INDIAN POLITY

The Constitution of India lays down the framework on which Indian polity is run. It lays down the guidelines for making law. The constitution declares India to be a Sovereign, Socialist, Secular, Democratic, Republic assuring its citizens justice, equality, and liberty. The two words socialist and secular were added in preamble by Constitutional 42^nd Amendment Act, 1976 by Indira Gandhi’s Government during the operation of 3^rd National Emergency imposed on 25^th June 1975 on the ground on “Internal Disturbance”. Constitution was adopted by the Constituent Assembly of India on November 26, 1949 and was enforced with effect from January 26, 1950. It is the longest written constitution of any independent nation in the world, containing 395 articles, 12 schedules and 22 parts for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation. Against the original 395 articles, 8 schedules and 22 parts, today there are 444 articles, 12 schedules and 22 parts. Constitution has been amended more than hundred times. Compared to this constitution of USA contains total 1500 words and just 10 articles.

It establishes the main organs of government – the executive, the legislature and the judiciary. The legislature is to legislate i.e. to make law, Executive to execute the law made by legislature, Judiciary is to ensure that neither the legislature nor the executive to exceed their jurisdiction. Judiciary is more appropriately independent judiciary which is neither subordinate to legislature nor to Executive. Constitution is supreme meaning constitution is superior to all the laws of the country. Every law enacted by the government has to be in conformity with the constitution. Any law in contravention to constitution is null and void. The constitution lays down the national goals of India or the aspirations of the people of INDIA.

       In the hay days of freedom struggle beginning from 1940’s and lasting till 15^th August, 1947 the core issue had shifted from independence to making of the constituent assembly. Constituent assembly was demanded to be formed to act as constitution making body for independent India upon the exodus of Britishers.

          There being enough intelligentsia in then Indian society who unanimously arrived at foremost demand of constituent assembly of elected representatives of Indians. The time saw the rival claims of M.A. Jinnah, Qayide Azam Pakistan, who in unequivocal words demanded not one constituent assembly but two, one for India and one for Pakistan. Britishers at this juncture tried to do all that they could to stop the two nation theory in making but it was all in vain due to the recalcitrant attitude of Jinnah. Two nation theory was for Britishers difficult to conceive and even more complex to implement. If we see the evaluation of Indian Independence we find from 1930’s civil disobedience movement down to Indian Independence Act, 1947, through Cripps Mission 1942, Cabinet Delegation 1946, everywhere the demand of separate constituent assembly for Pakistan was ruthlessly rejected by Britishers.

Constituent Assembly:

In the course of India’s struggle for independence one of the earliest demands for a Constituent Assembly was made in the Nehru Report of 1928.

In 1934 the earlier demand of Constituent Assembly was repeated by the Congress. The Cripp’s proposal of 1942 rejected the Congress proposal. Quit India Resolution (8 August, 1942) said that the provisional government of free India would evolve a scheme of a Constituent Assembly which would prepare a constitution acceptable to all sections of the people.

The constitution was complete and was passed and adopted  by constituent assembly on 26^th  Nov., 1949 but was fully enforced on 26^th January, 1950 to commemorate the historical resolution of Purn Swaraj passed by INC headed by J.L.Nehru across river Ravi on 26^th January, 1930. Under the leadership of J.L.Nehru Tricolour flag was unfurled among jubilations with the shift in the goal of freedom struggle as ‘Purn Swaraj’ or ‘Complete dismemberment from British’ against the previous goal of ‘Dominion Status’. It took constituent assembly 2 years, 11 months and 18 days and the total cost of Rs.6.4 crore to make constitution.

Constitution under went three readings before finally being enforced on 26^th January, 1950.

·                       First reading of constitution was complete in Nov., 1948.

·                       Second reading of constitution was complete on 17^th Nov., 1949.

·                       Third reading of constitution was complete on 26^th Nov., 1949.

·                       Finally constitution was adopted on 26^th Nov., 1949 and was fully enforced on 26^th January, 1950.

·                     Design of National Flag was adopted on 22^nd July, 1947.

·                    National Anthem as Jana, Gana, Mana, Adhinaya Ka   …… Jai Hai, Jai Hai……………The famous song of Gurudev Rabindranath Tagore was adopted on 24^th January, 1950.

·                    B.N. Rai was appointed as the Constitutional Advisor.

·                    The Assembly appointed a drafting committee on 29^th August, 1947. The responsibility of making the constitution was given to the drafting committee under the Chairmanship of Dr. B.R. Ambedkar.

·                    The drafting committee took less than six months to prepare its Draft which was published in Feb. 1948. In all it sat only for 141 days.

·                    After 2 years, 11 months and 18 days the Assembly finally adopted the constitution on Nov. 26, 1949. In all, it held 11 sessions, covering 1965 days out of which 114 days were devoted to consideration of the draft constitution.

·                    On Nov. 26, 1949, the Articles were amended which were related to citizenship, election and interim parliament.

·                    On January 24, 1949 the Constitution was signed and Dr. Rajendra Prasad was appointed President.

·                    On January 26, 1949 the Constitution was passed into an interim Parliament form.

·                    Originally it had 395 Articles, 8 schedules and 22 parts.

·                    At present the Constitution has 444 articles, 12 schedules and 22 parts.

·                    The Indian constitution is the longest written constitution in the world.

Constituent Assembly

·                    For the formation of constituent assembly, the elections were held in Nov. 1946, and then the number of seats was 388, 292 from provincial assemblies and 93 from princely states.

·                    The election of constituent assembly was conducted on the basis of proportionate representation by single transferable vote system.

·                    Seats in each province were distributed among three communities as ‘Sikhs, Muslims and General’.

·                    Constituent assembly of undivided India assembled on 9^th Dec, 1946. It was boycotted by Muslims.

·                    Constituent assembly of India divided assembled on 14^th August 1947 which reassembled on 31^st Oct., 1947 to discuss future line of action.

·                    Dr. Sachindananda Sinha was appointed as President of the constituent assembly but soon he died. So Dr. Rajendra Prasad, the senior most member of constituent assembly, became its President.

·                    Making of the constitution by constitutional assembly commenced from 13^th Dec., 1946.

·                    From 1946 to 1947 the constituent assembly was not a Sovereign body as it could be abolished. During this period its job was drafting of constitution.

·                    From 15^th August, 1947 to 26^th Nov., 1948 Constituent Assembly performed dual function as:

(i)           Drafting of constitution

(ii)         Acted as interim Parliament which was a sovereign body.

·                    From 27^th Nov., 1949 to 21^st March, 1952, constituent assembly performed the only function of provisional parliament. During this period it passed Representation of Peoples Act, 1950; Representation of Peoples Act, 1951; President and Vice President Election Act, 1950. It prepared the electoral rolls also.

Committees of constituent assembly

 

Committee	Chairman
1. The Union Powers Committee	Jawahar Lal Nehru
2.  The Advisory Committee on Minorities and Fundamental Rights.	Sardar Vallabhbhai Patel
3. Provincial Constitution	Sardar Vallabhbhai Patel
4. Union Constitution Committee	Jawahar Lal Nehru
5. Steering Committee	Dr. Rajendra Prasad
6. Drafting Committee	Dr. B.R. Ambedkar
7. Flag Committee	J.B. Kripalani

        Dr. B.R. Amedkar, the chairman of Drafting Committee, is entitled as the Founding Father of Constitution or Chief Architect of Constitution or Modern Manu because Manu is ancient law giver & Bhim Rao Ambedkar is ‘Modern Law giver’. He belonged to lower caste from Maharashtra who fought for the justice of his caste. He led Mahar Movement to embrace Buddhism, a more egalitarian sect as a response to Brahmnical superiority of Hinduism. Beverely Nicholas described him as one among top six brains of India. He reckoned C. Rajagopalaichari as Brain No. 1 of India.

 

Basic Features of Indian Constitution

 

          In the inception of the meetings of Constituent Assembly we wanted to make the constitution of the country in accordance with Gandhian principles. Supporters of independent India's founding father, Mohandas K. Gandhi, backed measures that would form a decentralized polity with strong local government — known as panchayat — in a system known as Panchayati Raj, i.e. rule by Panchayats. However, the view of more modernist leaders such as Jawaharlal Nehru ultimately prevailed leading to the establishment of a parliamentary system of government and a federal system with a strong central government. Nehru boldly rejected the Gandhian ideology as backward & traditional in the contemporary world. Gandhi was averse to democracy & the form of government he aspired was Enlightened Anarchy

          One full part as directive Principal of state policy, part-IV of constitution, reflects the Gandhian welfare measures. The general structure of the Constitution's democratic framework was largely the work of B. N. Rau, a constitutional scholar of international standing.

          Since we borrowed much from the different constitutions, our constitution is branded as the bag of borrowings. The following table gives the various constitutional features borrowed from different constitutions of the world:

 

S. No.	Borrowed From	Constitutional Feature
1.	Government of India Act, 1935	Federal Scheme Parliamentary system of Government Office of Governor Power of Federal Judiciary Emergency Provisions
2.	Constitution of Britain	Rule of Law Law Making
3.	Constitution of USA	Federalism Independent Judiciary Judicial Review Indirect election of President Fundamental Rights Removal of Supreme Court and High Court Judges
4.	Constitution of Ireland	Director Principles of State Policy. Method of Presidential Election Nomination of Members of Rajya Sabha. Preamble
5.	Constitution of Canada	Federation with strong center. Residuary powers with center.
6.	Constitution of Australia	Concurrent List
7.	Weimer Constitution (Adolph Hitler had made Constitution at Weimer in Germany)	Suspension of Fundamental Rights during Emergency.
8.	Constitution of South Africa	Amendment
9.	Constitution of Japan	Principles of Procedures on which Supreme Court of India works.
10.	Constitution of USSR	Fundamental Duties.

 

FEATURES OF CONSTITUTION

 

Federal Features

 

The Indian Polity has many federal features along with many unitary features as well. This is the reason why critics criticize our system as “Federation with Quasi Unitary Features” or even call it “Unitary state with Quasi Federal Features”.  The main federal features of the Indian Polity are:

 

Written and Rigid Constitution: The Indian Constitution is a written document containing 444 Articles and 12 Schedules divided into 22 parts and therefore fulfills this basic requirement of a federal government. In fact, the Indian constitution is the most elaborate constitution of the world.  

The Indian Constitution is largely a rigid constitution. All the provisions of the Constitution concerning Union States relations can be amended only be the joint actions of the state legislatures and the Union Parliament.  

 

Supremacy of the Constitution:  The Constitution is the supreme. Law of the land and the laws passed by the Union or the state governments must conform to the Constitution.

 

Federal Separation of Powers: The division of power between the Union and the States is forever. The division of power is not done by way of devolution or delegation.  The Seventh Schedule contains three Legislative lists which enumerate subjects of administration viz., Union, State and Concurrent Legislative list. The union List includes 97 items, including residuary powers, over which the Union has exclusive jurisdiction to legislate.  The State List comprises 66 items over which the state has exclusive jurisdiction to legislate. Both the center government and the state government have got power to legislate on concurrent list subjects.

 

Independent Judiciary:  The Constitution has provided for Supreme Court and every effort has been made to see that the judiciary in India is independent and supreme. It is neither subordinate to legislature nor is it subordinate to executive. The Supreme Court of India can declare a law unconstitutional or ultra vires, if it contravenes any provision of the Constitution.

 

Bicameral Legislature: A bicameral system is considered essential in a federation because it is in the Upper House alone that the Units can be given equal representation. The Constitutions of India provides for a bicameral legislature at the centre consisting of Lok Sabha and Rajay Sabha.

 

Non-Federal or Unitary Features

         The farmers of the Constitution have modified the true nature of Indian federalism by incorporating certain non-federal features in the constitution as well.

Following are the unitary features of Indian federation:

Non-Contractual Formation: A typical federation is formed as a result of contract. Contract, technically, is based on proposal and acceptance. Acceptance has to be voluntary and of free will. In this direction Indian Union is made as result of all the states having signed the “Instrument of Accession”, the contract document. But signing of Instrument of Accession way back in 1947 was not optional rather was compulsory in nature. So India preferred the word ‘Union” instead of ‘Federation’.

 

Destructible states: A typical federation like USA is basically ‘Indestructible Union of Indestructible states’. That is the union once formed is forever and also the states once formed are indestructible. USA has got 50 states from the times of its making till date. Compared to this our’s is ‘indestructible union of destructible states’. It is in the sprint of reorganizing India on linguistic basis in accordance with State Reorganization Act, 1956 that we kept the provision of destructible states. Owing to great heterogeneity, Indian states were not properly organized in 1947. So constitution makers promised the people of India to reorganize India later on the basis of culture with language as the main index.

