines, electronic mail, video conferencing, provide the ability to
process large volumes of data with speed and accuracy, exchange of useful
information between different locations and support a higher quality of decision
making. These capabilities have contributed to more efficient and responsive
systems not only in business organizations but also in legal, governmental and
other public systems.

While the Information Revolution arrived in India some years ago, automation
has not transformed all facets of life in equal measure. It has not permeated to
the Subordinate judiciary, in particular, resulting in old work methods based on
manual systems being continued even now. The enormous problems being
faced by the judiciary due to arrears, backlogs, and delays can be partly
resolved by the introduction of automation in subordinate courts.

The problems faced by courts, judiciary, and public seeking justice in terms of
backlogs, delays and expense are well known. While there are many
dimensions to these problems, improvements in operational efficiency,
coordination, accessibility and speed which IT could bring about can contribute
significantly towards improvement and alleviation of difficulties.

However, the present pace of development, particularly at the subordinate court

level is too slow and is unlikely to have the desired impact in the near future.
 101

Massive problems need appropriately large commitments and major initiatives

if a significant dent is to be made.

Most of the bottlenecks identified by Judicial Commissions and Committees

referring to delays, arrears and backlog be partly overcome if a sound judicial
management information system is introduced in India. Case Management, File
Management, and Docket Management will be vastly improved by resorting to
the use of computers. In particular, the following are areas where the use of
computers will result in enhanced productivity and reduction of delays.

• Legal Information Data Bases.

• On line query system for precedents, citations, codes, statutes etc.
• Generation of Cause List and online statistical reports.
• Online Caveat matching.
• Online updating of data, monitoring and "flagging" of events.
• Pooling of orders and judgments.
• Daily List generation with historical data of each case.
• Word processing with standard templates including generation of
notices/processes.
• Access to international databases.
• Feedback reports for use of various levels
 102

Ques 22. Explain the different modes of Winding-up of a company in

detail.
Answer:As per section 270 of the Companies Act 2013, the procedure for
winding up of a company can be initiated either:
a) By the tribunal or,
b) Voluntary.

Winding up by the tribunal:

As per new Companies Act 2013, a company can be wound up by a tribunal in
the below mentioned circumstances:
1. When the company is unable to pay its debts
2. If the company has by special resolution resolved that the company be wound
up by the tribunal.
3. If the company has acted against the interest of the integrity or morality of
India,
4. If the company has not filled its financial statements or annual returns for
preceding 5 consecutive financial years.
5. If the tribunal by any means finds that it is just & equitable that the company
should be wound up.
6. If the company in any way is indulged in fraudulent activities or any other
unlawful business, or any person or management connected with the formation
of company is found guilty of fraud, or any kind of misconduct state, or has
spoiled any kind of friendly relations with foreign or neighboring countries.
Voluntary winding up of a company
Voluntary winding up of a company: The company can be wound up voluntarily
by the mutual decision of members of the company, if:
a) The company passes a Special Resolution stating about the winding up of
the company.
b) The company in its general meeting passes a resolution for winding up as a
result of expiry of the period of its duration as fixed by its Articles of Association
 103

or at the occurrence of any such event where the articles provide for dissolution
of company.
Previous
Role of I.T. professionals

Next
 104

Ques 21. Explain the Duties and Rights of an Auditor.

Answer:The auditor shall make a report to the members of the company on the
accounts examined by him and on every financial statements which are
required by or under this Act to be laid before the company in general meeting.
The auditor’s report shall also state—
1. Whether he has sought and obtained all the information and explanations
which to the best of his knowledge and belief were necessary for the purpose
of his audit and if not, the details thereof and the effect of such information on
the financial statements;
2.Whether, in his opinion, proper books of account as required by law have
been kept by the company so far as appears from his examination of those
books and proper returns adequate for the purposes of his audit have been
received from branches not visited by him;
3.Whether the report on the accounts of any branch office of the company
audited by a person other than the company’s auditor has been sent to him
under the proviso to that subsection and the manner in which he has dealt with
it in preparing his report;
4.Whether the company’s balance sheet and profit and loss account dealt with
in the report are in agreement with the books of account and returns;
5.Whether, in his opinion, the financial statements comply with the accounting
standards
6.The observations or comments of the auditors on financial transactions or
matters which have any adverse effect on the functioning of the company;
7. Whether any director is disqualified from being appointed as a director
8. Any qualification, reservation or adverse remark relating to the maintenance
of accounts and other matters connected therewith;
9. Whether the company has adequate internal financial controls with reference
to financial statements in place and the operating effectiveness of such controls;
 105

Ques 20. How is the Appointment or Re-appointment of an Auditor?

