Topic 1 General
Constitution - Fundamental Law of the land:
Constitution & Constitutionalism,
Schwartz. – Const springs from belief in limited government – written organic
instrument under which govt powers conferred and circumscribed – stress upon
grant & limitation is fundamental
Prof Vile – Western Theorist concerned about existence of Governmental power
which is essential to the realization of values of their societies, should be
controlled in order that it shouldn’t itself be destructive of values it was
intended to promote.
Making of the Indian
Constitution – 29th August 1947 drafting committee formed –
chairmanship Dr BR Ambedkar – Draft Constitution put before Constituent
Assembly (–A statutory sovereign body formed in 1946 by the British which got
plenary powers to frame he Constitution to suit the people of India) on 21st
Feb 1948. Members of CA proposes 7635 Amendments and 2473 Amendment resolutions
were discussed – Many provisions of GoI Act 1935 incorporated – It took 2yrs
11months and 18 days to make the Indian Constitution – On 26th Nov
1949 Constitution rcvd signature of President of CA (Dr Rajendra Prasad) and
was declared as passed – Provision relating to citizenship, elections,
provisional parliament, temporary & transitional provisions were given
immediate effect, Rest came into force on 26th Jan 1950.
Aims & Objectives
Essential Features of Constitution
(i)
Size of the Constitution – 395 Articles (total numbering 444)
divided into 22 parts and 12 schedules now. Originally 395 Articles & 8
Schedules
(ii)
Types of Constitution –
a. Written(US) or Unwritten
based on Conventions(UK) Indian Written even though conventions play a part
insofar they are in keeping with the provisions of the Constitution.
b. Rigid or Flexible
c.
Federal or Unitary
(iii)
Parliamentary or Presidential form of Government
(iv)
Parliament Sovereignty v Judicial Supremacy
(v)
Adult Franchise
(vi)
Secular State
(vii)
Charter of Fundamental Rights (Part III of Const)
(viii)
Directive Principles (Irish precedent)
(ix)
Fundamental Duties
(x)
Citizenship (Rights – Voting, Holding Offices, Some fundamental
rights) – Art 14 & 21 available to non citizens also
(xi)
Independent Judiciary
(xii)
Union & Its Territories
(xiii)
Special Status of J & K (Art 370) – Separate Constitution
(xiv)
Panchayati Raj & Nagar Palika Institutions
Bag of Borrowings – UK - Parliamentary form
of Gov Bicameral legislature(LS,RS), President as Const head, Cabinet, PM Rule
of Law
Canada – Federal Structure, Strong
Center, vesting of residuary power in center
Australia – Concurrent List
Directive Principles of State Policy
(Ireland)
Power of President, position &
duties of Vice President – from USA
Preamble to the Constitution – based
on the model of The American Declaration of Independence & United Nations
Organization & Independence of
SC (including Judicial Review) from USA
Advisory op of SC – Canada
Fundamental rights from USA, Fundamental Duties from USSR
Trade & Commerce – Australia
Formation of Alternate Govt from Italy
Amendment of Constitution from USA
Single Citizenship – from Canada
Procedure established by law – from Japan
Emergency provisions – from German Reich & GoI Act 1935
Schedules –
First – Territorial demarcations of
States & UTs
Second – Provisions as to President
& Governors
Third – Oaths & Affirmations
Fourth – Allocation of seats in Council
of States (Rajya Sabha)
Fifth – Provisions of administration
& control of Scheduled Areas & ST
Sixth – Provision for administration of
Tribal Areas in NE States
Seventh – List specifying distribution
of legislative subjects between Union & States
Eight – Languages
Ninth – Laws & Regulations saved
from Judicial Review
Tenth – Provisions for disqualification
on the ground of defection
Eleventh – Provisions for Panchayats
Twelfth – Provisions for Urban Local
Self Govt
Theory of Basic Structure
Principles of Federalism
Nature of Indian Constitution - Federal,
Unitary, Quasi-federal
(1) Kesavananda Bharti v. State of Kerala,
AIR 1973 SC 1461 -
SC -> 'Theory of Basic Structure'
- not amendable by Parliament by exercise of its constituent power under
Article 368
24th, 25th and 29th ammendments to
the Constitution of India challenged - main questions related to nature, extent
& scope of amending power of Parliament under the Constitution
View of the majority
(1) L.C. Golaknath vs State of
Punjab AIR 1967 SC 1643 (which had held that fundamental rights were beyond
amending Powers of the Parliament) was overruled;
(2) The Constitution (24th
Amendment) Act 1971 (giving power to Parliament to amend any part of the
Constitution) was valid;
(3) Article 368 as amended was valid
but it did not confer power on the Parliament to alter the basic structure or
framework of the Constitution; The court, however did not spell out in any
exhaustive manner as to what the basic structure/framework ws except that some
judges gave a few examples
(4) The amendment of Article 368(4)
excluding judicial review of a constitutional amendment was unconstitutional.
(5) The amendment of Article 31C
containing the words "and no law containing a declaration that it is for
giving effect to such policy shall be called in question in any court on the
grounds that it does not give effect to such policy" was held invalid;
Basic structure may be said to
consist of the following (SM Sikri CJ.)
(i) Supremacy of the constitution
(ii) Republican and democratic forms
of Government;
(iii) Secular character of
constitution
(iv) Separation of power between the
legislature, the executive and the judiciary;
(v) Federal character of the constitution
(Landmark case:- 13 Judges gave 11
distinct opinions)
It
was held in this case (wrt Preamble):
a. that the Preamble to the Constitution of India is a part of Constitution
b. that the Preamble is not a source of power nor a source of limitations
c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.
a. that the Preamble to the Constitution of India is a part of Constitution
b. that the Preamble is not a source of power nor a source of limitations
c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.
(2) S R
Bommai v. Union of India, AIR 1994 SC 1918 (federalism)
Ahmadi – essential 1st to know true concept
of federalism – Dicey calls it a political contrivance for a body of States
which desire Union but not unity – federalism is a concept which unites
separate States into a union w/o sacrificing their own fundamental political
integrity- essence of federalism – existence of Union & States and
distribution of power between them – implies demarcation of powers in a federal
concept.
Discusses Art 1, 2 & 3
Founding fathers followed GoI Act 1935 in distributing
legislative function as they did not deem it wise to shake the basic structure
of Govt. Some subjects of common interest were transferred to Union List
strengthening administrative control of the Union – St of WB v UoI SC obsrvd –
The exercise of powers, legislative & executive, the allotted fields hedged
in by the numerous restrictions, so that the powers of the State are not
coordinate with the Union and in many respect are not independent
Div Bench in Madras HC - M Karunanidhi v UoI –
Compared US & India wrt federalism – US federation of independent states
No inherent sovereign power of State
which cannot be encroached upon by Union wrt Art 3 – comparison of dual
citizenship of US (Sec 1(1), 14th Amendment of American Const) with
Art 5 of Const of India ( no dual citizenship)
Art 5. Citizenship at the
commencement of the Constitution At the commencement of this Constitution every
person who has his domicile in the territory of India and
(a) who was born in the territory of
India; or
(b) either of whose parents was born
in the territory of India; or
(c) who has been ordinarily resident
in the territory of India for not less than five years preceding such
commencement, shall be a citizen of India
Art 9 if any citizen voluntary
acquires citizenship of another country, wud automatically cease to be citizen
of India.
Absence of words such as federation
or federal in Const, Parliamentary powers under Art 2 & Art 3, residuary
power in Art 248 rw Entry 97 in List 1 of the VIIth schedule conferred on the Union.-
set up of an integrated judiciary
US – indestructible states
constituting an indestructible Union– separate constitution
P B Sawant (on behalf of Kuldip
Singh J & himself) – Dr BR Ambedkar
on– Art 355, 356 & 357
State have independent
constitutional existence – imp role to play in the political, social,
educational & cultural life of the people of the Union – they are neither
satellites nor agents of the Center.
K Ramaswami J: Federalism implies
mutuality & common purpose for the aforesaid process of change with
continuity between the Centre & the states which are the structural units
operating on balancing wheel of concurrence & promises to resolve problems
& promote social, economic and cultural development of its people & to
create fraternity among the people. Discussion of Art 1 – recognition of history
of India – Art 2 & 4 – territorial integrity ensured & maintained,
significant absence of territorial integrity of Constituent States under Art 3.
In Re Berubari Union & Exchange
of Enclaves ref under Art 143(1) Gajendra Gadkar J speaking fr 8 judge bench:
Unlike other federation, no pact
between independent or separate community of States who came together for
certain common purposes & surrendered a part of their sovereignty –
constituent units deliberately created –
B P Jeevan Reddy J :- federation –
no fixed meaning – no two federal states alike – every federation distinct
character – interpreting const of India – founding fathers wished for strong
center – bias towards center reflected – but fact that greater power has been
conferred on Center does not mean states are mere appendages of the center –
within sphere allotted to them the States are supreme. – last several decades
trend world over is strengthening of the Center – even in US center much more
powerful in spite of bias in const towards States -
(3) State of West Bengal v. Union of India,
AIR 1963 SC 1241
Issues
1. Whether Parliament has
legislative competence to enact a law for compulsory acquisition by the Union
of land and other properties vested in or owned by the State?
2. Whether the State of West
Bengal is a sovereign authority?
3. Whether assuming that the
State of West Bengal is a sovereign authority, Parliament is entitled to enact
a law for compulsory acquisition of its lands and properties?
4. Whether the Act or any of
its provisions are ultra vires the legislative competence of Parliament?
5. Whether the plaintiff is
entitled to any relief and if so, what relief?
State
of West Bengal V. Union of India. The
main issue involved in this case was the exercise of sovereign powers by the
Indian states. The legislative competence of the Parliament to enact a law for
compulsory acquisition by the Union of land and other properties vested in or
owned by the state and the sovereign authority of states as distinct entities
was also examined. The apex court held that the Indian Constitution did not
propound a principle of absolute federalism. Though the authority was
decentralized this was mainly due to the arduous task of governing the large
territory. The court outlined the characteristics, which highlight the fact
that the Indian Constitution is not a "traditional
federal Constitution". Firstly, there is no separate Constitution for each
State as is required in a federal state. The Constitution is the supreme
document, which governs all the states. Secondly, the Constitution is liable to
be altered by the Union Parliament alone and the units of the country i.e. the
States have no power to alter it. Thirdly, the distribution of powers is to
facilitate local governance by the states and national policies to be decided
by the Centre. Lastly, as against a federal Constitution, which contains
internal checks and balances, the Indian Constitution renders supreme power
upon the courts to invalidate any action violative of the Constitution. The
Supreme Court further held that both the legislative and executive power of the
States are subject to the respective supreme powers of the Union. Legal
sovereignty of the Indian nation is vested in the people of India. The
political sovereignty is distributed between the Union and the States with
greater weight age in favor of the Union. Another reason which militates
against the theory of the supremacy of States is that there is no dual
citizenship in India. Thus, the learned judges concluded that the structure of
the Indian Union as provided by the Constitution one is centralized, with the
States occupying a secondary position vis-Ã -vis the Centre, hence the Centre
possessed the requisite powers to acquire properties belonging to States.
(4) Ram Jawaya Kapur v. State of Punjab,
AIR 1955 SC 549
Theory of Separation of Power –
Article 73 & 162 of the Const of India; in the absence of law, the state
cannot monopolize any trade or biz to the total or partial exclusion of
citizens’ u/ Art 19(6) of the const.
Writ pet filed u/ Art 32 by 6
persons – printing, publishing & selling text books – alleged tht education
dept of Punjab Govt pursuant to their so called nationalization of textbooks
issued a series of notifications since 1950 regarding printing, publication
& sale of text books which not only placed unwarranted restrictions upon
the right of the petitioners but also practically ousted them & other
traders from the business altogether, & this was a violation of their
fundamental right under Art 19(1)(g). It ws contended that the restrictions
were being imposed w/o the authority of law and therefore not saved by clause
(6) of Article 19.
Court held that even though the act
of the Govt may be criticized within or outside of the legislature but as such no
fundamental right under 19(1)(g) of the petitioners was infringed by the Govt.
The govt didn’t really stop them from printing the books, publishing the books.
The petitioners hold no right as to the approval of their books as textbooks by
the Government.
(5) Kuldip Nayar v. Union of India, AIR
2006 SC 3127
The secrecy of ballot is a vital
principle for ensuring free and fair elections. The higher principle, however,
is free and fair elections and purity of elections. If secrecy becomes a source
for corruption then sunlight and transparency have the capacity to remove it.
We can only say that legislation pursuant to the legislative policy that
transparency will eliminate the evil that has crept in would hopefully serve
the larger object of free and fair elections.
(6) State of Haryana v. State of Punjab,
AIR 2002 SC 685
Semi federal system form of
Government adopted under Indian Const - Dicey
Topic
2 - The Union & its Territory
Power to cede Indian Territory to a Foreign Nation;
Power to create/extinguish a State;
Alternation of name, area & boundary of existing states
Procedure (Article 1 - 4)
Article 1. Name and territory of the Union
(1) India, that is Bharat,
shall be a Union of States.
1[(2) The States and Territories thereof shall be a specified in the
First Schedule.]
(3) The Territory of the
India shall be comprise-
(a) the
Territories of the States;
2[(b) the Union
Territories specified in the First Schedule; and
(c) such other
Territories as may be acquired;
Article 2. Admission or establishment of new States.
Parliament may by law admit into the Union, or establish, new States
on such terms and conditions as it thinks fit.
Article 2A. Sikkim to be associated with the Union 12A. [Sikkim to be associated with the
Union.]
Article 3. Formation of new States and alteration of areas,
boundaries or names of existing States.
Parliament may by law-
(a) Form a new State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting any territory to a
part of any State;
(b) Increase the area of any State;
(c) Diminish the area of any State;
(d) Alter the boundaries of any State;
(e) Alter the name of any State:
1[Provided that no Bill for the purpose shall be introduced in
either House of Parliament except on the recommendation of the President and
unless, where the proposal contained in the Bill affects the area, boundaries
or name of any of the States 2***, the Bill has been referred by the President
to the Legislature of that State for expressing its views thereon within such
period as may be specified in the reference or within such further period as
the President may allow and the period so specified or allowed has expired.]
3[Explanation I. In this article, in clauses (a) to (e),
"State" includes a Union territory, but in the proviso,
"State" does not include a Union territory.
Explanation II. The power conferred on Parliament by clause (a)
includes the power to form a new State or Union territory by uniting a part of
any State or Union territory to any other State or Union territory.]
Article 4. Laws made under articles 2 and 3 to provide for the
amendment of the First and the Fourth Schedules and supplemental, incidental
and consequential matters.
(1) Any law referred to in article 2 or article 3 shall contain such
provisions for the amendment of the First Schedule and the Fourth Schedule as
may be necessary to give effect to the provisions of the law and may also
contain such supplemental, incidental and consequential provisions (including
provisions as to representation in Parliament and in the Legislature or
Legislatures of the State or States affected by such law) as Parliament may
deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of
this Constitution for the purposes of article 368.
--
(7) In re Berubari Union and Exchange of
Enclaves, AIR 1960 SC 845
President of India in exercise of
his powers conferred by Article 143(1) of the Constitution, referred three
questions to SC for its advice:-
(i) Is any legislative action
necessary for the implementation of the Agreement relating to Berubari Union?
(ii) If so, is a law of Parliament
relatable to Art 3 of the Constitution sufficient for the purpose or is an
amendment of the Constitution in accordance with Article 368 of the
Constitution necessary, in addition or in the alternative?
(iii) Is a law of Parliament
The power to diminish the area of a
State does not entitle the Parliament to cede Indian territory to a foreign
state. Parliament has no power under Art 3(c ) to make a law to implement an
agreement with the government of a foreign state ceding Indian territory to a
foreign state. Area diminished under Art 3(c ) should and must continue to be a
part of the territory of India.
An amendment to the Constitution is
necessary under Article 368, to modify the 1st schedule to the
Constitution, is necessary for ceding territory to a foreign state.
(8) Ram Kishore Sen v. Union of India, AIR
1966 SC 644 – SC held – Advisory opinion given in
Re Berubari Union & Exchng of
Enclaves ws binding. – no cessation w/o const amendment – cessation of
territory diff fr settlement of boundary dispute or bonafide doubt or mistake
as to boundaries between India & a foreign state.
(9) Union of India v. Sukumar Sengupta, AIR
1990 SC 1692 – Lease of Teen Bigha not cessation of
territory
(10) N Masthan Sahib v. Chief Commissioner
Pondicherry – SC held term acquired = acquisition
as per public intl law – if public notification, declaration or assertion by
GoI that part area has been acquired -> courts bound to recognize –
conversely if GoI issues stmnt tht part area nt acquired – then also binding on
courts – Art 1(3)(c)
(11) R.C. Poudyal v. Union of India, AIR 1993 SC 1804 – Estb of new state as Parliament deems fit but cannot go against
theory of basic structure.
(12) Babulal Parate v. State of Bombay, AIR 1960 SC 51 – Once bill referred to concerned State legislatures & thr
after duly introduced in Parliament, subsequent amendments seeking to make
provisions different from those contained in the original bill at the time of
its intro are nt reqrd to be referred to the St Leg – also no fresh
recommendation of the President is necessary for the consideration of the
proposed amendments to the Bill.
Topic 3 - The
Union and State Executive
(a) The President and Vice President - Qualification, Election, Term
of Office, Powers, Impeachment(Article 52 - 72); Governer - Appointment and
Powers (Articles 153 - 161)
Art 52: The Prez of India - shall be a Prez of India
Art 53. Executive power of the Union.
(1) The executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers
subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the foregoing provision,
the supreme command of the Defence Forces of the Union shall be vested in the
President and the exercise thereof shall be regulated by law.
(3) Nothing in this article shall-
(a) Be deemed to transfer to the President any functions conferred
by any existing law on the Government of any State or other authority; or
(b) Prevent Parliament from conferring by law functions on
authorities other than the President.
Art 54. Election of President.
The President shall be elected by the members of an electoral
college consisting of-
(a) The elected members of both Houses of Parliament; and
(b) The elected members of the Legislative Assemblies of the States.
Art 55. Manner of election of President.
(1) As far as practicable, there shall be uniformity in the scale of
representation of the different States at the election of the President.
(2) For the purpose of securing such uniformity among the States
interest as well as parity between the States as a whole and the Union, the
number of votes which each elected member of Parliament and of the Legislative
Assembly of each State is entitled to cast at such election shall be determined
in the following manner: -
(a) Every elected member of the Legislative Assembly of a State
shall have as many votes as there are multiples of one thousand in the quotient
obtained by dividing the population of the State by the total number of the elected
members of the Assembly;
(b) If, after taking the said multiples of one thousand, the
remainder is not less than five hundred, then the vote of each member referred
to in sub-clause (a) shall be further increased by one;
(c) Each elected member of either House of Parliament shall have
such number of votes as may be obtained by dividing the total number of votes
assigned to the members of the Legislative Assemblies of the States under
sub-clauses (a) and (b) by the total number of the elected members of both
Houses of Parliament, fractions exceeding one-half being counted as one and
other fractions being disregarded.
(3) The election of the President shall be held in accordance with
the system of proportional representation by means of the single transferable
vote and the voting at such election shall be by secret ballot.
1[Explanation. In this article, the expression
"population" means the population as ascertained at the last
preceding census of which the relevant figures have been published:
Art 56. Term of office of President.
(1) The President shall hold office for a term of five years from
the date on which he enters upon his office:
Provided that-
(a) The President may, by writing under his hand addressed to the
Vice-President, resign his office;
(b) The President may, for violation of the Constitution, be removed
from office by impeachment in the manner provided in article 61;
(c) The President shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.
(2) Any resignation addressed to the Vice-President under clause (a)
of the proviso to clause (1) shall forthwith be communicated by him to the
Speaker of the House of the People.
Art 57. Eligibility for re-election.
A person who holds, or who has held, office as President shall,
subject to the other provisions of this Constitution, be eligible for
re-election to that office.
Art 58. Qualifications for election as President.
(1) No person shall be eligible for election as President unless he-
(a) Is a citizen of India?
(b) Has completed the age of thirty-five years, and
(c) Is qualified for election as a member of the House of the
People.
(2) A person shall not be eligible for election as President if he
holds any office of profit under the Government of India or the Government of
any State or under any local or other authority subject to the control of any
of the said Governments.
Explanation. For the purposes of this article, a person shall not be
deemed to hold any office of profit by reason only that he is the President or
Vice-President of the Union or the Governor 1[***] of any State or is a
Minister either for the Union or for any State.
Art 59. Conditions of President’s office.
(1) The President shall not be a member of either House of
Parliament or of a House of the Legislature of any State, and if a member of
either House of Parliament or of a House of the Legislature of any State be
elected President, he shall be deemed to have vacated his seat in that House on
the date on which he enters upon his office as President.
(2) The President shall not hold any other office of profit.
(3) The President shall be entitled without payment of rent to the
use of his official residences and shall be also entitled to such emoluments,
allowances and privileges as may be determined by Parliament by law and, until
provision in that behalf is so made, such emoluments, allowances and privileges
as are specified in the Second Schedule.
(4) The emoluments and allowances of the President shall not be diminished
during his term of office.
Art 60. Oath or affirmation by the President.
Every President and every person acting as President or discharging
the functions of the President shall, before entering upon his office, make and
subscribe in the presence of the Chief Justice of India or, in his absence, the
senior-most Judge of the Supreme Court available, an oath or affirmation in the
following form, that is to say-
"I, A.B., do (swear in the name of God/solemnly affirm) that I
will faithfully execute the office of President (or discharge the functions of
the President) of India and will to the best of my ability preserve, protect
and defend the Constitution and the law and that I will devote myself to the
service and well-being of the people of India.".
Art 61. Procedure for impeachment of the President.
(1) When a President is to be impeached for violation of the
Constitution, the charge shall be preferred by either House of Parliament.
(2) No such charge shall be preferred unless-
(a) The proposal to prefer such charge is contained in a resolution
which has been moved after at least fourteen days' notice in writing signed by
not less than one-fourth of the total number of members of the House has been
given of their intention to move the resolution, and
(b) Such resolution has been passed by a majority of not less than
two-thirds of the total membership of the House.
(3) When a charge has been so preferred by either House of
Parliament, the other House shall investigate the charge or cause the charge to
be investigated and the President shall have the right to appear and to be
represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a
majority of not less than two-thirds of the total membership of the House by
which the charge was investigated or caused to be investigated, declaring that
the charge preferred against the President has been sustained, such resolution
shall have the effect of removing the President from his office as from the
date on which the resolution is so passed.
Art 62. Time of holding election to fill vacancy in the office of
President and the term of office of person elected to fill casual vacancy.
(1) An election to fill a vacancy caused by the expiration of the
term of office of President shall be completed before the expiration of the
term.
(2) An election to fill a vacancy in the office of President
occurring by reason of his death, resignation or removal, or otherwise shall be
held as soon as possible after, and in no case later than six months from, the
date of occurrence of the vacancy; and the person elected to fill the vacancy
shall, subject to the provisions of article 56, be entitled to hold office for
the full term of five years from the date on which he enters upon his office.
Art 63. The Vice-President of India.
There shall be a Vice-President of India.
Art 64. The Vice-President to be ex officio Chairman of the Council
of States.
The Vice-President shall be ex officio Chairman of the Council of
States and shall not hold any other office of profit:
Provided that during any period when the Vice-President acts as
President or discharges the functions of the President under article 65, he
shall not perform the duties of the office of Chairman of the Council of States
and shall not be entitled to any salary or allowance payable to the Chairman of
the Council of States under article 97.
Art 65. The Vice-President to act as President or to discharge his
functions during casual vacancies in the office, or during the absence, of President.
(1) In the event of the occurrence of any vacancy in the office of
the President by reason of his death, resignation or removal, or otherwise, the
Vice-President shall act as President until the date on which a new President
elected in accordance with the provisions of this Chapter to fill such vacancy
enters upon his office.
(2) When the President is unable to discharge his functions owing to
absence, illness or any other cause, the Vice-President shall discharge his
functions until the date on which the President resumes his duties.
(3) The Vice-President shall, during, and in respect of, the period
while he is so acting as, or discharging the functions of, President, have all
the powers and immunities of the President and be entitled to such emoluments,
allowances and privileges as may be determined by Parliament by law and, until
provision in that behalf is so made, such emoluments, allowances and privileges
as are specified in the Second Schedule.
Art 66. Election of Vice-President.
(1) The Vice-President shall be elected by the 1[members of an
electoral college consisting of the members of both Houses of Parliament] in
accordance with the system of proportional representation by means of the
single transferable vote and the voting at such election shall be by secret
ballot.
(2) The Vice-President shall not be a member of either House of
Parliament or of a House of the Legislature of any State, and if a member of
either House of Parliament or of a House of the Legislature of any State be
elected Vice-President, he shall be deemed to have vacated his seat in that
House on the date on which he enters upon his office as Vice-President.
(3) No person shall be eligible for election as Vice-President
unless he-
(a) Is a citizen of India?
(b) Has completed the age of thirty-five years; and
(c) Is qualified for election as a member of the Council of States.
(4) A person shall not be eligible for election as Vice-President if
he holds any office of profit under the Government of India or the Government
of any State or under any local or other authority subject to the control of
any of the said Governments.
Explanation. For the purposes of this article, a person shall not be
deemed to hold any office of profit by reason only that he is the President or
Vice-President of the Union or the Governor 2[***] of any State or is a
Minister either for the Union or for any State.
Art 67. Term of office of Vice-President.
The Vice-President shall hold office for a term of five years from
the date on which he enters upon his office:
Provided that-
(a) A Vice-President may, by writing under his hand addressed to the
President, resign his office;
(b) A Vice-President may be removed from his office by a resolution
of the Council of States passed by a majority of all the then members of the
Council and agreed to by the House of the People; but no resolution for the
purpose of this clause shall be moved unless at least fourteen days' notice has
been given of the intention to move the resolution;
(c) A Vice-President shall, notwithstanding the expiration of his
term, continue to hold office until his successor enters upon his office.
Art 68. Time of holding election to fill vacancy in the office of
Vice-President and the term of office of person elected to fill casual vacancy.
(1) An election to fill a vacancy caused by the expiration of the
term of office of Vice-President shall be completed before the expiration of
the term.
(2) An election to fill a vacancy in the office of Vice-President
occurring by reason of his death, resignation or removal, or otherwise shall be
held as soon as possible after the occurrence of the vacancy, and the person
elected to fill the vacancy shall, subject to the provisions of article 67, be
entitled to hold office for the full term of five years from the date on which
he enters upon his office.
Art 69. Oath or affirmation by the Vice-President.
Every Vice-President shall, before entering upon his office, make
and subscribe before the President, or some person appointed in that behalf by
him, an oath or affirmation in the following form, that is to say-
"I, A.B., do (swear in the name of God/solemnly affirm) that I
will bear true faith and allegiance to the Constitution of India as by law
established and that I will faithfully discharge the duty upon which I am about
to enter.".
Art 70. Discharge of President’s functions in other contingencies.
Parliament may make such provision as it thinks fit for the
discharge of the functions of the President in any contingency not provided for
in this Chapter.
Art 71. Matters relating to, or connected with, the election of a
President or Vice-President.
(1) All doubts and disputes arising out of or in connection with the
election of a President or Vice-President shall be inquired into and decided by
the Supreme Court whose decision shall be final.
