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indian polity notes

indian polity notes

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Chapter 1: CONSTITUTIONAL FRAMEWORK 

 

Making of the Constitution 1773 - 1947


Events that influenced our constitution and polity during the east India Company rule: 

Regulating Act, 1773: 

 


The controller of East India company was the court of proprietors and court of directors.

The three presidencies of Bombay, Bengal, Madras were independent and managed by governor and his council.

The court of directors were elected annually and managed the affairs of the company. The mismanagement of Indian territories led to bankruptcy of the company and the directors asked for a loan. The government passed this act as a precondition for the loan.

It laid the foundations for a centralized administration in India. Governor of Bengal became the Governor General of Bengal with an executive council of four to assist him. Decisions would be taken by majority and Governor General could only vote in case of tie. Presidencies of Madras and Bombay lost their independence and became subordinate to Bengal.

It established a Supreme Court of Justice at Calcutta. It prohibited the servants of E.I.C from accepting gifts and engaging in private trade.

Pitts Act, 1784: 

 

Board of control was established to control political affairs in India. So a system of dual government was created. The number of members in the governors council were reduced to 3.

The board of control were responsible to the parliament and controlled political affairs. The court of directors were in control of commercial affairs.

 

 

Charter Acts:





Charter Act, 1813: Reduced monopoly of E.I.C to trade with India. But kept monopoly for trade with china.

Charter Act, 1833: Ended all monopolies of E.I.C with respect to trade. Governor General of Bengal became the Governor General of India.

Charter Act, 1853: Created a Central legislative council for legislative functions. It had provincial representation for the first time. Open competitive exams were held for recruitment to the civil service.

 

Government of India Act, 1858:

 

 

Governor General of India became the viceroy of India. The board of control and court of directors, proprietors were abolished and a new office of Secretary of State for India and his Indian council were created. They had supreme power to regulate all affairs.

 

Indian Council Act, 1861:

 

 

Allowed nomination of Indians to the central legislative council. 

Started a portfolio system for convenient transaction of business. 

Viceroy could issue ordinances without consulting the legislative council [lifetime of ordinances = 6 months]. 

Process of decentralization of legislative powers to the provinces began.

Indian Council Act, 1892: 

 

Increased number of non-official members to the central and provincial legislative assemblies. Official majority was retained, however more powers were granted to members. Certain non official members to the Central legislative assembly were nominated from provinces and Bengal chamber of commerce. Also non official members of the provincial assemblies were nominated from local bodies. Limited franchise was introduced in India.

 

Indian Council Act, 1909 [Morley – Minto Reforms]:  

 

Allowed non-official majority in the provinces but not in the central legislative council. It increased number of members in the legislative councils. Allowed for a system of separate electorate [communal representation] for Muslims. Indians were for the first time appointed to the Central Executive council.

 

Government of India Act, 1919: 

 

Subjects on which legislation can be made were divided into central and provincial. Provincial were further divided into reserved and transferred. The reserved subjects were administered by Governors of provinces and their executive councils. Transferred subjects were to be administered with the help of ministers responsible to the provincial legislative councils. 

 

The central legislative council was replaced by a bicameral legislature. Majority of members of both houses were non-official and chosen by direct elections. 

 

Central executive council to have 3 Indian members out of six. 

 

Made provision for a public service commission. Granted a limited franchise based on education and property. Created a statutory body to inquire into and report on the working of the act in 10 years of its coming into force.

 

Simon Commission [1927] 

 

It was established to review the working of the Act. All members were British and so the commission was boycotted by majority of the political parties. The recommendations were continuation of communal representation, abolition of diarchy, extension of responsible government in provinces, creation of Indian federation of British India and princely states.

 

Three round table conferences were conducted by British government with representatives of British India, princely states and British government. A white paper on this was presented to the British parliament and the suggestions were incorporated into Government of India Act, 1935.

 

Communal award, 1932: 

 

British PM Ramsay McDonald extended the separate electorate to Scheduled classes. This was protested by Gandhi who went on fast unto death. Finally, BR Ambedkar and Gandhiji signed the Poona Pact by which separate electorates were removed and reservations were given to dalits.

 

Government of India Act, 1935: 

 

It provided for establishment of All India federation of provinces and princely states. It divided legislative powers into Central, Provincial and Concurrent. Residuary powers were with the viceroy. However, the federation never came into existence as princely states didn’t join it.

 

It replaced diarchy in provinces with provincial autonomy. At provinces, governor would act with aid and advice of ministers responsible to the provincial legislative councils.

It introduced diarchy at the centre as central subjects were divided into reserved [viceroy and executive council] and transferred [viceroy with aid and advice of legislative council]. However this too never became operational.

 

Provision of a Reserve bank, provincial public service commission and Joint public service commission. Establishment of a federal court. Extended franchise to Indians, separate representation to dalits. Replaced Indian council with an advisory team to the secretary of state.

 

Indian Independence Act, 1947: 

 

Ended British rule in India on 15 august 1947.  Abolished viceroy, secretary of state offices. British emperor would no longer be emperor of India. Provision for partition of India into India and Pakistan. Princely states given choice to accede or remain independent. Constituent assemblies to frame constitution for their dominion. GoI Act, 1935 would be enforced till new constitution was ready. Governor General of Centre and provinces would be nominal heads and act on aid and advice of Ministers.

 

Constituent assembly could enact, repeal, and amend any law. Thus it was made a legislative body too. When it worked a legislative body it was chaired by GV Malwankar till 1949.

Chapter 2: MAKING OF THE CONSTITUTION

Introduction

  1. N. Roy first put forth the idea of a Constituent Assembly. Congress demanded it officially in 1935. The demand was met in principle in August Offer, 1940. Cripps proposal for constituent assembly was rejected as Muslim league wanted two separate constituent assemblies.

However the Cabinet Mission plans of a single constituent assembly was accepted by congress and Muslim league.

 

Interim Government

This was the executive council of viceroy. Viceroy was the head and J Nehru was the Vice-president as he was head of the interim government.

Composition of the constituent assembly

Members of the constituent assembly came from provincial assembly [direct election, communal representation], princely state [nominated by princes]. 

Princely states did not send members to the constituent assembly. Sachindanand Sinha was elected as temporary president of the constituent assembly. Later, Rajendra Prasad and HC Mukherjee became President and vice president of the assembly.

Objective resolution by Nehru was adopted unanimously and later was modified and adopted as the preamble. By 42nd amendment secular, socialist and integrity were added.

Members of the princely states and Muslim league [ML] gradually participated in the assembly but ML members left after the Indian independence act, 1947. The constituent assembly adopted national flag, anthem, song, accepted membership to the commonwealth and elected Rajendra prasad as first president of India. The constituent assembly continued as the provincial parliament of India till the general elections.

Constitution Drafting committee:  

Drafting committee of the constitution consisted of seven members: BR Ambedkar [chairman], Aiyar, Ayyangar, Madhav Rau [replaced BL Mitter], Saadullah, KM Munshi and TT Krishnamachari [replaced Khaitan].

 

Features of the constitution 

Constitution was adopted on 26 November 1949; some provisions came into effect on same day. Other provisions are enforced from 26 Jan 1950 “date of commencement”. This day was chosen as it was the Purna Swaraj day, currently the republic day. BR Ambedkar was the father of the constitution.

Criticism of constituent assembly: 

  1. Not a representative body [no direct election]
  2. Not a sovereign body [created under British government]
  3. Dominated by congress
  4. Time consuming
  5. Hindu dominated
  6. Lawyer-Politician dominated.

 

 

Chapter 3: SALIENT FEATURES OF THE CONSTITUTION

Introduction


Lengthiest written constitution: 465 articles [25 parts] and 12 schedules. This can be due to vast geographic factors, vast historical factors, single constitution for centre and states, dominance of legal luminaries in the assembly. 


Drawn from various constitutions of the world: Structural part [GoI Act, 1935], political part [British constitution].
  

Partly rigid and flexible


Federal with unitary bias: There are certain federal features of the constitution viz. Two governments, separation of powers, bicameralism, written constitution – rigid and supreme, independent judiciary. The non federal features are strong centre, singe constitution, single citizenship, no equal representation to states in upper house, destructible states, states can’t cede from union, integrated audit, election machinery. All India service, appointment of governor and veto over state bills.


Parliamentary form of government: Indian democracy is based on Westminster model i.e. Leadership of PM, dissolution of lower house, dual membership of Executive, Legislature is supreme, Majority party rule. However some differences between Indian and British systems are Indian Parliament isn’t sovereign body unlike British and President isn’t a hereditary head but elected. 


Balance between Judicial and Parliamentary supremacy: Indian constitution has mentioned “Procedure established by law” which reduces judicial review by courts unlike in USA [“due process of law”].  Thus Indian courts can invalidate laws only if they are unconstitutional, but parliament can use its constituent power to amend the constitution. 


Integrated and independent judiciary: A single system of courts enforces for both union and state laws. Independence of courts is ensured by security of tenure, protection against arbitrary removal, all expense charged on the consolidated fund, ban on employment after retirement, contempt of court. 

Fundamental rights: Justifiable by courts. Guarantee political democracy. Inspired by USA constitution.  Protect against arbitrary laws of legislature and tyranny of executive. The courts can issue writs to enforce these rights. These can be suspended during emergency. However reasonable restrictions can be placed on these rights. 

Directive principles of state policy: These are non justifiable, non enforceable by courts. They are meant to promote social, economic democracy. They are inspired by Irish constitution. They are also part of Instrument of instructions in GoI Act, 1935. 

Fundamental duties: These were added by the 42nd amendment. They are inspired from Russian constitution. They are non justifiable and non enforceable by courts. 

Secular state: This word was added to the preamble by 42nd amendment. Western concept of secularism “Separation of church and state” doesn’t apply to India due to its multi-religious nature. Indian secularism is positive “State shall treat all religions equally”. 

Universal franchise: This was unanimously agreed by the constituent assembly. All people above age 18 [reduced from 21 by 61st constitution amendment] can vote. This ensures broad based participation in the democracy. 

Single citizenship: Irrespective of state in which they are born or reside all people enjoy same political rights. 

Independent bodies: Certain bodies have been created like CAG, EC, and UPSC etc. 

Emergency provision: To protect sovereignty, security, integrity, unity constitution has certain emergency powers. During emergencies, centre becomes all powerful and states go into its total control. This converts federal structure into unitary without formal amendment to the constitution [unique feature]. 

Constitutional recognition to local governments [73rd, 74th amendment] is also unique to India.

 

Inspired from other constitutions 

        Fundamental rights – USA

        Fundamental duties – USSR

        Directive principles – Irish

        Procedure established by law – Japan

        Scheme of Indian federation, residuary powers – Canada

        Procedure to amend constitution – South Africa

        Emergency powers – Germany

        Concurrent list – Australia

        Liberty, equality, fraternity – French

 

Chapter 4: SCHEDULES OF THE CONSTITUTION

Summary

        Schedule 1: Name and extent of State and UT's.

        Schedule 2:  Emoluments, allowances, privileges of constitutional authorities.

        Schedule 3: Forms of oaths for constitutional authorities

        Schedule 4: Seat allocation in Rajya Sabha

        Schedule 5: Administration and control of scheduled areas and tribes.

        Schedule 6: Administration of tribal areas of Assam, Meghalaya, Tripura, and Mizoram.

        Schedule 7: Division of powers: Union, state, concurrent list.

        Schedule 8: Languages recognized by the constitution.

        Schedule 9: Law within this schedule are protected from judicial review.

        Schedule 10: Anti defection

        Schedule 11: Rural local government

        Schedule 12: Urban local government

Chapter 5: PREAMBLE

Introduction

 

       

It shows general purpose behind provisions of the constitutions. However it is non justifiable and non enforceable by courts. It is derived from the Objectives Resolution proposed by Jawaharlal Nehru in the constituent assembly. 

It has amended once by the 42nd amendment [1976] to add the words "socialist" and "secular" were added between the words "Sovereign" and "democratic" and the words "unity of the Nation" were changed to "unity and integrity of the Nation".

Preamble of India      


                                                                          Fig 1: Preamble 

Features of the Preamble of India

Sovereign – Means that India is an independent country and not a dominion of other. Free to acquire and cede its territory to other foreign country. 

Socialist – Indian version of socialism is democratic socialism unlike communism socialism i.e. involving nationalization of industry and abolition of private property.  In democratic socialism public and private sector exist side by side. The aim is to eradicate poverty, injustice and inequality of opportunity. Indian socialism is a blend of Marxism and Gandhism leaning towards Gandhism.

Secular – All religions irrespective of strength are having same status and support from state.

Democratic – Supreme power is with the people. In India, we have indirect democracy where representatives of people exercise power on their behalf. Indian democracy has social, political and economic democracy. Direct democracy is in Switzerland. The devices of it are referendum, initiative, recall, plebiscite.

Republic – It means that the head of the state is not hereditary. Also the supreme power is vested in the people and there are no privileged class i.e. all offices are open to all without discrimination.

Justice – This is of three forms Social (All are treated equally with discrimination), Political (All have access to all office and equal voice in government) and economic (No discrimination on grounds of economic factors)

Liberty – Absence on restraints on activities of individuals and also providing opportunities for development of individual personalities.

Equality – Absence of special privileges to any section and provision of opportunities for all without discrimination.

Fraternity – Through a single citizenship promote a feeling of brotherhood irrespective of caste, religion, sex, creed, and race. It means that the state has to ensure unity and integrity of nation along with dignity of the individual.

Chapter 6: UNION AND ITS TERRITORY

Introduction

India is described as Union of states not a federation as it is not formed due to an agreement between states like the American federation. Also the states can’t cede from the union hence India is an indestructible union of destructible states. The states are created only for convenience of administration.

Articles related to Union and its territory 

Article 1: Territories of India include States, UT and any territory acquired by country. The provisions of states given in constitution are applicable to all states except J&K. Special provisions for certain states are given and also provisions for scheduled areas and tribes. 

Article 2: Admission or establishment of states that are not in union of India. 

Article 3: Alter the name and boundary of any state. Form a new state by uniting two or more states or parts.

 

Provisions related to this Part

A bill under article 3 can be introduced in parliament only after recommendation by president. This approval can be given only after referring the bill to the concerned state assemblies. If UT is involved then no need to refer the bill for reference. The president isn’t bound by the recommendation of the states. 

The bill to alter names, territories or create new states from existing is not considered as amendment to parliament, hence can be passed with simple majority. 

Cessation of a territory doesn’t come under this article and needs a constitutional amendment. However settling a boundary dispute doesn’t need an amendment.

Chapter 7: EVOLUTION OF STATES

Introduction

In 1950, there was a fourfold classification of states: Part A, B, C, and D. In 1948 there was a demand for a linguistic basis to create states particularly from south India. 

 

Commissions

The Dhar commission appointed to study this issue suggested administrative rather than linguism as basis for reorganisation. Since this was resented JVP commission [J Nehru – Sardar V Patel – P Sittaramaiya] was created and this too rejected linguistic reasons to create states. 

However after the death of Potti Sriramallu on hunger strike for a separate state to Telugu speaking areas, congress created Andhra Pradesh. 

The similar demand from other side led the government to appoint Fazl Ali committee that accepted linguistic basis as one of the four important points for creating states. The government accepted the report and passed the state reorganization act and 7th amendment. So 16 states and 6 UT were created.

Chapter 8: CITIZENSHIP

Introduction

The citizens of India enjoy rights and privileges that aliens [outsiders with no membership but here legally]. Friendly aliens enjoy some additional privileges than enemy aliens [country India is at war with].

Fundamental rights to citizens and aliens 

The following rights are not enjoyed by aliens: 

        1-      Right against discrimination on any grounds

        2-      equality of opportunity in public service

        3-      Right to freedom of expression, association, movement, profession, residence, assembly.

        4-      right to vote

        5-      right to contest for elections of MP , MLA

        6-      Right to hold office of president, vice president, judges of SC / HC, attorney general or advocate general and governor.

Along with rights, fundamental duties are also applicable to Indian citizens only. In India office of president is available to citizen by birth or naturalization unlike USA [only birth].

Constitutional provisions for citizenship  

Constitution makes provision of people who became citizen on January 26, 1950. It empowers parliament to handle all matters related to citizenship. Under this, parliament has passed the citizenship act which states five ways of acquiring citizenship:

 

1-      By birth – a person born in India after 26 January 1950 and before 1 July 1987 is a citizen irrespective of the nationality of his parents. Those born after or on 1 July 1987 are citizens only if either parent is a citizen at the time of his birth. Those born on and after 3rd December 2004 are citizens if both parents are citizens or if one are citizen and other isn’t illegal immigrant.

2-      By descent: A person born out of India after 26 January 1950 but before 10 December 1992 is a citizen by descent if his father was a citizen at the time of his birth. A person born out of India after 10 dec 1992 is a citizen if either of his parent is an Indian citizen. A person born out of India after 3 December 2004, is a citizen if his birth is registered at the Indian consulate within 1 year of his birth, this has to be accompanied with an undertaking from parents that she doesn’t hold any other citizenship.

3-      By registration: Central government can register a person as citizen if he has been resident of India for at least 7 years. He has minor children who are citizens of India. He has parents either of who are citizens of India. Who is married to a citizen of India.

4-      By naturalization: Central government can grant on application a certificate of naturalization to a person who is not a citizen of a country where Indians can’t be naturalized citizens. 

  1. Is ready to surrender citizenship of other country when he receives Indian citizenship.
  2. Is of good character. Has knowledge of at least one language of 8th 
  3. He has been a resident of India or been in service to Govt of India for a period of 12 months preceding application.
  4. He has been a resident of India or in service toGovt of India during 14 yrs preceding the said period of 12 months. 
  5. He shall on grant of naturalization continue to reside in India or serve underGovt of India or society, trust, company run by Indian. 
  6. Govt of Indiacan waive of all conditions for a person with distinguished record in field of science, human progress, peace, philosophy, art, literature. Every naturalized citizen must take oath of allegiance to the constitution.

5-      By incorporation of territory: If a foreign territory becomes part of India then the Govt of India can specify who amongst the people of that territory can become citizens of India. 

Loss of Citizenship 

  1. By renunciation:When a person makes a declaration renouncing citizenship, upon registration of that declaration by Govt of India his citizenship is null and void. Also all minor children of that person also lose their citizenship. Such minor can resume citizenship after 18 years of age.
  2. By termination:If a citizen acquires voluntarily the citizenship of another country then he loses his Indian citizenship automatically.
  3. By deprivation:Govt of India can cancel citizenship if its obtained by fraud, citizen communicates with enemy during war, he is not resident in India for 7 years, he has within 5 years of registration or naturalization been in jail for 2 years, he has shown disloyalty to the constitution.

Single Citizenship 

Single citizenship for all citizens is provision made in our constitution unlike USA, Switzerland but same as Canada. This is to prevent discrimination and promote equality and fraternity. Also to build a united and integrated nation. 

Exceptions to this rule: 

  1. Govt of Indiacan prescribe residence of state or UT for employment in public service for that state or UT.
  2. Constitution doesn’t prohibit discrimination on grounds of residence hence states or UT can give preference or concessions to its residents.
  3. Freedom of residence can be curtailed to protect rights of ST.
  4. The state of J&K can give special rights to its residents in matters of employment, acquisition of immovable property, settlement and scholarships.

 

People of Indian Origin

Overseas Citizen of India

All are eligible except SAARC countries.

All are eligible except Pak and Bangladesh.

No separate visa required to visit India

Multipurpose, lifelong entry visa

Parity with NRI on economic, financial and educational spheres but can’t buy agro land. No political rights

Parity with NRI on economic, financial and educational spheres but can’t buy agro land. No political rights

All activities except mountaineering, missionary,

research work and visiting protected / restricted

Areas which require specific permit.

All activities except mountaineering, missionary,

research work and visiting protected / restricted

Areas which require specific permit.

Needs to reside in India for 7 years before making application for citizenship

Need to stay in India for 1 year before making application. This can be granted after 5 years of registration.

