Polity-VAN Parliament C S Govt-1

1

Chapter 17: PARLIAMENT Chapter Priority: High (Very Important)

Article 79 to 122 – Part V – deals with the organisation, composition, duration, officers, procedures, powers and so on of the Parliament. Parliament is the legislative organ of the Union government or supreme legislative body in India. Article 79: There shall be a parliament which shall be consisting of President and two Houses. Parliament of India consists of three parts: 1. President 2. Rajya Sabha (Council of States) – Upper House (Second Chamber or House of Elders) 3. Lok Sabha (House of the People) – Lower House (First Chamber or Popular House) President as part of Parliament  

India's parliament is constituted on the basis of principle of "Bicameralism", so it has two chambers. The two houses are Lok Sabha (LS) and Rajya Sabha (RS). In India, the Parliament comprises President, Lok Sabha and Rajya Sabha but the President is NOT a part of the legislature.

2

  

This is in line with the British parliamentary system where the Parliament is comprised of Monarch, House of Lords and House of Commons. Though the President of India is not a member of either House of Parliament and does not sit in the Parliament to attend its meetings, he is an integral part of the Parliament. Note: In American pattern, President is not an integral part of Legislature.

President’s functions relating to the proceedings of the Parliament: 1. A bill passed by both the Houses of the Parliament cannot become law without the President’s assent. Bill  Act (Law) 2. President summons and prorogues both the Houses 3. He dissolves the LS 4. He addressed both the Houses 5. He issues ordinances when they are not in session and so on. Difference between an Act and a Bill

3





A bill is a proposed law that has not been passed yet or know as a draft act of Parliament, which once passed by both Houses of Parliament (Lok Sabha & Rajya Sabha) and approved by the President becomes a Law. A bill can be introduced in either of the Houses of Parliament first, except a 'Money Bill' (Bills concerning Government spending or taxation) which can only be introduced in the Lok Sabha and does not even need to be approved by the Rajya Sabha (which can only make recommendations for these bills and they need not be accepted by the Lok Sabha either).

India adopted Parliamentary system of Government   

We learnt from earlier chapters that, India adopted Parliamentary system of government. The Parliamentary system of government emphasizes on the interdependence between Legislative and Executive organs. The Presidential system lays stress on the separation of Legislative and Executive organs. COMPOSITION OF THE TWO HOUSES

RAJYA SABHA Composition of Rajya Sabha  

Article 80 gives the details of the composition of the Rajya Sabha. Rajya Sabha or Council of States is the Upper House of our parliament. The other term is used is "House of Elders".

The maximum membership to Rajya Sabha is limited to 250. The 250 members are as follows:



A maximum of 238 Members elected by representatives of the States & Union Territories. The Original Constitution mentioned only states. UTs added by 7th amendment.

4



A maximum of 12 Members nominated by the President of India who excel in Literature, Science, Art and Social Service.



Representatives of the states are elected by the elected members of the Legislative Assembly of the state in accordance with the System of Proportional Representation by means of Single Transferable Vote. (Indirect Election)



The present strength of the Rajya Sabha is 245, of whom 233 are representatives of the States/Union Territories and 12 are nominated by the President.

Election of the Rajya Sabha Members   

233 members of the Present Rajya Sabha are elected by the various State Legislative Assemblies so the Council of States is an "Indirectly Elected Body". For this election, each State is allotted a certain number of seats in the council. As per article 80(5), the representatives of the Union Territories are chosen as Parliament prescribes by law. As prescribed by the parliament, the representatives of the Union Territories are indirectly elected by the members of the Electoral College for that territory.

Allocation of Seats 

  

This allocation is mainly on the basis of Population but this is NOT the sole consideration. Some smaller states have been given due weight-age in representation in Rajya Sabha. Please note: Not all Union Territories are represented in Rajya Sabha. Out of the 7 UTs, only two (Delhi and Puducherry) have representation in RS. The populations of other five UTs are too small to have any representative in the RS.

LOK SABHA Composition of Lok Sabha

5

Article 81 deals with the Composition of the Lok Sabha. This article provides that the maximum number should be as follows:   



Not more than 530 representatives of the States. Not more than 20 representatives from the Union Territories Not more than 2 members of the Anglo Indian Community as nominated by the President, only if he/she is of opinion that the Anglo Indian Community is not adequately represented in the parliament. This makes the total strength of the Lok Sabha i.e. 530+20+2= 552.

Representation of Anglo-Indian Community  

Representation of the Anglo-Indian Community is provided by the Constitution as per article 331 and not by article 81. Article 331 says that: Notwithstanding anything in article 81, the President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People.

Change in number of Lok Sabha Seats 

 

The limit on the maximum number of members chosen directly from territorial constituencies in States may be exceeded if such an increase is incidental to the reorganization of States by an Act of Parliament. However, the Strength of Lok Sabha may NOT change now or in near Future until the relevant figures are published of first census taken after the year 2026. As of now, the Constitution limits the Lok Sabha to a maximum of 552 members, including no more than 20 members representing people from the Union Territories, and two appointed non-partisan members to represent the Anglo Indian community (if the President feels that the community is not adequately represented).

At present, the LS has 545 members

6

Allocation of Lok Sabha Seats to States 



The seats of Lok Sabha are allocated to the states in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States. Further, each State is divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State.

Election of Lok Sabha Members 

The electors of the Constituencies elect the members directly on the basis of Adult Suffrage as per Article 326 Constitution of India.



The age for being eligible to voting, prior to 61st amendment act was 21 years. The Constitution 61st Amendment Act 1988 reduced the age to be eligible to vote to 18 years.



Please note that Constitution provides that the members of the Union territories are to be chosen in such a manner as Parliament by law may decide, and using this power the parliament made the law that members from the Union Territories should be chosen by direct election.



The first General elections were held in 1951-52. The strength of the Lok Sabha at that time was 489.



Each Constituency chooses 1 member. But this was not as it since beginning. Prior to 1962, there were both single-member and multi member constituencies. These multimember constituencies used to elect more than one member. The multi-member constituencies were abolished in 1962.

Duration

7



 



Lok Sabha has a fixed term of 5 years and can be dissolved by the President at any time. The original Constitution had a term of Lok Sabha as 6 years. It was changed to 5 years by Constitution 44th Amendment Act 1978. Rajya Sabha has an indefinite term and not subject to dissolution (Article 83.1). The term of an individual Rajya Sabha member is 6 years and one third of its members retire every two years, in accordance with the rules as prescribed by the parliament of India. While a Proclamation of Emergency is in operation, 5 year period for Lok Sabha may be extended by Parliament by law for a period not exceeding one year at a time and not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate.

Qualification Article 84 of the Constitution lays down the qualifications for membership of Parliament. A person to be qualified to be an MP is required that he / she: 1. Must be a citizen of India 2. Must be not less than 30 years of age in case of Rajya Sabha and 25 years in Case of Lok Sabha. 3. He must make and subscribe to an oath or affirmation before the person authorised by the election commission for this purpose. In his oath or affirmation, he swears a. To bear true faith and allegiance to the Constitution of India b. To uphold the sovereignty and integrity of India 4. Must possess such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. The Parliament has laid down the following additional qualifications in the Representation of People Act (1951). 1. He must be registered as an elector for a parliamentary constituency. This is same in the case of both, the Rajya Sabha and the Lok Sabha. Please note: The requirement that a candidate contesting an election to the Rajya Sabha from a particular state should be an elector in that particular state was dispensed with in 2003. In 2006, the Supreme Court upheld the constitutional validity of this change. 2. He must be a member of a scheduled caste or scheduled tribe in any state or union territory, if he wants to contest a seat reserved for them. However, a member of scheduled castes or scheduled tribes can also contest a seat not reserved for them.

8

Vacation of seats Article 101 lays down the conditions in which a member of parliament shall vacate his / her seat. The conditions are as follows: 1. If a person be chosen to be member of both the houses of parliament, he/ she must vacate his / her seat in one of the two houses. 2. If a person is elected both as MLA and MP, then he / she must vacate the seat of MLA, otherwise seat of MP shall fall vacant. 3. Disqualification: If the person is disqualified as per article 102 or as per the provisions of the Tenth Schedule, he / she shall vacate the seat. 4. Resignation: To speaker in case of Lok Sabha and to Chairman in case of Rajya Sabha. 5. Absence without permission: A seat can be declared vacant if a member absents himself from all meetings of the house for a period of 60 days. 6. Other cases: A member has to vacate his seat in the Parliament: (a) if his election is declared void by the court; (b) if he is expelled by the House; (c) if he is elected to the office of President or Vice-President; and (d) if he is appointed to the office of governor of a state. If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard. Disqualification There are situations prescribed by the Constitution for Disqualification of the MPs. Article 102 of the Constitution lays down that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament 1. if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; 2. if he is of unsound mind and stands so declared by a competent court; 3. if he is an undischarged insolvent; 4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

9

5. if he is so disqualified by or under any law made by Parliament. However, for the purpose of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he/ she is a Minister either for the Union or for such State. The Parliament has laid down the following additional disqualifications in the Representation of People Act (1951): 1. He must not have been found guilty of certain election offences or corrupt practices in the elections. 2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification. 3. He must not have failed to lodge an account of his election expenses within the time. 4. He must not have any interest in government contracts, works or services. 5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share. 6. He must not have been dismissed from government service for corruption or disloyalty to the State. 7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery. On the question whether a member is subject to any of the above disqualifications, the president’s decision is final. However, he should obtain the opinion of the election commission and act accordingly. Disqualification on Ground of Defection The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. A member incurs disqualification under the defection law: 1. if he voluntary gives up the membership of the political party on whose ticket he is elected to the House; 2. if he votes or abstains from voting in the House contrary to any direction given by his political party;

10

3. if any independently elected member joins any political party; and 4. if any nominated member joins any political party after the expiry of six months. The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India). In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review. COMPARISON BETWEEN THE POWERS AND POSITION OF THE LOK SABHA AND THE RAJYA SABHA: Sl. 1.

RAJYA SABHA 



2.

 





The Council of States or Rajya  Sabha is a permanent House and it is not subject to dissolution. After every two years, one-third of  its members retire and its same numbers of scats are filled up by new members. 

The total membership of the Rajya  Sabha is 250. It is a representative House of  States but the States are not represented equally in the Rajya Sabha.  Seats in the Rajya Sabha are allocated to different States on the basis of population. Out of the total members of the House, twelve members are nominated by the President from amongst the persons having special knowledge or practical experience in the fields of literature, science, art and social

LOK SABHA The Lok Sabha is not a permanent House. It is dissolved after the expiry of its term of five years. But it can be dissolved before the period of five years by the President on the advice of the Council of Ministers. New Lok Sabha is elected and constituted within a period of 6months from the date of its dissolution. The maximum strength of the Lok Sabha can be 552 members. Out of this, 530 members are elected from the States and 20 members are elected from the Union Territories. The remaining two members are nominated by the President from among the AngloIndian community.

11

3.



4.







5.



6.





7.



service. The members of the Rajya Sabha are elected by the Legislative Assemblies of the respective States on the basis of proportional representation. The Chairman of the Rajya Sabha is not a member of this House. The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. But the Deputy-Chairman of the Rajya Sabha is elected by the members of the Rajya Sabha from amongst its members. The Money Bills cannot be introduced in the Rajya Sabha. With respect to Money Bills, the Rajya Sabha can make only recommendations which may or may not be accepted by the Lok Sabha. The Rajya Sabha is given 14 days time to consider the Money Bills and if it fails to do anything within that period, the Bill is deemed to have been passed in the manner it was passed by the Lok Sabha. The Council of Ministers is not responsible to the Rajya Sabha. Therefore, no-confidence motion cannot be introduced in the Rajya Sabha.



The members of the Lok Sabha are elected by the people directly on the basis of secret vote and universal franchise. For the purpose of election, the population is divided into various constituencies.



The Speaker and the Deputy Speaker of the Lok Sabha are the members of the House and are elected by the members of the Lok Sabha themselves.



The Money Bills can. be introduced only in the Lok Sabha. The Lok Sabha is not bound to accept the recommendations of the Rajya Sabha with respect to Money Bills. The Lok Sabha has the real and final authority in respect of Money Bills.



 

The Council of Ministers is, infact, responsible to the Lok Sabha. It can remove a government from office by passing a resolution of no-confidence.

12

8.

But the Rajya Sabha exercises certain powers which are not available to the Lok Sabha:  RS can declare a subject included in the State List as a subject of national importance by passing a resolution supported by not less than two-third members present and voting.  If a subject of State List is declared of national importance, Parliament gets power to legislate upon such a subject.  The Rajya Sabha has the power to create new All India Services by passing a resolution supported by not less than twothird members present and voting.  If and when the Lok Sabha is dissolved and the declaration of Emergency is in force, the Rajya Sabha approves such declaration of Emergency.  The proposal to remove the VicePresident is initiated only in the Rajya Sabha not in the Lok Sabha.



The Lok Sabhadoes not have any such power to declare a subject of the State List of national importance.



The Lok Sabha does not enjoy any such power to create new All India Services.



The Lok Sabha does not get this opportunity as the Rajya Sabha is not subject to dissolution.



Lok Sabha eitherapproves or rejects such proposal to remove the Vice-President but it cannot initiate such proposal.

Session of Parliament 

The constitution of India has imposed the duty upon the President that he / she must summon each house at such intervals that the maximum time gap between two sessions of the parliament is 6 months. So the parliament must meet twice a year.



Prorogation is end of a session. The time between the Prorogation and reassembly is called "Recess".

13

Prorogation: 

The termination of a session of Rajya Sabha by an order made by the President under article 85(2) (a) of the Constitution is called Prorogation. A prorogation puts an end to a session and not the Lok Sabha itself.