(2) If the election of a person as President or Vice-President is
declared void by the Supreme Court, acts done by him in the exercise and
performance of the powers and duties of the office of President or Vice-President,
as the case may be, on or before the date of the decision of the Supreme Court
shall not be invalidated by reason of that declaration.
(3) Subject to the provisions of this Constitution, Parliament may
by law regulate any matter relating to or connected with the election of a
President or Vice-President.
(4) The election of a person as President or Vice-President shall
not be called in question on the ground of the existence of any vacancy for
whatever reason among the members of the electoral college electing him.]
Art 72. Power of President to grant pardons, etc., and to suspend,
remit or commute sentences in certain cases.
(1) The President shall have the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence-
(a) In all cases where the punishment or sentence is by a Court
Martial;
(b) In all cases where the punishment or sentence is for an offence
against any law relating to a matter to which the executive power of the Union
extends;
(c) In all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power
conferred by law on any officer of the Armed Forces of the Union to suspend,
remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power
to suspend, remit or commute a sentence of death exercisable by the Governor
1[***] of a State under any law for the time being in force.
Art 153. Governors of States.
There shall be a Governor for each State:
1[Provided that nothing in this article shall prevent the
appointment of the same person as Governor for two or more States.]
Art 154. Executive power of State.
(1) The executive power of the State shall be vested in the Governor
and shall be exercised by him either directly or through officers subordinate
to him in accordance with this Constitution.
(2) Nothing in this article shall-
(a) Be deemed to transfer to the Governor any functions conferred by
any existing law on any other authority; or
(b) Prevent Parliament or the Legislature of the State from
conferring by law functions on any authority subordinate to the Governor.
Art 155. Appointment of Governor.
The Governor of a State shall be appointed by the President by
warrant under his hand and seal.
Art 156. Term of office of Governor.
(1) The Governor shall hold office during the pleasure of the
President.
(2) The Governor may, by writing under his hand addressed to the
President, resign his office.
(3) Subject to the foregoing provisions of this article, a Governor
shall hold office for a term of five years from the date on which he enters
upon his office:
Provided that a Governor shall, notwithstanding the expiration of
his term, continue to hold office until his successor enters upon his office.
Art 157. Qualifications for appointment as Governor.
No person shall be eligible for appointment as Governor unless he is
a citizen of India and has completed the age of thirty-five years.
Art 158. Conditions of GovernorÔÇÖs office.
(1) The Governor shall not be a member of either House of Parliament
or of a House of the Legislature of any State specified in the First Schedule,
and if a member of either House of Parliament or of a House of the Legislature
of any such State be appointed Governor, he shall be deemed to have vacated his
seat in that House on the date on which he enters upon his office as Governor.
(2) The Governor shall not hold any other office of profit.
(3) The Governor shall be entitled without payment of rent to the
use of his official residences and shall be also entitled to such emoluments,
allowances and privileges as may be determined by Parliament by law and, until
provision in that behalf is so made, such emoluments, allowances and privileges
as are specified in the Second Schedule.
1[(3A) Where the same person is appointed as Governor of two or more
States, the emoluments and allowances payable to the Governor shall be
allocated among the States in such proportion as the President may by order
determine.]
(4) The emoluments and allowances of the Governor shall not be
diminished during his term of office.
Art 159. Oath or affirmation by the Governor.
Every Governor and every person discharging the functions of the Governor
shall, before entering upon his office, make and subscribe in the presence of
the Chief Justice of the High Court exercising jurisdiction in relation to the
State, or, in his absence, the senior most Judge of that Court available, an
oath or affirmation in the following form, that is to say-
"I, A. B., do (swear in the name of God/solemnly affirm) that I
will faithfully execute the office of Governor (or discharge the functions of
the Governor) of .............(name of the State) and will to the best of my
ability preserve, protect and defend the Constitution and the law and that I
will devote myself to the service and well-being of the people of .....(name of
the State)."
Art 160. Discharge of the functions of the Governor in certain
contingencies.
The President may make such provision as he thinks fit for the
discharge of the functions of the Governor of a State in any contingency not
provided for in this Chapter
Art 161. Power of Governor to grant pardons, etc., and to suspend,
remit or commute sentences in certain cases.
The Governor of a State shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute
the sentence of any person convicted of any offence against any law relating to
a matter to which the executive power of the State extends.
(b) Nature, Scope and Extent of Executive Power of the Union and
States(Article 73 and 162)
Art 73. Extent of executive power of the Union.
(1) Subject to the provisions of this Constitution, the executive
power of the Union shall extend-
(a) To the matters with respect to which Parliament has power to
make laws; and
(b) To the exercise of such rights, authority and jurisdiction as
are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save
as expressly provided in this Constitution or in any law made by Parliament,
extend in any State 1[***] to matters with respect to which the Legislature of
the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer
or authority of a State may, notwithstanding anything in this article, continue
to exercise in matters with respect to which Parliament has power to make laws
for that State such executive power or functions as the State or officer or
authority thereof could exercise immediately before the commencement of this
Constitution.
Art 162. Extent of executive power of State.
Subject to the provisions of this Constitution, the executive power
of a State shall extend to the matters with respect to which the Legislature of
the State has power to make laws:
Provided that in any matter with respect to which the Legislature of
a State and Parliament have power to make laws, the executive power of the
State shall be subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by Parliament upon the Union
or authorities thereof.
--
(c) Union Council of Ministers - Powers and Position of the
President(Articles 74-75); State Council of Ministers(Art 163 - 164);
Relationship of the President/Governer with the Council of Ministers; Scope and
Extent of Judicial Review of Executive Actions(Articles
74,75,77,78,111,102,103(2),217(3), 163)
Art 74. Council of Ministers to aid and advise President.
1[(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the exercise of his
functions, act in accordance with such advice:]
2[Provided that the President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such reconsideration.]
(2) The question whether any, and if so what, advice was tendered by
Ministers to the President shall not be inquired into in any court.
Art 75. Other provisions as to Ministers.
(1) The Prime Minister shall be appointed by the President and the
other Ministers shall be appointed by the President on the advice of the Prime
Minister.
(2) The Ministers shall hold office during the pleasure of the
President.
(3) The Council of Ministers shall be collectively responsible to
the House of the People.
(4) Before a Minister enters upon his office, the President shall
administer to him the oaths of office and of secrecy according to the forms set
out for the purpose in the Third Schedule.
(5) A Minister who for any period of six consecutive months is not a
member of either House of Parliament shall at the expiration of that period
cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine and, until Parliament so
determines, shall be as specified in the Second Schedule.
Art 163. Council of Ministers to aid and advise Governor.
(1) There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his functions,
except in so far as he is by or under this Constitution required to exercise
his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution required to act
in his discretion, the decision of the Governor in his discretion shall be
final, and the validity of anything done by the Governor shall not be called in
question on the ground that he ought or ought not to have acted in his
discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the Governor shall not be inquired into in any court.
Art 164. Other provisions as to Ministers.
(1) The Chief Minister shall be appointed by the Governor and the
other Ministers shall be appointed by the Governor on the advice of the Chief
Minster, and the Ministers shall hold office during the pleasure of the
Governor:
Provided that in the States of Bihar, Madhya Pradesh and Orissa,
there shall be a Minister in charge of tribal welfare who may in addition be in
charge of the welfare of the Scheduled Castes and backward classes or any other
work.
1(1A) The total number of Ministers, including the Chief Minister,
in the Council of Ministers in a State shall not exceed fifteen per cent of the
total number of members of the Legislative Assembly of the State.
Provided that the number of Ministers, including the Chief Minister
in a State shall not be less than twelve:
Provided further that where the total number of Ministers Including
the Chief MInister in the Council of Ministers in any State at the commencement
of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen
per cent or the number specified in the first proviso, as the case may be, then
the total number of Ministers in that State shall be brought in conformity with
the provisions of this clause within six months from such date as the President
may by public notification appoint.
(1B) A member of the Legislative Assembly of a State or either House
of the Legislature of a State having Legislative Council belonging to any
political party who is disqualified for being a member of that house under
paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as
a Minister under clause (1) for duration of the period commencing from the date
of his disqualification till the date on which the term of his office as such
member would expire or where he contests any election to the Legislative
Assembly of a State or either House of the Legislature of a State having
Legislative Council, as the case may be, before the expiry of such period, till
the date on which he is declared elected, whichever is earlier.]
(2) The Council of Ministers shall be collectively responsible to
the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall
administer to him the oaths of office and of secrecy according to the forms set
out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a
member of the Legislature of the State shall at the expiration of that period
cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the
Legislature of the State may from time to time by law determine and, until the
Legislature of the State so determines, shall be as specified in the Second
Schedule.
Art 77. Conduct of business of the Government of India.
(1) All executive action of the Government of India shall be
expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of
the President shall be authenticated in such manner as may be specified in
rules 1to be made by the President, and the validity of an order or instrument
which is so authenticated shall not be called in question on the ground that it
is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient
transaction of the business of the Government of India, and for the allocation
among Ministers of the said business.
Art 78. Duties of Prime Minister as respects the furnishing of
information to the President, etc.
It shall be the duty of the Prime Minister-
(a) To communicate to the President all decisions of the Council of
Ministers relating to the administration of the affairs of the Union and
proposals for legislation;
(b) To furnish such information relating to the administration of
the affairs of the Union and proposals for legislation as the President may
call for; and
(c) If the President so requires, to submit for the consideration of
the Council of Ministers any matter on which a decision has been taken by a
Minister but which has not been considered by the Council.
Art 111. Assent to Bills.
When a Bill has been passed by the Houses of Parliament, it shall be
presented to the President, and the President shall declare either that he
assents to the Bill, or that he withholds assent therefrom:
Provided that the President may, as soon as possible after the
presentation to him of a Bill for assent, return the Bill if it is not a Money
Bill to the Houses with a message requesting that they will reconsider the Bill
or any specified provisions thereof and, in particular, will consider the
desirability of introducing any such amendments as he may recommend in his
message, and when a Bill is so returned, the Houses shall reconsider the Bill
accordingly, and if the Bill is passed again by the Houses with or without
amendment and presented to the President for assent, the President shall not
withhold assent therefrom.
Art 102. Disqualifications for membership.
(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament-
(a) If he holds any office of profit under the Government of India
or the Government of any State, other than an office declared by Parliament by
law not to disqualify its holder;
(b) If he is of unsound mind and stands so declared by a competent
court;
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of allegiance or
adherence to a foreign State;
(e) If he is so disqualified by or under any law made by Parliament.
1[Explanation. For the purposes of this clause] a person shall not
be deemed to hold an office of profit under the Government of India or the
Government of any State by reason only that he is a Minister either for the
Union or for such State.
2[(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth Schedule.]
Art 103. Decision on questions as to disqualifications of members.
(1) If any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications mentioned in
clause (1) of article 102, the question shall be referred for the decision of
the President and his decision shall be final.
(2) Before giving any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act according to
such opinion
Art 217. Appointment and conditions of the office of a Judge of a
High Court.
(1) Every Judge of a High Court shall be appointed by the President
by warrant under his hand and seal after consultation with the Chief Justice of
India, the Governor of the State, and, in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court, and 1[shall
hold office, in the case of an additional or acting Judge, as provided in
article 224, and in any other case, until he attains the age of 2[sixty-two
years]]:
Provided that-
(a) A Judge may, by writing under his hand addressed to the
President, resign his office;
(b) A Judge may be removed from his office by the President in the
manner provided in clause (4) of article 124 for the removal of a Judge of the
Supreme Court;
(c) The office of a Judge shall be vacated by his being appointed by
the President to be a Judge of the Supreme Court or by his being transferred by
the President to any other High Court within the territory of India.
(2) A person shall not be qualified for appointment as a Judge of a
High Court unless he is a citizen of India and-
(a) Has for at least ten years held a judicial office in the
territory of India; or
(b) Has for at least ten years been an advocate of a High Court
3[***] or of two or more such Courts in succession; 4[***]
Explanation. For the purposes of this clause-
5[(a) In computing the period during which a person has held
judicial office in the territory of India, there shall be included any period,
after he has held any judicial office, during which the person has been an
advocate of a High Court or has held the office of a member of a tribunal or
any post, under the Union or a State, requiring special knowledge of law;]
6[(aa)] In computing the period during which a person has been an
advocate of a High Court, there shall be included any period during which the
person 7[has held judicial office or the office of a member of a tribunal or
any post, under the Union or a State, requiring special knowledge of law] after
he became an advocate;
(b) In computing the period during which a person has held judicial
office in the territory of India or been an advocate of a High Court, there
shall be included any period before the commencement of this Constitution
during which he has held judicial office in any area which was comprised before
the fifteenth day of August, 1947, within India as defined by the Government of
India Act, 1935, or has been an advocate of any High Court in any such area, as
the case may be.
8[(3) If any question arises as to the age of a Judge of a High
Court, the question shall be decided by the President after consultation with
the Chief Justice of India and the decision of the President shall be final.
(13) U.N.R. Rao vs Indira Gandhi, AIR 1971
SC 1002
Writ of quo warranto was prayed in
this appeal against the continuation of Smt IG as PM since the house of the
people had been dissolved.
Appellant contended that under the
Constitution as soon as the house of the people was dissolved under Art 85(2)
the Council of Ministers ceased to hold office. Argument based upon wordings of
Art 75(3) – collectively responsible to house of the people. Hence since no
house hence no Council of Ministers.
Court held :- Art 75(3) must be interpreted
with respect to Article 52, 53(1), 60 of the constitution. These articles part
of chapter 1 of part V of the constitution
deals with the Executive – mandatory and bring in to force the office of
the prez of india.
Art 74(1) [shall be a council of
Ministers] - Mandatory in form – shall cannot be interpreted as may –
constituent assembly did not choose a presidential form of Govt – if no CoM
then no one would be responsible to the house of the people – Article 74(1)
makes it mandatory for there to be a CoM - article 75(3) brings in to existence
what is usually called the responsible govt – in other words CoM must enjoy the
confidence of the house of the people – no one said that CoM does not enjoy the
confidence of the house when its prorogued – Art 75(3) applies only when the
house of people does not stand dissolved or prorogued – we are not concerned
with the case where dissolution of the house of people takes place under Art
83(2) on the expiration of the period of 5 years prescribed therein, for Parliament
has provided for that contingency in Sec 14 of the representation of people
act, 1951.
(14) S.P. Anand vs H.D. Deve Gowda, AIR 1997
SC 272
Petition filed against HD Deve Gowda
– contended tht he ws nt eligible to be apptd as the PM as he ws nt a member of
either house and this action ws violative of Art 14, 21 and 75 of the
Constitution, and thrfr void ab intio and deserved to be quashed by an
appropriate writ under Article 32 of the constitution.
Court observed that from the
decision’s in Har Sharan Verma v TN Singh, CM of UP, ( State of UP), (UoI)
cases it becomes clear that a non member of either house of parliament or of a
State legislature can be appointed as a Minister in Central or State Cabinet
respectively. This(Minister) includes PM
& CM respectively as the case may be. But petitioner not satisfied as he
contended the decisions were old and needed reconsideration.
In order to appreciate the
contention raised in this petition and to determine if the aforesaid decision
on which the learned attorney general relied has any bearing on the point at
issue in the petition it would be advantageous to read Art 74 & 75 in
juxtaposition with Art 163 & 164 of the Constitution
74. Council of Ministers to aid
& advice President (1) There shall be a CoMs with the PM as the
head to aid & advise the President who shall in the exercise of his
functions, act in accordance with such advice.
|
163. CoM to aid & advise the
Governor (1) There shall be a CoMs with the CM at the head to aid
& advise the Governer in the exercise of his functions, except insofar as
he is by or under his functions or any of them in his discretion.
|
[Provided that the Prez may
require the CoM to reconsider such advice, either generally or otherwise, and
the Prez shall act in accordance with the advice tendered after such
reconsideration.]
|
(2) If any question arises whether
any matter is or is not a matter as respects which the Governor is by or
under this Constitution required to act in his discretion, the decision of
the Governor in his discretion shall be final and the validity of anything
done by the Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion.
|
(2) The question whether any, and
if so what advice was tendered by Ministers to the President shall not be
inquired into in any court.
|
(3) The question whether any, and
if so what advice was tendered by Ministers to the Governor shall not be
inquired into in any court.
|
75. Other provisions as to
Ministers (1) The PM shall be appointed by
the President & the other ministers shall be appointed by the President
on the advice of the PM.
|
164. Other provisions as to
Ministers (1) The CM shall be appointed by
the Governor & the other ministers shall be appointed by the Governor on
the advice of the CM, and the ministers shall hold office during the pleasure
of the Governor:
Provided that in States of Bihar,
MP & Orissa, there shall be a Minster in charge of tribal welfare of the
Scheduled Castes & backward classes or any other work.
|
(2) The ministers shall hold
office during the pleasure of the President.
|
(2) The CoM shall collectively be
responsible to the Legislative Assembly of the State.
|
(3) The CoM shall collectively be
responsible to the House of the People.
|
(3) Before a minister enters upon
his office, the Governor shall administer to him the oaths of office and of
secrecy according to the forms set out for the purpose in the Third Schedule.
|
(4) Before a minister enters upon
his office, the President shall administer to him the oaths of office and of
secrecy according to the forms set out for the purpose in the Third Schedule.
|
(4) A Minister who for any period
of six consecutive months is not a member of the legislature of the State
shall at the expiration of that period cease to be a Minister.
|
(5) A Minister who for any period
of six consecutive months is not a member of the either house of Parliament
shall at the expiration of that period cease to be a Minister.
|
(5) The salaries & allowances
of Ministers shall be such as the legislature of the State may from time to
time by law determine and, until the legislature, shall be as specified in
the Second Schedule.
|
(5) The salaries & allowances
of Ministers shall be such as the Parliament may from time to time by law
determine and, until Parliament so determines, shall be as specified in the
Second Schedule.
|
From plain reading of Art 75(5)
obvious that Constitution makers desired to permit a person who was not a MP to
be appointed a minister for a period of six consecutive months and if during
the period he was not elected to either house of Parliament he would cease to
be a Minister.
Petitioner invited courts attention
to Halsbury Law of England(3rd Edition) p 347 para 745 whr its is
stated by conventional usage PM is invariably a member of House of Commons or
House of Lords (i) proceeds to add that preferably a person selected is
preferably to be a member of the House of the Commons.
Petitioner further contented that
even if 75(5) allows a non member to be a minister, its scope is not so wide as
to appoint that person as the PM of the country. Urged that status of PM is
distinct from that of a Minister hence an elected representative of people an
essential criteria.
Court held that the above submission
ignores the facts that PM is chosen by elected MPs who have the mandate of the
people. Secondly if constitution allows it then the controversy ends there.
Also President of India is bound to
follow the aid & advice of the CoM in appointment of the PM, can only
request for reconsideration. CoM is collectively responsible to the house of
the people hence democratic machinery is still in force. Thus even if the PM nt
a member of the house he is answerable to the House so do his ministers without
violating the norms of democracy.
If the president has any doubt he
can ask the person appointed as PM to seek the vote of confidence of the house.
Not bound by the English conventions
as our Constitution is different and allows such appointment for 6 consecutive
months.
(15) Samsher Singh v State of Punjab, AIR
1974 SC 212 (Art 300, 311)
Appellants – Punjab Civil Service (Judicial
Branch) – Shamsher Singh & Ishwar Chand Agarwal terminated by the following
order of the Governor. – Samsher Singh[
Rule 9 of PCS (Punishment & Appeals) Rules, 1952 ]
Ishwar Chand Agarwal [Rule 7(3) in
Part D of the PCS(Judicial Branch) Rules, 1951]
Art 163(1) CoM w/ CM as head to aid
& advise the Governor in the exercise of his functions, except insofar as
he is by Constitution reqd to exercise his functions or any of them in his
discretion.
Art 163(2) – words “in his
discretion” contended that CoM to aid & advise in appoint of Public
Servants.
Executive power of Union vested in
Pres under Art 53(1) [ Art 154(1) – Governor ]. Action taken by Gov of India in
name of the president – Art 77(1) [ Art 166(1) – Governor].
Article 300 – GoI may be sued or sue
in the name of the Union & Governor to sue or be sued in name of the State
Article 361 – Proceedings against
GoI or GoS but not against prez or Governor.
Art 77(3) The President shall make
rules for the more convenient transaction of the business of the Government of
India, and for the allocation among Ministers of the said business. (Art 166(3)
– Governor)
Where ever the Constitution reqs
satisfaction of the prez(governor) for exercise of any power under Constitution
of India(Eg Art 123, 213, 311(2) proviso (c ), 317, 352(1), 356 & 360), its
not his personal satisfaction but satisfaction of the Prez (Governor) in the
Constitutional sense under Cabinet system of Government.
Neither 77(3) nor 166(3) provides
for delegation of power.
Rules of business & allocation
of business are relatable to Art 53 & Art 154 that executive power to be
exercised by Prez or Governor directly or indirectly through officers subordinate.
Provisions in 74[CoM to advise Prez
– 163 for Governor] are sources of rules of business.
When function entrusted to Minister
are performed by an official employed in the Ministry there in law is no
delegation as constitutionally the act or decision of the official is that of
the Minister. The official is mere machinery for the discharge of the functions
entrusted to a Minister.
Sardari Lal Case – Overruled. Held
that prez power to dismiss govt official can be delegated.
Express words in Art 311 No person
who is a member of a civil service of the Union or an all-India service or a
civil service of a State or holds a civil post under the Union or a State shall
be dismissed or removed by an authority subordinate to that by which he was
appointed. These words indicate that the pleasure of the President or the
Governer is exercised by such officers on whom the Prez or Governor confers or
delegates power.
Provisions of Const of India which
expressly provide discretion of Governor independent of CoM A239(2) - Gov as Administrator of Union Territories,
para 9(2) & 8(13) of sixth schedule. Art 371A(1)(b) , Art 371A(1)(d), Art
371A(2)(b) & Art 371A(2)(f).
Court Held that President or
Governor acts on aid & advise of the CoM with PM(Union) / CM(State) as its
head in all matters legislative and executive in character. Neither president
nor governor exercises the executive function personally. (A234 appt of
district judges to jud servs after consultation with State Publ Comm & HC).
Dismissal of governor not a personal function of the governor.
(16) M.P. Special Police Establishment v.
State of M.P>, (2004) 8 SCC 788
The discretionary power of Governor
is in issue (Art 163). Single judge of
HC held that Governor cannot grant sanction to prosecute the Ministers as his
discretion is not his personal discretion. SC overruled the HC order. Cited
various authorities in its decision.
State of Mah v Ramdas Srinivas Nayak
– contended that merely because Const of India expressly provides in some cases
for the Governor to act in his discretion, can it be inferred that the Governor
can so act only where the Constitution of India so provides? That would
invariably leave Art 163(2) redundant. 163(2) expressly provides that there can
be matters where Governor can act in his discretion even though the
Constitution has not expressly so provided.
Shamsher Singh v State of Punjab –
exception where Governor can act on his discretion.
Ramdas Srinivas Nair – MLA filed
corruption complaint against CM –
Bhuri Nath v St of J&K – Governor
to chair the board in terms of the J&K Sri Mata Vaishno Devi Shrine Act,
1988. It was held that decision taken by him would be his own on his personal
satisfaction and not on aid & adv of the CoM.
A K Kraipak v UoI – Candidate for
selection was also a member of the Selection Board – participated in
deliberation when his rival’s claims came up for deliberation – the court held
that the real question is not whether he was biased – the real question is
whether he was likely to be biased – Principle of natural justice – no one
should be a judge in his own case –
Kirti Deshmankar (Dr.) v UoI – M-i-L
of selected candidate had participated in the Selection Committee- reasonable ground to believe she was likely
to have been biased - justice should not only be done but also should have been
appeared to have been done.
Mr Tankha(learned counsel fr CM)
said theory of bias not applicable in this case – cited V C Shukla v
State(Delhi Admin) - wherein the vires
of the Special Court Act,1979 had been challenged. Under Section 5 of the
Special Court Act, sanction had to be granted by the Central Government.
Sub-section (2) of Section 5 provided that the sanction could not be called in
question by any Court. It had been submitted that this would enable an element of
bias or malice to operate by which the Central Government could prosecute
persons who are political opponents. This Court negatived this contention on
the ground that the power was vested in a very high authority and therefore it
could not be assumed
that it was likely to be abused.
This Court held that as the power was conferred on a high authority the
presumption would be that the power
would be exercised in a bonafide manner and according to law.
also relied upon the case of State
of Punjab vs. V.K. Khanna, reported in 2001 (2) SCC 330. In this case, two
senior IAS
Officers in the State of Punjab were
sought to be prosecuted after obtaining approval from the then Chief Minister
of Punjab. Thereafter, there was a change in the Government. The new Government
cancelled the sanction granted earlier. The question before the Court was
whether the action in withdrawing the sanction was fair and correct. This Court
held that fairness was synonymous with reasonableness and bias stood included
within the attributes and broader purview of the word "malice". This
Court held that mere general statements were not sufficient but that there must
be cogent evidence available to come to the conclusion that there existed a
bias which resulted in a miscarriage of justice.
Mr Tankhaalso cited Kumaon Mandal
Vikas Nigal Ltd. vs. Girja Shankar Pant, reported in 2001 (1) SCC 182. In this
case, the question was whether the Managing Director had a bias against the
Respondent therein. This Court held that mere apprehension of bias was not
sufficient but that there must be real danger of bias. It was held that the
surrounding circumstances must and ought to be collated and necessary
conclusion drawn therefrom. It was held that if on facts the conclusion was
otherwise inescapable that there existed a real danger of bias, the
administrative action could not be sustained. It was held that if, on the other
hand, the allegations pertaining to bias are rather fanciful, then the question
of declaring them to be unsustainable would not arise.
Contended – Doctrine of likelihood
of bias ws nt applicable in this case – Only in a case of “Apparent bias” exception to the general
rule wud apply
Two competing orders ( Governors vs
CoM) – office of Lokayukta held by former Judge of SC – unlikely to give an
unsubstantiated report – no intention of court to lay down law w.r.t this fact
– each case to be judged on its own merits
Well settled that administrative
power will stand vitiated if there is a manifest error of record or the
exercise of power is arbitrary. Similarly if power has been exercised on the
non consideration or non application of mind to relevant factors the exercise
of power will be regarded as manifestly erroneous.
SC:- no hesitation to hold that the
decision of the Council of Ministers was ex facie irrational whereas the
decision of the Governor was not. In a situation of this nature, the writ court
while exercising its jurisdiction under Article 226 of the Constitution of
India as also this Court under Articles 136 and 142 of the Constitution of
India can pass an appropriate order which would do complete justice to the
parties. The High Court unfortunately failed to consider this aspect of the
matter.
If, on these facts and
circumstances, the Governor cannot act in his own discretion there would be a
complete breakdown of the rule of law inasmuch as it would then be open for
Governments to refuse sanction in spite of overwhelming material showing that a
prima-facie case is made out. If, in cases where prima-facie case is clearly made
out, sanction to prosecute high functionaries is refused or withheld democracy
itself will be at stake. It would then lead to a situation where people in
power may break the law with impunity safe in the knowledge that they will not
be prosecuted as the requisite sanction will not be granted.
In our view, the doctrine of
necessity has no application to the facts of this case. Certainly the Council
of Ministers has to first consider grant of sanction. We also presume that a
high authority like the Council of Ministers will normally act in a bonafide
manner, fairly, honestly and in accordance with law. However, on those rare
occasions where on facts the bias becomes apparent and/or the decision of
Council of Ministers is shown to be irrational and based on non-consideration
of relevant factor, the Governor would be right, on the facts of that case, to
act in his own discretion and grant sanction.