 

Very Strong Centre: Though the union Government is also   a government of limited and enumerated powers, it has under certain circumstances power even over the state governments and has the residuary powers over the whole territory.

 

Single Citizenship: The Indian constitution, like the Canadian Constitution, does not introduce any double citizenship, but single citizenship. viz.,the citizenship of India under Article 5 of constitution. Birth or residence in particular state does not confer any separate status as a citizen of that state. 

                                        

Single Constitution for Union and States: The Indian Con­stitution embodies not only the Constitution of the Union, but also those of the states. Furthermore, the states of the Indian Union have a uniform constitution except the state of J & K which has got separate constitution of its own.

 

Common All-India Services: The majority of public servants are employed by States but they administer both the Union and the state laws as are applicable to their respective states by which they are employed. Our Constitution provides for the creation of All-India services, but they are to be common to the Union and the States (Articles 312).

 

Unitary in Emergency: The Indian Constitution is designed to work as a federal government in normal times, but as a unitary government in times of emergency. The effect of declaration of emergency is that administration of the state is taken over by the centre, which is highly anti-federal feature.

 

Single Judiciary: In India the system of courts, headed by the Supreme Court, administers both the Union and state laws.

 

Centralized Electoral Machinery: The Election Commission, a body appointed by President, is in charge of conducting elec­tions not only to the Parliament rather to other elective offices of the Union & the states. The machinery for election, accounts and audit is also similarly integrated.

 

Co-operative Arrangements: The Constitution of India empowers the Union to entrust its executive functions to a state, by its consent (Article 258), and a state to entrust its executive functions to the Union (Article 258 A).

 

Union Control in Normal Times:

          Certain laws passed by the' state legislature cannot come into operation unless they have been approved by the President of India. Moreover, the Gov­ernor of states has got the right to reserve any Bill passed by the state Legislature for the consideration of the President.

          Even apart from emergencies, the Union Parliament may as­sume legislative powers over any subject included in the State List, if the Council of States (second Chamber of the Union Parliament or Rajya Sabha) resolves, by a two thirds vote, that such legislation is necessary in the national interest (Article 249).

Union can issue direction, to the state Government to ensure due compliance with the legislative and administrative action of the Union (Article 256-257), and to supersede a state government which refuses to comply with such direction (Article 365).

The President can take the administration of the state and can take all legislative and executive powers if he is at any time, satisfied that the administration of the state cannot be carried on in the normal manner in accordance with the provision of the constitution owing to political or other reasons (Article 356).

  

 Preamble

          WE, THE PEOPLE OF INDIA, have solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC, REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all FRTERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

          IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

          The preamble is not a part of the Constitution of India as is not enforceable in a court of law. However, the Supreme Court as, in the case of Kesavananda Bharati vs. The State of Kerala, 1972 recognized that the Preamble is a part of the Constitution and may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there is an ambiguity in the article itself and should not be treated as a rights bestowing part of the Constitution.

        The original drafting used the word "SOVEREIGN DEMOCRATIC REPUBLIC. The two additional words "SOCIALIST" and SECULAR” were introduced by the controversial 42nd Amendment Act, 1976 by Indira Gandhi's Government. The amendment was made during the operation of 3^rd & last national emergency. This national emergency was imposed on the grounds of internal disturbance on 25^th June, 1975. It is said Sardar Swaran Singh committee in its report said the election in which Indira Gandhi stood victorious should be declared void as it made use of Government machinery.

The importance of the Preamble

         The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The first words of the Preamble - “We, the people”- signify that power is ultimately vested in the hands of the people of India.

The five integral words of Preamble are explained as:

1)      Sovereign

          The word sovereignty means internally the state of India is supreme and independent. It has got utmost control over all of its subjects. Externally it is free from the control of any imperialistic power. Imperialism means expansion of ones political control beyond its natural frontier. The country over which imperial country exercises its power primarily for the extraction of raw material is called a colony.

 

2)      Socialist

         The word socialist was added to the Preamble by the controversial 42^nd Amendment Act, 1976. 42^nd Amendment Act, 1976 is also entitled as Mini-revision of the constitution as it changed nearly 53 articles, seventh schedule of the constitution, preamble & also introduced certain undemocratic features. Father of socialism is Karl Marx of Germany. He wrote many famous books. The Communist Manifesto is his magnum opus book which he co-authored with Fredrich Engel. Fredrich Engel, son of an industrialist, sponsored all his projects. Karl Marx spent his entire life in poverty & misery. He was so poor that he lost many of his children as he could not feed them. ‘Poverty of Philosophy’, another famous book of Karl Marx traces its origin in his poverty & misery. Marx got impoverished day by day owing to his radicalism.   He was a keen student of history who gave the stages of history as Primitive, Ancient, Asiatic, Feudal, Capitalist, Communist, and Socialist. Communist and Socialist Societies were anticipated by him only. He was living in capitalist society, the stage of society wherein people were divided into bourgeoisie (petty industrialist) & proletariat. Bourgeoisie sucked the blood of proletariat. Proletariat was required-to work hard, he got no weekly off, and he was required to work for eighteen hours a day on meager wages. Karl Marx raised his slogan as "workers of the world unite". He anticipated that tomorrow the workers will get united & they will organize a revolution against bourgeoisie. They will overthrow bourgeoisie & will establish communist society, an egalitarian society. In this society institution of private property will wither away. It will follow the next stage of egalitarian society as Socialist society wherein the institution of private property will wither away. Institution of family as well as State will wither away.

          Socialism basically implies egalitarianism, social and economic equality. Social equality in this context means the absence of discrimination on the grounds of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. Socialism also implies a welfare state, the state wherein the basics of life are provided free of cost.   

          42^nd Amendment Act in the wake of growing apprehensions in the minds of people of India rendered the explanation as:  "Ours is not some 'ism’, neither ‘socialism’ nor ‘communism’. Our’s is a welfare state, Our’s is a ‘mixed economy’. Our’s is a socialistic pattern.

         India has adopted a mixed economy wherein both the public & private sector operates together.

3)      Secular

          The word secular was inserted into the Preamble by the 42" Amendment Act, 1976. It implies equality of all coupled with religious tolerance for the great religious diversity of nation. India has got no official state religion. Every person has the right to preach, practice and propagate any religion they choose in accordance with Article 25 of Constitution. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. The Supreme Court in S.R Bombay v. Union of India case held that secularism was an integral part of basic structure or the constitution.

          India & Nepal are the only secular countries in Indian subcontinent. Indian subcontinent is made up of India, Pakistan, Nepal, Bhutan & Bangladesh only.

·         India is a Secular, Democratic, Republic.

·         Pakistan is Islamic republic.

·         Bangladesh is Islamic republic.

·         Nepal earlier was Hindu monarchy & now has turned a         secular republic.

·         Bhutan is Buddhist monarchy & now a democracy.

 4)  Democratic         

     Democracy means government of the people, government for the people & government by the people as per the famous definition given by Abraham Lincoln, the former President of USA who was primarily responsible for the abolition of slavery in America. Democracy is the rule of majority. It is of two types as direct democracy & indirect democracy also called as representative form of government. The whole of the electorate votes on a bill in case of direct democracy but in case of indirect democracy representatives of people only vote on bills.

              India is a democracy. The people of India elect their governments at all levels, Union, State and local by a system of universal adult franchise popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

 

3)  Republic

              Republic means head of the state is not some hereditary ruler rather is some elected head for a fixed tenure. Head of the state of India is President who is elected by proportionate representation by single transferable vote system. As opposed to a republic, monarchy is the form of government wherein the head of state is appointed on hereditary basis for a lifetime or until he abdicates the throne. The President of India is elected by an electoral college consisting of elected members of Lok Sabha, Rajya  Sabha & of state legislative assemblies for a term of five years. The Post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.

 

Amendment of the Preamble

·                    By section 2 of the Constitution (42nd Amendment) Act,        1976, two amendments were made in the Preamble. First, in place of the words 'Sovereign, Democratic, Republic', the words 'Sover­eign Socialist Secular, Democratic Republic' were substituted and secondly instead of 'Unity of the Nation,' the words 'Unity and Integrity of the Nation' were substituted.

·                    The Preamble being a part of the Constitution is open to amendment in the exercise of Parliament's Constitutional pow­er under Article 368 subject to the limitation that it should not amount to the amendment of the extent the basic structure or framework of the Constitution. The amendments made by the 42nd amendment in the preamble have been held to be valid. Those amendments are not only within the framework of the Constitu­tion but they gave vitality to its philosophy, they afford strength and secure to its foundations.

·                    The Preamble to the Indian Constitution is based on the Objec­tive Resolution presented by Jawaharlal Nehru and adopted by the Constituent Assembly.

·                    The Preamble embodies the Objectives and ideals of the Con­stitution,                     

·                    The opening and the closing words of the Preamble “We, the people of India, adopt, enact and give to ourselves this Constitution" conveys that the Constitution emanated from the people and the sovereignty under the Constitution is vested in the people of India.

·                    The Preamble is not enforceable in a court of law. In this con­text in 'The Berubari Case, the Supreme Court held that the Preamble was not part of the Constitution, but later, in the Keshavananda Bharati Case, it declared, it was a part of the Con­stitution.             

·                    The Preamble aids the legal interpretation of the Constitution where the language may be ambiguous.

·                    The Preamble represents the entire Constitution in its written words and enables one to understand the Constitution.

·                    The words 'socialist', 'secular' and 'integrity' were added to the Preamble by the 42nd Amendment, 1976.

·                    In the Berubari Case, Supreme Court agreed that the Preamble was the key to the minds of the framers of the Constitution.

·                    Any provision of the Constitution could be amended under Ar­ticle 368 only within the broad contours of the Preamble and of the Constitution.

·                    On 26 November, 1949 the people of India in the Constituent Assembly adopted, enacted and gave to themselves the Constitution of the Sovereign, Democratic, Republic of India.

·                    On 26 January, 1950 India was declared a 'republic' which means that the head of the state to be elected head & not a hereditary ruler.

·                    According to the Preamble of the Constitution, it was to constitute India into a “Sovereign, Socialist, Secular, Demo- cratic, Republic”.

·                    The term ‘Sovereignty’ used in the constitution means that the  people of India are not subordinate to any external  authority and also what is  sought to be established is the oneness of the people of India and that the Sovereignty vests in the collectivity.

·                    According to the Preamble  the constitution must strive to obtain and guarantee to the people justice based upon social, economic and political equality, equality of opportunity  and equality before law, freedom of thought, expression, belief faith, worship, vocation, association, action and unity and integrity of individual  and the nation.

 

Scope and Significance

·                    The Preamble states the objectives which the constitution seeks to establish and promote. It aids the legal interpretation of the constitution where the language may be ambiguous.

·                    Though the Permeable is not enforceable in a court of law and, generally not considered a part of the constitution. It provides a key to the understanding and interpretation of the Constitution it has, therefore, been described as the soul of the constitution. In cases of doubt, the Supreme Courthas referred to the Preamble to elucidate vague aspects of the Constitution in this context. In the Berubari Case, the Supreme Courtheld that the Preamble was not part of the Constitution, but latter in the Kesavananda Bharati case, it declared it was a part of the Constitution.