Answer:Appointing an Auditor
The Companies Act has not defined casual vacancy. But one can say that
casual vacancy for an auditor arises due to disqualification, resignation, death,
etc.

• The Auditor that is selected must possess necessary eligibility, should

fulfill the prescribed conditions and should not be disqualified for
appointment under the Companies Act, 2013 , the Chartered
Accountants Act, 1949 and the rules and regulations made thereunder.
• Other than the companies required to constitute an Audit Committee
under Section 177 of the Companies Act, every company in their first
annual general meeting (“AGM”) needs to appoint an individual or a firm
as an Auditor who will hold office from that meeting till the conclusion of
the sixth AGM.
• After making the appointment, the Auditor concerned has to be informed
of the resolution and a notice of such appointment needs to be be filed
with the Registrar in Form ADT-1 within fifteen (15) days from the date
of making such appointment.
Re-Appointment of Auditor
Subject to the maximum tenure of appointment which is for two terms of 5
years each , a retiring auditor may be re-appointed by complying with the
provisions of section 139(9) which states that subject to the provisions of sub-
section (1) Section 139 & the rules made thereunder, a retiring auditor may be
re-appointed at an annual general meeting, if:

• He is not disqualified for re-appointment.

• He has not given the company a notice in writing of his unwillingness to
be re-appointed
• A special resolution has not been passed appointing some other auditor
or providing expressly that he shall not be re-appointed.
 106
Ques 11. Differentiate between Memorandum of Association and Article
of Association.
Answer:
Basis for Memorandum
Comparison of Association
Memorandum of
Association is a document
that contains all the
Meaning
conditions which are
required for the registration
of the company.
Memorandum of
Association is defined in
Defined in
section 2 (56) of the Indian
Companies Act 1956.
Type of Information Powers and objects of the
contained company.
It is subordinate to the
Status
Companies Act
The memorandum of
association of the company
Retrospective Effect
cannot be amended
retrospectively
A memorandum must
Major contents
contain six clauses.
Obligatory Yes, for all companies.
Articles of
Association
Articles of Association
is a document that
contains the rules and
regulation for the
administration of the
company.
The Articles of
Association is defined
in section 2 (5) of the
Indian Companies Act
1956.
Rules of the company.
It is subordinate to the
memorandum
The articles of
association can be
amended
retrospectively.
The articles can be
drafted as per the
choice of the
company.
A public company
limited by shares can
 107

adopt Table A in place

of articles.

Compulsory filing at
the time of Required Not required at all
Registration

Regulates the
relationship between
Defines the relation
company and its
Relation between company and
members and also
outsider.
between the members
inter se.

Acts done beyond Can be ratified by

Absolutely void
the scope shareholders

Ques 12. Explain the content of Prospectus.

Answer:
Prospectus meaning
1. The prospectus is a legal document, which outlines the company’s
financial securities for sale to the investors.
2. According to the companies act 2013, there are four types of the
prospectus, abridged prospectus, deemed prospectus, red herring
prospectus, and shelf prospectus.

Prospectus Definition
The prospectus is a legal document for market participants and investors to
pursue, detailing the features, prospects, and promise of a financial product.
It is mandated by the law to be supplied to prospective customers.
 108

What is prospectus and its contents?

The prospectus contents are specified in the Companies Act. The prospectus
must touch over the following content points:

1. Details of the company, such as name, registered office address, and

objects
2. Details of signatories to the Memorandum and their shareholding
particulars
3. Details of the directors
4. Details of shares offered and the class of the issue as well as voting rights
5. Minimum subscription amount
6. The amount payable on application, on allotment, and on further calls
7. Underwriters of the issue
8. Auditors of the company
9. Audited reports regarded profit and losses of the company
 109