(17) S.P. Gupta v. President of India, AIR
1982 SC 149 – discussed in topic VI (judges
transfer case) locus standi
(18) Epuru Sudhakar v. Govt of A.P., AIR
2006 SC 338 – pardon power to Governor(A72) to
Prez(A161) - Open to judicial review on ltd grounds – non application of mind –
mala fide – arbitrariness – irrelevant considerations , etc – pardoning power cannot be exercised on
the basis of caste or political reasons. [Congress worker murdered Telgu Desam
worker – death sentence – Governor granted pardon – AP HC quashed pardon –
appeal to SC – SC upheld HC]
(19) Rameshwar Prasad v. Union of India,
AIR 2006 SC 980 – Bihar assembly dissolution case +
Judicial review over immunity to Prez/Governor – discussed in Topic 9
Topic 4 -
Parliament & State legislatures
Composition of Parliament and State legislatures;
Qualification/Disqualification of Members; Legislative Procedure. Legislative
Privilege (articles 79 - 122, 168 - 212)
Art 79. Constitution of Parliament.
There shall be a Parliament for the Union which shall consist of the
President and two Houses to be known respectively as the Council of States and
the House of the People.
Art 80. Composition of the Council of States.
(1) 1[2[***] The Council of States] shall consist of-
(a) Twelve members to be nominated by the President in accordance
with the provisions of clause (3); and
(b) Not more than two hundred and thirty-eight representatives of
the States 3[and of the Union territories].
(2) The allocation of seats in the Council of States to be filled by
representatives of the States 3[and of the Union territories] shall be in accordance
with the provisions in that behalf contained in the Fourth Schedule.
(3) The members to be nominated by the President under sub-clause
(a) of clause (1) shall consist of persons having special knowledge or
practical experience in respect of such matters as the following, namely: -
Literature, science, art and social service.
(4) The representatives of each State 4[***] in the Council of
States shall be elected by the elected members of the Legislative Assembly of
the State in accordance with the system of proportional representation by means
of the single transferable vote.
(5) The representatives of the 5[Union territories] in the Council
of States shall be chosen in such manner as Parliament may by law prescribe.
Art 81. Composition of the House of the People.
(1) Subject to the provisions of article 331 9[***],] the House of
the People shall consist of-
(a) Not more than 2[five hundred and thirty members] chosen by
direct election from territorial constituencies in the States, and
(b) Not more than 3[twenty members] to represent the Union
territories, chosen in such manner as Parliament may by law provide.
(2) For the purposes of sub-clause (a) of clause (1), -
(a) There shall be allotted to each State a number of seats in the
House of the People in such manner that the ratio between that number and the
population of the State is, so far as practicable, the same for all States; and
(b) Each State shall be divided into territorial constituencies in
such manner that the ratio between the population of each constituency and the
number of seats allotted to it is, so far as practicable, the same throughout
the State:
Provided that the provisions of sub-clause (a) of this clause shall
not be applicable for the purpose of allotment of seats in the House of the
People to any State so long as the population of that State does not exceed six
millions.]
(3) In this article, the expression "population" means the
population as ascertained at the last preceding census of which the relevant
figures have been published:
Provided that the reference in this clause to the last preceding
census of which the relevant figures have been published shall, until the
relevant figures for the first census taken after the year 6[2026] have been
published, 7[be construed, (i) for the purposes of sub-clause (a) of clause (2)
and the proviso to that clause, as a reference to the 1971 census; and (ii) for
the purpose of sub-clause (b) of clause (2) as a reference to the 8[2001]
census
Art 82. Readjustment after each census.
Readjustment after each census.
Upon the completion of each census, the allocation of seats in the
House of the People to the States and the division of each State into
territorial constituencies shall be readjusted by such authority and in such
manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in
the House of the People until the dissolution of the then existing House:]
Provided further that such readjustment shall take effect from such
date as the President may, by order, specify and until such readjustment takes
effect, any election to the House may be held on the basis of the territorial
constituencies existing before such readjustment:
Provided also that until the relevant figures for the first census
taken after the year 2[2026] have been published, it shall not be necessary to
3[readjust -
(i) the allocation of seats in the House of the People to the States
as readjusted on the basis of the 1971 census; and
(ii) the division of each State into territory constituencies as may
be readjusted on the basis of the 4[2001] census, under this article]]
Art 83. Duration of Houses of Parliament.
(1) The Council of States shall not be subject to dissolution, but
as nearly as possible one-third of the members thereof shall retire as soon as
may be on the expiration of every second year in accordance with the provisions
made in that behalf by Parliament by law.
(2) The House of the People, unless sooner dissolved, shall continue
for 1[five years] from the date appointed for its first meeting and no longer
and the expiration of the said period of 1[five years] shall operate as a
dissolution of the House:
Provided that the said period may, while a Proclamation of Emergency
is in operation, be extended by Parliament by law for a period not exceeding
one year at a time and not extending in any case beyond a period of six months
after the Proclamation has ceased to operate.
Art 84. Qualification for membership of Parliament.
A person shall not be qualified to be chosen to fill a seat in
Parliament unless he-
1[(a) Is a citizen of India, and makes and subscribes before some
person authorized in that behalf by the Election Commission an oath or
affirmation according to the form set out for the purpose in the Third Schedule;]
(b) Is, in the case of a
seat in the Council of States, not less than thirty years of age and, in the
case of a seat in the House of the People, not less than twenty-five years of
age; and
(c) Possesses such other
qualifications as may be prescribed in that behalf by or under any law made by
Parliament.
Art 85. Sessions of Parliament, prorogation and dissolution.
(1) The President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six months
shall not intervene between its last sitting in one session and the date
appointed for its first sitting in the next session.
(2) The President may from time to time-
(a) Prorogue the House or either House;
(b) Dissolve the House of the People.
Art 86. Right of President to address and send messages to Houses.
(1) The President may address either House of Parliament or both
Houses assembled together, and for that purpose require the attendance of
members.
(2) The President may send messages to either House of Parliament,
whether with respect to a Bill then pending in Parliament or otherwise, and a
House to which any message is so sent shall with all convenient despatch
consider any matter required by the message to be taken into consideration.
Art 87. Special address by the President.
(1) At the commencement of 1[the first session after each general
election to the House of the People and at the commencement of the first
session of each year] the President shall address both Houses of Parliament
assembled together and inform Parliament of the causes of its summons.
(2) Provision shall be made by the rules regulating the procedure of
either House for the allotment of time for discussion of the matters referred
to in such address 2[***].
Art 88. Rights of Ministers and Attorney-General as respects Houses.
Every Minister and the Attorney-General of India shall have the
right to speak in, and otherwise to take part in the proceedings of, either
House, any joint sitting of the Houses, and any committee of Parliament of
which he may be named a member, but shall not by virtue of this article be
entitled to vote.
Art 89. The Chairman and Deputy Chairman of the Council of States.
(1) The Vice-President of India shall be ex officio Chairman of the
Council of States.
(2) The Council of States shall, as soon as may be, choose a member
of the Council to be Deputy Chairman thereof and, so often as the office of
Deputy Chairman becomes vacant, the Council shall choose another member to be
Deputy Chairman thereof.
Art 90. Vacation and resignation of, and removal from, the office of
Deputy Chairman.
A member holding office as Deputy Chairman of the Council of States-
(a) Shall vacate his office if he ceases to be a member of the
Council;
(b) May at any time, by writing under his hand addressed to the
Chairman, resign his office; and
(c) May be removed from his office by a resolution of the Council
passed by a majority of all the then members of the Council:
Provided that no resolution for the purpose of clause (c) shall be moved
unless at least fourteen days' notice has been given of the intention to move
the resolution.
Art 91. Power of the Deputy Chairman or other person to perform the
duties of the office of, or to act as, Chairman.
(1) While the office of Chairman is vacant, or during any period
when the Vice-President is acting as, or discharging the functions of,
President, the duties of the office shall be performed by the Deputy Chairman,
or, if the office of Deputy Chairman is also vacant, by such member of the Council
of States as the President may appoint for the purpose.
(2) During the absence of the Chairman from any sitting of the
Council of States the Deputy Chairman, or, if he is also absent, such person as
may be determined by the rules of procedure of the Council, or, if no such
person is present, such other person as may be determined by the Council, shall
act as Chairman.
Art 92. The Chairman or the Deputy Chairman not to preside while a
resolution for his removal from office is under consideration.
(1) At any sitting of the Council of States, while any resolution
for the removal of the Vice-President from his office is under consideration,
the Chairman, or while any resolution for the removal of the Deputy Chairman
from his office is under consideration, the Deputy Chairman, shall not, though
he is present, preside, and the provisions of clause (2) of article 91 shall
apply in relation to every such sitting as they apply in relation to a sitting
from which the Chairman, or, as the case may be, the Deputy Chairman, is
absent.
(2) The Chairman shall have the right to speak in, and otherwise to
take part in the proceedings of, the Council of States while any resolution for
the removal of the Vice-President from his office is under consideration in the
Council, but, notwithstanding anything in article 100, shall not be entitled to
vote at all on such resolution or on any other matter during such proceedings.
Art 93. The Speaker and Deputy Speaker of the House of the People.
The House of the People shall, as soon as may be, choose two members
of the House to be respectively Speaker and Deputy Speaker thereof and, so
often as the office of Speaker or Deputy Speaker becomes vacant, the House
shall choose another member to be Speaker or Deputy Speaker, as the case may
be.
Art 94. Vacation and resignation of, and removal from, the offices
of Speaker and Deputy Speaker.
A member holding office as Speaker or Deputy Speaker of the House of
the People-
(a) Shall vacate his office if he ceases to be a member of the House
of the People;
(b) May at any time, by writing under his hand addressed, if such
member is the Speaker, to the Deputy Speaker, and if such member is the Deputy
Speaker, to the Speaker, resign his office; and
(c) May be removed from his office by a resolution of the House of
the People passed by a majority of all the then members of the House:
Provided that no resolution for the purpose of clause (c) shall be
moved unless at least fourteen days' notice has been given of the intention to
move the resolution:
Provided further that, whenever the House of the People is
dissolved, the Speaker shall not vacate his office until immediately before the
first meeting of the House of the People after the dissolution.
Art 95. Power of the Deputy Speaker or other person to perform the
duties of the office of, or to act as, Speaker.
(1) While the office of Speaker is vacant, the duties of the office
shall be performed by the Deputy Speaker or, if the office of Deputy Speaker is
also vacant, by such member of the House of the People as the President may
appoint for the purpose.
(2) During the absence of the Speaker from any sitting of the House
of the People the Deputy Speaker or, if he is also absent, such person as may
be determined by the rules of procedure of the House, or, if no such person is
present, such other person as may be determined by the House, shall act as
Speaker.
Art 96. The Speaker or the Deputy Speaker not to preside while a
resolution for his removal from office is under consideration.
(1) At any sitting of the House of the People, while any resolution
for the removal of the Speaker from his office is under consideration, the
Speaker, or while any resolution for the removal of the Deputy Speaker from his
office is under consideration, the Deputy Speaker, shall not, though he is
present, preside, and the provisions of clause (2) of article 95 shall apply in
relation to every such sitting as they apply in relation to a sitting from
which the Speaker, or, as the case may be, the Deputy Speaker, is absent.
(2) The Speaker shall have the right to speak in, and otherwise to
take part in the proceedings of, the House of the People while any resolution
for his removal from office is under consideration in the House and shall,
notwithstanding anything in article 100, be entitled to vote only in the first
instance on such resolution or on any other matter during such proceedings but
not in the case of an equality of votes.
Art 97. Salaries and allowances of the Chairman and Deputy Chairman
and the Speaker and Deputy Speaker.
There shall be paid to the Chairman and the Deputy Chairman of the
Council of States, and to the Speaker and the Deputy Speaker of the House of
the People, such salaries and allowances as may be respectively fixed by
Parliament by law and, until provision in that behalf is so made, such salaries
and allowances as are specified in the Second Schedule
Art 98. Secretariat of Parliament.
(1) Each House of Parliament shall have a separate secretarial
staff:
Provided that nothing in this clause shall be construed as
preventing the creation of posts common to both Houses of Parliament.
(2) Parliament may by law regulate the recruitment, and the
conditions of service of persons appointed, to the secretarial staff of either
House of Parliament.
(3) Until provision is made by Parliament under clause (2), the
President may, after consultation with the Speaker of the House of the People
or the Chairman of the Council of States, as the case may be, make rules
regulating the recruitment, and the conditions of service of persons appointed,
to the secretarial staff of the House of the People or the Council of States,
and any rules so made shall have effect subject to the provisions of any law
made under the said clause.
Art 99. Oath or affirmation by members.
Every member of either House of Parliament shall, before taking his
seat, make and subscribe before the President, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out for the
purpose in the Third Schedule.
Art 100. Voting in Houses, power of Houses to act notwithstanding
vacancies and quorum.
(1) Save as otherwise provided in this Constitution, all questions
at any sitting of either House or joint sitting of the Houses shall be
determined by a majority of votes of the members present and voting, other than
the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker,
or person acting as such, shall not vote in the first instance, but shall have
and exercise a casting vote in the case of an equality of votes.
(2) Either House of Parliament shall have power to act
notwithstanding any vacancy in the membership thereof, and any proceedings in
Parliament shall be valid notwithstanding that it is discovered subsequently
that some person who was not entitled so to do sat or voted or otherwise took
part in the proceedings.
(3) Until Parliament by law otherwise provides, the quorum to
constitute a meeting of either House of Parliament shall be one-tenth of the
total number of members of the House.
(4) If at any time during a meeting of a House there is no quorum,
it shall be the duty of the Chairman or Speaker, or person acting as such,
either to adjourn the House or to suspend the meeting until there is a quorum.
Art 101. Vacation of seats.
(1) No person shall be a member of both Houses of Parliament and
provision shall be made by Parliament by law for the vacation by a person who
is chosen a member of both Houses of his seat in one House or the other.
(2) No person shall be a member both of Parliament and of a House of
the Legislature of a State 1[***], and if a person is chosen a member both of
Parliament and of a House of the Legislature of 2[a State], then, at the
expiration of such period as may be specified in rules 3made by the President,
that person's seat in Parliament shall become vacant, unless he has previously
resigned his seat in the Legislature of the State.
(3) If a member of either House of Parliament-
(a) Becomes subject to any
of the disqualifications mentioned in 4[clause (1) or clause (2) of article
102], or
5[(b) Resigns his seat by writing under his hand addressed to the
Chairman or the Speaker, as the case may be, and his resignation is accepted by
the Chairman or the Speaker, as the case may be,] his seat shall thereupon become
vacant:
6[Provided that in the case of any resignation referred to in
sub-clause (b), if from information received or otherwise and after making such
inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not
accept such resignation.]
(4) If for a period of sixty days a member of either House of
Parliament is without permission of the House absent from all meetings thereof,
the House may declare his seat vacant: Provided that in computing the said
period of sixty days no account shall be taken of any period during which the
House is prorogued or is adjourned for more than four consecutive days.
Art 102. Disqualifications for membership.
(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament-
(a) If he holds any office of profit under the Government of India
or the Government of any State, other than an office declared by Parliament by
law not to disqualify its holder;
(b) If he is of unsound mind and stands so declared by a competent
court;
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of allegiance or
adherence to a foreign State;
(e) If he is so disqualified by or under any law made by Parliament.
1[Explanation. For the purposes of this clause] a person shall not
be deemed to hold an office of profit under the Government of India or the
Government of any State by reason only that he is a Minister either for the
Union or for such State.
2[(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth Schedule.]
Art 103. Decision on questions as to disqualifications of members.
(1) If any question arises as to whether a member of either House of
Parliament has become subject to any of the disqualifications mentioned in
clause (1) of article 102, the question shall be referred for the decision of
the President and his decision shall be final.
(2) Before giving any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act according to
such opinion.
Art 104. Penalty for sitting and voting before making oath or
affirmation under article 99 or when not qualified or when disqualified.
If a person sits or votes as a member of either House of Parliament
before he has complied with the requirements of article 99, or when he knows
that he is not qualified or that he is disqualified for membership thereof, or
that he is prohibited from so doing by the provisions of any law made by
Parliament, he shall be liable in respect of each day on which he so sits or
votes to a penalty of five hundred rupees to be recovered as a debt due to the
Union.
Art 105. Powers, privileges, etc., of the Houses of Parliament and
of the members and committees thereof.
(1) Subject to the provisions of this Constitution and to the rules
and standing orders regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in
any court in respect of anything said or any vote given by him in Parliament or
any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each
House of Parliament, and of the members and the committees of each House, shall
be such as may from time to time be defined by Parliament by law, and, until so
defined, 1[shall be those of that House and of its members and committees
immediately before the coming into force of section 15 of the Constitution
(Forty-fourth Amendment) Act, 1978].
(4) The provisions of clauses (1), (2) and (3) shall apply in
relation to persons who by virtue of this Constitution have the right to speak
in, and otherwise to take part in the proceedings of, a House of Parliament or
any committee thereof as they apply in relation to members of Parliament.
Art 106. Salaries and allowances of members.
Members of either House of Parliament shall be entitled to receive
such salaries and allowances as may from time to time be determined by
Parliament by law and, until provision in that respect is so made, allowances
at such rates and upon such conditions as were immediately before the
commencement of this Constitution applicable in the case of members of the Constituent
Assembly of the Dominion of India
Art 107. Provisions as to introduction and passing of Bills.
(1) Subject to the provisions of articles 109 and 117 with respect
to Money Bills and other financial Bills, a Bill may originate in either House
of Parliament.
(2) Subject to the provisions of articles 108 and 109, a Bill shall
not be deemed to have been passed by the Houses of Parliament unless it has
been agreed to by both Houses, either without amendment or with such amendments
only as are agreed to by both Houses.
(3) A Bill pending in Parliament shall not lapse by reason of the
prorogation of the Houses.
(4) A Bill pending in the Council of States which has not been
passed by the House of the People shall not lapse on dissolution of the House
of the People.
(5) A Bill which is pending in the House of the People, or which
having been passed by the House of the People is pending in the Council of
States, shall, subject to the provisions of article 108, lapse on a dissolution
of the House of the People.
Art 108. Joint sitting of both Houses in certain cases.
(1) If after a Bill has been passed by one House and transmitted to
the other House-
(a) The Bill is rejected by the other House; or
(b) The Houses have finally disagreed as to the amendments to be made
in the Bill; or
(c) More than six months elapse from the date of the reception of
the Bill by the other House without the Bill being passed by it, the President
may, unless the Bill has elapsed by reason of a dissolution of the House of the
People, notify to the Houses by message if they are sitting or by public
notification if they are not sitting, his intention to summon them to meet in a
joint sitting for the purpose of deliberating and voting on the Bill: Provided
that nothing in this clause shall apply to a Money Bill.
(2) In reckoning any such period of six months as is referred to in
clause (1), no account shall be taken of any period during which the House
referred to in sub-clause (c) of that clause is prorogued or adjourned for more
than four consecutive days.
(3) Where the President has under clause (1) notified his intention
of summoning the Houses to meet in a joint sitting, neither House shall proceed
further with the Bill, but the President may at any time after the date of his
notification summon the Houses to meet in a joint sitting for the purpose
specified in the notification and, if he does so, the Houses shall meet
accordingly.
(4) If at the joint sitting of the two Houses the Bill, with such
amendments, if any, as are agreed to in joint sitting, is passed by a majority
of the total number of members of both Houses present and voting, it shall be
deemed for the purposes of this Constitution to have been passed by both
Houses:
Provided that at a joint sitting-
(a) If the Bill, having been passed by one House, has not been
passed by the other House with amendments and returned to the House in which it
originated, no amendment shall be proposed to the Bill other than such
amendments (if any) as are made necessary by the delay in the passage of the
Bill;
(b) If the Bill has been so passed and returned, only such
amendments as aforesaid shall be proposed to the Bill and such other amendments
as are relevant to the matters with respect to which the Houses have not agreed
and the decision of the person presiding as to the amendments which are
admissible under this clause shall be final.
(5) A joint sitting may be held under this article and a Bill passed
thereat, notwithstanding that a dissolution of the House of the People has
intervened since the President notified his intention to summon the Houses to
meet therein.
Art 109. Special procedure in respect of Money Bills.
(1) A Money Bill shall not be introduced in the Council of States.
(2) After a Money Bill has been passed by the House of the People it
shall be transmitted to the Council of States for its recommendations and the
Council of States shall within a period of fourteen days from the date of its
receipt of the Bill return the Bill to the House of the People with its
recommendations and the House of the People may thereupon either accept or
reject all or any of the recommendations of the Council of States.
(3) If the House of the People accepts any of the recommendations of
the Council of States, the Money Bill shall be deemed to have been passed by
both Houses with the amendments recommended by the Council of States and
accepted by the House of the People.
(4) If the House of the People does not accept any of the
recommendations of the Council of States, the Money Bill shall be deemed to
have been passed by both Houses in the form in which it was passed by the House
of the People without any of the amendments recommended by the Council of
States.
(5) If a Money Bill passed by the House of the People and
transmitted to the Council of States for its recommendations is not returned to
the House of the People within the said period of fourteen days, it shall be
deemed to have been passed by both Houses at the expiration of the said period
in the form in which it was passed by the House of the People.
Art 110. Definition of Money Bills.
(1) For the purposes of this Chapter, a Bill shall be deemed to be a
Money Bill if it contains only provisions dealing with all or any of the
following matters, namely: -
(a) The imposition, abolition, remission, alteration or regulation
of any tax;
(b) The regulation of the borrowing of money or the giving of any
guarantee by the Government of India, or the amendment of the law with respect
to any financial obligations undertaken or to be undertaken by the Government
of India;
(c) The custody of the Consolidated Fund or the Contingency Fund of
India, the payment of moneys into or the withdrawal of moneys from any such
Fund;
(d) The appropriation of moneys out of the Consolidated Fund of
India;
(e) The declaring of any expenditure to be expenditure charged on
the Consolidated Fund of India or the increasing of the amount of any such
expenditure;
(f) The receipt of money on account of the Consolidated Fund of
India or the public account of India or the custody or issue of such money or
the audit of the accounts of the Union or of a State; or
(g) Any matter incidental to any of the matters specified in
sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason only
that it provides for the imposition of fines or other pecuniary penalties, or
for the demand or payment of fees for licenses or fees for services rendered,
or by reason that it provides for the imposition, abolition, remission,
alteration or regulation of any tax by any local authority or body for local
purposes.
(3) If any question arises whether a Bill is a Money Bill or not,
the decision of the Speaker of the House of the People thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is transmitted
to the Council of States under article 109, and when it is presented to the
President for assent under article 111, the certificate of the Speaker of the
House of the People signed by him that it is a Money Bill.
Art 111. Assent to Bills.
When a Bill has been passed by the Houses of Parliament, it shall be
presented to the President, and the President shall declare either that he
assents to the Bill, or that he withholds assent therefrom:
Provided that the President may, as soon as possible after the presentation
to him of a Bill for assent, return the Bill if it is not a Money Bill to the
Houses with a message requesting that they will reconsider the Bill or any
specified provisions thereof and, in particular, will consider the desirability
of introducing any such amendments as he may recommend in his message, and when
a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if
the Bill is passed again by the Houses with or without amendment and presented
to the President for assent, the President shall not withhold assent therefrom.
Art 112. Annual financial statement.
(1) The President shall in respect of every financial year cause to
be laid before both the Houses of Parliament a statement of the estimated
receipts and expenditure of the Government of India for that year, in this Part
referred to as the "annual financial statement".
(2) The estimates of expenditure embodied in the annual financial
statement shall show separately-
(a) The sums required to meet expenditure described by this
Constitution as expenditure charged upon the Consolidated Fund of India; and
(b) The sums required to meet other expenditure proposed to be made
from the Consolidated Fund of India, and shall distinguish expenditure on
revenue account from other expenditure.
(3) The following expenditure shall be expenditure charged on the
Consolidated Fund of India-
(a) The emoluments and allowances of the President and other
expenditure relating to his office;
(b) The salaries and allowances of the Chairman and the Deputy
Chairman of the Council of States and the Speaker and the Deputy Speaker of the
House of the People;
(c) Debt charges for which the Government of India is liable
including interest, sinking fund charges and redemption charges, and other
expenditure relating to the raising of loans and the service and redemption of
debt;
(d) (i) The salaries, allowances and pensions payable to or in
respect of Judges of the Supreme Court;
(ii) The pensions payable
to or in respect of Judges of the Federal Court;
(iii) The pensions payable
to or in respect of Judges of any High Court which exercises jurisdiction in
relation to any area included in the territory of India or which at any time
before the commencement of this Constitution exercised jurisdiction in relation
to any area included in 1[a Governor's Province of the Dominion of India];
(e) The salary, allowances and pension payable to or in respect of
the Comptroller and Auditor-General of India;
(f) Any sums required to satisfy any judgment, decree or award of
any court or arbitral tribunal;
(g) Any other expenditure declared by this Constitution or by
Parliament by law to be so charged.
Art 113. Procedure in Parliament with respect to estimates.
(1) So much of the estimates as relates to expenditure charged upon
the Consolidated Fund of India shall not be submitted to the vote of
Parliament, but nothing in this clause shall be construed as preventing the
discussion in either House of Parliament of any of those estimates.
(2) So much of the said estimates as relates to other expenditure
shall be submitted in the form of demands for grants to the House of the
People, and the House of the People shall have power to assent, or to refuse to
assent, to any demand, or to assent to any demand subject to a reduction of the
amount specified therein.
(3) No demand for a grant shall be made except on the recommendation
of the President.
Art 114. Appropriation Bills.
(1) As soon as may be after the grants under article 113 have been
made by the House of the People, there shall be introduced a Bill to provide
for the appropriation out of the Consolidated Fund of India of all moneys
required to meet-
(a) The grants so made by the House of the People; and
(b) The expenditure charged on the Consolidated Fund of India but
not exceeding in any case the amount shown in the statement previously laid
before Parliament.
(2) No amendment shall be proposed to any such Bill in either House
of Parliament which will have the effect of varying the amount or altering the
destination of any grant so made or of varying the amount of any expenditure
charged on the Consolidated Fund of India, and the decision of the person
presiding as to whether an amendment is inadmissible under this clause shall be
final.
(3) Subject to the provisions of articles 115 and 116, no money
shall be withdrawn from the Consolidated Fund of India except under
appropriation made by law passed in accordance with the provisions of this
article.
Art 115. Supplementary, additional or excess grants.
(1) The President shall-
(a) If the amount authorised by any law made in accordance with the
provisions of article 114 to be expended for a particular service for the
current financial year is found to be insufficient for the purposes of that
year or when a need has arisen during the current financial year for
supplementary or additional expenditure upon some new service not contemplated
in the annual financial statement for that year, or
(b) If any money has been spent on any service during a financial
year in excess of the amount granted for that service and for that year, cause
to be laid before both the Houses of Parliament another statement showing the
estimated amount of that expenditure or cause to be presented to the House of
the People a demand for such excess, as the case any be.
(2) The provisions of articles 112, 113 and 114 shall have effect in
relation to any such statement and expenditure or demand and also to any law to
be made authorising the appropriation of moneys out of the Consolidated Fund of
India to meet such expenditure or the grant in respect of such demand as they
have effect in relation to the annual financial statement and the expenditure
mentioned therein or to a demand for a grant and the law to be made for the
authorisation of appropriation of moneys out of the Consolidated Fund of India
to meet such expenditure or grant.