News: 

PIO and OCI to be merged into overseas Indian card holder’s scheme.

Pravasi Bharitya Divas

Pravasi kaushal vikas yojana shall be launched soon. The aim of this is enhancing skills of various persons travelling abroad for employment opportunities. This scheme shall ensure that they get better economic opportunities.

VAJRA [Visiting Adjunct Joint Research Faculty] scheme to enable Indian scientific community abroad to participate in research and development in India by working in an institution in India for 3-4 months.

Investments made by PIO’s and Company’s or trusts owned by them shall be deemed to be on par with investments made by resident indians.

Chapter 9: FUNDAMENTAL RIGHTS

Introduction

Constitution guarantees certain minimum rights to all citizens and aliens [with some exceptions] of India. These are applicable not only to people but also organizations [with some exceptions]. They are justifiable, enforceable by courts. Inspired from USA constitution.

Total 6 rights are present. Right to property was turned into a legal right.

Features of fundamental rights: 

  1. Government can impose reasonable restrictions on them on certain grounds. These grounds can be challenged by courts.
  2. Some protect against arbitrary action of state and individual but most protect against action by state.
  3. They can be curtailed during emergencies. Or martial law.
  4. Their application to armed forces, police can be restricted or abrogated.
  5. An aggrieved person can move the SC directly for protection.
  6. Only parliament not state legislatures can make laws to enforce these fundamental rights and punish those who break / deny them so that uniformity is maintained throughout India.

The definition of State is all executive and legislative bodies of State and Union and all local government bodies. It includes statutory and non statutory organisations. A private body acting as an agent of state is also included.

 

Judicial Review 

Supreme Court and high courts can declare a law null and void if it violates the fundamental rights. Law includes an act, ordinance, rules and regulations, bylaws, customs or norms. Earlier constitution amendment wasn’t covered in the ambit but SC ruled that even an amendment can be challenged.

Both SC and HC have the power of judicial review. Hence the Supreme Courts jurisdiction in such matters is original but not exclusive. 

 

Fundamental Rights

Right to Equality [art 14-18]:  


Equality before the law and equal protection of law [Article 14]: This right applies to citizens, aliens and legal persons. Equality before the law is of British origin it means “No one is above the law”. The second concept is of US origin it means “The like should be treated alike under equal circumstances”. This means that where equals and unequals are treated differently this article doesn’t apply. 

      Equality before law is a part of Diceys “Rule of law” that has three aspects: 

 

  1. No man can be punished except for breach of law.
  2. Equal subjection of all subjects to ordinary law administered by ordinary courts.
  3. Constitution isn’t a source of rights but a result of rights of individuals as defined and enforced by courts.

The third rule isn’t applicable to Indian system where constitution is a source of rights.

Exceptions to equality [constitutional and others]: 

  1. President or governor enjoys immunity for any act [civil / criminal] done in office or during exercise of powers. The enjoy immunity from criminal proceeding even for personal actions during their term. Civil proceeding can be initiated against them for things done in personal capacity during their term only after giving a 60 day notice. 
  2. No person can be held liable for civil or criminal action for publication in media of a significantly true report of proceeding in legislatures of centre or state.
  3. No MP / MLA can be held responsible in any court for their votes in the legislatures / anything said by them in the legislatures.
  4. Diplomatic immunity to ambassadors, foreign dignitaries, UN and its agencies.
  5. Laws made to implement the below articles cannot be challenged on the grounds that they violate article 14.

Article 39 (b) says: The State shall direct its policy towards securing that the ownership and Control of the material resources of the community are so distributed as best to sub serve the Common good. 

Article 39 (c) says: The state shall direct its policy towards securing that the operation of the Economic system does not result in the concentration of wealth and means of production to the Common detriment.

 

Prohibition of Discrimination on Certain Grounds [Article 15]: The state cannot discriminate [make adverse distinctions] amongst citizens on grounds only [means discrimination on other grounds is allowed] of race, religion, caste, sex and birthplace.  This provision is applicable to state not private individuals. 

Second aspect is that state as well as private individuals can’t deny access to individuals on grounds only of race, religion, caste, sex and birthplace to establishments maintained by public funds. 

Exceptions: 

Reservations or special provisions can be made for women, children, and backward classes.

 

Equality of Opportunity in Public Employment [article 16]: The state can’t deny citizens from employment in public offices [not private] on grounds only [means discrimination on other grounds is allowed] of race, religion, caste, sex, place of birth or residence, descent.

Exception: 

Residence can be allowed as a condition for employment for public offices of states/UT/local bodies but by act of parliament. Reservations can be made for backward classes not adequately represented in state services. Law can allow members of a religious body to be of that religion only.

 

Abolition of Untouchability [Article 17]:  This act is applicable for state as well as private individual and forbids practice of untouchability in any form. Protection of civil rights act prohibits the following: 

  1. Preventing a person from a place of public worship, shop, hotels, public entertainment, institutions of public benefit;
  2. Refusing to sell goods or services; justifying untouchability or preaching it or insulting people of scheduled caste on grounds of untouchability.

Abolition of Titles [Article 18]: No state can confer a title other than academic or military on anyone [citizen or foreigner]. Any citizen or foreigner working for state institution can’t accept titles from foreign countries. Also to accept any present or emolument from foreign country consent of president is needed for citizens and foreigners working in state institutions. 

Titles like Bharat Ratna, Padma awards were held valid.

 

Right to Freedom 

Protection of Six Rights [Article 19]: Freedom of speech and expression [only on public grounds, peacefully and unarmed], profession [doesn’t apply to dangerous and immoral professions], movement [only internal movement in country], residence, assembly and associations [no right to strike]. A seventh right to acquire, hold and dispose property was deleted and converted to legal right. 

The rights are protected against action of state but not private individual. Also they are available to citizens and shareholders of company but not aliens and legal persons viz. Corporation, institutions. 

The state can impose restrictions on these rights only on grounds specified here viz. security, unity, sovereignty, integrity of India, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

 

Protection in Respect of Conviction for Offences [Article 20]: 

Protection against arbitrary and excessive punishments for offenses: It is available to citizens, aliens and legal bodies. The provisions as per law is no retrospective criminal laws can be passed [civil or tax laws are allowed], no person can be punished for same offense twice [not apply to departmental proceedings], no person can be forced to be witness against self only in criminal proceeding not civil. 



Protection of Life and Personal Liberty [Article 21]:  

No person can be deprived life or liberty but as per procedure established by law but the law should be reasonable, fair and just. This is available to citizens and aliens.

 

Right to Education [Article 21 A]: This provision guarantees free and compulsory education to all between age of 6-14 yrs. Only elementary education is a right not higher education or professional.

 

Protection against Arrest and Detention [Article 22]: This article has two provisions preventive detention and punitive detention. Punitive detention is after a person is tried and convicted. Preventive detention is for preventing him from committing an offense in the future. If a person is arrested under ordinary law then he should be informed of reasons, can be defended by lawyer, should be taken to magistrate in 24 hrs and should be released after 24 hrs unless magistrate authorizes further detention.

For preventive detention the maximum period for detention is 3 months unless an advisory board of HC judges extends the period. Parliament and states can make laws for preventive detention. These laws can specify the period of detention till which a person can be held without taking him to advisory board. What is the max period of detention. Procedure to be followed by advisory board.

Preventive detention is not an integral part of the constitution of any democratic country.

 

Right against Exploitation - Prohibition of Traffic in Human Beings and Forced Labour [Article 23]: This right is available to both citizens and aliens. It is available against both State action and private persons.

Article 23 makes an exception in this regard and allows state to make service for public purposes, military or social service, compulsory without pay. However state can’t make any discrimination on grounds only of religion, class, race and caste.

Article 24 prohibits employment of children below age of 14 yrs in any factory, mine or hazardous activity.

 

Right to Freedom of Religion (Freedom of Conscience and Free Profession, Practice and Propagation of Religion) [Article 25]:  This allows all to freedom of conscience, right to propagate-profess-practice religion of choice. This doesn’t have right to convert forcibly. These rights are available to citizens and aliens.

State can have restrictions on this on certain grounds. Hindus for this article includes Sikhs, Buddhists and Jains.

Second provision is Freedom to Manage Religious Affairs [Article 26] every religious denomination can establish and maintain institutions for religious and charitable purposes, right to manage own religious affairs, buy and administer movable and immovable property.

Thus article 25 is for individuals and 26 are for religious groups.

Article 27 says that no person can be forced to pay taxes to promote a religion or maintain any religious group. State cannot spend public money for promoting any particular religion or group. But it can for all religions and groups. This article prevents state from imposing a tax for religious purpose but imposing a fee is allowed.

Article 28 says no religious instruction shall be provided in an institution maintained wholly by state funds. But for institution administered by state but established by trust for religious purposes, this provision doesn’t apply. For institutions that are recognized by the state or receive aid from state, religious instruction is permitted on voluntary basis.

 

Cultural and Educational Rights (Protection of Interests of Minorities) [Article 29]: A section of citizens [minorities and majority] living anywhere in India can conserve their language, script and culture. No person can be denied admission in an educational institution maintained by state funds or receiving aid out of state funds on grounds only of race, religion, caste, language.

This includes religious and linguistic minorities. Also there is a right to agitate for protection of a language.

 

Right of Minorities to Establish and Administer Educational Institutions [Article 30]: Includes both religious and linguistic minorities.  This allows only minorities to establish and administer educational institutes of choice. State can’t discriminate between religions for granting aid. State can’t acquire property of religious minority institutions compulsorily. 

State can regulate minority institutions that seek recognition from it or aid.

 

Article 32 Right to Constitutional remedies: 

This is the most important article of the constitution as it creates and empowers machinery to enforce the fundamental rights. The Supreme Court and high courts [article 226] can issue writs to protect for enforcement of these rights. 

Supreme Court is thus the guarantor or guardian of fundamental rights. It is the guardian of the constitution. It has original jurisdiction in this matter i.e. a person can move the SC directly not just by way of appeals. Also the HC has original jurisdiction in matter of protection of fundamental rights. 

President can suspend the right to move Supreme Court for enforcement of fundamental rights during national emergency. 

Difference in writ jurisdiction of HC and SC: 

SC as well as HC can issue these writs. Parliament can empower any other court for this purpose but so far it hasn’t. 

SC can issue writs for enforcing fundamental rights but HC can issue writs for fundamental rights as well as for ordinary legal rights. SC can issue writs against a person or government throughout India but HC can only issue writs against a person or government within its territorial jurisdiction or outside only if cause of action arises within its jurisdiction. 

HC can refuse to issue writs as article 226 confers it with discretionary power but SC has to exercise its power compulsorily. 

Hence SC is the protector and defender of fundamental rights.

Types of writs: 

Habeas Corpus: Can be issued to public authorities or private individuals to produce a detained person before the court. 

Mandamus: Issued by court against public authority [not private individual] to perform a duty [only mandatory not discretionary] which he has failed / refused to perform. 

Prohibition: Can be issued by higher court to lower court [or judicial / quasi judicial authority] to stop it from exceeding its jurisdiction [only preventive]. Can’t be issued against non judicial or private individual. 

Certiorari: Can be issued by higher courts to lower courts / judicial or quasi-judicial bodies or administrative tribunals. This is to transfer a case from lower court to itself or squash an order of lower court. It’s not only preventive but curative. However it’s not available against legislatures, private individuals or bodies. 

Quo warranto: Issued to inquire legality of claims of a person to a public office [permanent office created by statute / constitution only not private posts or temporary posts]. Unlike above writs this can be sought by any individual not just aggrieved person. 

Fundamental rights of members of armed forces: 

Parliament not states can pass a law to restrict fundamental rights of members of armed forces to ensure proper discharge of duties and maintenance of discipline amongst them. Such a law can’t be challenged in any court on grounds of contravention of any fundamental rights. 

Parliament can also exclude court martial’s from writ jurisdiction of SC and HC so far as enforcement of fundamental rights is concerned. 

Martial law [Article 34] 

Government can declare military rule in any part of India [not whole] under breakdown of law and order. It is different from emergency. Parliament can indemnify any public servant for actions done by him to restore peace and order while martial law is in force. Such a law can’t be challenged in any court on grounds of contravention of any fundamental rights. 

It suspends government and ordinary law courts in that area. It affects only fundamental rights [not centre state relations, financial resources etc].

 

Criticism of Fundamental Rights 

1- Excessive limitations

2- No social or economic rights [social security, work, employment] this is found in constitution of democratic countries as well as some socialists.

3- Lack of clarity

4- No permanency / Suspension during emergency

5- No consistency philosophy

6- Preventive detention

7- Expensive remedy

Chapter 10: DIRECTIVE PRINCIPLES OF STATE POLICY

Introduction

Borrowed from the Irish constitution. They are similar to the Instruments of Instruction of Govt of India Act, 1935. They seek to establish a welfare state and lay foundations of social and political democracy in India. They are non justifiable and are not legally enforceable by courts.

However if courts feel that a law gives effect to a directive principle then such a law can be protected from unconstitutionality. 

Directive principles are Gandhian [represent program of reconstruction], socialist [reflect principle of socialism] and liberal-intellectual [represent ideology of liberalism]. 

New directives were added by 42nd, 44th, 86th and 97th amendment. 

These were made non justifiable as country didn’t possess the financial resources, presence of diversity and backwardness in India would interfere with implementation.

 

Articles of the directive principles of state policy 

  1. State to secure a social order for the promotion of welfare of the people.
  2. Certain principles of policy to be followed by the State.

39A. Equal justice and free legal aid

  1. Organization of village panchayats.
  2. Right to work, to education and to public assistance in certain cases.
  3. Provision for just and humane conditions of work and maternity relief.
  4. Living wage, etc., for workers.

43A. Participation of workers in management of industries.

  1. Uniform civil code for the citizens.
  2. Provision for free and compulsory education for children.
  3. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
  4. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
  5. Organization of agriculture and animal husbandry.

48A. Protection and improvement of environment and safeguarding of forests and wild life.

  1. Protection of monuments and places and objects of national importance.
  2. Separation of judiciary from executive.
  3. Promotion of international peace and security.

Chapter 11: FUNDAMENTAL DUTIES

Introduction

These were added by the 42nd amendment in 1976. The list was created on recommendation of Swaran Singh committee. They are influenced from the USSR constitution. None of the democratic countries except Japan have fundamental duties as a part of their constitutions. It is feature common in constitutions of socialist countries. Article 51A.

The codify tasks integral to the Indian way of life. Most of these duties are moral and others are civic. 

They are applicable to citizens only and not aliens both friendly or enemy.

 

Articles on the Fundamental Duties 

Article 51 a, it shall be the duty of every citizen of India: 

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; 

(b) To cherish and follow the noble ideals that inspired the national struggle for freedom; 

(c) To uphold and protect the sovereignty, unity and integrity of India; 

(d) To defend the country and render national service when called upon to do so; 

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India Transcending religious, linguistic and regional or sectional diversities and to renounce Practices derogatory to the dignity of women; 

(f) To value and preserve the rich heritage of the country’s composite culture; 

(g) To protect and improve the natural environment including forests, lakes, rivers and wildlife And to have compassion for living creatures; 

(h) To develop scientific temper, humanism and the spirit of inquiry and reform; 

(i) To safeguard public property and to abjure violence; 

(j) To strive towards excellence in all spheres of individual and collective activity so that the Nation constantly rises to higher levels of endeavor and achievement; and 

(k) To provide opportunities for education to his child or ward between the age of six and fourteen Years. This duty was added by the 86th Constitutional Amendment Act, 2002.

Miscellaneous 

They are non justifiable or non enforceable by courts. However parliament can enforce them by law.

Chapter 12: AMENDMENT TO THE CONSTITUTION

Introduction

Indian Constitution is neither rigid [needing special procedure to amend like USA etc.] nor flexible [can be amended as ordinary laws]. It is a synthesis of both. Article 368 deals with matters regarding amendment to the constitution. After the Keshavnanda bharati case, SC ruled that parliament can’t amend the “basic structure of the constitution” [a judicial innovation].

 

Procedure to amend the constitution: 

A bill to amend the constitution must be introduced either by private member or minister. This doesn’t need assent of the president. It can be done in any house. It must be passed by a special majority i.e. a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting. 

The same procedure is repeated in other house and then it is sent to the president for assent. President must give assent to it compulsorily.

If an amendment is to the federal features of the constitution, half the state legislatures should approve it by simple majority, then it is sent for president’s assent. A constitution amendment can’t be made by ordinance. Also no provision for joint sitting is available in case of disagreement.

 

Types of amendments: 

  1. Passed by a simple majority [not considered as amendments to the constitution]
  2. Passed by special majority
  3. Passed by special majority and needs ratification by half the state legislatures as they affect the federal structure of the constitution. [No time limit for the states to give decision]. The below parts of the constitution belong to this category.

     

Parts of the constitution that affect Federal Structure

  •  ·          Election of the President and its manner.
  •  Extent of the executive power of the Union and the states.
  •  Supreme Court and high courts.
  •  Distribution of legislative powers between the Union and the states.
  •  Any of the lists in the Seventh Schedule.
  •  Representation of states in Parliament.
  •  Power of Parliament to amend the Constitution and its procedure (Article 368 itself).

Thus the constitution has been kept flexible so as to be able to adapt itself to change.

 

Criticism of the process:

No amendment can originate from states. Some parts can be amended as a normal legislation. No time limit given to states for approval. 

There is a wide scope for judicial review in the process due to the amendment procedure being sketchy. 

Only half the states need to be consulted for amending parts related to federal structure.

 

Chapter 14: FEDERAL SYSTEM

Introduction

Indian system is federal with unitary bias i.e. it provides for regional autonomy but at the same time the centre is more powerful than the states. Also the states can’t cede from the union. The constitution also doesn’t mention federation anywhere. This is since a federation is formed by agreement between the units which isn’t the case in India. Canadian model of federation is used in India. 

 

Federal features of the constitution   

Federal features of the constitution are dual government, written constitution, and independent judiciary, division of powers, bicameralism and rigid constitution. 

 

Unitary features of the constitution   

Unitary features are unequal representation to the states at the centre, integrated judiciary, single citizenship, appointment of governors, all India services, veto over state bills, preference of union and concurrent list over state list, integrated audit and election machinery, indestructible centre and destructible states, emergency powers and constitutional provisions of allowing centre to give directions to states. 

Federalism is a compromise between normal divisions of powers under which states enjoy autonomy within their own spheres and the need for a strong union under exceptional circumstances.

 

 

Chapter 15: CENTER STATE RELATIONS

 

Legislative relations: 

Parliament can make laws for the whole or any part of the territory of India

Only Parliament can make law applicable to Indians and their property in any part of the world [extra-territorial jurisdiction]. States can make laws for whole or part of the state only.

President can make regulations for peace, progress and good government of UT’s  A&N, Lakshadweep, dadra nagar haveli and daman diu. Such a regulation can amend or repeal law of parliament for these territories. 

Parliament can make laws on any matter in all three lists for UT’s. Even though Delhi and puducherry have CM + CoM the supreme control of president and parliament over it isn’t affected. However legislative assembly of both UT’s can make laws on state list [Delhi can’t make on public order, police and land] and concurrent list. 

Provision for administration of acquired territories also is same as UT’s. 

Governors are empowered to direct that an act of parliament don’t apply to scheduled area of state or apply with amends. Governor of Assam can do same for tribal autonomous districts and president for the tribal autonomous districts in Meghalaya, Tripura and Mizoram.

Union list has precedence over concurrent list [and state list] and concurrent over state list. Only parliament can make laws on residuary subjects [not on any lists]. However if a state bill has been given assent by the president then it prevails for that state. But parliament can override this by making an act on the same matter.