 

PARTS OF CONSTITUTION

Part	Articles	Details
Part 1	1-4	Union and its Territory
Part II	5-11	Citizenship.
Part III	12-35	Fundamental Rights.
	14-18	Right to Equality
	19-22	Right to freedom
	23-24	Right to Freedom of Religion
	29-30	Cultural and Educational rights
	31	Right to Property (Repealed)
	32-35	Right to Constitutional Remedies.
Part  IV	36-51	Directive Principles of State Policy.
Part IV (A)	51A	Fundamental Duties.
Part V	52-151	Government of Union.
Chapter I	52-78	The Executive.
·	52-73	President and Vice-President
·	74-75	Council of Ministers
·	76	Attorney General of India
·	77-78	Conduct of Government Business
Chapter II	79-122	Parliament.
	79-88	Constitution  of Parliament
	89-98	Officers of Parliament
	99-100	Conduct of Business
	101-104	Disqualification of members
	105-106	Powers, privileges and Immunities of Parliament and its Members.
	107-111	Legislative Procedure
	118-122	Procedure Generally
Chapter III	123	Legislative Powers of the President
	123	Power of President to promulgate Ordinances during recess of Parliament.
Chapter IV	124-147	The Union Judiciary
	124-147	Establishment and Constitution of the Supreme Court.
Chapter V	148-151	Comptroller and Auditor-General of India.
	148-151	Duties and powers of comptroller and Auditor General
Part VI	152-237	Government of the States
Chapter-I	152	Definition of a state.
Chapter –II	153-167	The Executive.
	153-162	The Governor.
	163-164	The Council of Ministers.
	165	Advocate-General for the state.
	166-167	Conduct of Government Business.
Chapter-III	168-212	The State Legislature
	168-177	General
	178-187	Officers of the State Legislature
	188-189	Conduct of Business
	190 -193	Disqualification of members
	194-195	Powers, Privileges and Immunity of Parliament and of its Members.
	196-201	Legislative Procedure
	202-207	Procedure in Financial Matters
	208-212	Procedure Generally
	213	Power of governor to promulgate Ordinances during recess of Assembly of state.
Chapter V	214-231	The High Courts in the States.
Chapter VI	233-237	Subordinate Courts
Part VII	238	States in the part B of the first schedule. Article 238 Repealed These part B states are replaced by the Constitutional Seventh Amendment Act, 1956.
Part VIII	239-242	Union Territories
	239-242	Administration, creation of Council of  Ministers and High Courts
Part IX	243	Panchayat System.
	243-243O	Gram Sabha and Panchayat  System
Part IXA	243P-243ZG	Municipalities
Part X	244-244ZG	Scheduled and Tribal Areas
	244-244A	Administration, creation of Council of Ministers and legislatures.
Part XI	245-263	Relations between the Union and the States.
Chapter I	245-255	Distribution of the Legislative powers
Chapter II	256-263	Administrative Relations
·	256-61	General
·	262	Disputes relating to waters.
·	263	Co-ordination between States
Part XII	264-300
Chapter I	264-91	Finance
·	264-267	General
	268-281	Revenue Distribution between the Union and the States
	282-291	Miscellaneous Financial Provisions
Chapter-II	292-293	Borrowings by states
Chapter III	294-300	Property, Contracts, Right, Liabilities, Obligations and Suits
	294-300	Succession to property assets, liabilities and obligations.
Chapter-IV	300A	Right to Property
	300A	Persons not to be deprived of property save by the authority of law.
Part XIII	301-307	Trade and Commerce within  the territory of India
·	301-305	Freedom of Trade and Commerce, and the power of Parliament and States to impose restrictions on the same
·	306	Repealed & Replaced by the Constitutional Seventh  Amendment Act, 1956
·	306	Repealed & Replaced by the Constitution Seventh Amendment Act, 1956
·	307	Appointment of Authority
Part XIV	308-323	Services Under the Union and the States
Chapter 1	308-314	Services
·	308-313	Services
·	314	Repealed & replaced by the Constitutional Twenty-eighthn Amendment Act, 1972
Chapter II	315-323	Public Service Commissions
Part XIVA	323A- 323B	Tribunals
Part XV	324-329	Elections
	329A	Repealed & Replaced by the Constitutional Forty –Fourth Amendment Act, 1978
Part XVI	330-342	Special Provisions Relating to Certain Classes.
Part XVII	343-351	Official Language
Chapter I	343-344	Official Language of the Union.
Chapter II	345-347	Language of the State
Chapter III	348-349	Language of the Supreme Court, High Courts,
Chapter IV	350-351	Special Directives
·	350	Language to be used in representations for redress of grievances.
·	350A	Facilities for instruction in mother-tongue at primary stage
·	350 B	Provision for Special Officer for linguistic minorities
·	351	Directive for development of the Hindi language.
Part X VIII	352-339	Emergency Provisions
·	359 A	Repealed
·	360	Financial Emergency.
Part XIX	361-361A	Miscellaneous
·	362	Repealed and Replaced by the Constitution Twenty-sixth Amendment Act, 1971.
·	363-367	Miscellaneous.
Part XX	368	Amendment of the Constitution.
Part XXI	369- 378A	Temporary, Transitional and Special Provisions
·	379-391	Repealed  and replaced by the Constitutional Twenty-sixth Amendment Act, 1971
·	392	Miscellaneous Powers of President
Part XXII	393-395	Short title, date of commencement, Authoritative text in Hindi and repeals.

12 Schedules of Indian Constitution

           Schedules are the table or the appendices given at the end of the constitution. There were eight schedules in the original constitution. Today we have total twelve schedules in Indian constitution. Schedules could be added to the constitution by amendment. The twelve schedules in force are as:

Schedule	Details
1st	List of states and union Territories
2nd	Salaries & allowances of President, Governor, CJI (Chief Justice of India), Chief Election Commissioner  (CEC),  Supreme Court& High Court Judges, Comptroller  & Auditor  General (GAG).
3rd	Forms of Oaths of affirmation.
4th	Allocation of the number of seats in the Rajya Sabha to different states or union Territories.
5th	Administration  of Scheduled Areas
6th	Administration of tribal areas in Assam, Meghalaya, Tripura & Mizoram.
7th	Federal Separation of Power enumerating legislative lists as Union List, State list and Concurrent List.
8th	The Official Languages.
9th	Article 31-B, Validity excluded from Court’s Review (e.g. land and tenure reforms; the association of Sikkim with India )
Old 10th	Sikkim as Associate State of India.
10th	New 10th schedule deals with Anti-Defection Act.
11th	Local Bodies at rural level i.e. Panchyats
12th	Local Bodies at Urban level i.e. Municipalities.

 

There were eight schedules only in the original constitution & the remaining schedules were added later on as:

9^th schedule  added in 1951 by inserted Article 31B.

Article 31B says laws enumerated in 9^th schedule cannot be declared void, on the grounds of contravention of fundamental rights.

·         10^th schedule (old) added by 35^th Amendment Act, 1974 made Sikkim as   Associate state of India.

·         New 10^th Schedule added by 52^nd Amendment Act, 1985 inserted – Anti-Defection Law, 1985.

·         11^th schedule was added by 73^rd Amendment Act, 1992 dealt with Panchayats in rural area.  It is also given in part 9^th of the Constitution.

·         12^th schedule added by 74^th Amendment Act, 1992 dealt with Municipalities in Urban Area. It is given in part 9A of the constitution.

 

Old 10^th Schedule: Sikkim as Associate State. 

During British days Sikkim was Indian State under hereditary monarch called Chogyal. Sikkim at the time of Independence did not join Indian union as a full-fledged state. It remained Protectorate of India and use to send its two representatives to Indian Parliament who had only right to speak but no right to vote. In 1974 Sikkimese National Congress passed a resolution and Sikkim Joined as Associate State of India under newly made Article 2A and 10^th schedule of India by 35^th Amendment Act 1974.  India was criticized for this move as there was nothing as associate State given in the Indian constitution. Chogyal, the political head of Sikkim also protested against this move and highlighted this issue at world level.

          In the wake of this opposition, Sikkimese National congress, next year in 1975 passed another resolution and Sikkim joined as a full-fledged, 22^nd, state of Indian Union under constitutional 36^th Amendment Act, 1975. Old 10^th schedule & Article 2A of Indian Constitution were scrapped off and Article-371F has been inserted to make some special provisions relating in the administration of Sikkim.

 

Some Important Date in the evolution of Constitution of India:

·         9^th December, 1946. It is the date of Constituent Assembly of undivided India but without Muslims. Muslims boycotted it.         

·         14^th August, 1947: It is the date of constituent Assembly of India divided  which reassembled  on 31^st October 1947

·         Her Majesty’s Statement, Feb. 20, 1947: It fixed June, 1948 as the date of Indian independence.

·         June  3^rd, 1947 Known as Mount Batten Plan

It was an election arrangement in Bengal & Punjab the provinces having mixed population of Hindus and Muslims, the provinces having both the Hindu majority areas and Muslim majority areas. Both the Muslim langue and congress had rival claims on Punjab and Bengal. Mount Batten Plan was suggested by Lord Mount Batten the last governor General of British India and the first governor General of Independent India.

          The plan suggested conducting election in Punjab and Bengal to know:

1.   Whether there should be two constituent assemblies, one for India and one for Pakistan?

2.    Whether Punjab and Bengal be so divided that absolute Hindu majority areas be given to India and absolute. Muslim majority areas to be given the Pakistan?

          The   election results as per Mount Batten plan answered both the questions in affirmative. So in accordance with this plan, East Bengal & West Punjab were given to Pakistan & West Bengal & East Punjab to India.

 

          July 18, 1947: Bill of Indian Independence was passed by the Crown.

          26^th November, 1949: Constitutional draft was signed and passed by the members.

          26^th Jan 1950: Constitution was fully enforced on this day.

 

Part 1^st of the Constitution: Union and its Territory

Article 1-4

Union of India consists of only the states with which union shares power as per constitutional provisions.

Territory of India: Includes the entire territory over which the sovereignty of India extends.

Territory of India = Territories of States + Union territories + Such other territories as may be acquired form time to time.

Article 1: Of Indian Constitution says India that is Bharat shall be in the union of states……………...

Article 1 says the name of our country politically or technically, is either India or Bharat. The word Hindustan finds no mention because the word ‘Hindu’ was basically mispronunciation of word Hindu by Arabic people who always defined it only in religious parameters. So constitution makers discarded the word Hindustan as the technical name of country in present times. The word India is derived after the word Indus, the first civilization of India, and both these words India & Indus are given by British Archaeologist, Sir John Marshall.

          ‘Bharat’ is the alternative name of the country derieved after the name of Brave child Bhart, the son of Dushyant and Shakuntula, who was found living with a lion.

          The word ‘Union’, here in Article 1 is basically aimed at avoiding the word ‘Federation’ whose general essence lies in contractual formation. A federation is based upon a Contract which is further based on

(i)           Proposal

(ii)           Voluntary Acceptance

          A contract is always voluntarily entered upon with free will. Though Indian Union is formed as a result of a contract named as ‘Instrument of Accession’, the signing of this was made compulsory for each state and was in no way optional in nature. A typical federation in the world is USA which conceptually is “Indestructible union of indestructible states”. Against this Indian Union is “Indestructible union of destructible parts.”

          The provision of destructible parts prevails owing to the chaotic conditions of the making of Indian constitution. In 1947 the society of India was highly promiscuous and the constitution makers could not evolve out criteria on the basis of which India was to be organized. So they promised that later on we will reorganize India on the basis of some viable considerations. This was later on visualized by State Reorganization Act, 1956 or The Seventh Amendment Act, 1956 which reorganized India on linguistic basis.

 

Article 3: The constitution empowers the parliament to establish new state/s under Article 3.

Article 3 says: Parliament may by law:

a)    Form a new state by separation of territory from any state or by uniting two or more states  or parts of states or by uniting any territory to a part of any state

b)    Increase the area of any state

c)     Diminish the area of any State

d)    Alter the boundaries of any state.

e)    Alter the name of any Sate.

PART-2: CITIZENSHIP – ARTICLE 5-11

The Constitution of India provides for a single and uniform citizenship for whole of India. Every citizen has right to one vote based upon universal adult suffrage.

 Universal Adult Suffrage means:           

·   Every adult of 18 years and above has right to one vote.

·    Abolition of communal representation.

·    No restriction on the grounds of sex property and taxation 

·    No reservation of seats except for scheduled caste and scheduled tribe and for Anglo Indians.

 

Details of the: Part 2^nd: Article 5 -11: Citizenship

Article	Details
Article 5	Introduction of Citizenship
Article 6	The citizenship of People of India migrated to Pakistan
Article 7	The citizenship of People of Pakistan  migrated  to India
Article 8	Citizenship by Registration
Article 9	Ceasation of Indian citizenship
Article 10 & Article 11	Parliament to make laws with respect to citizenship from time to time

 

Domicile is one’s legally recognized, permanent place of residence.

          Citizen is the individual enjoying all the rights available under constitution or enactment of legislation. Against this an alien citizen does not enjoy all the rights. Certain rights are available to citizens only as e.g.:

1.           Right under Article 15 & Article 16 i.e. prohibition on the basis of caste, race, sex, age, religion and the place of Birth.

2.           Right to Freedom under Article 19 providing six types of freedoms.

3.           Article 29-30 Cultural & educational Rights of Minorities. 

4.           Article 326: Right of universal adult franchise

5.           Only citizens are eligible for the office of President, Vice President, Governor, Judges of High Court & Chief Election Commissioner, Chairman & members of UPSC, MPs, Chief Minister, MLA 

6.           Only citizens have duty and allegiance towards the country & only citizens could be complied with military services.   