Art 116. Votes on account, votes of credit and exceptional grants.
(1) Notwithstanding anything in the foregoing provisions of this
Chapter, the House of the People shall have power-
(a) To make any grant in advance in respect of the estimated
expenditure for a part of any financial year pending the completion of the
procedure prescribed in article 113 for the voting of such grant and the
passing of the law in accordance with the provisions of article 114 in relation
to that expenditure;
(b) To make a grant for meeting an unexpected demand upon the
resources of India when on account of the magnitude or the indefinite character
of the service the demand cannot be stated with the details ordinarily given in
an annual financial statement;
(c) To make an exceptional grant which forms no part of the current
service of any financial year; and Parliament shall have power to authorise by
law the withdrawal of moneys from the Consolidated Fund of India for the
purposes for which the said grants are made.
(2) The provisions of articles 113 and 114 shall have effect in
relation to the making of any grant under clause (1) and to any law to be made
under that clause as they have effect in relation to the making of a grant with
regard to any expenditure mentioned in the annual financial statement and the
law to be made for the authorisation of appropriation of moneys out of the
Consolidated Fund of India to meet such expenditure.
Art 117. Special provisions as to financial Bills.
(1) A Bill or amendment making provision for any of the matters
specified in sub-clauses (a) to (f) of clause (1) of article 110 shall not be
introduced or moved except on the recommendation of the President and a Bill
making such provision shall not be introduced in the Council of States:
Provided that no recommendation shall be required under this clause
for the moving of an amendment making provision for the reduction or abolition
of any tax.
(2) A Bill or amendment shall not be deemed to make provision for
any of the matters aforesaid by reason only that it provides for the imposition
of fines or other pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any
local authority or body for local purposes.
(3) A Bill which, if enacted and brought into operation, would
involve expenditure from the Consolidated Fund of India shall not be passed by
either House of Parliament unless the President has recommended to that House
the consideration of the Bill.
Art 118. Rules of procedure.
(1) Each House of Parliament may make rules for regulating, subject
to the provisions of this Constitution, its procedure and the conduct of its
business.
(2) Until rules are made under clause (1), the rules of procedure
and standing orders in force immediately before the commencement of this
Constitution with respect to the Legislature of the Dominion of India shall
have effect in relation to Parliament subject to such modifications and
adaptations as may be made therein by the Chairman of the Council of States or
the Speaker of the House of the People, as the case may be.
(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the People, may make rules as
to the procedure with respect to joint sittings of, and communications between,
the two Houses.
(4) At a joint sitting of the two Houses the Speaker of the House of
the People, or in his absence such person as may be determined by rules of
procedure made under clause (3), shall preside.
Art 119. Regulation by law of procedure in Parliament in relation to
financial business.
Parliament may, for the purpose of the timely completion of
financial business, regulate by law the procedure of, and the conduct of
business in, each House of Parliament in relation to any financial matter or to
any Bill for the appropriation of moneys out of the Consolidated Fund of India,
and, if and so far as any provision of any law so made is inconsistent with any
rule made by a House of Parliament under clause (1) of article 118 or with any
rule or standing order having effect in relation to Parliament under clause (2)
of that article, such provision shall prevail.
Art 120. Language to be used in Parliament.
(1) Notwithstanding anything in Part XVII, but subject to the
provisions of article 348, business in Parliament shall be transacted in Hindi
or in English:
Provided that the Chairman of the Council of States or Speaker of
the House of the People, or person acting as such, as the case may be, may
permit any member who cannot adequately express himself in Hindi or in English
to address the House in his mother-tongue.
(2) Unless Parliament by law otherwise provides, this article shall,
after the expiration of a period of fifteen years from the commencement of this
Constitution, have effect as if the words "or in English" were
omitted therefrom.
Art 121. Restriction on discussion in Parliament.- No discussion
shall take place in Parliament with respect to the conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties except upon a
motion for presenting an address to the President praying for the removal of
the Judge as hereinafter provided.
Art 122. Courts not to inquire into proceedings of Parliament
(1) The validity of any proceedings in Parliament shall not be
called in question on the ground of any alleged irregularity of procedure
(2) No officer or member of Parliament in whom powers are vested by
or under this Constitution for regulating procedure or the conduct of business,
or for maintaining order, in Parliament shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers
Article 168 {Constitution of Legislatures in States}
For every State there
shall be a Legislature which shall consist of the Governor, and -
in the States of
Bihar, Maharashtra, Karnatatka, and Uttar Pradesh,Jammu Kashmir and Andhra
Pradesh two Houses;
in other States, one
House.
Where there are two Houses
of the Legislature of a State, one shall be known as the Legislative Council
and the other as the Legislative Assembly, and where there is only one House,
it shall be known as the Legislative Assembly.
Article 169 {Abolition or creation of Legislative Councils in
States}
Notwithstanding anything
in article 168, Parliament may by law provide for the abolition of the
Legislative Council of a State having such a Council or for the creation of
such a Council in a State having no such Council, if the Legislative Assembly
of the State passes a resolution to that effect by a majority of the total
membership of the Assembly and by a majority of not less than two-thirds of the
members of the Assembly present and voting.
Any law referred to in
clause (1) shall contain such provisions for the amendment of this Constitution
as may be necessary to give effect to the provisions of the law and may also
contain such supplemental, incidental and consequential provisions as
Parliament may deem necessary.
No such law as aforesaid
shall be deemed to be an amendment of this Constitution for the purposes of
article 368.
Article 170 {Composition of the Legislative Assemblies}
Subject to the provisions
of article 333, the Legislative Assembly of each State shall consists of not
more than five hundred, and not less than sixty, members chosen by direct
election from territorial constituencies in the State.
For the purposes of clause
(1), each State shall be divided into territorial constituencies in such manner
that the ratio between the population of each constituency and the number of
seats allotted to it shall, so far as practicable, be the same throughout the
State. [Explanation: In this clause, the expression "population"
means the population as ascertained at the last preceding census of which the
relevant figures have been published: Provided that the reference in this Explanation
to the last preceding census of which the relevant figures have been published
shall, until the relevant figures for the first census taken after the year
2000 have been published, be construed as a reference to the 1971 census.]
Upon the completion of each
census, the total number of seats in the Legislative Assembly of each State and
the division of each State into territorial constituencies shall be readjusted
by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the
Legislative Assembly until the dissolution of the then existing Assembly:
Provided further that such readjustment shall take effect from such date as the
President may, by order, specify and until such readjustment takes effect, any
election to the Legislative Assembly may be held on the basis of the
territorial constituencies existing before such readjustment: Provided also
that until the relevant figures for the first census taken after the year 2000
have been published, it shall not be necessary to readjust the total number of
seats in the Legislative Assembly of each State and the division of such State
into territorial constituencies under this clause.
Article 171 {Composition of the Legislative Council}
The total number of
members in the Legislative Council of a State having such a Council shall not
exceed one-third of the total number of members in the Legislative Assembly of
that State: Provided that the total number of members in the Legislative
Council of a State shall in no case be less than forty.
Until Parliament by law
otherwise provides, the composition of the Legislative Council of a State shall
be as provided in clause (3).
Of the total number of
members of the Legislative Council of a State -
as nearly as may be,
one-third shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State
as Parliament may by law specify;
as nearly as may be,
one-twelfth shall be elected by electorates consisting of persons residing in
the State who have been for at least three years graduates of any university in
the territory of India or have been for at least three years in possession of
qualifications prescribed by or under any law made by Parliament as equivalent
to that of a graduate of any such university;
as nearly as may be,
one-twelfth shall be elected by electorates consisting of persons who have been
for at least three years engaged in teaching in such educational institutions
within the State, not lower in standard than that of a secondary school, as may
be prescribed by or under any law made by Parliament;
as nearly as may be,
one-third shall be elected by the members of the Legislative Assembly of the
State from amongst persons who are not members of the Assembly;
the remainder shall be
nominated by the Governor in accordance with the provisions of clause (5).
The members to be elected
under sub-clause (a), (b) and (c) of clause (3) shall be chosen in such
territorial constituencies as may be prescribed by or under any law made by
Parliament, and the elections under the said sub-clauses and under sub-clause
(d) of the said clause shall be held in accordance with the system of proportional
representation by means of the single transferable vote.
The members to be
nominated by the Governor under sub-clause (e) of clause (3) shall consists of
persons having special knowledge or practical experience in respect of such
matters as the following, namely: - Literature, science, art, co-operative
movement and social service.
Article 172 {Duration of States Legislatures}
Every Legislative Assembly
of every State, unless sooner dissolved, shall continue for five years from the
date appointed for its first meeting and no longer and the expiration of the
said period of five years shall operate as a dissolution of the Assembly:
Provided that the said period may, while a Proclamation of Emergency is in
operation, be extended by Parliament by law for a period not exceeding one year
at a time and not extending in any case beyond a period of six months after the
Proclamation has ceased to operate.
The Legislative Council of
a State shall not be subject to dissolution, but as nearly as possible
one-third of the members thereof shall retire as soon as may be on the
expiration of every second year in accordance with the provisions made in that
behalf by Parliament by law.
Article 173 {Qualification for membership of the State Legislature}
A person shall not be qualified to be chosen to fill a seat in the
Legislature of a State unless he -
is a citizen of India, and
makes and subscribes before some person authorised in that behalf by the
Election Commission an oath or affirmation according to the form set out for
the purpose in the Third Schedule;
is, in the case of a seat
in the Legislative Assembly, not less than twenty-five years of age and, in the
case of a seat in the Legislative Council, not less that thirty years of age;
and
possesses such other
qualifications as may be prescribed in that behalf by or under any law made by
parliament.
Article 174 {Sessions of the State Legislature, prorogation and
dissolution}
The Governor shall from
time to time summon the House or each House of the Legislature of the state to
meet at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date appointed for
its first sitting in the next session.
The Governor may from time
to time -
prorogue the House or
either House;
dissolve the
Legislative Assembly.
Article 175 {Right of Governor to address and send messages to the
House or Houses}
The Governor may address
the Legislative Assembly or, in the case of a State having a Legislative
Council, either House of the Legislature of the State, or both Houses assembled
together, and may for that purpose require the attendance of members.
The Governor may send
messages to the House or Houses of the Legislature of the State, whether with
respect of a Bill then pending in the Legislature or otherwise, and a House to
which any message is so sent shall with all convenient despatch consider any
matter required by the message to be taken into consideration.
Article 176 {Special address by the Governor}
At the commencement of the
first session after each general election to the Legislative Assembly and at
the commencement of the first session of each year, the Governor shall address
the Legislative Assembly or, in the case of a State having a Legislative
Council, both Houses assembled together and inform the Legislature of the
causes of its summons.
Provision shall be made by
the rules regulating the procedure of the House or either House for the allotment
of time for discussion of the matters referred to in such address.
Article 177 {Rights of Ministers and Advocate-General as respects
the Houses}
Every Minister and the Advocate-General for a State shall have the
rights to speak in, and otherwise to take part in the proceedings of, the
Legislative Assembly of the State or, in the case of a State having a
Legislative Council, both Houses, and to speak in, and otherwise to take part
in the proceedings of, any committee of the Legislature of which he may be
named a member, but shall not, by virtue of this article, be entitled to vote.
Article 178 {The Speaker and Deputy Speaker of the Legislative
Assembly}
Every Legislative Assembly of a State shall, as soon as may be,
choose two members of the Assembly to be respectively Speaker and Deputy
Speaker thereof and, so often as the office of Speaker or Deputy Speaker
becomes vacant, the Assembly shall choose another member to be Speaker or
Deputy Speaker, as the case may be.
Article 179 {Vacation and resignation of, and removal from, the
offices of Speaker and Deputy Speaker}
A member holding office as Speaker or Deputy Speaker of an Assembly
-
shall vacate his office if
he ceases to be a member of the Assembly;
may at any time by writing
under his hand addressed, if such members is the Speaker, to the Deputy
Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his
office; and
may be removed from his
office by a resolution of the Assembly passed by a majority of all the then members
of the Assembly:
Provided that no
resolution for the purpose of clause (c) shall be moved unless at least
fourteen days' notice has been given of the intention to move the resolution:
Provided further that,
whenever the Assembly is dissolved, the speaker shall not vacate his office
until immediately before the first meeting of the Assembly after the
dissolution.
Article 180 {Power of the Deputy Speaker or other person to perform
the duties of the office of, or to act as, Speaker}
While the office of
Speaker is vacant, the duties of the office shall be performed by the Deputy
Speaker or, if the office of Deputy speaker is also vacant, by such member of
the Assembly as the Governor may appoint for the purpose.
During the absence of the Speaker
from any sitting of the Assembly the Deputy Speaker or, if he is also absent,
such person as may be determined by the rules of procedure of the Assembly, or,
if no such person is present, such other person as may be determined by the
Assembly, shall act as Speaker.
Article 181 {The Speaker or the Deputy Speaker not to preside while
a resolution for his removal from office is under consideration}
At any sitting of the
Legislative Assembly, while any resolution for the removal of the Speaker from
his office is under consideration, the Speaker, or while any resolution for the
removal of the Deputy Speaker from his office is under consideration, the
Deputy Speaker, shall not, though he is present, preside, and the provisions of
clause (2) of article 180 shall apply in relation to every such sitting as they
apply in relation to a sitting from which the Speaker or, as the case may be,
the Deputy Speaker, is absent.
The Speaker shall have the
right to speak in, and otherwise to take part in the proceedings of, the
Legislative Assembly while any resolution for his removal from office is under
consideration in the Assembly and shall, notwithstanding anything in article
189, be entitled to vote only in the first instance on such resolution or on
any other matter during such proceedings but not in the case of an equality of
votes.
Article 182 {The Chairman and Deputy Chairman of the Legislative
Council}
The Legislative Council of every State having such Council shall, as
soon as may be, choose two members of the Council to be respectively Chairman
and Deputy Chairman thereof and, so often as the office of Chairman or Deputy
Chairman becomes vacant, the Council shall choose another member to be Chairman
or Deputy Chairman, as the case may be.
Article 183 {Vacation and resignation, of and removal from, the
offices of Chairman and Deputy Chairman}
A member holding office as Chairman or Deputy Chairman of a
Legislative Council -
shall vacate his office if
he ceases to be a member of the Council;
may at any time by writing
under his hand addressed, if such members is the Chairman, to the Deputy
Chairman, and if such member is the Deputy Chairman, to the Chairman, resign
his office; and
may be removed from his
office by a resolution of the Council passed by a majority of all the then
members of the Council: Provided that no resolution for the purpose of clause
(c) shall be moved unless at least fourteen days' notice has been given of the
intention to move the resolution.
Article 184 {Power of the Deputy Chairman or other person to perform
the duties of the office of, or to act as, Chairman}
While the office of
Chairman is vacant, the duties of the office shall be performed by the Deputy
Chairman or, if the office of Deputy Chairman is also vacant, but such members
of the Council as the Governor may appoint for the purpose.
During the absence of the
Chairman from any sitting of the Council the Deputy Chairman or, if he is also
absent, such person as may be determined by the rules of procedure of the
Council, or, if no such person is present, such other person as may be
determined by the Council, shall act as Chairman.
Article 185 {The Chairman or the Deputy Chairman not to preside
while a resolution for his removal from office is under consideration}
At any sitting of the
Legislative Council, while any resolution for the removal of the Chairman from
his office if under consideration, the Chairman, or while any resolution for
the removal of the Deputy Chairman from his office is under consideration, the
Deputy Chairman, shall not, though he is present, preside, and the provisions
of clause (2) of article 184 shall apply in relation to every such sitting as
they apply in relation to a sitting from which the Chairman or, as the case may
be, the Deputy Chairman is absent.
The Chairman shall have
the right to speak in, and otherwise to take part in the proceedings of, the
Legislative Council while any resolution for his removal from office is under
consideration in the Council and shall, notwithstanding anything in article
189, be entitled to vote only in the first instance on such resolution or on
any other matter during such proceedings but not in the case of an equality of
votes.
Article 186 {Salaries and allowances of the Speaker and Deputy
Speaker and the Chairman and Deputy Chairman}
There shall be paid to the Speaker and the Deputy Speaker of the
Legislative Assembly, and to the Chairman and the Deputy Chairman of the
Legislative Council, such salaries and allowances as may be respectively fixed
by the Legislature of the State by law and, until provision in that behalf is
so made, such salaries and allowances as are allowances as are specified in the
Second Schedule.
Article 187 {Secretariat of State Legislature}
The House or each House of
the Legislature of a state shall have a separate secretarial staff: Provided
that nothing in this clause shall, in the case of the Legislature of a State
having a Legislative Council, be construed as preventing the creation of posts
common to both Houses of such Legislature.
The Legislature of a State
may by law regulate the recruitment, and the conditions of service of persons
appointed, to the secretarial staff of the House or Houses of the Legislature
of the State.
Until provisions made by
the Legislature of the State under clause (2), the Governor may, after
consultation with the Speaker of the Legislative Assembly or the Chairman of
the Legislative Council, as the case may be, make rules regulating the
recruitment, and the conditions of service of persons appointed, to the
secretarial staff of the Assembly or the Council, and any rules so made shall
have effect subject to the provisions of any law made under the said clause.
Article 188 {Oath or affirmation by members}
Every member of the Legislative Assembly or the Legislative Council
of a State shall, before taking his seat, make and subscribe before the
Governor, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose in the Third
Schedule.
Article 189 {Voting in Houses, power of Houses to act
notwithstanding vacancies and quorum}
Save as otherwise provided
in this Constitution, all questions at any sitting of a House of the
Legislature of a State shall be determined by a majority of votes of the
members present and voting, other than the Speaker of Chairman, or person
acting as such. The Speaker or Chairman, or person acting as such, shall not
vote in the first instance, but shall have and exercise a casting vote in the
case of an equality of votes.
A House of the Legislature
of a State shall have power to act notwithstanding any vacancy in the
membership thereof, and any proceedings in the Legislature of a State shall be
valid notwithstanding that it is discovered subsequently that some person who
was not entitled so to do sat or voted or otherwise took part in the
proceedings.
Until the Legislature of
the State by law otherwise provides, the quorum to constitute a meeting of a
House of the Legislature of a State shall be ten members or one-tenth of the
total number of members of the House, whichever is greater.
If at any time during a
meeting of the Legislative Assembly of the Legislative Council of a State there
is no quorum, it shall be the duty of the Speaker or Chairman, or persons
acting as such, either to adjourn the House or to suspend the meeting until
there is a quorum.
Article 190 {Vacation of seats}
No person shall be a
member of both Houses of the Legislature of a State and provision shall be made
by the Legislature of the State by law for the vacation by a person who is
chosen a member of both Houses of his seat in one House or the other.
No person shall be a
member of the Legislatures of two or more States specified in the First Schedule
and if a person is chosen a member of the Legislatures of two or more such
States, then, at the expiration of such period as may be specified in rules
made by the President, that person's seat in the Legislatures of all such
States shall become vacant, unless he has previously resigned his seat in the
Legislatures of all but one of the States.
If a member of a House of
the Legislature of a State -
becomes subject to any
of the disqualifications mentioned in clause (1) or clause (2) of article 191;
or
resigns his seat by
writing under his hand addressed to the Speaker or the Chairman, as the case
may be, and his resignation is accepted by the Speaker or the Chairman, as the
case may be, his seat shall thereupon become vacant:
Provided that in the case
of any resignation referred to in sub-clause (b), if from information received
or otherwise and after making such inquiry as he thinks fit, the Speaker or the
Chairman, as the case may be, is satisfied that such resignation is not voluntary
or genuine, he shall not accept such resignation.
If for a period of sixty
days a member of a House of the Legislature of a State is without permission of
the House absent from all meetings thereof, the House may declare his seat
vacant: Provided that in computing the said period of sixty days no account
shall be taken of any period during which the House is prorogued or is
adjourned for more than four consecutive days.
Article 191 {Disqualification for membership}
A person shall be disqualified
for being chosen as, and for being, a member of the legislative Assembly or
Legislative Council of a State -
if he holds any office
of profit under the Government of India or the Government of any State
specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
if he is of unsound
mind and stands so declared by a competent court;
if he is an
undischarged insolvent;
if he is not a citizen
of India, or has voluntarily acquired the citizenship of a foreign State, or is
under any acknowledgment of allegiance or adherence to a foreign State;
if he is so
disqualified by or under any law made by Parliament.
[Explanation: For the
purposes of this clause, a person shall not be deemed to hold an office of
profit under the Government of India or the Government of any State specified
in the First Schedule by reason only that he is a Minister either for the Union
or for such State.]
A person shall be
disqualified for being a member of the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the Tenth Schedule.
Article 192 {Decision on question as to disqualifications of
members}
If any question arises as
to whether a member of a House of the Legislature of a State has become subject
to any of the disqualifications mentioned in clause (1) of article 191, the
question shall be referred for the decision of the Government and his decision
shall be final.
Before giving any decision
on any such question, the Governor shall obtain the opinion of the Election
Commission and shall act according to such opinion.
Article 193 {Penalty for sitting and voting before making oath or
affirmation under article 188 or when not qualified or when disqualified}
If a person sits or votes as a member of the Legislative Assembly or
the Legislative Council of a State before he has complied with the requirements
of article 188, or when he knows that he is not qualified or that he is disqualified
for membership thereof, or that he is prohibited from so doing by the
provisions of any law made by Parliament or the Legislature of the State, he
shall be liable in respect of each day on which he so sits or votes to a
penalty of five hundred rupees to be recovered as a debt due to the State.
Article 194 {Powers, privileges, etc., of the Houses of Legislatures
and of the members and committees thereof}
Subject to the provisions
of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the
Legislature of every State.
No member of the
Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of Such a Legislature of any
report, paper, votes or proceedings.
In other respects, the
powers, privileges and immunities of a House of the Legislature of a State, and
of the members and the committees of a House of such Legislature, shall be such
as may from time to time be defined by the Legislature by law, and until so
defined, shall be those of that House and of its members and committees
immediately before the coming into force of section 26 of the Constitution
(Forty-fourth Amendment) Act. 1978.
The provisions of clauses
(1), (2) and (3) shall apply in relation to persons who by virtue of this
Constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of the Legislature of a State or any committee thereof
as they apply in relation to members of that Legislature.
Article 195 {Salaries and allowances of members}
Members of the Legislative Assembly and the Legislative Council of a
State shall be entitled to receive such salaries and allowances as may from
time to time be determined, by the Legislature of the State by law and, until
provision in that respect is so made, salaries and allowances at such rates and
upon such conditions as were immediately before the commencement of this
Constitution applicable in the case of members of the Legislative Assembly of
the corresponding province.
Article 196 {Provisions as to introduction and passing of Bills}
Subject to the provisions
of article 198 and 207 with respect to Money Bills and other financial Bills, a
Bill may originate in either House of the Legislature of a State which has a
Legislative Council.
Subject to the provisions
of articles 197 and 198, a Bill shall not be deemed to have been passed by the
Houses of the Legislature of a State having a Legislative Council unless it has
been agreed to by both Houses, either without amendment or with such amendments
only as are agreed to by both Houses.
A Bill pending in the
Legislature of a State shall not lapse by reason of the prorogation of the
House or Houses thereof.
A Bill pending in the
Legislative Council of a State which has not been passed by the Legislative
Assembly shall not lapse on a dissolution of the Assembly.
A Bill which is pending in
the Legislative Assembly of a State, or which having been passed by the
Legislative Assembly is pending in the Legislative Council, shall lapse on a
dissolution of the Assembly.
Article 197 {Restriction on powers of Legislative Council as to
Bills other than Money Bills}
If after a Bill has been
passed by the Legislative Assembly of a State having a Legislative Council and
transmitted to the Legislative Council -
the Bill is rejected
by the Council; or
more than three months
elapse from the date on which the Bill is laid before the Council without the
Bill being passed by it; or
the Bill is passed by
the Council with amendments to which the Legislative Assembly does not agree,
the Legislative Assembly may, subject to the rules regulating its procedure,
pass the Bill again in the same or in any subsequent session with or without
such amendments, if any, as have been made, suggested or agreed to by the
Legislative Council and then transmit the Bill as so passed to the Legislative
Council.
If after a Bill has been
so passed for the second time by the Legislative Assembly and transmitted to
the Legislative Council -
the Bill is rejected
by the Council; or
more than one month
elapses from the date on which the Bill is laid before the Council without the
Bill being passed by it; or
the Bill is passed by
the Council with amendments to which the Legislative Assembly does not agree,
the Bill shall be deemed to have been passed by the Houses of the Legislature
of the State in the form in which it was passed by the Legislative Assembly for
the second time with such amendments, if any, as have been made or suggested by
the Legislative Council and agreed to by the Legislative Assembly.
Nothing in this article
shall apply to a Money Bill.
Article 198 {Special procedure in respect of Money Bills}
A Money Bill shall not be
introduced in a Legislative Council.
After a Money Bill has
been passed by the Legislative Assembly of a State having a Legislative
Council, it shall be transmitted to the Legislative Council for its
recommendations, and the Legislative Council shall within a period of fourteen
days from the date of its receipt of the Bill return the Bill to the
Legislative Assembly with its recommendations, and the Legislative Assembly may
thereupon either accept or reject all or any of the recommendations of the
Legislative Council.
If the Legislative Assembly
accepts any of the recommendations of the Legislative Council, the Money Bill
shall be deemed to have been passed by both Houses with the amendments
recommended by the Legislative Council and accepted by the Legislative
Assembly.
If the Legislative
Assembly does not accept any of the recommendations of the Legislative Council,
the Money Bill shall be deemed to have been passed by both Houses in the form
in which it was passed by the Legislative Assembly without any of the
amendments recommended by the Legislative Council.
If a Money Bill passed by
the Legislative Assembly and transmitted to the Legislative Council for its
recommendations is not returned to the Legislative Assembly within the said
period of fourteen days, it shall be deemed to have been passed by both Houses
at the expiration of the said period in the form in which it was passed by the
Legislative Assembly.
Article 199 {Definition of "Money Bills"}
For the purposes of this
Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely: -
the imposition,
abolition, remission, alteration or regulation of any tax;
the regulation of the
borrowing of money or the giving of any guarantee by the State, or the
amendment of the law with respect to any financial obligations undertaken or to
be undertaken by the State;
the custody of the
Consolidated Fund or the Contingency Fund of the State, the payment of moneys
into or the withdrawal of moneys from any such Fund;
the appropriation of
moneys out of the Consolidated Fund of the State;
the declaring of any
expenditure to be expenditure charged on the Consolidated Fund of the State or
the increasing of the amount of any such expenditure;
the receipt of money
on account of the Consolidated Fund of the State or the public account of the
State or the custody or issue of such money; or
any matter incidental
to any of the matters specified in sub-clauses (a) to (f).
A Bill shall not be deemed
to be a Money Bill by reason only that it provides for the imposition of fines
or other pecuniary penalties, or for the demand or payment of fees for licenses
or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any
local authority or body for local purposes.
If any question arises
whether a Bill introduced in the Legislature of a State which has a Legislative
Council is a Money Bill or not, the decision of the Speaker of the Legislative
Assembly of such State thereon shall be final.
There shall be endorsed on
every Money Bill when it is transmitted to the Legislative Council under
article 198, and when it is presented to the Governor for assent under article
200, the certificate of the Speaker of the Legislative Assembly signed by him
that it is a Money Bill.
