Constitutional Law Important Questions

8/17/2019 Constitutional Law Important Questions

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Constitutional law important questions:

Q. 35 Discuss the position of the President under the Indian

Constitution.

Ans. Position of President. - Article 52 of the Constitution lays down that there shall be a

President of India. Article 53 (1) proides that the e!ecutie powers of the union shall est in

the President. Article "#(1) lays down that there shall be a Council of $inisters with the

Pri%e $inister at the head to aid and adise the President. Article "#(2) proides that the

&uestion whether any adice was 'ien by the Council of $inisters shall not be &uestioned

in any court of law. Article "5 proides that the Pri%e $inister shall be appointed by the

President and the other %inisters shall be appointed by the President on the adice of the

Pri%e $inister. he $inisters shall hold office durin' the pleasure of the President.

A purely literal interpretation of these proisions coneys the i%pression that the President if

so desires can beco%e a dictator. ut this interpretation is not in tune with the spirit of the

constitution. In a parlia%entary for% of *oern%ent+ the President is a titular head and the

real powers are ested with the Council of $inisters. In arious cases li,e Ram Jawaya v.

State of Punjab, AIR 1955 SC 544, U.N. Rao v. India !and"i, AIR 19#4 SC

$19$ and %&' (i'"amb"a )aya* C"anda %o"an v. State of U.P., AIR 19+$ SC + the

upre%e Court has held that the President is %erely a cere%onial head and the real power

lies with the Council of $inisters.

he Constitution (#2nd A%end%ent Act+ 1"/) has now re%oed all doubts about the

position of President to a 'reater e!tent. It has a%ended Article "# which %a,es it

obli'atory for the President to act in accordance with the adice 'ien by the Council of

$inisters. ut the Constitution (##th A%end%ent Act+ 1"0) has inserted a proiso to clause

(1) of Article "# accordin' to which the President %ay re&uire the Council of $inisters to

reconsider such adice either 'enerally or otherwise and the President shall act in

accordance with such reconsidered adice. his proision reco'nises the essential rule of

the President that he can adise and 'uide the *oern%ent.

nder our Parlia%entary syste% of *oern%ent the President is the Constitutional head of

the state while the real power ests in the Council of $inisters. In iew of the followin'

proisions the position of the President is clear

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8e'islatie Asse%blies of the tate under sub- clauses (a) and (b) by the total nu%ber of

the elected %e%bers of both ouses of Parlia%ent fractions e!ceedin' one-half bein'

counted as one and other fractions disre'arded.

he election of the President shall be held in accordance with the syste% of proportional by

%eans of the sin'le transferable ote and the otin' at such election shall be by secret

ballot.

he Constitution (#2nd A%end%ent) Act+ 1"/ substitutes the old e!planation 'ien in

Article 55. Accordin' to the substituted e!planation the e!pression 9population9 used in

Article 55 %eans the population as ascertained at the last census of which the releant

fi'ures hae been published

he reference in the 4!planation to the last precedin' census of which the releant fi'ures

hae been published shall+ until the releant fi'ures for the first census ta,en after the year

2::: hae been published+ be construed as a reference to the 1"1 census.

his chan'e has been brou'ht under the new population policy. Accordin'ly+ it %a,es

conse&uential chan'e in the releant articles+ na%ely+ 01 and 02 relatin' to 8o, abha.

Article 1": relatin' to tate Asse%blies+ Article 33: and 332 relatin' to reseration of seats

for cheduled Castes and cheduled ribes.

he nu%ber of otes which any oter is eli'ible to ote for Presidential election %ay be

%athe%atically represented as follows

(1) he nu%ber of otes a %e%ber of any 8e'islatie Asse%bly is eli'ible to cast be

deter%ined in accordance with the followin' for%ula-

Population of tate - 1:::

;iided by total nu%ber of elected %e%bers of tate Asse%bly.

If the re%ainder after diidin' by 1::: is 5::: or %ore than the ote of each %e%ber shall

be further increased by one.

(2) he nu%ber of otes of a %e%ber of Parlia%ent shall be deter%ined in accordance with

the followin' %ethod-

otal otes assi'ned to %e%bers of all tate Asse%blies diided by total nu%ber of elected

%e%bers of both ouses of Parlia%ent.

If the fraction e!ceeds one-half than the ote of each $P6s will further be increased by one

ote.

he President and


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In C"aan 0a* Sa"u v. S"i Nee*am Sanjeeva Reddy, AIR 19#+ SC 499+ the upre%e

Court obsered that Article 50 only proides the &ualifications or conditions for the eli'ibility

of a candidate for President 4lection. It has nothin' to do with the no%ination of a candidate

which re&uires ten seconders.

In re President 4lection case+ AI= 1"# C 1/02+ the holdin' of the election of the

President was challen'ed on the 'round that the electoral colle'e as %entioned in Articles

5# and 55 would be inco%plete because the *u>arat tate 8e'islatie Asse%bly was

dissoled. he upre%e Court held that the election to the office of the President %ust be

held before the e!piration of the ter% of the President+ notwithstandin' the fact that at the

ti%e of such election the 8e'islatie Asse%bly of *u>arat is dissoled.

1. Qualifications. - Article 50 lays down the &ualifications which a person %ust possess for

bein' elected to the office of the President of India7

(a) e %ust be a citi?en of India.

(b) e %ust hae co%pleted the a'e of 35 years.

(c) e %ust be &ualified for election as a %e%ber of the ouse of the People (i.e. he %ust

be re'istered as a oter in any Parlia%entary Constituency).

(d) e %ust not hold any office of profit under the *oern%ent of India+ or the *oern%ent

of any tate or under any local or other authority sub>ect to the control of any of the said

*oern%ents.

ut the followin' persons shall not be dee%ed to hold any office or profit and hence

&ualified for bein' a candidate for Presidentship. hey are (a) the President and


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Ans. Procedure for impeachment of the President Article /1 of the Indian Constitution

lays down the procedure for the i%peach%ent of the President. he proision of Article /1+

are as follows-

Accordin' to Article /1 (1) when a President is to be i%peached for iolation of the

Constitution+ the char'e shall be preferred by either ouse of Parlia%ent. Bo such char'e

shall be preferred unless

(a) the proposal to prefer such char'e is contained in a resolution which has been %oed

after at least fourteen days notice in writin' si'ned by not less than one fourth of the total

nu%ber of the %e%bers of the ouse has 'ien their intention to %oe the resolution

(Article /1(2))+ and

(b) such resolution has been passed by a %a>ority of not less than two thirds of the total

%e%bership of the ouse. (Article /1(3)).

Accordin' to Article /1(#)+ when a char'e has been so preferred by either ouse of the

Parlia%ent the other ouse shall inesti'ate the char'e of cause to be inesti'ated and the

Parlia%ent shall hae the ri'ht to appear and to be represented to such inesti'ation. If as a

result of the inesti'ation a resolution is passed by a %a>ority of not less than two thirds of

the total %e%bership of caused to be inesti'ated declarin' that the char'e preferred

a'ainst the President+ has been sustained+ such resolution shall hae the effect of re%oin'

the President fro% the office as fro% the date on which the resolution is so passed.

Q. 3% Discuss the Power of President under Constitution of India.

Ans. he powers of the President under the Indian Constitution+ are as 'ien below-

(1) Executie Po!ers - Article 52 of the Constitution lays down that there shall be a

President of India. urther Article 53(1) proides that the e!ecutie powers of the union shall

be ested in the President and it shall be e!ercised by hi% either directly or throu'h officers

sub-ordinate to hi% in accordance with law. he officers sub-ordinate to hi%+ include

%inisters also.-m2eo v. Sinat", AIR 1945 PC 13/.

(2) Po!er of Appointment - he President shall appoint the Pri%e $inister and other

%inisters shall be appointed by the President on the adice of the Pri%e $inister (Article

"5(1). he President appoints

(i) he Attorney *eneral for India (Article "/)7

(ii) he >ud'es of the upre%e Court (Article 12#)7

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(iii) he >ud'es of the i'h Courts (Article 21")7

(i) Co%ptroller and Auditor *eneral of India (Article 1#0)7

() *oernors of tates (Article 155)7

(i) inance Co%%ission (Article 20:)7

(ii) $e%bers and Chair%an of nion Public erice Co%%ission (Article 31/)7

(iii) oint Public erice Co%%ission for a 'roup of states (Article 31/)7

(i!) Co%%ission to inesti'ate on the condition of ac,ward Classes (Article 3#:)7

(!) Co%%ission to report on the Ad%inistration of cheduled Areas (Article 33)7

(!i) pecial officers for cheduled Castes and cheduled ribes (Article 330)7

(!ii) Co%%ission and Co%%ittee of Parlia%ent on official lan'ua'e (Article 3#1).

(") #ilitar$ Po!ers - he President shall be upre%e Co%%ander of the ;efence forces

and the e!ercise thereof shall be re'ulated by law and Parlia%ent shall hae power to

re'ulate or control the e!ercise of %ilitary powers by the President.

(%) Po!er to &rant pardons - Accordin' to Article "2 (1) the President shall hae the power

to 'rant pardons+ repriees+ respites or re%issions of punish%ent or to suspend+ re%it and

co%%ute the sentence of any person conicted by any offence

(a) in all cases where the punish%ent or sentence is by a Court $arshall.