Dissolution: 

Dissolution may take place either by end of 5 year term of Lok Sabha or the end of term as extended by emergency or by an order of President as mentioned in article 85 (2).



Dissolution puts an end to the Lok Sabha and fresh elections must be held.

Adjournment: Adjournment refers to postponing the further transaction of the business for specified time. Adjournment terminates the sitting of the House which meets again at the time appointed for the next sitting. Adjournment of Debate: Adjournment of Debate refers to the adjournment on a motion adopted by the House, of the debate on a Motion or Resolution or Bill on which the House is then engaged until a future day or sine die as specified in the motion. Adjournment sine die: Adjournment sine die refers to termination of a sitting of the House without any definite date being fixed for the next sitting.

14

President's Address: President's address is the speech delivered by the President of India to both Houses of Parliament assembled together at the 1. Commencement of the first session after each general election to Lok Sabha 2. At the commencement of the first session of each year. Please note that the original constitution provided for a president's speech at the beginning of every session. This was made first session after an election, and first session of a new year by Constitution 1st Amendment Act 1951. Right of Ministers and Attorney-General to take part in proceedings Article 88 says that every Minister and the Attorney-General of India shall have the right to speak in, and otherwise to take part in the proceedings of, either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote. Offices in the Parliament Articles 89 to 98 deal with the officers of the parliament. Notable points are here:

1. Chairman & Deputy Chairman of Rajya Sabha 

Vice President of India is the ex-officio chairman of Rajya Sabha.



Rajya Sabha members only choose a Member of the Rajya Sabha as Deputy Chairman



The Deputy Chairman will vacate office if he/ she cease to be member of Rajya Sabha.



The Deputy Chairman of Rajya Sabha will resign by writing a resignation to Chairman



The deputy chairman can be removed by majority of the Rajya Sabha members. A 14 days notice is required to be given.



If Vice President is not available, Deputy Chairman will discharge functions as Chairman of the Rajya Sabha.



If Chairman is also not available, a member appointed by the President will discharge the function.



The Chairman or Deputy Chairman will not preside while a resolution for his/ her removal from office is under consideration.

15



2.

While a resolution for his/ her removal is under consideration, he / she shall be able to speak but not eligible to cast the "Casting Vote". Speaker and Deputy Speaker of Lok Sabha



Two members of Lok Sabha will be chosen as Speaker and Deputy Speaker.



The Speaker shall vacate the office if he/ she cease to be a member of Lok Sabha.



The Speaker will write resignation to Deputy Speaker and Deputy Speaker will resign to speaker.



Can be removed by the Lok Sabha members by majority.



After the Lok Sabha gets dissolved, the Speaker will not immediately vacate the office but will continue till the first meeting after the next elections.



If the Speaker is NOT present, his duty will be carried out by Deputy Speaker.



If Deputy Speaker is also not present, a person appointed by President will discharge the duties.



The speaker or Deputy speaker will not preside the house, while a resolution for his/ her removal from the office is under consideration.



While a resolution for his/ her removal is under consideration, he / she shall be able to speak but not eligible to cast the "Casting Vote".



The salaries and allowances of the Chairman/ Deputy Chairman of the Rajya Sabha and Speaker/Deputy Speaker will be decided as per the law by parliament.

 3.

Each house of the parliament shall have a separate secretariat staff. Secretary General of Lok Sabha:



Secretary General is appointed by the Speaker of Lok Sabha.



He is answerable to ONLY Speaker and his action cannot be criticized in or out of Lok Sabha.



He remains in the office till age of 60 years (retirement).



His functions are to provide a link between changing members and keeping the records.



He summons the members to attend the session of parliament on behalf of President.



He authenticates the bill in absence of Speaker.

Privileges Excerpts from Article 105 and 106

16



There is a freedom of speech in the parliament.



Anything said by a member and any vote casted by a members can not be questioned in court.



Other aspects, power privileges etc. are defined by the parliament.



Salaries and allowances are defined by the parliament by Law.

Law Making The primary function of our parliament is law making. There are other functions as well but if the parliament ceases to be a law making body, it ceases to be a parliament in real sense. The following articles are related to the legislative procedure in the constitution: 

Article 107: Provisions as to introduction and passing of Bills.



Article 108: Joint sitting of both Houses in certain cases.



Article 109. Special procedure in respect of Money Bills.



Article 110. Definition of "Money Bills."



Article 111. Assent to Bills.

The first step in the legislation procedure is the introduction of a Bill which embodies the provisions of the proposed law which is accompanied by "Statement of Objects and Reasons". The bill may be an ordinary bill or a money bill. Article 107 says that an ordinary bill can be introduced in any house of the parliament. A Money Bill can be introduced in Lok Sabha only. Procedure A Bill can be introduced either by a Minister or by a Private Member. If a bill is introduced by a Minister, it will be called "Government Bill". If a bill is introduced by a private member, it will be called a "Private Bill. Please note that if a private member desires to introduce a bill, he/ she must give notice of his intention to the speaker. For every bill it is necessary to ask for leave of the House to introduce a Bill. If leave is granted, the Bill may be introduced. After a Bill has been introduced, it is published in the Gazette. However, before introduction, a bill may be published in the Gazette with the permission of the Speaker of Lok Sabha, Deputy Chairman of Rajya Sabha. No leave is required to introduce bill in such as case.

17

First Reading: Generally, there is no debate on introduction of a bill. The person (Minister or MP) who is given a leave to introduce a bill may present some broad idea to introduce the bill. This is called moving the bill or motion for introduction of the bill. The moving of the ordinary bill can be opposed by the opposition. If the introduction of the bill is opposed, speaker may allow one of the opposing members to cite the reasons. After that Speaker will put the question to vote. If the House is in favor of Introduction of the Bill, then the Bill is introduced and passes for the next stage. Please note that the motion for introduction of a Finance Bill or an Appropriation Bill is not opposed. This introduction is called "First Reading". Second Reading: After introduction, the bill is open for 4 alternative courses of action in the second stage: 

It may be taken into consideration.



It may be forwarded to a Select Committee of the House.



It may be referred to a Joint Committee of both the houses i.e. Rajya Sabha and Lok Sabha.



It may be circulated / put on website for purpose of eliciting the public opinion on it.

The last alternative is resorted only in a case when the proposed legislative measure may arouse a public controversy. However, if a bill is of emergent nature, any of the upper 3 alternatives is taken. The Select Committee or the Joint committee is expected to give its report in a stipulated time. 

The Select Committee or Joint Committee members are selected on the basis of expert knowledge.



The Select Committee or Joint Committee members also include the Opposition Members.



If it is a Joint Committee of the Both the Houses, the 2/3 members are from Lok Sabha and 1/3 are from the Rajya Sabha.



The report of this committee may be unanimous or majority opinion. If it is a Majority Opinion, the minority is allowed to give the "Minutes of Dissent" in the report.



The submission of the Report by the Select Committee or Joint Committee members is followed by a detailed "Clause to Clause" discussion on the bill. Each Clause is taken up by the House and amendments are moved, discussed and disposed off.



This stage is very important. The amendments which are related and pertain to the bill are moved and the Bill goes substantial changes in this stage. This is one of the most time consuming (of the house) stage of a legislative procedure.

18



A bill is considered "clause by clause" and when every clause is voted , this is called "Second Reading".



The above discussion makes it clear that the first two readings of the Bill actually refine the subject matter of the bills.

Third Reading: After the second Reading, the house is given sufficient time to study the clauses of the bill. After that the MP or Minister who had moved this bill moves that "the bill is passed". This is called Third Reading. Please note that most of the amendments in the third reading are just formal and normally verbal in nature. The discussion is limited and quick. The Bill is finally passed as a whole and this marks the work of one house coming to end. The bill is sent to another house. This means that after the third reading, the ordinary bill is sent for action from Lok Sabha to Rajya Sabha or from Rajya Sabha to Lok Sabha. The same three reading procedure is followed in second house of the parliament. In the second house, there are three courses for the bill: 

It is passed as it was passed in the originating house.



It is to be amended



It is to be rejected.

In case the course is as per the course of action 2 & 3 given above, the bill is returned to the originating house. 

If the second house does not return it for 6 months to the originating house it is deemed to be rejected.



Once it is returned to the originating house, the amendments suggested by the other house are considered.

Here two options arise: 

The amendments are accepted. In this case, the originating house sends a message to the other house that the amendments are accepted.



The amendments are NOT accepted. In this case again the originating house sends a message to the other house that the amendments are not accepted.

In the second option given above, means when both the houses are not in agreement, a joint sitting of the two houses is called by the president. Joint Sittings:

19

Joint Sitting of the houses is mentioned by Article 108. As per this article, a Joint sitting is notified by the President as his/ her intention to summon the both the houses for the purpose of voting and deliberating on the bill in the following situations: 

Bill has been passed by one House and transmitted to the other House and it is rejected by the other House



Both houses have finally disagreed as to the amendments to be made in the Bill



More than 6 months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it.



Please note that if there is a deadlock between the two houses on a Constitution amendment Bill, there cannot be a joint sitting.

Money and other finance Bills 1.

Money Bill v/s Finance Bill: 

Before we proceed lets understand the difference between the Money Bill, Finance Bill and appropriation Bill.

20



Article 109, 110, 111, 112, 113, 114, 115, 116, 117 deal with the Money Bill, Finance Bill and Appropriation Bills.



A Money Bill is defined by the Article 110 of the Constitution. A bill is considered as a Money bill if it contains only provisions dealing with all or any of the following matters: (sub headings of Article 110) 1.

Imposition, abolition, remission, alteration, regulation of any tax

2.

The regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

3.

The custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;

4.

The appropriation of moneys out of the Consolidated Fund of India;

5.

The declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

6.

The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

7.

Any matter incidental to any of the matters specified in sub-clauses (a) to (f).

In simple words, any bill that deals in Money Matters is a Money bill. But when a bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or penalties or for the demand or payment of fees for licenses or fees for service rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. So bill related to Local Money matters are not Money Bills. A finance bill is also a Money Bill. The Finance bill is one of the documents presented with the budget or annual Financial Statement as mandated in Article 110 (a). The main Budget documents are presented to the parliament accordingly various articles of our constitution as follows:    

Annual Financial Statement (AFS) : As per Article 112 Demand for Grants (DG) : As per Article 113 Appropriation Bill: as per Article 114 (3) Finance Bill: As per article 110 (a)

21

     2.

While presenting the Budget, the following are presented as mandated in Fiscal Responsibility and Budget Management Act 2003. Memorandum Explaining the Provisions in the Finance Bill, Macro-economic framework for the relevant financial year Fiscal Policy Strategy Statement for the financial year Medium Term Fiscal Policy Statement Appropriation Bill

Appropriation bill is defined as per the Article 114 of the Constitution of India. An appropriation bill or running bill is a bill that is introduced in the parliament together with the budget seeking the approval and authorization to the government spends money. It is a bill that sets money aside for specific spending. In most democracies, approval of the legislature is necessary for the government to spend money. This is a permission to spend the amount from the consolidated fund of India. When the Budget is passed in the house, the appropriation becomes Appropriation Act. No money can be withdrawn from the Consolidated Fund of India except under the charged money except supplementary, additional or excess grants, Votes on account, votes of credit and exceptional grants. Budgeting Under Article 112 of the Indian Constitution, every year "the President of India shall cause to be laid before both the houses of the parliament" the Annual Financial Statement. This is popularly called Budget. "Cause to be laid" here means that the person through whom President acts is Finance Minister of the country, who is custodian of the nation's Finances. The budget shows the estimated receipts and expenditure of the coming Financial Year. The expenditure embodied in the Budget Documents are of two types: 

The sums required for charged expenditures. These are non-votable. This means that whether parliament passes it or not, they have to be paid from the consolidated fund of India.



The sums required for other expenditures as mentioned in the Budget Documents. These

are votable. This means that if the parliament does not pass the budget, the government will not only devoid of withdrawing money from consolidated fund, but also will fall. Non-Votable Charges:

22

Please note that the following include the charged Expenditures and are Non-votable means no voting takes place for the amount involved in these expenditures for their withdrawal from Consolidated Fund of India. 

Salary and Allowances of the President



Salary and Allowances of the Presiding officers of the houses of parliament i.e. speaker / deputy speaker of the Lok Sabha and Chairman (Vice President) / Deputy Chairman of Rajya Sabha.



Debt charges of Government of India.



Salaries and allowances of the Judges of Supreme Court and High Courts.



Pension of the retired Judges of the Supreme Court.



Pension of the Retired judges of the High Courts.



Salaries and allowances of the Comptroller and Auditor General of India.



Any other expenditure as required by the Constitution or parliament.