Article 200 {Assent to Bills}
When a Bill has been passed by the Legislative Assembly of a State
or, in the case of a State having a Legislative Council, has been passed by
both Houses of the Legislature of the State, it shall be presented to the
Governor and the Governor shall declare either that he assents to the Bill or
that he withholds assent there from or that he reserves the Bill for the
consideration of the President:
Provided that the Governor may, as soon as possible after the
presentation to him of the Bill for assent, return the Bill if it is not a
Money Bill together with a message requesting that the House or Houses will
reconsider the Bill or any specified provisions thereof and, in particular,
will consider the desirability of introducing any such amendments as he may
recommend in his message and, when a Bill is so returned, the House or Houses
shall reconsider the Bill accordingly, and if the Bill is passed again by the
House or Houses with or without amendment and presented to the Governor for
assent, the Governor shall not withhold assent there from:
Provided further that the Governor shall not assent to, but shall
reserve for the consideration of the President, any Bill which in the opinion
of the Governor would, if it became law, so derogate from the powers of the
High Court as to endanger the position which that Court is by this Constitution
designed to fill.
Article 201 {Bills reserved for consideration}
When a Bill is reserved by a Governor for the consideration of the
President, the President shall declare either that he assents to the Bill or
that he withholds assent there from:
Provided that, where the Bill is not a Money Bill, the President may
direct the Governor to return the Bill to the House or, as the case may be, the
Houses of the Legislature of the State together with such a message as is
mentioned in the first proviso to article 200 and, when a Bill is so returned,
the House or Houses shall reconsider it accordingly within a period of six
months from the date of receipt of such message and, if it is again passed by
the House or Houses with or without amendment, it shall be presented again to
the President for his consideration.
Article 202 {Annual financial statement}
The Governor shall in
respect of every financial year cause to be laid before the House or Houses of
the Legislature of the State a statement of the estimated receipts and expenditure
of the State for that year, in this Part referred to as the annual financial
statement.
The estimates of
expenditure embodied in the annual financial statement shall show separately -
the sums required to
meet expenditure described by this Constitution as expenditure charged upon the
Consolidated Fund of the State; and
the sums required to
meet other expenditure proposed to be made from the Consolidated Fund of the
State, and shall distinguish expenditure on revenue account from other
expenditure.
The following expenditure
shall be expenditure charged on the Consolidated Fund of each State -
the emoluments and
allowances of the Governor and other expenditure relating to his office;
the salaries and
allowances of the Speaker and the Deputy Speaker of the Legislative Assembly
and, in the case of State having a Legislative Council, also of the Chairman
and the Deputy Chairman of the Legislative Council;
debt charges for which
the State is liable including interest, sinking fund charges and redemption
charges, and other expenditure relating to the raising of loans and the service
and redemption of debt;
expenditure in respect
of the salaries and allowances of Judges of any High Court;
any sums required to
satisfy any judgment, decree or award of any court or arbitral tribunal;
any other expenditure
declared by this Constitution, or by the Legislature of the State by law, to be
so charged.
Article 203 {Procedure in Legislature with respect to estimates}
So much of the estimates
as relates to expenditure charged upon the Consolidated Fund of a State shall
not be submitted to the vote of the Legislative Assembly, but nothing in this
clause shall be construed as preventing the discussion in the Legislature of
any of those estimates.
So much of the said
estimates as relates to other expenditure shall be submitted in the form of
demands for grants to the Legislative Assembly, and the Legislative Assembly
shall have power to assent, or to refuse to assent, to any demand, or to assent
to any demand subject to a reduction of the amount specified therein.
No demand for a grant
shall be made except on the recommendation of the Governor.
Article 204 {Appropriation Bills}
As soon as may be after
the grants under article 203 have been made by the Assembly, there shall be
introduced a Bill to provide for the appropriation out of the Consolidated Fund
of the State of all moneys required to meet -
the grants so made by
the Assembly; and
the expenditure
charged on the Consolidated Fund of the State but not exceeding in any case the
amount shown in the statement previously laid before the House or Houses.
No amendment shall be
proposed to any such Bill in the House or either House of the Legislature of
the State which will have the effect of varying the amount or altering the
destination of any grant so made or of varying the amount of any expenditure
charged on the Consolidated Fund of the State, and the decision of the person
presiding as to whether an amendment is inadmissible under this clause shall be
final.
Subject to the provisions
of articles 205 and 206, no money shall be withdrawn from the Consolidated Fund
of the State except under appropriation made by law passed in accordance with
the provisions of this article.
Article 205 {Supplementary, additional or excess grants}
The Governor shall if the
amount authorized by any law made in accordance with the provisions of article
204 to be expended for a particular service for the current financial year is
found to be insufficient for the purposes of that year or when a need has
arisen during the current financial year for supplementary or additional
expenditure upon some new service not contemplated in the annual financial
statement for that year, or
if any money has been
spent on any service during a financial year in excess of the amount granted
for that service and for that year, cause to be laid before the House or the
Houses of the Legislature of the State another statement showing the estimated
amount of that expenditure or cause to be presented to the Legislative Assembly
of the State a demand for such excess, as the case may be.
The provisions of articles
202, 203 and 204 shall have effect in relation to any such statement and
expenditure or demand and also to any law to be made authorising the
appropriation of moneys out of the Consolidated Fund of the State to meet such
expenditure or the grant in respect of such demand as they have effect in
relation to the annual financial statement and the expenditure mentioned
therein or to a demand for a grant and the law to be made for the authorisation
of appropriation of moneys out of the Consolidated Fund of the State to meet
such expenditure or grant.
Article 206 {Votes on account, votes of credit and exceptional
grants}
Notwithstanding anything
in the foregoing provisions of this Chapter, the Legislative Assembly of a
State shall have power -
to make any grant in
advance in respect of the estimated expenditure for a part of any financial
year pending the completion of the procedure prescribed in article 203 for the
voting of such grant and the passing of the law in accordance with the
provisions of article 204 in relation to that expenditure;
to make a grant for
meeting an unexpected demand upon the resources of the State when on account of
the magnitude or the indefinite character of the service the demand cannot be
stated with the details ordinarily given in an annual financial statement;
to make an exceptional
grant which forms no part of the current service of any financial year, and the
Legislature of the State shall have power to authorize by law the withdrawal of
moneys from the Consolidated Fund of the State for the purposes for which the
said grants are made.
The provisions of articles
203 and 204 shall have effect in relation to the making of any grant under
clause (1) and to any law to be made under that clause as they have effect in
relation to the making of a grant with regard to any expenditure mentioned in
the annual financial statement and the law to be made for the authorization of
appropriation of moneys out of the Consolidated Fund of the state to meet such
expenditure.
Article 207 {Special provisions as to financial Bills}
A Bill or amendment making provision for any of the matters
specified in sub-clauses (a) to (f) of clause (1) of article 199 shall not be
introduced or moved except on the recommendation of the Governor, and a Bill
making such provision shall not be introduced in a Legislative Council:
Provided that no recommendation shall be required under this clause for the
moving of an amendment making provision for the reduction or abolition of any
tax.
A Bill or amendment shall not be deemed to make provision for any of
the matters aforesaid by reason only that it provides for the imposition of
fines or other pecuniary penalties, or for the demand or payment of fees for
licenses or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any
local authority or body for local purposes.
A Bill which, if enacted and brought into operation, would involve
expenditure from the Consolidated Fund of a State shall not be passed by a
House of the Legislature of the State unless the Governor has recommended to
that House the consideration of the Bill.
Article 208 {Rules of procedure}
A House of the Legislature of a State may make rules for regulating,
subject to the provisions of this Constitution, its procedure and the conduct
of its business.
Until rules are made under clause (1), the rules of procedure and
standing orders in force immediately before the commencement of this
Constitution with respect to the Legislature for the corresponding Province
shall have effect in relation to the Legislature of the State subject to such
modifications and adaptations as may be made therein by the Speaker of the
Legislative Assembly, or the Chairman of the Legislative Council, as the case
may be.
In a State having a Legislative Council the Governor, after
consultation with the Speaker of the Legislative Assembly and the Chairman of
the Legislative Council, may make rules as to the procedure with respect to
communications between the two Houses.
Article 209 {Regulation by law of procedure in the Legislature of
the State in relation to financial business}
The Legislature of a State may, for the purpose of the timely
completion of financial business, regulate by law the procedure of, and the
conduct of business in, the House or Houses of the Legislature of the State in
relation to any financial matter or to any Bill for the appropriation of moneys
out of the Consolidated Fund of the State, and, if and so far as any provision
of any law so made is inconsistent with any rule made by the House or either
House of the Legislature of the State under clause (1) of article 208 or with
any rule or standing order having effect in relation to the Legislature of the
State under clause (2) of that article, such provision shall prevail.
Article 210 {Language to be used in the Legislature}
Notwithstanding anything in Part XVII, but subject to the provisions
of article 348, business in the Legislature of a State shall be transacted in
the official language or languages of the State or in Hindi or in English:
Provided that the Speaker of the Legislative Assembly or Chairman of the
Legislative Council, or person acting as such, as the case may be, may permit
any member who cannot adequately express himself in any of the languages
aforesaid to address the House in his mother-tongue.
Unless the Legislature of
the State by law otherwise provides, this article shall, after the expiration
of a period of fifteen years from the commencement of this Constitution, have
effect as if the words or in English were omitted therefrom: Provided that in
relation to the Legislatures of the States of Himachal Pradesh, Manipur,
Meghalaya and Tripura this clause shall have effect as if for the words fifteen
years occurring therein, the words twenty-five years were substituted: Provided
further that in relation to the Legislature of the States of Arunachal Pradesh,
Goa and Mizoram, this clause shall have effect as if for the words fifteen
years occurring therein, the words forty years were substituted.
Article 211 {Restriction on discussion in the Legislature}
No discussion shall take place in the Legislature of a State with
respect to the conduct of any Judge of the Supreme Court or of a High Court in
the discharge of his duties.
Article 212 {Courts not to inquire into proceedings of the
Legislature}
The validity of any
proceedings in the Legislature of a State shall not be called in question on
the ground of any alleged irregularity of procedure.
No officer or member of
the Legislature of a State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for
maintaining order, in the Legislature shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers.
(20) B.R.Kapur v. State of Tamil Nadu(2001)
7 SCC 231 AIR 2001 SC 3435
Jayalalitha appointed CM – convicted
in two criminal cases – 3 yrs RI (suspended sentence) – her appointment ws challenged
– Q1 Can disqualified member be apptd minister (acc to A 164(4)) Q2 Ws Jaya
disqlfd (suspended sentence)
S.R. Chaudhuri Vs. State of Punjab
& Ors – Tej Parkash Singh apptd as CM – resigned after 6 months – replaced
by Harcharan Singh Brar – Tej Parkash reapptd on recommendation of Harcharan –
Writ of quo warranto filed in HC – HC dismissed the writ – appeal filed in SC –
SC reversed the judgement of the HC held appt of Tej ws unconstitutional - The
absence of the expression from amongst members of the legislature in Article
164 (1) is indicative of the position that whereas under that provision a
non-legislator can be appointed as a Chief Minister or a Minister but that
appointment would be governed by Article 164(4), which places a restriction on
such a non-member to continue as a Minister or the Chief Minister, as the case
may be, unless he can get himself elected to the Legislature within the period
of six consecutive months from the date of his appointment. Article 164(4) is,
therefore, not a source of power or an enabling provision for appointment of a
non- legislator as a Minister even for a short duration. It is actually in the
nature of a disqualification or restriction for a non-member who has been
appointed as a Chief Minister or a Minister, as the case may be, to continue in
office without getting himself elected within a period of six consecutive
months.
In the Westminster system, it is an
established convention that Parliament maintains its position as controller of
the executive. By a well settled convention, it is the person who can rely on
support of a majority in the House of Commons, who forms a government and is
appointed as the Prime Minister. Generally speaking he and his Ministers must
invariably all be Members of Parliament (House of Lords or House of Commons)
and they are answerable to it for their actions and policies. Appointment of a
non- member as a Minister is a rare exception and if it happens it is for a
short duration. Either the individual concerned gets elected or is conferred
life peerage.
To answer the question before us,
three sub-Articles of Article 164 need, in our view, to be read together,
namely, sub-Articles (1),(2) and (4). ..
What sub-Article (4) does is to give a non-legislator appointed Minister six
months to become a member of the legislature. Necessarily, therefore, that
non-legislator must be one who, when he is appointed, is not debarred from
obtaining membership of the legislature: he must be one who is qualified to
stand for the legislature and is not disqualified to do so. Sub-Article (4) is
not intended for the induction into the Council of Ministers of someone for six
months or less so that it is of no consequence that he is ineligible to stand
for the legislature
It would be unreasonable and
anomalous to conclude that a Minister who is a member of the legislature is
required to meet the constitutional standards of qualification and
disqualification but that a Minister who is not a member of the legislature
need not. Logically, the standards expected of a Minister who is not a member should
be the same as, if not greater than, those required of a member.
Constituent Assembly debates(Vol
VII) – One of the Considerations in appointment of a minister - it is perfectly
possible to imagine that a person who is otherwise competent to hold the post
of a Minister has been defeated in a constituency for some reason which,
although it may be perfectly good, might have annoyed the constituency and he
might have incurred the displeasure of that particular constituency. It is not
a reason why a member of the Cabinet on the assumption that he shall be able to
get himself elected either from the same constituency or from another
constituency. After all the privilege that is permitted is a privilege that
extends only for six months. It does not confer a right to that individual to
sit in the House without being elected at all.
Court thus held that – non legislature can only be made minister if
he or she is otherwise qualified (A173) and not disqualified (A191).
Was the second respondent qualified
for membership of the legislature and not disqualified therefore when she was
appointed Chief Minister on 14th May, 2001.
CrPC S389. Suspension of sentence
pending the appeal; release of appellant on bail
(1) Pending any appeal by a
convicted person, the Appellate Court may, for reasons to be recorded by it in
writing, order that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail, or
on his own bond.
Answer to second issue – suspension
of the execution of the sentence does not alter or affect the fact that the
offender has been convicted of a grave offence & hs attracted the sentence
of imprisonment of not less than 2 years.
Presumption of innocence comes to an
end when lower court convicts an accused and sentences him – Conviction
operates & the accused has to undergo the sentence.
Contended by respondent that court
could not do any thing against the will of the people who were the ultimate
sovereign [A164(1) rw (4)] – additionally Governor not armed w/ machinery fr
adjudicating qualifications or disqualifications was bound to call upon the nominated
member of the majority party.
Court held that to accept the
contention of the learned counsel was to invite disaster – (eg foreigner
appointed as CM or PM) – Governor is a functionary under the constitution &
is sworn to “preserve, protect and defend the Const and the law” – The governot
in his discretion cannot do anything that is contrary to the constitution &
the laws – Another matter that u/ A 361 Governor’s exercise of discretion
cannot be questioned.
Kumar Padma Prasad v UoI – appointed
of HC judge – challenged thrgh quo warranto – presidential appointment quashed.
Presidential and Governor Appointments can be challenged by quo warranto
proceedings in court and quashed
St of Raj v UoI - But merely because
a question has a political complexion, that by itself is no ground why the
Court should shrink from performing its duty under the Constitution, if it
raises an issue of constitutional determination. Every constitutional question
concerns the allocation and exercise of governmental power and no
constitutional question can, therefore, fail to be political . So long as a
question arises whether an authority under the Constitution has acted within
the limits of its power or exceeded it, it can certainly be decided by the
Court. Indeed it would be its
constitutional obligation to do so. It is necessary to assert the clearest
possible terms, particularly in the context of recent history, that the
Constitution is suprema lex, the paramount law of the land and there is no
department or branch of Government above or beyond it.
(21) Special Reference No.1 of 2002 (Re
Gujarat Assembly Election Matter), AIR 2003 SC 87
Question of declaration of State
Emergency under A356 has no relation to fixation of election schedule
(22) Anill Kumar Jha v. Union of India,
2005(3) SCALE 52:(2005) 3 SCC 150
Exercise of power of Gov u/ A164(1)
in issue – Gov appointed leader of political party not commanding majority as
CM – SC held appt arbitrary & mala fide exercise of power which is a fraud
on the Constitution – SC also pre-poned the floor test – Chief Secretary and
DGP were directed to see that all elected MLAs attended the Assembly freely,
safely and securely without hindrances – Pro tem speaker directed to have
proceedings of floor test video recorded & a copy thereof sent to the SC
(23) Jaya Bachchan v. Union of India, AIR
2006 SC 2119
SC interpreted the term ‘Office of
profit’ – A102(1)(a) disqualification –
independence of MPs from benefits of the Executive – Jaya Bachhan – UP Film
Development Council – Disqualified from RS as not in list of Office of Profit exempted
under Parliament ( Prevention of Disqualification) Act – Court held Office of
profit à capable of profit or pecuniary gain
– terminology not important i.e. honorarium etc – if pecuniary gain receivable
then it becomes office of profit irrespective of whether such gain is received
or not – Self affluence and not interested in benefits offered were not
relevant to issue – Disqualification was held to be proper.
(24) Rameshwar Prasad v. Union of India,
AIR 2006 SC 980
Discussed in topic 9
(25) In re Keshav Singh, AIR 1965 SC 745
Art 121 forbids discussion of
conduct of judges in Parliament except impeachment – Art 21 not subject to
legislative privileges hence person can move court in order to preserve his
right to life and personal liberty – Keshav Singh a non member of UP Assembly
who was held guilty of contempt of the House and sentenced to imprisonment for
7 days – HC issued an interim bail order which was challenged by the House – SC
held HC under A226 has the power to issue writs against any authority which
under A12 includes the Legislature
(26) Raja Ram Pal v. Hon'able Speaker, Lok
Sabha(2007) 3 SCC 184
Constitutional validity of expulsion
of certain MPs by Parliament was challenged – SC held no power of expulsion in
Parliament either inherent or traceable to A105(3) – Expulsion by house only
possible if A102 or A101 are suitably amended or if a law is made under
A102(1)(e ) enabling the house to expel a member found unworthy or unfit ….
Topic 5 - Legislative Power
of the Executive (Ordinances)
Essential Conditions for promulgation of an Ordinance: 'Ordinance' under
Article 13; Judicial Review; Validity of Successive Promulgation of the same Ordinance
(Article 123, 213)
Article 13 {Laws inconsistent with or in derogation of the
fundamental rights}
(1) All laws in force in the territory of India immediately before
the commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be
void.
(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise required, -
"law" includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the
force of law;
"laws in force" includes laws passed or made by a
Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at
all or in particular areas.
Nothing in this article shall apply to any amendment of this
Constitution made under article 368.
Article 123. Power of President to promulgate Ordinances during
recess of Parliament
(1) If at any time, except when both Houses of Parliament are in
session, the President is satisfied that circumstances exist which render it
necessary for him to take immediate action, he may promulgate such Ordinance as
the circumstances appear to him to require
(2) An Ordinance promulgated under this article shall have the same
force and effect as an Act of Parliament, but every such Ordinance
(a) shall be laid before both House of Parliament and shall cease to
operate at the expiration of six weeks from the reassemble of Parliament, or,
if before the expiration of that period resolutions disapproving it are passed
by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President Explanation Where
the Houses of Parliament are summoned to reassemble on different dates, the
period of six weeks shall be reckoned from the later of those dates for the
purposes of this clause
(3) If and so far as an Ordinance under this article makes any
provision which Parliament would not under this Constitution be competent to
enact, it shall be void.
Article 213. Power of Governor to promulgate Ordinances during
recess of Legislature
(1) If at any time, except when the Legislative Assembly of a State
is in session, or where there is a Legislative Council in a State, except when
both Houses of the Legislature are in session, the Governor is satisfied that
circumstances exist which render it necessary for him to take immediate action,
he may promulgate such Ordinance as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President,
promulgate any such Ordinance if
(a) a Bill containing the same provisions would under this
Constitution have required the previous sanction of the President for the
introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing
the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same
provisions would under this Constitution have been invalid unless, having been
reserved for the consideration of the President, it had received the assent of
the President
(2) An Ordinance promulgated under this article shall have the same
force and effect as an Act of Legislature of the State assented to by the
Governor, but every such Ordinance
(a) shall be laid before the legislative Assembly of the State, or
where there is a Legislative Council in the State, before both the House, and
shall cease to operate at the expiration of six weeks from the reassembly of
the Legislature, or if before the expiration of that period a resolution
disapproving it is passed by the Legislative Assembly and agreed to by the
Legislative Council, if any, upon the passing of the resolution or, as the case
may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor Explanation Where
the Houses of the Legislature of a State having a Legislative Council are
summoned to reassemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause
(3) If and so far as an Ordinance under this article makes any
provision which would not be valid if enacted in an Act of the legislature of
the State assented to by the Governor, it shall be void: Provided that, for the
purposes of the provisions of this Constitution relating to the effect of an
Act of the Legislature of a State which is repugnant to an Act of Parliament or
an existing law with respect to a matter enumerated in the Concurrent List, an
Ordinance promulgated under this article in the Concurrent List, an Ordinance
promulgated under this article in pursuance of instructions from the President
shall be deemed to be an Act of the Legislature of the State which has been
reserved for the consideration of the president and assented to by him.
(27) R.K Garg v. Union of India, AIR 1981
SC 2138
An ordinance is a law within Article
13(3) of the Constitution & the Fundamental rights can be abridged by an
Ordinance to the same extent as an Act of the Legislature – writ petition
against Special bearer bonds Ordinance, 1981 , Special Bearer Bonds Act, 1981 –
intended to convert Black money to White – Apex Court upholding the ordinance
making power of the president by reading certain limitation into such power
(i) Not a parallel power of
legislation (ii) exerciseable only when both houses not in session (iii)
limited duration – ceases to operate at the expiration of 6 weeks from
reassembly of parliament or if disapproved by both houses before expiration of
6 weeks – hence only for emergency situations (iv) this power coextensive with
power of legislature to make laws – Pres cannot issue ordinance which
parliament cannot enact into a law (v) Legislative power conferred on executive
by constitution makers for a necessary purpose and it is with limitations &
conditions (vi) May appear undemocratic but -> executive answerable to legislature
and in turn legislature answerable to people.
(28) D.C. Wadhwa v. State of Bihar, AIR
1987 SC 579
Repeated promulgation of the same
ordinance is a fraud on the constitution – writ petition against power of the
governor to issue ordinances under A213 in Bihar – 256 ordinances kept alive
from 1 to 14 years by repromulgation – of this 69 were repromulgated with prior
permission of President of India – incase of genuine cause requiring
repromulgation of the ordinance i.e. excessive work load on legislature, the
repromulgation may not be open to attack – settled law that a constitutional
authority cannot do indirectly what is not permitted to do directly. Court also
observed tht President of India has not in a single instance repromulgated any
ordinance(u/ A123) since 1950.
(29) A.K. Roy v. Union of India, AIR 1982
SC 710
Court held that National Security
Ordinance 1980(providing for preventive detention) was valid and not violative
of A14 – Ordinance is like Parliamentary law – However ordinance would be
subject to test of vagueness, arbitrariness, reasonableness and public interest
and that it was passed only when legislatures were not in session – obsrvd that
judicial review is not completely excluded in regard to question relating to
the President’s satisfaction.
Topic 6 -
Union and State Judiciary
(a) Union Judiciary; Supreme COurt of India(Articles 124 - 147) -
Composition, Appointment and Removal of Judges of Supreme Court(Article
124-130, Procedure (Article 145); High Courts in the States (Article 214 - 231)
Article 124 Establishment and Constitution of Supreme Court
(1) There shall be a Supreme Court of India consisting of a Chief
Justice of India and, until Parliament by law prescribes a larger number, of
not more than seven other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation with such of
the Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose and shall hold office until he
attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the
Chief Justice, the Chief Justice of India shall always be consulted:
Provided further that -
(a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a judge may be removed from his office in the manner provide in
clause (4).
(2A) The age of a Judge of the Supreme Court shall be determined by
such authority and in such manner as Parliament may by law provide.
(3) A person shall not be qualified for appointment as a Judge of
the Supreme Court unless he is a citizen of India and -
(a) has been for at least five years a Judge of a High Court or of
two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or
of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I: In this clause "High Court" means a High
Court which exercises, or which at any time before the commencement of this
Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II: In computing for the purpose of this clause the
period during which a a person has been an advocate, any period during which a
person has held judicial office not inferior to that of a district judge after
he became an advocate shall be included.
(4) 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 the same
session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall,
before he enters upon his office, make and subscribe before the President, or
some person appointed in that behalf by him, an oath or affirmation according
to the form set out for the purpose in the Third Schedule.
(7) No person who has held office as a Judge of the Supreme Court
shall plead or act in any court of before any authority within the territory of
India.
Article 125 Salaries, etc., of Judges
(1) There shall be paid to the Judges of the Supreme Court such
salaries as may be determined by Parliament by law and, until provision in that
behalf is so made, such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such privileges and allowances
and to such rights in respect of leave of absence and pension as may from time
to time be determined by or under law made by Parliament and, until so
determined, to such privileges, allowances and rights as are specified in the
Second Schedule:
Provided that neither the privileges not the allowances of a Judge
nor his rights in respect of leave of absence or pension shall be varied to his
disadvantage after his appointment.
Article 126 Appointment of acting Chief Justice
When the office of Chief Justice of India is vacant or when the
Chief Justice is, by reason of absence or otherwise, unable to perform the
duties of his office, the duties of the office shall be performed by such one
of the other Judges of the Court as the President may appoint for the purpose.
Article 127 Appointment of ad hoc Judges
(1) If at any time there should not be a quorum of the Judges of the
Supreme Court available to hold or continue any session of the Court, the Chief
Justice of India may, with the previous consent of the President and after
consultation with the Chief Justice of the High Court concerned, request in
writing the attendance at the sittings of the Court, as an ad hoc Judge, for
such period as may be necessary, of a Judge of a High Court duly qualified for
appointment as a Judge of the Supreme Court to be designated by the Chief
Justice of India.
(2) It shall be the duty of the Judge who has been so designated, in
priority to other duties of his office to attend the sittings of the Supreme
Court at the time and for the period for which his attendance is required, and
while so attending he shall have all the jurisdiction, powers and privileges,
and shall discharge the duties, of a Judge of the Supreme Court.
Article 128 Attendance of retired Judges at sittings of the Supreme
Court
Notwithstanding anything in this Chapter, the Chief Justice of India
may at any time, with the previous consent of the President, request any person
who as held the office of a Judge of the Supreme Court or of the Federal Court
or who has held the office of a Judge of a High Court and is duly qualified for
appointment as a Judge of the Supreme Court to sit and act as a Judge of the
Supreme Court, and every such person so requested shall, while so sitting and
acting, be entitled to such allowances as the President may by order determine
and have all the jurisdiction, powers and privileges of, but shall not
otherwise be deemed to be, a Judge of that Court:
Provided that nothing in this article shall be deemed to require any
such person as aforesaid to sit and act as a Judge of that Court unless he
consents so to do.
Article 129 Supreme Court to be a court of record
The Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of itself.
Article 130 Seat of Supreme Court
The Supreme Court shall sit in Delhi or in such other place or
places, as the Chief Justice of India may, with the approval of the President,
from time to time, appoint.