Ques 10. What is the Article of Association? What are different

provisions in Articles of Association?
Answer:Article of Association
Articles of Association is an important document of a Joint Stock Company. It
contains the rules and regulations or bye-laws of the company. They are related
to the internal working or management of the company.
It plays a very important role in the affairs of a company. It deals with the rights
of the members of the company between themselves.
Contents of Articles of Association
The articles generally deal with the following
1. Classes of shares, their values and the rights attached to each of them.
2. Calls on shares, transfer of shares, forfeiture, conversion of shares and
alteration of capital.
3. Directors, their appointment, powers, duties etc.
4. Meetings and minutes, notices etc.
5. Accounts and Audit
6. Appointment of and remuneration to Auditors.
7. Voting, poll, proxy etc.
8. Dividends and Reserves
9. Procedure for winding up.
10. Borrowing powers of Board of Directors and managers etc.
11. Minimum subscription.
12. Rules regarding use and custody of common seals.
13. Rules and regulations regarding conversion of fully paid shares into stock.
14. Lien on shares.
Prospectus
 110

A prospectus is an invitation from a company to the general public informing

about availability to purchase or subscribe shares and debentures issued by
the company. IPO also known as Initial Public Offering and is a source of raising
of funds from the public. But, in case of a private company, there is no need to
file a prospectus as private companies are restricted from issuing IPO. A
prospectus can be required if the aim is to generate funds from the public.
Private companies are not required to file a prospectus.
Types of Prospectus
• Deemed Prospectus - As per Section 25(1) of the Companies Act, 2013, a
document will be deemed to be a prospectus if the company agrees to allot or
offer securities to the public.
• Abridged Prospectus - It is defined as the brief summary of the prospectus,
which includes all useful and materialistic information filed before the registrar.
As per Section 33(1) of the Companies Act, 2013, an abridged prospectus must
be included with the documents for the
purchase of securities issued by a company.
• Red Herring Prospectus - It is the prospectus that is required to be filed before
the registrar prior to the offer. The prospectus generally lacks information such
as the particular price or quantum of securities being offered.
• Shelf Prospectus - It is defined as the prospectus issued by a company, bank
or financial institution for more than one class of securities.
Contents of Prospectus
The prospectus must touch over the following content points:
• Details of the company, such as name, registered office address, and objects
• Details of signatories to the Memorandum and their shareholding particulars
• Details of the directors
• Details of shares offered and the class of the issue as well as voting rights
• Minimum subscription amount
• The amount payable on application, on allotment, and on further calls
 111

• Underwriters of the issue (Underwriting is an act of guarantee by a company

for the sale of a certain minimum number of shares and debentures issued by
a Public Limited company.)
• Auditors of the company
• Audited reports regarded profit and losses of the company
 112

The following Act of Parliament received the assent of the President on the 1st January, 2014, and is
hereby published for general information:—

THE LOKPAL AND LOKAYUKTAS ACT, 2013 (NO. 1 OF 2014) [1st January, 2014.] An Act to provide for the
establishment of a body of Lokpal for the Union and Lokayukta for States to inquire into allegations of
corruption against certain public functionaries and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India established a Democratic Republic to ensure justice for all; AND
WHEREAS India has ratified the United Nations Convention Against Corruption; AND WHEREAS the
Government's commitment to clean and responsive governance has to be reflected in effective bodies to
contain and punish acts of corruption; NOW, THEREFORE, it is expedient to enact a law, for more effective
implementation of the said Convention and to provide for prompt and fair investigation and prosecution
in cases of corruption.

1) In this Act, unless the context otherwise requires,—

(a) 'bench" means a bench of the Lokpal;

(b) "Chairperson" means the Chairperson of the Lokpal;

(c) "competent authority", in relation to—

(i) the Prime Minister, means the House of the People;

(ii) a member of the Council of Ministers, means the Prime Minister;

(iii) a member of Parliament other than a Minister, means—

(A) in the case of a member of the Council of States, the Chairman of the Council; and

(B) in the case of a member of the House of the People, the Speaker of the House;

(iv) an officer in the Ministry or Department of the Central Government, means the Minister in
charge of the Ministry or Department under which the officer is serving;

(v) a chairperson or members of any body or Board or corporation or authority or company or

society or autonomous body (by whatever name called) established or constituted under any Act
of Parliament or wholly or partly financed by the Central Government or controlled by it, means
the Minister in charge of the administrative Ministry of such body or Board or corporation or
authority or company or society or autonomous body;