(b) in all cases where the punish%ent or sentence is for an offence a'ainst any law relatin'

to a %atter to which the e!ecutie powers of the nion e!tends.

(c) in all cases where the sentence is a sentence of death.

() Emer&enc$ Po!ers Part D


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() *iplomatic Po!er he President appoints a%bassadors+ $inisters and Consuls to

other countries and receies in return correspondin' forei'n diplo%atic representaties. e

represents India in the International sphere and can ne'otiate treaties sub>ect to ratification

by Parlia%ent which has the power to le'islate on all %atters which brin' India into relations

with forei'n countries.

(+) Po!er to ,ummon and Address -ouses of Parliament

(i) he President shall fro% ti%e to ti%e - (a) su%%on the houses or either house to %eet at

such ti%e and place as he thin,s fit (b) proro'ue the ouse7 (c) ;issole the ouse of

Parlia%ent (Article 0/(1)).

(ii) he President %ay send %essa'e to either ouse of Parlia%ent whether with respect to

a ill then pendin' in Parlia%ent+ or otherwise+ and a ouse to which any %essa'e is so

sent shall+ with all conenient despatch+ consider any %atter re&uired by the %essa'e to be

ta,en into consideration @Article 0/(3).

(i) At the co%%ence%ent of the first session after each 'eneral election to the ouse of

the People and at the co%%ence%ent of the first session of each year the President shall

address both ouses of Parlia%ent asse%bled to'ether and infor% Parlia%ent of the cause

of its su%%ons @Article 0".

() Po!ers to &ie assent to /ills0 etc. - Ehen a ill has been passed by the ouses of

Parlia%ent it shall be presented to the President and the President shall declare either that

he assents to the ill or that he withholds assent therefro%.

ut the President %ay as soon as possible after the presentation to hi% of a ill for assent+

return the ill if it is not a $oney ill+ to the ouses with a %essa'e re&uestin' that they will

reconsider the ill or any specified proision thereof and+ in particular+ will consider the

desirability of introducin' any such a%end%ents as he %ay reco%%end in his %essa'e+

and when a ill is so returned+ the ouses shall reconsider the ill accordin'ly+ and if the

ill is passed a'ain by the ouses with or without a%end%ent and presented to the

President for assent the President shall not withhold assent therefro% @Article 111(1).

Bo ill for the for%ation of a new tate or the re-distribution of the boundaries of any tate

shall be introduced in either ouses of Parlia%ent e!cept on the reco%%endation of the

President. (Article 3).

() Ordinancema3in& Po!er of the President - @Article 123 Article 123 proides that if

at any ti%e when both ouses of the Parlia%ent are not in session and the President is

satisfied that circu%stances e!ist which render it necessary for hi% to ta,e i%%ediate

action+ he %ay issue such ordinance as the circu%stances appear to hi% to re&uire. he


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entitled to hold office to the full ter% of fie years fro% the date on which he enters upon his

office @Article /0(2).

Parlia%ent %ay %a,e such proisions as it thin,s fit for the dischar'e of the function of the

parlia%ent in any contin'ency+ not proided for in this Chapter (Article ":).

he ya abha (Article /#) and

shall on any acancy in the office of the President by reason of his death resi'nation or

re%oal or otherwise act as a President until the date on which a new President is elected

to fill such acancy enters upon his office. 4en when the President is unable to dischar'e

his function. ntil the date on which the President resu%es his duties (Article /5).

Q. *+ Discuss the position of Prime ,inister in the Council of

,inisters? What are his powers and functions?

Ans. Article "#(1) says that 6there shall be a Council of $inisters with the Pri%e $inister at

the head to aid and adise the President+ who shall in the e!ercise of his functions+ act in

accordance with such adise. Article "#(2) then proides that 9the &uestion whether any

adice was 'ien by the $inister to President cannot be in&uired by any Court.9

Accordin' to Article "5(1)+ the Pri%e $inister shall be appointed by the President and other

%inisters shall be appointed by President on the adice of the Pri%e $inister.

o the Constitution of India %a,es it obli'atory for the President to appoint a Council of

$inisters and he %ust e!ercise his functions with the aid and adice of the %inisters. he

relation between the President and the Council of $inisters is confidential in iew of Article

"#(2).

PO,I5IO7 O8 P9I#E #I7I,5E9

Accordin' to Article "5(1) the Pri%e $inister is appointed by the President and other

%inisters shall be appointed by President on adice of Pri%e $inister. In Parlia%entary

syste% of *oern%ent+ the selection of the Pri%e $inister is an i%portant function of

President. he Pri%e $inister will be appointed that person who has %a>ority of %e%bers in

ouse of People. o in appointin' the Pri%e $inister+ the President can hardly e!ercise

discretion and President6s choice to select Pri%e $inister is restricted to the leader of the

party in %a>ority in 8o, abha or a person who is in position to win the confidence of the

%a>ority in that ouse. hus the para%ount consideration for the President in appoint%ent

of Pri%e $inister is to see that the person chosen has support of %a>ority in the ouse.



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Accordin' to Article "5(3) 9Council of $inisters shall be collectiely responsible to the

ouse of the People.9

5he Council of #inisters consists of three cate&ories of #inisters - $inisters of

Cabinet ran,+ $inister of tate and ;eputy $inisters. he Cabinet ran, $inisters are the

heads of their depart%ents. All Cabinet $inisters are not %e%bers of the Cabinet. hey

attend the %eetin's of the Cabinet when specially inited by the Pri%e $inister and when

the %atter concernin' their depart%ent is discussed by the Cabinet. he salaries and

allowances of $inisters shall be such as Parlia%ent %ay fro% ti%e to ti%e by law

deter%ine. he $inisters of tate are for%ally of Cabinet status and are paid the sa%e

salary as the Cabinet $inisters and they hold independent char'e of their depart%ent. he

;eputy $inisters are paid lesser salary than the Cabinet ran, $inisters and hae no

separate char'e of a depart%ent. heir tas, is to assist the $inisters with who% they are

attached to in their ad%inistratie duties.

5he Ca6inet is the smaller 6od$ of the Council of #inisters. hou'h the Indian

Constitution nowhere %entions the word Cabinet but it does incorporate the essentials of a

Cabinet syste% of ritish *oern%ent. In ritain+ the Cabinet is a child of chance and is

essential based upon conention+ i.e.+ unwritten rules. he Cabinet is thus an e!tra-

constitutional 'rowth based upon conention. he Cabinet is the supre%e policy %a,in'

body. he Council of $inisters neer %eet as a whole it neer discusses policy %atters. All

senior %ost $inisters are the %e%bers of the Cabinet. he Council of $inisters shall be

collectiely responsible to the ouse of the People. he $inister %ust be a %e%ber of

either ouse of Parlia%ent.

A nonmem6er can 6ecome a #inister - Article "5(5) proides that a $inister who for a

period of si! consecutie %onths is not a %e%ber of either ouse of Parlia%ent shall cease

to be a $inister at the e!piration of that period. hus+ there is no le'al bar that a $inister

%ust be a $e%ber of Parlia%ent. An outsider %ay be appointed a $inister but he %ust

beco%e $e%ber of Parlia%ent within the period of si! %onths. If he is not elected within the

ti%e %entioned aboe he is bound to resi'n fro% the le'islature.

In S.P. Anand v. .). )eve !owda, AIR 199# SC $#$ it was held that a person who is nota %e%ber of either ouse of Parlia%ent can be appointed by Pri%e $inister for si! %onths

as per Article "5(5).

oweer in (.R. C"au"an v. State of Punjab, AIR $1 SC $## Su2eme Cout has

held that a non-%e%ber who fails to 'et elected durin' the period of si! consecutie %onths

after his appoint%ent as $inister cannot be re-appointed as $inister.


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5he Po!ers : 8unctions of Prime #inister he Council of $inisters headed by the Pri%e

$inister is the 6e!-facto6 e!ecutie head of the tate+ the President bein' the for%al

e!ecutie head. he function of the Council of $inisters+ is to aid and adise the President.

Preiously there e!isted a controersy as to whether the aboe tendered by the Council of

$inisters was bindin' on the President. he upre%e Court had decided in Ram Jawaya v.

State of Punjab, AIR 1995 SC 549 and S"ama'"e Sin" v. State of Punjab, AIR 19#4

SC $19 that the adice of Council of $inisters was bindin' on the President. After

Constitution (##th A%end%ent Act+ 1"0)+ the President %ay re&uire the Council of

$inisters to reconsider such adice. Article "#(2) proides that the &uestion whether any

and if so what adice was tendered by %inisters to the President shall not be re&uired into

in any court.

he Council of $inisters with Pri%e $inister at its head+ nor%ally conducts the

ad%inistration of the nion *oern%ent throu'h the arious depart%ents+ for%ulates the

policy of the *oern%ent+ deter%ines its le'islatie pro'ra%%e and use its initiatie in the

introduction and passa'e of le'islation. It is the cabinet headed by the Pri%e $inister+ that

prepares the nion bud'et and %oes de%ands for 'rants. he forei'n policy of India is

for%ulated by the cabinet. 4en the e%er'ency powers of the President+ are actually

e!ercised by the cabinet. In short the Council of $inisters with Pri%e $inister at the head+ is

the actual e!ecutie of the nion and the President is %erely its cere%onial head.