Article 131 Original jurisdiction of the Supreme Court
Subject to the provisions of this Constitution, the Supreme Court
shall, to the exclusion of any other court, have original jurisdiction in any
dispute -
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State of States on one
side and one or more other States on the other; or
(c) between two or more States. If and in so far as the dispute
involves any question (whether of law or fact) on which the existence or extent
of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad of other
similar instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such
commencement or which provides that the said jurisdiction shall not extend to
such a dispute.
Article 131A Executive jurisdiction of the Supreme Court in regard
to questions as to constitutional validity of Central laws
{...}
Article 139 Conferment on the Supreme Court of powers to issue
certain writs
Parliament may by law confer on the Supreme Court power to issue
directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of them, for any
purposes other than those mentioned in clause (2) of article 32.
Article 139A Transfer of certain cases
(1) Where cases involving the same or substantially the same
questions of law are pending before the Supreme Court and one or more High
Courts or before two or more High Courts and the Supreme Court is satisfied on
its own motion or on an application made by the Attorney-General of India or by
a party to any such case that such questions are substantial questions of
general importance, the Supreme Court may withdraw the case or cases pending
before the High Court of the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy of its
judgment on such questions to the High Court from which the case has been
withdrawn, and the High Court shall on receipt thereof, proceed to dispose of
the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the
ends of justice, transfer any case, appeal or other proceedings pending before
any High Court to any other High Court.
Article 140 Ancillary powers of Supreme Court
Parliament may by law make provision for conferring upon the Supreme
Court such supplemental powers not inconsistent with any of the provisions of
this Constitution as may appear to be necessary or desirable for the purpose of
enabling the Court more effectively to exercise the jurisdiction conferred upon
it by or under this Constitution.
Article 141 Law declared by Supreme Court to be binding on all
courts
The law declared by the Supreme Court shall be binding on all courts
within the territory of India.
Article 142 Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc.
(1) The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by order
prescribe.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Supreme Court shall, as respects the whole of the territory of
India, have all and every power to make any order for the purpose of securing
the attendance of any person, the discovery or production of any documents, or
the investigation or punishment of any contempt of itself.
Article 144 Civil and judicial authorities to act in aid of the
Supreme Court
All authorities, civil and judicial, in the territory of India shall
act in aid of the Supreme Court.
Article 144A Special provisions as to disposal of questions relating
to constitutional validity of laws
{...}
Article 145 Rules of Court, etc.
(1) Subject to the provisions of any law made by Parliament, the
Supreme Court may from time to time, with the approval of the President, make
rules for regulating generally the practice and procedure of the Court
including -
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals and other matters
pertaining to appeals including the time within which appeals to the Court are
to be entered;
(c) rules as to the proceedings in the Court for the enforcement of
any of the rights conferred by Part III;
(cc) rules as to the proceedings in the Court under article 139A;
(d) rules as to the entertainment of appeals under sub-clause (c) of
clause (1) of article 134;
(e) rules as to the conditions subject to which any judgement
pronounced or order made by the Court may be reviewed and the procedure for
such review including the time within which applications to the Court or such
review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in
the Court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(i) rules providing for the summary determination of any appeal
which appears to the Court to be frivolous or vexations or brought for the
purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause
(1) of article 317.
(2) Subject to the provisions of clause (3), rules made under this
article may fix the minimum number of Judges who are to sit for any purpose,
and may provide for the powers of single Judges and Division Courts.
(3) The minimum number of Judges who are to sit for the purpose of
deciding any case involving a substantial question of law as to the
interpretation of this Constitution or for the purpose of hearing any reference
under article 143 shall be five: Provided that, where the Court hearing an
appeal under any of the provisions of this Chapter other than article 132
consists of less than five Judges and in the course of the hearing of the
appeal of the Court is satisfied that the appeal involves a substantial
question of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the appeal, such Court shall refer the
question for opinion to a Court constituted as required by this clause for the
purpose of deciding any case involving such a question and shall on receipt of
the opinion dispose of the appeal in conformity with such opinion.
(4) No judgement shall be delivered by the Supreme Court save in
open Court, and no report shall be made under article 143 save in accordance
with an opinion also delivered in open Court.
(5) No judgement and so such opinion shall be delivered by the
Supreme Court save with the concurrence of a majority of the Judges present at
the hearing of the case, but nothing in this clause shall be deemed to prevent
a Judge who does not concur from delivering a dissenting judgement or opinion.
Article 146 Officers and servants and the expenses of the Supreme
Court
(1) Appointments of officers and servants of the Supreme Court shall
be made by the Chief Justice of India or such other Judge or officer of the
Court as he may direct:
Provided that the President may by rule require that in such cases
as may be specified in the rule, no person not already attached to the Court
shall be appointed to any office connected with the Court, save after
consultation with the Union Public Service Commission.
(2) Subject to the provisions of any law made by Parliament, the
conditions of service of officers and servants of the Supreme Court shall be
such as may be prescribed by rules made by the Chief Justice of India or by
some other Judge or officer of the Court authorised by the Chief Justice of
India to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they
relate to salaries, allowances, leave or pensions, require the approval of the
President.
(3) The administrative expenses of the Supreme Court, including all
salaries, allowances and pensions payable to or in respect of the officers and
servants of the Court, shall be charged upon the Consolidated Fund of India,
and any fees or other moneys taken by the Court shall form part of that Fund.
Article 147 Interpretation
In this Chapter and in Chapter V of Part VI, references to any
substantial question of law as to the interpretation of this Constitution shall
be construed as including references to any substantial question of law as to
the interpretation of the Government of India Act, 1935 (including any
enactment amending or supplementing that Act), or of any Order in Council or
order made thereunder, or of the Indian Independence Act, 1947, or of any order
made thereunder.
--
Article 214 High Courts for States - There shall be a High Court for
each State.
Article 215 High Courts to be courts of record
Every High Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of itself.
Article 216 Constitution of High Courts
Every High Court shall consist of a Chief Justice and such other
Judges as the President may from time to time deem it necessary to appoint.
Article 217 Appointment and conditions of the office of a Judge of a
High Court
(1) Every Judge of a High Court shall be appointed by the President
by warrant under his hand and seal after consultation with the Chief Justice of
India, the Governor of the State, and, in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court, and shall
hold office, in the case of an additional or acting Judge, as provided in
article 224, and in any other case, until he attains the age of sixty-two
years:
Provided that ÔÇô
(a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a Judge may be removed from his office by the President in the
manner provided in clause (4) of article 124 for the removal of a Judge of the
Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by
the President to be a Judge of the Supreme Court or by his being transferred by
the President to any other High Court within the territory of India.
(2) a person shall not be qualified for appointment as a Judge of a
High Court unless he is a citizen of India and ÔÇô
(a) has for at least ten years held a judicial office in the
territory of India; or
(b) has for at least ten years been an advocate of a High Court or
of two or more such Courts in succession; Explanation: For the purposes of this
clause -
(a) in computing the period during which a person has held judicial
office in the territory of India, there shall be included any period, after he
has held any judicial office, during which the person has been an advocate of a
High Court or has held the office of a member of a tribunal or any post, under
the Union or a State, requiring special knowledge of law;
(aa) in computing the period during which a person has been an
advocate of a High Court, there shall be included any period during which the
person has held judicial office or the office of a member of a tribunal or any
post, under the Union or a State, requiring special knowledge of law after he
became an advocate;
(b) in computing the period during which a person has held judicial
office in the territory of India or been an advocate of a High Court, there
shall be included any period before the commencement of this Constitution
during which he has held judicial office in any area which was comprised before
the fifteenth day of August, 1947, within India as defined by the Government of
India Act, 1935, or has been an advocate of any High Court in any such area, as
the case may be.
(3) If any question arises as to the age of a Judge of a High Court,
the question shall be decided by the President after consultation with the
Chief Justice of India and the decision of the President shall be final.
Article 218 Application of certain provisions relating to Supreme
Court to High Courts
The provisions of clauses (4) and (5) of article 124 shall apply in
relation to a High Court as they apply in relation to the Supreme Court with
the substitution of references to the High Court for references to the Supreme
Court.
Article 219 Oath or affirmation by Judges of High Courts
Every person appointed to be a Judge of a High Court shall, before
he enters upon his office, make and subscribe before the Governor of the State,
or some person appointed in that behalf by him an oath or affirmation according
to the form set out for the purpose in the Third Schedule.
Article 220 Restriction on practice after being a permanent Judge
No person who, after the commencement of this Constitution, has held
office as a permanent Judge of a High Court shall plead or act in any court or
before any authority in India except the Supreme Court and the other High
Courts.
Explanation: In this article, the expression "High Court"
does not include a High Court for a State specified in Part B of the First
Schedule as it existed before the commencement of the Constitution (Seventh Amendment)
Act, 1956.
Article 221 Salaries, etc., of Judges
(1) There shall be paid to the Judges of each High Court such
salaries as may be determined by Parliament by law and, until provision in that
behalf is so made, such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to such
rights in respect of leave of absence and pension as may from time to time be
determined by or under law made by Parliament and, until so determined, to such
allowances and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his disadvantage
after his appointment.
Article 222 Transfer of a Judge from one High Court to another
(1) The President May, after consultation with the Chief Justice of
India, transfer a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall, during the
period he serves, after the commencement of the Constitution (Fifteenth
Amendment) Act, 1963, as a Judge of the other High Court, be entitled to
receive in addition to his salary such compensatory allowance as may be
determined by Parliament by law and, until so determined, such compensatory
allowance as the President may by order fix.
Article 223 Appointment of acting Chief Justice
When the office of Chief Justice of a High Court is vacant or when
any such Chief Justice is by reason of absence or otherwise, unable to perform
the duties of his office, the duties of the office shall be performed by such
one of the other Judges of the Court as the President may appoint for the
purpose.
Article 224 Appointment of additional and acting Judges
(1) If by reason of any temporary increase in the business of a High
Court or by reason of arrears of work therein; it appears to the President that
the number of the Judges of that Court should be for the time being increased,
the President may appoint duly qualified persons to be additional Judges of the
Court for such period not exceeding two years as he may specify.
(2) When any Judge of a High Court other than the Chief Justice is
by reason of absence or for any other reason unable to perform the duties of
his office or is appointed to act temporarily as Chief Justice, the President
may appoint a duly qualified person to act as a Judge of that Court until the
permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting Judge of a High
Court shall hold office after attaining the age of sixty-two years.
Article 224A Appointment of retired Judges at sittings of High
Courts
Notwithstanding anything in this Chapter, the Chief Justice of a
High Court for any State may at any time, with the previous consent of the President,
request any person who has held the office of a Judge of that Court or of any
other High Court to sit and act as a Judge of the High Court for that State,
and every such person so requested shall, while so sitting and acting, be
entitled to such allowances as the President may by order determine and have
all the jurisdiction, powers and privileges of, but shall not otherwise be
deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any
such person as aforesaid to sit and act as a Judge of that High Court unless he
consents so to do.
Article 225 Jurisdiction of existing High Courts
Subject to the provisions of this Constitution and to the provisions
of any law of the appropriate Legislature made by virtue of powers conferred on
that Legislature by this Constitution, the jurisdiction of, and the law
administered in, any existing High Court, and the respective powers of the
Judges thereof in relation to the administration of justice in the Court, including
any power to make rules of Court and to regulate the sittings of the Court and
of members thereof sitting alone or in Division Courts, shall be the same as
immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original
jurisdiction by any of the High Courts with respect to any matter concerning
the revenue or concerning any act ordered or done in the collection thereof was
subject immediately before the commencement of this Constitution shall no
longer apply to the exercise of such jurisdiction.
Article 226A Constitutional validity of Central laws not to be
considered in proceedings under article 226
{...}
Article 227 Power of superintendence over all courts by the High
Court
(1) Every High Court shall have superintendence over all courts and
tribunal, throughout the territories in relation to which it exercises
jurisdiction.
(2) Without prejudice to the generality of the foregoing provision,
the High Court may ÔÇô
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating
the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be
kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to
the sheriff and all clerks and officers of such courts and to attorneys,
advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled
under clause (2) or clause (3) shall not be inconsistent with the provision of
any law for the time being in force, and shall require the previous approval of
the Governor.
(4) Nothing in this article shall be deemed to confer on a High
Court powers of superintendence over any court or tribunal constituted by or
under any law relating to the Armed Forces.
Article 228 Transfer of certain cases to High Court
If the High Court is satisfied that a case pending in a court
subordinate to it involves a substantial question of law as to the
interpretation of this Constitution the determination of which is necessary for
the disposal of the case, it shall withdraw the case and may -
(a) either dispose of the case itself, or
(b) determine the said question of law and return the case to the
court from which the case has been so withdrawn together with a copy of its
judgment on such question, and the said court shall on receipt thereof proceed
to dispose of the case in conformity with such judgment.
Article 228A Special provisions as to disposal of questions relating
to constitutional validity of State laws
{...}
Article 229 Officers and servants and the expenses of High Courts
(1) Appointments of officers and servants of a High Court shall be
made by the Chief Justice of the Court or such other Judge or officer of the
Court as he may direct: Provided that the Governor of the State may by rule
require that in such cases as may be specified in the rule no person not
already attached to the Court shall be appointed to any office connected with
the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of
the State, the conditions of service of officers and servants of a High Court
shall be such as may be prescribed by rules made by the Chief Justice of the
Court or by some other Judge or officer of the Court authorised by the Chief
Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they
relate to salaries, allowances, leave or pensions, require the approval of the
Governor of the State (41)
(3) The administrative expenses of a High Court, including all
salaries, allowances and pensions payable to or in respect of the officers and
servants of the Court, shall be charged upon the Consolidated Fund of the
State, and any fees or other moneys taken by the Court shall form part of that
Fund.
Article 230 Extension of jurisdiction of High Courts to Union
territories
(1) Parliament may by law extend the jurisdiction of a High Court
to, or exclude the jurisdiction of a High Court from, any Union territory.
(2) Where the High Court of a State exercises jurisdiction in
relation to a Union territory, -
(a) nothing in this Constitution shall be construed as empowering
the Legislature of the State to increase, restrict or abolish that
jurisdiction; and
(b) the reference in article 227 to the Governor shall, in relation
to any rules, forms or tables for subordinate courts in that territory, be
construed as a reference to the president.
Article 231 Establishment of a common High Court for two or more
States
(1) Notwithstanding anything contained in the preceding provisions
of this Chapter, Parliament may by law establish a common High Court for two or
more States or for two or more States and a Union territory.
(2) In relation to any such High Court, -
(a) the reference in article 217 to the Governor of the State shall
be construed as a reference to the Governors of all the States in relation to
which the High Court exercises jurisdiction;
(b) the reference in article 227 to the Governor shall, in relation
to any rules, forms or tables for subordinate courts, be construed as a
reference to the Governor of the State in which the subordinate courts are
situate; and
(c) the references in articles 219 and 229 to the State shall be
construed as a reference to the State in which the High Court has its principal
seat:
Provided that if such principal seat is in a Union territory, the
references in articles 219 and 229 to the Governor, Public Service Commission,
Legislature and Consolidated Fund of the State shall be construed respectively
as references to the President, Union Public Service Commission, Parliament and
Consolidated Fund of India.
---
(b) Jurisdiction of the Supreme Court - Original Exclusive (Articles
71,131), Original Concurrent Jurisdiction of the Supreme Court and High Courts
(Article 32 rw Art 226)
Article 32. Remedies for enforcement of rights conferred by this
Part
(1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court
by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution
Article 226 Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32, every High Court shall
have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and warranto and certiorari, or any of them, for the enforcement of
any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence
of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any proceedings
relating to, a petition under clause (1), without ÔÇô
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and furnishes a
copy of such application to the party in whose favour such order has been made
or the counsel of such party, the High Court shall dispose of the application
within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later,
or where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of
that period, or, as the case may be, the expiry of the said next day, stand
vacated.
(4) The power conferred on a High Court by this article shall not be
in derogation of the power conferred on the Supreme Court by clause (2) of
article 32.
--
(c) Appellate Jurisdiction of Supreme Court - Civil, Criminal and in
other matters (Arts 132-135);
Article 132 Appellate jurisdiction of Supreme Court in appeals from
High Court in certain cases
(1) An appeal shall lie to the Supreme Court from any judgement,
decree of final order of a High Court in the territory of India, whether in a
civil, criminal or other proceeding, if the High Court certifies under article
134A that the case involves a substantial question of law as to the
interpretation of this Constitution.
(2) {...}
(3) Where such a certificate is given, any party in the case may
appeal to the Supreme Court on the ground that any such question as aforesaid
has been wrongly decided.
Explanation: For the purpose of this article, the expression
"final order" includes an order deciding an issue which, if decided
in favour of the appellant, would be sufficient for the final disposal of the
case.
Article 133 Appellate jurisdiction of Supreme Court in appeals from
High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court room any judgement,
decree or final order in a civil proceeding of a High Court in the territory of
India if the High Court certifies under article 134A -
(a) that the case involves a substantial question of law of general
importance; and
(b) that in the opinion of the High Court the said question needs to
be decided by the Supreme Court.
(2) Notwithstanding anything in article 132, any party appealing to
the Supreme Court under clause (1) may urge as one of the grounds in such
appeal that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall,
unless Parliament by law otherwise provides, lie to the Supreme Court from the
judgement, decree or final order of one Judge of a High Court.
Article 134 Appellate jurisdiction of Supreme Court in regard to
criminal matters
(1) An appeal shall lie to the Supreme Court from any judgement,
final order or sentence in a criminal proceeding of a High Court in the territory
of India if the High Court -
(a) has on appeal reversed an order of acquittal of an accused
person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person
and sentenced him to death; or
(c) certified under article 134A that the case is a fit one for
appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall
lie subject to such provisions as may be made in that behalf under clause (1)
of article 145 and to such conditions as the High Court may establish or
require.
(2) Parliament may by law confer on the Supreme Court any further
powers to entertain and hear appeals from any judgment, final order or sentence
in a criminal proceeding of a High Court in the territory of India subject to
such conditions and limitations as may be specified in such law.
Article 134A Certificate for appeal to the Supreme Court
Every High Court, passing or making a judgment, decree, final order,
or sentence, referred to in clause (1) of article 132 or clause (1) of article
133, or clause (1) of article 134, -
(a) may, if it deems fit so to do, on its own motion; and
(b) shall, if an oral application is made, by or on behalf of the party
aggrieved, immediately after the passing or making of such judgment, decree
final order or sentence, determine, as soon as may be after such passing or
making, the question whether a certificate of the nature referred to in clause
(1) of article 132, or clause (1) or article 133 or, as the case may be,
sub-clause (c) of clause (1) of article 134, may be given in respect of that
case.
Article 135 Jurisdiction and powers of the Federal Court under
existing law to be exercisable by the Supreme Court
Until Parliament by law otherwise provides, the Supreme Court shall
also have jurisdiction and powers with respect to any matter to which the
provisions of article 133 or article 134 do not apply if jurisdiction and
powers in relation to that matter were exercisable by the Federal Court
immediately before the commencement of this Constitution under any existing
law.
Statutory Appeals on Enlargements of Jurisdiction (Art 138)
Article 138 Enlargement of the jurisdiction of the Supreme Court
(1) The Supreme Court shall have such further jurisdiction and
powers with respect to any of the matters in the Union List as Parliament may
by law confer.
(2) The Supreme Court shall have such further jurisdiction and
powers with respect to any matter as the Government of India and the Government
of any State may by special agreement confer, if Parliament by law provides for
the exercise of such jurisdiction and powers by the Supreme Court.
(d) Special Leave to Appeal(Art 136)
Article 136 Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may,
in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.
(e) Power of Review(Art. 137)
Article 137 Review of judgements or orders by the Supreme Court
Subject to the provisions of any law made by Parliament or any rules
made under article 145, the Supreme Court shall have power to review any
judgment pronounced or order made by it.
(f) Advisory Jurisidiction (Art 143)
Article 143 Power of President to consult Supreme Court
(1) If at any time it appears to the President that a question of
law or fact has arisen, or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of the
Supreme Court upon it, he may refer the question to that Court for
consideration and the Court may, after such hearing as it thinks fit, report to
the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to
article 131, refer a dispute of the kind mentioned in the said proviso to the
Supreme Court for opinion and the Supreme Court shall, after hearing as it
things fit, report to the President its opinion thereon.
(g) 'Curative Petition'
The concept of Curative petition was evolved by the Supreme Court of
India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002)] where
the question was whether an aggrieved person is entitled to any relief against
the final judgement/order of the Supreme Court, after dismissal of a review
petition. The Supreme Court in the said case held that in order to prevent
abuse of its process and to cure gross miscarriage of justice, it may
reconsider its judgements in exercise of its inherent powers. For this purpose
the Court has devised what has been termed as a "curative" petition.
In the Curative petition, the petitioner is required to aver specifically that
the grounds mentioned therein had been taken in the review petition filed earlier
and that it was dismissed by circulation. This has to be certified by a senior
advocate. The Curative petition is then circulated to the three senior most
judges and the judges who delivered the impugned judgement, if available. No
time limit is given for filing Curative petition.[1]
Requirements
To entertain the curative petitions, the court has laid down certain
specific conditions. Its laid down in order to prevent floodgates of
unnecessary petitions seeking their second review.
The requirements which are needed in order to accept the curative
petitions are:
1) The petitioner will have to establish that there was a genuine
violation of principles of natural justice and fear of the bias of the judge
and judgement that adversely affected him.
2) The petition shall state specifically that the grounds mentioned
had been taken in the review petition and that it was dismissed by circulation.
3) The curative petition must accompany certification by a senior
lawyer relating to the fulfillment of the above requirements.
4) The petition is to be sent to the three senior most judges and
judges of the bench who passed the judgement affecting the petition, if
available.
5) If the majority of the judges on the above bench agree that the
matter needs hearing, then it would be sent to the same bench (as far as
possible).
6) The court could impose exemplary costs to the petitioner if his
plea lacks meri
(30) Rupa Ashok Hurra v. Ashok Hurra(2002)
4 SCC 388: AIR 2002 SC 1771
A curative petition under the SC’s
inherent power can be filed, seeking review of a decision which has become
final after dismissal of a review petition under Art 137, on very strong
grounds. Certainty of law important but not at the cost of justice – Curative
petition maintainable to prevent abuse of court and to cure a gross miscarriage
of justice.
Apex Court held – Writ petition
under Art 32 not maintainable after decision – yet in rarest of rare cases SC
can review its final judgment to prevent abuse of court and to cure gross
miscarriage of justice – A petitioner would be entitled to relief ex debito
justitiae if he establishes (i) Violation of principles of natural justice
(i.e. not heard, non notice) (ii) non disclosure on the part of the Judge
giving scope for apprehension of bias
(31) Zakarius Lakra v. Union of India
(2005) 3 SCC 161
Rupa Ashok Hurra case followed –
death sentence imposed on petitioner’s son by trial court, confirmed by HC
& by SC – underage at the time of commission of offence – school
certificate produced as additional evidence – SC held writ petition under A32
not maintainable – Appropriate remedy is to file a curative petition.
(a) Writs - Habeous corpus,
mandamus, prohibition, quo warranto and certiorari
(b) Judicial self-restraint on exercise of
Power
(i)
Locus Standi, Public Interest Litigation (Concept of pro bono publico)
(ii)
Laches
(iii)
Res Judicata
(iv)
Exhaustion of Alternative Remedies
(c) Power to issue appropriate
orders and directions; Power to award Compensation
(32) S.P. Gupta v. President of India, AIR
1982 SC 149
If by public duties are to be
enforced and socially collective “diffused” rights & interests are to be
protected the courts have to utilize the initiative and zeal of public minded
persons and organizations by allowing them to move the court and act for a
general or group interest, even though, they may not be directly injured in
their own rights.
If by illegal state action, the
independence of judiciary is impaired – lawyers would certainly be interested
in challenging the constitutionality or legality of such action – thus the
practicing advocates (appellants) have the locus standi to challenge the
circular of Law Ministry affecting the terms and conditions and transfer of HC
judges.
Sufficient interest enough to file
PIL
Writ petition – by letter
Justice Bhagwati – PIL – No
prescribed format.
Only the advice to president is
protected from judicial scrutiny – not the document on which the advice was
based on.
(33) In re Special Reference No 1 of 1998
(Judges Appointment Case), AIR 1999 SC 1 (transfer of judges case III)
Questions of presidential reference
relate to three aspects –
(i)
Consultation b/w CJI &
brother judges in matter of appt of SC & HC judges & transfer of HC
judges
(ii)
Judicial review of transfer of
judges
(iii)
Relevance of seniority wrt appt
to SC
Element of plurality of opinion –
Opinion of CJI has primacy in cases of appointment of SC & HC Judges –
Opinion of CJI is reflective of the opinion of the judiciary – Opinion of CJI
has primacy in the manner indicated – In any other manner the opinion of CJI
has no primacy and Govt is not obliged to act there upon
Concept of Collegium – Principle
objective to ensure best possible talent is brought to the Supreme Court
Size of Collegium (increased to CJI
+ 4 senior most puisne judges instead of earlier 2 sr most judges)
In case successor to CJI is not
amongst the 4 Sr most judges then he must be made part of the collegium.
Single opinion of CJI never accepted
– if CJI differs from majority then non appointment of CJI’s recommended
candidate will be permissible – having high regard to the president it is
delicately put – but in practicality such person shall not be appointed as a
judge.
Incase of one or more member of the
collegium that made a particular recommendation may have retired or are otherwise
unavailable when reasons are disclosed to the CJI for non appointment of that
person. In such situation the reasons must be placed before the remaining
members of the original collegium plus another judge or Judges who have reached
the required seniority (among 4 sr most). It is for this collegium to decide
whether recommendation to be withdrawn or reiterated. CJI may disclose reasons for non appointment
to the concerned person and ask for his response thereto – response should be
considered by the collegium before it withdraws or reiterates the reco.
Second Judges case – majority held
that inter se seniority amongst judges in the HC and their combined seniority
on all India basis should be kept in view and given due weight while making
appointments from amongst HC judges to the SC – Unless strong cogent reason to
justify such departure that order of seniority must be maintained. Merit is the
predominant consideration for the purposes of appointment to the Supreme Court.
Outstanding merit.
HC judge transfer from one court to
another à CJI to take into account views from
CJHC from which court being transferred + plus any other judge whose opinion
matters
Judicial review in case of
appointment or a recommended appointment to the SC or HC is therefore available
if the recommendation concerned is not a decision of the CJI and his senior
most colleagues which is constitutionally requisite. CJI + 4 Sr most judges for
SC appointment. HC appointment CJI + 2 Sr most judges.
For HC transfer given the gravity
involved in transfer of the judges the CJI must obtain the opinion of CJHC of
both courts (from & to).
Para 44 – Summary of the entire case
(34) Shanti Bhushan v. Union of India
(2008) 15 SCALE 647
UoI ultimate authority when it comes
to approving recommendation for appointment as a Judge. Once GoI satisfied that
candidate appointed as an additional judge is suitable to be appointed as a
permanent judge the elaborate consideration is not necessary – non consultation
of collegium by CJI in more than 350 cases between 1.1.1999 to 31.7.2007 – It
means that they were also of the view
that the practice was being followed rightly – therefore the plea that the
opinion of CJI without consultation of the collegium is not legal cannot be
sustained.
But at the same time a person who is
found not suitable for appointment as a permanent judge should not be
considered for extension as an additional judge unless the same is occasioned
because of non availability of vacancy.
Even when additional judge becomes a
permanent judge he is not immune from action if circumstances so warrant.