Under extraordinary circumstances the parliament can make laws on matters on the state list too if: 

  1. Rajya Sabha passes a resolution with two-third majority. Such a resolution has a life of one year and can be extended any times. All such acts lapse after 6 months of the resolution lapsing. The state can still make a law on this matter when the resolution is in force but union law prevails.
  2. During national emergencies the union can make laws on matters in the state list but such laws expire in 6 months of the emergency expiring. States can make laws on the matter too but union laws prevail.
  3. Parliament can make laws on any matter of state list to implement international conventions, agreements and treaties.
  4. If two or more states pass a resolution requesting parliament to make laws on a matter in the state list then parliament can legislate for that matter only. Such a law shall apply only to those states but other states can join by passing similar resolutions. Henceforth only parliament can make laws or amend/repeal them on that matter for those states. The states shall have lost that power with respect to that subject.
  5. During presidents rule in the state, parliament can make laws for any matter in the state list but for that state only. After the rule is over these laws don’t lapse. But states can amend/repeal/re-enact them.

 

Parliament can exercise control on state legislations by: 

  1. President can direct states to reserve money and other financial bills for his assent during financial emergency.
  2. Bills on certain matters on state list can be introduced in state legislatures only after presidential sanction.
  3. Governor can reserve bills passed by state legislatures for presidential assent. President enjoys absolute veto over them.

Division of executive powers: 

Centre has executive powers on matters on which it can make legislations. This is for the entire territory of India. Similarly states have executive powers throughout their entire territory for all matters on which it can legislate. 

For matters in concurrent list executive power rests with state unless the constitution or the said law confers it to the centre. 

Executive power of state should be used in a manner to ensure compliance with central laws and to ensure that no impedance is caused to exercise of executive powers of centre in the state. 

Centre can give directions to the state for the above purposes and non-compliance with such directions can be a valid reason for declaring presidents rule in that state. 

President can assign an executive function of the centre to the state government if it consents. Governor too can entrust executive function of state to centre if it agrees. 

However, only parliament can confer executive duties to a state government without the states consent by passing a law.

Chapter 16: INTER STATE RELATIONS

Inter State water relations

Interstate water disputes can be adjudicated by a tribunal established under the inter-state water disputes act, enacted under Article 262. 

Central government can form a tribunal within one year of receiving a complaint from an affected state for matters related to river valley or Inter-state River. 

The tribunal has to decide on the matter with three years with an extension of two years. 

No Indian court can intervene in the matters of the tribunal [even the SC]. 

After the verdict is passed it becomes binding on all parties and a settled dispute can’t be reopened. However states can appeal under the special leave jurisdiction of the SC. 

8 tribunals has been formed so far. 

River board’s act too has been enacted under this article to provide for a body to regulate and develop river valleys and interstate rivers. No such board has been formed so far.

 

 

Government to replace the interstate water dispute tribunal with a permanent tribunal to adjudicate all disputes. The existing practice of appointing a tribunal once a dispute arises shall stop. The permanent tribunal shall have regional benches too. Currently whenever a dispute arises the disputing parties inform the center to constitute a tribunal. The center constitutes one if it feels that the differences are irreconcilable and all other remedies are exhausted. So far 8 tribunals were constituted and gave their awards. But a new dispute has emerged between Chhattisgarh and Odisha over water sharing of Mahanadi.

 

In the second part of this restructuring of Water conservation agencies, the Central Water Commission and Central Ground Water Board shall be subsumed or replaced by a National Water Commission. This shall maintain the databank of water related information like irrigation areas, rainfall, water flow etc. This is needed because the data collection starts whenever a dispute arises. Hence this body shall store data on real time basis and adjudication of disputes shall be faster.

 

Inter State Council 

President can establish an interstate council under Article 263 for coordination between states and center or states. He can specify the composition, duties and procedure. As per the constitution the functions are:

  •  Inquire and investigate on disputes that may arise between states.
  •  Investigate and discuss matters of interest to states or center and states.
  •  Recommendation on subjects that need better coordination of policy and action.

    The body is advisory and hence recommendations are not binding.

 

An interstate council of centre state relations with PM [chairman] + chief ministers of states and UT’s + administrators of UT’s + 6 central cabinet ministers + 5 cabinet ministers of centre / ministers of states chosen by the PM are members was created on 1990.

Chapter 17: PUBLIC ACTS, RECORDS AND ZONAL COUNCILS

Public Acts and Records 

Public acts, records and judicial proceedings of states and centre have full faith and credit throughout the territory of India. 

Final judgments of civil courts only [not criminal courts] are capable of execution in any part of India. 

 

Interstate trade and commerce

Interstate trade, commerce and intercourse shall remain free throughout the country. 

The article also covers intra state trade and commerce. Hence no barriers on trade can be imposed at state boundaries or within. This has been done to created a unified market and provide free flow of trade. 

However under public interest parliament can restrict the freedom of trade within a state or between states but it can’t discriminate between states.  

State legislatures can impose restrictions on freedom of trade but such a law can be introduced in the house only after president’s approval. 

States can impose taxes on goods of other states only if same taxes are applicable to goods produced within it. 

Parliament can pass a law giving a state or itself monopoly for a particular business activity i.e. nationalization.

Parliament can appoint an authority for carrying out above purpose of carrying out provisions related to freedom of trade and commerce and putting restrictions on it. It can also confer suitable powers on such a body. However such a body hasn’t been formed yet.



Zonal Councils

These are statutory bodies formed by the State Reorganization Act, 1956 for five zones north, south, east, west and central. A separate act created north eastern zonal council. 

The home minister is chairman + vice chairman is chief minister of states in the zones by rotation of 1 year + 2 ministers of each state + administrators of UT’s. 

Other advisory members with no voting powers are development commissioners of states, representative of planning commission and chief secretary of state. These are advisory bodies with non binding recommendations.

 

Functions of the Zonal Councils:

 

  1. Secure political equilibrium in the country.
  2. Arrest after effects of the separation of states on linguistic basis.
  3. Centre state coordination for socioeconomic matters. Exchange of ideas and experience to formulate uniform policies.
  4. Achieve emotional integration in the country
  5. Prevent growth of regionalism and linguism.

    Chapter 18: EMERGENCY PROVISIONS

    Introduction

    Articles 352 to 360 are emergency powers of centre. These are given to deal with exceptional circumstances like war or rebellion. The powers were influenced by the German constitution. They turn Indias federal structure into a unitary one without amendment to the constitution.

    Types of Emergencies 

    Constitution handles three types of emergencies national, constitutional and financial. 

    1. National Emergency [Article 352]: 

          This can be declared due to war / external aggression [external emergency] or armed rebellion [internal emergency]. A proclamation can be issued by the president for different grounds. It can be issued when an already existing proclamation is in force too.

    It can apply to entire country or a part. 

    It can be declared even before an actual occurrence if president is satisfied of imminent threat. 

    The president can declare this only after written recommendation of the entire cabinet. 

    A proclamation can be subject to judicial review. 

    A proclamation must be approved by both houses within one month by a special majority. This extends the life of emergency by six months at a time. This can be done infinite times. 

    If Lok Sabha is dissolved then the approval of proclamation or extension of its life can be done by Rajya Sabha.  The proclamation survives till 30 days after first sitting of the newly reconstituted Lok Sabha. 

    A proclamation can be revoked by president anytime [this doesn’t need parliament ratification]. Also Lok Sabha can force a revocation by disapproving it with a simple majority. Thus Rajya Sabha has no role in revocation. 

    Effects of national emergency: 

    Centre can issue executive directions to states on any matters. However state governments aren’t suspended. Parliament can make laws on matters in the state list. 

    If parliament isn’t in session president can pass ordinances on state list matters. 

    Parliament can also confer powers and duties on centre and its authorities to carry out tasks under its extended jurisdiction. Such legislative actions become inoperative within 6 months of the emergency ceasing to operate. Such laws apply even to states where the emergency isn’t imposed. 

    President can modify distribution of revenues between centre and states till the end of financial year when emergency is over. Such orders have to be laid before parliament. 

    Parliament by law can extend term of Lok Sabha and state legislative assembly by 1 year at a time [any number of times]. This becomes inoperable by the end of 6 months of emergency ending.

    Under article 358, all fundamental rights under Article 19 i.e. Right to Freedom, are automatically suspended when a proclamation of national emergency on external grounds [not armed rebellion] is declared. This action applies to whole country not a part. 

    Any law can be passed that violates these rights but not any other, such a law can’t be invalidated till the emergency is operative. Any action as per laws also remains above judicial remedy even after emergency is revoked. 

    Under article 359 a presidential order can be passed disallowing people from seeking judicial remedy to enforce other fundamental rights i.e. article 14-32 that are specified in that order [ except article 20&21: right to life and liberty] for a specific period only. 

    The rights remain in force but right to seek remedy is suspended. The state can make laws abridging the fundamental rights mentioned in the order such laws can’t be challenged in court. Any executive action under such laws is also protected. Presidential order has to be approved by both houses. Article 359 is available even during national emergency on armed rebellion. The presidential order can apply to whole country or a part.

     

    1. Presidents rule:

    When the constitutional machinery breaks down in a state, the president rule is imposed by centre. This can be proclaimed if the president is satisfied that the governance of a state can’t be carried in accordance with the constitution. 

    In this case, president can act with or without the governor’s report. Also when a state doesn’t follow any directive from the centre, president’s rule can be imposed. 

    Parliament has to approve the proclamation within two months in both houses by simple majority. The rule can be extended by 6 months at a time for a maximum of 3 yrs. 

    If Lok Sabha is dissolved Rajya Sabha can approve it but Lok Sabha has to approve too within 30 days of first sitting after its been reconstituted.  Beyond the first year, president’s rule can be extended 6 months at a time only if national emergency is proclaimed in the country or any part of the state. Election commission certifies that elections can’t be held in the state. 

    Presidents proclamation can be revoked by president anytime [this doesn’t need parliament’s approval].Parliament on its own can’t revoke president’s rule. 

    It also doesn’t affect fundamental rights or powers of the high court. All legislative and executive power of the states assumed by the president and the state executive is dismissed and legislature dissolved or suspended. 

    Governor acts as the president’s agent and works with the help of chief secretary or advisors appointed by the centre. Parliament can assume legislative powers with itself or delegate to president or other authority. It can make laws on state list matters for the state only. President can issue ordinances on state list matters or make expenditure from state budget if parliament not in session. 

    Presidential proclamation imposing president’s rule is subject to judicial review.

    Chapter 19: FINANCIAL EMERGENCY

    Introduction

    If president is satisfied that the financial stability or credit of India or any part of the state is in danger than he can issue a proclamation declaring financial emergency. 

    His satisfaction is subject to judicial review. 

    Such a proclamation has to be approved by a simple majority in both houses.  

    If Lok Sabha is dissolved Rajya Sabha can approve it but Lok Sabha has to approve too within 30 days of first sitting after its been reconstituted. 

     

    Effect of the Financial Emergency 

    Once approved it continues indefinitely [no max period] without repeated legislative approvals. President can revoke this proclamation anytime; this doesn’t need parliament’s approval. 

    During the financial emergency, centre can ask states to observe canons of financial propriety. It can direct that money bills or financial bills of state should need president’s assent. 

    President can also direct a reduction of salaries of government servants under union or state. These include judges of SC and HC’s.

    Chapter 20: PRESIDENT

    Introduction

    He is the head of the state and executive. The union executive consists of president, vice president, prime minister, council of ministers and attorney general. He is the first citizen of India.

     

    Election of president:

    Electoral College consisting of only elected members of both houses of the parliament, only elected members of legislative assembly [not any member of council] and elected members of legislative assemblies of UT's.

    Members of dissolved legislative assemblies don’t participate in the Electoral College.

    Presidential election is by proportional representation. All disputes of Electoral College are settled by Supreme Court only.

    President election is declared invalid then the decisions made by him till that time remain valid.

    Eligibility criteria for Presidential elections

    Person to be eligible for president’s position he needs to have the following qualification:

    1. A citizen of India
    2. Qualified for election to be member of  Lok Sabha
    3. should be at least 35 yrs of age
    4. Should not hold any office of profit under a public authority in any union, state and local body in India.

     

    Conditions for president’s office:

    He should not be an MP / MLA in any house of centre or states and UT's. He must not hold an office of profit in India.

    Privileges

    President is immune from criminal proceedings from official or personal acts.

    Civil proceeding with regards to personal acts can be launched after two months.

    Legal liability on account of official actions is null.

    However his official conduct can be reviewed by court, tribunal or body authorized by either house of parliament when proceeding for impeachment are being conducted.

    Term of office

    Term of office is 5 years. Re-election is allowed any number of times.

    He can resign in writing to vice president. His term can be extended till re-elections are over and new candidate takes over.

    President can be impeached if any house passes a resolution by majority of two third of the total membership of the house. Similarly in the other house too, such a bill when passed leads to impeachment of the president. Impeachment can be done on grounds of violation of the constitution.

    Nominated MP's too can participate in the impeachment proceedings.

    If the office of the president falls vacant due to death, illness, removal or otherwise then vice president acts as president. If vice president is also unable then Chief Justice of India or in his absence senior most judge of SC can act as president. Justice Hidayatullah was the only one to get such a chance.

     

    Powers and functions:

    All executive actions of state are taken in his name. Powers of the president have to be exercised with the advice of the PM + council of ministers [42nd amendment]; the 44th amendment gave the president power to advice the PM + council to reconsider the advice but if the same advice is made again he has to follow it.

    He can make rules specifying which orders and instruments made and executed in his name shall be authenticated.

    He can makes rules for more convenient transaction of business of union government and allocation of said business among ministers.

    He appoints PM and council of ministers and the attorney general, they occupy office during his pleasure. He appoints CEC and EC’s, CAG, Chairman and members of UPSC + finance commission + governors of state + interstate councils + administrators of UT's.

    He can declare scheduled areas and tribal areas and has powers of administration of these areas. He can appoint members of SC + ST+ Womens+ OBC+ Minorities commission + Officer of Linguistic minorities.

    He appoints administrators to UT’s called chief commissioner, lieutenant governor or administrator.

     

    Legislative powers of president include:

    Dissolving Lok Sabha. Summoning and proroguing house of parliament.

    Summon joint sitting of both houses to resolve deadlocks.

    He can send messages to the House of parliament regarding bills or otherwise.

    He can nominate 12 members to Rajya Sabha from fields of art, science, literature and social service.

    He can nominate two members of Anglo Indian community to Lok Sabha if he feels community isn’t adequately represented.

    He decides questions of disqualification of MP's after advice of EC which is binding.

    Money bills and bill leading to alteration of boundaries of state or UT's needs his approval before they can be introduced in the house. 

    He lays the reports of UPSC, EC, and CAG before the house of parliament.

    Ordinance making powers:

    He can promulgate ordinances when parliament [both houses or any one house] isn’t in session however such ordinances have to be laid before parliament within 6 weeks of its reassembly. Thus they are temporary laws. The president should be satisfied of the need to take immediate action. President’s satisfaction is subject to judicial review. 

    Ordinance can be made only on Union list matters and Fundamental rights can’t be abridged by them.Constitutional amendments can’t be made by ordinance.

    Ordinances can be made by him only on advice of PM + council of ministers. It can give retrospective effect or repeal a law or tax law or other ordinance too.

    He can legislate by making regulations for Puducherry but only when its legislature isn’t in session or dissolved.

    Misuse of Ordinance making powers: Enemy Property Ordinance, 2017

    Ordinance making powers are a legacy from the Indian Council Act, 1861 which gave the executive power to circumvent the legislature in making a law. However the decision to pass the Enemy property ordinance for the fifth time after failing to get the law passed through parliament is a abuse of the powers. The ordinance was passed specifically to nullify a decision of the Supreme court. A special article was inserted to allow the current custodian of the enemy property to dispose it by sale notwithstanding any judgment on it. This allows the government from having to hand over property to original owners.

    Article 123 of the constitution clearly specifies that ordinance making powers are an emergency resort but the executive has turned it into a parallel law making source. The ordinance also redefines "enemy subject" and includes in its purview "even legal heirs of the enemy subject". Thus even Indian born heirs of the original owners are kept away from their ancestral property. The Ordinance thus is in complete contravention of Right to Property of these people. This must be examined for legal validity by courts.

    Veto Power:

    A bill can become an act only if it has received president’s assent. When a bill is given to the president he can:

    1. Give his assent [compulsory for constitutional amendments]
    2. Take no action on bill of legislature / Pocket veto. [only for ordinary bills / money bills]
    3. Withhold his assent / Absolute veto  [only for ordinary bills / money bills]
    4. Return the bill for reconsideration / Suspensive veto. However if the bill is again passed by parliament then he has to give his assent to it. [ only for ordinary bills ]

    Qualified veto i.e. legislature can override presidential decision to return bill by a higher majority than what passed the bill isn’t available in Indian system unlike USA.

    Above powers are also applicable to bills reserved for his assent by the governor; However for such State bills he can return them for reconsideration any number of times.

     

    Financial Powers:

    Money bills can be introduced in house only after his assent.

    He constitutes a finance commission after every five years.

    He causes to be laid the annual financial statement before parliament.

    No demand for grant can be made except on his recommendation.

    He can make advances out of the contingency fund of India for meeting unforeseen circumstances.

    Judicial Powers:

    He appoints judges of SC and HC's.

    He can grant pardon [remove sentence and conviction], remit [reduce sentence but not its character], reprieve [stay on execution for a temporary period], commute [substitute sentence with a lighter form] or respite [award lesser sentence due to special factors of convict] sentence of a convict sentenced under union law, court martial or sentenced to death under any law.

    He can seek advice from the SC on any question of law or fact; such advice is not binding on him.

    Diplomatic Powers:

    He negotiates international treaties and agreements of India. However they are subject to the approval of parliament.

    Military Powers:

    He is the supreme commander of defence forces. He appoints chiefs of army, navy and air force. He declares war or concludes peace subject to parliament’s approval.

    Discretionary power:

    1. He can decide appointment of PM when no party has clear majority.

    A caretaker government cant take a policy decision and president can decide what is policy decision.

    1. Dismiss the council of ministers when it loses majority in Lok Sabha
    2. Dissolve the Lok Sabha if the council of ministers has lost the support in the house.

      Chapter 21: VICE PRESIDENT

      Introduction

      It is the second highest position in the country.

      Election:

      He is elected by all MP’s of parliament [nominated + elected]. It is held in accordance with the system of proportional representation.

      Re-election is allowed any number of times.

      He cannot be an MP / MLA; if such a person is elected he may have to vacate his position in that house on joining office of vice president.

      Terms and Conditions of Office:

      He holds office for a term of 5 years but can continue even further till his successor joins.

      He can resign in writing to the president.

      Rajya Sabha can remove him an absolute majority which needs to be agreed by Lok Sabha with simple majority.

      Since no grounds for removal are mentioned in the constitution he can be removed for any reason. No formal impeachment needed.

      All electoral disputes are resolved by the Supreme Court whose decision is final. If the election is declared void then decisions made till then aren’t invalidated.

      Qualifications:

      1. Citizen of India
      2. 35 and above yrs of age
      3. Qualified to be member of Rajya Sabha
      4. Doesn’t hold office of profit in India under any government or public authority.

       Powers and functions:

      Vice president is the ex-officio chairman of the Rajya Sabha and has powers and functions similar to the speaker of the Lok Sabha.

      In the event of the presidents inability to work due to any reasons or a vacancy in the office of the president due to any reason he can act as the president.

      However this is only for 6 months till the next president is elected. Thus the office was created to maintain continuity in the Indian state.

 

Chapter 22: PARLIAMENT OF INDIA

Parliament

Parliament consists of:

 

  1. President
  2. Council of state [ Rajya Sabha or upper house]
  3. House of people [Lok Sabha or lower house]

Houses of Parliament

Rajya Sabha: 

It has a strength of maximum 250 out of which maximum 238 are members of states and UT’s elected indirectly and 12 are nominated by the president.

Representatives of states in the Rajya Sabha are elected by only the elected members of state legislative assemblies. Proportional representation is the system of election and seats are allocated on basis of population. For UT’s a special electoral college elects the representatives by indirect election. Proportional system of election is used.