Q. *- Describe the proisions relatin/ to the appointment of

0ttorne" 1eneral of India. Discuss his functions.

Ans. Accordin' to Article "/ the President shall appoint a person who is &ualified to be

appointed a >ud'e of the upre%e Court of India to be Attorney *eneral of India. he

Attorney *eneral shall hold office durin' the pleasure of the President. e shall receie

such re%uneration as the President %ay deter%ine. hus the power to appoint the Attorney

*eneral and to re%oe hi% fro% office is ested in the President+ but he e!ercises this

power on the adice of the Council of $inisters.

*uties of Attorne$ ;eneral

he Attorney *eneral 'ies adice to the *oern%ent of India upon such le'al %atters as

%ay be referred to hi% and perfor% such duties of a le'al character as %ay be assi'ned to

hi%+ by the President fro% ti%e to ti%e. e dischar'es functions conferred on hi% by or

under the Constitution or any other law.



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Accordin' to the rules %ade by the President+ the Attorney *eneral+ in addition+ is re&uired

to appear on behalf of the *oern%ent of India in all cases in the upre%e Court in which

the *oern%ent of India is concerned+ also he represents the *oern%ent of India in any

reference %ade by President to the upre%e Court under Article 1#3.

he *oern%ent of India %ay also re&uire hi% to appear in any i'h Court in any case in

which the *oern%ent of India is concerned. In the perfor%ance of his duties+ the Attorney

*eneral has the ri'ht of audience in all courts in India. e has also the ri'ht to spea, in and

otherwise to ta,e part in the proceedin's of either ouse of Parlia%ent and parlia%entary

co%%ittees. e en>oys all the parlia%entary priile'es which are aailable to %e%bers of

the Parlia%ent.

Q. *2 Discuss the composition of Parliament of India. Discuss about

relation between the two Houses of Parliament.

Ans. Accordin' to Article " of Constitution+ the Parlia%ent of India+ shall consists of three

or'ans. he President+ the Council of tates (=a>ya abha) and the ouse of people (8o,

abha). hou'h President is not a %e%ber of either ouse of Parlia%ent+ yet he is inte'ral

part of the Parlia%ent. Bo ill passed by the Parlia%ent shall beco%e law unless assented

by President+ li,e the 4n'lish Crown the President is associated with the Parlia%ent of the

country.

5-E 9Aya abha or Council of tate is the upper ouse of Parlia%ent. he %a!i%u%

%e%bership of the =a>ya abha is fi!ed at 25: of who% 12 shall be no%inated by the

President and the re%ainder i.e. 230 shall be representaties of tates and nion

erritories (Article 0:(1).

he representaties of tates are elected by the %e%bers of the 8e'islatie Asse%blies in

accordance with the syste% of proportional representation by %eans of the sin'le

transferable ote. he representaties fro% the nion erritories are chosen in such a

%anner a Parlia%ent %ay by law deter%ine. he allocation of seats to each tate or nion

erritory and nu%bers of seats allocated to each in the =a>ya abha are specified in the

ourth chedule. he 12 no%inated persons are chosen by the President fro% a%on'st the

persons hain' special ,nowled'e or practical e!perience in 8iterature+ science+ Art and

ocial erice @Article 0:(3). he no%inated %e%bers do not participate in the election of

the President of India.



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he ya abha. he =a>ya

abha shall also elect a %e%ber of the ouse to be a ;eputy Chair%an @Article 0. Ehen

the office of Chair%an is acant or he is actin' as the ya abha as the President %ay appoint for that purpose. he Chair%an presides oer

the sittin's of the ouse and in the absence the ;eputy Chair%an presides. If both are

absent then such person as %ay be deter%ined by the rule of procedure of the Council and

if no such person is present such other person as %ay be deter%ined by the Council shall

act as Chair%an @Article 1.

A ;eputy Chair%an shall acate his office if he ceases to be a %e%ber of the Council. e

%ay resi'n his office by writin' to the Chair%an. e %ay also be re%oed fro% his office by

a resolution of the Council passed by a %a>ority of all the then %e%ber present @Article :.

ut such a resolution can only be %oed by 'iin' at least 1# days6 notice. Ehile a

resolution for the re%oal of the Chair%an ($a ,a6ha is a permanent -ouse. Althou'h+ the =a>ya abha is a per%anent body

but in respect of powers it en>oys inferior position is-a-is the 8o, abha. A %oney bill can

only be introduced in the 8o, abha. he =a>ya abha has no powers in respect of a

%oney bill. A ote of non-confidence cannot be passed a'ainst the *oern%ent by the

=a>ya abha.

oweer =a>ya abha fulfil followin' purposes-

(1) It is considered useful because senior-politicians and states%en %i'ht 'et an easy

access in it without under'oin' the ordeal of 'eneral election necessary for the %e%bers of

8o, abha so that e!perience and talent is not lost to the country and they %ay discuss

&uestion of public interest.

(2) he e!istence of =a>ya abha stops the drastic chan'es in the law of the country %ade

in the heat of %onetary passion and affords opportunity for its reconsideration by delayin'

its adoption for a li%ited period.

(3) he =a>ya abha is a ouse where the tate are represented ,eepin' with the federal

principles @Articles 03(a)+ (b).

?O@ ,A/-A


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5he maximum num6er of mem6ership of ?o3 ,a6ha is fixed at %. Article 01 proides

that out of 5#5+ 525 will be elected %e%bers by election in different territorial constituencies

in tates and 2: %e%bers will represent nion erritories. he %e%bers of nion

erritories shall be chosen in such a %anner as the Parlia%ent %ay by law proide. he

representaties of the states are chosen by direct election fro% territorial constituencies in

the states on the basis of adult suffra'e. he President %ay+ if he is of the opinion that the

An'lo-Indian co%%unity is not ade&uacy represented in the 8o, abha+ no%inate not %ore

than two %e%bers of that co%%unity to the 8o, abha. 4ery citi?en of India who is not

less than 10 years of a'e shall be entitled to ta,e part in the parlia%entary election and

shall hae ri'ht to ote in the election of 8o, abha+ if he is not otherwise dis&ualified under

the =epresentation of Peoples6 Act.

Accordin' to Article 01(2)(a) there shall be allotted to each state a nu%ber of seats in the

8o, abha+ in such %anner that the ratio between that nu%ber and the population of the

state is+ so far as practicable+ the sa%e for all states7 and (b) each state shall be diided into

territorial constituencies in such %anner that the ratio between the population of each

constituency and the nu%ber of seats allotted to it+ so far as practicable+ the sa%e

throu'hout the state.

Proided that the proisions of sub-clause (a) of clause (2) of Article 01 shall not be

applicable for the purpose of allot%ent of seats in the 8o, abha to any state so lon' as the

population of the state does not e!tend to si! %illions.

he allocation of seats in the 8o, abha to each state is deter%ined on the basis of

population. he e!pression+ 9population9 in this article %eans the population as ascertained

at the last precedin' census. he reference in this clause to the last precedin' census is

census of 1"1. he Constitution (#2nd A%end%ent act+ 1"/) proides that the seats in

the 8o, abha will be allocated on the basis of 1"1 census and this will continue to be so

till the year 2:::. his %eans that there will be no chan'e in the nu%ber of seats in the 8o,

abha on the basis of 101 and 11 censuses. he A%end%ent proides that the re-

deli%itation of constituencies underta,en after each census shall ta,e effect on such date

as the President %ay by order specify.eats shall be resered in the 8o, abha for the cheduled Castes and the cheduled

ribes (Article 33:). his reseration was %ade ori'inally for ten years fro% the

co%%ence%ent of the Constitution. Bow it has been e!tended to forty years (Article 33#).

5he normal life of the ?o3 ,a6ha is fie $ears. his ter% %ay be reduced by a

dissolution of the ouse by the President. he nor%al life of 8o, abha %ay be e!tended


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where a procla%ation of e%er'ency under Article 352 is in operation. uch e!tension

should not e!ceed one year at a ti%e and not e!ceed in any case beyond a period of si!

%onths after procla%ation of e%er'ency has ceased to be in operation (Article 03).

,essions of Parliament - he President shall fro% ti%e to ti%e su%%on each ouse of

Parlia%ent to %eet at such ti%e and place as he thin,s fit+ but si! %onths shall not

interene between its last sittin' in one session and the date appointed for its first sittin' in

the ne!t session @Article 05(1).

At the co%%ence%ent of the first session after each 'eneral election to the ouse of

People and at the co%%ence%ent of the first session of each year the President shall

address both ouses of Parlia%ent asse%bled to'ether and infor% Parlia%ent of the

causes of its su%%ons (Article 0").

he President %ay address either ouse of Parlia%ent or both ouses asse%bled to'ether

and for that purpose re&uire the attendance of %e%bers. he President %ay send

%essa'es to either ouses of Parlia%ent+ whether with respect to a ill then pendin' in

Parlia%ent or otherwise+ and a ouse to which any %essa'e is sent shall with conenient

despatch consider any %atter re&uired by the %essa'e to be ta,en into consideration.

(Article 0/).