(vi) an officer of any body or Board or corporation or authority or company or society or

autonomous body (by whatever name called) established or constituted under any Act of
Parliament or wholly or partly financed by the Central Government or controlled by it, means the
head of such body or Board or corporation or authority or company or society or autonomous
body;
 113

(vii) in any other case not falling under sub-clauses (i) to (vi) above, means such Department or
authority as the Central Government may, by notification, specify:

Provided that if any person referred to in sub-clause (v) or sub-clause (vi) is also a member of
Parliament, then, the competent authority shall be—

(A) in case such member is a member of the Council of States, the Chairman of the Council; and

(B) in case such member is a member of the House of the People, the Speaker of the House;

(d) "Central Vigilance Commission" means the Central Vigilance Commission constituted under
sub-section (1) of section 3 of the Central Vigilance Commission Act, 2003 (45 of 2003);

(e) "complaint" means a complaint, made in such form as may be prescribed, alleging that a public
servant has committed an offence punishable under the Prevention of Corruption Act, 1988 (49
of 1988);

(f) "Delhi Special Police Establishment" means the Delhi Special Police Establishment constituted
under sub-section (1) of section 2 of the Delhi Special Police Establishment Act, 1946 (25 of
1946);

(g) "investigation" means an investigation as defined under clause (h) of section 2 of the Code of
Criminal Procedure, 1973 (2 of 1974);

(h) "Judicial" Member means a Judicial Member of the Lokpal;

(i) "Lokpal" means the body established under section 3;

(j) "Member" means a Member of the Lokpal;

(k) "Minister" means a Union Minister but does not include the Prime Minister;

(l) "notification" means notification published in the Official Gazette and the expression notify shall
be construed accordingly;

(m) "preliminary inquiry" means an inquiry conducted under this Act;

(n) "prescribed" means prescribed by rules made under this Act;

(o) "public servant" means a person referred to in clauses (a) to (h) of sub-section (1) of section
14 but does not include a public servant in respect of whom the jurisdiction is exercisable by any
court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of
1950), the Navy Act, 1957 (62 of 1957) and the Coast Guard Act, 1978 (30 of 1978) or the
procedure is applicable to such public servant under those Acts;

(p) "regulations" means regulations made under this Act;

(q) "rules" means rules made under this Act;

 114

(r) "Schedule" means a Schedule appended to this Act;

(s) "Special Court" means the court of a Special Judge appointed under sub-section (1) of section
3 of the Prevention of Corruption Act, 1988 (49 of 1988).

(2) The words and expressions used herein and not defined in this Act but defined in the
Prevention of Corruption Act, 1988 (49 of 1988), shall have the meanings respectively assigned
to them in that Act.

(3) Any reference in this Act to any other Act or provision thereof which is not in force in any area
to which this Act applies shall be construed to have a reference to the corresponding Act or
provision thereof in force in such area.

Appointment of Chairperson and Members on recommendations

Section 4
of Selection Committee.

1) The Chairperson and Members shall be appointed by the President after obtaining the
recommendations of a Selection Committee consisting of--

(a) the Prime Minister--Chairperson;

(b) the Speaker of the House of the People--Member;

(c) the Leader of Opposition in the House of the People--Member;

(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him--Member;

(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses
(a) to (d) above, to be nominated by the President--Member.

(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any

vacancy in the Selection Committee.

(3) The Selection Committee shall for the purposes of selecting the Chairperson and Members of
the Lokpal and for preparing a panel of persons to be considered for appointment as such,
constitute a Search Committee consisting of at least seven persons of standing and having
special knowledge and expertise in the matters relating to anti-corruption policy, public
administration, vigilance, policy making, finance including insurance and banking, law and
management or in any other matter which, in the opinion of the Selection Committee, may be
useful in making the selection of the Chairperson and Members of the Lokpal:

Provided that not less than fifty per cent. of the members of the Search Committee shall be from
amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward
Classes, Minorities and women:

Provided further that the Selection Committee may also consider any person other than the
persons recommended by the Search Committee.
 115

(4) The Selection Committee shall regulate its own procedure in a transparent manner for
selecting the Chairperson and Members of the Lokpal.

(5) The term of the Search Committee referred to in sub-section (3), the fees and allowances
payable to its members and the manner of selection of panel of names shall be such as may be
prescribed.