Only Delhi and Puducherry have representation in the Rajya Sabha.

12 members to Rajya Sabha are nominated by president having special knowledge in field of arts, science, social service and literature.

Features of Rajya Sabha:

It is a permanent body and can’t be dissolved. Every two years one third of its members retire and at beginning of every third year their seats are filled by presidential nominations and re-elections.

A person can be re-elected and renominated any number of times.

The constitution has left to parliament to decide the term of office of a Rajya Sabha MP and the order of retirement of MP’s.

Special powers of the Rajya Sabha:

  1. It allows the parliament to make laws on matters in the state list.
  2. It allows parliament to create a new all India service common to centre and states.

 

Lok Sabha:

It can have maximum 550 elected and 2 nominated members. Out of which 530 are from states and 20 from UT’s. These are elected on universal adult franchise.

The voting age was reduced from 21 to 18 yrs by 61st amendment. Constitution has empowered parliament to decide how the representatives of UT can be chosen [election or otherwise].

But the parliament chose direct election. Lok Sabha automatically dissolves after 5 years from the date of its first sitting in normal circumstances.

Features of the Lok Sabha:

The constitution wants to ensure uniformity of representation between different states and within a state between different constituencies. After every census delimitation exercise id done to decide representation to each state and territorial constituencies in each state.

However the allocation of seats for states were frozen till the year 2026 [census: 1971] for encouraging population control measures. Currently 2001 census is used for delimitation but the numbers of seats of states aren’t altered. Only the numbers of SC and ST seats in a state are changed in accordance with the census.

 

Qualifications to become an MP:

  1. citizen of India
  2. not less than 30 yrs in case of Rajya Sabha and 25 yrs in case of Lok Sabha
  3. any other qualification as prescribed by parliament
  4. he must be registered as a voter in any parliamentary constituency
  5. He must be a member of SC/ST in any state or UT if he wishes to contest in reserved seats. However he can also contest from unreserved seats too.

 

Disqualifications:

  1. holds an office of profit under union or state government only [not local]
  2. unsound mind, undischarged insolvent and not a citizen of India
  3. been found guilty of electoral offences and corrupt practices in elections
  4. sentenced for more than 2 yrs imprisonment for a crime
  5. holds an office of profit in a company where govt holding is 25% and above
  6. has interest in government contracts, works
  7. Has been convicted of preaching social crimes like untouchability, dowry and sati.
  8. doesn’t lodge election expense on time
  9. has been convicted of promoting enmity between groups or bribery
  10. Has been dismissed from government service for disloyalty to state or corruption.

President decision on disqualification on these matters is final but he has to obtain advice of election commission on this matters.

 

Tenth Schedule – Anti defection 

The speaker of Lok Sabha or chairman of Rajya Sabha decides on matters of disqualification of MP’s if.

  1. he resigns from membership of party on whose ticket he contested elections
  2. he votes or abstains from voting contrary to directions given by party
  3. independently elected member joins any party
  4. nominated member joins any party after expiry of 6 months of the period on which he joined.

 

Exceptions:

(a) If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.

(b) If a member, after being elected as the presiding officer of the House,voluntarily gives up the Membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.

Rules against double membership

Double membership isn’t allowed so if a person is elected to both houses he must tell which house he wants to serve otherwise his seat in RS becomes vacant.

If a member of one house is elected to second house his seat in first house becomes vacant. If a person is elected to two seats in the house he must resign from one or else his both seats become vacant.

A person if elected to parliament and state legislature then he must decide in 14 days where to serve else his seat in parliament is vacated.

An MP can resign in writing anytime to the chairman of RS or speaker of LS depending on his membership. Matters regarding election of disqualified persons to parliament are handled by the H.C.

A person is liable for a penalty of Rs.500 per day if he sits and votes in house proceeding without taking an oath.

Chapter 23: PRESIDING OFFICERS OF THE HOUSES

Speaker

Speaker is the presiding officer of the house. There is a deputy speaker too and a panel of 10 chairpersons for the Lok Sabha nominated by the speaker from amongst Lok Sabha MP’s to preside if both are absent.

When even these panelists are absent, any member of the house, as determined by the house acts as the presiding officer.

The panel can’t preside over the house when the office of speaker or deputy speaker is vacant; in such cases the president decides who shall preside over the house from amongst its members.

Election:

Speaker is elected from amongst the member of the LS and remains in office during the life of the Lok Sabha unless he resigns [by writing to the deputy speaker], ceases to be member of LS, is removed by a resolution of total membership of the house.

When the LS is dissolved the speaker continues till the new LS is reassembled.

Powers:

1.      he maintains order and decorum in the house for conducting its proceedings

  1. he is the final interpreter regarding the constitution, rules of procedures and parliamentary conventions
  2. in absence of quorum he can adjourn or suspend the house meeting
  3. he can vote only in case of tie to resolve deadlocks
  4. He decides and certifies whether a bill is a money bill. such a certification is final
  5. he decides matters of disqualification of MP under tenth schedule but his judgment is subject to judicial review
  6. He appoints and supervises chairmen of various house committees. He is the chairman of some house committees.
  7. He is the chairman of parliamentary forums. he also is the ex-officio chairman of conference of presiding officers of various legislative bodies of country
  8. He presides over joint sitting of parliament convened to resolve deadlocks between two houses. He can also convene a secret sitting of a house where none can be present in house galleries without speaker’s permission.
  9. His behavior in house can’t be discussed except on a substantive motion. His decision in maintaining order and decorum can be questioned in any court.
  10. His salaries and allowances are charged on the consolidated fund of India.

DEPUTY SPEAKER OF LOK SABHA

He too is elected by the house after the speaker on a day decided by speaker. His terms of office and grounds for removal and procedure for removal, provision for salary and allowances are same as speaker. He resigns by writing to the speaker.

When he is the presiding officer of the house in absence of speaker he has same powers as the speaker. He isn’t subordinate to the speaker but directly responsible to the house.

Whenever the speaker is present the deputy speaker becomes an ordinary member of the house. However if he is a member of a parliamentary committee then he automatically becomes the chairman of the committee. Both the speaker and the deputy speaker don’t take any oath for office.

The Government of India Act, 1919 created the institutions of speaker and deputy. Sachinanand Sinha was the first deputy speaker of the central legislative assembly. Vithalbhai Patel was the first Indian speaker of the central legislative assembly. G.V. Malvankar was the speaker of the first Lok Sabha and also speaker of the constituent assembly [legislative].

SPEAKER PRO-TEM

The speaker of the previous Lok Sabha resigns just before the first sitting of the new Lok Sabha.

Hence to preside over the temporary Lok Sabha the president selects a member [by convention the senior most] to preside over the first session. The oath of speaker pro tem is administered by the president himself.

The speaker pro tem enables in election of new speaker. He also administers oath to the members of the house.

CHAIRMAN OF RAJYA SABHA

The vice president is the ex-officio chairman of the Rajya Sabha and its presiding officer.

He isn’t a member of the Rajya Sabha unlike the speaker.

He has the same powers and functions as the speaker of the Lok Sabha. He can be removed from his position only when he is removed from the post of vice president. This needs a majority of total membership of the house.

The chairman nominates from amongst members of Rajya Sabha a panel of chairpersons who preside over the house when both chairman and vice chairman are absent.

If even all the panel members are absent then any person chosen by the house presides over it.

If there is a vacancy in the office of chairman or vice chairman the panel members can preside over the house. In this case the president shall nominate a person suitable to preside till the new chairman is elected.

He can’t vote on house bills but only in case of equality of votes.

When a resolution considering his removal is being considered he isn’t the presiding officer and he can’t vote even in the first instance. He nominates members of Rajya Sabha to various house committees. His salary and allowances are charged on the consolidated fund of India and not subject to vote.

VICE CHAIRMAN OF RAJYA SABHA

Rajya Sabha nominates from amongst its members a vice chairman. He presides over the house in case the chairman is absent or office is vacant or vice president has to act as the president. In all cases he has same powers and duties as the chairman.

He isn’t subordinate to the chairman but is directly responsible to the house. When chairman is present he acts as any other member.

He can be removed by total majority of the membership of the house, or by resigning in writing to the chairman or when he ceases to be a member of the Rajya Sabha.

Miscellaneous:

Leader of the house is the prime minister in the Lok Sabha if he is a member of Lok Sabha or a minister nominated by him. Similarly there is a leader of house in the Rajya Sabha too who is nominated by the PM.

Leader of opposition is the leader of the largest party in the house but should have atleast one tenth seats of the total strength of the house.

Sessions of the parliament are called by the president by summoning each house. The maximum time period between two sessions is six months hence parliament sessions have to be two in a year.

There are 3 sessions of parliament in India viz. budget, monsoon and winter.

The speaker of the house adjourns sessions i.e. the sitting is terminated but not the session.

Adjournment sine die means adjourning without deciding a day of reassembly or indefinitely adjourning, this too can be done by the presiding officer. However only the president terminates the session i.e. prorogation.

This is done after the presiding officer adjourns sine die. Dissolution is done by the president only and it ends the life of the Lok Sabha and new elections have to be held. This dissolution is irrevocable.

Status of Bills if Lok Sabha dissolves:

Whenever a Lok Sabha dissolves the bills that are pending before it [transmitted to it by RS or originating before it] lapse, also all bills passed by the Lok Sabha but not approved by RS also lapse.

However bills originating in the RS and not yet passed by it or not yet transmitted to LS don’t lapse; also bills passed by both houses waiting president’s assent don’t lapse.

Bills send by president for reconsideration don’t lapse.

Bills held due to deadlock and president have notified a joint sitting on them before the LS was dissolved also don’t lapse.

Ministers of the central government or attorney general are allowed to take part in the proceedings of the house. But the ministers can’t vote in house to which they don’t belong as members.

Chapter 24: LEGISLATIVE PROCEDURE IN PARLIAMENT

Procedure for bill passage

The procedure followed in both houses to pass bills into act is same. The bills go through the same stages in both houses. Bills can be public bills [introduced by minister, needs 7 days prior notice and is drafted by govt department in consultation with law dept.] OR private bills [introduced by anyone but a minister, needs a month notice and drafted by the concerned member].

Parliament makes laws in skeletal form and the executive has to make detailed rules and regulations within framework of the law. This is called delegated legislation; executive legislation or subordinate legislation;

Ordinary bill:

First reading: Member asks for the leave of the house to introduce the bill. If the leave is granted he introduces title and objectives, the bill is published in the gazette of India. If bill is published before its introduction leave of the house isn’t needed. No debates or voting takes place.

Second reading: Detailed scrutiny of bill.

  1. A) Here printed copies of the bill are given to all house members. The house can take the bill for immediate consideration or at a fixed date. It can be referred to a select committee or a joint committee of both houses. It can be circulated for public opinion.
  2. B) A committee scrutinizes the bill and amends it if needed. A detailed clause by clause review is done. Committee submits report to the house.
  3. C) The house examines the bill in detail. Each clause is examined and voted upon. Amendment if succeeded is added to the bill.

Third reading: The entire bill is discussed and voted; no amendments are allowed at this stage. If the bill is passed by a simple majority then it’s authenticated by the presiding officer and goes to the second house.

In the second house the bill can be either passed without amendments or passed with amendments or rejected or no action is taken. If the first house rejects the amendments or second house rejects bills or no action is taken for six months then a deadlock is deemed to have taken place and a joint sitting is called by the president.

Joint sitting is notified by the president after which no house can proceed on the bill. Speaker or in his absence deputy speaker or in his absence deputy chairman of RS presides over the joint sitting. If he is also absent the any member in the joint sitting can preside as chosen by the members present. Joint sitting can’t be done for money bills or constitution amendments.

In a joint sitting no new amendments can be made except if these amendments have caused disagreement between the two houses OR have been made necessary due to the delay in passing the bill. A bill needs to be passed by a simple majority.

If the president returns the bill for reconsideration then both houses have to pass it again with or without amendments then this time the president must have to give his assent.

 

Financial bills:

They are of three types: Money bills, financial bills – I and Financial bills – II;

Money bills can be introduced only in Lok Sabha and only after the president’s recommendation. It is a government bill and can be introduced only by a minister.

When it is passed by the Lok Sabha and transmitted to the Rajya Sabha. RS can’t amend it but only make recommendations or take no action or reject outright; in either case it has to return it within 14 days. The LS can accept or reject the recommendations and then it goes to the president.

Bill is a money bill if it deals with:

  1. Provisions of taxation;
  2. Borrowing by the union government;
  3. appropriation of funds from the consolidated fund of India;
  4. Payment into or withdrawal from consolidated fund or contingency fund of India;
  5. Declaration of amount charged on consolidated fund or increasing this amount;
  6. Audit of accounts of union or states;
  7. receipts of money on account of consolidated fund or public account of India or custody or issue of such money;

      It is not a money bill if it deals with only:

  1. Provisions of taxation by local body or at local levels; imposition of fines or penalties; demand for licence fees or service fees;

      Financial bills – I:

     It can contain matters of money bills [all or some] but have to also contain provisions of general legislation.

     Such bills can be introduced only in LS and only after the president’s recommendation. But otherwise the procedure for passing it same as ordinary bills.

    Amendments to it in any house other than abolition or reduction of tax can be moved only after president’s recommendation. President can return the bill for reconsideration too.

 

      Financial bills – II:

      It doesn’t include any matter of a money bill but deals with expenditure from the consolidated fund of India. It can be passed by a house only if the president has directed it to consider such a bill. It doesn’t need president’s recommendation for introduction. Procedure for passing in both houses is same. President can give assent withhold or return it to house for reconsideration.

Chapter 25: ANNUAL FINANCIAL STATEMENT OR BUDGET [ARTICLE 112]

Introduction

 

President causes to be laid before both houses the Annual Financial Statement.

This contains the estimated revenues or expenditures of the government for a financial year.

There are two budgets General or Railways.

Expenditure on revenue account should be separated from other expenditure. Also expenditure charged on the consolidated fund should be separated from the expense made from the fund.

Parliament can reduce or abolish a tax but can’t increase it.

Demand for grants can be made only on recommendation of the president.

Expenditures are of two types charged upon the Consolidated Fund of India or made from the C.F.I. Charged expense is non votable but can only be discussed by parliament.


Expense charged upon the Consolidated Fund of India:

It includes salaries, pensions or expenses of President, UPSC, CAG, SC judge, Pensions of HC judges, Presiding or deputy presiding officer of LS and RS. Debt of the Govt of India, Amounts to satisfy any judgments, expense declared by parliament to be charged on the fund.

Stages of Enactment of Budget:


A) Presentation of budget: Railway budget is presented in third week of Feb. and general budget in last working day of Feb. Finance minister gives a budget speech and at the end of it; the budget is laid before both houses.

B) General discussions: Only the general principles of budget or the budget as a whole can be discussed. No motions of reduction of grants or votes can be made. Finance minister has the right of reply at end of discussion. This happens in both houses.

C) Scrutiny by dept committees: An in-depth scrutiny of demand for grants by department is made by each departmental standing committee of parliament. Three to four weeks are given for this and the house remains in recess. The standing committees make a report to the house at the end.

D) Voting on the demand for grants: The MP's of Lok Sabha study and vote on each demand for grant. The Lok Sabha only can vote on demand for grants and no voting is allowed on the expenditure charged on the consolidated fund of India. MP's can move motion for reduction of a grant called CUT Motions;


E) Appropriation bill and Finance bills: The appropriation bill contains voted demand for grants and also expense charged on the consolidated fund of India. No amendments can be made on these in any house. After the bill receives assent of the president it becomes appropriation act. This allows expense from the consolidated fund.
Finance bill is also presented containing provisions for taxation. It is like a money bill however amendment can be moved seeking to reduce or remove a tax. This allows taxes to be levied.

Cut Motion

  1. Policy cut: Reduces allocation of grant to Re. 1 to indicate disapproval to a policy.
  2. Token cut: Reduce amount by Rs.100 to ventilate specific grievance
  3. Economy cut: Reduction by specific amount to suggest economic use of funds.

26 days are allotted for discussions and voting of the demand for grants at the last day all remaining demands are put to vote and disposed. This is referred to as “Guillotine”.

 

Other Grants:

  1. Supplementary grant: Amount authorised by parliament is found insufficient
  2. Additional grant: extra amount is needed that wasn’t dealt with earlier
  3. Excess grant: Amount is spent in excess of the authorised amount; this has to be approved by the Public accounts committee.
  4. Vote of credit: for meeting an unexpected demand
  5. Exceptional grant: sanctioned for a special purpose
  6. 6. Token grant: funds to meet a new expenditure can be met by transferred from one head to another.

 

Funds of India:

  1. Consolidated fund of India: All revenues credited to the government; all loans received; all payment received as repayment of loans given; are credited to this fund. No money can be issued or withdrawn except by law.
  2. Contingency fund of India: To meet unforeseen circumstances parliament created this fund. It is at the disposal of the president. Money can be issued pending authorization of parliament. However the finance secretary handles it; it is operated by executive action.
  3. Public account of India: Payment usually of the nature of banking transactions are made from this account; It is operated by executive action so parliaments authorization not needed; Provident fund deposits, judicial deposits, savings bank deposits, departmental deposits or remittances are credited here.

 

Important Committees of Parliament:

They are two types standing [permanent, constituted every year and continuous work] or adhoc [temporary and cease to exist when work assigned is completed]. Below committees are standing committees. Members are elected by proportional representation. All committees are advisory in nature with non binding recommendations.

  1. Public accounts committee:

 

  1. 22 members [15 LS + 7 RS]; No minister; chairman chosen by speaker
  2. Term-1 year;
  3. Examines CAG audit reports on appropriation accounts and finance accounts , audits of autonomous bodies, demand for excess grants etc
  4. Examines if wastage, inefficiency or corruption has occurred.
  5. CAG is the friend, philosopher and guide.
  1. Estimates committee
  • 30 members of LS; no minister; chairman chosen by the speaker
  • term of 1 year
  • Examine estimates included in the budget and suggest economies.
  1. Public undertakings committee
  • 22 members [15 LS +7 RS]; no minister; chairman chosen by the speaker
  • term – 1year
  • Examine CAG reports on public undertakings; examines reports and affairs of public undertakings.
  1. Departmental standing committees: 31 members [21 LS + 10 RS]; no minister; chairman chosen by the speaker and term of 1 year; examines demand for grants of various ministries;
  2. Committee on welfare of SC and ST’s: 30 members [20 LS + 10 RS]; no minister; chairman chosen by the speaker and term of 1 year; examines report of the national commissions of SC and ST; Examines safeguards for welfare of SC/ST’s;
  3. Committee on empowerment of women: 30 members [20 LS + 10 RS]; no minister; chairman chosen by the speaker and term of 1 year; examines report of the national commissions of women; Examines safeguards for welfare of women;

Adhoc committees are advisory or inquiry. Inquiry committees are constituted by house or by speaker or chairman to inquire or report on specific subjects. Advisory committees are select or joint committees to report on particular bills.

A Minister is not eligible for election or nomination to the Financial Committees, Departmental Standing Committees, and Committees on Empowerment of Women, Government Assurances, Petitions, Subordinate Legislation and Welfare of Scheduled Castes and Scheduled Tribes.

Chapter 26: PARLIAMENTARY PRIVILEGES

Introduction

These are special rights, privileges or immunity's enjoyed by the MP’s that ensure independence and effectiveness of their actions. Without a privilege the house can’t maintain is dignity, neither honor nor protect its members from any obstructions in their parliamentary duties.

They extend to any member who takes part in parliamentary proceeding [attorney general or union ministers] even if they aren’t members.

However they don’t extend to the president even though he is a part of the parliament.

Collective privileges:

That belong to both houses are:

 

  1. Right to publish records, reports, debates and prohibit others from doing the same. However by 44thamendment others can publish true reports of proceeding except secret sittings without permission of house.
  2. Right to have secret sittings
  3. Right to informed of the arrest and release of members
  4. Right to punish for its contempt or breach of privilege
  5. No court can inquire into proceedings of house or any committees. No legal process [civil / criminal] can be served without informing presiding officer.