Quorum Quorum is the minimum number of members required to be present in the House before it can transact any business. It is one-tenth of the total number of members in each House including the presiding officer. It means that there must be at least 55 members present in the Lok Sabha and 25 members present in the Rajya Sabha, if any business is to be conducted. If there is no quorum during a meeting of the House, it is the duty of the presiding officer either to adjourn the House or to suspend the meeting until there is a quorum. General Discussion: On a day subsequent to the presentation of the Budget, the House takes up the General Discussion of the Budget which is called the first stage followed by second stage i.e. discussion and voting on Demands for Grants. During the General Discussion on the Budget, the House is at liberty to discuss the Budget as a whole or any question of principle. The scope of discussion at this stage is confined to the general examination of the Budget i.e. the proper distribution of the items of expenditure according to the importance of a particular subject or service, the policy of taxation as is expressed in the Budget and the speech of the Finance Minister. Standing Committee Reports: After the General Discussion on Budget in both the Houses is over and Vote on Account is passed, the House is adjourned for a specified period. The Demands for Grants of each Ministry/Department will be examined by the concerned Standing Committee having

23

jurisdiction over it during the said recess period. The Committee gives separate report for each Ministry. The Demands for Grants are discussed / considered in the House in the light of the reports of the Standing Committee. The reports of the Standing Committees which are of persuasive value are nevertheless treated as considered advice given by the Committee. Guillotine The detailed discussions are followed by Guillotine. Guillotine refers to closure imposed on the debate. On the last of the allotted days at the appointed time, the Speaker puts every question necessary to dispose of all the outstanding matters in connection with the Demands for Grants. The Guillotine concludes the discussion on Demands for Grants. Motions No discussion on a matter of general public importance can take place except on a motion made with the consent of the presiding officer. The House expresses its decisions or opinions on various issues through the adoption or rejection of motions moved by either ministers or private members. The motions moved by the members to raise discussions on various matters fall into three principal categories: 1. Substantive Motion: It is a self-contained independent proposal dealing with a very important matter like impeachment of the President or removal of Chief Election Commissioner. 2. Substitute Motion: It is a motion that is moved in substitution of an original motion and proposes an alternative to it. If adopted by the House, it supersedes the original motion. 3. Subsidiary Motion: It is a motion that, by itself, has no meaning and cannot state the decision of the House without reference to the original motion or proceedings of the House. It is divided into three sub-categories: (a) Ancillary Motion: It is used as the regular way of proceeding with various kinds of business. (b) Superseding Motion: It is moved in the course of debate on another issue and seeks to supersede that issue. (c) Amendment: It seeks to modify or substitute only a part of the original motion. Cut Motions

24

After the discussions are over, the members get an opportunity to move cut motions to reduce the amount of demand. The members from particular parties or coalitions may bring their own cut. The members generally give notice of the Cut Motions for the reduction of the votable heads of expenditure of the Demands for Grants immediately after the Finance Minister or the Railway Minister as the case may be, has presented the Budget in the House. Every Cut Motion to a demand for Grant represents disapproval of some aspect or other of the Budget or the economic policy of the Government. Accordingly Cut Motion is of three kinds: 

If the cut motion aims that the amount of the demand be reduced to Re. 1 it represents the complete disapproval of policy underlying the Demand. This is because the motion aims to reduce the demand for grant which is worth Crores of Rupees to Re. 1 only, which almost finishes the demand for grant of a ministry. This is called "policy" cut.



If the cut motion aims that the amount of demand be reduced to certain other amount, it represents that the demand for grants should be altered. This is called "Economy Cut".



If the Cut Motion aims that the amount of the Demand be reduced by ` 100" in order to ventilate a specific grievance, which is within the sphere of responsibility of the Government of India. This is called "Token Cut".

Actually, Token cut represents not many changes in the Demand for Grants but is humiliating for the Government. To be precise, all cut motions are humiliating for the ruling party or coalition. The Cut motions provide the members maximum opportunity to examine every part of the budget and criticize the Government.

Question Hour Question Hour, is usually the first hour of every sitting of the house. Please note that for the purpose of answering questions in the House, the Ministries/Departments of the Government of India have been divided into five groups (A,B,C,D,E) and the Ministers concerned answer questions by rotation. Further, fixed days have been allotted to the various groups of Ministries

25

for answering questions in Lok Sabha. Questions relating to groups A, B, C, D and E always come up for answer on Monday, Tuesday, Wednesday, Thursday and Friday respectively. If there is no sitting of the House on any of the above five days on account of a holiday, the questions pertaining to the group of Ministries are not put down for answer during that week and are put next week only. The members need to give notice of the question to the "Secretary General of Lok Sabha" in case of Lok Sabha. It includes the text of the question, Official designation of the Minister and date on which answer is desired. If the member asks more than 1 question, the order of preference has to be given. Types of Questions: 1. A question relating to a matter of public importance of an urgent character asked with notice shorter than ten clear days is called a "Short Notice Question" 2. A question to which a member wishes to have an oral answer on the floor of the House and which is distinguished by an asterisk, is known as "Starred Question" 3. A question placed on the List of Questions for written answer is called "Unstarred Question".

Types of Majority

26

Note: Save this picture, as one has to refer and revise more than 10 times to learn these different majorities. It is very confusing. Try to understand carefully.

27

Chapter 18: Parliamentary Committees 

Parliamentary committees are important institutions of Indian Parliament without which parliamentary functions could not be deposed off effectively.



The work done by the Parliament in modern times is not only varied and complex in nature, but also considerable in volume. On the other hand, Minister’s time is considerably engrossed by day-to-days affairs of Parliament. It cannot, therefore, give close consideration to all the legislative and other matters that come up before it.



A major portion of its business is, therefore, transacted in various committees of the House, known as parliamentary committees.



Parliamentary committees are therefore backbone of parliamentary power and autonomy. To put in other words, Indian Parliament has entrusted its business to various committees. These committees are constituted in such a way to represent replica of the House.



The committees of the parliament are considered to be a necessary adjunct of the work of the parliament as they make the parliamentary work smooth, time saving and expeditious. They exercise effective control of the government activities at a regular basis.

By their nature, parliamentary committees are of two kinds: 

‘standing committees’ and ‘adhoc committees’.

Standing committees are permanent and regular committees. They are constituted from time to time by the Chairman of Rajya Sabha or Speaker of Lok Sabha, as the case may be, in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha. The works of these committees are of continuous nature. The Financial Committees, Advisory Committee, Committee to Scrutinize and Control, Committees for Welfare, etc. are few committees come under the category of Standing Committee. On the other hand, adhoc committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them. Examples of principal ad hoc committees are Parliamentary Select Committees or Joint Committees on Bills, Railway Convention Committee. Parliamentary committees not only help in achieving objectives of a government but also they save valuable times of the Parliament. 

As per the "Rules of Procedure and Conduct of Business in the Lok Sabha", there are 19 Standing parliamentary Committees and 24 Departmentally Related Standing

28

Committees. Out of the 19 Standing Parliamentary Committees, 3 are Financial Committees viz. Committee or Public Accounts, 

Committee on estimates and Committee on Public Undertakings. Some committees have members only from Lok Sabha while some have members from both Rajya Sabha and Lok Sabha.

Financial Committees 1. Committee on Public Accounts 2. Committee on Estimates 3. Committee on Public Undertakings Other Parliamentary Committees 4. Business Advisory Committee 5. Committee on Private Members Bill and Resolutions 6. Committee on Petitions 7. Committee on Privileges 8. Committee on Subordinate legislation 9. Committee on Government Assurances 10. Committee on Absence of Members from the Sittings of the House 11. Rules Committee 12. General Purpose Committee 13. House Committee 14. Library Committee 15. Joint Committee on Salaries and Allowances of the MPs 16. Joint Committees on Offices of Profit 17. Committee on Welfare of Scheduled castes and Scheduled Tribes 18. Committee on papers laid on Table 19. Committee on empowerment of Women The 24 Departmentally related committees have 31 Members each and each of them includes 10 Members of Rajya Sabha. Important Points on these committees are noted as follows: 1. Committee on Public Accounts:

29

Public Accounts Committee examines the manners and results of spending the public funds. It examines the accounts showing appropriation of the funds granted by the parliament to various ministries and ensures that the money was used for the purpose for which it was sanctioned. 

The Comptroller & Auditor General of India supports this committee.



Apart from the Reports of Comptroller and Auditor General of India on Appropriation Accounts of the Union Government, the Committee examines the various Audit Reports of the Comptroller and Auditor General on revenue receipts, expenditure by various Ministries/Departments of Government and accounts of autonomous bodies.



This committee overseas the regularization of the excess in the manner envisaged in Article 115 of the Constitution.



It has 22 members comprising 15 Members of Lok Sabha elected by Lok Sabha from amongst its members according to the principle of proportional representation by means of the single transferable vote for a term not exceeding one year and not more than seven members of Rajya Sabha to be nominated by the House for being associated with the Committee.



Chairman of this committee is appointed by Speaker amongst the Members from Lok Sabha. A Minister is not eligible to be elected as a member of the Committee, and if a member after his election to the Committee is appointed to hold such an office he ceases to be member of the Committee from the date of such appointment.



Please note that for the first time, Public Accounts Committee was set up by the central legislative Assembly in 1923.

2.

Estimates Committee:

The difference between the Estimates committee and public Accounts committee is that Estimates committee scrutinizes the Estimates while the Public Accounts Committee scrutinizes the appropriation and manner of spending. Estimates Committee's functions are 

To examine the annual estimates and suggest the alternative policies to the Government to ensure the efficiency and economy in administration.



To report what economies, improvements in organization, efficiency or administrative reform, consistent with the policy underlying the estimates, may be effected.



To report whether the money laid down in estimates is well within the limits of the policy implied.

30



This Committee has 30 members elected annually by the Lok Sabha from amongst its members according to the principle of proportional representation by means of the single transferable vote.



Chairman of the Committee is appointed by the Speaker.



A Minister cannot be member of this committee and if the member is appointed as Minister, he/ she shall cease to be a member of this committee.

3.

Committee on Public Undertakings: 

Committee on Public Undertakings was for the first time in November 1963 by a resolution of Lok Sabha and at that time it was having 15 members viz. 10 from Lok Sabha and 5 from Rajya Sabha.



Now it has not more than 22 members out of whom 15 members are elected by Lok Sabha from amongst its members according to the principle of proportional representation by means of single transferable vote and not more than 7 members from Rajya Sabha to be nominated by that House.



The term of office of members is 1 year.



Chairman is appointed by Speaker.



Minister is not eligible to become a member and if a member is appointed Minister, he / she shall cease to be a member on such appointment.



This committee examines the reports and accounts of the Public Undertakings and reports of the Comptroller and Auditor General thereon, if any.



This committee oversees whether in the context of their autonomy and efficiency, the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices.

The companies include all the Government Companies whose Annual Reports are placed before the Houses of Parliament under section 619A (1) of the Companies Act, 1956 and statutory Corporations whose names have been specified in the Fourth Schedule to the Rules of Procedure come within the purview of the Committee. 4.

Business Advisory Committee:

The Business Advisory Committee is constituted at the commencement of new Lok Sabha after the general elections and thereafter from time to time under the provisions of Rules of Lok Sabha. No specific term of its office is laid down in the rules but like other parliamentary committees, it holds office until a new committee is nominated by the Speaker. In practice, however, the Committee is usually reconstituted every year and assumes office in the first week

31

of June. It consists of 15 members including the Speaker who is the ex-officio Chairman of the Committee. The members of the Committee are nominated by the Speaker. The function of the Committee is to recommend the time that should be allocated for the discussion of the stage or stages of Government Bills and other business as the Speaker, in consultation with the Leader of the House, may direct for being referred to the Committee. The committee plans and regulates the Business of the house and renders advice regarding the allocation of time on various discussions. 5.

Committee on Petitions:

Committee on Petitions consists of 15 members nominated by the Speaker. A Minister is not nominated a member of the Committee and if a member after his nomination to the Committee is appointed to such an office, he ceases to be a member of the Committee. The Chairman of the Committee is appointed by the Speaker from amongst the members of the Committee. Normally the Committee is reconstituted every year. Major function is to examine every petition referred to it and if the petition complies with the rules to direct that it be circulated. 6.

Committee of Privileges:

The Committee of Privileges consists of 15 members nominated by the Speaker. The Chairman of the Committee is appointed by the Speaker from amongst the members of the Committee. The committee examines the cases regarding the violation of privileges of the members of parliament and also recommends appropriate action. After March 1986 when Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985, became effective, the Speaker may refer to the Committee any petition regarding disqualification of a member on ground of defection for making a preliminary inquiry and submitting a report to him. The procedure to be followed by the Committee in these cases is so far as may be the same as is applicable to questions of breach of privilege. 7.

Committee on Subordinate Legislation:

The major function of this committee is to examine the rules and regulations enacted by the executive to fill the gaps in the laws enacted by the parliament and report how far these rules are within limits prescribed in the main law. 8.

Committee on Government Assurances:

Committee on Government Assurances scrutinizes the assurances, promises, undertakings, etc., given by Minister on the floor of the House from time to time during the

32

Question Hour as also during the discussion on Bills, resolutions, motions etc., and to report to the House, the extent to which such assurances, promises or undertakings, etc., have been implemented and where implemented whether such implementation has taken place within the minimum time necessary for the purpose. 9.

Committee on Absence of Members from the Sittings of the House:

Committee on Absence of Members from the Sittings of the House examines the leave applications of the members. It also examines if any member is absent from the house without permission for more than 6 months. 10.

Rules Committee:

Rules committee considers the matters of procedure and conduct of business in the House and recommends any amendments or additions to the rules that may be deemed necessary. 11.

General Purposes Committee:

This committee consists of Speaker, Deputy Speaker, Members of the Panel of Chairmen, Chairmen of all Standing Parliamentary Committees of Lok Sabha, Leaders of recognized parties and groups in Lok Sabha and such other Members as may be nominated by the Speaker. The Speaker is the ex-officio Chairman of the Committee. This committee considers and advises on such matters concerning the affairs of the House as may be referred to it by the Speaker from time to time. 12.

House Committee

House Committee deals with all questions relating to residential accommodation for members of Lok Sabha and exercises supervision over facilities for accommodation, food, medical aid and other amenities accorded to members in members' residences and hostels in Delhi. 13.

Library Committee:

Library Committee considers and advises on such matters concerning the Parliament Library. 14.

Joint Committee on Salaries and Allowances of Members of Parliament:

As per the provisions of Salary, Allowances and Pension of Members of Parliament Act, 1954 a Joint Committee of both Houses of Parliament consisting of five members from the Rajya Sabha nominated by the Chairman and ten members from the Lok Sabha nominated by the Speaker is constituted. It is empowered to frame the rules for regulating the salaries and amenities such as housing, Telephone, Postal, Secretarial and medical facilities.

33

15.