Parliament has enacted Indian Citizenship Act, 1955 which was amended in 1986 and gives five modes of getting Indian citizenship as:

(a)          Citizenship by Birth: Every person born in India on or after 26^th January, 1950 one of whose parents (at least) is an Indian, shall be citizen of India by birth.

(b)          Citizenship by Descent: If a person was born outside undivided India on or after January 26, 1950 and either of his parents is a citizen of Indian at the time of his birth, he shall be deemed to be a citizen of Indian.

(c)          Citizenship by Registration: Several classes of persons can acquire Indian citizenship by registering themselves to the prescribed authority. The categories are as follows:

·        A person of Indian origin who has been residing in India for five years immediately before making the application for registration.

·        A person married to a citizen of India.

·        A person of Indian origin residing outside the country.

·        Minor children of Indian citizen parents.

·        Citizens of Commonwealth Countries.

(d)          Citizenship by Naturalization: A foreigner can acquire Indian citizenship on application provided he fulfills the following conditions:

·         He should belong to country where Indians are granted citizenship.

·         He should have renounced the citizenship of his country and sent necessary intimation to the Indian Government.

·         He should be living in India or serving the Government of India for at least ten years preceding the date of application.

·         He should have a good moral character and working knowledge of an Indian language. 

(e)          Citizenship by incorporation of territory: If any new territory becomes a part of India, the Government of India shall specify the person of that territory who shall be the citizen of India.

          The provisions relating to acquired territory are given in Article 366 & are to be treated as Union Territory.

Various grounds of the loss of Indian citizenship in accordance with Indian citizenship Act, 1955:

1. By Renunciation: A person voluntarily gives up the citizenship after having acquired the citizenship of any other country.
2. By Termination: The government of India terminates the citizenship of a person upon his acquiring the citizenship of any other country.
3. By Deprivation: A person is deprived of citizenship if he has acquired it by fraud or some disloyal practice.

Part 3^rd Fundamental Rights – Article 12-35

The rights given under part 3^rd of constitution are entitled as Fundamental Rights as they are fundamental to the survival of human beings. A dignified human life is not possible without these. They are also fundamental in a sense that upon the violation or infringement of these, an appeal goes directly to Supreme Court under Article 32 which is not the case with other ordinary legal rights. The enforcement of ordinary legal rights, unlike fundamental rights, need to follow the hierarchy of legal courts in India which makes the process of dispensation of justice difficult.

          The remedy for infringement of one’s fundamental rights is inbuilt in part 3rd of constitution under Article 32 entitled as right to constitutional remedies. B.R. Ambedkar called right to constitutional remedies as the soul of constitution.

          The fundamental rights (Article 12-35) embodied in Part III of the Constitution, guarantees to each citizen basic substantive and procedural protection against the state. These are fundamental in the sense that they have been incorporated as the fundamental law of our land, which are justicible, enforceable by the courts and are available to all citizens. The Constitution classified the rights under six heads. Originally there were seven rights. Right to property has been deleted by the 44^th Amendment Act, 1977.

Fundamental Rights are as:

Sr. No.	Fundamental Right	Article
1.	Right to Equality	14-18
2.	Right to Freedom	19-22
3.	Right against exploitation	23-24
4.	Freedom of Religion	25-28
5.	Cultural and Educational Rights	29-30
6.	Right to Property	31
7.	Right to constitutional remedy	32

 

Detailed discussion on fundamental rights: Article 12-35

Article 12: Gives the definition of state

Article 13: It puts prohibition upon state to make any law which is in contradiction to the rights given in part 3rdof the constitution. Any such law made by the state shall be null and void. Null and void means zero Abinitio i.e. as if nothing has happened.

1. Fundamental rights to equality (Article 14-18)

          Article 14: To secure equality before law and equal protection of laws to which only President and governors are exceptions. The expression equality before law implies absence of any special privilege in favour of any person. The second expression equal protection of laws means that the same law shall apply to all who are similarly situated.

Article 15: Prohibition of discrimination on the grounds of religion, race caste, sex, place of birth

Exceptions to Article 15 are:

·                     Special provisions for Women, SC & ST could be made.

·                     Certain jobs could be reserved on the basis of sex e.g. Women as Air Hostess due to being biologically docile and charming, or e.g. Men in armed forces due to higher marital talent compared to women. Or e.g. Woman is not to be considered as abettor (helper) in an offence of adultery. She is not to be punished in accordance with Indian Penal Code.

Article 16: Equality of opportunities in public employment. However, special measures could be taken for the development of women, children and weaker sections of society.

Exceptions to Article 16

·                    Article 16 (3) Residence within a state or U.T. could be a necessary qualification for the employment under any state or any union territory or under any other authority.

·                    The origin of this goes to pre-independence period when the Nizam of Hyderabad passed an order providing reservation to Telgu people in class III and class IV jobs of public services.

·                    Reservation for backward classes in any state could be laid down.

·                  In a famous case of Indira Sawhney v. Union of India 1993, SC also known as Mandal case, Supreme CourtLimited the quota of the reservation for the backward classes as total 50%. It also directed the government to identify the creamy layer from OBC and the benefits of reservation not to be given to this layer. It further declared the reservation of SC and ST in promotions as unconstitutional and void.

Article 16(4) added by 77^th Amendment Act, 1995 says parliament by law can provide reservation to SC and ST in promotion if the state is of opinion that SC & ST are not adequately represented under the services of the state. Article 16 (4) (c) added by 81^st Amendment Act, 2000 says that state can carry over the unfulfilled vacancies of SC & STs to successive years and in the process if reservation exceeds 50% limit it will be void.

Article 16 (5) says offices connected to religious institutions could be reserved for the members of that community. Certain temples are overtaken by Government and here in government is bound to appoint the priest as Hindu only.

Article 17: Prohibition of Untouchability

          It says the practice of untouchability in any form is an offence punishable in accordance with law. The law concerned with this provision is Protection of Civil Rights Act, 1955 which says certain acts on the grounds of untouchability are prohibited as e.g:

·         Refusing a person admission in public institution as hospitals, colleges, offices on the grounds of untouchability.

·         Refusing a person from offering prayers on the basis of untouchability.

·         Imposing disability in access to shops, water, roads

·         Insulting a member of SC.

·         Preaching and justifying untouchability.

Article 18: Abolition of Titles: Title is something attached to persons name indicating rank or distinction e.g. British titles of days of dependent India as Rai Bahadur, Jang Bahadur, Vir Bahadur conferred on Indians.

Herein it is worth of mention that:

• No title is to be conferred by state.
• No Indian citizen is to accept any such title from a foreign state – Article 18 (2)
•  State is free to confer military or academic distinctions.
• Public institutions like universities etc. are free to confer title and honour public men or meritorious men.
• State is free to confer distinctions or awards e.g. Bharat Ratna, Padma Vibhushan, Padma Bushan and Padma Shree
• Issuance of awards to foreigners is allowed as awards are provided for distinctions in public services.

2. Right to Freedom: Article 19-22

Article 19: It guarantees six types of freedom given underneath:

1.                  Freedom of speech & expression

2.                  Freedom of peaceful assembly

3.                  Freedom of Association

4.                  Freedom of Movement

5.                  Freedom of Residence

6.                  Freedom of profession, occupation, trade or business.

• Freedom of Press is included in freedom of speech and expression
• Right to freedom under Article 19 gets suo-motto suspended during the operation of National emergency. Right to Freedom is not an absolute right. It is subject to suspension.

RIGHT TO INFORMATION ACT

     On Oct. 12, 2005 right to information was made a constitutional Act with the hope of an era of better, more transparent, accountable and responsive governance. It marks a significant shift for Indian democracy with greater access of citizens to information and the greater responsiveness of the Government to the society. 

·         In one stroke the country has been freed from Official Secrets Act, 1923 which made divulging official information an offence.

·         Right to information is a corollary of the Fundamental Right of Freedom of Speech and Expression under Article 19(1) (a). It implies that a citizen in order to express his opinion freely must have access to information.

·         We will have a strong and independent information commission to be set up at the centre on the pattern of central vigilance commission.

·         The information commission at the time of disposal of case awards a fine to an official as Rs. 250 per day (maximum of Rs. 25,000) if information is delayed beyond stipulated 30 days. Fines and disciplinary action can be enforced against the official who deliberately distort or destroy the information.

Article 20: Protection in Respect of Conviction for Offences. Various protections provided herein are:

 

Article 20 (1): Conviction is valid only for the violation of law in force at the time of commission of an act charged as an offence i.e. It bans the retrospective criminal legislation.

 

Article 20 (2): Double Jeopardy or double punishment is not allowed i.e. No person to be punished for same offence more than once. It goes in accordance with the judicial principle of Res- Judicata whereby a particular court rejects the filing of case (dismissed earlier) on different grounds between the same parties. As it would otherwise amount to harassment of person, repeated number of times.

 

Article 20 (3): It prohibits forcing an accused to give self-incriminatory evidence. No person is compelled to give witness against himself. Self-incriminatory statements are the statements which go against the person himself.

• It aims at preventing the state from committing tyranny and use of third degree methods by police.
• Additionally there are legal ethics also which act as further protections in this direction as:

(i)“Burden of Proof lies on Plaintiff.”

(ii) “An accused is innocent till his guilt is proved.”

(iii) “Nemo Judex cause sua”- i.e., nobody can act as judge in a case against himself.

(iv)“Ubi Jus ibi remedium i.e. where there is justice, there is a remedy.

• Protection is respect of conviction for offences is an absolute right and could not be suspended even during the operation of emergency. This right under Article 20 is available to all persons i.e., to both the citizens & aliens.

 

Article-21: Protection of Life and Personal Liberty. There will be no deprivation of life and liberty except for the procedure established by law. The law says, death sentence should be rare of the rarest. Dananjaya Chatterjee, an accused for the rape & murder of a young girl child & tearing her body into pieces & throwing in jungle, was given death sentence owing to the complex nature of the crime committed by him.

Susheel Sahni, husband by Neena Sahni who murdered her and hacked her body into pieces and burnt them into a tandoor in his own house, was awarded death sentence due to the crime committed by him being rare of the rarest.

Protection under Article 21 is available to both the citizens & non-citizens. Dr. B.A. Ambedkar described Article 21 as the most important of Fundamental Right and the Article 32 as the most important of all the articles in the constitution. Supreme Courtdescribed Article 21 as the backbone of part III^rd & part IV of the constitution. 

In Meneka Gandhi vs. Union of India, Supreme Courtheld that Article 21 is extended against the arbitrary action of the executive and even against the legislative action also.Any legislature cannot deprive a person from life & personal liberty on unreasonable grounds.

Article 21 A: Right to Free & Compulsory Education upto the age of 14 years has been incorporated in the constitution as a fundamental right.

• Constitutional Amendment Act by 93^rd “right to education”

Earlier this was Directive Principle of State Policy under Article 45 as “Free and compulsory education up to the age of 14 years”.

Article 22: Protection Against Arrest & Detention in Certain Cases

 Various protections provided here are:

• No person, who is arrested, shall be detained in custody without being informed of the grounds of such arrest.
• No such person shall be denied the right to consult a legal practitioner of his choice. 
• A person arrested to be produced before the nearest magistrate within a period of twenty four hours of his arrest excluding the time of his travel from the place of arrest to the place of nearest magistrate.
• It goes on in the spirit of writ of habeas corpus.

These safeguards do not apply to any alien enemy or to the person put under preventive detention. Detentions are of two types as punitive detention & preventive detention. A person is detained under punitive detection after him having committed a wrong. The maximum period of detention in such case is 24 hours excluding the time of travel from the place of arrest to the place of nearest Magistrate.

Preventive Detention: On the other hand is different from punitive detention in a sense that herein the person is detained on the suspicion of committing an actionable wrong or a person is detained when the evidence in possession is not sufficient to try him. Herein the normal period of detention is two months. The detainee is to be provided the grounds of his detention.

 

3. Right against exploitation (Article 23-24)

 

Article 23: Prohibition of traffic in human beings and force labour to be punishable offences.

 

Article 24: Prohibition of the employment of children below the age of 14 years in factories, mines and other hazardous jobs.

 

4. Right to religion (Article 25-28)

Article 25: Freedom of conscience i.e., freedom to profess, practice & propagate the religion of one’s own choice.

Article 26: Freedom to manage the religious affairs of ones own choice.