Individual privileges:

Enjoyed by every member.

 

  1. They cannot be arrested during sessions of the parliament. 40 days before beginning and 40 days after end of each session. This extends to civil cases not criminal cases or preventive detention.
  2.  They have freedom of speech in parliament. No member can be held liable for anything said or vote given in parliament in any court.
  3. Can refuse to give evidence or bear witness during parliament sessions.

    Breach of privilege is an act by which any person or authority attacks the rights, immunity's or privileges of individual or house.    

     Contempt of house is an act of omission which may or may not breach any specific privilege but lower dignity and authority of the house. Thus it has a wider implication.    

Miscellaneous

     Parliament can create additional privileges for itself and if these violate any fundamental right then these privileges can’t be invalidated as they hold higher ground.

Chapter 27: PARLIAMENTARY FORUM

Introduction

These are constituted for sharing of knowledge and providing a platform of discussions and dialogue between parliamentarians and government officials and key experts.

The speaker is the president of every forum except one where the chairman of Rajya Sabha is the president.

The deputy chairman, deputy speaker, concerned minister and chairman of standing committees are ex officio vice presidents of forums.

Apart from them there are 31 members [21 LS + 10 RS]. These other members are nominated by the speaker or chairman from amongst members or leaders of political party.

Chapter 28: SUPREME COURT

Introduction

Supreme Court is the highest court of appeal. Constitution deals with jurisdiction, independence, powers, procedures and organization. Parliament can also regulate them. It can increase the number of judges. Parliament can’t curtail the jurisdiction but expand it only.

Supreme Court has the power to punish for its contempt.

Appointment of judges is done by the president. For the chief justice the president consults as many judges of the Supreme Court and high court as he may deem necessary. For the other judges he has to consult the chief justice of India and as many other judges of the S.C and H..C as he may deem necessary.

Conduct of the judges in performance of their duties can’t be discussed in parliament except when a motion for their impeachment is being considered.

Qualification for judges of the S.C:

 

  1. He should be a citizen of India
  2. He should fulfill at least one criteria from below:
  1. He should be a judge of H.C in succession for 5 years
  2. He should be an advocate of H.C in succession for 10 years
  3. He should be a distinguished jurist in the opinion of the president.

 

Tenure:

Occupies office till he attains the age of 65 yrs.

Can resign anytime in writing to the president.

Can be removed by president on recommendation of parliament.

 

Removal of judges [Act of Parliament]: 

A motion support removal must be supported by 100 LS / 50 RS members. The presiding officer may or may not admit it. If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; Chief justice of high court and distinguished jurist checks if judge is guilty; if the committee finds the judge guilty then parliament can pass a motion by special majority in both houses.

An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

Acting Chief Justice or Adhoc S.C Judges

President can appoint a S.C judge as acting chief justice if the Chief justice is absent or can’t perform his duties or the office is vacant.

The chief justice with the previous consent of the president may appoint adhoc judges to the Supreme Court by nominating high court judges who are duly qualified. The consultation of the chief justice of the high court is also needed. Also retired judges of H.C or S.C can be appointed if their consent is there. But he won’t be considered as S.C judge.

Retired judges of S.C. are banned from pleading or acting in any court before any authority in India.

The C.J.I. can with the approval of the president designate other seats of the S.C. too.

Jurisdiction of the Supreme Court

Original and exclusive jurisdiction: Only the supreme court can adjudicate matters of dispute between Centre and one / more states on one hand and one / more states on the other OR between states OR between centre and one or more states. Election disputes of president and vice president can be considered by it only.

Writ jurisdiction: S.C can issue writs for safeguarding or enforcing fundamental rights if aggrieved citizens approach it. The citizens can approach it directly too. This jurisdiction is concurrent to jurisdiction of H.C. However the writ jurisdiction of H.C's are wider but unlike Supreme courts they are discretionary powers.

Appellate jurisdiction: The final court of appeals means SC can hear appeals of following kinds Constitutional matters [H.C. certifies that an interpretation to the constitution is needed], Civil matters [H.C certifies that substantial question of law is present], Criminal matters and Special leave.  Special leave jurisdiction is a discretionary power that allows SC to admit an appeal on any judgment of court or tribunal except military tribunals.

Court of record: The judgments of the S.C are legal precedents.

Advisory jurisdiction: The S.C may give its opinion to the president when asked about a question of law or fact of public importance. S.C has to give its opinion if asked about disputes arising out of pre - constitution instruments.

Judicial review: The final interpreter of the constitution. It can invalidate laws or check their constitutional validity. It is the guarantor of fundamental rights and guardian of the constitution.

Chapter 29: GOVERNOR OF STATES

Introduction

The state executive has Governor [head], chief minister and the council of ministers and advocate general. Governor is also an agent of the centre. One governor can be appointed for two or more states.

Governor is appointed by the president and occupies office during his pleasure. Term is 5 years.

President can transfer a governor. Or reappoint a governor after his term is over in same state or different state.

President can make alternative arrangement for functions of governor in case of contingency e.g.: appoint Chief Justice of H.C to function as a temporary governor. No such provision is made in the constitution for emergency situations.

 

Qualifications:

  1. 35 or above years of age
  2. citizen of India
  3. He can’t be a Member of Parliament or state legislatures. The day he is appointed in as governor he is deemed to have vacated his seat in legislatures.

He is immune from legal liability regarding official acts. He has immunity from criminal proceeding even for personal acts. Civil proceedings regarding personal acts can be started against him after two months notice.

Constitution allows governor discretion in his official functions. Also the advice of the chief minister and the council of ministers isn’t binding on the governor. Whenever there is a doubt on if the activity is at his discretion or not the decision is made by the governor and is final. Also whether he has or hasn’t discretion on a matter can’t be challenged in courts.

Discretionary powers:

  1. Reservation of bill for president’s consideration.
  2. recommendation to impose presidents rule in state
  3. while exercising additional duty as administrator of UT he needn't take advice of the cabinet.
  4. Seeking information of administrative and legislative matters from state

 

Powers of Governor:

Executive powers: All executive actions of state are taken in his name. Powers of the governor by convention have to be exercised with the advice of the CM + council of ministers. But constitution doesn't put any compulsions.

He can make rules specifying which orders and instruments made and executed in his name shall be authenticated.

He can makes rules for more convenient transaction of business of State government and allocation of said business among ministers.

He appoints CM and council of ministers and the attorney general; they occupy office during his pleasure. There should be a tribal welfare ministry in Jharkhand, odissa, MP, Chhattisgarh.

He appoints State EC, Chairman and members of State PSC + finance commission every five years to review position of panchayats.

He is chancellor of all universities in state and appoints vice chancellors.

 

Legislative powers:

  • Dissolving Vidhan Sabha. Summoning and proroguing house of state legislature and dissolve legislative assembly.
  • He can send messages to the Houses of State Legislature regarding bills or otherwise. He addresses state legislatures at the beginning of first session after elections and at start of each year.
  • He can nominate one sixth members to state legislative council from fields of art, science, cooperative movement, literature and social service.
  • He can nominate one member of Anglo Indian community to legislative assembly if he feels community isn’t adequately represented.
  • He decides questions of disqualification of members after advice of EC which is binding.
  • When the office of presiding officer and deputy presiding officers becomes empty he appoints a member for temporarily presiding over the house.
  • Money bills and demand for grants can be introduced only after his assent. He can make advances out of contingency fund of state.
  • He can make ordinances when state legislature not in session or only one house in session in case of bicameral legislatures. He can withdraw ordinances anytime.
  • A bill can become an act only if it has received governor’s assent. When a bill is given to the governor he can:
  1. Give his assent
  2. Withhold his assent / Absolute veto  [only for ordinary bills / money bills]
  3. Return the bill for reconsideration / Suspensive veto. However if the bill is again passed by parliament then he has to give his assent to it. [ only for ordinary bills ]
  4. Reserve bill for assent of president. If the bill endangers position of high court than it has to be reserved. Optionally governor may reserve bill in following cases too:

Ø  against provision of constitution

Ø  opposed to directive principles of state policy

Ø  against larger interest of country

Ø  of grave national importance

Ø  deals with compulsory acquisition of property

A bill whether ordinary or money bill when reserved for presidents assent needs no role of governor in future. Hence if the bill is returned by president and if the state legislatures pass it again it goes to the president directly.

Judicial powers:

  1. Appoints, promotes, and makes postings of district judges in consultation with state high court.
  2. Appoints people to state judicial service after consulting state high court and state PSC.
  3. He can grant pardon [remove sentence and conviction], remit [reduce sentence but not its character], reprieve [stay on execution for a temporary period], commute [substitute sentence with a lighter form] or respite [award lesser sentence due to special factors of convict] sentence of a convict sentenced under state law.

    Chapter 30: CHIEF MINISTER AND HIS COUNCIL

    Chief Minister

    Chief Minister’s position in state is analogous to the prime ministers position at the centre.

    The governor appoints the leader of the largest party of the house or leader chosen by the largest coalition to become the chief minister. The governor may exercise situational discretion if no party has clear majority. He may ask a leader to become chief minister and then prove his majority on floor of the house.

    In case the chief minister dies and no successor is present then the governor may appoint one at his discretion but if the ruling party has a nominee then the governor has no choice but to appoint that person.

    CM must become member of either house within 6 months or else he ceases to become the CM. CM occupies position at the governors pleasure but the governor can’t dismiss him till he has a majority in the house.

     

    Powers of the CM:

    Ø  As head of the council of ministers he recommends people to be appointed as ministers to the governor. He allocates and reshuffles portfolios amongst them. He can ask the minister to resign or tell the governor to dismiss him. He supervises activities of all ministers. His resignation or death leads to dissolution of the council of ministers.

    Ø  He communicates to the governor all matters related to administration of the state and proposed legislations. He furnishes information required by the governor relating to administration of the union or proposed legislations. He submits to the consideration of the council of ministers any matter on which decision has been taken by an individual minister but the CoM hasn’t considered it.

    Ø  He can advice governor to summon or prorogue the house sessions. He can advice dissolution of legislative assembly to the governor anytime. He announces government policies on the floor of the house.

    Ø  He is advisor of governor regarding appointments to various regulators and constitutional bodies of the union.

    State Council of Ministers:

    The CM + Council of ministers are the real executives of the state. They aid and advice the governor in the exercise of his functions but such advice is not binding on the governor. 42nd amendment didn’t make it binding on the governor as it did to the president.

    Governor has been given discretionary powers too. No court shall inquire into the advice given by the CoM to the governor. The council shall always be there to aid and advice the governor hence even if the legislative assembly is dissolved or the council has resigned still they have to continue in office till their successors are assuming charge.

    The total strength of the CM + CoM shall not exceed 15% of the strength of the legislative assembly [91stamendment]. But the number of CM + CoM shall not be less than 12. The person who has been disqualified on grounds of defection shall also be disqualified to be appointed as the PM [91st amendment].

    Council of ministers is collectively responsible to the legislative assembly. A minister who isn’t a member of any house for six consecutive months shall cease to be the minister. A minister can take part in proceeding of both houses as he is member of the government but can vote only in the house of which he’s a member.

    A member of any house disqualified on grounds of defection shall be disqualified from becoming a minister too.

    Collective responsibility: This means that entire CoM is a team that sinks or swims together. So if the legislative assembly passes a no confidence motion against the CoM then all have to resign. Only the legislative assembly can pass the motion of no confidence; it can’t be against a single minister but the entire CoM only.

    This is due to the provision in the constitution saying:

    "Council of ministers is collectively responsible to the legislative assembly."

    Category of Ministers:

    There are three categories of ministers in the council:

    Ø  Cabinet: They attend cabinet meetings and play important role in state government.

    Ø  Minister of state: They can be independent in charge of department that aren’t attached to cabinet ministries or in charge of specific department part of a ministry /specific work in a  ministry which is headed by a cabinet minister.

    Ø  Deputy Minister: They are attached to cabinet ministers or ministers of state and assist them in their work.

    Chapter 31: STATE LEGISLATURE

    State Legislatures

    State legislatures aren’t uniform. Some are unicameral but Seven Indian States, Andhra Pradesh, Telangana, Bihar, Jammu-Kashmir, Karnataka, Maharashtra and Uttar Pradesh, have bicameral Legislatures, these are called legislative councils.

    Thus state legislatures have governor, legislative assembly [first chamber or popular house] and legislative council [second chamber or house of elders; only if formed].

    Strength

    J&K has a bicameral legislature due to its own constitution. Similarly the minimum strength fixed for legislative councils by constitution isn’t applicable to J&K.

    Parliament can create or abolish the second chamber if state legislative assembly makes a resolution by a special majority. This isn’t considered an amendment to the constitution so parliament can pass law by a simple majority.

    State legislative assembly has strength of 60-500 with exceptions for smaller states. The numbers of territorial constituency have been fixed by census of 1971 till the year 2026. However by delimitation act census of 2001 has been considered without altering the number of constituencies in states.

    Strength of the legislative council is from 40 to one third that of the legislative assembly. The constitution has fixed the maximum and minimum limits but actual strength is fixed by parliament.

    Composition of legislative council

     

    1. One third members are elected by legislative assembly members
    2. One third are elected from local bodies,
    3. One twelfth are elected by graduates of three years standing and residing in state
    4. One twelfth are elected by teachers of three years standing and not lower in standard than secondary school
    5. One sixth is nominated by governor.

        

         Duration of assembly:    

          Normal term is 5 years from the date of first session. However governor can dissolve it anytime. During emergency   its term can be extended by one year at a time. But not beyond a period of 6 years after emergency is removed.    

         Duration of council:

          The legislative council is a permanent body. One third members retire every 2 years. Vacancy is filled at beginning           of third year. Term of each member is 6 years. A member can be re-elected or re nominated any number of times.

     

        Qualifications for a member of state legislature:

     

    1. Citizen of India
    2. must not be less than 30 yrs in case of council and 25 yrs in case of assembly
    3. For legislative council and assembly he must be an elector from the concerned state belonging to any constituency.
    4. For nomination by the governor he must be a resident in the state
    5. He must be a SC or ST to contest from reserved seats for them. But they can contest from unreserved seats too.

     

    Disqualifications:

    1. holds an office of profit under union or state government only [not local]
    2. unsound mind, undischarged insolvent and not a citizen of India
    3. been found guilty of electoral offences and corrupt practices in elections
    4. sentenced for more than 2 yrs imprisonment for a crime
    5. holds an office of profit in a company where govt holding is 25% and above
    6. has interest in government contracts, works
    7. Has been convicted of preaching social crimes like untouchability, dowry and sati.
    8. doesn’t lodge election expense on time
    9. has been convicted of promoting enmity between groups or bribery
    10. Has been dismissed from government service for disloyalty to state or corruption.

    Miscellaneous

    1. Governor’s decision on disqualification on these matters is final but he has to obtain advice of election commission on this matters.
    2. Questions regarding disqualification on grounds of defection [tenth schedule] are decided by the presiding officer of that house.
    3. The powers, privileges, functions and duties of speaker, deputy speaker, chairman and deputy chairman are same as that of parliament. However the chairman of legislative council is member of that house.
    4. When the state legislative assembly is dissolved the bills returned by the president for reconsideration of the house don’t lapse. This is extra condition the others are mentioned in Section of bills lapsing in due to dissolution of Lok Sabha.
    5. No discussion shall take place in the state legislature regarding conduct of judges of SC and HC in discharge of their official duties.

      Chapter 32: LEGISLATIVE PROCEDURE IN THE STATE LEGISLATURES

           Ordinary bills

           With regards to ordinary bills, the procedure is same as parliament. The bills go through three readings and if it is passed by a simple majority it goes directly to the president [unicameral legislature] or to the second chamber [bicameral legislature]. Here the legislative assembly is highly powerful than the Lok Sabha.

           If the legislative council rejects the bill or passes it with amends or takes no action for three months, the bill goes to the legislative assembly again.

           The assembly may pass it again with or without amends. Then the bill goes to the legislative council where either it may be accepted or rejected or amended or no action is taken. After one month bill is sent back to legislative assembly. But this time the bill is deemed to have been passed in the form passed by the legislative assembly in the second time. It is sent to the governor.

            There is no provision for joint sittings to resolve deadlocks. Thus the legislative council can only withhold a bill for 4 months [3 months on first instance and 1 month on second]. Also if a bill passed by legislative council is disapproved by legislative assembly then it becomes dead.

          

          Constitutional Amendment referred for ratification by states:

      If    A constitutional amendment bill referred to state legislatures for assent is considered by both state legislature houses. Here to the will of the legislative assembly prevails. It the legislative council rejects the amendment the assembly can pass it again as in case of non money bill. Approval of ordinances of the governor to has the domination of legislative assembly.

           Governor may give his assent or withhold his assent or send the bill back for reconsideration or reserve bill for the president’s consideration. If the bill sent for reconsideration is passed by both houses with or without amends the governor has to give his assent to it [Suspensive veto]. If the bill is reserved for presidents assent on it but is returned for reconsideration and the houses pass it again. It isn’t obligatory for the president to assent it. President can return a state bill any number of times. 

           Money Bill

            No money bill can be introduced without the governor’s recommendation. Such a bill is a government bill and can be introduced only by a minister. It can be introduced only in legislative assembly. The bill if passed goes to the legislative council. The council can only discuss it and make recommendation. It has to return bill in 14 days. The assembly may reject or accept such recommendations. The bill is then given to governor for assent. Governor may give or withhold it or sent it for president’s consideration. President too may give or withhold assent. But neither governor nor president can return the bill for reconsideration.

      Chapter 33: HIGH COURT

           High Court:

           High court occupies top position in the judicial administration of the state. Parliament can have common high court for two or more states or states and UT's. [Ex: Bombay HC over Daman Diu and dadra nagar haveli, Calcutta HC over A&N islands, Kerala HC over Lakshadweep islands and madras HC over Puducherry].

           Only Delhi is a union territory that has a HC. HC has a chief justice and other judges as the president may deem necessary to appoint. Constitution doesn’t determine strength of HC but leaves it to the President.

       

           Appointment of Judges:

           The President appoints chief justice of high court after consulting CJI and governor of the state or states [in case of common high court]. For other judges of that court chief justice of that high court is also consulted.

       

           Qualification for judges of HC:

      1. Citizen of India
      2. A) should have held a judicial office in India for 10 years

      OR

      2 B) should have been an advocate of HC for 10 years in succession.

       

      Tenure:

      He can be a judge of the high court till he reaches 62 years of age. He can be removed by president on recommendation of parliament. He can resign by writing to the president.

       

      Removal of judges [Act of Parliament]:

      Grounds for removal are proven misbehaviour or incapacity.

      A motion support removal must be supported by 100 LS / 50 RS members. The presiding officer may or may not admit it. If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; A Chief justice of high court and distinguished jurist checks if judge is guilty; if the committee finds the judge guilty then parliament can pass a motion by special majority in both houses. An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

      President can transfer the judge of a HC after consultation with chief justice of India.

      Acting Chief Justice:

      The president can appoint a HC judge as acting chief justice in case the vacancy of office of chief justice OR C.J is temporarily absent or unable to perform his duties.

       

      Additional or Acting judges:

      President can appoint additional judges for a period of two years if additional work load is seen or to clear arrears. The appointees should be duly qualified. For acting judges the president can appoint duly qualified people till the judge is temporarily absent or unable to perform his duty.

      Retired judges: The chief justice may with previous consent of president and the person concerned

      Appoint a retired judge [of the same HC or other HC] as judge of the HC. Though such a person enjoys all privileges and powers he isn’t considered as a judge of the HC.