(35) L. Chandra Kumar v. Union of India,
AIR 1997 SC 1125
A person cannot go directly to the
supreme court from a decision of a Tribunal without first going to the High
Courts. The tribunals cannot oust the jurisdiction of the High Courts under
A226/227 and that of Supreme Court under A32 which is a part of the inviolable
basic structure of the Constitution. While this jurisdiction cannot be ousted
even by a constitutional provision, other courts and tribunals may perform a
supplemental as opposed to a substitutional role. The power vested in the HC to
“exercise judicial superintendence over the decision of all courts and
tribunals within their respective jurisdictions” is also part of the basic
structure of the Constitution.
Impact of 323-A and 323-B (under
which administrative tribunals were created) on the power of the judicial
review and superintendence of the High Courts (under A226) and of SC (under
A32) were in question. Clause 2(d) of 323A and Cl 3(d) of 323B to the extent
they exclude the jurisdiction of the HC & SC were held to be
unconstitutional. Power under A226 of HC and A32 of SC a part of basic
structure of the Constitution.Because a situation where the HCs are divested of
all other judicial functions apart from that of constitution interpretation is
equally to be avoided.
Judicial review is of three types –
judicial review of legislative action, judicial decisions, and administrative
action.
(36) Daryoo v. State of U.P. AIR
1961 SC 1457 (omitted from syllabus)
(37) Asif Hameed v. State of
J&K, AIR 1983 SC 1899 (omitted from syllabus)
(38) Rudul Sah v. State of Bihar,
AIR 1983 SC 1086 (omitted from syllabus)
(39) M.C. Mehta v. UoI, AIR 1987 SC
1086 (omitted from syllabus)
(40) Bandhua Mukti Morcha v. UoI AIR
1984 SC 802 (omitted from syllabus)
(41) Bhim Singh vs State of J&K,
AIR 1986 SC 494 (omitted from syllabus)
Topic 7 -
Distribution of Legislative Powers
Article 245 - 255, Schedule VII
Article 247 Power of Parliament to provide for the establishment of
certain additional courts
Notwithstanding anything in this Chapter, Parliament may by law
provide for the establishment of any additional courts for the better
administration of laws made by Parliament or of any existing law with respect
to a matter enumerated in the Union List.
Article 255 Requirements as to recommendations and previous
sanctions to be regarded as matters of procedure only
No Act of Parliament or of the Legislature of a State, and no
provision in any such Act, shall be invalid by reason only that some
recommendation or previous sanction required by this Constitution was not
given, if assent to that Act was given -
(a) where the recommendation required was that of the Governor,
either by the Governor or by the President;
(b) where the recommendation required was that of the Rajpramukh,
either by the Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that
of the President, by the President.
(a) Doctrine of Territorial Nexus (Article 245)
Article 245 Extent of laws made by Parliament and by the
Legislatures of States
(1) Subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation.
(42) State of Bihar v. Charushila Dasi, AIR
1959 SC 1002 (Doctrine of territorial nexus – extra territorial operation of
state legislature)
A state legislature has power to
legislate wrt to charitable and religious trusts situated within its territory
even though any part of trust property, small or large may be situated in
another State- present case à trust
in Bihar, St legislature had power over it and also over its trustees or their
servants and agents who must be in Bihar to administer the trust.
Held the Bihar Hindu Religious
Trusts Act could affect the trust property situated outside Bihar but being
operated by the trust situated within the territory of Bihar.
(43) State of Bombay v. R.M.D.C., AIR
Bombay State levied a tax on
lotteries and prize competitions in the State – tax was extended to a newspaper
printed and published in Bangalore but had wide circulation in Bombay –
respondent conducted the prize competition through this paper for which entries
were received from Bombay through agents and depots established in the State to
collect entry forms and fees – thus all activities which the competitor is to
undertake took place mostly in Bombay (viz Standing invitations, filling up of
forms and payment of money) – Court held that sufficient territorial nexus
exist for the State of Bombay to tax newspapers.
(44) Tata Iron & Steel Co. Ltd. v.
State of Bihar, AIR 1958 SC 452
Nexus theory does not impose tax, it
only indicates circumstances in which a tax imposed by a legislature may be
enforced in a particular case – Company contented that Good manufactured in
Bihar but sold, delivered and consumed outside the State – In no transaction
did the property in goods pass to purchasers in Bihar ,- the theory of nexus
cannot be applied to Sales Tax legislation because such a legislation is concerned
with a tax on transaction of sale i.e. completed sale – Bihar State legislature
could not give an extended definition to the word sale and impose tax on
anything short of a sale.
Court observed the producer gets his
sales price with respect to goods which were in Bihar at the time of the event
the agreement of sale was made or which were produced or manufactured in Bihar.
Fact of goods being in Bihar does not automatically constitute a sale – No tax
liability accrued until there was a concluded sale in the sense of transfer of
title. There was no enlargement of the meaning of sale but the act only raised
a fiction on the strength of facts mentioned therein and deemed the sale to
have taken place in Bihar State – Those facts were used for locating the situs
of sale in Bihar – Court thus upheld the levy of tax.
(b) Subject-matter of laws made by Parliament and by the
legislatures of States (Article 246)
Article 246 Subject-matter of laws made by Parliament and by the
Legislatures of States
(1) Notwithstanding anything in clauses (2) and (3), Parliament has
exclusive power to make laws with respect to any of the matters enumerated in
List I in the Seventh Schedule (in this Constitution referred to as the
"Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject
to clause (1), the Legislature of any State also, have power to make laws with
respect to any of the matters enumerated in List III in the Seventh Schedule
(in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with respect to
any of the matters enumerated in List II in the Seventh Schedule (in this
Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for
any part of the territory of India not included in a State notwithstanding that
such matter is a matter enumerated in the State List.
(c) Interpretation of legislative lists
(i) Plenary and
Ancillary Power of Legislation
(ii) Effect of
Obstante Clause
(iii) Doctrine
of Harmonious Construction
(45) In re C P & Berar Sales of Motor
Spirit & Lubricants Taxation Act 1938, AIR 1939 FC 1 (Doctrine Harmonious
C)
The Central legislature will have
the power to impose duties of excisable articles before they become part of the
general stock of the Province that is to say at the stage of manufacture or the
production and the provincial legislature an exclusive power to impose a tax on
sales thereafter.
This view reconciles the conflict
between the two entries without doing violence to the language of either and it
demarcates their respective territories of legislation on a reasonable &
logical basis. The court thus reconciled the federal power to impose excise
duty and the States power to impose sales tax
Issue: Whether tax imposed by
provincial legislature on the sale of oil was bad on the ground that it was in
essence an excise duty – When a sales tax could be imposed by a provincial
legislature an excise duty could be imposed only by federal(Union) legislature.
Court looked into the meaning of
éxcise’ – oxford dictionary à duty
charged on home goods either in the process of manufacture or before their sale
to home consumers. The duty on first sale of the commodity is a tax on the
producer and for that reason a duty of excise without doubt
Held that power of Union to levy
excise duty at any stage before sales of goods to consumers. Power continues
while articles are in the hands of the manufacturer or any intermediate dealer.
Power of province extends to levying
tax on sale of goods to consumers.
Fundamental assumption that the
legislative powers of Center and Province could not have been intended to
conflict with one another.
Court held : - It was a sales tax
act and the impugned act was not ultra vires. There is no overlapping(or
conflict) of two entries, so as to apply non-obstante clause.
(46) Gujarat University v. Krishna
Ranganath Mudholkar, AIR 1963 SC 703
Two issues – whether under Gujarat
University Act it is open to university to prescribe Gujarati or Hindi or both
as an exclusive medium of media of instruction and examination in affiliated
colleges, second whether legislation authorizing the university to impose such media
would infringe Entry 66 of the Union List.
Centers power in Entry 66 would
prevail over similar item in item 11 of state list in case of conflict.
State of Gujarat lacks legislative
competence undet the State List to prescribe any particular medium of
instruction in respect of higher education as it interferes with the power of
Union Parliament under List I – coordination and determination of standards in
institutions of higher education.
(iv)
Doctrine of Pith & Substance - Pith means "true
nature" or "essence" and substance means the essential nature
underlying a phenomenon. Thus, the doctrine of pith and substance relates to
finding out the true nature of a statute. This doctrine is widely used when
deciding whether a state is within its rights to create a statute that involves
a subject mentioned in Union List of the Constitution. The basic idea behind
this principle is that an act or a provision created by the State is valid if
the true nature of the act or the provision is about a subject that falls in
the State list.
Dominant feature
The first step in a pith and
substance has been described in numerous ways.[2] It determines the substance,
essential character, dominant feature, or true meaning of the law. This
involves examining both the intended purpose of the law as well as the legal
effect of the law on rights and obligation upon the public.[3] The purpose can
be found through the wording of the law, the mischief that the law was
intending to address as well as the overall social context for the law's
introduction. Examination of the actual effect is useful in determining if the
law was "colourable," that is, whether the law, in substance,
addresses a matter completely different from what the law addresses in form.
For example, in R. v. Morgentaler (1993) the province of Nova Scotia passed a
law which prohibited certain surgical procedures from being performed outside
of hospitals under the guise of health services protection. The Supreme Court
of Canada ruled that, in substance, they were attempting to ban abortions.
Assignment
Once the law has been characterized
it must be assigned to one of the two heads of power. The matters in the
exclusive domain of the federal government are enumerated under section 91 of
the Constitution Act, 1867 and matters in the exclusive domain of the
provincial government are enumerated under section 92. Whether the
characterization of a law fits within one of the enumerated matters depends on
the breadth given by the court to each matter.
A law found to be valid under the
pith and substance analysis the law may also have some incidental effects upon
matters outside of the government's jurisdiction. This is tolerated, as a law
is classified by its dominant characteristic. The modern approach to Canadian
Constitutional interpretation is to allow a fair amount of interplay and
overlap into the other level of government's jurisdiction.
Ancillary effects doctrine
In many circumstances, however, a
law that is found to be invalid under the pith and substance analysis may still
be saved by using necessarily incidental, or ancillary effects doctrine. In
such cases the intruding provisions of the law will only be upheld if they
satisfy the "rational connection" test.
Necessarily incidental or ancillary
effects The full test was articulated in General Motors v. City National
Leasing (1989). The standard used depends on the seriousness of the
encroachment. The Court must consider the degree the valid legislative scheme
intrudes upon the other government's jurisdiction. If it is a minor intrusion,
then the provision need only be "rationally connected." Otherwise for
serious encroachments the provisions must be "truly necessary" or
"essential" to the functioning of the law.
(47) Prafulla Kumar v. Bank of Commerce,
Kulna, AIR 1947 PC 60
Validity of Bengal Money Lender Act
which limited the amount and rate of interest recoverable by a money lender on
any loan was challenged on the ground that it was ultra vires the Bengal
legislature in so far as it related to Promissory notes which was a Central
subject.
The pith and substance of the
impugned act being money lending a State subject and it was valid even though
it trenched incidentally on Promissory Notes a Central subject.
Laid down following principles
(i) clear cut distinction is never
possible. To ascertain pith & substance of impugned act one must consider
(a) Object of the act (b) Scope of the Act (c) Effect of the act as a whole
(ii) The extent of invasion by a
legislature in other list is an important matter not for determining validity
of law but for determining the pith & substance of impugned act.
(iii) Where 3 Lists are in conflict
List I has priority over List II & III, and III over II
(48) State of Karnataka v. M/s
Drive-in Enterprises, AIR 2001 SC 1328
Entertainment tax 3% per person and
2% per vehicle – 2%0 per vehicle challenged – contended that State Legislature
not competent to enact law to levy tax under Entry 62, List II of the 7th
Schedule on admission of cars/motor vehicles inside such theatre. I.e Vehicle
are not entertained and hence there cannot be entertainment tax on vehicles.
HC accepted contention and declared
the act ultra vires – State changed the legislation and again levied tax on
this. Matter went to SC.
Apex court looked into the meaning
of the word entertainment – held it was wide enough to comprehend in it the
luxury or comfort with which a person entertains himself. Once such a nexus is
identified between the legislative competence and the subject of taxation, the
levy is justified and valid.
(49) State of Rajasthan v. G Chawla, AIR
1959 SC 544
Amplifier case –Validity of
Ajmer(Sound Amplifiers Control) Act. State contended use of amplifiers fell with
Entry 6, List II ‘public heath & sanitation’
Respondent contended that the
impugned law fell under List I Entry 31 – ‘P&T, Telephones, Wireless,
Broadcasting and like forms of Communications’ – Court looked into the pith and
substance of the impugned law
Held that manufacture or licensing
of amplifiers or the control over their ownership or possession including the
regulation of trade in such apparatus is one matter but the control of the use
of such apparatus though legitimately owned and possessed to the detriment of
tranquility health and comfort of others is quite another. It cannot be said
that public health does not demand control over the use of such apparatus by
day or by night or in the vicinity of hospitals or schools or offices or
habited localities.
Court held that the law is its pith
and substance fell substantially within the State list even though amplifier is
an apparatus for communication thus incidentally encroaching on the Union
subject.
(v)
Colorable exercise of Legislative Power
(50) K.C. Gajapati Narayan Deo v. State of
Orissa, AIR 1953 SC 375
Doctrine of Colorable legislation –
You cannot do indirectly what you cannot do directly
If the legislature is competent to
do a thing directly then the mere fact that it attempted to do it in a
disguised manner cannot make the Act invalid. Doctrine has reference to the
competence and not to the motives, bona fides or mala fides of the legislature.
It is the pith and substance of the
Act that is material and not merely the form or outward appearance. The extent
of encroachment in the field reserved for the other legislature is an element
for determining whether the impugned act is a colorable piece of legislation.
Constitutional validity of Orissa
Agricultural Income Tax(Amendment) Act, 1950 –
Orissa Estate Abolition Act
Contended that the legislation was
intended not for taxation but to reduce by artificial means the net income of
the intermediataries so that compensation payabe to them in respect to
compulsorily acquired might be kept down to as low as possible – Contention
really is that though apparently it purported to be a taxation statute coming
under Entry 46 List II, really and in substance it was not so – It was
introduced under the guise of a taxation statute with a view to accomplish an
ulterior purpose, namely to inflate the deductions for the purpose of valuing
an estate so that the compensation
payable in respect of it might be as small as possible.
Court held
1.
Doctrine of colorable
legislation does not involve any ques of bona fides or mala fides
2.
Distinction however exists
between a legislature which is legally omnipotent like UK Parliament and a
legislature which enjoys a limited or a qualified jurisdiction
3.
State transgression may be
patent, manifest or direct but it may also be disguised, covert and indirect
and it is to this latter class of cases that the expression colorable
legislation has been applied.
4.
It’s the substance of the act
which is material and not the appearance or outer form
5.
For purpose of investigation
the court could take into consideration its object, purpose or design. But
relevant only to determine true character and field of legislation.
6.
Orissa Agricultrual Income
tax(amendment) act 1950 is certainly a legislation on taxing of agricultural
income as described in Entry 46 of List II. The state legislature has undoubted
competency to legislate on agricultural income tax and the substance of the
amended legislation of 1950 is that it purports to increase existing rates of
agricultural income tax. This may be unjust or inequitable but that does not
affect the competency of the legislature.
7.
Under Entry 42 of List III
which is a mere head of legislative power the legislature can adopt any
principle of compensation in respect to properties compulsorily acquired. Whether
deductions are large or small they do not affect the constitutionality of a
legislation under this entry.
8.
Question of motive does not
arise.
Held that Orissa Agricultural Income
Tax 1950 could not be held to be a piece of colorable legislation.
(d) Residuary Power of
Legislation (Article 248)
Article 248 Residuary
powers of legislation
(1) Parliament has exclusive power
to make any law with respect to any matter not enumerated in the Concurrent
List or State List.
(2) Such power shall include the
power of making any law imposing a tax not mentioned in either of those Lists.
(51) UoI v. H.S. Dhillon, AIR 1972 SC 1061
The residuary powers are conferred
exclusively on Parliament by the Art 248. There is a difference between entry
97 of List I and the Art 248 as the entry 97 indicates only the subject matter
while Article 248 is an enabling provision and enables Parliament to make laws.
Art 248 should include within its
powers only those matters which are not enumerated in any of three lists. And
thus residuary power cannot include power exclusively given to Parliament under
Article 246(1) read with List I.
Issue whether Parliament had
legislative competence to pass Wealth tax act imposing wealth tax on the assets
of a person in agricultural land. Wealth tax act 1957 was amended by the
Finance Act 1969 to include the capital value of agricultural land for the
purpose of computing net wealth. Relevant entries in this case were Entry
86(List I) which includes taxes on capital value of assets, exclusive of
agricultural land, Entry 49 (List II) which includes Taxes on Lands &
buildings and Entry 97(List I)
Two major questions for
consideration which arose were (i) Whether scope & extent of A248 should be
identified with Entry 97 (ii) Whether the subject matter of Entry 97 by virtue
of the words any other matter not enumerated in List II or III is inclusive of
the subject matter of entries List 1 – 96.
HC ruled act was beyond legislative
competence of Parliament, matter came up before the SC
Contended on behalf of Union that
impugned act is not a law wrt any entry(including entry in List II). If this is
so it must come fall under the legislative competence of Parliament under entry
86 r/w entry 97 or entry 97 by itself r/w A248 of the constitution
Contended on behalf of respondents
that exclusive power given to State to legislate wrt agricultural land or
income on agricultural land and taxes thereon; in this context the object and
the effect of specially excluding the agricultural land from the scope of entry
86 was also to take it out of the ambit of entry 97, List I and Art 248.
SC obsrvd that A246 r/w three lists
confers positive powers on Parliament and State legislatures as demarcated in 3
lists but matters enumerated in 3 lists do not by themselves enable Parliament
or State legislatures to make laws. Residuary powers are conferred exclusively
on Parliament by A248. There is a difference between entry 97 of List I and the
Art 248 as the entry 97 indicates only the subject matter while Article 248 is
an enabling provision and enables Parliament to make laws.
Nothing in Constitution preventing
parliament from combining its powers in Entry 86 with its powers in Entry 97.
Thus the impugned Act is valid.
--
(e) Parliament's Power
to Legislate in List II(State List) - Articles 246(4), 247, 249-253, 352, 356
Article 249 Power of Parliament to legislate with respect to a
matter in the State List in the National interest
(1) Notwithstanding anything in the foregoing provisions of this
Chapter, if the Council of States has declared by resolution supported by not
less than two-thirds of the members present and voting that it is necessary or
expedient in the national interest that Parliament should make laws with
respect to any matter enumerated in the State List specified in the resolution,
it shall be lawful for Parliament to make laws for the whole or any part of the
territory of India with respect to that matter while the resolution remains in
force.
(2) A resolution passed under clause (1) shall remain in force for
such period not exceeding one year as may be specified therein:
Provided that, if and so often as a resolution approving the
continuance in force of any such resolution is passed in the manner provided in
clause (1), such resolution shall continue in force for a further period of one
year from the date on which under this clause it would otherwise have ceased to
be in force.
(3) A law made by Parliament which Parliament would not but for the
passing of a resolution under clause (1) have been competent to make shall, to
the extent of the incompetency, cease to have effect on the expiration of a
period of six months after the resolution has ceased to be in force, except as
respects things done or omitted to be done before the expiration of the said
period.
Article 250 Power of Parliament to legislate with respect to any
matter in the State List if a Proclamation of Emergency is in operation
(1) Notwithstanding anything in this Chapter, Parliament shall,
while a Proclamation of Emergency is in operation, have power to make laws for
the whole or any part of the territory of India with respect to any of the
matters enumerated in the State List.
(2) A law made by Parliament which Parliament would not but for the
issue of a Proclamation of Emergency have been competent to make shall, to the
extent of the incompetency, cease to have effect on the expiration of a period
of six months after the Proclamation has ceased to operate, except as respects
things done or omitted to be done before the expiration of the said period.
Article 251 Inconsistency between laws made by Parliament under
articles 249 and 250 and laws made by the legislatures of States
Nothing in articles 249 and 250 shall restrict the power of the
Legislature of a State to make any law which under this Constitution it has
power to make, but if any provision of a law made by the Legislature of a State
is repugnant to any provision of a law made by Parliament which Parliament has
under either of the said articles power to make, the law made by Parliament,
whether passed before or after the law made by the Legislature of the State, shall
prevail, and the law made by the Legislature of the State shall to the extent
of the repugnancy, but so long only as the law made by Parliament continues to
have effect, be inoperative.
Article 252 Power of Parliament to legislate for two or more States
by consent and adoption of such legislation by any other State
(1) If it appears to the Legislatures of two or more States to be
desirable that any of the matters with respect to which Parliament has no power
to make laws for the States except as provided in articles 249 and 250 should
be regulated in such States by Parliament by law, and if resolutions to that
effect are passed by all the Houses of the Legislatures of those States, it
shall be lawful for Parliament to pass an Act for regulating that matter
accordingly, and any Act so passed shall apply to such States and to any other
State by which it is adopted afterwards by resolution passed in that behalf by
the House or, where there are two Houses, by each of the Houses of the
Legislature of that State.
(2) Any Act so passed by Parliament may be amended or repealed by an
Act of Parliament passed or adopted in like manner but shall not, as respects
any State to which is applies, be amended or repealed by an Act of the
Legislature of that State.
Article 253 Legislation for giving effect to international
agreements
Notwithstanding anything in the foregoing provisions of this
Chapter, Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any international
conference, association or other body.
Article 352 Proclamation of Emergency
(1) If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or armed rebellion, he may,
by proclamation, make a declaration to that effect in respect of the whole of
India or of such part of the territory thereof as may be specified in the
proclamation.
Explanation: A proclamation of Emergency declaring that the security
of India or any part of the territory thereof is threatened by war or by
external aggression or by armed rebellion may be made before the actual
occurrence of war or of any such aggression or rebellion, if the President is
satisfied that there is imminent danger thereof.
(2) A Proclamation issued under clause (1) may be varied or revoked
by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or
a Proclamation varying such Proclamation unless the decision of the Union
cabinet (that is to say, the Council consisting of the Prime Minister and other
Ministers of Cabinet rank appointed under article 75) that such a Proclamation
may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid
before each House of Parliament and shall, except where it is a Proclamation
revoking a previous Proclamation, cease to operate at the expiration of one
month unless before the expiration of that period it has been approved by
resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation
revoking a previous Proclamation) is issued at a time when the House of the
People has been dissolved, or the dissolution of the House of the People takes
place during the period of one month referred to in this clause, and if a
resolution approving the Proclamation has been passed by the Council of States,
but no resolution with respect to such Proclamation has been passed by the
House of the People before the expiration of that period, the Proclamation
shall cease to operate at the expiration of thirty days from the date on which
the House of the People first sits after its reconstitution, unless before the
expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to
operate on the expiration of a period of six months from the date of the
passing of the second of the resolutions approving the Proclamation under
clause (4):
Provided that if and so often as a resolution approving the
continuance in force of such a Proclamation is passed by both Houses of
Parliament the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which it would otherwise have
ceased to operate under this clause:
Provided further that if the dissolution of the House of the People
takes place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States but no resolution with respect to the continuance in force of such
Proclamation has been passed by the house of the people during the said period,
the proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days, a resolution
approving the continence in force of the Proclamation has been also passed by
the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be
passed by either House of Parliament only 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.
(7) Notwithstanding anything contained in the foregoing clauses, the
President shall revoke a Proclamation issued under clause (1) or a Proclamation
varying such Proclamation if the House of the People passes a resolution
disapproving, or, as the case may be, disapproving the continence in force of,
such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of
the total number of members of the House of the People has been given, of their
intention to move a resolution for disapproving, or, as the case may be, for
disapproving the continuance in force of, a Proclamation issued under clause
(1) or a Proclamation varying such Proclamation, -
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special
sitting on the House shall be held within fourteen days from the date on which
such notice is received by the Speaker, or, as the case may be, by the
President, for the purpose of considering such resolution.
(9) The power conferred on the President by this article shall
include the power to issue different Proclamations on different grounds, being
war or external aggression or armed rebellion or imminent danger of war or
external aggression or armed rebellion, whether or not there is a Proclamation
already issued by the President under clause (1) and such Proclamation is in
operation.
Article 356 Provisions in case of failure of constitutional
machinery in States
(1) If the President, on receipt of a report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in which the
government of the State cannot be carried on in accordance with the provisions
of this Constitution, the President may by Proclamation -
(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable by the
Governor or any body or authority in the State other than the Legislature of
the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of this Constitution relating to any body or
authority in the State:
Provided that nothing in this clause shall authorise the President
to assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any provision of this
Constitution relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) Every Proclamation under this article shall be laid before each
House of Parliament and shall, except where it is a Proclamation revoking a
previous Proclamation, cease to operate at the expiration of two months unless
before the expiration of that period it has been approved by resolutions of
both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation
revoking a previous Proclamation) is issued at a time when the House of the
People is dissolved or the dissolution of the House of the People takes place
during the period of two months referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of
the People before the expiration of that period, the Proclamation shall cease
to operate at the expiration of thirty days from the date on which the House of
the People first sits after its reconstitution unless before the expiration of
the said period of thirty days a resolution approving the Proclamation has been
also passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to
operate on the expiration of a period of six months from the date of issue of
the Proclamation:
Provided that if and so often as a resolution approving the
continuance in force of such a Proclamation is passed by both Houses of
Parliament, the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which under this clause it would
otherwise have ceased to operate, but no such Proclamation shall in any case
remain in force for more than three years:
Provided further that if the dissolution of the House of the People
takes place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States, but no resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the said period,
the Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days a resolution
approving the continuance in force of the Proclamation has been also passed by
the House of the People:
Provided also that in the case of the Proclamation issued under
clause (1) on the 11th day of May, 1987 with respect to the State of Punjab the
reference in the first provisio to this clause to "three years" shall
be construed as a reference to Five years.
(5) Notwithstanding anything contained in clause (4), a resolution
with respect to the continuance in force of a Proclamation approved under
clause (3) for any period beyond the expiration of one year from the date of
issue of such Proclamation shall not be passed by either House of Parliament
unless -
(a) a Proclamation of Emergency is in operation, in the whole of
India or, as the case may be, in the whole or any part of the State, at the
time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force
of the Proclamation approved under clause (3) during the period specified in
such resolution is necessary on account of difficulties in holding general
elections to the Legislative Assembly of the State concerned:
Provided that nothing in this clause shall apply to the Proclamation
issued under clause (1) on the 11th day of May, 1987 with respect to the State
of Punjab.
(f)
Doctrine of Repugnancy (Article 254)
Article 254 Inconsistency between laws made by Parliament and laws
made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or
after the law made by the Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by the Legislature of the
State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the legislature of a State with respect to
one of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an existing
law with respect to that matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of
the State.
(52) Hoechst Pharmaceuticals Lts v. State
of Bihar AIR 1983 SC 1019
The court rejected a petition
seeking application of Art 254(1) to cases of repugnancy due to overlapping
found between List II on one hand and List I & III on the other hand. It
was held that if such an overlapping exists the conflict shall be resolved by
Art 246 with the help of the doctrine of pith & substance.
For A254 to apply, two conditions
are to be fulfilled, 1st the provisions of the State and Union Law
must both in respect of a matter in Concurrent List i.e. List III and second
they must be repugnant to each other.
Issue: Whether repugnancy between
Drugs(Price Control) Order made under S3 of Essential Commodities Act ( A union
act) and the S5 Bihar Finance Act ( a State Act ) – while the former act
confers a right on the manufacturer or producers to pass on the liability for
sales tax on the consumers, the latter act prohibits such passing.