Joint Committee on Offices of Profit:

The Joint Committee on Offices of Profit is constituted in pursuance of a Government motion adopted by Lok Sabha and concurred in by Rajya Sabha for the duration of Lok Sabha. It examines the composition of the various committees and bodies constituted by the Union and State Governments and recommends whether the persons holding these offices and reports whether the persons holding these offices should be disqualified from being elected as MPs or not. 16.

Committee on the Welfare of Scheduled Castes and Scheduled Tribes

This 30 member committee examines the report of the National Commission for the Scheduled Castes and the National Commission for the Scheduled Tribes under Articles 338 (5)(d) and 338A(5) (d), respectively of the Constitution and to report as to the measures that should be taken by the Union Government in respect of matters within the purview of the Union Government including the Administrations of the Union Territories. 17.

Committee on Papers Laid on the Table:

This committee examines all papers laid on the Table by Ministers and to report to the House as to whether there has been compliance of the provisions of the Constitution, Act, rule, etc. under which the paper has been laid; and whether there has been any unreasonable delay in laying the paper. 18.

Committee on Empowerment of Women

Committee on Empowerment of Women considers the Reports submitted by the National Commission for Women and report on the measures that should be taken by the Union Government for improving the status/conditions of women in respect of matters within the purview of the Union Government. 19.

Departmentally Related Standing Committees (DRSCs)

17 Departmentally Related Standing Committees (DRSCs) were constituted on 29th March, 1993 covering all Government Ministries/Departments. These DRSCs replaced the earlier three subject Committees constituted in August, 1989. The 17 DRSCs were formally constituted with effect from 8th April, 1993. At present there are 24 Departmentally Related Standing Committees (DRSCs). Summary of the articles related to Union legislature 

Article 79: There shall be a parliament which shall be consisting of President & two Houses.



Article 80: Composition of the Rajya Sabha.

34



Article 81 : Composition of the House of People (Lok Sabha)



Article 82: Delimitation / Delimitation Commission.



Article 83: Duration of Both the Houses of the parliament.



Article 84: Qualifications to become an MP (Both Lok Sabha MPs and Rajya Sabha MPs).



Article 85: President shall summon the houses of the parliament to meet (6 months is the maximum time limit provided between two consecutive meetings) & Prorogation and Dissolution of the Houses.



Article 86: Right of President to address and send messages to Both the Houses of the parliament.



Article 87: Special addresses by the President to Both the Houses of the parliament.



Article 88: Rights of Ministers and Attorney-General as respective Houses.



Article 89: Vice President of India shall be Ex-officio Chairman of the Rajya Sabha and the Rajya Sabha members will choose a "Deputy Chairman".



Article 89 to article 98: Deal with the officers of the parliament such as Chairman of Rajya Sabha (89), Deputy Chairman (90, 91, 92), Speaker and Deputy Speaker of Lok Sabha (93, 94, 95, 96), Salaries of the Chairman, Deputy Chairman, Speaker, Deputy Speaker (97) and Secretariat of the Parliament (98).



Article 99 & 100: Conduct of parliament Business such as Oath by the MPs, Voting in Houses etc.



Article 101, 102, 103, 104: Disqualification of the members.



Article 105, 106: Powers, Privileges, salaries, Allowances etc. of the MPs.



Article 107, 108, 109, 110, 111: Procedure of introduction and passing of the Bills, Joint sittings in some cases, Money Bill, Assent to Bills etc.



Article 112, 113, 114, 115, 116, 117: Financial matters such as Budget, Appropriation Bills, Grants etc.



Article 118 to 122: General procedures of the Parliament.



Article 123 gives the president the power to promulgate the Ordinance.

35

CENTRAL GOVERNMENT Constitution in Part V deals with the Union. The articles in Part V can be summarized as below: 

President and Vice President: Article 53-73



Council of Ministers: Article 74-75



Attorney General of India: Article 76



Conduct of Government Business: Article 77-78



Parliament of India: Article 79-122



Legislative Power of the President: Article 123



Union Judiciary: Article 124-147



Comptroller and Auditor General of India: Article 148-151

Functions of three branches of the government The functions of the 3 branches of the Government are summarized as below: 1. Functions of Legislature  Enacts all the laws.  Controls all the money; taxes, borrows, and sets the budget.  Oversees, investigates, and makes the rules for the government and its officers.  Ratifies treaties. 2. Functions of Executive  Preserves protects and defends the Constitution  Faithfully executes the laws of the land.  May veto laws in certain circumstances.  Executes the spending authorized by legislature  Important appointments are made by executive.  Has the power to grant pardons for crimes. 3. Functions of Judiciary 

Responsible for administering the constitutional law



Judges if any law is unconstitutional



Oversees and administers members of the judiciary

36

Chapter 19: President of India Summary of Articles 

Article 52: There shall be a president of India.



Article 53: Executive power of the Union vested in the President. President of India as Supreme commander of India Defense Forces.



Article 54: President shall be elected by the members of an electoral college consisting of elected members of both the houses of the parliament and legislative Assemblies. (means not legislative Councils)



Article 55: Manner of election of president.



Article 56: Term of President of India (5 years) and method of resignation.



Article 57: Same person is eligible to be re-elected as president after his / her term is over.



Article 58: Details about qualifications of a candidate for Presidential elections.



Article 59: This articles lays down certain conditions for president's office



Article 60: Oath to be taken by the president.



Article 61: Provision for impeachment of the President



Article 62: Time Limit to fill the vacancy of the Office of the President



Article 63: There shall be a vice president of India.



Article 64: Vice President is the ex officio Chairman of the Council of States (Rajya Sabha)



Article 65: Vice President will discharge the function of the President when he is not available.



Article 66 : Elections and eligibility of Vice President of India



Article 67: Term of office of Vice president (5 years)



Article 68: How the vacancy in the office of Vice President has to be filled



Article 69: Oath of affirmation to the vice President



Article 70: Power to the "parliament' for making provisions to discharge functions of president in any contingency not provided in the constitution.



Article 71: Some matters related to elections of the president & vice president.



Article 72: Power of president to Grant pardons



Article 73: Extension of Power of the executive to parliament.



Article 123: Ordinance Making Power of President

37

Eligibility Article 58 of the constitution lay down the qualifications of a president in India. These qualifications are: 

He / she should be a citizen of India,



He / she must have completed the age of 35 years



He / she must be qualified for election as a member of the House of the People.



He / she should not hold any office of profit under Union or state government.

Election Process The president is elected for a term of 5 years. He may terminate his own term by writing a resignation addressed to Vice president. He can be removed from the office only by impeachment. He is eligible to re-elected for the same office for unlimited times. The president is not elected by the people directly. A president is elected by an electoral college. This Electoral College consists of the following: 

Elected members of parliament (MPs from Lok Sabha as well as Rajya Sabha).



Elected members of State legislative members, including that if NCT of Delhi and Pondicherry

Members of legislative councils in the states where there are bicameral legislatures CANNOT participate in election of President. Proportional Representation: With a view to ensure uniformity of the representation of different states and parity between the Union and the states, the constitution in article 56 provides an ingenious method. The constitution in article 56 provides an ingenious method. The formula for value of vote for an MLA is as follows:

The formula for value of the vote for an MP is as follows:

38

This system ensures that the successful candidate is returned by the absolute majority of votes.

Dispute in the Presidential election Article 71 stipulates that all doubts arising out of election of the president will be decided by the "Supreme Court". There can be no dispute on vacancy in an electoral college. Please note that Constitution 39th Amendment Act had taken away the power of the Supreme Court to settle such disputes. However, this power was restored by Constitution 42nd amendment act. So, if there is any dispute, an election petition is filled with Supreme Court of India which is the only authority to try an election petition regarding President's election. 

Petition regarding the dispute in election can be filed by any of the presidential candidates.



A petition can be filed by any 20 or more electors as joint petitioners.



Petition should be filed within 30 days of declaration of the result.

Conditions of Office Article 59 lays down certain conditions of the office of the president. These are summarized as below: 

President is not a member of any house of the parliament or any state legislature



If he / she is a member of any house, he / she shall have to vacate the seat in those house.



He / she should not hold any office of profit.

Salary and Emoluments 

The president of India is entitled to rent free accommodation, allowances and privileges as determined by the parliament by law. Thus salary of the President is decided by Parliament.



The salary and allowances of the president are charged from Consolidated Fund of India. The original constitution provided 10,000 per month for president. In 1998 it was raised to 50,000. In 2008 the salary was raised to 1.5 Lakh per month.

39

Impeachment Article 61 outlines the impeachment of the president of India. We should note that no president of India has been impeached so far. 

The charge of violation can be preferred by any house of the parliament before other house.



To start the proceedings 14 days notice is given



This notice must be signed by minimum 25% (1/4th) of the total number of members.



The resolution must be passed by 2/3rd of both the houses.



After resolution is passed president is removed.



During the process president has right to defend himself / herself.

Vacancy in Office of the President: The election to fill a vacancy arising out of expiration of the term of president must be completed before expiration of his / her term. If there is a delay, the president continues to hold the office, until his / her successor takes charge. If any vacancy arises out of death/ resignation / removal, it must be filled within 6 months. During the vacancy in the office of president, Vice president would be discharging the duties of a president. If Vice President is also not available, Chief Justice of India will discharge the function of the president. If Chief Justice of India is also unavailable, then senior most judge of the Supreme Court will discharge this function. Any person (vice president / chief justice of India/ senior most Judge of Supreme Court) while discharging the duties of the president shall be entitled to all powers and privileges of the president. Executive Powers of President All Contracts and assurances of the property are made by the Government of India in President's name. Further, president appoints the important members of the union government. They are as follows: 

Prime Minister and Council of Ministers on advice of Prime Minister.



Chief Justice of India and Other Judges of Supreme Court on advice of the Chief Justice.



Chief Justice of High courts after consulting with Chief Justice of India and other Judges of the High Court's on advice of Chief Justice of High Court.

40



Chairman of the Union Public Service Commission.



Other members of the Union Public Service Commission.



Attorney General of India.



Comptroller and Auditor General of India



Chief Election Commissioner.



Other members of the Election Commission.



Governors of states (Please note that advice of chief Ministers is not sought for appointment of Governors)



Ambassadors and High Commissioners.



Finance Commission members.



National Commission for SC/ ST members & Chairmen.



Administrator of the Union territories. (Administrators of Andaman and Nicobar Islands, Delhi and Puducherry are designated as Lieutenant Governors. The Governor of Punjab is concurrently the Administrator of Chandigarh. The Administrator of Dadra and Nagar Haveli is concurrently the Administrator of Daman and Diu. Lakshadweep has a separate Administrator)

Military Powers of President Article 53 vests the supreme command of the Armed Forces of India in the President. President of India can declare war or conclude peace, under the regulation by the parliament. Diplomatic Powers of President 

India is represented on International forum by President of India. He sends and received ambassadors.



All international treaties and agreements are concluded on behalf of the President subject to ratification by the parliament.

Legislative Powers of President 

The parliament is composed of president, Lok Sabha and Rajya Sabha so, president of India is a inseparable part of Indian Parliament.



President has power to summon or prorogue2 the two houses of parliament. After a prorogation, the house must be summoned within 6 months.



The President may dissolve the Lok Sabha. (Rajya Sabha is never dissolved)

41



After the general Elections, president addresses both the houses of the parliament. He may address either house or even a joint sitting.



The President may nominate two members of Anglo Indian Community in the Lok Sabha if he feels that the community is not represented adequately. (Article 331)



President has power to nominate 12 members of Rajya Sabha if they excelled in Art, Literature, Science, Social Science, Culture etc. (Article 80)



A Bill passed by the parliament becomes an act only after president has given assent to it.

There are some bills which require prior recommendation of the President. This means these bills need to be introduced in the parliament only on the recommendation of the President. This bills are: 

Bill that seek to alter the boundaries of the states and names of the states.



Money Bill (as per Article 110) & Finance Bill.



Any bill which affects the taxation in which the states are interested (Article 274)



State Bills which impose restriction upon freedom of trade (Article 304).

Ordinance Making Powers of President Parliament is not always in session and when it becomes necessary to have a law on some urgent public matter, the constitution via article 123 provides the power to the president to issue ordinances if he is satisfied with the circumstances of issuing such ordinance. Ordinances are promulgated when parliament is not in session. The ordinance has similar effect to an act of parliament. However, every ordinance must be laid before both houses of the parliament within 6 weeks from the reassembling of the parliament. If it is not placed in parliament within 6 weeks from reassembly, it becomes invalid. If it does not get approval of parliament, it becomes invalid. However, it may be withdrawn by the president. Maximum Possible Life of an Ordinance An ordinance is in force as long as parliament does not meet. But, there cannot be a gap of more than 6 months between two meetings of parliament. Further, a time of 6 weeks is given after the parliament reassembles. So, 6 months + 6 weeks = 71/2 months is the maximum life of an ordinance. Judicial Powers: Power to Grant Pardon

42

Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The meaning of these terms is as follows: 

Pardon: Complete pardon



Reprieve: Temporary suspension of sentence



Respite: awarding less sentence



Remission: Reducing amount of sentence



Commutation: Changing one punishment to another.

VETO POWER OF THE PRESIDENT A bill passed by the Parliament can become an act only if it receives the assent of the President. When such a bill is presented to the President for his assent, he has three alternatives (under Article 111 of the Constitution): 1. He may give his assent to the bill, or 2. He may withhold his assent to the bill, or 3. He may return the bill (if it is not a Money bill) for reconsideration of the Parliament. However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, the President must give his assent to the bill. Thus, the President has the veto power over the bills passed by the Parliament, that is, he can withhold his assent to the bills. The object of conferring this power on the President is two-fold— (a) to prevent hasty and ill-considered legislation by the Parliament; and (b) to prevent a legislation which may be unconstitutional. The veto power enjoyed by the executive in modern states can be classified into the following four types: 1. Absolute veto, that is, withholding of assent to the bill passed by the legislature. 2. Qualified veto, which can be overridden by the legislature with a higher majority. 3. Suspensive veto, which can be over ridden by the legislature with an ordinary majority. 4. Pocket veto, that is, taking no action on the bill passed by the legislature.