      Independence of HC:

      1. President appoints judges only after consultation with other judges. Executive interference is minimum.
      2. Security of tenure and protection against arbitrary removal
      3. Expense charged on consolidated fund
      4. Ban on practise after retirement
      5. Jurisdiction as specified can’t be changed for HC and SC by any legislature. But jurisdiction with respect to other matters can be changed by both.
      6. Power to punish for contempt
      7. Conduct of judges can’t be discussed

      Jurisdiction of High Court:

      Original jurisdiction

      1. Four HC's of Bombay, madras, Calcutta and Delhi have original jurisdiction over civil cases of higher value.
      2. Revenue matters
      3. Elections disputes related of parliament and state legislatures.
      4. Enforcing fundamental rights
      5. Cases involving interpretation of constitution.

      Writ jurisdiction:

      The HC can issue writs to any person, organisation or authority for enforcement of fundamental rights as well as for any other purpose. Hence it is wider than the writ jurisdiction of SC.

      Appellate jurisdiction:

      It is a court of appeal for civil, criminal cases of subordinate courts. The appellate jurisdiction extends to even tribunal orders.

      Supervisory jurisdiction:

      High courts have wide supervisory jurisdiction over all courts and tribunals in its territorial jurisdiction. Also it has judicial as well as administrative superintendence. It can take suo moto cognisance.

      It is a court of record; it has power of judicial review.

      Chapter 34: SUBORDINATE COURTS

      Introduction

              These function below the high court’s at district or lower levels.

              Qualification for district judge:

      1. He should have been an advocate or pleader for 7 years.
      2. He should be recommended by high court.
      3. He shouldn’t already be in service of centre or state.

            The appointment, posting, promotion is made by Governor after consultation with High court. Other appointments of judicial service are made by Governor after consulting high court and state public service commission. Appointments of judicial service below district judge are made by high court.

            District judge (Civil cases) / Sessions judge (Criminal cases) has highest judicial position in district. He has original and appellate jurisdiction over civil and criminal cases.

                                                                     

      Fig 1: Hierarchy of indian courts

      Chapter 35: RELATIONSHIP WITH J&K

      Introduction

         J&K has its own constitution. Special status is given to J&K which is unparalled.

      Features of the special status:

      1. Parliament can make laws on matters on the union list and some matters in the concurrent list.
      2. Article 1 and 370 apply to J&K other articles apply with specifications or modifications as directed by the president in concurrence with the state government.
      3. President can declare that Article 370 ceases to exist after recommendation of the constituent assembly.
      4. Name, area, boundary can’t be changed by the union without consent of the state government
      5. Residuary powers belong to the state legislatures. Law of preventive detention can be made by the state only.
      6. Fundamental rights are applicable to the state [with modifications and some additional rights are there too] but DPSP or fundamental duties aren’t.
      7. HC of J&K can issue writs to enforce fundamental rights only. CAG, EC and special leave jurisdiction of SC are applicable here.
      8. Schedules 5 and 6 aren’t applicable here.
      9. Presidential order needed if any constitutional amendment has to extend to the state.
      10. International treaties affecting any territory can be made only if state government agrees.
      11. National emergency on internal disturbance won’t have any effect on state unless state government consents
      12. President can’t impose financial emergency in state.
      13. President can’t suspend constitution of J&K for failure to comply with his directions.
      14. President’s rule can be imposed on lines of the state constitution.

      Recent development

       

      The State of J&K has been in turmoil due to the government's decision to issue identity cards to people from West Pakistan [mostly hindus and sikhs] who have migrated to India after partition. The separatists have accused the government of trying to change the demography of the state by increasing the number of non kashmiri residents. However there is no basis to this accusation. The West Pakistani migrants have been identity-less for three generations. They have no quotas in jobs or education, they can’t participate in local body elections or state elections. They also can’t stand for these elections or buy land in the state as the complex state laws prohibit this.

       

      Therefore the government has done the right thing in issuing identity cards to these members.

      Chapter 36: PANCHAYATI RAJ

      Introduction

      Balwantrai Mehta committee recommended democratic decentralisation in 1957. Ashok Mehta committee 1977 to sought to revive this system. GVK Rao committee 1985 was appointed by the planning commission to strengthen and revitalise the panchayati raj system.

      Finally the constitution amendment passed in 1992 [73 rd amendment] by Narasimhan Rao government added eleventh schedule to the constitution. 29 items have been placed in domain of panchayats.

       

      Features of this amendment:

      1. Gram Sabha [village assembly]: Comprises all registered voters in the area of the panchayat. It can have powers and duties as the state legislature determines.
      2. Three tier system: At village-intermediate-district level in all districts of the country. However for states having population less than 20 lakh may not have intermediate level.
      3. Elections: All members’ at all three tiers shall be directly elected by the people. Chairpersons at top two tiers shall be indirectly elected by elected members at those tiers. State legislatures can make provision for election of chairperson at village level.
      4. Reservation of seats: at all levels reservation for seats shall be made for SC, ST, and Women. Also seat of chairperson too shall be reserved for them at all levels.
      5. Duration: All three tiers panchayats shall have 5 year term. But it can be dissolved earlier too. elections must be held within 6 months of dissolution but new panchayats shall be in power only for remainder of term of original panchayats had it not been dissolved. Also re-elections not needed if the period of power is less than 6 months.
      6. Qualifications: Candidate should be above 21 yrs. he / she shouldn’t be disqualified from participating in elections by any law of centre or state.
      7. State election commission shall be created with an election commissioner appointed by the governor. However he can be removed by following procedure for removal of state high court judge. SEC shall handle preparation of electoral rolls and conduction of elections.
      8. State legislature can endow the panchayati system with powers and duties as may be necessary to enable them to function as institutions of self government.
      9. State finance commission shall be appointed by the governor every 5 years to decide
      10. Principle for distribution of net proceeds of taxes between state and panchayats.
      11. grants in aid to panchayats from state consolidated fund
      12. determination of taxes that can be assigned to panchayats
      13. measures needed to improve their financial position
      14. any other matter referred by governor in matter of sound finance of panchayats

      State legislature decides composition, qualification and method of selection of personnel. Governor places the report and action taken report to the house.

      1. Audits and accounting principles shall be laid by the state legislatures.
      2. President may direct application of this amendment to UT’s with modification or exceptions.
      3. Act doesn’t apply to Meghalaya, Nagaland, Mizoram, J&K, hill areas of Manipur and Darjeeling; scheduled areas and tribal areas of state [for this parliament has enacted panchayats extension to scheduled areas act [PESA act, 1996].
      4. Courts are barred from interference in electoral matters.

       

      Panchayat Extension to Scheduled Areas Act, 1996:

      1. State legislation on panchayats shall be in consonance to their laws and practices for managing community resources.
      2. Gram Sabha shall have power to safeguard and preserve traditional practices, rights, customs and dispute resolution mechanism. It shall approve plans, projects, and schemes at village level before they are implemented. identify beneficiaries for poverty removal programs; certify utilisation of funds; acquisition of lands for developmental projects; resettlement and rehabilitation of affected people; recommend granting of mining leases for minor minerals;
      3. Reservation of seats shall be in proportion to their population; not less than 50% for ST; chairperson at all levels to be ST;
      4. State legislations shall ensure higher level panchayats don’t usurp authority of lower level panchayats
      5. Planning and managing minor water bodies the responsibility of panchayats at suitable levels.

        Chapter 37: URBAN LOCAL GOVERNMENT

        Introduction

        74th amendment of the constitution added the 12th schedule on urban local government. This schedule being justifiable makes it obligatory for state governments to have these. 18 functional items have been placed in the purview of municipalities.

        Types of municipality:

        1. Nagar panchayats [ for transitional areas]
        2. municipal council: for small urban area
        3. Municipal corporation: for large urban areas.

        All members of municipality shall be directly elected by the people. Municipal area shall be divided into wards.  State government can make provision for manner of election for head of municipality. It may provide representation in the municipality for people of special knowledge, MP / MLA of Lok Sabha Rajya Sabha or state legislative assembly and council.

        Chairperson of committees other than ward committee.  A ward committee shall be formed of two or more wards having population of 3 lakh or more. State govt can specify how these ward committees shall be filled. State govt can also make other committees.

        Reservation for SC/ST [in proportion to their population] and women [1/3rd] must be made at all municipalities and also in post of chairpersons. Reservation for backward caste [in municipality and also in post of chairpersons] may be made.

        Duration: All municipalities shall have 5 year term. But it can be dissolved earlier too. elections must be held within 6 months of dissolution but new municipality shall be in power only for remainder of term of original municipality had it not been dissolved. Also re-elections not needed if the period of power is less than 6 months

        Qualifications: he should be above 21 yrs. he shouldn’t be disqualified from participating in elections by any law of centre or state.

        State election commission shall be created with an election commissioner appointed by the governor. However he can be removed by following procedure for removal of state high court judge. SEC shall handle preparation of electoral rolls and conduction of elections.

        State legislature can endow the municipality system with powers and duties as may be necessary to enable them to function as institutions of self government.

        State finance commission shall be appointed by the governor every 5 years to decide

        1. Principle for distribution of net proceeds of taxes between state and municipality.
        2. grants in aid to municipality from state consolidated fund
        3. determination of taxes that can be assigned to municipality
        4. measures needed to improve their financial position
        5. any other matter referred by governor in matter of sound finance of municipality

        State legislature decides composition, qualification and method of selection of personnel. Governor places the report and action taken report to the house.

        Audits and accounting principles shall be laid by the state legislatures.

        President may direct application of this amendment to UT’s with modification or exceptions.

        Act doesn’t apply to hill areas of Darjeeling; scheduled areas and tribal areas of state.

        Courts are barred from interference in electoral matters.

        District planning committees:

        At district level in every state there shall be a district planning committee for consolidating development plans of panchayats and municipalities. It also prepares draft development plan. The state legislature can decide composition of committee, functions, manner of election of members and chairperson.

        4/5th members shall be elected by elected representatives of panchayats and municipalities from amongst themselves. Their ratio shall be the ratio of rural and urban population of the district.

        Metropolitan planning committee:

        At metropolitan area in every state there shall be a metropolitan planning committee for preparing draft development plan. The state legislature can decide composition of committee, functions, manner of election of members and chairperson and representation of centre, state govt and other organisations in it.

        2/3rd members shall be elected by elected representatives of municipalities and chairpersons of panchayats in the area of the metropolitan region from amongst themselves. Their ratio shall be the ratio of rural and urban population of the district.

        Types of urban governments:

        The transitional area, small urban area or large urban area is specified by the governor by a public notification.

        1. Municipal Corporation: these are established in states by acts of state legislatures and in UT’s but acts of Parliament. There can be one act for all corporations or separate acts for individual. Each corporation has three organs: council, standing committees and commissioner. Council is a legislative body elected by the people. It also includes nominated people of special knowledge or experience. It’s headed by the mayor who is assisted by deputy mayor. Compositions of council and reservation matters are mentioned in the constitution. standing committees are created to facilitate working of council and take decisions in own sphere viz. health, education etc. commissioner is the chief executive officer of the corporation and is responsible for implementation of decisions of council and standing committees.
        2. Municipality: these are established in states by acts of state legislatures and in UT’s by acts of Parliament. There can be one act for all Municipality or separate acts for individual. Each Municipality has three organs: council, standing committees and chief executive officer. Council is a legislative body elected by the people. It also includes nominated people of special knowledge or experience. It’s headed by the president/chairman who is assisted by vice president or vice chairman. Unlike the mayor a president has executive powers too. Compositions of council and reservation matters are mentioned in the constitution. standing committees are created to facilitate working of council and take decisions in own sphere viz. health, education etc. chief executive officer of the Municipality is responsible for implementation of decisions of council and standing committees.
        3. Notified area committee: Fast developing town or a town that doesn’t have all conditions necessary for a municipality. It is notified by government gazette. Provisions of state municipality act which apply to it are mentioned in the gazette. All members [including chairman] are nominated. It’s neither statutory nor elected.
        4. Town area committee: It is created by separate act of parliament. It can be elected or nominated.
        5. Cantonment board: for administration of a civilian population in a cantonment area [an area where military troops are permanently situated]. Established by a central legislation. It has partly elected and partly nominated members.
        6. Township: These are established by large enterprises. They are administered by people appointed by that enterprise from its own staff. Fully nominated body.
        7. Port trust: created by central act to manage and protect ports and provide basic civic amenities there. It has elected and nominated members but chairman is official.
        8. Special purpose agency: These are created by act of state legislature or executive order of department. They are function specific and carry out the function in the specified area independent of civic bodies.

          Chapter 38: SCHEDULED AREAS AND TRIBAL AREAS

          Introduction

          Fifth schedule: Administration of scheduled areas and tribal areas in India except states of Assam, Meghalaya, Tripura and Mizoram.

          Sixth schedule: Administration of scheduled areas and tribal areas in states of Assam, Meghalaya, Tripura and Manipur.

          Administration as per fifth schedule:


          1. President can notify, denotify, renotify, and alter boundaries of scheduled areas in a state after consulting the governor concerned.
          2. Governor has to submit reports on administration of such areas annually or as president may determine. Centre can give directions to the states for administration of such areas.
          3. Tribal advisory council is established with 20 members 3/4th of who are representatives of ST members in legislative assembly. It advises on welfare and advancements on ST in scheduled areas.>
          4. Governor may direct that an act of parliament or state legislature applies to scheduled areas or applies with modifications. He can make rules for peace, progress and good government of such areas after consulting tribal advisory council. Such regulations might repeal the act of parliament too but this needs assent of president.

           

          Sixth Schedule:

          To promote self government for tribal areas of Assam, Meghalaya, Tripura and Mizoram.

          Features:

          1. Governor has the power to create autonomous tribal districts for each tribe of that region. Executive authority of state is applicable here.
          2.  Each tribal autonomous district has a district council with 30 members [26-elected, 4 – nominated] elected members have 5 yr term and nominated occupy post during governors pleasure.
          3. Each autonomous region also has regional council. The district and regional council makes regulations for certain specified matters. But all such laws need governor’s assent.
          4. They can also form courts to hear disputes between tribes. Jurisdiction of HC over them is specified by governor.
          5. The district councils can collect land revenue and certain taxes. They can establish civic facilities in these districts. They can also make regulations to control trading, money lending by tribes. But such regulations need governor’s assent.
          6. Act of parliament and state legislatures don’t apply to these regions but apply with modifications or exceptions. Governor of Assam has the power on both central and state laws. Governor of Tripura, Meghalaya and Mizoram have with respect to state laws and president with respect to central laws.
          7. Governor can make a committee to examine administration of such regions. He can dissolve district and regional councils based on their recommendations.

          Manipur Unrest


          The State assembly decided to form 7 new districts in the state by bifurcating the existing 9 and now leading to a total count of 16 districts. The Chief Minister claims that the reasons for this were to fulfill long standing demands of people and also for administrative efficiency. However there have been violent protests and blockades against the decision. The Naga leaders complain that the Non Naga areas have been merged with Naga areas in order to bifurcate the Nagas. The Hill Area Committees which were constituted under Article 371 of the constitution also weren’t consulted before such a decision was taken.The Naga tribal population in the hilly areas has long believed that the State leadership is communal and anti tribal. So when unpopular bills like Protection of Manipuri people’s bills, Manipur Shop and establishment Act and Manipur Land revenue and land records bills were introduced the tribes began protesting. There was already tension in tribal areas due to demand for introduction of Inner line permit in Manipur. The bifurcation of districts in such a tense situation was seen as a Insider vs Outsider issue.


          In the police firing many deaths occurred but the bodies weren’t allowed to be buried till the demand for the withdrawal of bills is withdrawn. The association of Naga militants with political parties has also led to tensions.


          The government should have consulted other parties and tribal communities before such a decision was taken.

          Chapter 39: ELECTION COMMISSION

          Description

          It is a permanent and independent body formed to ensure free and fair elections in the country under Article 324. EC conducts elections of office of president, vice president, parliament and state legislatures. Elections of panchayats and municipality are handled by state election commissions formed under 73rdamendment.

          Composition:

          It is a multi member body of chief election commissioner [C.E.C] and as many commissioners as the president determines. Both are equal in powers and duties and removal procedures similar to judge of SC.

          President can also appoint regional election commissioners after recommendation of C.E.C. The matters / decisions of election commission are determined by majority.

          Term of office is 6 years or till age of 65.

          The term is decided by the president.

          They can resign by writing to president and can be removed by president too but the removal process is same as judge of Supreme Court. Grounds for removal are incapacity or proved misbehaviour.

          Any other election commissioner can be removed from office only after recommendation of CEC.

          Flaws:

          1. Constitution doesn’t prescribe qualifications for members of the EC.
          2. Term of the members of EC isn’t specified.
          3. They are not debarred from future appointments after retiring or resigning.
          4. Election commissioners aren’t constitutionally protected with security of tenure.

           

          Election commission has decided to delist 200 non serious parties that have not contested any elections since 2005 and could be only created for money laundering operations. The EC has no power to deregister registered political parties.

           

          EC has also recommended that political parties declare donations received below Rs. 20000 and the identity of the donor should be maintained. But these recommendations were ignored.

           

          Powers and functions:

           

          1. Determine areas of territorial constituencies with consultation of delimitation commission.
          2.  Prepare and revise electoral rolls
          3. Notify dates of elections, scrutinise nominations, allot symbols to political parties and recognise them. Grant status of national or state parties.

               National Party:

          1. A)  If it secures six per cent of valid votes polled in any four or more states at a general election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four seats in the Lok Sabha from any state or states; or
          2. B) If it wins two per cent of seats in the Lok Sabha at a general election; and these candidates are elected from three states; or
          3. C)  If it is recognised as a state party in four states.

               State Party:

          • If it secures six per cent of the valid votes polled in the state at a general election to the legislative assembly of the state concerned; and, in addition, it wins 2 seats in the assembly of the state concerned; or

           

          • If it secures six per cent of the valid votes polled in the state at a general election to the Lok Sabha from the state concerned; and, in addition, it wins 1 seat in the Lok Sabha from the state concerned; or
          • If it wins three per cent of seats in the legislative assembly at a general election to the legislative assembly of the state concerned or 3 seats in the assembly, whichever is more; or
          • If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to the state at a general election to the Lok Sabha from the state concerned; or
          • If it secures eight per cent of the total valid votes polled in the state at a General Election to the Lok Sabha from the state or to the legislative assembly of the state. This condition was added in 2011.

              

               National party get an exclusive symbol for use throughout the country. State party gets to use a symbol exclusively throughout the state / states.

               Miscellaneous

           

          • Advice president, governor on question of disqualification of members of legislatures.
          • Cancel polls in event of rigging.
          • Advice president on whether elections can be held in the state so that presidents rule can be extended beyond one year. Such advice is binding on him.

          At state level, chief electoral officer is appointed after consulting the state government. District collector is district returning officer. He appoints returning officer for each constituency and presiding officer for each booth.

           

          Simultaneous Organization of Polls

           

          Simultaneous Elections: Salient Features and Drawbacks

           

          The country has elections in some part or the other throughout the year. This causes wastage of manpower and monetary resources. Paramilitary has to be deployed for security, government officers have to do poll duty wasting manpower, model code of conduct is enforced making policy making difficult. Therefore the PM suggested holding simultaneous elections at central and state level to reduce this wastage. Subsequently NITI Aayog has created a study based on which it commented that such a step would need curtailing of the terms of state assemblies by 3 months to a year while some might need to be extended.

           

          Since independence till 1970 simultaneous elections were a practice. But in 1970’s there were dissolution of state assemblies before they completed their 5 year term. This became a norm soon as the Central government changed it dissolved the assemblies of its opposition. Vendetta politics became common. Other factors were weak coalitions, defection and emergencies at National level due to War and Internal disturbances. All these led to disruption in the schedule of Central and State elections.

           

          For simultaneous elections, electoral norms will have to be strengthened to prevent dissolutions of state assemblies in arbitrary manner. The coalition partners will have to remain in the government and prevented from withdrawing support midway. There should be checks to ensure that withdrawal of support would mean seeking mandate again [This was suggested by Administrative Reforms Commission].