Union law à Entry 33 of List III(Concurrent) , State law à Entry 54 (State List).
Appellant Hoechst contends that
State trenches upon Union power to legislate wrt to fixation of price of
essential commodities. It is said that if both are valid then ex-hypothesi law
made by parliament must prevail and the state law pro tanto must yield.
Court observed that principle of
supremacy of Centre laid down in A246 cannot be resorted unless irreconcilable
conflict between the entries in Union and State lists. In the case of a seeming
conflict, the entries should be read together without giving a narrow meaning
to either of them, It should be considered whether a fair reconciliation can be
achieved by giving to the language of Union List a meaning which if less wide
than it might in another context bear, is yet one that can properly be given to
it and equally giving to the language of the State list a meaning which it can
properly bear. The non obstante clause in A246(1) (Notwithstanding anything
contained in Cl(2) & (3) must operate only if such reconciliation should
prove impossible.
No question of conflict to arise if
by doctrine of pith and substance the encroachment is only incidental.
Court observed that argument of
appellant cannot prevail as
(i)
Entry 54 of List II is a tax
entry and therefore there is no question of repugnancy. Complete separation of
taxing powers of Union and State under A246.
(ii)
Question of repugnancy can only
arise in connection with subjects relating to Concurrent List.
A254(1) has no application incase of
repugnancy due to overlapping between List II on one hand and List I & III
on the other. If such an overlapping exists then state law will be ultra vires,
because of non-obstante clause in A246(1) r/w opening words ‘subject to’in
A246(3). In such a case the State law will not fail because of repugnancy to
Union law, but due to want of legislative competence.
Court held that two acts operate on
two separate and distinct fields and both are capable of being obeyed. There is
no questions of any clash between the two laws & the question of repugnancy
does not come into play.
(53) Zaverbhai v. State of Bombay AIR 1954
SC 752
Application of proviso to Cl(2) of
A254 – Parliament enacted Essential Supplies Act which provided punishment upto
3 years – Bombay legislature later passed an Act enhancing punishment upto 7
years. Act received Governor General’s assent and became operative. Subsequent
to Bombay Act, amendments were made in the Central Act by Parliament with
changes in punishment.
SC held that since both occupied
same field, the Bombay Act was impliedly repealed by the Parliamentary Act
because of repugnancy.
Topic 8 - Freedom
of Trade, Commerce & Intercourse
Concept of Trade and Commerce: Scope of Freedom of trade, commerce
and intercourse;
Fiscal Measures; Direct and Immediate Restrictions; Regulatory
Measures, Compensatory Taxes; Restrictions on Trade, commerce and intercourse
among states - Power of Parliament and State Legislatures; State Monopoly
(Articles 301 - 307)
Article 301 Freedom of trade, commerce and intercourse
Subject to the other provisions of this Part, trade, commerce and
intercourse throughout the territory of India shall be free.
Article 302 Power of Parliament to impose restrictions on trade,
commerce and intercourse
Parliament may by law impose such restrictions on the freedom of
trade, commerce or intercourse between one State and another or within any part
of the territory of India as may be required in the public interest.
Article 303 Restrictions on the legislative powers of the Union and
of the States with regard to trade and commerce
(1) Notwithstanding anything in article 302, neither Parliament nor
the Legislature of a State shall have power to make any law giving, or
authorising the giving of, any preference to one State over another, or making,
or authorising the making of, any discrimination between one State and another,
by virtue of any entry relating to trade and commerce in any of the Lists in
the Seventh Schedule.
(2) Nothing in clause (1) shall prevent Parliament from making any
law giving, or authorising the giving of, any preference or making, or
authorising the making of, any discrimination if it is declared by such law
that it is necessary to do so for the purpose of dealing with a situation
arising from scarcity of goods in any part of the territory of India.
Article 304 Restriction on trade, commerce and intercourse among
States
Notwithstanding anything in article 301, the Legislature of a State
may by law -
(a) impose on goods imported from other States or the Union
territories any tax to which similar goods manufactured or produced in that
State are subject, so, however, as not to discriminate between goods so
imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce
or intercourse with or within that State as may be required in the public
interest:
Provided that no Bill or amendment for the purposes of clause (b)
shall be introduced or moved in the Legislature of a State without the previous
sanction of the President.
Article 305 Saving of existing laws and laws providing for State
monopolies
Nothing in articles 301 and 303 shall affect the provisions of any
existing law except in so far as the President may by order otherwise direct;
and nothing in article 301 shall affect the operation of any law made before
the commencement of the Constitution (Fourth Amendment) Act, 1955, in so far as
it relates to, or prevent Parliament or the Legislature of a State from making
any law relating to, any such matter as is referred to in sub-clause (ii) of
clause (6) of article 19.
Article 306 Power of certain States in Part B of the First Schedule
to impose restrictions on trade and commerce {...}
Article 307 Appointment of authority for carrying out the purposes
of articles 301 to 304
Parliament may by law appoint such authority as it considers
appropriate for carrying out the purposes of articles 301, 302, 303 and 304,
and confer on the authority so appointed such powers and such duties as it
thinks necessary.
(54) Automobile Transport (Rajasthan) Ltd
v. State of Rajasthan AIR 1962 SC 1046
Facts: The State of Rajasthan had
levied a tax on motor vehicles (Rs. 60 on a motor car and Rs. 2000 on a goods
vehicle per year) used within the state in any public place or kept for use in
the state. The validity of the tax was challenged.
Taking the view that freedom of
trade and commerce under Art. 301 should not unduly cripple state autonomy, and
that it should be consistent with an orderly society, the Supreme Court now
ruled that regulatory measures and compensatory taxes for the use of trading
facilities were not hit by Art. 301 as these did not hamper, .but rather
facilitated, trade, commerce and intercourse.
Issue: A working test to decide
whether a tax is compensatory or not would be to enquire whether the trades
people are having the use of certain facilities for the better conduct of their
business and paying not patently much more than what is required for providing
the facilities? A tax does not cease to be compensatory because the precise or
specific amount collected is not actually used in providing facilities.
The concept of compensatory tax
evolved in this case was something new as in Atiabari, the court had dismissed
the argument that the money realized through the tax would be used to improve
roads and waterways rather curtly by saying that there were other ways, apart
from the tax in question, to realize the money, and that if the said object was
intended to be achieved by levying a tax on the carriage of goods, the same
could be done only by satisfying Art. 304(b).
Decision: The court ruled that the
tax was not hit by Art. 301, as it was a compensatory tax having been levied
for use of the roads provided for and maintained by the state.
Thus, to this extent, the majority
view in Atiabari was now overruled by Automobile.
Since then the concept of regulatory
and compensatory taxes has become established in India with reference to
entries 56 and 57, List II, and the concept has been applied in several cases,
and progressively the courts have liberalised the concept so as to permit state
taxation at a higher level.
(55) Jindal Stainless Ltd. v. State of
Haryana, AIR 2006 SC 2550 – an industry
manufacturing products within the State of Haryana, purchased raw materials from
outside the State and sent finished products to other states on consignment
basis or stock transfer basis – Haryana Local Development tax, state divided
into local areas. The impugned act provided for levy & collection of tax on
entry of goods into the local areas of the State for consumption or use
therein. Entry tax fell on concerns like the Jindal Stainless ltd which by
virtue of Central Sales Tax Act, 1956 pay sales tax of raw material and sales
of finished goods to other States and do not pay sales tax to the Haryana
State. It was held that impugned act violative of A301 and is not saved by
A304. The act in fact seeks to levy sales tax on inter state sales which is
outside the competence of state legislatures.
In context of Art 301 compensatory
tax is a compulsory contribution levied broadly in proportion to the special
benefits derived to defray the costs of regulation or to meet the outlay
incurred for some special advantage to trade, commerce and intercourse. It may incidentally
bring in net revenue to the Govt but that circumstance is not an essential
ingredient of compensatory tax.
Court held: Tax laws not excluded
from operation of A301, which means tax laws can and do amount to restrictions
on the freedom guaranteed to trade under Part XIII of the const. This principle
is well settled. Doctrine of “direct & immediate effect”
(56) G.K. Krishnan v. State of Tamil Nadu
Facts: The State of Tamil Nadu
increased the motor vehicles tax from Rs. 30 to 100 per seat per quarter and
this was challenged as being violative of Art. 301.
Issue: whether a non-discriminatory
tax levied by a state should be regarded as a restriction on trade and commerce
because of the feeling that this would curtail state autonomy to levy taxes
falling in the state legislative sphere?
But the Supreme Court upheld the
tax. The court stated, "A compensatory tax is not a restriction upon the
movement part of trade and commerce." The tax should not go beyond "a
proper recompense to the State for the actual use made of the physical facilities
provided in the shape of a road." In the instant case, the tax collections
amounted to over Rs. 16 crores while the expenditure for the year amounted to
Rs. 19.51 crores and this amount did not include the grants to local
governments for the repair and maintenance of roads within their jurisdiction.
The tax was thus held to be compensatory and hence valid.
The Supreme Court further
liberalised the state taxing power by upholding a state tax on passengers and
goods carried on national highways.
(57) m/s Video Electronics (pvt) Ltd v.
State of Punjab, AIR 1990 SC 820 (Overruled)
(58) Shree Mahavir Oil Mills v. State of
J&K (1996) 11 SCC 39 – Unconditional exemption
to edible oil industry within the State for a period of 10 years and at the
same time subjecting edible oil industries from other states to Sales Tax at 8%
has been held discriminatory and violative of S304(a)
(59) Atiabari Tea Co. v. State of Assam,
AIR 1961 SC 232
Validity of the Assam taxation(on
goods carried by road or inland waterways) Act, 1954 challenged on the ground
that it violated Art 301 – petitioners were carrying on the business of growing
tea and exporting it to Calcutta via Assam, thus, liable to the tax under the
aforesaid Act while passing the Assam State – SC held that the tax imposed on
the goods directly restricted their transport or movement and therefore
offended against 301
Topic 9
- Emergency Provisions
(a) Proclamation of Emergency on grounds of war, external aggression
and armed rebellion (Art 352, 358, 359)
Article 352 Proclamation of Emergency
(1) If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or armed rebellion, he may,
by proclamation, make a declaration to that effect in respect of the whole of
India or of such part of the territory thereof as may be specified in the
proclamation.
Explanation: A proclamation of Emergency declaring that the security
of India or any part of the territory thereof is threatened by war or by
external aggression or by armed rebellion may be made before the actual
occurrence of war or of any such aggression or rebellion, if the President is
satisfied that there is imminent danger thereof.
(2) A Proclamation issued under clause (1) may be varied or revoked
by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or
a Proclamation varying such Proclamation unless the decision of the Union
cabinet (that is to say, the Council consisting of the Prime Minister and other
Ministers of Cabinet rank appointed under article 75) that such a Proclamation
may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid
before each House of Parliament and shall, except where it is a Proclamation
revoking a previous Proclamation, cease to operate at the expiration of one
month unless before the expiration of that period it has been approved by
resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation
revoking a previous Proclamation) is issued at a time when the House of the
People has been dissolved, or the dissolution of the House of the People takes
place during the period of one month referred to in this clause, and if a
resolution approving the Proclamation has been passed by the Council of States,
but no resolution with respect to such Proclamation has been passed by the House
of the People before the expiration of that period, the Proclamation shall
cease to operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution, unless before the
expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to
operate on the expiration of a period of six months from the date of the
passing of the second of the resolutions approving the Proclamation under
clause (4):
Provided that if and so often as a resolution approving the
continuance in force of such a Proclamation is passed by both Houses of
Parliament the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which it would otherwise have
ceased to operate under this clause:
Provided further that if the dissolution of the House of the People
takes place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States but no resolution with respect to the continuance in force of such
Proclamation has been passed by the house of the people during the said period,
the proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days, a resolution
approving the continence in force of the Proclamation has been also passed by
the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be
passed by either House of Parliament only 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.
(7) Notwithstanding anything contained in the foregoing clauses, the
President shall revoke a Proclamation issued under clause (1) or a Proclamation
varying such Proclamation if the House of the People passes a resolution
disapproving, or, as the case may be, disapproving the continence in force of,
such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of
the total number of members of the House of the People has been given, of their
intention to move a resolution for disapproving, or, as the case may be, for
disapproving the continuance in force of, a Proclamation issued under clause
(1) or a Proclamation varying such Proclamation, -
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special
sitting on the House shall be held within fourteen days from the date on which
such notice is received by the Speaker, or, as the case may be, by the
President, for the purpose of considering such resolution.
(9) The power conferred on the President by this article shall
include the power to issue different Proclamations on different grounds, being
war or external aggression or armed rebellion or imminent danger of war or
external aggression or armed rebellion, whether or not there is a Proclamation
already issued by the President under clause (1) and such Proclamation is in
operation.
Article 358 Suspension of provisions of article 19 during emergencies
(1) While a Proclamation of Emergency declaring that the security of
India or any part of the territory thereof is threatened by war or by external
aggression is in operation, nothing in article 19 shall restrict the power of
the State as defined in Part III to make any law or to take any executive
action which the State would but for the provisions contained in that Part be
competent to make or to take, but any law so made shall, to the extent of the
incompetency, cease to have effect as soon as the Proclamation ceases to
operate, except as respects things done or omitted to be done before the law so
ceases to have effect:
Provided that where such Proclamation of Emergency is in operation
only in any part of the territory of India, any such law may be made, or any
such executive action may be taken, under this article in relation to or in any
State or Union territory in which or in any part of which the Proclamation of
Emergency is not in operation, if and in so far as the security of India or any
part of the territory thereof is threatened by activities in or in relation to
the part of the territory of India in which the Proclamation of Emergency is in
operation.
(2) Nothing in clause (1) shall apply -
(a) to any law which does not contain a recital to the effect that
such law is in relation to the Proclamation of Emergency in operation when it
is made; or
(b) to any executive action taken otherwise than under a law
containing such a recital.
Article 359 Suspension of the enforcement of the rights conferred by
Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President
may by order declare that the right to move any court for the enforcement of
such of the rights conferred by Part III (except articles 20 and 21) as may be
mentioned in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended for the period
during which the Proclamation is in force or for such shorter period as may be
specified in the order.
(1A) While an order made under clause (1) mentioning any of the
rights conferred by Part III (except articles 20 and 21) is in operation,
nothing in that Part conferring those rights shall restrict the power of the
State as defined in the said Part to make any law or to take any executive
action which the State would but for the provisions contained in that Part be
competent to make or to take, but any law so made shall, to the extent of the
incompetency, cease to have effect as soon as the order aforesaid ceases to
operate, except as respects things done or omitted to be done before the law so
ceases to have effect:
Provided that where a Proclamation of Emergency is in operation only
in any part of the territory of India, any such law may be made, or any such
executive action may be taken, under this article in relation to or in any
State or Union territory in which or in any part of which the Proclamation of
Emergency is not in operation, if and in so far as the security of India or any
part of the territory thereof is threatened by activities in or in relation to
the part of the territory of India in which the Proclamation of Emergency is in
operation.
(1B) Nothing in clause (1A) shall apply -
(a) to any law which does not contain a recital to the effect that
such law is in relation to the Proclamation of Emergency in operation when it
is made; or
(b) to any executive action taken otherwise than under a law
containing such a recital.
(2) An order made as aforesaid may extend to the whole or any part
of the territory of India:
Provided that where a Proclamation of Emergency is in operation only
in a part of the territory of India, any such order shall not extend to any
other part of the territory of India unless the President, being satisfied that
the security of India or any part of the territory thereof is threatened by
activities in or in relation to the part of the territory of Indian in which
the Proclamation of Emergency is in operation, considers such extension to be
necessary.
(3) Every order made under clause (1) shall, as soon as may be after
it is made, be laid before each House of Parliament.
(b) Power of Union Executive to issue directions (e.g. Articles
256,257) and the effect of non-compliance (Art 365); Duty of the Union to protect
the States against external aggression and internal disturbance (Article 355)
Article 256 Obligation of States and the Union
The executive power of every State shall be so exercised as to
ensure compliance with the laws made by 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.
Article 257 Control of the Union over States in certain cases
(1) The executive power of every State shall be so exercised as not
to impede or prejudice the exercise of the executive power of the Union, 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.
(2) The executive power of the Union shall also extend to the giving
of directions to a State as to the construction and maintenance of means of
communication declared in the direction to be of national or military
importance:
Provided that nothing in this clause shall be taken as restricting
the power of Parliament to declare highways or waterways to be national
highways or national waterways or the power of the Union with respect to the
highways or waterways so declared or the power of the Union to construct and
maintain means of communication as part of its functions with respect to naval,
military and air force works.
(3) The executive power of the Union shall also extend to the giving
of directions to a State as to the measures to be taken for the protection of
the railways within the State.
(4) Where in carrying out any direction given to a State under
clause (2) as to the construction or maintenance of any means of communication
or under clause (3) as to the measures to be taken for the protection of any
railway, costs have been incurred in excess of those which would have been
incurred in the discharge of the normal duties of the State if such direction
had not been given, there shall be paid by the Government of India to the State
such sum as may be agreed, or, in default of agreement, as may be determined by
an arbitrator appointed by the Chief Justice of India, in respect of the extra
costs so incurred by the State.
Article 365 Effect of failure to comply with, or to give effect to,
directions given by the Union
Where any State has failed to comply with, or to give effect to, any
directions given in the exercise of the executive power of the Union under any
of the provisions of this Constitution, it shall be lawful for the President to
hold that a situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of this Constitution.
Article 355 Duty of the Union to protect States against external
aggression and internal disturbance
It shall be the duty of the Union to protect every State against
external aggression and internal disturbance and to ensure that the government
of every State is carried on in accordance with the provisions of this
Constitution.
(c) Imposition of President's Rule in States - Grounds, Limitations,
Parliamentary Control, Judicial Review(Articles 356-357)
Article 356 Provisions in case of failure of constitutional
machinery in States
(1) If the President, on receipt of a report from the Governor of a
State or otherwise, is satisfied that a situation has arisen in which the
government of the State cannot be carried on in accordance with the provisions
of this Constitution, the President may by Proclamation -
(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable by the
Governor or any body or authority in the State other than the Legislature of
the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to
the President to be necessary or desirable for giving effect to the objects of
the Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of this Constitution relating to any body or
authority in the State:
Provided that nothing in this clause shall authorise the President
to assume to himself any of the powers vested in or exercisable by a High
Court, or to suspend in whole or in part the operation of any provision of this
Constitution relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) Every Proclamation under this article shall be laid before each
House of Parliament and shall, except where it is a Proclamation revoking a
previous Proclamation, cease to operate at the expiration of two months unless
before the expiration of that period it has been approved by resolutions of
both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation
revoking a previous Proclamation) is issued at a time when the House of the
People is dissolved or the dissolution of the House of the People takes place
during the period of two months referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of
the People before the expiration of that period, the Proclamation shall cease
to operate at the expiration of thirty days from the date on which the House of
the People first sits after its reconstitution unless before the expiration of
the said period of thirty days a resolution approving the Proclamation has been
also passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to
operate on the expiration of a period of six months from the date of issue of the
Proclamation:
Provided that if and so often as a resolution approving the
continuance in force of such a Proclamation is passed by both Houses of
Parliament, the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which under this clause it would
otherwise have ceased to operate, but no such Proclamation shall in any case
remain in force for more than three years:
Provided further that if the dissolution of the House of the People
takes place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States, but no resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the said period,
the Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days a resolution
approving the continuance in force of the Proclamation has been also passed by
the House of the People:
Provided also that in the case of the Proclamation issued under
clause (1) on the 11th day of May, 1987 with respect to the State of Punjab the
reference in the first provisio to this clause to "three years" shall
be construed as a reference to Five years.
(5) Notwithstanding anything contained in clause (4), a resolution
with respect to the continuance in force of a Proclamation approved under
clause (3) for any period beyond the expiration of one year from the date of
issue of such Proclamation shall not be passed by either House of Parliament
unless -
(a) a Proclamation of Emergency is in operation, in the whole of
India or, as the case may be, in the whole or any part of the State, at the
time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force
of the Proclamation approved under clause (3) during the period specified in
such resolution is necessary on account of difficulties in holding general
elections to the Legislative Assembly of the State concerned:
Provided that nothing in this clause shall apply to the Proclamation
issued under clause (1) on the 11th day of May, 1987 with respect to the State
of Punjab.
Article 357 Exercise of legislative powers under Proclamation issued
under article 356
(1) Where by a Proclamation issued under clause (1) of article 356,
it has been declared that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament, it shall be competent -
(a) for Parliament to confer on the President the power of the
Legislature of the State to make laws, and to authorise the President to
delegate, subject to such conditions as he may think fit to impose, the power
so conferred to any other authority to be specified by him in that behalf;
(b) for Parliament, or for the President or other authority in whom
such power to make laws is vested under sub-clause (a), to make laws conferring
powers and imposing duties, or authorising the conferring of powers and the
imposition of duties, upon the Union or officers and authorities thereof;
(c) for the President to authorise when the House of the People is
not in session expenditure from the Consolidated Fund of the State pending the
sanction of such expenditure by Parliament.
(2) Any law made in exercise of the power to the Legislature of the
State by Parliament or the President or other authority referred to in
sub-clause (a) of clause (1) which Parliament or the President or such other
authority would not, but for the issue of a Proclamation under article 356,
have been competent to make shall, after the Proclamation has ceased to
operate, continue in force until altered or repealed or amended by a competent
Legislature or other authority.
(d) Financial Emergency (Article 360)
Article 360 Provisions as to financial emergency
(1) If the President is satisfied that a situation has arisen
whereby the financial stability or credit of India or of any part of the
territory thereof is threatened, he may by a Proclamation make a declaration to
that effect.
(2) A Proclamation issued under clause (1) -
(a) may be revoked or varied by a subsequent Proclamation;
(b) shall be laid before each House of Parliament;
(c) shall cease to operate at the expiration of two months, unless
before the expiration of that period it has been approved by resolutions of
both Houses of Parliament:
Provided that if any such Proclamation is issued at a time when the
House of the People has been dissolved or the dissolution of the House of the
People takes place during the period of two months referred to in sub-clause
(c), and if a resolution approving the Proclamation has been passed by the
Council of States, but no resolution with respect to such Proclamation has been
passed by the House of the People before the expiration of that period, the
proclamation shall cease to operate at the expiration of thirty days from the
date on which the house of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People.
(3) During the period any such Proclamation as is mentioned in
clause (1) is in operation, the executive authority of the Union shall extend
to the giving of directions to any State to observe such canons of financial
propriety as may be specified in the directions, and to the giving of such
other directions as the President may deem necessary and adequate for the
purpose.
(4) Notwithstanding anything in this constitution -
(a) any such direction may include -
(i) a provision requiring the reduction of salaries and allowances
of all or any class of persons serving in connection with the affairs of a
State;
(ii) a provision requiring all Money Bills or other Bills to which
the provisions of article 207 apply to be reserved for the consideration of the
President after they are passed by the Legislature of the State;
(b) it shall be competent for the President during the period any
Proclamation issued under this article is in operation to issue directions for
the reduction of salaries and allowances of all or any class of persons serving
in connection with the affairs of the Union including the Judges of the Supreme
Court and the High Courts.
(60) State of Rajasthan v. Union of India,
AIR 1977 SC 1361 ( 9 Congress Assemblies dissolution case – Janta Party)
Satisfaction of the Prez under Art
356 cannot be questioned except on the grounds that it is malafide & that
it is based on wholly extraneous and irrelevant grounds, because in that case
it would be no satisfaction of the President – thus until unless resort to Art
356 is grossly perverse & unreasonable as to constitute patent misuse of
this provision or an excess of power on admitted facts, judicial review is not
possible.
Art 356 can be used by center for
securing compliance with democratic norms by State. Maintenance of democratic
norms could not be regarded as a perverse or irrelevant ground for the exercise
of power under Art 356.
(61) S.R. Bommai v. Union of India, AIR
1974 SC 1918
Misuse of Article 356 - Presidents
rule over Karnataka - SC marked out the paradigm and limitations within which
Article 356 has to function. SC held A356 - extreme power - last resort - where
it is manifest that there is an impasse and the constitutional machinery in a
State has collapsed.
The principles laid down in this
case put a bar on the dismissal of the state government by the centre for
political gains.
It was in this case that the court
firmly laid down certain provision relating to Presidential proclamation issued
Under Article 356. The Court held that Presidential proclamation under Article
356 is not absolute and the power conferred by Article 356 on president is
conditioned power. The Supreme Court held that presidential proclamation is not
immune from judicial review. Moreover, if the presidential proclamation is held
unconstitutional, the legislature dissolved by the presidential proclamation
can be revived. It was also contended that the Articles 74(2) bars the court
from inquiring about the material on the basis of which the proclamation is
issued, but the court rejected this contention.
The Supreme Court's ruling in the Bommai case
highlighted clearly the many and stringent conditions for the valid exercise of
the power under Article 356. They are:
(i) Whether conditions in fact exist objectively which
render it impossible to carry on the governance of the State in accordance with
the provisions of the Constitution; even so, this power must be used sparingly
and so as not to disturb the federal balance of power between the Union and
States since federalism is part of the un-amendable basic structure of the
Constitution.
(ii) The State's Assembly must not be dissolved before
both Houses of Parliament have approved the proclamation made by the President
under Article 356.
(iii) Even after such approval it will be open to the
courts to consider independently whether in fact conditions so existed as to
warrant exercise of the power under Article 226; judicial review, which is also
part of the basic structure of the Constitution, is available in respect of
Article 356. It can be exercised by the High Courts and the Supreme Court. Once
a prima facie case is made out, the burden of proof will lie on the Government
of India to justify the action.
(iv) The court will be entitled to requisition the
records from the government containing the material on the basis of which the
Council of Ministers of the Government of India tendered the advice to the
President.
(v) The courts have the power to order an interim stay
on the exercise of power under Article 356.
(vi) Lastly, the courts have the
power, if the proclamation is struck down as unconstitutional, to order the
revival of the dissolved State Assembly and restoration of the dismissed State
government.
(62) Rameshwar Prasad v. Union of India,
AIR 2006 SC 980 – Bihar assembly dissolution case
Governor acting on media report of
horse trading – recommended dissolution without allowing floor test
In recommending the dissolution of a
freshly elected assembly or invoking the power under Art 356 the governor or
prez could not act on the grounds of immorality – recommendation for
dissolution of a freshly elected Assembly or invocation of the power under Art
356 was not permissible on the ground of maladministration by or corruption on
the part of a State Government enjoying the majority support of the Assembly –
Court held –
(i)
Open to court to examine
whether the Governor’s report based on which the President was to exercise
power under 356 were (a) based on relevant material (b) Bona fide (c) whether
facts have been duly verified or not
(ii)
Drastic action under mere
suspicion could not be justified.
(iii)
Arijit Pasayat J :- Governor
should truthfully & with a high degree of constitutional responsibility, in
terms of his oath, inform the President that the Government of the State could
not be carried on in accordance with the Constitution, with necessarily a detailed
factual foundation
(iv)
Human errors possible – hence Governor
to act with care & caution. Constitution & constitutionalism abhors
absolutism.
(v)
Recommending dissolution u/
A356 under grounds of immorality not permissible. – defn of morality (vague
& different)
(vi)
Recommending dissolution u/
A356 under grounds of corruption & maladministration also not permissible – other remedies for
these & not article 356.
Court has power to restore the
status quo ante, but in the light of this case( election process at advance
stage) will not do so in order to protect larger interest.