Proro&ation of the -ouses. - he President %ay fro% ti%e to ti%e proro'ue the ouses or

either ouse. Proro'ation does not end the life of the ouse. It only ter%inates its session.

he ouse %ay need and consider the pendin' business.

*issolution of ?o3 ,a6ha - he President %ay+ fro% ti%e to ti%e+ dissole the 8o, abha

(Article 05). oweer+ in actual practice this power sis e!ercised by the Pri%e $inister and

the President dissoles the 8o, abha on his adice. o lon' as the Pri%e $inister is in

%a>ority in the le'islature the President is bound to dissole the 8o, abha if adised by

hi%. ut if the Pri%e $inister looses the %a>ority in the ouse or defeated in a ote of no-

confidence the President will not be bound to dissole the 8o, abha on the adice of such

a Pri%e $inister. In such a case+ the President %ay e!ercise his own discretion.

Q. *3 What are the Quali!cations for ,embership of Parliament?

What are their disuali!cation ?

Ans. Qualification for mem6ership of Parliament - A person for bein' chosen as a

%e%ber for Parlia%ent %ust be (a) a citi?en of India+ (b) not less than 3: years of a'e in the

case of the Council of tates and not less than 25 years of a'e in the case of ouse of the



17/95

People+ (c) possessin' such other &ualification as %ay be prescribed by Parlia%ent+ (d)

ta,en an oath before so%e person authorised in that behalf by the 4lection Co%%ission

accordin' to for% set out for the purpose in hird chedule @Article 0#.

he =epresentation of Peoples Act+ 151+ re&uires that a person6s na%e should be

re'istered as a oter in any Parlia%ent Constituency.

he Constituency does not prescribe any educational &ualification for %e%bership of

Parlia%ent.

*isualifications - A person is dis&ualified for bein' chosen and for continuin' as a

%e%ber of Parlia%ent if he suffers fro% followin' dis&ualifications @Article 1:2 (a) If he

holds any office of profit under Central or the tate *oern%ent other than an office

declared by Parlia%ent by law not to dis&ualify its holder @Article 1:2(1). (b) If he is of

unsound %ind and a co%petent court has declared hi% to be so. (c) If he is an

undischar'ed insolent. (d) If he is not a citi?en of India+ or has oluntarily ac&uired the

citi?enship of a forei'n tate+ or under any ac,nowled'e%ent of alle'iance or adherence of

a forei'n state. (e) If he is so dis&ualified under any law %ade by Parlia%ent. or this

purpose+ Parlia%ent has prescribed the necessary dis&ualifications in the =epresentation of

Peoples Act+ 151.

A $inister in the Central or the tate *oern%ent is not considered as holdin' the office of

profit @Article 1:2(2).

*isualifications under the 9epresentation of Peoples Act are - (1) Corrupt practice at

an election+ (2) coniction for an offence resultin' in i%prison%ent for two or %ore years+ (3)

failure to lod'e an account for election e!penses+ (#) hain' an interest or share in the

contract for supply of 'oods or e!ecution of any wor, or perfor%ance of a serice to the

*oern%ent+ (5) bein' a director or %ana'in' a'ent or holdin' an office of profit in a

Corporation in which the *oern%ent has 25F share+ (/) dis%issal fro% *oern%ent

serice for corruption or disloyalty to the tate.

*isualification on &round of defection - the 52nd a%end%ent has a%ended Articles

1:1+ 1:2+ 1: and 11 and added a new chedule+ the enth chedule to the Constitution

which specifies the dis&ualifications on the 'round of defection. he a%end%ent has addeda new clause (2) to Articles 1:2 and 11 which proide that a %e%ber shall be dis&ualified

for bein' a %e%ber of either ouse of Parlia%ent or of tate 8e'islatures if he incurs the

dis&ualifications specified in the enth chedule-

(1) if he oluntarily 'ies up the %e%bership of the political party on whose tic,et he is

elected to the ouse7 or


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Ans. he %ost i%portant functions of the Parlia%ent is the %a,in' of laws. he le'islatie

powers of the Parlia%ent is initiated throu'h procedure for introduction and passa'e of a

ill. he ills %ay be of two ,inds-

(a) Hrdinary ills+ (b) $oney ills

(a) Procedure for passin& Ordinar$ /ills 4!cept $oney ills and other inancial ill+ a

ill %ay ori'inate in either ouse of Parlia%ent. uch a ill shall not be dee%ed to hae

been passed by the ouses of Parlia%ent unless it has been a'reed to by both ouses+

either without a%end%ent or with such a%end%ents only as are a'reed to by both ouses.

A ill pendin' in Parlia%ent shall not lapse by reason of proro'ation of the ouses.

A ill pendin' in the =a>ya abha which has not been passed by the 8o, abha shall not

lapse on the dissolution of the 8o, abha.

A ill which is pendin' in 8o, abha or which hain' been passed by the 8o, abha is

pendin' in =a>ya abha shall+ sub>ect to the proision of Article 1:0+ lapse on the

dissolution of the 8o, abha (Article 1:").

ected by other ouse7 or

(b) the ouses hae finally disa'reed as to the a%end%ents to be %ade in the ill7

(c) %ore than si! %onths hae elapsed fro% the date of the reception of the ill by the other

ouse without the ill bein' passed by it.

Ehere the President has under clause (1) notified his intention of su%%onin' the ouses to

%eet in a >oint sittin' neither ouse shall proceed further with the ill+ but the President %ay

at any ti%e after the date of his notification+ su%%on the ouses to %eet in a >oint sittin' for

the purpose specified in the notification and if he does so+ the ouses shall %eet

accordin'ly.

If at >oint sittin' of the ouses+ the ill with such a%end%ents+ if any+ as a'reed in the >oint

sittin' is passed by %a>ority of the total nu%ber of %e%bers of both ouses present and

otin'+ it shall be dee%ed to hae been passed by both ouses for the purpose of this

Constitution.

,pecial Procedure in respect of #one$ /ills - A %oney ill shall not be introduced in the

Council of tates e!cept on the reco%%endation of the President @Article 11"(1).


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After a $oney ills has been passed by the 8o, abha it shall be trans%itted to the =a>ya

abha for its reco%%endations and the =a>ya abha shall within a period of fourteen days

fro% the date of its receipt return the ill to the 8o, abha with its reco%%endations and

the 8o, abha %ay thereupon either accept or re>ect all or any of the reco%%endations of

the =a>ya abha.

If the 8o, abha accepts any of the reco%%endations of the =a>ya abha+ the %oney ill

shall be dee%ed to hae been passed by both ouses with the a%end%ents reco%%ended

by the =a>ya abha and accepted by the 8o, abha.

If the 8o, abha does not accept any of the reco%%endations of the =a>ya abha+ the

$oney ill shall be dee%ed to hae been passed by both ouses in the for% in which it

was passed by the 8o, abha without any of the a%end%ents reco%%ended by the =a>ya

abha.

If a $oney ill passed by the 8o, abha and trans%itted to the =a>ya abha for its

reco%%endations is not returned to the 8o, abha within the said period of fourteen days+ it

shall be dee%ed to hae passed by both ouses at the e!piration of the said period in the

for% in which it was passed by the 8o, abha (Article 1:).

=a>ya abha+ thus en>oys only a reco%%endatory authority oer the passa'e of %oney ill.

It is not authorised to re>ect or a%ount $oney ill passed by the 8o, abha.

A,,E75 5O /I??,

Ehen a ill has been passed by both the ouses of Parlia%ent+ it shall be presented to

President+ and the President shall declare either that he assents to the ill or that he

withholds assent therefro%.

he President %ay as soon as possible+ after the presentation to hi%+ a ill for assent+

return the ill+ if it is not %oney ill+ to the ouses with a %essa'e re&uestin' that they will

reconsider the ill or any specified proision thereof and in particular will consider the

desirability of introducin' such a%end%ents as he %ay reco%%end in his %essa'e and

when a ill is so returned+ the ouse shall reconsider the ill+ accordin'ly and if the ill is

passed a'ain by the ouses with or without a%end%ent and presented to President for

assent the President shall not withhold assent therefro% (Article 111).

Q. *5 Write 4ote on ,one" ill

Ans. #one$ /ill - Article 11:(1) defines that a $oney ill is a ill which contains only

proisions with respect to all or any of the followin' %atters-

(a) the i%position+ abolition+ re%ission+ alteration or re'ulation of any ta!+

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(b) the re'ulation of the borrowin' of %oney or the 'iin' of any 'uarantee by the

*oern%ent of India+

(c) the custody of the Consolidated und or the Contin'ency und+ the pay%ent or

withdrawal of %oney fro% such und+

(d) the appropriation of %oney out of the Consolidated und of India+

(e) the declarin' of any e!penditure to be char'ed on the Consolidated und of India+

(f) the receipt of %oney on account of the Consolidated und of India or the public account

of India or the custody or issue of such %oney or the audit of the accounts of the nion or of

a tate+

(') any %atter incidental to any of the %atters specified in sub- clauses (a) to (f).

ut a ill is not %oney ill by reason only that it proides for-

(a) the i%position of fines or other pecuniary penalties+ or (b) the pay%ent of fees for licence or serice rendered+ or

(c) i%position+ abolition+ re%ission+ alteration or re'ulation of any ta! by any local authority

or body for local purposes @Article 113(2).