           

          Supreme Court Judgment on Representation of Public Act

          Religion, race, caste, community or language shall not be allowed to play any role in the electoral process. The candidate may lose his election if these matters are referred to during the campaign. Thus the reference to the voter’s identity too is now illegal. Although the intentions of this judgment are great it also has some counterpoints:

          1. It is insensitive to the history of political mobilization and social reality of the country. The Constitution recognizes the position of religion, language, caste and race as defining characteristics of a person. These defining characteristics too are regarded as the reasons for discrimination. Therefore it has various safeguards to protect these minorities. Political mobilization was made on these grounds and has been successful e.g Dalit movement or the Jat/Patidar/Maratha rallies. Declaring these activities as illegal would increase dissent against the State.
          2. Since the judgment doesn’t clarify what kind of appeals shall be treated as religious appeals or what speeches does the prohibition apply too or can a single reference too be a ground for disqualification.
          3. Since RPA is applied after the election the ruling can be used to overturn a mandate based on fuzzy interpretation of what is a religious appeal.
          4. The judgment also outlaws political parties like Akali Dal, AIMIM that were created after political mobilization in name of religion.
          5. It is insensitive to the history of political mobilization and social reality of the country. The Constitution recognizes the position of religion, language, caste and race as defining characteristics of a person. These defining characteristics too are regarded as the reasons for discrimination. Therefore it has various safeguards to protect these minorities. Political mobilization was made on these grounds and has been successful e.g Dalit movement or the Jat/Patidar/Maratha rallies. Declaring these activities as illegal would increase dissent against the State.
          6. Since the judgment doesn’t clarify what kind of appeals shall be treated as religious appeals or what speeches does the prohibition apply too or can a single reference too be a ground for disqualification.
          7. Since RPA is applied after the election the ruling can be used to overturn a mandate based on fuzzy interpretation of what is a religious appeal.
          8. The judgment also outlaws political parties like Akali Dal, AIMIM that were created after political mobilization in name of religion.

 

Campaigners can evade this judgment by making the same religious claims but giving them a historical aspect. E.g: Beef ban can become an argument on basis of Animal husbandry, Temple building can be argued on basis of historical claims.



  1. Steps to clean up political finance

    1. Government should ban cash donations to political parties.
    2. Parties are under no obligation to disclose donations received under Rs. 20000 from a single source. This affects cleaning up exercise as nearly 70%-100% of funds are undisclosed by parties.
    3. Tax exemptions could be restricted to only the funds that are transparently disclosed by parties.
    4. EC should get the powers to de-register parties that violate norms.
    5. Chartered Accountants audit the books of parties and this is hardly an audit as the CA's are chosen by the party. They can be pressurized or lured into hiding the details. So third party audit must be made mandatory.

      Chapter 40: UNION PUBLIC SERVICE COMMISSION

      Introduction

      Composition:

      The commission has a chairman and other members as determined by the president [usually 9 – 11]. Constitution hasn’t given any qualifications except that 1/2 of the members should have at least 10 years of experience under central or state government.

      Term:

      The chairman and member occupy office for 6 years or till they reach 65 years. They can resign by writing to president and also be removed by president before their term expires.

      Grounds for removal are proved misbehaviour or incapacity. In this case president has to refer matter to SC and if SC inquiry finds him guilty then SC can advice removal. This advice is binding on president.

      Other grounds are engages in paid employment, becomes bankrupt or in presidents opinion is unfit to continue due to infirm body or mind.

      President can suspend the chairman or member pending investigation.

      President can appoint acting chairman from amongst the members if the office of chairman falls vacant or chairman can’t discharge duties.

      Independence of Commission:

      1. Commission members aren’t eligible for reappointment to same post. Chairman is ineligible for reappointment under any government. Member of UPSC can only be appointed as chairman of UPSC / SPSC.
      2. All expense of UPSC is charged on the consolidated fund on India.

      Functions:

      1. Conducts examination for appointments to all India, central service and public service.
      2. It assists states for framing and operating schemes of joint recruitment for any service where candidates need special qualifications. But two or more states should request it.
      3. With request of governor on approval of president, UPSC can serve all or any need of state.
      4. It is consulted on matters of personnel requirement like:

       

      • Disciplinary matters, deciding suitability of candidates, their promotion and transfer.
      • Reimbursement of legal expense incurred by a civil servant in defending an action performed in course of official duty.
      • Reappointment of employees, pension for injuries sustained on duty, miscellaneous personnel matters.

      The advice of UPSC is not binding on government. Consultation of UPSC is a discretionary power not mandatory and can’t be challenged in courts.

      The jurisdiction of UPSC can be extended by parliament. UPSC presents an annual report to president which is tabled in the house. Only the appointments committee of the cabinet can reject advice of ministry but it must give reasons for non acceptance. Individual ministries or departments can’t reject.

      Limitations:

      U.P.S.C isn’t consulted in the following matters

      1. Appointment for posts taking consideration to claims of backward caste, SC and ST.
      2. Selection to chairmanship of tribunals, diplomatic posts and Group C and D posts.
      3. Temporary post where position is for less than 1 year.

      President can exclude posts, services, matters from purview of UPSC.

      With respect to all India and central services president can make regulations specifying matters where consultation of UPSC isn’t necessary but such regulations have to be approved by parliament within 14 days.

      Creation of CVC has affected its role in consultation on disciplinary matters.

      Chapter 40: UNION PUBLIC SERVICE COMMISSION

      Introduction

      Composition:

      The commission has a chairman and other members as determined by the president [usually 9 – 11]. Constitution hasn’t given any qualifications except that 1/2 of the members should have at least 10 years of experience under central or state government.

      Term:

      The chairman and member occupy office for 6 years or till they reach 65 years. They can resign by writing to president and also be removed by president before their term expires.

      Grounds for removal are proved misbehaviour or incapacity. In this case president has to refer matter to SC and if SC inquiry finds him guilty then SC can advice removal. This advice is binding on president.

      Other grounds are engages in paid employment, becomes bankrupt or in presidents opinion is unfit to continue due to infirm body or mind.

      President can suspend the chairman or member pending investigation.

      President can appoint acting chairman from amongst the members if the office of chairman falls vacant or chairman can’t discharge duties.

      Independence of Commission:

      1. Commission members aren’t eligible for reappointment to same post. Chairman is ineligible for reappointment under any government. Member of UPSC can only be appointed as chairman of UPSC / SPSC.
      2. All expense of UPSC is charged on the consolidated fund on India.

      Functions:

      1. Conducts examination for appointments to all India, central service and public service.
      2. It assists states for framing and operating schemes of joint recruitment for any service where candidates need special qualifications. But two or more states should request it.
      3. With request of governor on approval of president, UPSC can serve all or any need of state.
      4. It is consulted on matters of personnel requirement like:

       

      • Disciplinary matters, deciding suitability of candidates, their promotion and transfer.
      • Reimbursement of legal expense incurred by a civil servant in defending an action performed in course of official duty.
      • Reappointment of employees, pension for injuries sustained on duty, miscellaneous personnel matters.

      The advice of UPSC is not binding on government. Consultation of UPSC is a discretionary power not mandatory and can’t be challenged in courts.

      The jurisdiction of UPSC can be extended by parliament. UPSC presents an annual report to president which is tabled in the house. Only the appointments committee of the cabinet can reject advice of ministry but it must give reasons for non acceptance. Individual ministries or departments can’t reject.

      Limitations:

      U.P.S.C isn’t consulted in the following matters

      1. Appointment for posts taking consideration to claims of backward caste, SC and ST.
      2. Selection to chairmanship of tribunals, diplomatic posts and Group C and D posts.
      3. Temporary post where position is for less than 1 year.

      President can exclude posts, services, matters from purview of UPSC.

      With respect to all India and central services president can make regulations specifying matters where consultation of UPSC isn’t necessary but such regulations have to be approved by parliament within 14 days.

      Creation of CVC has affected its role in consultation on disciplinary matters.

      Chapter 41: STATE PUBLIC SERVICE COMMISSION

      Introduction

      Articles 315 – 323 contain elaborate provisions regarding composition, appointment and removal of members and other matters related to SPSC.

      Composition:

      The commission has a chairman and other members as determined by the governor. Constitution hasn’t given any qualifications except that 1/2 of the members should have at least 10 years of experience under central or state government.

      Term:

      The chairman and member occupy office for 6 years or till they reach 62 years. They can resign by writing to Governor and also be removed by president before their term expires. Grounds for removal are proved misbehaviour or incapacity. In this case president has to refer matter to SC and if SC inquiry finds him guilty then SC can advice removal. This advice is binding on president. Other grounds are engages in paid employment, becomes bankrupt or in presidents opinion is unfit to continue due to infirm body or mind.

      Governor can suspend the chairman or member pending investigation.

      Governor can appoint acting chairman from amongst the members if the office of chairman falls vacant or chairman can’t discharge duties.

       

      Independence of Commission:

      Commission members aren’t eligible for reappointment to same post.

      Chairman is ineligible for reappointment under any government. But is eligible for employment as chairman or member of UPSC or chairman of other SPSC. Member of SPSC can only be appointed as chairman or member of UPSC or any other SPSC or chairman of that SPSC.

      All expense of SPSC is charged on the consolidated fund on state.

      Functions:

      Conducts examination for appointments to state service.

      It is consulted on matters of personnel requirement like:

      • Disciplinary matters, deciding suitability of candidates, their promotion and transfer.
      • Reimbursement of legal expense incurred by a civil servant in defending an action performed in course of official duty.
      • Reappointment of employees, pension for injuries sustained on duty, miscellaneous personnel matters.

      The advice of SPSC is not binding on government. Consultation of SPSC is a discretionary power not mandatory and can’t be challenged in courts.

      The jurisdiction of SPSC can be extended by state legislature. SPSC presents an annual report to governor which is tabled in the house.

      Limitations:

      SPSC isn’t consulted in the following matters

      1. Appointment for posts taking consideration to claims of backward caste, SC and ST.

      Governor can exclude posts, services, matters from purview of SPSC. With respect to state services governor can make regulations specifying matters where consultation of SPSC isn’t necessary but such regulations have to be approved by state legislature within 14 days. Creation of SVC has affected its role in consultation on disciplinary matters.

      JOINT PUBLIC SERVICE COMMISSION

      Constitution makes provision for a JPSC to cater to needs of two or more states. JPSC is formed by an act of parliament. It submits reports to state governors. President decides composition, tenure, conditions of service, removal. Chairman and Members have a term of six years or till 62. They can be suspended or removed by president. Or they can resign by writing to president.

      Chapter 42: FINANCE COMMISSION

      Introduction

      President appoints this every five years or earlier if necessary. It a quasi judicial body under Article 280. Recommendations of the finance commission are not binding. Fourteenth finance commission under V. Y. Reddy submitted report on 2014 implementation time is 2015-2020.

       

      Composition:

      1. Commission has chairman and four members appointed by the president. Their term is decided by the president and they are eligible for re appointment.

      Qualifications:

      Constitution authorises parliament to decide qualification of members. Parliament specifies chairman to be a person of experience in public affairs. Other members should be selected from amongst following:

       

      1. Judge of HC or one qualified to be appointed as one.
      2. Person with specialised knowledge of finance and accounts.

         3.      Person with experience in financial matters and administration.

         4.      Person with specialised knowledge of economics.

      Functions:

       

      1. Distribution of net proceeds of tax between centre and states and allocation of it between states.
      2. Principles governing grants in aid to states from centre
      3. Measures needed to augment consolidated fund of states to supplement resources of panchayats and municipality as recommended by State finance commissions.
      4. Any other matter specified to it by president in interest of sound finance.

        Chapter 43: NATIONAL COMMISSION FOR SC AND ST

        Introduction

        It was created by the 65th amendment and replaced the special officer for SC and ST. By 89th amendment it was bifurcated and a National commission for SC was created.

        Composition:

        It has chairman, vice chairman and three other members. All appointed by the president. Their condition of service and tenure is determined by the president. Currently three years.

        Chairman has status of a cabinet minister and vice chairman has a rank of a minister of state.

        Functions of National commission for SC:

        The functions of the SC Commission are:

        (a) To investigate and monitor all matters relating to the constitutional and other legal safeguards for the SCs and to evaluate their working;

        (b) To inquire into specific complaints with respect to the deprivation of rights and safeguards of the SC's;

        (c) To participate and advise on the planning process of socio-economic development of the SCs and to evaluate the progress of their development under the Union or a state;

        (d) To present to the President, annually and at such other times as it may deem fit, reports upon the working of those safeguards;

        (e) To make recommendations as to the measures that should be taken by the Union or a state for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the SCs; and

        (f) To discharge such other functions in relation to the protection, welfare and development and advancement of the SCs as the president may specify.

         

        Functions of National commission for ST:

        • To investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
        • To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
        • To participate and advise in the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
        • To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
        • To make in such reports, recommendations as to the measures that should be taken by the Union or any State for effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes, and
        • To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

         

        The commission submits an annual report to the president. It can submit a report on any other time as it may seem right to it. Such a report is tabled by president in parliament along with Action taken on it and reasons for non acceptance of advice. Reports belonging to states are sent by president to concerned governors who do the same in respective legislatures.

         

        Powers:

        To regulate its procedure. Acts as a civil court when it tries a suit and can summon witness, official records, examine a person on oath, receive affidavits, any other function as the president determines.

        It also has to perform same functions for any backward caste as president may determine and the Anglo Indian community. Centre and states have to consult these commissions while formulating policies for SC and ST.

        Chapter 44: COMPTROLLER AND AUDITOR GENERAL OF INDIA

        Introduction

        Created under article 148 of the constitution. He is the head of accounts and audit department. He controls financial administration of centre and states.

        He is appointed by the president and hold office for 6 years or till age of 65. He can be removed by president on same grounds and manner as SC judge.

        He can resign by writing to president. He is responsible only to parliament. He enjoys power to frame rules and decide scope for audit of expenditure but audits related to other sectors need approval of executive government.

        Functions:

        Legal and regulatory audit is mandatorily conducted by CAG but propriety [determines ‘wisdom, faithfulness and economy’ of expense] is discretionary.

        With regard to expense of secret service the CAG can’t call for particulars of expenditure but has to accept the certification from the competent administrative authority that expense has been incurred under him.

        Though the constitution visualises him as a comptroller but in practice he is just the auditor general.

        Independence:

        He has security of tenure, his salary and conditions of service are determined by parliament. He is ineligible for appointment under Govt of India or state after ceasing to hold office. All expense of office is charged on the consolidated fund of India.

        No minister can represent CAG in parliament nor can any minister be called to take responsibility for his actions.

        Powers and duties:

        These are mentioned in the act of parliament and constitution.

        1. He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated fund of each state and consolidated fund of each union territory having a Legislative Assembly.
        2. He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the contingency fund of each state and the public account of each state.
        3. He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept by any department of the Central Government and state governments.
        4. He audits the receipts and expenditure of the Centre and each state to satisfy himself that the Rules and procedures in that behalf are designed to secure an effective check on the Assessment, collection and proper allocation of revenue.
        5. He audits the receipts and expenditure of the following:

        (a) All bodies and authorities substantially financed from the Central or state revenues;

        (b) Government companies; and

        (c) Other corporations and bodies, when so required by related laws.

        1. He audits all transactions of the Central and state governments related to debt, sinking funds, Deposits, advances, suspense accounts and remittance business. He also audits receipts, stock accounts and others, with approval of the President, or when required by the President.
        2. He audits the accounts of any other authority when requested by the President or Governor. For example, the audit of local bodies.
        3. He advises the President with regard to prescription of the form in which the accounts of the Centre and the states shall be kept (Article 150).
        4. He submits his audit reports relating to the accounts of the Centre to President, who shall, in turn; place them before both the Houses of Parliament (Article 151).
        5. He submits his audit reports relating to the accounts of a state to governor, who shall, in turn, place them before the state legislature (Article 151).
        6. He ascertains and certifies the net proceeds of any tax or duty (Article 279). His certificate is final. The ‘net proceeds’ means the proceeds of a tax or a duty minus the cost of collection.
        7. He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament.
        8. He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with regard to the compilation and maintenance of accounts of the Central Government due to the separation of accounts from audit, that is, departmentalisation of Accounts.

        CAG submits three audit reports to the president who tables them to the house – appropriation account, finance account and public undertaking. The public accounts committee examines them and submits a report to the house. The report of audit of public undertakings is submitted to the public undertakings committee.

        With regards to auditing of accounts of Government companies and corporations CAG has limited role they are fully audited by it OR government appoints private auditors for them in consultation with CAG, here CAG conducts supplementary audit OR the private auditors audit the accounts and no role of CAG is there.

         

        Criticisms:

        All private-public partnerships (PPPs), Panchayti Raj Institutions and societies getting government funds outside the ambit of the CAG.

        The amendment further proposes to enhance CAG’s powers to access information under the Audit Act. Documents demanded by CAG officials have often been denied to them.

        65 percent of government spending does not come under the scrutiny of the CAG

        CAG needs to be a multi member body elected by a collegiums consisting of judiciary and opposition too.

        CAG audits often lead to slow decision making as they create fear of persecution among bureaucrats. Also CAG mostly does post mortem work.

        Chapter 45: ATTORNEY GENERAL OF INDIA

        Introduction

        Highest law officer of the country. It is a constitutional position. He is appointed by the president and must be qualified to appoint as a SC Judge. His term, grounds of removal, salary are fixed by the president as the constitution doesn’t have it. Since it is a political appointment he resigns when the government is changed.

        Duties:

        1. Legal advisor to the government on matters which are referred to him by the president.
        2. To discharge functions as assigned to him by constitution.
        3. To appear on behalf of Govt of India in SC or HC when a case concerning the government is decided.

         

        Rights and Limitations:

        1. He can attend house proceeding and speak in both houses but can’t vote.
        2. He has right to be heard in all courts.
        3. He enjoys all privileges of a member of the house.

         

        Limitations on him to prevent conflict of interest and complications:

         

        1. He should not advise or hold a brief against the Government of India.
        2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the Government of India.
        3. He should not defend accused persons in criminal prosecutions without the permission of the Government of India.
        4. He should not accept appointment as a director in any company or corporation without the permission of the Government of India.

         

        However it is not a full time post and he can engage in private legal practice. He can also be reappointed or is eligible for any other government appointment after ceasing to hold office. The other law officers of the Govt of India are solicitor general and additional solicitor general. They are non constitutional, non statutory posts created to assist the attorney general in his duties

        Chapter 46: ADVOCATE GENERAL OF STATES

        Introduction

        He is the highest law officer in the state. The post is created by article 165. The term, grounds for removal, remuneration is not fixed by the constitution and the governor is to determine. He can be removed by the governor anytime. He usually resigns during change of government. He must be qualified to be judge of HC [hold a judicial office for 10 years within the state].

        Duties:

        1. Legal advisor to the government on matters which are referred to him by the governor.
        2. To discharge functions as assigned to him by constitution.
        3. To appear on behalf of Govt of state in SC or HC when a case concerning the government is decided.

         

        Rights and Limitations:

        1. He can attend house proceeding and speak in both houses but can’t vote.
        2. He has right to be heard in all courts.
        3. He enjoys all privileges of a member of the house.

         

        Limitations on him to prevent conflict of interest and complications:

        1. He should not advise or hold a brief against the Government of state.
        2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the Government of state.

          3.He should not defend accused persons in criminal prosecutions without the permission of the Government of state.

          4.He should not accept appointment as a director in any company or corporation without the permission of the Government of state.

        However it is not a full time post and he can engage in private legal practice. He can also be reappointed or is eligible for any other government appointment after ceasing to hold office

        Chapter 47: NATIONAL DEVELOPMENT COUNCIL

        Introduction

        It was formed by executive resolution in 1952 hence it is neither constitutional body nor statutory body.

        Composition:

        Prime Minister of India [chairman] and includes all Union Ministers, Chief Ministers of all the States and Administrators of Union Territories and Members of the Planning Commission.