Section 5 :Filling of vacancies of Chairperson or Members

The President shall take or cause to be taken all necessary steps for the appointment of a new
Chairperson and Members at least three months before the expiry of the term of the Chairperson
or Member, as the case may be, in accordance with the procedure laid down in this Act.

Section 6: Term of office of Chairperson and Members.

The Chairperson and every Member shall, on the recommendations of the Selection
Committee, be appointed by the President by warrant under his hand and seal and hold
office as such for a term of five years from the date on which he enters upon his office or
until he attains the age of seventy years, whichever is earlier:
Provided that he may—
(a) by writing under his hand addressed to the President, resign his office; or
(b) be removed from his office in the manner provided in section 37.
Section 10. Secretary, other officers and staff of Lokpal.

(1) There shall be a Secretary to the Lokpal in the rank of Secretary to Government of India, who
shall be appointed by the Chairperson from a panel of names sent by the Central Government.

(2) There shall be a Director of Inquiry and a Director of Prosecution not below the rank of
Additional Secretary to the Government of India or equivalent, who shall be appointed by the
Chairperson from a panel of names sent by the Central Government.

(3) The appointment of officers and other staff of the Lokpal shall be made by the Chairperson or
such Member or officer of Lokpal as the Chairperson may direct:

Provided that the President may by rule require that the appointment in respect of any post or
posts as may be specified in the rule, shall be made after consultation with the Union Public
Service Commission.
 116

(4) Subject to the provisions of any law made by Parliament, the conditions of service of Secretary
and other officers and staff of the Lokpal shall be such as may be specified by regulations made
by the Lokpal for the purpose:

Provided that the regulations made under this sub-section shall, so far as they relate to salaries,
allowances, leave or pensions, require the approval of the President.
 117

Powers and Functions of the High Court

The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian Constitution
talk about the High Courts, their organisation and powers. The Parliament can also provide for
the establishment of one High Court for two or more states.
For instance, Haryana, Punjab and the Union Territory of Chandigarh have a common High Court.
The northeastern states also have one common High Court. In addition, Tamil Nadu shares a
High Court with Puducherry.
Currently, there are 25 High Courts in India. For a list of High Courts in India, check the linked
article.
The High Courts of Calcutta, Madras and Bombay were established by the Indian High Courts
Act 1861.

What are the functions of the High Court?

The functions of the High Court are described in the below section under subsections such as its
jurisdiction, powers, role, etc.

High Court Jurisdiction

The various kinds of the jurisdiction of the High Court are briefly given below:

Original Jurisdiction
• The High Courts of Calcutta, Bombay and Madras have original jurisdiction in criminal and
civil cases arising within these cities.
• An exclusive right enjoyed by these High Courts is that they are entitled to hear civil cases
which involve property worth over Rs.20000.
• Regarding Fundamental Rights: They are empowered to issue writs in order to enforce
fundamental rights.
• With respect to other cases: All High Courts have original jurisdiction in cases that are
related to will, divorce, contempt of court and admiralty.
• Election petitions can be heard by the High Courts.

Appellate Jurisdiction
• In civil cases: an appeal can be made to the High Court against a district court’s decision.
• An appeal can also be made from the subordinate court directly if the dispute involves a
value higher than Rs. 5000/- or on a question of fact or law.
• In criminal cases: it extends to cases decided by Sessions and Additional Sessions
Judges.
• If the sessions judge has awarded imprisonment for 7 years or more.
 118

• If the sessions judge has awarded capital punishment.

The jurisdiction of the High Court extends to all cases under the State or federal laws.
In constitutional cases: if the High Court certifies that a case involves a substantial question of
law.

High Court Powers

Apart from the above, the High Courts have several functions and powers which are described
below.

As a Court of Record
• High Courts are also Courts of Record (like the Supreme Court).
• The records of the judgements of the High Courts can be used by subordinate courts for
deciding cases.
• All High Courts have the power to punish all cases of contempt by any person or institution.

Administrative Powers
1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself
and decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and
conditions of service.

Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or
ordinance unconstitutional if it is found to be against the Indian Constitution.