If any &uestion arises whether ill is a $oney ill or not the decision of the pea,er of the

8o, abha shall be final. o when a ill is sent to the =a>ya abha or presented to the

President for assent+ a certificate of the pea,er shall be endorsed on it that it is a $oney

ill @Article 11:(#).

A #one$ /ill can onl$ 6e introduced in the ?o3 ,a6ha. It cannot be introduced in =a>yaabha @Article 1:(1). A $oney ill can only be introduced with the reco%%endation of the

President. oweer+ no reco%%endation of the President is necessary for the %oin' of an

a%end%ent ta,in' proision for the reduction or abolition of any ta! @Article 11"(1)+ Proiso.

After a $oney ill has been passed by the 8o, abha+ it is sent to the =a>ya abha for its

reco%%endations. he =a>ya abha %ust return the ill to the 8o, abha within 1# days

fro% the receipt of the ill with its reco%%endation. he 8o, abha %ay either accept or

re>ect all or any of the reco%%endations of the =a>ya abha. If the 8o, abha accepts any

of the reco%%endations by the 8o, abha+ the $oney ill shall be dee%ed to hae beenpassed by both ouses with the a%end%ents by the =a>ya abha and accepted by the 8o,

abha. If a $oney ill passed by the 8o, abha and sent to the =a>ya abha for its

reco%%endations is not returned to the 8o, abha within 1# days+ the ill shall be dee%ed

to hae been passed by both ouses at the e!piration of the said (1# days) period in the

for% in which it was passed by the 8o, abha. hus the =a>ya abha can at %ost detain a


22/95

$oney ill for 1# days only @Article 1:. If the 8o, abha re>ects all the reco%%endations

of the =a>ya abha+ the bill shall be dee%ed to hae been passed by both ouses in the

for% in which it was passed by the 8o, abha. hen it will be presented to the

Q. *6 What do "ou understand b" the 0nnual 7inancial 8tatement

and what is the procedure in respect of it?

Ans. Annual 8inancial ,tatement /ud&et BArticle 112 - Accordin' to Article 112 the

President shall in respect of eery financial year cause to be laid before both the ouses of

Parlia%ent an annual financial state%ent co%%only ,now as the ud'et. his state%ent

'ies out the esti%ated inco%e and e!penditure for that year. his esti%ated e!penditure is

shown separately under two heads - (a) the su%s char'ed upon the Consolidated und of

India and (b) the su%s re&uired to %eet other e!penditure out of the Consolidated und of

India. he e!penditure or reenue account should also be distin'uished fro% the other

e!penditures.

he followin' e!penditures are char'ed on the Consolidated und of India

(1) he alary and allowances of the President and other e!penditure relatin' to his office.

(2) alaries and allowances of the Chair%an and ;eputy Chair%an of the =a>ya abha and

the pea,er and the ;eputy pea,er of the 8o, abha.

(3) ;ebt char'es for which the *oern%ent of India is liable.(#) alaries+ allowances and pensions payable to ud'es of the upre%e Court+ the

Co%ptroller and Auditor-*eneral of India+ ud'es of the i'h Courts and ederal Court.

(5) Any su%s re&uired to satisfy any >ud'e%ent+ decree or award of any court or tribunal.

(/) Any other e!penditure declared by this Constitution or by Parlia%ent by law to be so

char'ed.

*iscussion and otin& on /ud&et - Accordin' to Article 113 the e!penditure which is

char'ed on the Consolidated und of India shall not be sub%itted to the ote of Parlia%ent.

oweer+ ouses are not preented fro% discussin' any of these ite%s of e!penditure.Appropriate /ills - Bo %oney can be ta,en out fro% the Consolidated und of India unless

the Appropriation Act is passed @Article 11#(3). herefore after the de%ands for 'rants

under Article 113 are passed by the 8o, abha+ a ill ,nown as Appropriation Act is

introduced in the 8o, abha. he ill specifies all the 'rants %ade by the 8o, abha+ the

e!penditure char'e on the Consolidated und of India as shown in the preious state%ent



23/95

before Parlia%ent. ut no a%end%ent shall be proposed to the Appropriation ill which will

hae the effect of aryin' the a%ount or alterin' the destination of any 'rant so %ade or of

aryin' the a%ount of any e!penditure char'ed on the Consolidated fund of India.

,upplementar$ Additional or Excess ;rants BArticle 11 - If the a%ount authorised by

the Appropriation Act to be e!pended for a particular serice is found to be insufficient for

the purposes of that year or when a need has arisen durin' the current financial year upon

so%e new serice not conte%plated for that year+ for any additional e!penditure+ a

supple%entary 'rant is %ade by Parlia%ent. he procedure is the sa%e for both the

Appropriation Act and the upple%entary 'rant.

Dotes on Account Dotes on Credit and Exceptional ;rant - efore the Appropriation

Act is passed no %oney is to be withdrawn fro% the Consolidated und of India. ut the

*oern%ent %ay need %oney to spend before it is passed. Accordin'ly under Article 11/(a)

the 8o, abha can 'rant a 8i%ited su% fro% the Consolidated und of India to the

4!ecutie to spend till the Appropriation Act is passed by Parlia%ent. nder clause (b) the

8o, abha can %a,e a 'rant for %eetin' an une!pected de%and upon the resources of

India when on account of the %a'nitude or the indefinite character of the serice+ the

de%and cannot be stated with details ordinarily 'ien in the Annual inancial tate%ent.

nder Clause (3) the 8o, abha has the power to %a,e e!ceptional 'rant which for%s no

part of the current serice of any financial year. oweer+ it is necessary that Parlia%ent

shall %a,e a law for withdrawal of %oney fro% the Consolidated und of India for the

purpose the 8o, abha has sanctioned the 'rants either by Annual Appropriation Act or

upple%entary *rant+ 4!cess *rant+


24/95

re'ardin' their respectie powers. herefore+ in order to %aintain the supre%acy of the

Constitution+ there %ust be an independent and i%partial authority to decide disputes

between the Centre and the tates or the tates inter se. his function can only be

entrusted to a >udicial body. he upre%e Court under our Constitution is such an

arbitration. It is the final interpreter and 'uardian of the Constitution.

Composition of the Court Article 12# of our Constitution proides that the upre%e Court

of India shall consist of a Chief ustice of India and 25 other >ud'es until the nu%ber of

>ud'es is increased.

Appointment of


25/95

India. he sole indiidual opinion of the Chief ustice of India does not constitute

9consultation9 within the %eanin' of the said articles. he %a>ority held that in re'ard to the

appoint%ent of >ud'es to the upre%e Court under Article 12#(2)+ the Chief ustice of India

should consult 9a colle'iu% of four senior%ost ud'es of the upre%e Court9 and %ade it

clear that if 9two ud'es 'ie aderse opinion the Chief ustice should not send the

reco%%endation to the *oern%ent.9 he colle'iu% %ust include the successor Chief

ustice of India. he opinion of the colle'iu% %ust be in writin' and the Chief ustice of

India should send the reco%%endation to the President alon' with his own

reco%%endations.

he reco%%endations of the colle'iu% should be based on a consensus and unless the

opinion is in confor%ity with that of the Chief ustice of India+ no reco%%endation is to be

%ade. In re'ard to the appoint%ent of ud'es of the i'h Courts+ the Court held that the

colle'iu% should consist of the Chief ustice of India and any two senior%ost ud'es of the

upre%e Court. In re'ard to transfer of i'h Court ud'e the Court held that in addition to

the colle'iu% of four ud'es+ the Chief ustice of India is re&uired to consult Chief ustices

of the two i'h Courts (one fro% which the ud'e is bein' transferred and the other

receiin' hi%).

he Court held that the appoint%ent of the ud'es of hi'her courts can be challen'ed only

on the 'round that the consultation power has not been in confor%ity with the 'uidelines

laid down in the 13 >ud'e%ent and as per opinion 'ien in 1 decision i.e.+ without

consultin' four senior %ost ud'es of the Ape! Court.

he decision of the upre%e Court has struc, a 'olden rule. It has %ade the consultation

process %ore de%ocratic and transparent.

Qualification of a urist.

9E#ODA? O8 A ority of the total %e%bership of that ouse

and by a %a>ority of not less than two third of the %e%bers of that ouse present and otin'


26/95


27/95

Ans. he upre%e Court of India is a court of record as proided in Article 12 of the

Constitution. ;r. A%bed,ar defined a court of record as 9a court the record of which are

ad%itted to be of eidentiary alue and they are not to be &uestioned when they are

produced before any court.9

Article 12 further proides that the upre%e Court shall hae all the powers of such a court

includin' the power to punish for its conte%pt. his power necessarily follows fro% that

position of the upre%e Court.

urisdiction-

(i) ori&inal (ii) Appellate (iii) Adisor$ (i) Ori&inal urisdiction. he upre%e Court shall hae+ to the e!clusion of any other

court+ ori'inal >urisdiction in any dispute

(a) between the *oern%ent of India and one or %ore states7 or

(b) between the *oern%ent of India and any state or states on the one side and one or

%ore other states on the other7 or

(c) between two or %ore states.

he upre%e Court in its ori'inal >urisdiction cannot entertain any suit brou'ht by priate

indiidual+ a'ainst the *oern%ent of India. he dispute relatin' to the ori'inal >urisdiction of

the court %ust inole a &uestion of law or fact on which the e!istence of le'al ri'ht

depends. his %eans that the court has no >urisdiction in %atters of political nature. A le'al

ri'ht %eans a ri'ht-reco'nised by law and capable of bein' enforced by the power of a

state but not necessarily in a court of law.

he ori'inal >urisdiction of the upre%e Court+ howeer+ does not e!tend to the followin'

%atters

(1) he >urisdiction of the upre%e Court shall not e!tend to a dispute arisin' out of any

treaty+ a'ree%ent+ coenant+ en'a'e%ent+ sanad+ or other si%ilar instru%ent which was

e!ecuted before the co%%ence%ent of the Constitution and continues to be in operation or

which proides that the >urisdiction of the upre%e Court shall not e!tend to such a dispute.