        Objectives:

        1. to secure cooperation of the states in the execution of the plan
        2. to strengthen and mobilize the effort and resources of the nation in support of the Plan
        3. to promote common economic policies in all vital spheres and
        4. To ensure the balanced and rapid development of all parts of the country.

        The functions of the Council are:

        1. to prescribe guidelines for the formulation of the National Plan, including the assessment of resources for the Plan;
        2. to consider the National Plan as formulated by the Planning Commission;
        3. To make an assessment of the resources those are required for implementing the Plan and to suggest measures for augmenting them.
        4. to consider important questions of social and economic policy affecting national development; and
        5. To review the working of the Plan from time to time and to recommend such measures as are necessary for achieving the aims and targets set out in the National Plan.
        6. To recommend measures for achievement of the aims and targets set out in the national Plan.

        The draft 5 year plans of the planning commission were submitted for approval of the NDC before going to parliament. NDC is listed as an advisory body to the planning commission and its advice was not binding.

        Chapter 48: NATIONAL HUMAN RIGHTS COMMISSION

        Introduction

        It is autonomous, statutory body created in 1993. It is the watchdog of human rights in the country.

         Functions:

        • Proactively or re-actively inquire into violations of human rights or negligence in the prevention of such violation by a public servant
        • By leave of the court, to intervene in court proceeding relating to human rights
        • To visit any jail or other institution under the control of the state government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make recommendations
        • Review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation
        • Review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures
        • To study treaties and other international instruments on human rights and make recommendations for their effective implementation
        • Undertake and promote research in the field of human rights
        • Engage in human rights education among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means
        • Encourage the efforts of NGO's and institutions working in the field of human rights
        • Such other function as it may consider it necessary for the protection of human rights.

        Appointments:

        The Chairperson and members of the NHRC are appointed by the President of India, on the recommendation of a committee consisting of:

        • The Prime Minister (chairperson)
        • The Home Minister
        • The Leader of the Opposition in the Lok Sabha (House of the People)
        • The Leader of the Opposition in the Rajya Sabha (Council of States)
        • The Speaker of the Lok Sabha (House of the People)
        • The Deputy Chairman of the Rajya Sabha (Council of States)

        The NHRC (National Human Rights Commission) consists of:

        • A Chairperson, retired Chief Justice of India
        • One Member who is, or has been, a Judge of the Supreme Court of India
        • One Member who is, or has been, the Chief Justice of a High Court
        • Two Members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights
        • In addition, the Chairpersons of four National Commissions of (1.Minorities 2.SC and ST 3.Women) serve as ex officio members.

        A sitting judge of SC or chief justice of HC can be appointed only after recommendations of CJI. Once the members cease to occupy office they aren’t eligible for any appointment under central or state government. Term is 70 yrs of age or 5 years.

        Removal is done by president on grounds of bankruptcy, unsound mind, infirmity of body or mind, sentenced to imprisonment for a crime, or engages in paid employment. He can also be removed for proved misbehaviour or incapacity if SC enquiry finds him guilty. They can resign by writing to president.

        Powers:

        The commission has the power of a civil court and can take cognisance of cases if received within one year of occurrence.

        It can recommend compensation to victim, prosecution of accused. But such recommendations aren’t binding.

        It submits special or annual reports to parliament and state legislatures along with action taken on their recommendations and reasons for non acceptance of advice.

        Chapter 49: STATE HUMAN RIGHTS COMMISSION

        Introduction

        It shall inquire into violation of human rights in respect of matters specified in state list and concurrent list. But if NHRC or any other statutory commission has already inquired then the SHRC doesn’t investigate into it. Objectives and duties are same as NHRC.

        Composition:

        It has chairman and two members. Chairman should be retired chief justice of HC and members should be a serving or retired judge of HC or district judge with 7 years experience and a person of knowledge or practical experience in field of human rights.

        The Chairperson and members of the SHRC are appointed by the Governor, on the recommendation of a committee consisting of:

        • The Chief Minister (chairperson)
        • The Home Minister
        • The Leader of the Opposition in the legislative council
        • The Leader of the Opposition in the legislative assembly
        • The Speaker of the legislative assembly
        • The Chairman of the legislative council

        A sitting judge of HC or sitting district judge can be appointed only after recommendations of CJ of high court. Once the members cease to occupy office they aren’t eligible for any appointment under central or state government. Members are eligible for reappointment subject to age criteria. Term is 70 yrs of age or 5 years.

        Removal:

        Removal is done by president on grounds of bankruptcy, unsound mind, infirmity of body or mind, sentenced to imprisonment for a crime, or engages in paid employment.

        He can also be removed for proved misbehaviour or incapacity if SC inquiry finds him guilty. They can resign by writing to governor.

        Powers:

        The commission has the power of a civil court and can take cognizance of cases if received within one year of occurrence.

        It can recommend compensation to victim, prosecution of accused. But such recommendations aren’t binding.

        It submits special or annual reports to state legislatures along with action taken on their recommendations and reasons for non acceptance of advice.

        Chapter 50: CENTRAL INFORMATION COMMISSION

        Introduction

        It is an independent, statutory committee formed under the RTI Act to ensure freedom of information to citizens. It has jurisdiction over central government bodies, PSU and authorities.

        Composition:

        It has chief information commissioner and up to 10 information commissioners. All are appointed by the president on recommendation of prime minister, union minister nominated by him and leader of opposition in Lok Sabha.

        Qualification:

        Qualification for membership to commission are People should person of eminence in public life with experience in field of law, science and technology, governance, social service, management, journalism, mass media or administration. They should not be MP / MLA’s or connected to any political party, doing some business or holding office of profit.

        They hold office till age of 65 or 5 years. The information commissioner is eligible for post of chief information commissioner but can be in office for maximum 5 years including his tenure of information commissioner.

        Removal:

        Removal is done by president on grounds of bankruptcy, unsound mind, infirmity of body or mind, sentenced to imprisonment for a crime, or engages in paid employment.

        He can also be removed for proved misbehavior or incapacity if SC inquiry finds him guilty. They can resign by writing to president.

         

        Powers and functions:

        1. Acts as second appellate authority for RTI applications.
        2. Inquires into complaints under RTI Act
        3. Have powers of a civil court. No public record can be withheld from it during inquiry of complaints.
        4. Can secure compliance of its orders from a public authority
        5. Submits annual reports to the central govt which are tabled before the house.
        6. Commission can recommend steps to be taken by an authority to become complaint under RTI.

          Chapter 51: STATE INFORMATION COMMISSION

          Introduction

          It is an independent, statutory committee formed under the RTI Act to ensure freedom of information to citizens. It has jurisdiction over state government bodies, PSU and authorities.

          Composition:

          It has chief information commissioner and up to 10 information commissioners. All are appointed by the president on recommendation of chief minister, cabinet minister nominated by him and leader of opposition in legislative assembly.

          Qualification:

          Qualification for membership to commission are persons should person of eminence in public life with experience in field of law, science and technology, governance, social service, management, journalism, mass media or administration. They should not be MP / MLA’s or connected to any political party, doing some business/ profession or holding office of profit.

          Term:

          They hold office till age of 65 or 5 years. The information commissioner is eligible for post of state chief information commissioner but can be in office for maximum 5 years including his tenure of information commissioner.

          Removal:

          Removal is done by governor on grounds of bankruptcy, unsound mind, infirmity of body or mind, sentenced to imprisonment for a crime, or engages in paid employment.

          He can also be removed for proved misbehavior or incapacity if SC inquiry finds him guilty. They can resign by writing to governor.

          Powers and functions:

          1. Acts as second appellate authority for RTI applications.
          2. Inquires into complaints under RTI Act
          3. Have powers of a civil court. No public record can be withheld from it during inquiry of complaints.
          4. Can secure compliance of its orders from a public authority
          5. Submits annual reports to the state govt which are tabled before the house.
          6. Commission can recommend steps to be taken by an authority to become complaint under RTI.

            Chapter 52: CENTRAL VIGILANCE COMMISSION

            Introduction

            It has the status of an autonomous and statutory body, free of control from any executive authority, charged with monitoring all vigilance activity under the Central Government of India, advising various authorities in central Government organizations in planning, executing, reviewing and reforming their vigilance work.

            Composition:

            The Commission shall consist of:

            • A Central Vigilance Commissioner - Chairperson;
            • Not more than two Vigilance Commissioners - Members;

            They are appointed by the president on recommendations of a committee of PM + Home minister + leader of opposition Lok Sabha. They occupy post till age of 65 yrs or 4 year term. They are not eligible for any other govt appointment under centre or state after ceasing to hold office.

            Removal:

            Removal is done by governor on grounds of bankruptcy, unsound mind, infirmity of body or mind, sentenced to imprisonment for a crime, or engages in paid employment or has acquired financial or other interest that might affect his judgment.

            He can also be removed for proved misbehaviour or incapacity if SC inquiry finds him guilty. They can resign by writing to president.

             

            Powers and functions:

            Exercise superintendence over the functioning of the Delhi Special Police Establishment (CBI) insofar as it relates to the investigation for corruption related cases

            Give directions to the Delhi Special Police Establishment (CBI) for superintendence for corruption related cases

            To inquire or cause an inquiry or investigation to be made on a reference by the Central Government

            To inquire or cause an inquiry or investigation to be made into any complaint received against any official belonging to All India service and group A.

            Review the progress of investigations conducted by the DSPE into corruption related cases

            Review the progress of the applications pending with the competent authorities for sanction of prosecution of corruption related cases

            Tender advice to the Central Government and its organizations on such matters as may be referred to it by them

            Exercise superintendence over the vigilance administrations of the various Central Government Ministries, Departments and Organizations of the Central Government

            Shall have all the powers of a Civil court while conducting any inquiry

            Respond to Central Government on mandatory consultation with the Commission before making any rules or regulations governing the vigilance or disciplinary matters relating to the persons appointed to the public services and posts in connection with the affairs of the Union or to members of the All India Services

            The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance Commissioners (Members) of the Committee, on whose recommendations, the Central Government appoints the Director of Enforcement

            The Committee concerned with the appointment of the Director of Enforcement is also empowered to recommend, after consultation with the Director of Enforcement appointment of officers to the posts of the level of Deputy Director and above in the Directorate of Enforcement

            The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance Commissioners (Members) of the Committee empowered to recommend after consultation with Director (CBI), appointment of officers to the post of the level of SP and above except Director and also recommend the extension or curtailment of tenure of such officers in the DSPE (CBI)

             

            Limitations:

            CVC is only an advisory body. Central Government Departments are free to either accept or reject CVC's advice in corruption cases.

            CVC does not have adequate resources compared with number of complaints that it receives. It is a very small set up with sanctioned staff strength of 299. Whereas, it is supposed to check corruption in more than 1500 central government departments and ministries.

            CVC cannot direct CBI to initiate inquiries against any officer of the level of Joint Secretary and above on its own. Such permission has to be obtained from the concerned department.

            CVC does not have powers to register criminal case. It deals only with vigilance or disciplinary cases.

            CVC has supervisory powers over CBI. However, CVC does not have the power to call for any file from CBI or to direct CBI to investigate any case in a particular manner. CBI is under administrative control of Department of Personnel and Training (DoPT). Which means that, the powers to appoint, transfer, suspend CBI officers lie with DoPT.

            Appointments to CVC are indirectly under the control of Govt of India, though the leader of the Opposition (in Lok Sabha) is a member of the Committee to select CVC and VCs. But the Committee considers candidates put up before it. These candidates are decided by the Government.

            As a result, although CVC is relatively independent in its functioning, it has neither resources nor powers to inquire and take action on complaints of corruption that may act as an effective deterrence against corruption.

            Chapter 53: LOKPAL AND LOKAYUKTA

            Introduction

            Swedish institution of Ombudsman is first in the world to resolve citizen’s grievances.

            Composition:

            Lokpal will consist of a chairperson and a maximum of eight members.

            Term is 5 yrs or till age of 70. After ceasing to hold office member and chairperson shall not be eligible to hold any post under any government in India.

            Selection of chairperson and members of Lokpal through a selection committee consisting of PM, Speaker of Lok Sabha, leader of opposition in Lok Sabha, Chief Justice of India or a sitting Supreme Court judge nominated by CJI. Eminent jurist to be nominated by President of India on basis of recommendations of the first four members of the selection committee "through consensus".

            Qualifications:

            Chairperson shall be either a sitting or retired Chief justice of India or sitting or retired SC Judge or person of eminence in public affairs.


            Members: 50% will be judicial members i.e. sitting or retired judge of SC / sitting or retired chief justice of HC and 50% members ofLokpal shall be from SC/ST/OBCs, minorities and women.  

            Non judicial members should have knowledge and experience of 25 yrs in field of vigilance, finance, anti corruption policyand public administration.

            Powers:

            Lokpal's jurisdiction will cover all categories of public servants.

            All entities (NGOs) receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are under the jurisdiction of Lokpal.

            Centre will send Lokpal bill to states as a model bill. States have to set up Lokayuktas through a state law within 365 days.

            Lokpal will have power of superintendence and direction over any central investigation agency including CBI for cases referred to them by the ombudsman.

            A high-powered committee chaired by the PM will recommend selection of CBI director. The collegiums will comprise PM, leader of opposition in Lok Sabha and Chief Justice of India.

            PM has been brought under purview of the Lokpal, so also central ministers and senior officials.

            Directorate of prosecution will be under overall control of CBI director. At present, it comes under the law ministry.

            Appointment of director of prosecution to be based on recommendation of the Central Vigilance Commission.

            Director of prosecution will also have a fixed tenure of two years like CBI chief.

            Transfer of CBI officers investigating cases referred by Lokpal with the approval of watchdog.

            Bill incorporates provisions for attachment and confiscation of property acquired by corrupt means, even while prosecution is pending.

            Bill lays down clear timelines for preliminary enquiry and investigation and trial. Provides for special courts Public servants will not present their view before preliminary enquiry if the case requires 'element of surprise' like raids and searches.

            Bill grants powers to Lokpal to sanction prosecution against public servants.

            CBI may appoint a panel of advocates with approval of Lokpal, CBI will not have to depend on govt advocates.

            Chapter 54: MISCELLANEOUS PROVISIONS

             

            Civil Service Regulations

            Article 311 says that the all civil servants occupy posts during the pleasure of the president. But some restrictions are there on this to safeguard against arbitrary dismissal:    

            1. No civil servant can be dismissed or removed by an authority subordinate to the one that appointed him.
            2. A servant can’t be dismissed except by inquiry where he is informed of the charges and given reasonable opportunity to defend himself.

            The above safeguards aren’t applicable to people holding defence posts or military service.

             The second safeguard is not applicable when the civil servant is convicted of an offence, the disciplinary authority states in writing reasons that it’s not practical to hold such an inquiry or president or governor feel that in interest of security of state such an inquiry isn’t needed.

            Tribunals:

            Under article 323A the parliament can establish administrative tribunal for speedy justice to aggrieved civil servants. The central administrative tribunal [CAT] and state administrative tribunals [SAT] have been formed under this.

            Central Administrative Tribunal

            CAT has 1 chairman and 65 members all have rank of HC judges and are appointed by the president. It has 17 benches 15 of which operate from high courts. Term of chairman is 5 yrs or till age of 65 and members if 5 yrs or till age of 62 whichever is earlier. It has original jurisdiction on recruitment and all service matters of public servants. Appeals are heard by HC. It is guided by principles of natural justice.

            State Administrative tribunals

            SAT and Joint administrative tribunals can be established by parliament after states make a request. The president appoints chairman and members after consulting the governor or governors of concerned states.

            Tribunals for other matters:

            Article 323B allows parliament and state legislatures to establish tribunals for other matters too. HC and SC have appellate powers over these. Tribunals under article 323A don’t have a hierarchy but under 323B can be in a hierarchy.

            Liabilities of civil servants:

            The Parliament as well as the state legislatures is empowered to make laws for the compulsory acquisition of private property by the governments.

            Compensation has to be paid only:

            (a) When the government acquires the property of a minority educational institution; and

            (b) When the government acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits

            The government (Union or states) in India can be sued for torts (civil wrongs) committed by its officials only in the exercise of its non-sovereign functions but not in the sovereign functions. Judicial officers enjoy legal liability for official acts.

            Civil servants are not personally liable for official acts but the government is. However if the contract isn’t made as per directions given in the constitution then the civil servant is liable personally.

            Civil proceedings can be instituted against them for anything done in their official capacity after giving a two months’ advance notice.  Criminal proceedings can be instituted against them for acts done in their official capacity, with the prior permission of the president or the governor, where necessary.

            They aren’t immune from civil or criminal liability for personal actions.

            Provisions for SC / ST / OBC / Anglo Indian

            Constitution leaves to the President the power to specify as to what castes or tribes in each state and union territory are to be treated as the SCs and STs. Thus, the lists of the SCs or STs vary from state to state and union territory to union territory.

            In case of the states, the President issues the notification after consulting the governor of the state concerned. But, any inclusion or exclusion of any caste or tribe from Presidential notification can be done only by the Parliament.

            Financial powers of the State:

            The Constitution has placed the following restrictions on the taxing powers of the states:

            (i) A state can impose taxes on professions. But, the total amount of such taxes on a person should not exceed Rs. 2,500 per yr.

            (ii) A state legislature can impose taxes on the sale or purchase of goods (other than newspapers) within the state only except import – export duty and interstate trade duty or on goods declared by Parliament to be of special importance in inter-state trade and commerce.

            (iii) A state legislature cant impose tax on the consumption or sale of electricity except that consumed by the Centre or sold to the Centre; or railways.

            (iv) A state legislature can impose a tax in respect of any water or electricity traded by authority established by Parliament for regulating or developing any inter-state river or river valley but such a law must receive president’s assent.

            TAX REVENUE DISTRIBUTION

            1. Taxes Levied by the Centre but Collected and Appropriated by the States (Article 268) namely

            (i) Stamp duties on bills of exchange, cheques, promissory notes, policies of insurance, transfer of shares and others.

            (ii) Excise duties on medicinal and toilet preparations containing alcohol and narcotics.

            The proceeds of these duties are fully assigned to that state.

             

            1. Service Tax Levied by the Centre but Collected and Appropriated by the Centre and the States (Article 268-A) is divided amongst centre and state as per law.

             

            1. Taxes Levied and Collected by the Centre but Assigned to the States (Article 269) namely

            (i)Taxes on the sale or purchase of goods (other than newspapers) in the course of inter-state Trade or commerce.

            (ii) Taxes on the consignment of goods in the course of inter-state trade or commerce.

            1. Taxes Levied and Collected by the Centre but Distributed between the Centre and the States (Article 270) namely union list matters. These are distributed on advice of finance commission.
            2. Surcharge on Certain Taxes and Duties for Purposes of the Centre (Article 271) goes fully to centre.
            3. Taxes Levied and Collected and Retained by the States are taxes on matters in state list.

             

            Distribution of Non-tax Revenues

             Grants-in-Aid to the States are of types:  Statutory grants and Discretionary grants:

            1.  Statutory Grants are given to the states on the recommendation of the Finance Commission.
            2.  Discretionary Grants are made to the states on the recommendations of the Planning Commission. These are more than statutory grants.
            3.  Other Grants / temporary grants are made to the states on the recommendation of the Finance Commission.

              Chapter 55: CABINET SECRETARIAT

                     

              Cabinet Secretary

              The PM is the head of the secretariat but administrative head is cabinet secretary who is also chairman of the civil service board. The cabinet secretariat functions directly under the PM.

              Cabinet secretary is the head of the civil service.

              Functions of Cabinet Secretary:

              1. Secretarial assistance to cabinet and its committees.
              2. Facilitate smooth transaction of government in ministries as per rules.
              3. inter ministerial coordination
              4. Provide a monthy summary of government activities to President, Vice president and Ministers.

              Miscellaneous

              Civil Service day is celebrated on 21st April since 2006. The date is the birthdate of the first home minister Sardar Vallabhai Patel.