Power of Certification
A High Court alone can certify the cases fit for appeal before the Supreme Court.
Powers And Functions Of High Court – Indian Polity:-

High Court Autonomy

The independence of the High Courts can be corroborated by the points given below:

1. Appointment of Judges: The appointment of judges of the High Courts lies within the
judiciary itself and is not connected to the legislature or the executive.
 119

2. Tenure of the Judges: High Court judges enjoy the security of tenure till the age of
retirement, which is 62 years. A High Court cannot be removed except by an address of
the President.
3. Salaries and allowances: The High Court judges enjoy good salaries, perks and
allowances and these cannot be changed to their disadvantage except in case of a
financial emergency. The expenses of the High Court are charged on the Consolidated
Fund of the State, which is not subject to vote in the state legislature.
4. Powers: The Parliament and the state legislature cannot cut the powers and jurisdiction
of the High Court as guaranteed by the Constitution.
5. Conduct of judges: Unless a motion of impeachment has been moved, the conduct of
the High Court judges cannot be discussed in the Parliament.
6. Retirement: After retirement, High Court judges cannot hold an office of emolument under
the Government of India or that of a state. There is an exception to this clause, however,
when, with the consent of the Chief Justice of India, retired judges can be nominated to a
temporary office, and in the situation of emergencies.
 120

Subordinate courts and lower courts in Districts

In each district of India there are various types of subordinate or lower courts. They are civil courts,
criminal courts and revenue courts. These Courts hear civil cases, criminal cases and revenue cases,
respectively. Civil cases pertain to disputes between two or more persons regarding property, breach of
agreement or contract, divorce or landlord – tenant disputes. Civil Courts settle these disputes. They do
not award any punishment as violation of law is not involved in civil cases. Criminal cases relate to violation
of laws. These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc. These cases
are filed in the lower court by the police, on behalf of the state, againt the accused. In such cases the
accused, if found guilty, is awarded punishment like fine, imprisonment or even death sentence. Revenue
cases relate to land revenue on agriculture land in the district. 15.3.1 Qualifications and Appointment of
Judges The judges of subordinate courts are appointed by the Governor in consultation with the Chief
Justice of the High Court of the concerned State. These days, in most of the States judicial service officers
including the magistrates are selected through competitive examinations held by the State Public Service
Commission. They are finally appointed by the Governor.

Subordinate or Lower Courts Civil Courts Criminal Courts Revenue Courts District Judge or District and
Sessions Judge Sessions Judge or District and Sessions Judge Board of Revenue Sub JudgeFamily Courts
Munsif Small Causes Courts Commissioner, Collector Tehsildar Naib Tehsildar Metropolitan Magistrate Or
I Class Magistrate II Class Magistrate III Class Magistrate
 121

source of law in India

The fountain source of law in India is the Constitution which, in turn, gives due recognition to
statutes, case law and customary law consistent with its dispensations. Statutes are enacted by
Parliament, State Legislatures and Union Territory Legislatures.

Consumer Court India

The Consumer Protection Act, 1986 (COPRA) was passed by the Indian parliament and came
into force on December 1986. The Act was passed to protect the consumers’ interest as well as
to establish state bodies to deal with consumer problems and anything that arises thereof.

Introduction

Consumer courts were established as Consumer Dispute Resolution Agencies and they deal with
consumer disputes, conflicts and grievances. It is a forum where a consumer may file a case
against a seller in the case where the consumer feels that he has been cheated or exploited by
the seller. The point of having a separate forum for consumer disputes is to ensure that such
disputes are speedily resolved and make is less expensive.

Types of Consumer Courts

COPRA provides for the formation of consumer courts, under the Act there are three tiers of
Consumer Courts they are as follows:

District Consumer Dispute Redressal Forum (DCDRF):

The DCDRF operates at a district level and takes on any consumer dispute where the appellants
claim for compensation does not exceed 20 lakh rupees.

State Consumer Dispute Redressal Commission (SCDRC):

The SCDRC operates at a state level and takes on any consumer dispute where the appellants
claim for compensation exceeds the amount of 20 lakhs but does not exceed 1 crore rupees.
 122

National Consumer Dispute Redressal Commission (NCDRC):

The NCDRC is the apex court and takes on any consumer dispute where the appellants claim for
compensation exceeds the amount of 1 crore rupees.