(2) nder Article 2/#+ Parlia%ent %ay by law e!clude the >urisdiction of the upre%e Court

in disputes with respect to the use+ distribution or control of the water of any inter-state rier

or rier-alley.

(3) $atters referred to the inance Co%%ission under Article 20:.


28/95

(#) $atters re'ardin' ad>ust%ent of certain e!penses between the nion and the tate

under Article 2:.

Q. *& Discuss the Ciil and Constitutional and Criminal appellate

9urisdiction of 8upreme Court. 0lso discuss re/ardin/ special leae to

appeal.

Ans. Appellate urisdiction of the upre%e Court can be diided into four %ain cate'ories-

(1) constitutional %atters+

(2) ciil %atters+

(3) cri%inal %atters+

(#) special leae to appeal.

(1) Appeal in Constitutional matters - nder Article 132(1) an appeal shall lie to the

upre%e Court fro% any >ud'e%ent+ decree or final order or a i'h Court whether in ciil+

cri%inal or other proceedin's+ if the i'h Court certifies under Article 13#-A that the case

inoles a substantial &uestion of law as to the interpretation of this Constitution. Ehere

such a certificate is 'ien any party in the case %ay appeal to the upre%e Court on the

'round that any such &uestion as aforesaid has been wron'ly decided.

he ob>ect of the new Article 13#:a is to aoid delay in 'rantin' certificate by the i'h Court

for appeal to the upre%e Court. nder Article 13#-A the i'h Court can 'rant a certificate

for appeal to the upre%e Court under Article 132 either on its own %otion or on 6oral6

application of the a''rieed party i%%ediately after passin' the >ud'e%ent+ decree or final

order. Prior to this+ the i'h Court could do so only on the application of the a''rieed party.

nder Article 132(1) three conditions are necessary for the 'rant of certificate by the i'h

Court-

(1) the order appealed %ust be a'ainst a >ud'%ent+ decree or final order %ade by the i'h

Court in ciil+ cri%inal or other proceedin's.

(2) the case %ust inole a &uestion of law as to the interpretation of this Constitution+ and

(3) if the i'h Court under Article 13#-A certifies that the case be heard by the upre%e

Court.

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(2) Appeal in Ciil Cases - Article 133 proides that an appeal shall lie to the upre%e

Court fro% any >ud'%ent decree or final order in a ciil proceedin' of a i'h Court only if

the i'h Court certifies under Article 13#-A

(i) that the case inoles a substantial &uestion of law of 'eneral i%portance+ and

(ii) that in the opinion of the i'h Court the said &uestion needs to be decided by the

upre%e Court.

he Constitution (3:th A%end%ent Act+ 1"2) has re%oed the condition of %onetary alue

that an appeal could 'o to the upre%e Court only when the a%ount or alue in dispute

was not less than =s.2:+:::. nder the a%ended proision of Article 133+ now an appeal

could 'o to the upre%e Court only if the i'h Court certifies under Article 13#-A that the

case inoles the substantial &uestion of 'eneral i%portance.

In 6ianma* v. )ayanoba, AIR 19+ SC 431+ the i'h Court dis%issed the appeal by one

word+ order 9;is%issal9 a'ainst the >ud'e%ent of the ciil >ud'e. he upre%e Court found

that the appellant could hae raised serious &uestion of law and facts before the i'h Court+

and therefore+ held that it was a fit case which ou'ht to be ad%itted and disposed off+ on

%erits. he case was re%itted to the i'h Court for disposal on %erits.

he e!pression+ 9ciil proceedin's9 %eans proceedin's in which a party asserts the

e!istence of a ciil ri'ht. he ciil proceedin' is one in which a person see,s to re%edy by

an appropriate process the alle'ed infrin'e%ent of his ciil ri'hts a'ainst another person or

the tate and which if the clai% is proed+ would result in the declaration e!press or i%plied+

of the ri'ht clai%ed and relief+ such as pay%ent of debt+ da%a'e+ co%pensation etc. here

is no 'round for restrictin' the e!pression 9ciil proceedin's9 only to those proceedin's

which arise out of ciil suits in proceedin's which are tried as ciil suits. Accordin'ly a

proceedin' before a i'h Court under Article 22/ for the 'rant of writ+ constitutes a ciil

proceedin'.

In an appeal under Article 133+ the appellant cannot be allowed to raise new 'rounds not

raised before the lower court.

Bo appeal shall lie+ unless Parlia%ent by law otherwise proides to the upre%e Court fro%

the >ud'%ent+ decree or final order of a sin'le >ud'e of a i'h Court. his prohibition can be

re%oed by Parlia%ent by law. uch a law will not be an a%end%ent of the Constitution.

(") Appeal in Criminal Cases - Article 13# - Accordin' to Article 13# an appeal lies to the

upre%e Court fro% any >ud'e%ent+ final order or sentence in a cri%inal proceedin' of a

i'h Court in the followin' two ways-

(a) Eithout a certificate of i'h Court+ (b) with a certificate of the i'h Court.


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(a) Fithout a Certificate - Article 13# (a)(b) - An appeal lies to the upre%e Court without

the certificate of the i'h Court if the i'h Court-

(a) has no appeal reersed an order of ac&uittal of an accused person and sentenced hi%

to death7

(b) has withdrawn for trial before itself any case fro% any court subordinate to its authority

and has in such trial conicted the accused person and sentenced hi% to death.

ut if the i'h Court has reersed the order of coniction and has ordered the ac&uittal of

an accused+ no appeal would lie to the upre%e Court.

(6) Fith a Certificate - Article 13#(c) - nder clause (c) an appeal lies to the upre%e

Court if the i'h Court certifies under Article 13#-A that it is a fit case for appeal to the

upre%e Court.

he power of the i'h Court to 'rant fitness certificate in the cri%inal cases is a

discretionary power+ but the discretion is a >udicial one and %ust be >udicially e!ercised

alon'with the well established lines which 'oern these %atters.

It is to be noted that under Article 13#(1)(c)+ the upre%e Court is not constituted as 'eneral

court of cri%inal appeal. A li%ited cri%inal appellate >urisdiction is conferred upon the

upre%e Court by Article 13#.

Parlia%ent is e%powered under Article 13#(2) to e!tend the appellate >urisdiction of the

upre%e Court in cri%inal %atters. In e!ercise of the powers under clause (2) of Article 13#

Parlia%ent has enacted the upre%e Court 4nlar'e%ent of Cri%inal Appellate urisdiction

Act+ 1":. ection 2 of the aboe Act proides - 9Eithout pre>udice to the powers conferred

on the upre%e Court by clause (1) of Article 13# of the Constitution+ an appeal shall lie to

the upre%e Court fro% any >ud'e%ent+ final order or sentence in a cri%inal proceedin' of

a i'h Court in the territory of India if the i'h Court-

(a) has on appeal reersed an order of ac&uittal of an accused person and sentenced hi%

to i%prison%ent for life or to i%prison%ent for a period of not less than ten years7

(b) has withdrawn for trial before itself any case fro% any court subordinate to its authority

and has in such trial conicted the accused person and sentenced hi% to i%prison%ent for

life or to i%prison%ent for a period of not less than ten years.9

(%) Appeal 6$ ,pecial ?eae nder Article 13/ the upre%e Court is authorised to 'rant

in its discretion special leae to appeal fro% (a) any >ud'e%ent+ decree+ deter%ination+

sentence or order+ (b) in any case or %atter+ (c) passed or %ade by any court or tribunal in

the territory of India.


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his Article ests ery wide powers in the upre%e Court. he power 'ien under this

Article is in the nature of a special residuary powers which are e!ercisable outside the

puriew of ordinary law. Articles 132 to 135 deals with ordinary appeals to the upre%e

Court in cases where the needs of >ustice de%and interference by the hi'hest Court of the

land. his Article is worded in the widest possible ter%s. It ests in the upre%e Court a

plenary >urisdiction in the %atter of entertainin' and hearin' appeals by 'rantin' special

leae a'ainst any ,ind of >ud'%ent or order %ade by any Court or ribunal (e!cept a

$ilitary ribunal) in any proceedin's and the e!ercise of this power is left entirely to the

discretion of the court unfettered by any restrictions and this power cannot be curtailed by

any le'islation short of a%endin' the Article itself.

Q. 5+ Discuss about 0disor" 9urisdiction of the 8upreme Court and

Powers of 8upreme Court to reiew its own 9ud/ement or order and

ma:in/ rules?