Article 27: Freedom as to the payment of taxes for the promotion of any religion. No body to be forced to pay any tax for the promotion of any particular religion.

Article 28: Freedom of attendance of religious instructions in any educational institutions maintained out of public funds. It means no religious instruction to be provided in any educational institution maintained out of public funds. Even if such instructions are imparted, nobody to be compelled to receive it without his consent.

 

5. Cultural and Educational Right (Article 29-30)

 

Article 29: Protection of interest of minorities to ensure the right to have a distinct language, script, culture of their own. It also holds that there should be no distinctions on any ground in admission to educational institution.

Article 30: Ensures minorities the right to establish their own educational institutions and says that the state shall not discriminate in giving grants to them.

 

6. Right to property and saving of certain laws: The Constitutional Fourth (A) Amendment Act, 1978 admitted Article 19 (1) (f) (i.e., Right to acquire, hold and dispose of property the sub-heading right to property in Article 31 admitted). The effect of the change is that this right is no more a fundamental right. A new chapter IV has been added in part XII of the Constitution.

Article 31: Repealed now. Earlier it contained fundamental right to property.

Article 31 (A): It protects certain laws dealing with acquisition of property by the state, abolition of the Zamindari system  regardless of what is provided by the fundamental rights in article 14 & 19.

Article 31(B): Saves acts placed in the ninth schedule. These laws shall no be deemed void on the grounds of any inconsistency with any fundamental rights.

Article 31(C): Protects law if it has been made to implement the DPSP (part IV). Directive principles of states policy given in part IV^th of the constitution.

Note: Right to property is no longer a fundamental right but is an ordinary legal right given under Article 300 (A) which says no person shall be deprived of his property, save by the authority of law.

 

7. Right to Constitutional Remedies: Article 32

Dr. B.R. Ambedkar described the right to constitutional remedies as the sole of Indian constitution. Article 32 is different from other rights as it is remedial in Character. Supreme Court held that this right cannot be taken away even by amending the constitution as it is one of the basic features of Indian constitution. Article 226 grants power to High Court to issue various writs. Article 32 confers writ jurisdiction on Supreme Court for enforcing Fundamental Rights.

 

          The origin of writs goes to Roman law but we have adopted it from English constitution. The writs are also called prerogative writs or limited rights as these are available only at Supreme Court& High Court. The Supreme Court is empowered under article 32 to issue the writs of following types: 

(1)          Habeas Corpus

(2)          Mandamus

(3)          Prohibition

(4)          Quo-Warranto

(5)          Certiorari

 

Habeas Corpus: It is Latin proverb meaning “To Have the Body” or ‘To bring the body’ of the detained person before the Judicial Magistrate so as to set him free if he is innocent within 24 Hours of his arrest excluding the time of travel from the place of arrest to the place of nearest judicial Magistrate. We always use the wording ‘So as to set him free if he is innocent.’ We do not say ‘so as to try him if he is guilty’ which is a natural & logical corollary of it, primarily owing to it being one of the cardinal legal ethics of our judicial system.

• The writ of Habeas corpus is used when person is detained unlawfully.
• This writ could be preferred by any one not necessarily the aggrieved person. It could be even preferred by the organization.
• It could be used both against the state & the individual.

 

Mandamus: It is Latin term meaning ‘We Command’ or ‘We Order’ to do your duty. It is issued by a court for the enforcement of statutory or legal rights. Ordinary legal rights or Private Rights cannot be enforced by Mandamus. It is issued only against public authority or a person holding public office. It is also issued by a higher Court against the inferior Court in case of neglect of their duty. It is issued for the following purposes:

• For the enforcement of fundamental right of person whenever infringed by Government or Public Officer.
• High Court can issue the writ for the enforcement of a statutory duty.
• To compel a Court or a Judicial Tribunal to exercise its jurisdiction which it fails to exercise.

 

Exceptions to Mandamus i.e. the Writ Does not Apply Against:

(1)      President/Governor or of a state for the exercise & performance of powers and duties of his office.

(2)      Private individual or the group of such individuals except where the state is in alliance with such private body.

However the writ is preferred only by an individual whose rights have been violated. It is available against both the judicial authority and also against administrative authority.

 

Prohibition:

          It is issued by Supreme Court& High Court to an inferior court, forbidding the latter to continue proceeding therein excess of its jurisdiction with which it is not legally vested.

·         It compels the inferior court to remain within its jurisdiction.

·         It is opposite of the writ of Mandamus as Mandamus commands activity whereas Prohibition commands Inactivity.

·         This writ is available only against judicial bodies.

·         It is not available against the public officer who is not vested with judicial functions.

·         Writ is preferred only by an individual whose right has been infringed.

 

Certiorari: It is similar to prohibition but is issued after a judicial or Quasi-Judicial body had issued its judgment, order or direction in excess of its jurisdiction.

·         Certiorari means ‘to quash the order or decision’ of a court or tribunal.

·         It is available only against the judicial or qasi-judicial body.

 

Quo-Warranto: It is Latin proverb meaning “what is your authority.” It is the order to oust the person from public office if he does not fulfill the qualification.

 

Deference between Writ Jurisdictions of Supreme Court& High Court

1. Supreme Court under Article 32 enjoys the writ jurisdiction for the enforcement of Fundamental Rights only & not for the enforcement of any other ordinary legal rights. For the enforcement of ordinary legal rights hierarchy of the courts is to be followed. However High Court under Article 226 enjoys the writ jurisdiction for the enforcement of Fundamental Rights as well as other legal rights.

          So the writ issuing jurisdiction of High Court is wider than that of Supreme Court.

2. If the wrong writ is pleaded by the aggrieved, it is the duty of Supreme Court to correct it & to issue the correct Writ. Supreme Court is this entitled as guarantor & protector of Fundamental Rights. Such is not the duty of High Court under Article 226

3. Supreme Court exercise the jurisdiction over whole of India plus it has got extra-territorial jurisdiction also whereas jurisdiction of High Court is confined within the territories of the state or U.T.

4. High Court issues the writ against any person residing within the jurisdiction of that High Court.

5. Against this Supreme Court issues writ against any person within the whole territory of India.

Note: Fundamental Rights available to citizens alone are under Article 15, Article 16, Article 19, Article 29 and Article 30.

Fundamental Rights available to all persons i.e. Citizens & Foreigners are under Article 14, Article 20, Article 21, Article 22, Article 23, Article 21 and Article 24.

 

Can Fundamental Rights be Suspended?

          The Constitution further empowered the President under Article 359 that when national emergency is proclaimed, he can suspend any fundamental right by issuing a separate proclamation. In this regard, an important change has been introduced by the 44^th Amendment Act, 1978 prohibiting the suspension of Article 20 and 21 even during the operation of national emergency.

          But right to freedom under Article 19 gets suo-motto suspended during the operation of national emergency imposed under Article 352.

 

DIRECTIVE PRINCIPLES OF STATE POLICY

          Part IV containing Article 36-51 of the Constitution deals with the directive principles of state policy. Though being non-justifiable, these constitute the fundamental principle of governance. These directives are in nature of directions to the legislative and executive wings of Government to be observed while formulating laws and policies. 

 

Directive principles of State Policy: Part-IV: Article 36-51

These are directives to the State, to the Government, to take care of while framing the policies. The power behind these is people of India, the whole electorate of the country. These are Gandhian principles. At the inception of constitution making, the constitution makers wanted to make the constitution on Gandhian lines. But Gandhian ideology was found unsuitable & obsolete to the modern democratic ideas & so was rejected. To give respect to Gandhi, the principles very dear to him, were enshrined separately in part IV of Indian constitution with the aim to make these enforceable with the enactment of laws in future.

These are welfare measures indicating India to be a welfare state. Welfare State against the regulatory State is the one which in addition to regulation of law and order, takes care of the welfare of people also.

Regulatory State is the State whose function is only the maintenance of law & order. Welfare of the people is left is the people themselves. In a welfare State basic facilities like roadways, education, health services are provided free of cost to the people.

• Directive principles are in the form of instructions.
• These are non-justifiable in nature & are non-enforceable in a Court of law. These are to be implemented by legislation.
• These are affirmative directions or the positive obligation of the State.
• These are the mixture of Gandian principles, Western liberalism, Socialism & the ideals of our freedom struggle.
• The directive principles are classified into socio-economic groups as :

(1)      Article 38, Article 39, Article 41, Article 43, Article 43 A, Article 45 are Socialistic Principles.

(2)      Article 40, Article 46, Article 47, Article 48 are strictly Gandhian Principles.

(3)      Article 39 A, Article 44 & Article 50 are Western liberal Principles.

(4) Article 46, Article 49, Article 51 are the Ideals of our freedom Struggle.

 

Comprehensive Discussion on Directive Principle of State

 

Article	Details
Article 36/37	Introduction of Directive Principles.
Article 38	State shall strive to promote the welfare of people + state shall preserve social order & Justice.
Article 39 (a)	Right to adequate livelihood.
Article 39 (b)	Equitable distribution of resources.
Article 39(c)	Prevention of concentration of wealth in fewer hands.
Article 39 (d)	Equal pay & equal work for men & women.
Article 40	State to organize Panchayats.
Article 41	Right to work & right to education Right to Public Assistance in case of unemployment, old age, sickness under social security.
Article 42	Human conditions of work & Maternity relief.
Article 43	To promote cottage industries.
Article 43 A	Participation of workers in the management of industries.
Article 44	Uniform Civil Code.
Article 45	Free & Compulsory Primary education up to the age of 14 years. This has now been upgraded to Fundamental Right under Article 21A, under Right to Education Act, 2005, which is 93rd Amendment Act of the Constitution.
Article 46	Promotion of educational and economic interests of SC & ST & other weaker section of the society.
Article 47	Prohibition of alcoholic drinks.
Article 48	Prohibition of cow slaughter.
Article 49	Protection of monuments of historical & national importance.
Article 50	Separation of judiciary & executive.
Article 51	Promotion of international peace & security. International disputes are mostly to be solved by arbitration.

 

Directives Contained in Other Parts

          Besides the directives contained in Part IV, there are certain other directives addressed to the state in other parts of the Constitution. Those directives are also non-justiciable. These are as:

Article 350 A: It enjoins every state and every local authority within the state to provide adequate facilities for instruction in the mother-tongue at the primary stage of education for children belonging to linguistic minority groups.

Article 351: It enjoins the union to promote the spread of the Hindi language and to develop it so that it may serve as a medium of expression of all the elements of the composite culture of India.

Article 335: It enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in making of appointments to service and posts in connection with the affairs of the union or a state.

Though the Directives contained in Article 335, 350A and 351  are not include in Part IV but courts have given similar attention to them on the application of the principles, that all parts of the constitution should be read together.

 

THE DIRECTIVE PRINCIPLES ADDED BY THE 42^ND AMENDMENT ACT, 1976

          Article 39 (a) Providing free legal aid to the poor and to take other suitable steps to ensure equal justice to be given to all by the state. 

          Article 39 (c) Opportunities and facilities for children to develop in a healthy manner and be protected from exploitation.

          Article 43: (a): To ensure the participation of workers in the management of industry and other undertaking.

          Article 48 (a): To protect and improve the environment and to safeguard the forests and wild life of the country.

Directive Principles added by the 44^th Amendment Act, 1978

          Article 38 (b): To minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst the individuals but also amongst the group of people residing in different areas or engaged in different vocations.

DIFFERENCES BETWEEN THE FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

Fundamental Rights	Directive Principles
Fundamental Rights provide foundation of political democracy.	Directive Principles provide for social and economic democracy in India.
Fundamental Rights lay down the negative obligation of the state and they are prohibitive in character and are in the nature of injunction requiring the state not to do certain things.	Directive Principles are affirmative direction dealing with positive obligation of the state towards citizens.
Fundamental Right constitutes limitations upon state action.	Directive Principles are in the nature of instrument or instruction to government to do and to achieve certain things.
Fundamental Rights are justiciable. In case of violation of any of the fundamental rights these are enforced by the Court under Article 32.	Directive Principles are non-justifiable. In case of the violation of any of the Directive principles one cannot move to the Court to enforce them. The Government could neither be compelled to legislate to implement directive Principles.
Fundamental Rights are negative in character as they impose certain restriction on Government.	Directive Principles ask the state to endeavor to achieve certain goals.
Fundamental rights are to establish the political democracy.	Directive Principles seeks to establish social and economic democracy.
Fundamental Rights are available & functional since the inception of the constitution.	Directive Principles requires to be implemented by legislation. The implementation of Directive Principles depends upon the economic resources plus conducive circumstances.