Jurisdiction

The jurisdictions of the courts are based on the hierarchy of the courts;

1. Pecuniary Jurisdiction:

The District Consumer Dispute Redressal Forum has the pecuniary jurisdiction of up to an amount
that does not exceed 20 lakhs.

The State Consumer Dispute Redressal Commission has the pecuniary jurisdiction where the
claim exceeds 20 lakhs but does not exceed 1 crore rupees.

The Nation Consumer Dispute Redressal Commission has the pecuniary jurisdiction where the
claim exceeds the amount of 1 crore rupees.

2. Territorial Jurisdiction:

Territorial jurisdiction is to be taken into consideration after establishing pecuniary jurisdiction. A

complaint may be filed in the court that is within those local limits where;

When the opposite party voluntarily resides in or works in those local limits.

Where the cause of action arises from.

To determine where the cause of action arises you can apply the same laws applicable to contract
law.

Territorial jurisdiction when a transaction was done online.

 123

Transactions done online effectively negates territorial jurisdiction. In this case, territorial
jurisdiction is in any of the multiple places the cause of action arises, which also includes where
the appellant resides.

3. Appellate Jurisdiction:

If a consumer is not satisfied by the decision made by the district forum they may make an appeal
to the state commission.

If the consumer is aggrieved by the decision made by the state commission they may appeal to
the national commission.

If a consumer is not satisfied by the decision made by the national commission they may approach
the Supreme Court for an appeal.

Composition

The Consumer Protection Act, 1986 provides for the composition of each of the courts.

1. District Consumer Dispute Redressal Forum:

Each district forum is to consist of:

a person who is, or has been, or is qualified to be a District Judge, who shall be its President;

two other members, who shall be persons of ability, integrity and standing, and have adequate
knowledge or experience of, or have shown capacity in dealing with, problems relating to
economics, law, commerce, accountancy, industry, public affairs or administration, one of whom
shall be a woman.

2. State Consumer Dispute Redressal Forum:

Each State Commission shall consist of –

 124

a person who is or has been a Judge of a High Court, appointed by the State Government, who
shall be its President :

Provided that no appointment under this clause shall be made except after consultation with the
Chief Justice of the High Court;

two other members, who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of, or have shown capacity in dealing with problems relating to
economics, law, commerce, accountancy, industry, public affairs or administration, one of whom
shall be a woman :

Provided that every appointment made under this clause shall be made by the State Government
on the recommendation of a selection committee consisting of the following, namely:- (i) President
of the State Commission – Chairman, (ii) Secretary of the Law Department of the State – Member,
(iii) Secretary, in-charge of Department dealing with consumer affairs in the State – Member.

3. National Consumer Dispute Redressal Forum:

The National Commission shall consist of –

a person who is or has been a Judge of the Supreme Court, to be appointed by the Central
Government, who shall be its President :

Provided that no appointment under this clause shall be made except after consultation with the
Chief Justice of India;

four other members who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of, or have shown capacity in dealing with, problems relating to
economics, law, commerce, accountancy. industry, public affairs or administration, one of whom
shall be a woman :

Provided that every appointment made under this clause shall be made by the Central
Government on the recommendation of a selection committee consisting of the following,
namely:-

A person who is a Judge of the Supreme Court to be nominated by the Chief Justice of India –
Chairman,
 125

The Secretary in the Department of Legal Affairs in the Government of India – Member,

Secretary of the Department dealing with consumer affairs in the Government of India – Member.

Powers and Functions

The powers and functions of the commission are enumerated in section 4 of the act. Section 4(1)
states the functions as follows.

1. Functions :

Advisory role to ministers of general consumer issues.

Formulation and implementation of consumer protection policies

Carry out investigation upon the complaint of an aggrieved consumer into the selling of goods or
provision of service so as to determine whether the complaining consumer was genuinely
aggrieved.

Carry out an investigation of its own initiative.

Promote the development of organizations formed for the protection of consumers

Collect, analyse and publish information on any trade or business.

Educate consumers on their rights

Resolve disputes between consumers and providers

Carry such functions as the minister may direct from time to time.

2. Powers:

The consumer commission has the power to do anything that it deems to be necessary for it to
meet and perform its functions. It may take any action that it may so deem advantageous or
convenient for or in connection with carrying out its functions or to be incidental to their proper
discharge and may carry on any activities in that behalf either alone or in association with any
other person or body.