Ans. Adisor$ urisdiction. Accordin' to clause (1) of Article 1#3+ wheneer it appears to the

President that a &uestion of law or fact has arisen or is li,ely to arise+ which is of such

nature and of such public i%portance that it is e!pedient to obtain the opinion of upre%e

Court upon it+ he %ay refer it to the Court for consideration. he Court then %ay after such

hearin' as it thin,s fit+ report to the President its opinion thereon. nder Clause (2) of this

Article+ a %atter which is e!cluded fro% the upre%e Court6s >urisdiction under Article 131+

%ay be referred to it for opinion and the court shall+ after such hearin' as it thin,s fit+ report

to the President its opinion thereon.

In clause (1) of Article 1#3+ the use of the word+ 9%ay9 indicates that it is not obli'atory on

the upre%e Court to %a,e a report on the reference %ade to it. he court has the

discretion in the %atter and %ay in proper case+ for 'ood reasons+ decline to e!press any

opinion on the &uestion sub%itted to it. oweer+ in clause (2)+ the word used is 9shall9

which indicates that it is obli'atory for the court to 'ie its opinion on a reference %ade

thereunder.

he e!perience of a few other countries %ay be useful and instructie in this respect. he

.. upre%e Court has consistently refused to pronounce adisory opinions on abstract

le'al &uestions. he i'h Court of Australia has also refused to e!ercise adisory opinion.

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ut to so%e e!tent the sa%e purpose is achieed by per%ittin' an Attorney *eneral to brin'

proceedin's in the i'h Court to secure a deter%ination of the alidity of national or state

le'islation after its passa'e by the le'islature whether before or after it has entered into

force.

In the li'ht of this forei'n e!perience+ the upre%e Court of India+ has considered the

%atter of its adisory >urisdiction in =e erala 4ducation ills+ 15" (AI= 150 C 5/).

ollowin' propositions %ay be called out fro% its obserations therein

(1) he upre%e Court %ay in proper case for 'ood reasons decline to e!press an opinion

on a reference %ade to it under Article 1#3(1).

(2) he &uestion alidity of a bill rather than statute in force+ %ay be referred to the court for

Article 1#3(1) does conte%plate reference to a &uestion of law that is 9li,ely to arise9.

(3) It is for the President to deter%ine what &uestion should be referred to the court. he

court cannot 'o beyond the reference.

pto the year 2::1+ the President has %ade 11 references to upre%e Court. he

i%portant a%on' the% are+ =e ;elhi 8aws Act Case in 151+ =e erala 4ducation ills+

150+ =e erubari Case in 15/+ esha in'h Case in 1/5+ the pecial Court =eference

case in 1"0. In 13 President of India has %ade a reference to the upre%e Court to

e!press its opinion in Ayodhya e%pleG$os&ue Case.

In a land%ar, >ud'%ent in I'mai* 8auui v. Union of India, -1994/ 3 SCC 3 the fie

>ud'e bench of the upre%e Court co%prisin' held that the Presidential reference see,in'

the upre%e Court6s opinion on whether a te%ple ori'inally e!isted at the site where the

abari $as>id subse&uently stood was superfluous and unnecessary and opposed to

secularis% and faoured one reli'ious co%%unity and therefore+ does not re&uire to be

answered.

Power to =eiew its ud'e%ent -

he upre%e Court can reiew its own >ud'e%ent or order (Article 13") a =eiew will lie in

upre%e Court on -

(1) discoery of new and i%portant %atters or eidence7

(2) %ista,e or error apparent on the face of record7

(3) any other sufficient reason7

In R.). Saa v. 7.7. Naay, AIR 19#3 SC $1+ Su2eme Cout point out that a

>ud'e%ent of the final court is final. A reiew of such a >ud'e%ent is an e!ceptional

pheno%enon+ per%itted only where a 'rae and 'larin' error is %ade out.


33/95

he >ud'e%ent of the upre%e Court will be bindin' on all courts in India. he e!pression

9all courts+ within the territory of India9 clearly %eans courts other than the upre%e Court.

hus the upre%e Court is not bound by its own decisions and %ay in proper case reerse

its preious decisions.

In the case of (ena* Immunity Co. v. State of (i"a, AIR 1955 SC 331+ the Court held

that 9there is nothin' in the Indian Constitution which preents the upre%e Court departin'

fro% its preious decision if it is coninced of its error and its beneficial effect on the 'eneral

interest of public.9

he Court said+ 9the upre%e Court should not li'htly dissent fro% its preious decisions.

Its power of reiew %ust be e!ercised with due care and caution and only for adancin' the

public well bein' in the li'ht of surroundin' circu%stances of each case brou'ht to its notice

but it is not ri'ht to confine its power within ri'idly fi!ed li%its.

hus it is clear that the doctrine of precedent (stare decisis) is followed in India to a li%ited

e!tent.

Q. 5- Discuss the Quali!cation' appointment' tenure and conditions

of o#ce of 1oernor of a 8tate.

Ans. Article 153 of the Constitution proides that there shall be a *oernor for each state.

Proided that nothin' in this Article shall preent the appoint%ent of the sa%e person as

*oernor for two or %ore states.

Accordin' to Article 155+ the *oernor of a state shall be appointed by the President by

warrant under his hand and seal.

Bo person shall be eli'ible for appoint%ent as *oernor unless he is a citi?en of India and

has co%pleted the a'e of thirty fie years (Article 15/).

he *oernor will hold office for a ter% of a 5 years. Proided that a *oernor shall+

notwithstandin' the e!piration of his ter%+ continue to hold office until his successor enters

upon his office. he *oernor shall hold office durin' the pleasure of the President.

Conditions of office of the *oernor.

Accordin' to Article 150+ the conditions of office of the *oernor will be as follows

(1) he *oernor shall not be a %e%ber of either ouse of Parlia%ent or of a ouse of the

le'islature of any state specified in the irst chedule and if a %e%ber of either ouse of

Parlia%ent or of a ouse of the le'islature of any such state be appointed *oernor+ he



34/95

shall be dee%ed to hae acated his seat in that ouse on the date on which he enters

upon his office as *oernor.

(2) he *oernor shall not hold any other office of profit.

(3) he *oernor shall be entitled without pay%ent of rent to the use of his official

residences and shall be also entitled to such e%olu%ents+ allowances and priile'es as

%ay be deter%ined by Parlia%ent by law+ and until proision in that behalf+ is so %ade+ such

e%olu%ents+ allowances and priile'es as are specified in the econd chedule.

(#) he e%olu%ents and allowances of the *oernor shall not be di%inished durin' his ter%

of office.

Accordin' to Article 15 eery *oernor and eery person dischar'in' the functions of the

*oernor shall+ before enterin' upon his office+ %a,e and subscribe in the presence of the

Chief ustice of the i'h Court e!ercisin' >urisdiction in relation to the tate or in his

absence the senior %ost >ud'e of that court aailable on oath or affir%ation in the

prescribed for%.

Q. 52 Discuss the powers and position of the 1oernor of a 8tate

under the Constitution of India.

Ans. Powers of *oernor - he head of the tate is ,nown as *oernor+ his powers are

analo'ous to those of the President with certain i%portant distinctions. he President iselected to his office+ while *oernors are appointed by the President+ and hold office durin'

his pleasure and %ay be dis%issed fro% office by hi%.

he powers of a *oernor %ay be classified under the followin' four heads

(1) 4!ecutie (2) 8e'islatie (3) inancial (#) udicial.

1. 4!ecutie powers - he e!ecutie powers of the tate is ested in the *oernor to be

e!ercised by hi% either directly or throu'h officers subordinate to hi% (Article 15#). All

e!ecutie actions shall be e!pressed to be ta,en in his na%e. he e!ecutie power of a

tate+ shall e!tent to %atter in respect to which the le'islature of a tate has power to %a,elaws. In any %atter with respect to which both the 8e'islature of a tate and Parlia%ent

hae powers to %a,e laws i.e.+ if a %atter %entioned in the concurrent list the e!ecutie

power of the tate shall be sub>ect to and li%ited by the e!ecutie powers conferred by the

Constitution or by any law %ade by Parlia%ent upon the nion or authorities thereof.

(Article 1/2).



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he *oernor appoints the Chief $inister and other $inisters on the adice of Chief

$inister. he $inisters hold office durin' the pleasure of the *oernor. he Council of

$inisters is+ howeer+ responsible to the tate 8e'islature or to the 8ower ouse of such

8e'islature where the 8e'islature consists of two cha%bers. his %eans that so lon' the

%inisters en>oy the confidence of the le'islature they can not be dis%issed by the *oernor.

his %a,es the *oernor a constitutional head li,e the President of India.