 

HINDU SUCCESSION RIGHTS FOR WOMEN

          The Government has introduced the Hindu succession (Amendment) Bill, 2004 and the prevention of Child Marriage Bill, 2004 in the Rajya SabhaThe proposals in the Hindu succession (Amendment) Bill, 2004 are based on the recommendations of the Law Commission in its17th report on “Property Right of Women: Proposed Reform under the Hindu Law.” The amendment seeks to remove the gender discrimination in section 6 of the Hindu Mitakshara Coparcenary Property”, such as male heirs. The Prevention of Child Marriage Bill, 2004, is based on the recommendation of the National Commission for Women (NCW) and the National human Rights Commission. It empowers state Government to make rules to prevent child marriage and to make arrangements for the custody and maintenance of children born of child marriage. Also to make the offences under the proposed legislation to be cognizable for investigation purposes.

UNION EXECUTIVE:     Part V (Article 52-151)

          It deals with the Government at the Union Level. Article 52 to 78 of Part V, chapter I, deal with the Union Executive. Under the British System, the Head of the State was the hereditary monarch. We, in India, do not have monarchy. Also, we are not a small unitary state like the United Kingdom. Against monarchy India is a republic with the head of state as President who is elected head.

 

The President

Article 52 says that there should be President of India.He is Supreme commander of Armed forces. He is the first citizen of India & holds the first warrant of Precedence. Warrant of precedence indicates the hierarchy of positions occupied by various dignitaries attending a state function.     

Article 79: deals with Union Parliament = Lok Sabha + Rajya Sabha+ President 

Article 54: Deals with the election of President by an indirect method of Proportionate representation by single transferable vote system by an electoral college consisting of (i) Elected members of both the houses of Parliament  (ii) Elected members of legislative assemblies of states. (iii) Elected members of legislative assemblies of states and of U.T. of Delhi & Pondicherry (after 70^th Amendment Act, 1992).

President of India is a nominal head whereas Parliament is the real head.

Article 60: Deals with the oath & affirmation of President in presence of chief justice of India or in his absence, the senior most judge of Supreme Courtneeds to be present.

Article 71: All the doubts & disputes in connection with the election of President or V.P. are decided by SC whose decision is final in this direction.

The election of President or V.P. could not be questioned simply on the grounds of there being any vacancy among the member of Electoral College.

If the Legislative Assembly of any state is suspended, the suspended MLA’s are allowed to take part in the election. However a dissolved assembly members are not allowed to take part in the Presidential election.

A person who is neither a candidate for President’s election nor a voter cannot file a suit challenging the validity of election of President as was held by N.B. Khare V. Election Commission of India, 1958.

Presidential election even cannot be postponed on the grounds that the Electoral College was incomplete or not fully constituted because of some state assembly having been dissolved.

 

Article 58: Qualifications for the post of President are as:

(i)        Citizens of India  

(ii)      Not less than 35 years of age

(iii)     Qualified for the election as a member of Lok Sabha.

(iv)     He should not hold any office of profit under Government of India or Government of State. Office of President or the Governor of nay state is not included in the office of profit.

 

Article 56-57: Term of the office of President is normally 5 years & is eligible for the re-election. Vacancy of Presidents office shall be filled up within six months.

 

Article 61: Termination of President

(i)        By the completion of the tenure.

(ii)      By Resignation addressed in writing under his hand to the Vice President.

(iii)     By Impeachment: Article 61 says the only ground of President’s impeachment is “Disregard of constitutional provisions”

Impeachment is a legislative act and so is formal in procedure. The practice is quasi-judicial in nature.        The charges are framed by one house called initiating house and investigation is made by other house called investigation house. Notice of two weeks (14 days) is given by ¼^th of the total members of the initiating house, present & voting. President has got right to appear or to be defended by an attorney of his choice on the day of resolution.

Finally impeachment resolution is to be passed by 2/3^rd members present and voting of both the houses. The President stands removed upon the passage of impeachment motion.

 

Article 62 is concerned with the event of vacancy in the office of the President. When the vacancy is going to be caused by the expiration of the term of the sitting President, an election to fill the vacancy must be completed before the expiration of the term. In case of a vacancy arising from death, resignation or removal, an election to the office should be held as soon as possible but not more than six months from the date of vacancy. After such vacancy arises and until a new President is elected, the Vice-President acts as President.

Prior to 1976 there was no specific constitutional provision that the President was bound to act in accordance with the advice of the Council of Ministers. But 42^nd Constitutional Amendment Act, 1976 made it obligatory for the President to act in accordance with the ministerial advice.

The 44^th Amendment Act, 1978 gave the President the power to send the advice received from the Council of Minister back to them for their reconsideration. If the Council of Minister adheres to their previous advice, the President has no option but to act in accordance with such advice.

Article 77: All executive actions of Government of India are taken in the name of President. The executive powers of President of India are classified as:

(i)     Administrative Powers

(ii)    Military Powers

(iii)  Diplomatic Powers

(iv)  Legislative Powers

(v)    Judicial Powers

(vi)  Emergency Powers

(vii) Miscellaneous Powers/Implied Powers.

 

Executive powers: All executive actions of the Union must be taken in the name of the President. All important officials of the Union Government are appointed by him such as the Prime  Minister, other Ministers of the Union on the advice of  the Prime Minister, the Attorney General of India, the Comptroller and Auditor General of India, the judges of the Supreme Court, the Judges of the High Court of the States, the Government of the State, the Finance Commission, the Union Public Service  Commission and Joint Commission of a group of  States, the Chief Election Commissioner and other members of the commission, a Special Officer  for the Schedule castes and Schedule Tribes, and a Special Officer for linguistic minorities.

The constitution also provides that every Union territory shall be administered by the President. The President acts through an administrator appointed by him with such designation as he may specify.

It is the power of President to remove his ministers individually; such as Attorney General of India, Governor of State, Chairman or a member of UPSC, Judges of Supreme Courtand High Court, and Election Commissioners etc. His legislative powers could broadly be classified as:

1.   Summon the two houses of Parliament.

2.   To Prorogue the houses of Parliament.

3.   To Dissolve the Lok Sabha.

 

Following table explain Dissolution, Prorogation and Adjournment

Dissolution	Prorogation	Adjournment
Only House of People	Both the houses of Parliament	Both the houses of Parliament
It ends the very life of the house of people.	It terminates a session. Generally there are three sessions in a normal years as winter session, summer session, Monsoon session	It is the postponement of the business of a house for some period which is normally small. It may be few hours, few days or few weeks but is always small. Technically we say house is adjourned ‘sin-die’ meaning indefinitely but for small period.
House of People is dissolved by the President on the advice of his council of Ministers.	A session is prorogued by the President on the advice of his council of Ministers	Rajya Sabha is adjourned by its Chairman & Lok Sabha is adjournment by its speaker.
It wipes off all the matters pending in house. It ends the bills originated in council of State & sent to the house of people. It also ends the bills originated in the house of people and transmitted to the council of state and pending there. But it does not affect a joint meeting of two houses summoned by President to resolve a conflict or a dead lock over a bill.	It wipes off the pending notices, motions & resolution but bills pending bills remain unaffected are taken up in the next session as such only.	It doesn’t wipe off any matter.

 

Note:

Joint Sitting or Joint Meeting of both the houses of Parliament is summoned by President to resolve a dead lock over a boil:

• It is aimed at favouring Lok Sabha which is numerically Superior.
• A joint sitting is not summoned to resolve a deadlock over an Amendment bill.

Judicial Powers of President

          The President appoints the Judges of the Supreme Court and those of the High Courts. He may remove the judges only on an address of the Parliament. He can grant pardon, reprieve, respite, remission or commutation of punishment to any person convicted of any offence.

 

His Judicial Powers are classified as:

Pardon: It absolves a person from both the punishment as well as from disqualification. Governor also grants pardon in some cases but President is the only authority to grant Pardon in case of a death sentence.

Reprieve: It is an order of stay of the execution of a sentence in a case which is pending for pardon or commutation before President.

Remission: It changes the amount of punishment without changing the character of punishment e.g. a sentence of 10 years, Rigorous Imprisonment could be changed for 7 years rigorous imprisonment.

Respite: It reduces the punishment to lesser ones in the light of some special circumstances, such as pregnancy of a women etc.  

Commute: Herein President changes the character and the form of punishment with the lighter ones without changing the amount of punishment e.g. 15 years rigorous imprisonment is changed to 15 years simple imprisonment.

 

Financial Powers of President: The President permits the annual budget and important reports to be laid before the Parliament.

• A money Bill is introduced in the Parliament only on his recommendation.
• He appoints the Finance Commission for allocation of share of proceeds of taxes between the union and the states.
• He can also advance money out of the Contingency Fund of India to meet unforeseen expenses and recover the same after due authorization by the Parliament.

 

Emergency Powers of President: Besides these above mentioned powers, he has certain extraordinary powers to deal with emergencies. The situations that would give rise to these extraordinary powers of the President are of three kinds:

• National emergency under Article 352.
• State Emergency due to the failure of State constitutional machinery under Article 356.
• Financial emergency under Article 360.

In the original constitution the ground of National emergency was not given. Taking the advantage of this situation, Indira Gandhi imposed third National emergency on the ground of ‘Internal disturbance’ on 25^th June 1975. It was during this period that the most exhaustive amendment as Constitutional 42nd Amendment Act, 1976 was passed. This amendment owing to its exhaustive nature is called ‘Mini Revision of the constitution’ as it changed nearly 53 Articles, 7^th schedule dealing with centre-state relations, Preamble by adding two important words as ‘socialist’ and ‘secular’  in it. It also introduced certain undemocratic provisions in the constitution. People of India could very well understand this flaunt in the guise of emergency where in real motive of Indira Gandhi was to amend the constitution as per her own wishes. Seeing this misuse of the grounds of emergency as internal disturbance, there was whement demand to codify the grounds of National Emergency. Subsequently 44^th Amendment Act, 1978 laid down the grounds of National emergency as “War, External Aggression or Armed Rebellion”.

 

Miscellaneous Powers of President

• President is the only authority to specify a caste as scheduled caste or a tribe as scheduled tribe.
• It is the power of President to seek an advice from Supreme Courtwhenever needed by him.
• Administration of U.T. by President through his agent.
• President has got special powers with respect to scheduled area & tribal areas.
• President has got special powers with respect to schedule caste & scheduled Tribe. 

 

Power to nominate members in Parliament

          The President has the power to nominate twelve members to the Rajya Sabha from persons having special knowledge or practical experience of Art, Science, literature, Social Service. He is also empowered to nominate two members of the Anglo-Indian Community to the House of the People, if he is satisfied that this community is not properly represented in the House.

Previous Sanction of President to Legislation

• For introducing a bill for the formation of new states or the alteration of areas, boundaries or names of existing states after obtaining the views of the affected states. Such views are which is not binding upon the President.
• For introducing Money Bill
• A bill relating the expenditure from consolidate fund of India.
• A bill affecting taxation in which states are interested.
• A bill relating the distribution of money to the states.
• States bills imposing restrictions over freedom of trade commence  

 

President’s assent to Legislation

     A bill passed by both the houses of Parliament become law upon receiving the assent of President. A bill fails if it does not receive the assent of President.

When a bill is presented to the President:

(i)       He may give assent to the bill and bill becomes law.

(ii)      He may withhold his asset to the bill using his veto            power & the bill fails to become law.

(iii) He may return the bill other than money bill for reconsideration. If both the houses pass the bill with or without amendment & presents it to President, he is bound to give his assent under Article 111.

This provision vindicates that the President of India, unlike his counterpart in USA, is not real head. He is nominal head. His will is not being carried away.

 

Veto Power of President

Veto power entrusted in an executive may turn him dictarial in character but aim of veto power of the President of India is to arm the executive to avoid hasty or aggressive legislation. 

Executive votes are of following types:

(a)          Absolute Veto

(b)          Qualified Veto

(c)          Suspensive Veto 

(d)          Pocket Veto

Veto power in India is a combination of absolute, suspensive and pocket Veto.

 

Absolute Veto: English crown possesses prerogative of absolute veto. If the crown refuses assent to a bill it cannot become a law not-withstanding a vote of the Parliament. In reality the veto power of the crown has become obsolute since A.D 1700, it has never been used since the time of Queen Anne.