43

Of the above four, the President of India is vested with three—absolute veto, suspensive veto and pocket veto. There is no qualified veto in the case of Indian President; it is possessed by the American President. The President of India is vested with the following three types of veto power. 1. Absolute Veto 2. Suspensive Veto 3. Pocket Veto Absolute Veto: It refers to the power of the President to withhold his assent to a bill passed by the Parliament. The bill then ends and does not become an act. Usually, this veto is exercised in the following two cases: (a) With respect to private members' bills (bills introduced by any member of Parliament who is not a minister); (b) With respect to the government bills when the cabinet resign (after the passage of the bills but before the assent by the President) and the new cabinet advises the President not to give his assent to such bills. Suspensive Veto: The President exercises this veto when he returns a bill for reconsideration of the Parliament. However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, it is obligatory for the President to give his assent to the bill. This means that the President veto is overridden by a re-passage of the bill by the same ordinary majority (and not a higher majority as required for Qualified Veto in U.S.A.). The President does not possess this veto in the case of Money bills. The President can either give his assent to a money bill or withhold his assent to a money bill but cannot return it for the reconsideration of the Parliament. Normally, the president gives his assent to the money bill as it is introduced in the Parliament with his previous permission. Pocket Veto: In this case, the President neither ratifies nor rejects nor returns the bill, but simply keeps the bill pending for an indefinite period. This power of the President no to take any action (either

44

positive or negative) on the bill is known as the Pocket Veto. The President can exercise this veto power as the Constitution does not prescribe any time-limit within which he has to take the decision with respect to a bill presented to him for his assent. In USA, on the other hand, the president has to return the bill for reconsideration within 10 days. Hence, it is remarked that the pocket of the Indian President is bigger than that of the American President. In 1986, President Zail Singh exercised the pocket veto with respect to Indian Post Office (Amendment) Bill. The bill, passed by the Rajiv Gandhi Government, imposed restriction on the freedom of press. Note: It should be noted here that the President has no veto power in respect of a Constitutional Amendment Bill. The 24th Constitutional Amendment Act of 1971 made it obligatory for the President to give his assent to a constitutional amendment bill. Presidential Veto over State Legislation The President has veto power with respect to state legislation also. A bill passed by a state legislature can become an act only if it receives the assent of the governor or the President (in case the bill is reserved for the consideration of the President). When a bill, passed by a state legislature, is presented to the governor for his assent, he has four alternatives (under Article 200 of the Constitution): 1. He may give his assent to the bill, or 2. He may withhold his assent to the bill, or 3. He may return the bill (if it is not a money bill) for reconsideration of the state legislature, or 4. He may reserve the bill for the consideration of the President.

45

46

Chapter 20: VICE PRESIDENT Eligibility The eligibility criteria to become a Vice President of India are laid down by Article 66 (Election of Vice President). The article says that the candidate to become Vice President of India should:   

Be a Citizen of India Completed the age of 35 years Qualified for election as member of Council of State.

Functions of Vice President Vice President is the executive Chairman of the Rajya Sabha and can not hold any other office of the profit. However, during the period when he/ she acts as the officiating President of India, he / she shall not act as chairman of the Rajya Sabha and shall not be entitled to the salary or allowances payable to the chairman of the Rajya Sabha. Article 65 says that in case the President is unable to discharge his/ her duties for reasons such as illness, resignation, removal, death or otherwise, the Vice President shall carry out functions of the President. In such case, he/ she shall be entitled for the salary, allowance and all privileges of the President. Election, term of office, removal, Oath The Vice President of India is elected by both the houses of the parliament i.e. Lok Sabha and Rajya Sabha. The MLAs have no role to play in election of the Vice President. The Vice President functions a President of the whole country, when the president is not available, but in his election, State electors have no role to play and this is a big anomaly in the constitution. The original constitution laid down the method of election of Vice President of India by members of both Houses of Parliament assembled at a joint meeting. However, later it was felt that the requirement that both houses should assemble at a joint sitting for the election of the Vice-President, is unnecessary and has practical difficulties. So, this difficulty was done away with Constitution 11th Amendment Act 1961. Now the election of the Vice President takes place on the basis of a electoral college consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote.  The doubt and dispute arising out of election of President and / or Vice President can be challenged in the Supreme Court.

47







The term of office of the Vice President is 5 years. The term may terminate earlier by resignation which should be addressed to the President. The term may also terminate earlier by removal. The Vice President can be removed by a resolution by the members of the Rajya Sabha. To move such resolution, a 14 days' notice is to be given. Such a resolution, though passed by the Rajya Sabha only, but must be agreeable to the Lok Sabha. There is no need of impeachment of Vice President. While the president takes the oath of office to preserve, protect and defend the Constitution and the law, the Vice President takes oath of true faith and allegiance to the Constitution of India as by law established.

48

Chapter 21: THE PRIME MINISTER OF INDIA Overview 

The Prime Minister is the head of government and the head of the Council of Ministers.



The PM is responsible for the discharge of functions and powers of the President.



The PM must be a member of either House of Parliament, or be elected within 6 months of taking office.

ELECTION TO OFFICE Appointment  The Prime Minister is appointed by the President on the basis of his being the leader of the majority party in the Lok Sabha.  If no party gets an absolute majority in the Lok Sabha or a PM resigns or dies, the President can use his own discretion in the choice of a Prime Minister  If the person the President so appoints is not a member of the Lok Sabha, he must get himself elected within a period of 6 months Conditions of service 

The Prime Minister serves in office for 5 years



He can be re-appointed



When the Lok Sabha is dissolved, he can continue in office upon the request of the President



If the government is defeated in the Lok Sabha, the Prime Minister and entire cabinet must resign



However, if defeated in the Rajya Sabha, resignation is not obligatory

FUNCTIONS OF THE PRIME MINISTER 1.

Legislative functions 

He is the leader of the majority in the Lok Sabha



The President convenes and prorogues sessions of Parliament in consultation with the PM



Can recommend dissolution of the Lok Sabha to the President



All members of the Cabinet are appointed by the President on the recommendation of the PM

49

2.

Administrative functions 

Acts as the chief channel of communication between the President and the Council of Ministers



Allocates portfolios among various ministers and shuffles them



Presides over meetings of the Council of Ministers



Supervises the working of other Ministers

3.

Executive functions 

Represents the country internationally



Acts as the ex-officio Chairman of the Planning Commission



Has exclusive jurisdiction over the disposal of the PM's National Relief Fund and the PM's National Defence Fund

4.

Advisory functions 

Assists the President in the appointment of all high officials



Recommends to the President proclamation of emergency



Advices the President on the imposition of President's Rule

THE DEPUTY PRIME MINISTER 

It is not a constitutional post



Does not carry any specific powers



Can chair meetings of the Cabinet in the absence of the PM, and take on the responsibility of the PM in case of the latter's death



India had 7 Deputy Prime Ministers



Sardar Vallabhai Patel was the first Deputy PM. He was also the Home Minister concurrently



The current government does not have a Deputy PM

50

Chapter 22: CENTRAL COUNCIL OF MINISTERS Summary of Articles Article 74 & 75 of the constitution of India deal with the Council of Ministers and Prime Minister. Here is the summary of these articles: 

Article 74(1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. The president may require the council of ministers to reconsider such advice and president shall act in accordance with such advice reconsidered.



Article 74(2): What advice was tendered to the president cannot be inquired into any court.



Article 75(1): The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.



Article 75(2): The Ministers shall hold office during the pleasure of the President.



Article 75(3): The Council of Ministers shall be collectively responsible to the House of the People.



Article 75(4): Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule



Article 75(5): A Minister must be a member of any of the houses within 6 months.



Article 75(6): Parliament will decide the salary and allowances of the Ministers and until parliament decides, so shall be as specified in the Second Schedule. The Council of Ministers is Real Executive



The article 74(1) makes the Council of Ministers real executive in our country. This article mentions that the President shall act in accordance with the advice tendered by the council of Ministers. The president may ask the Council of Ministers to reconsider the advice, but if the Council of Ministers decides to stick to the previous advice, the president acts as per this reconsidered advice.

Functions of the Council of Ministers 

Formulates policies of the country on the basis of which administration is carried out



Introduces all important Bills in Parliament and oversees their passage



Presents the Budget to the Parliament



Determines foreign policy

51



Approves international agreements and treaties



Render advice to the President regarding proclamation of war or emergency

Categories of Ministers Cabinet Minister    

Senior minister in charge of a particular Ministry May hold additional charges of other Ministries (if no other Cabinet Minister is appointed) Cabinet Ministers must belong to either House of Parliament Currently there are 33 Cabinet Ministers

Minister of State (Independent Charge)  In charge of a particular portfolio  Is not under the oversight of a Cabinet Minister  Currently there are 7 MoS with independent charge Minister of State  A minister with a specific responsibility in a particular Ministry  Reports to the concerned Cabinet Minister  Currently there are 38 MoS Relationship between the President and COM Advice tendered to the president by the Council of Ministers can not be inquired by anybody. This has been made clear by the article 74(2) of the constitution. Presidential Pleasure All the ministers are appointed by the president on the advice of the Prime Minister. It is the Prime Minister who allocates the portfolio to other ministers. The prime Minister may call for the resignation of any minister at any time. In case the minister refuses, the prime minister may advice the President to dismiss the minister. This is also called the "Rule of Individual Responsibility". Ministers are from both Rajya Sabha and Lok Sabha

52

A Minister must be a member of any of the houses within 6 months. This means that Prime Minister may choose Ministers from Lok Sabha or Rajya Sabha. A person who is not a member of either house may be appointed as a minister. But maximum duration, a person can remain a minister without being a member of either house is 6 months. He / she must be able to secure a seat in either house within this time period as per Article 75(5). Council of Minister will be collectively responsible to the house of people Article 75(3) of our constitution incorporates the Principle of Collective Responsibility. This article says that Council of Ministers shall be collectively responsible to "Lok Sabha". This means that if the Ministry loses the confidence of the "Lok Sabha", all ministers including those who are from Rajya Sabha have to go. The entire ministry is obliged to resign. This means that ministers fall and stand together. This is called "Rule of Collective Responsibility". Individual Responsibility As mentioned above, Individual responsibility means that Individual minister holds the office during the pleasure of the president. It means that this is a "powerful weapon" of the President in the hands of the prime Minister. Losing confidence of the Prime Minister leads to dismissal by the President.

53

Chapter 23: CABINET COMMITTEES FEATURES OF CABINET COMMITTEES The following are the features of Cabinet Committees: 

They are extra-constitutional in emergence. In other words, they are not mentioned in the Constitution. However, the Rules of Business provide for their establishment.



They are of two types-standing and ad hoc. The former are of a permanent nature while the latter are of a temporary nature. The ad hoc committees are constituted from time to time to deal with special problems. They are disbanded after their task is completed.



They are set up by the Prime Minister according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature, and composition varies from time to time.



Their membership varies from three to eight. They usually include only Cabinet Ministers. However, the non-cabinet Ministers are not debarred from their membership.



They not only include the Ministers in charge of subjects covered by them but also include other senior Ministers.



They are mostly headed by the Prime Minister. Some times other Cabinet Ministers, particularly the Home Minister or the Finance Minister, also acts as their Chairman. But, in case the Prime Minister is a member of a committee, he invariably presides over it.



They not only sort out issues and formulate proposals for the consideration of the Cabinet, but also take decisions. However, the Cabinet can review their decisions.



They are an organisational device to reduce the enormous workload of the Cabinet. They also facilitate in-depth examination of policy issues and effective coordination. They are based on the principles of division of labour and effective delegation.

FUNCTIONS OF CABINET COMMITTEES The following four are the more important cabinet committees: 

The Political Affairs Committee deals with all policy matters pertaining to domestic and foreign affairs.



The Economic Affairs Committee directs and coordinates the governmental activities in the economic sphere.



Appointments Committee decides all higher level appointments in the Central Secretariat, Public Enterprises, Banks and Financial Institutions.



Parliamentary Affairs Committee looks after the progress of government business in the Parliament.

54

The first three committees are chaired by the Prime Minister and the last one by the Home Minister. Of all the Cabinet Committees, the most powerful is the Political Affairs Committee, often described as a "Super-Cabinet". GROUPS OF MINISTERS In addition to cabinet committees, several Groups of Ministers (GoMs) have been constituted to look into different issues / subjects. Some of these GoMs have been empowered to take decisions on behalf of the Cabinet whereas the others make recommendations to the Cabinet. In the past two decades, the institution of GoMs has become a viable and effective instrument of coordination among the ministries. These are ad hoc bodies formed to give recommendations to the cabinet on certain emergent issues and critical problem areas. Ministers heading the concerned ministries are inducted into the relevant GoMs and when the advice is crystallised they are disbanded. Example: Group of Ministers (GoM) for evolving an integrated strategy for water management, Group of Ministers (GoM) to consider the reports of the Administrative Reforms Commission, Group of Ministers (GoM) for the civil aviation sector etc.

55

Role of Cabinet: 1. As Prime Policy Maker:  



The cabinet is the chief policy making organ of the government. It identifies the areas which require the formulation or reformulation of policy. The initiative in this regard is generally taken by the ministers in charge of specific departments or ministries. However, the Prime Minister or other members of the cabinet can always sound the minister concerned on the desirability of or need for designing or redesigning policies concerning his portfolio. Sometimes, in the meetings of the whole cabinet also, such ideas emerge. The policy choices are examined in detail by the department/ministry concerned and the 'final’ policy proposals are sent to the cabinet for discussion and approach. The cabinet

56

may, in its wisdom, further examine the possible policy choices and gives its final approval to a policy. 2. As Prime Legislative Body: 



 



The cabinet is a multifunctional organ, it is an integral part of the legislative system. Although the Parliament is the supreme law making body of the nation, legislation is essentially the handiwork of the cabinet. It is in the cabinet that all the important government bills are drafted. Important bills are initiated and piloted through the legislatures by the cabinet ministers. Most of these bills get through because of the majority support to the cabinet in the Parliament. All important amendments also emanate from the cabinet and, when passed by the Parliament, they take the form of a Constitution Amendment Act. It is the cabinet which prepares the legislative agenda at the start of every parliamentary session. The cabinet decides, at the beginning of each session what bills will be put forth in that session. All important money bills are framed in the cabinet and are initiated and seen through in the legislature by it. The cabinet is responsible for the entire expenditure of the state and for raising revenues to meet it. The budget is, however, kept outside the purview of the cabinet.

3. As an Advisory Body    



In the executive sphere itself, the next important task of the cabinet is to aid and advise the President. The inaugural speech of the President is also, in reality, prepared by the cabinet. The President summons, prorogues and dissolves the House on the advice of the cabinet headed by the P.M. The aid and advice of the cabinet is binding on the President. Hence, virtually all decisions of the President are those of the cabinet. It is the sole decision-making body on all Policy matters and these decisions are conveyed to the President who endorses them. All decisions regarding the Persons to be appointed to key posts are taken in the cabinet.

4. As a Coordinating Agency 

The cabinet in India performs a wide variety of functions. To begin with, it is responsible for coordinating the work of all the ministries.

57

5. As Chief Executive Organ  

Each cabinet minister is also the Political head of his department. His principal aide is the secretary, who functions as the administrative head of the department. The secretary is responsible for carrying out the policies laid down by the cabinet and approved by the Parliament.

You can also write other roles of Cabinet, such as – 6. As Coordinator of Foreign and Defence Policy 7. As Crisis Manager Some important quotes: The various comments made by the eminent political scientists and constitutional experts on the role of cabinet in Britain holds good in the Indian context also. These are mentioned below. Ramsay Muir “The Cabinet is the steering wheel of the ship of the state.” Lowell “The Cabinet is the keystone of the political arch”. Sir John Marriott “The Cabinet is the pivot around which the whole political machinery revolves”. Gladstone “The Cabinet is the solar orb around which the other bodies revolve”. Barker “The Cabinet is the magnet of policy”. Bagehot “The Cabinet is a hyphen that joins, the buckle that binds the executive and legislative departments together”.

58

Chapter 24: SUPREME COURT The Constitution Article 124 (1) says that "there shall be a supreme court of India". And Supreme Court is the highest Interpreter of Constitution India is a Union of States and there is a division of power between the State Governments and the Central Government. This division is in written words and expressed in the Constitution. Language is apt to be ambiguous and it is possible that its meaning may not be taken same by all at all times. Thus, it is certain that there might be some disputes between the States and the Central Government regarding the division of power and other matters which need to be settled. So the need for an impartial and independent judiciary body is fulfilled by the Supreme Court which is the Highest Interpreter of the Constitution and tribunal for final settlements of the disputes between:  Center and States  States and States Thus, settling the disputes is the main function of Supreme Court. Functions of Supreme Court: 1.

Protector of the Fundamental Rights 

The other equally important function of the Supreme Court is to protect the fundamental rights embodied in the Constitution of India. Article 32 (Right to Constitutional Remedies) makes the Supreme Court the protector of the fundamental rights.



Supreme Court has from time to time interpreted the fundamental rights and has protected the Citizens of India from any unconstitutional legislation which breech their fundamental rights.

2.

Supreme Appellate Court in India 

The Judiciary Hierarchy in India has the Civil Judges at the bottom, followed by session courts, District Courts, High Courts and Supreme Court. The Supreme Court is the all India supreme appellate authority for civil as well as Criminal Jurisdictions.



As the supreme appellate court, Supreme Court not only reviews the constitution but also the laws enacted by the parliament and various state legislatures. So, being the Supreme Appellate Court is the third most important function of the Supreme Court of India.

59

3.

Advisory Jurisdiction of Supreme Court 

Supreme Court gives advice to the President of India when he refers the court for matters of public importance. So advising the President of India on the matters referred by the President is the fourth most important function of the Supreme Court of India.



In a nutshell, Honorable Supreme court of India stands at the apex of the single, integrated Judicial system which has become the "essential part" of the Indian Federation "to maintain the unity" of the country. The Original and Exclusive Jurisdiction of the court lies in the disputes between Union Government and one or more states and in disputes between two or more states. It has Appellate jurisdiction in any case whether Civil or Criminal that involves by its own certification a substantial question of law in the meaning and intent of the Constitution. The Honourable Supreme Court is the interpreter and Guardian of the Constitution, the Supreme law of the land.

Constitutional Provisions related to Indian Judiciary Articles 124 to 147 of the Constitution of India have the provisions for the Supreme Court. The subject matters of the articles (other than repealed) are listed as follows: 

124 - Establishment and Constitution of Supreme Court.



125 - Salaries, etc., of Judges.



126 - Appointment of acting Chief Justice.



127 - Appointment of ad hoc Judges.



128 - Attendance of retired Judges at sittings of the Supreme Court.



129 - Supreme Court to be a court of record.



130 - Seat of Supreme Court.



131 - Original jurisdiction of the Supreme Court.



132 - Appellate jurisdiction of Supreme Court in Appeals from High Courts in certain cases.



133 - Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.



134 - Appellate of jurisdiction of Supreme Court in regard to criminal matters.



134(A) - Certificate for appeal to the Supreme Court.



135 - Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.

60



136 - Special leave to appeal by the Supreme Court.



137 - Review of judgments or orders by the Supreme Court.



138 - Enlargement of the jurisdiction of the Supreme Court.



139 - Conferment on the Supreme Court of powers to issue certain writs.



139(A) - Transfer of certain cases.



140 - Ancillary powers of Supreme Court.



141 - Law declared by Supreme Court to be binding on all courts.



142 - Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.



143 - Power of President to consult Supreme Court.



144 - Civil and judicial authorities to act in aid of the Supreme Court.



145 - Rules of Court, etc.



146 - Officers and servants and the expenses of the Supreme Court.



147 - Interpretation.

Strength of the SC of India Article 124 in the original Constitution said that there shall be a supreme court consisting of a Chief Justice and not more than 7 Judges until the parliament by law prescribes a larger number of the Judges. 

Parliament by law can alter the number of Judges.



By a parliament enactment the number was increased to 11 in 1960. It was raised to 14 in 1968, 18 in 1978 and 26 in 1986. After that it was raised to 26. In February 2009 the strength of the Supreme Court was raised from 26 to 31.



31 means that can be the maximum number of the Judges including the Chief Justice. It does not mean that at any time there should be 31 judges in place.

Appointment of Judges 

Every Judge of the Supreme Court is appointed by the President by warrant under his hand and seal after consultation with the Judges of the Supreme Court and High Courts in states, the president may deem necessary for the purpose.



President if thinks necessary, can consult the Judges of the High Courts of States to appoint a supreme court Judge, as per article 124(2).

61



However, in appointment of the other judges, president shall always seek consultation from the Chief Justice of India.

Qualifications of the Judges of the Supreme Court The qualifications are as follows: To be appointed a Judge of the Supreme Court, a person must be 

A Citizen of India



Must have been the judge of a High Court / more High Courts for a period of 5 years or an advocate of the High Court for at least 10 years or in view of the President a distinct Jurist of the country.

So, we can see that there is nothing which can prevent the direct appointment of the Judges of Supreme Court from the Bar, yet, so far the appointments have been made from the Judges of High Courts.

Tenure of the Judges The CJI and other Judges of the Supreme Court of India hold the office until they attain the age of 65 years. 

A Judge can relinquish the office by addressing the resignation to President of India.



A retired Judge of the Supreme Court is prohibited from practicing law before any court or authority within the territory of India.

Removal of SC Judges They can be removed from the office before the age of the retirement by President of India on the basis of a resolution passed by both the houses of the parliament on the grounds of proved misbehavior or incapacity. 

In India, a Judge of the Supreme Court (and also High Court) can be removed from his position only on the ground of proved misbehavior or incapacity. The power for investigation and proof of such misbehavior or incapacity is vested in the parliament.



Each house, in order to remove the judge, will have to pass a resolution which is supported by 2/3rd of members present and voting and majority of the total membership of the house.

Ad hoc Judges Ad hoc judges can be appointed in the Supreme Court by "Chief Justice of India" with the prior consent of the President, if there is no quorum of judges available to hold and continue the

62

session of the court. Only the persons who are qualified as to be appointed as Judge of the Supreme Court can be appointed as ad hoc judge of the Supreme Court. (Article 127) 

Further, as per provisions of the Article 128, Chief Justice of India, with the previous consent of the President, request a retired Judge of the Supreme Court High Court, who is duly qualified for appointment as a Judge of the Supreme Court, to sit and act as a Judge of the Supreme Court. The salary & allowance of such judge are decided by the president.



The retired Judge who sits in such a session of the Supreme Court has all the jurisdiction, powers and privileges of the Judges BUT are NOT deemed to be a Judge.

Supreme Court and High Courts as Court of Record Both the Supreme Court and High Courts regarded as courts of record. Supreme Court is a court of record as per provisions of Article 129 and has the powers of such a court including the power to punish for contempt of itself. Seat of Supreme Court As per article 130, Seat of the Supreme Court is Delhi, but it can hold its meeting anywhere in India. The decision to hold a meeting anywhere in India is taken by the Chief Justice of India in consultation with President. There are no regional benches though the demand was made in past. The demand was turned down by the Supreme Court.

Original Jurisdiction of SC Original Jurisdiction of the Supreme Court is discussed in Article 131. The Supreme Court has original Jurisdiction in any dispute that arises between 

Government of India and one or more states



Government of India and State(s) on one side and State(s) in other side



State(s) and State(s)

The dispute should involve a question whether of law or fact on which depends existence of a legal right which the court is called upon to determine.

Jurisdiction of the Supreme Court 1. Appellate jurisdiction of SC

63

The appellate Jurisdiction of the Supreme Court has been discussed in articles 132-136. The Supreme Court is the Highest Court of appeal and the writs and decrees of Supreme Court run throughout the country. 

The cases come to the Supreme Court in the form of appeals against the judgments of the lower courts and this is called appellate jurisdiction.



Appellate jurisdiction involves the Constitution, Civil and criminal matters.



An appeal can be made in the Supreme Court against any judgment, decree or final order of the High Court in the territory of India, whether in a civil criminal or other proceedings, if the High Court Certified that the case involves a substantial question of law as to the interpretation of the Constitution. Even of the High Court refuses to give such certificate, the Supreme Court can grant special leave to appeal if the court is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution.



In every matter that involves the interpretation of the constitution whether, civil, criminal or any other proceeding, the Supreme Court has been made the final authority to elaborate the meaning and intent of the Constitution. As far as criminal cases are concerned there are 3 situations in which criminal appeals in Supreme Court are permitted (Article 134)



The High Court has on appeal reverse the order of acquittal of accused person and sentenced him to death.



The High Court has withdrawn for trial before itself any case from any subordinate court and such trial convicted the accused person and sentenced him to death.



High Court certifies that the case is worth appeal to the Supreme Court.

2.

Advisory Jurisdiction



Article 143 (Power of President to consult Supreme Court) discusses the advisory jurisdiction of the Supreme Court.



If the president feels that a question of law or fact has arisen or is likely to arise and the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he can refer the same to Supreme Court for its advisory Opinion.



Such an opinion is not binding on the president.

64

Public Interest Litigation The present form of judicial activism got birth in 1980s when Justice P. N. Bhagwati turned a postcard written to him by an aggrieved citizen into a Public Interest Litigation. 

Prior 1980s only the aggrieved party could approach the courts for justice. The Indian legal system which was more or less with colonial nature saw the state of deprivation of civil and political rights particularly during the emergency era. After the emergency got ended in 1977, the 2 judges of the honorable Supreme Court Justice V. R. Krishna Iyer and P. N. Bhagwati recognized the possibility of providing access to justice to the poor and to reach out to the people. Hence Public Interest Litigation was devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake.



Thus, Justice V. R. Krishna Iyer and P. N. Bhagwati were the first judges to accept PIL.

65

STATE GOVERNMENT Chapter 25: GOVERNOR Constitutional Provisions In India, the Government model of States is also parliamentary in nature. The executive authority of a state in India is vested in the Governor and Governor is the constitutional head of the state in the same way as President is the Constitutional head of the Union. Here are the provisions of various articles of the Constitution: 

Article 153: There shall be a Governor of each states and a same person can be made Governor of more than one states.



Article 154: Executive Power of the State shall be vested in the Governor and shall be exercised by him/ her either directly or through officers subordinate to him / her. However, Parliament and State legislature can confer any function to officers subordinate to Governor by law.



Article 155: A Governor is appointed by the President. So, there is no election in case of a Governor.



Article 156: Governor can hold the office for maximum tenure of 5 years and he / she holds the office during the pleasure of the President. Once the tenure ends, the Governor continues to hold office till new governor takes up the job.



Article 157: A person who is citizen of India and has completed the age of 35 years shall be eligible to be Governor of state.



Article 158: A Governor can NOT be member of either house of the parliament or member of legislature of any of the Indian States. If a MP or MLA is appointed as Governor he / she shall vacate the seat when enters into Governor's Office. The Governor will not hold any office of the profit and will be entitled for salary and allowances as per second schedule of the constitution and as the parliament by law can decide.