Qualification Veto: A veto is qualified when it could be overridden by an extra- ordinary majority of legislature. When bill is presented to the President he may, if he does not assent it, return the bill within 10 days with a statement of his objection to the congress in USA. Upon this each house considers it & if it is adopted again with special majority i.e. 2/3^rd members present & voting the bill becomes a law not-withstanding the absence of President’s signatures. But if it fails to obtain 2/3^rd of majority, the veto stands & bill fails to become law the veto of American President is of this class.

Suspensive veto: A veto is suspensive when the executive veto could be overridden by legislation by an ordinary majority. This type of veto belongs to French President. If, upon the reconsideration, Parliament passes the bill again by simple majority the President has no power but to pass it.

Pocket Veto: It is possessed by American President. When a bill is presented to the President he may neither sign the bill nor return the bill for reconsideration within the period of 10 days. He may let the bill lie on his desk until the tenth day limit is expired. The President has thus prevented the Bill to become law when the session was about to end.

 

Role of President with respect to State Legislature

          When a Bill is passed by the State Legislature and sent to the Governor for his assent he may reserve the bill for the consideration of the President.

It could be discussed under two heading as:

(i)      If it is non-money bill or an ordinary bill: The President may withhold his assent or direct the Governor to return the bill to state legislature for reconsideration with desired amendment.

If legislature reconsiders the bill within six months of its receipt & if it is again passed by state legislature with or without amendment & presented to President, he is still not bound to give his assent.

(ii)     If it is a Money Bill: President may give assent or withhold his assent but cannot send it back for reconsideration.

Ordinance Making Power of President:  Article 123

          The most important legislative power of President is to promulgate ordinance. The ordinance promulgated by President has the same force and effect as an Act of Parliament. The Ordinance making power of President is coextensive with the legislative power of Parliament. President can promulgate ordinance on any subject on which union parliament is empowered to legislate. This power is exercised on the advice of his council of Ministers.

Thirty Eighth Amendment of constitution introduced by Indira Gandhi’s Government wanted to silence the judicial interference in the ordinance making power. It inserted clause (4) in Article 123, laying down that President’s satisfaction shall be final & could not be challenged in any court of law.  

The ordinance making power by President is exercised on the advice of his council of Ministers. This power is available only when either of the two houses of parliament is not in session. No such power is available when both the houses of Parliament are in session.

Above all, Circumstances should be such as to require immediate attention as e.g. 1S1 attack on Indian Parliament in 2004 became the ground of promulgation of POTO (Prevention of Terrorist Activities Ordinance) which later on became POTA (Prevention of Terrorist Activities Act) upon the enactment of law in this respect when both the houses of Parliament reassembled.

Ordinance must be laid before both the houses of Parliament when they reassemble. It shall lease to operate at the expiration of six weeks from the date of reassembly unless meanwhile passed by Parliament.

 

Article 59: Conditions of the office of President:

1. He shall not be a member of either house of Parliament or legislature of any state.
2. If he is holding any such office, he shall be deemed to have vacated his seat in that house on the date on which he enters upon his office as President.
3. He shall not hold any office of Profit.

          Office of Profit means any paid employment under government of state or U.T. It does not include work in any charitable organization without wages.

 

Vacancy in the office of President is created.

1. On the expiry of the term of his office which is normally 5 years.
2. On his death
3. On his resignation
4. Upon his removal by impeachment motion.
5. Otherwise as e.g., upon setting aside his election as President.

In all these circumstances a permanent vacancy is created in the office of President.  A part from permanent vacancy in the office of President, there may be temporary vacancy also owing to

·         His ill health.

·         He being unable to discharge his functions owing to his absence from India.

·         Any other reason.

·         In all the cases of temporary vacancy, Vice President discharges the functions of President until the date on which he resumes his duties

VICE-PRESIDENT

 

Article 63:  There shall be a Vice President of India

 

Article 66: Election of the Vice President,  like the  election  of  the President  is  indirect and in accordance with  the system  of  proportionate representation by means  of the single  transferable  vote system.

Vice President is elected by an   electoral college consisting of the members of both Houses of the Parliament. In the election of the Vice President, the state Legislatures do not have any role to play. Members may vote by secret ballot also without assembling   at a joint sitting.

 

Term of office: The Vice President holds office for a term of five years from the date on which he enters the office. He may however resign his office before the expiry of the term by writing to the President.

 

Removal of Vice President:  He is removed by a resolution initiated only by Rajya Sabhaby a notice of 14 days to Vice President.  Resolution in Rajya Sabhais passed by by 2/3^rd members present and voting and is succeeded by Lok  Sabha  resolution passed by simple  majority.

There is no provision of impeachment of vice President in India whereas American Vice President is impeached.

 

Functions of the Vice-President: The Vice-President is second highest dignitary of India, next to the President of India.  No formal functions are attached to the office of the Vice- President. The Vice-President acts as the ex-office chairman of the Rajya SabhaAs Chairman of the Rajya Sabha, he recognizes member to the floor-and decides the order of speeches. He may suspend or adjourn the business of the House-in case of grave disorder. He issues direction to the chairman of various committees in all matters relating to their working.

The Vice-President takes over the office of the President normally under these situations as:

a)    Death of the President

b)   Resignation of the President      

c)    Removal of the President and 

d)   When President owing to absence, illness or any other cause, is unable to perform the functions of his office.

When the Vice- President acts as President, he is entitled to all the powers and immunities of the President.

Salary of the Vice President is not specified in constitution. He draws the salary as ex-officio the chairman of Rajya Sabha

Vice President  is ex-officio (by virtue of his office) Chairman  of Rajya Sabha and must be  qualified  for the election as a member of Rajya Sabhawhile  President  to be  eligible as  a member  of Lok Sabha.

 

QUALIFICATION OF VICE-PRESIDENT

(i)           Citizen of India.

(ii)          35 year of age

(iii)        Qualified to be elected to Rajya Sabha

(iv)         He should not   hold any office of profit.

 

Prime Minister

The constitution provides that there shall be a Council of Minister with the Prime Minster to aid and advise the President. The President is the normal head  of the government but the active head is the Prime  Minister.

 

Article 74: It says Prime Minister is the leader of the majority party in the parliament. He is the head of the council of Ministers. The Prime Minister is appointed by the President. The President appoints only that person as Prime Minister who is the leader of the majority party in the Lok Sabha. But  the constitution does not  debar the  President from appointing a person  as Prime Minister who is not a member of either house of Parliament if that  person has been  chosen  as  leader of the  majority party. Such a person must get himself elected to the parliament within period of six months.

The Prime Minister is the link between the Cabinet and the President.  The decision of the Cabinet are conveyed to the President through the Prime Minster.

As the ex-officio chairman of the Council of Minister, the   Prime Minster presides over Cabinet   meeting. At Cabinet meetings, the Ministers put forth their views. After having listened to them, the Prime Minister gives his own conclusion which normally is considered the decision of the Cabinet.

His salary is equal to that of cabinet minister. Article 74, 75, 78 deals with Prime Minister and council of Minister. He allocates the business to ministers and transfers   a minister from one department to another. As a chairman of cabinet, he summons its meetings and presides over them. While resignation of other ministers creates a vacancy but the resignation or the death of Prime Minister dissolves the   cabinet.

 

It is the Duty of Prime Minister to lay the Following Reports before the Parliament:

1)    Budget, an annual financial statement.

2)     Report of Attorney General of India.

3)     Report of Finance Commission of India.

4)     Report of Union Public Service Commission (UPSC).

5)     Report of special officer of scheduled caste and scheduled Tribe.

6)    Report of the commission on Backward Classes.

7)    It is the duty of Prime Minister to communicate to President of all the decision of council of Ministers. It is also his duty to furnish to President such information as is required by him.

 

Council of Minister

          The constitution provides for a Council of Minister to aid and advise the President. It comprises Cabinet Ministers, Ministers of State & the deputy ministers. The real executive authority of union is exercised by the council ministers. The Council of Minister is collectively responsible to the Lok Sabha.

The members of the Council of Ministers are appointed by the President on the advice of Prime minister. Every member  of the council of ministers must  either  be member of the  Lok  Sabha  or the Rajya Sabha or he  must get  elected to a seat in either  House  within six  months of his  appointment  as Minister.     

A person  who is a  members  of one house has  right  to speak in  and to take  part in the  proceedings  of the other House, though  he has no  right to  vote in  the house  of  which  he is not a member.

Council of Minister comes into existence as soon as Prime Minister is sworn in. Prime Minister alone can constitute council  of Ministers. Constitution does not classify member of the council of minister in different ranks. All this has been done informally following the English practice. It has now got the legislative sanction.

Council  of minister  is collectively  responsible to house  of People – Article 75 (3)  but  A minister  is individually  responsible  to President   Article 75 (2).

Council of Ministers seldom meets as a body. It is the cabinet, an inner body, within the council which shapes the policies of the government.

 

Categories of Ministers: All Ministers do not belong to the same rank. Usually, there are three different categories of ministers in the council of ministers as.        

1. Cabinet Minister: The word cabinet is nowhere used in constitution. It uses to be British practice of conducting the important, secret meetings in a small room called cabinet to maintain the secrecy of the matter.  Later on instead of calling the room as cabinet, the members conducting were collectively called cabinet.

The Cabinet Ministers occupy a pivotal position in the Council of Ministers. It is the Cabinet which shapes the policy of the Government. The Cabinet Ministers hold change of key portfolios. A Cabinet Minister is often assisted by a Minister of State. Cabinet minister is given independent portfolio heading a particular ministry.

2. Ministers of State: Are second in rank but these ministers are not given independent charges. However Prime Minister on his discretion can give independent charge to minister of state in case of the cabinet minister is not able to perform his functions.  

They are not members of cabinet. They do not participate in the cabinet meetings. But such minister is invited to attend those meetings in which matters concerning consuming their departments are considered.

3. Deputy Minister: Are the junior most ministers who are never given independent charge. They assist the cabinet ministers and the ministers of state.

These ministers are not invited to attend the meetings of cabinet. The decision making is the prerogative of cabinet ministers only but their decisions automatically becomes the decisions of council of ministers.

There is no constitutional bar on the appointment of Prime Minister from Rajya SabhaThe same was held by Janak Raj v. H.D. Dewe Gowda Case, 1997. But according to the spirit of democracy Prime Minister must be elected by the representatives of Lok Sabha.

Article 75(5) says if a non-member of parliament is appointed as minister, he should be elected within six months of such selection.

I.K. Gujral & Indira Gandhi, the former Prime Ministers were also Rajya Sabhamembers.

Collective Responsibility: Article 75(3): The constitution stipulated that the council of ministers is collectively responsible to the house of the people. The ministry, as a body, is under a constitutional obligation to resign as soon as it loses the confidence of the house of the people. A vote of No Confidence against any ministry automatically leads to the resignation of the entire council.  Without collective responsibility of the ministers to the parliament the parliamentary system in the country cannot function effectively and efficiently. Whatever decisions are taken by the cabinet collectively, they are to be supported by all ministers.

Individual Responsibility: Article 75(2) stipulates that the Minister shall hold office during the pleasure of the President. Though the Ministers are collectively responsible to the Legislature, they shall be individually responsible to the Executive. They shall be liable to be dismissed by the President for their undesirable activities. However, in these matters, the President acts on the advice of the Prime Minister. No person can be retained as a Minister, if the Prime Minister is of the view that he should be dismissed.

Presiding Officers of Parliament

Presiding officer of council of state i.e. Rajya Sabha is chairman and of the Lok Sabha is speaker.

·         Presiding officer presides over the meetings of the house.

·         He does not caste vote in the first instance but has got casting vote in case of a tie.

·         He maintains order within the house.

·         His actions are not subject to the jurisdiction of any court.

·         Speaker alone certifies a bill as money bill. For a bill to qualify for being money bill it must be endorsed or signed by speaker as such.

·         Speaker presides over the joint sitting of both the houses of parliament.

·         In case of his absence, the deputy speaker, then deputy chairman, then any member of the house decided by members presides over the joint sitting.

·         Speaker has got special position when Lok Sabha is dissolved. All the members of Lok Sabha cease to be the members but the speaker continues to be in office till the new Lok Sabha is constituted. He remains in office in order to represent the institution of Lok Sabha.

·         He allots time and maintains order in the proceedings of the house.

·         He appoints the chairman of various committees.

·         He adjourns Lok Sabha.

Pro-tem Speaker: means the speaker for the time being. He is appointed by the President amongst the newly elected members of Lok Sabha, immediately after the constitution of Lok Sabha. Duty of protem speaker is to preside over the house & to conduct the oath to newly elected members and to conduct the election of the office of speaker. He steps down as soon as the speaker is elected. Oath to the protem speaker is attained by the President.