Article 159: The Oath of affirmation for Governor as per article 159 is as follows: o I, A. B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of Governor (or discharge the functions of the Governor) of ......(name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of .....(name of the State)."



Article 160: During any contingency, who will discharge the functions of the Governor, is decided by the President.

66



Article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Please note that President can grant pardon to a person awarded death sentence. But Governor of State does not enjoy this power.



Article 162: The executive power of Governor of a State extends to the matters on which the Legislature of the State has power to make laws.

Salary Apart from the free residence, medical facilities and other allowances, a Governor of the state in India draws a salary of 1,10,000 per month. Salary and Allowances of the Governor of State are charged from "Consolidated Fund of the State" and are non-votable in the state Budget Process. Executive Powers As per article 162, the executive power of a State extends to the matters on which the Legislature of the State has power to make laws. Since, Governor is the Executive Head of the state, all the Executive actions of the state are taken in the name of the Governor. Appointment of some of the following important functionaries of the State Government is made by the Governor: 

Chief Minister



Other ministers



Advocate General



Chairmen and members of the State Public Service Commissions

The imposition of President Rule in a state is recommended by the Governor of the State when there the Governor finds that the Government of state is not being carried on in accordance with the provisions of the Constitution. Legislative Powers 

Governor has powers to summon and prorogue either house of the state legislature and dissolve the state assembly.



Governor addresses the first session of the state legislature after the general elections in the state.



Governor Appoints 1/6th members of the State legislative Council.

67



Nominates one member in the state legislative assembly Community if the community is not well represented.



The Bills passed by the State legislatures are sent to Governor for assent.



Governor has right to reserve certain kinds of the bills passed by the state legislature to for the assent of the President.



Governor of the state has power to make laws through Ordinances in the state.

from the Anglo-Indian

Financial Powers 

Money bills in the State legislature cannot be introduced without prior recommendation of the Governor.



The Governor ensures that the Budget of the state is laid before the assembly every year.



The "Contingency Fund of the state" is maintained and administered by the Governor of the state. Governor can advance money out of it for meeting unforeseen expenditures, but the money has to be recuperated with the authority of the state legislature.



The Governor of the state receives the report of the States auditor general pertaining to the accounts of the legislature and puts it before the state legislature.

Judicial Powers 

President of India consults the Governor while appointing the Chief Justice and other judges of the High Courts of the states.



He can grant pardon, reprieve, respite or remission of punishment to persons convicted of an offense against the state laws.

Administrative Powers 

The governor places the state public service commission reports and observations of the council of ministers before the state legislature.



The Governor of State functions as a chancellor of various state Government universities. The Vice Chancellors are appointed by the Governor.

Ordinance Making Powers As per provisions of article 213, the Governor has Special legislative power of promulgating the ordinances during the recess of the State legislature. 

To issue an ordinance, the governor must be satisfied with the circumstances that make it necessary for him / her to take immediate action.



Governor cannot promulgate an ordinance in any of the three situations give below:

68



If the ordinance has the provisions which of embodied in a bill would require president's sanction.



If the ordinance has the provisions which the governor would reserve as a bill containing them for the president's sanction. If an act of the state legislature has the same provisions that would be invalid without the assent of the president.



All ordinances promulgated by the Governor in the state have the same effect and force.



The ordinance must be laid before the state legislature when it reassembles and it must be upheld by the State legislature, failure to which the ordinance would be invalid.

Discretionary Powers In exercising all the functions except when the governor is expressly required to act in his/ her discretion. The governor of a state is advised and aided by the Council of Ministers of the state, which is headed by the Chief Minister. 

But, when there is a conflict between the Council of the Ministers and Governor, the Decision of the Governor in his/ her discretion is deemed to be final. (Article 163)



Validity of anything done by the Governor can not be called in question on the ground that he / she ought to not to have acted on his / her discretion.



Whether, and if so what, advice was tendered by the Governor to the Ministry can not be inquired into a court.



So, though the Governor is made the constitutional head of a state like president of India, yet there is a thin line as the Constitution empowers the Governor to act without the advice of the Chief Minister and his council and can use discretion on certain matters.

Some discretionary powers are as follows: 

Governor can dissolve the legislative assembly if the chief minister advices him to do following a vote of no confidence. Now, it is up to the Governor what he/ she would like to do.



Governor, on his / her discretion can recommend the president about the failure of the constitutional machinery in the state.



On his / her discretion, the Governor can reserve a bill passed by the state legislature for president's assent.



If there is NO political party with a clear cut majority in the assembly, Governor on his / her discretion can appoint anybody as chief minister. Governor has discretion to refuse to sign to an ordinary bill passed by the state legislature.

69

70

71

72

Chapter 26: CHIEF MINISTER In the scheme of parliamentary system of government provided by the Constitution, the governor is the nominal executive authority (de jure executive) and the Chief Minister is the real executive authority (de facto executive). In other words, the governor is the head of the state while the Chief Minister is the head of the government. Thus the position of the Chief Minister at the state level is analogous to the position of prime minister at the Centre. APPOINTMENT OF CHIEF MINISTER The Constitution does not contain any specific procedure for the selection and appointment of the Chief Minister. Article 164 only says that the Chief Minister shall be appointed by the governor. However, this does not imply that the governor is free to appoint any one as the Chief Minister. In accordance with the convections of the parliamentary system of government, the governor has to appoint the leader of the majority party in the state legislative assembly as the Chief Minister. But, when no party has a clear majority in the assembly, then the governor may exercise his personal discretion in the selection and appointment of the Chief Minister. In such a situation, the governor usually appoints the leader of the largest party or coalition in the assembly as the Chief Minister and ask him to seek a vote of confidence in the House within a month. OATH, TERM AND SALARY Before the Chief Minister enters his office, the governor administers to him the oaths of office and secrecy. In his oath of office, the Chief Minister swears: 

to bear true faith and allegiance to the Constitution of India,



to uphold the sovereignty and integrity of India,



to faithfully and conscientiously discharge the duties of his office, and



to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.

In his oath of secrecy, the Chief Minister swears that he will not directly or indirectly communicate or reveal to any person(s) any matter that is brought under his consideration or becomes known to him as a state minister except as may be required for the due discharge of his duties as such minister. POWERS AND FUNCTIONS OF CHIEF MINISTER

73

The powers and functions of the Chief Minister can be studied under the following heads: In Relation to Council of Ministers, The Chief Minister enjoys the following powers as head of the state council of ministers: 

The governor appoints only those persons as ministers who are recommended by the Chief Minister.



He allocates and reshuffles the portfolios among ministers.



He can ask a minister to resign or advise the governor to dismiss him in case of difference of opinion.



He presides over the meetings of the council of ministers and influences its decisions.



He guides, directs, controls and coordinates the activities of all the ministers.



He can bring about the collapse of the council of ministers by resigning from office. Since the Chief Minister is the head of the council of ministers, his resignation or death automatically dissolves the council of ministers. The resignation or death of any other minister, on the other hand, merely creates a vacancy, which the Chief Minister may or may not like to fill.

In Relation to the Governor The Chief Minister enjoys the following powers in relation to the governor: 

He is the principal channel of communication between the governor and the council of ministers.

It is the duty of the Chief Minister: 

to communicate to the Governor of the state all decisions of the council of ministers relating to the administration of the affairs of the state and proposals for legislation;



to furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for; and



if the governor so requires, to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.



He advises the governor with regard to the appointment of important officials like advocate general, chairman and members of the state public service commission, state election commissioner, and so on.

In Relation to State Legislature

74

The Chief Minister enjoys the following powers as the leader of the house: 

He advises the governor with regard to the summoning and proroguing of the sessions of the state legislature.



He can recommend the dissolution of the legislative assembly to the governor at any time.



He announces the government policies on the floor of the house.

Other Powers and Functions In addition, the Chief Minister also performs the following functions: 

He is the chairman of the State Planning Board.



He acts as a vice-chairman of the concerned zonal council by rotation, holding office for a period of one year at a time.



He is a member of the Inter-State Council and the National Development Council, both headed by the prime minister.



He is the chief spokesman of the state government.



He is the crisis manager-in-chief at the political level during emergencies.



As a leader of the state, he meets various sections of the people and receives memoranda from them regarding their problems, and so on.



He is the political head of the services.

Thus, he plays a very significant and highly crucial role in the state administration. However, the discretionary powers enjoyed by the governor reduce to some extent the power, authority, influence, prestige and role of the Chief Minister in the state administration. RELATIONSHIP WITH THE GOVERNOR The following provisions of the Constitution deal with the relationship between the governor and the Chief Minister: Article 163: There shall be a council of ministers with the Chief Minister as the head to aid and advise the governor on the exercise of his functions, except in so far as he is required to exercise his functions or any of them in his discretion. Article 164: The Chief Minister shall be appointed by the governor and other ministers shall be appointed by the governor on the advise of the Chief Minister;

75

The ministers shall hold office during the pleasure of the governor; and The council of ministers shall be collectively responsible to the legislative assembly of the state. Article 167: It shall be the duty of the Chief Minister: 

to communicate to the governor of the state all decisions of the council of ministers relating to the administration of the affairs of the state and proposals for legislation;



to furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for ; and



if the governor so requires, to submit for the consideration of the council of ministers any matter on which a decision has been taken by a minister but which has not been considered by the council.

76

Chapter 27: COUNCIL OF MINISTERS PART VI of the Constitution deals with the other half of Indian federalism, i.e., the States. Article from 152-237 deals with various provisions related to States. It covers the executive, legislature and judiciary wings of the states. Articles 163-164 deals with Council of Ministers (CoM) in states. Article 163: Council of Ministers to aid and advise Governor (1)

There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2)

If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3)

The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

164: Other provisions as to Ministers (1)

The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:

Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (1A)

The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninetyfirst Amendment) Act, 2003 exceeds the said fifteen per cent, or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State

77

shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint. (1B)

A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.

(2)

The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.

(3)

Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.

(4)

A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

(5)

The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determines and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.

Info-bits related to Council of Ministers 

President of India does not have existence without council of ministers, but Governor has (at the time of President's rule).



The minimum strength of council of ministers in a state as per Constitution is 12 and maximum is 15 percent of Legislative Assembly.



Oaths for ministers: oaths of office and of secrecy.



The Governor has discretionary powers and the validity of acts done using the discretionary powers cannot be questioned.

CABINET A smaller body called cabinet is the nucleus of the council of ministers. It consists of only the cabinet ministers. It is the real centre of authority in the state government. It performs the following role:

78



It is the highest decision making authority in the politico-administrative system of a state.



It is the chief policy formulating body of the state government.



It is the supreme executive authority of the state government.



It is the chief coordinator of state administration.



It is an advisory body to the governor.



It is the chief crisis manager and thus deals with all emergency situations.



It deals with all major legislative and financial matters.



It exercises control over higher appointments like constitutional authorities and senior secretariat administrators.

79

Chapter 28: STATE LEGISLATURE Legislative Council Legislature of a state in India is composed of Governor and Legislative assembly (and legislative council if there is in the state). In India, a state can have either a state legislative assembly or state legislative assembly as well as legislative council. Thus, the states in India are either unicameral or bicameral. Constitutional Provisions Article 168 of the constitution of India provides for a Legislature in every state of the country. The same article mentions that there are some states where there is a legislative council as well. Thus, Indian Constitution does not adhere to the principle of bicameralism in case of every legislature. The states where, there are two houses, The Governor is part of the legislature which consists of Legislative assembly and legislative council. Features of the Legislative assembly resemble to those of the Lok Sabha in the center and features of legislative council resemble to those of Rajya Sabha. The framers of the constitution as well as members of the Constituent assembly had in mind that it may not be possible for all the states to support two houses, financially as well as for other reasons. For example, some of the members of the Constituent assembly criticized the idea of bicameral legislature in the states as a superfluous idea and a body which is unrepresentative of the population, a burden on the state budget and causing delays in passing legislation. That is why, whether there should be a legislative council in the state or not, is decided by legislative assembly of the state itself. But it does not mean that legislative assembly can itself create a legislative council. The constitution of India has full provisions about the creation of legislative council and its abolishment. Abolishing of Legislative Councils The power of abolition and creation of the State legislative council is vested in Parliament of India as per article 169. But again, to create or to abolish a state legislative council, the state legislative assembly must pass a resolution, which must be supported by majority of the strength of the house and 2/3rd majority of the present and voting. (Special Majority) 

When a legislative council is created or abolished, the Constitution of India is also changed. However, still, such type of law is not considered a Constitution Amendment Bill. (Article 169)

80



The resolution to create and abolish a state legislative council is to be assented by the President also.

Legislative Councils in States At present in the country, there are 7 states viz. Andhra Pradesh, Bihar, Jammu & Kashmir, Karnataka, Maharashtra, Uttar Pradesh and Telangana state with bicameral legislatures. There was a bicameral legislature in Tamil Nadu in past but it was abolished in 1986 and then revived in May 2010. In 2010 the Parliament of India passed an Act to re-establish a Legislative Council for a seventh state, Tamil Nadu, but implementation of the Act has been put on hold pending legal action; the state government has also expressed its opposition to the council's revival. Strength of Legislative Councils Total Number of the Legislative Council should not exceed the 1/3rd of the total number of members of the Legislative assembly, but it should not be less than 40. (Article171). However, Jammu & Kashmir is an exception to this where the upper house has strength of 36 only. This is because; J & K assembly is created as per the J & K constitution which is separate from Constitution of India. Representation In legislative Council, there are 5 different categories of representation. 

1/3rd of the total membership is elected by the electorates consisting of the members of the self Governing bodies in the state such as Municipalities, District Boards etc.



1/3rd members are elected by the members of the Legislative assembly of the State



1/12th members are elected by an electorate of University Graduates.