Comptroller and Auditor General (CAG): Article 148

          The office of the comptroller and Auditor-General has been created and placed on a special footing by the constitution. The comptroller and auditor-general is the guardian of public finances of the union government and of all the states of India. He controls the entire financial system of the country. He is appointed by the President. Generally, a person with long administrative experience and knowledge of accounts is appointed to this office.

          The comptroller and auditor-general is the guardian of the public purse and it is his duty to see that no money is spent out of the consolidated fund of India or of a state without the authority of the appropriate legislation. The reports of the CAG are presented to the President or the governor, as the case may be, and laid before the parliament and the respective state legislatures. In Lok Sabha, the public accounts committee considers this report.

          It is his duty to audit & report on all the expenditures from consolidate fund of India and from consolidate fund of each state & of each U.T. It is his duty to audit & report on all the expenditures from contingency funds & public accounts of union & of states. There was an auditor general of India even under government of India Act, 1935. CAG may resign from his office by addressing his letter of resignation to the President. He may be removed by impeachment under Article 148 (1), Article 124 (4). The President can issue order for his removal on the recommendation of the two houses of parliament on the grounds of (i) Proved misbehaviour, (ii) Incapacity

          Parliament has laid down that he holds office for a term of six years or till the age of 65 years, whichever is earlier. His salaries are not to be moved to his disadvantage. His salary is equal to that of Supreme Court judge. His salary is disembursed from consolidate fund of India & shall be non-votable.  Indian CAG is a constitutional authority while U.S. & U.K. CAG is an officer of parliament. Indian CAG is independent constitutional authority not directly answerable to parliament. Report of CAG is not discussed in details at the first instance rather a general discussion takes place. The report is referred to public account committee (PAC) whose members are the members of Lok Sabha including the members of opposition also. PAC in turn submits its report to parliament.

          Qualifications for the post of CAG are not given in the constitution rather are given in CAG Miscellaneous Act, 1950. Originally CAG performed twin function of auditing the accounts as well as compiling the accounts. But since 1975, CAG only audits the accounts. However at the state level the old practice is still prevalent. He is disqualified for any further government office after retirement.

 

Attorney General of India: Article 76

The attorney general is the highest legal officer of the government of India. He is appointed by the President and hold office during the pleasure of the President. He must have the same qualifications as are required to be a judge of the Supreme Court. The attorney general is entitled to such salary and allowances as may be determined by the President. He gives advice on such legal matters as President seeks. He is assisted by solicitor general and two additional Solicitor Generals.

 

Article 76(3): says  he has right of audience in all the courts, right to speak in the proceedings of either house or joint sitting of houses but is not entitled to vote in  any house.

• Normally his head quarter is in New Delhi.
• He is entitled to same privileges to immunities as are available to members of Parliament. Though he is not Member of Parliament.
• He is not entitled to accept an offer of appointment in any company without the clearance from union government but is allowed private practice due to not being fulltime servant of government of India. Attorney general of U.K. is a political office which changes with the every change in the government while in India he holds the office during the pleasure of President.

 

Note:  Impeachment Motion is issued against:

 

·         President

·         Comptroller and Auditor General

·         Chief Election Commissioner (CEC)

·         Supreme Court/High Court

·         Chief justice of India

 

UNION LEGISLATURE

Article 79: Parliament of India consists of the President and the two houses-Rajya Sabha(Council of States) and Lok Sabha (House of the People). The supreme legislature of the union of India is called the parliament.

Lok Sabha

          The Lok Sabha is the House of people. It is directly elected by the people. The constitution provides that the Lok Sabha shall consist of not more than 535 members chosen by direct election from territorial constituencies from the state and not more than 20  members to represent the union territories chosen in such manner as parliament by law provides [Article 81(1)]. In addition, the President may nominate not more than two members of Anglo-Indian community (Article 331).

          The maximum strength of the house of people envisaged under the constitution is 535+20+2=552. The total elected membership is distributed among the states in such a manner that the ratio between the number of seats allotted to each state and the population of the state is, so far as possible, the same for all states  [Article 81[2](a)]. The population for this purpose means the population as ascertained at the 1971 census.

          But parliament by law has fixed as 530 seats from sates & 13 from U.T. in addition to nomination of 2 Anglo Indian members, thus making total members of Lok Sabha as 530+13+2 = 545.

          The term of the Lok Sabha is five years. The house may be dissolved before the expiration of its full term under certain circumstances. When a proclamation of emergency is in force, the term of Lok Sabha can be extended by parliament for a period not exceeding one year at a time and not exceeding in any case a period of six months after the proclamation has ceased to operate (Article 83). In fact right from the first Lok Sabha almost every house has been dissolved before completing its full term.

          People elect their representatives on the basis of adult suffrage. Every citizen who is not less than 18 years of age & is not otherwise disqualified has right to vote. A person herein may be disqualified on grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice (Article-26)

          There is no reservation of seats except for SC & ST (Article 330, 341, 342).

 

Qualifications for Membership of Parliament

(i)           Citizen of India

(ii)          Not less than 30 years of age for Rajya Sabha& not less than 25 years of age for Lok Sabha.

(iii)        Additional qualifications may be prescribed by parliament by law (Article-84).

 

Disqualifications for membership: Under Article 102, a person shall be disqualified for being chosen as a member of either house if

(i)           He is not a citizen of India or otherwise owes allegiance to foreign state.

(ii)          He is an un-discharged insolvent and is declared so by a competent court. 

(iii)        If he holds any office of profit other than the office of minister or any office exempted by the parliament by law, and

(iv)         If he is otherwise disqualified under any law made by parliament.

          Also   a person may be disqualified on grounds of defection under the 10^th schedule which was added by the Constitutional 52^nd Amendment Act.

 

Article 102 (2): Disqualifications on the Grounds of Defection are as:

(i)           If a candidate elected on a particular party ticket later on, while in legislature changes his political party it amounts to defection.

(ii)          If an elected independent candidate joins some political party, it amounts to defection.

(iii)        If a candidate votes or refrains from voting against the party directives, it amounts to defection.

          If any question arises whether a member of either house has become subject to any disqualification, it shall be decided by the President after obtaining the opinion of the election commission. In case of disqualification on grounds of defection, the matter will be decided by the speaker of Lok Sabha or chairman of Rajya Sabhaas the case may be.

 

Exceptions to defection 

1. If the original party splits out or if not less than 2/3^rd of total members of such party separates out.
2. If not less than 2/3^rd of party members merge with another political party.
3. In case of the disqualification of a member, President’s decision in accordance with the opinion of election commission shall be final - Article (103)

There is a provision of fine of Rs. 500 per day if a person sitting and voting in either house knows he is disqualified or is not qualified for the membership.

 

Vocation of Seats by Members

1)      Dual membership: If a member belongs to both the houses, he should vacate his seat in one of the two houses as prescribed by law. If he is elected to both union parliament and to state legislature then he should resign from state legislature, otherwise his seat in union parliament shall fall vacant at the expiration of specified period in accordance with law.

2)      Disqualification: If any in accordance with Article 102.

3)      Resignation: Members may resign by writing addressed to chairman of Rajya Sabha or speaker of Lok Sabha.

4)      Absence without Permission: If a member absent himself from all the meetings of the house for a period of sixty days without permission of house, his seat shall fall vacant.

 

Adjournment, Prorogation and Dissolution: The sitting of a House may be terminated by (i) dissolution (ii) prorogation or (iii) adjournment. Only the Lok Sabha is subject to dissolution.  Dissolution may take place in either of two ways:

(a)      By expiry of its term of five years if the term in not        extended during a proclamation of emergency.

(b)      By an exercise of the President’s power under Article 85(2).

While the powers of dissolution and prorogation are exercised by the President on the advice of his council of ministers, the power to adjourn the daily sitting of the House of the people and the council of states belongs to the speaker and the chairman, respectively.

Dissolution brings the house to an end so that there must be fresh election, while prorogation merely terminates a session. Adjournment doesn’t put an end to the existence of a session of the parliament but merely postpones the further transaction of business for a specific time, viz. hours, days or weeks.

 

Rajya Sabha

          The Rajya Sabha or ‘Council of States’ is the “Upper House of the Parliament” and is sometimes called the “House of Elders”. It is a permanent house. The council of states shall be composed of not more than 250 members of whom (a) 12 shall be nominated by the President and (b) the remainder 238 shall be representative of the states and the union territories elected by the method of indirect election (Article 80). The 12 nominated members shall be chosen by the President from amongst persons having special knowledge or practical experience in Art, Science, Literature and Social Service. 

          Rajya Sabha is a permanent body and is not subject to dissolution. While the term of an individual member of Rajya Sabha is six years as nearly as possible, one third of its members retires at the expiration of every second year.

          The Vice –President, who is elected by the member of both houses of parliament, is ex-officio chairman of Rajya Sabha whereas the deputy chairman is elected by the members of Rajya Sabha for amongst themselves (Article 64, 66 and 89). The vice-President (ex-officio Chairman) as the presiding officer of the Rajya Sabha has functions and powers same as those of speaker. He is however, not a member of the house.

          The deputy chairman is a member of the Rajya Sabha and when he ceases to be a member of the Rajya Sabha, he automatically vacates the office of the deputy chairman. He can resign his office by writing to the chairman. He may be removed from his office by members of the Rajya Sabha.

 

Powers and Functions of Rajya Sabha

1. Legislative Powers: In relation to ordinary bill, Rajya Sabha enjoys equal power with the Lok Sabha. An ordinary bill or a non-money bill can be introduced in Rajya Sabha and before becoming an Act it has to be approved in both houses of the Parliament. The Lok Sabha has no power to overrule the Rajya Sabha. If both the houses disagree with any bill, it has to be decide in joint sitting (Article 108) of the parliament. This obviously gives an advantage to the Lok Sabha which is more than twice the size of the Rajya Sabha. 

          There has so for been only six joint sitting of the both houses of Parliament. For the first time a joint sitting took place in 1961 in order to resolve a deadlock on the Dowry Prohibition Bill on which the two houses had finally disagreed. The second joint sitting took place in 1978 on the Banking Service Commission (Repeal) Bill, 1977 and the Lok Sabha carried the day. Joint sitting is aimed at carrying the will of Lok Sabha which is numerically superior house.

          In the matter of Finance Bill or Money Bill, Rajya Sabhaacts only in advisory character. Financial or Money Bill can’t be introduced in the Rajya Sabha. A Money Bill when passed by the Lok Sabha comes to be considered by the Rajya Sabha. The Lok Sabha then either accept or reject its recommendation. If Rajya Sabha did not recommend it within 14 days or before that it goes to the Lok Sabha where it is recommended and voted by a simple majority and sent to the President. Thus in financial matters, the Rajya Sabha has only an advisory role and Lok Sabha has the final say.

2. Constitution Amending Power: In the matter of Constitutional Amendments, the Lok Sabha and the Rajya Sabha have been placed at par. Both the houses have got equal powers with regard to the amending process and in order to amend the constitution, a Bill must be passed by both Houses of the Parliament. The provision of Article 108, the joint sitting of both the houses to resolve a dead lock, will not apply in such cases.

3. Electoral power: In this matter both the Houses have same position and power. The elected members of the Rajya Sabha along with the elected members of Lok Sabha participate in the election of the President. Even the vice-President is elected by the members of the Electoral College consisting of the members of both the houses of parliament.

4. Control Over executive: The executive is responsible to the Lok Sabha. The confidence of parliament in reality means the confidence of Lok Sabha and the responsibility of the executive means responsible to the Lok Sabha. A vote of no-confidence against the government, if passed by the Rajya Sabhawould be a mere expression of opinion of Lok Sabha.. The Rajya Sabha, can’t make or unmake the governments.

5. Impeachment of the President: Regarding the impeachment of President, the Article 61 of the Constitution says that the resolution for the removal of President must be passed by each house by a majority of not less than two thirds of the total membership of each house separately which means without the consent of Rajya Sabha, the President can’t be removed.

6. Special powers: The Rajya Sabha has exclusive powers over two provisions regarding the state list and All India Services. These two provisions confer upon Rajya Sabha the sole representation of the states.

According to Article 249 the Rajya Sabha, may by a resolution supported by not less than two thirds of the members, present and voting, declare that it is necessary or expedient in the national interest that parliament should make law with respect to any matter enumerated in the state list.

The second exclusive power of the Rajya Sabha is connected with setting up of All India Services (Article 312). The All India Services are common to the union and the states.