1/12th members are elected by the electorate consisting of the secondary school teachers (3 year experience)



1/6th members nominated by the Governor on the basis of their special knowledge / practical experience in literature, art, science, cooperative movement or social service.

For the first 4 categories mentioned above, the election is held in accordance with the system of proportional representation by means of a single transferable vote and secret ballot method. The above representation can be changed by parliament of India by law. Eligibility to become a member of Legislative Council (MLC)

81

To be eligible for membership of the Legislative council, a person 

Must be citizen of India



Must have completed the age of 30 years



Must possess such other qualifications as prescribed by the parliament by law.



The member should not hold the office of the profit. Should not be of unsound mind and should not be an undischarged insolvent.

Duration 

6 years



The legislative council is permanent body but 1/3rd of its member retire every 2 years. The members of the council elect a chairman which is called "presiding officer".



The council also elects the Deputy Chairman.

Legislative Assembly Legislative assembly is the popular house of the State legislature resembling in features with India's Lok Sabha. It is made up the members directly elected by the people of the state.     

As per article 128, the Legislative assembly of each state cannot have number of members more than 500 and less than 60. However, there are exceptions to this and the states Sikkim (32), Goa (40) and Mizoram (40). For election purpose, the state is divided into the number of constituencies as per the seats for the assembly. The term of the assembly is 5 years but it can be dissolved prior to 5 years by Governor. During a National Emergency, the parliament by law can extend the term of a state assembly by 1 year.

Eligibility  The person should be Citizen of India  Should be more than 25 years of age  Other qualifications as prescribed by the parliament by law. Disqualification A person is disqualified on the following grounds:  If he/ she holds any office of the profit under the central or state Government  If he/ she is of unsound mind

82

  

If he / she is an un-discharged insolvent If he / she has voluntarily acquired the citizenship of a Foreign country If he/ she is disqualified under any other law of the parliament such as anti-defection law. The question, whether a person has been subject to any of the above disqualification will be referred to the Governor who decides in consultation with the election commissioner of the state. The decision of the Governor is final. The Governor of the state nominates one member of the Anglo Indian Community to the state assembly as per provisions of article 333, if he / she is of the opinion that the community is not well represented in the state assembly. Presiding Officer 

Presiding officer of the state legislative assembly is also known as Speaker who is elected by the members of the assembly.



The members of the assembly also elect Deputy Speaker.

Legislative Process There is hardly anything special with respect to the conduct of the business in state legislatures and it is almost same as that of process in Lok Sabha. Most of the articles are same even in verbatim. Some important points are as follows: 

The state legislature must meet at least twice a year and the interval between the any two sessions of the legislature should not exceed 6 months.



The new session begins with the opening address by the Governor, in which the Governor outlines the policy of the state Government.



This address is then debated and then a resolution is passed for thanks to Governor. During this debate, the opposition parties get opportunity to criticize the policy of the Government.



Every bill except Money Bill can be introduced in either house of the legislature.



The same process as we discussed in Union legislative process is followed and the bill is passed after third reading.



After passing, the bill goes to Governor for assent. Here 4 courses of action arise for the Bill:



The Governor gives assent to bill and it becomes an act



Governor withholds the assent



Governor returns the bill (provided it is NOT a money Bill)



Reserve the bill for consideration of the President

83



The Governor may send a bill back. If the legislature again sends the bill after passing it again, Governor cannot withhold the assent.



However, a Governor may reserve assent for consideration of the President.



Please note that President is NOT bound to give assent even if a bill is passed for second time in the State legislature.

State Legislature and the President 

The Governor may not withhold assent to a Money bill because it is introduced with the prior recommendation of the Governor. However, in case of other bills, when the bill reserved by the Governor and sent to the President, President may give assent or withhold it.



The president can also direct the Governor of the state to send back the bill to the state legislature for reconsideration. The state legislature, in this case will have 6 months for repassing the bill.



And after re-passing, it is NOT sent to the Governor again but sent to the President directly. Still the President is NOT obliged to give assent. However, if President thinks is alright, then may go for advisory jurisdiction of the Supreme Court.

Law making Powers 

State Legislature can make laws on the subjects which are in the state list as well as concurrent list.



However, if its own law on subjects from the concurrent list should not conflict with the Union Laws. If there is a conflict, the law passed by the Union shall prevail.



State Legislature exercises the complete control of the finances and no taxes can be levied or expenditure incurred without the approval of the state legislatures.

84

Chapter 29: STATE JUDICIARY Article 214 to 231 deal with the High Courts in the states and Article 233 to 237 deal with the Subordinate Courts. Every state has a High Court which operates within its territorial jurisdiction. Every High Court is a court of record which has all the powers of such as court including the power to punish for contempt of itself. Neither the Supreme Court nor the High Court can deprive the High Court of its power of punishing for contempt of itself.   

Article 214 says that there shall be a High Court in every state. Article 215 says that each High Court shall be a court of record Article 216 says that every High Court shall have a Chief Justice and other judges who shall be appointed by the President.

Appointments of judges The procedure of appointing the Judges of the High Courts in India is slightly different from the appointment of the Judges of the Supreme Court. As per article 217, the Chief Justice of the high court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state in question. In the appointment of the other judges, the Chief Justice of High Court is also consulted. So, in the appointment of the regular Judge of the High Court, the President seeks consultation with three authorities.   

Chief Justice of India Chief Justice of the High Court Governor of the state

Till 1981, the situation was that the Chief Justice of the High Court used to make recommendation to the Governor. After that the mater used to go to the Centre level and Chief justice of India was consulted. Based upon that either the appointment was made or not made. In 1999, the situation changed after Supreme Court rendered a unanimous opinion on a presidential reference. The decision said that Consultation with CJI means Consultation with plurality of the Judges in the formation of opinion of the CJI. So, normally the CJI consults with 4 regular judges of the Supreme Court. As per article 217-220 

If a Judge of High Court is appointed on a permanent basis, he holds the office until he completes the age of 62 years. (In Supreme Court it is 65 years).

85



The Minimum Qualification prescribed is Indian Citizenship and minimum 10 years of experience either as an advocate of the High Court of India or as a Judicial officer with minimum 10 years experience.



If, an advocate later becomes a Judicial Officer, then, in computing 10 years, the experience as an advocate can be combined with that of a Judicial Officer.

The salaries and other expenses of the judges and maintenance of the state high courts are charged from consolidated fund of the state. The following expenditure shall be expenditure charged on the Consolidated Fund of each State

the emoluments and allowances of the Governor and other expenditure relating to his office;



the salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly and, in the case of a State having a Legislative Council, also of the Chairman and the Deputy Chairman of the Legislative Council;



debt charges for which the State is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt;



expenditure in respect of the salaries and allowances of Judges of any High Court;



any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal;



any other expenditure declared by this Constitution, or by the Legislature of the State by law, to be so charged. However please note that the retired Judges are entitled to a pension which is drawn from consolidated fund of India.

Removal of the judges Article 218 says that certain provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court. 

A Judge of the High Court can be removed from office by impeachment only for proved misbehavior or incapacity and only in the same manner in which a Judge of the Supreme Court is removed.



The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by a two third majority of its members present and voting in each house requesting him to remove the Judge.



Transfer of the Judges is done by the President in consultation with the following



Chief justice of India' whose opinion is formed by senior most judges of the Supreme Court.



Chief Justice of the High court from where transfer is to take place.

86



Chief Justice of the High Court to where the transfer is to take place

Impeachment Process In India Article 124(4) covers the removal of a Judge of the Supreme Court. This article says: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. Similarly Article 217 (1)(b) and 218 cover the removal of the Judge of an High Court. So, the Constitution makes provision for removal of a judge of a Supreme Court on the ground of proven misbehavior or incapacity. A judge may be removed only through a motion in Parliament with a two thirds support in each House. The process is laid down in the Judges (Inquiry) Act, 1968. An impeachment motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha Members. After the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee. This inquiry committee is consisted of 3 members viz. 

A Supreme Court judge,



A High Court Chief Justice,



An eminent jurist.

The Committee frames charges and asks the judge to give a written response. After the inquiry, the committee determines whether the charges are valid or not. It then submits its report. The judge is given chance to examine the witnesses. If the inquiry committee finds that the judge is not guilty, then there is no further action. If the inquiry committee finds the judge guilty, the House of Parliament which initiated the motion may consider continuing with the motion. Please note that such motion can be initiated in any house of the parliament. Then, the motion is debated. During debate, the judge has the right to represent his / her case. After that, the motion is voted upon. If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed. The process is then repeated in the other House. After that, the Houses send an address to the President asking that the judge be removed from office. Jurisdiction of the High Courts

87

There are no detailed definitions and classification in the Constitution of India as far as Jurisdiction of the High Courts in concerned. The High Courts have been given full power to make rules and regulate their Jurisdiction. Apart from the normal original and appellate jurisdiction, the constitution vests 4 additional powers to the High Courts. These are: 

The power to issue writs or orders for the enforcement of Fundamental rights and some other purposes.



Power of superintendence over all other state courts. The High Court exercises the supervision of all the other courts and tribunals in the state.



The power to transfer the cases from other subordinate courts in the state to itself. (A227).



Power to appoint the officers and servants of the High Courts (A-228).



Article 226 makes the High Court's protectors of the Fundamental rights, within their own jurisdictions, in the same way Article 32 makes the Supreme Court ultimate protector of the Supreme Court.

Most of the high courts in India, at the time of Framing the Constitution were functioning in the well defined jurisdictions. The High Court kept enjoying almost all the same powers which they enjoyed immediately before the commencement of Constitution of India. The Constitution of India makes High Court the Court of Record.

88

Chapter 30: UNION TERRITORIES Constitutional Provisions Following are the articles that deal with the administration machinery of the Union Territories. 

Article 239: Administration of Union territories.



Article 239A: Creation of local Legislatures or Council of Ministers or both for certain Union territories.



Article 239AA: Special provisions with respect to Delhi.



Article 239AB: Provisions in case of failure of constitutional machinery.



Article 239B: Power of administrator to promulgate Ordinances during recess of Legislature.



Article 240: Power of President to make regulation for certain Union territories.



Article 241: High Courts for Union territories.



Article 242: This article is repealed.

Administration of Union Territories 

The Union Territories are administered by the President through an administrator, who will be appointed by him with a suitable designation.



The administrators of the Union territories in India are known as Lieutenant Governors, Chief Commissioners or Administrators. In Andaman & Nicobar Islands and Puducherry administrator is called Lt. Governor, while in Chandigarh, Dadra & Nagar Haveli, Daman & Diu and Lakshadweep he/ she is known as Administrator. In Delhi also Lt. Governor is the administrator who is appointed by the President.



The President may appoint a Governor of an adjoining state as administrator of a Union territory. In such case the Governor works independently with regard to the administration of the Union Territory.

Power of Parliament related to UT's 

Parliament of India was empowered to create a legislature or Council of Ministers or both of them for a Union Territory via Constitution (Fourteenth Amendment) Act, 1962. So power to decide the structure of administration in the UT is vested in Parliament. Article 239A was inserted in the constitution by 14th amendment act 1962.



On 16 August 1962, the Treaty of Cession was ratified by the Governments of India and France. Based upon this treaty, the French establishments of Pondicherry, Karikal, Mahe

89

and Yanam became territories of the Indian Union with effect from that date. The Constitution 14th amendment Act provided these territories being specified in the constitution itself as a Union territory called ‘Pondicherry'. 

The name Pondicherry was replaced by Puducherry by Pondicherry (Alteration of name) Act 2006 in October 2006.



As per article 239A, the Parliament by law creates for the UT of Puducherry a Legislature and a Council of Ministers.

Special Provisions related to Delhi 

Article 239AA was inserted in the Constitution by 69th amendment act 1991 of the Constitution of India. This article provides special provisions for the Union Territory of Delhi. After the 69th Amendment Act 1991, w.e.f from February 1, 1992, the UT of Delhi is called National Capital Territory of Delhi.



The administrator of the NCT as appointed by the President of India as per article 239 is known as Lieutenant Governor. Via Article 239AA, a legislative assembly for NCT of Delhi was provided. The power to decide the number of the seats and reservation of the seats was vested in the parliament.



With this, Delhi became a state and the Constitutional provisions with regard to Elections (Article 324-327 and 329) became applicable in NCT. Since then, Delhi has been struggling for a status of full-fledged state of India.

High Courts for Union Territories As per article 241, Parliament of India can constitute a High Court for a Union Territory, or declare any court in any such territory to be a High Court. The parliament can exclude or extend the jurisdiction of a High Court of a state to any Union Territory or part thereof. 

Please note that all Union Territories except Delhi are at present under the jurisdiction of the High Courts of various states.



In Goa, the Judicial Commissioner's Court was given certain powers of a High Court under the provisions of the Goa, Daman and Diu (judicial Commissioner's Court) Regulation, 1963. But it was not a full-fledged High Court. The Judicial Commissioner also did not enjoy those constitutional safeguards which protect the independence of a High Court Judge. Later the jurisdiction of High Court of Judicature at Bombay was extended to the State of Goa and Union territories of Daman and Diu and Court of the Judicial Commissioner was abolished and a permanent bench of High Court of Judicature

90

at Bombay is established at Panaji (Goa) on 30th October, 1982 as per the provisions of The High Court at Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981. 

When Goa became a state of India via the Goa, Daman & Diu Re-organization Act, 1987, High Court of Bombay became the common High Court for the states of Maharashtra and Goa and the Union Territories of Dadra & Nagar Haveli and Daman & Diu from March 1987.



The Jurisdiction of Kolkata High Court extends over Andaman & Nicobar Islands.



The jurisdiction of Punjab and Haryana High Court extends to Chandigarh.



The Jurisdiction of Kerala High Court extends at Lakshadweep and



Jurisdiction of Chennai High Court extends at Pondicherry.

91