2. 8e'islatie Power - he *oernor is part and parcel of the 8e'islature of a tate which

consists fo the *oernor and the ouse or ouses of 8e'islature as the case %ay be

(Article 1/0). he *oernor no%inates one-si!th of the total nu%ber of the %e%bers of the

pper ouse of le'islatie council where such council e!ists. he *oernor %a,es

no%inations of persons hain' special ,nowled'e or e!perience in literature+ science+ art+

cooperatie %oe%ent and social serice (Article 1"1). e %ay no%inate two %e%bers of

the An'lo Indian Co%%unity for a period of 1: years fro% the co%%ence%ent of the

Constitution if he is of opinion that the co%%unity is not ade&uately represented in the tate

Asse%bly (Article 333).

he *oernor su%%ons+ proro'ues the ouses of the le'islature and dissoles the

8e'islatie Asse%bly (Article 1"#). e addresses the ouses of the le'islature (Articles

1"5+ 1"/). e 'ies assent to ills without which no ill can beco%e law (Article 2::). e

sends %essa'es to the le'islature (Article 1"/).

he *oernor is e%powered to %a,e rules for the %ore conenient transaction of the

business of the *oern%ent of the tate+ and for the allocation a%on' $inisters of the said

business in so far as it is not business with respect to which the *oernor is by or under the

Constitution re&uired to act in his discretion (Article 1//). e appoints the Adocate-*eneral

of the tate (Article 1/5). he Chair%an and %e%bers of the tate Public serice

Co%%ission (Article 31/)+ and the >ud'es of subordinate >udiciary in consultation with the

tate i'h Court (Article 203+ 20#).

(3) Hrdinance %a,in' power of the *oernor - he %ost i%portant power of the *oernor is

the power to pro%ul'ate ordinances under Article 213. is power in this respect are si%ilar

to those of the President. Hrdinances are pro%ul'ate when the le'islature is not in sessionand the %atters to which the ordinance relates+ re&uire an i%%ediate action in this respect.

here are certain ordinances which cannot be pro%ul'ated without instructions fro% the

President. uch an instruction is re&uired of a ill containin' the sa%e proisions as the

ordinance would (i) hae re&uired the preious sanction of the President+ or (ii) hae been


36/95

resered by the *oernor for the consideration of the President+ or (iii) hae re&uired the

assent of the President before it beco%es law (Article 213).

(#) inancial powers and functions - Bo $oney ill or other inancial ill can be introduced

and no de%and for 'rants %ay be %oed in the le'islature e!cept on the reco%%endation

of the *oernor. he *oernor causes the Annual inancial tate%ent+ that is+ the ud'et

is laid before the ouse or ouses of le'islature and is authorised also to place de%ands

for supple%entary and additional 'rant if re&uired in any year. he *oernor has the

contin'ency fund of the state at his disposal for e%er'encies. ub>ect to li%its+ if any+ fi!ed

by the le'islature+ the *oernor can borrow %oney on the security of the Consolidated und

of the tate and 'uarantee the loans of any other local authorities (Articles 2:5+ 2:" and

2:).

(5) Power to 'rant Pardon etc. - he Article 1/1 proides that the *oernor of a state shall

hae the power to 'rant pardons+ repriees+ respites or re%issions of punish%ent or to

suspend+ re%it or co%%ute the sentence of any person conicted of any offence a'ainst

any law relatin' to a %atter of which the e!ecutie power of the state e!tends.

In 6.%. Nanawati v. State of (ombay, AIR 1931 S.C. 99+ the upre%e Court held that the

power of the *oernor to suspend sentences under Article 1/1 is sub>ect to the rules %ade

by the upre%e Court with respect to only those cases which are pendin' before it in

appeal. It is open to the *oernor to 'rant a full pardon at any ti%e een durin' the

pendency of the case in the upre%e Court+ but the *oernor can not e!ercise his power of

suspension of the sentence for the period when the upre%e Court is sei?ed of the case.

Position of *oernor - 8i,e the President of India the *oernor is also a %ere Constitutional

head. hou'h all the aboe %entioned powers are ested in hi% but he is re&uired to

e!ercise his powers with the aid and adice of his Council of $inisters.

In Ram Jawaya 6a2oo v. State of Punjab, AIR 1955 SC 549+ the upre%e Court has

held that the President and the *oernor in India are only Constitutional heads. he real

e!ecutie power is e!ercised by the Council of $inisters. he President and the *oernor

are re&uired to e!ercise their powers on the adice of the Council of $inisters.

In S"am'"e Sin" v. State of Punjab, AIR 19#4 SC $19+ the upre%e Court held thatwhereer the Constitution re&uires the 6satisfaction6 of the *oernor+ the satisfaction is the

satisfaction of the Council of $inisters and not the personal satisfaction of the *oernor. e

is %erely a Constitutional head. Accordin'ly+ it was held that the re%oal of the %e%bers of

the subordinate >udiciary by the concerned $inister was alid.


37/95

nder Article 155 the *oernor holds office durin' the pleasure of the President and

continues to hold this office at the discretion of the President. In this respect he occupies

the position of a representatie of the union in the state. oweer+ Article 1/3(1) states that

there shall be a Council of $inisters with Chief $inister at the head to aid and adise the

*oernor in the e!ercise of his functions or any of the% in his discretion. Article 23 (2) also

states that where a *oernor is appointed an ad%inistrator+ he shall e!ercise his functions

as such ad%inistrator independently of his Council of $inisters. esides a reference %ay be

%ade to Articles 35/ and 2::. In %a,in' reports to the union the *oernor will be >ustified in

e!ercisin' his discretion een a'ainst the aid and adice of the Council of $inisters. he

reason is that the failure of the Constitutional %achinery %ay be because of the conduct of

the Council of $inisters. i%ilarly Article 2:: indicates another instance where the *oernor

%ay act in reserin' a ill for consideration of the President irrespectie of the adice of

Council of $inisters in such %atter the *oernor has to dischar'e his duties to the last of

his >ud'%ent and pursue such cause which is not detri%ental to the state.

As %entioned aboe+ in certain %atters the *oernor is re&uired by or under this

constitution to act in his discretion. In this respect+ *oernor %ay be re'arded as a lin,

between the union and the states thereby proidin' an opportunity to the union to hae

so%e ,ind of control oer the states. As such+ the *oernor %ay be re'arded as a

representatie of the union in the states.

Q. 53 Discuss the relationship of 1oernor of the 8tate with the

Council of ,inisters in that 8tate.

;r

Is 1oernor bound to act with the adice of his minister ? Does the

Constitution confer discretionar" power upon the 1oernor and if so'

what are such powers?

Ans. he *oernor is a constitutional head in a tate li,e the President in the Centre. he

e!ecutie power of the tate is ested in hi% and such power is to be e!ercised by hi%

directly or throu'h officers subordinate to hi% in accordance with the Constitution (Article

11#). here is a Council of $inisters with the Chief $inister at the head to aid and adise

the *oernor in the e!ercise of his functions e!cept in %atters where the *oernor is by+ or

under the Constitution+ re&uired to act in his discretion. he *oernor appoints the Chief

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$inister and other $inisters are appointed by the *oernor on the adice of the Chief

$inister. All $inisters hold office durin' the pleasure of the *oernor. he Council of

$inisters is collectiely responsible to the 8e'islatie Asse%bly of the tate and %ay be

re%oed fro% office by an aderse ote therein.

Althou'h the Chief $inister is appointed by the *oernor but the *oernor has no

discretion in this %atter. e is bound to appoint the leader of the %a>ority party as the Chief

$inister. It is only when no party secures %a>ority in the le'islature the *oernor can

e!ercise his discretion in the selection of the Chief $inister.

he %inisters cannot be dis%issed by hi% at his discretion. he %inistry is responsible to

the 8e'islatie Asse%bly and therefore+ so lon' as they en>oy the confidence of the %a>ority

they cannot be dis%issed. he Council of $inisters act as a tea% and responsible to the

le'islature and not to the *oernor. All decisions are ta,en by the Council of $inisters.

hese decisions are coneyed to the *oernor by the Pri%e $inister.

All these proisions %a,e it clear that the *oernor is a %ere constitutional head and acts

throu'h a body responsible to the people. Bor%ally+ the *oernor is bound to act with the

adice of his Council of $inisters in all %atters e!cept where he is re&uired to act in his

discretion. In Suni* 6uma v. !ovenment of :e't (ena*, AIR 195 Ca*. $#4+ the

Calcutta i'h Court obsered. 9he *oernor under the present Constitution cannot act

e!cept in accordance with the adice of his $inisters9. he only functions which the

*oernor %ay be called upon in certain circu%stances to e!ercise in his personal discretion

are the followin'

(1) Appoint%ent of the Chief $inister.

(2) ;is%issal of a $inistry.

(3) ;issolution of the 8e'islatie Asse%bly.

(#) nder paras and 10 of /th chedule in respect of tribal areas in Assa%.

(5) In adisin' the President to i%pose President =ule in tates.

(1) Appoint%ent of the Chief $inister In nor%al circu%stances he has no discretion in this

%atter. e is bound to appoint the leader of the %a>ority party as the Chief $inister. ut

when no party secures a clear %a>ority in the ouse the *oernor %ay e!ercise his

discretion in this %atter.

(2) ;is%issal of a $inister he $inisters hold office durin' the pleasure of the *oernor.

his %eans that a $inistry can be dis%issed by the *oernor. ut so lon' as a %inistry

en>oys the support of the %a>ority in the le'islature the *oernor can not dis%iss it.

oweer+ if a %inistry loses the %a>ority support in the ouse or a non-confidence %otion is


39/95

passed a'ainst it+ the *oernor %ay dis%iss such a %inistry. Ehether a $inistry has lost

the %a>ority or not %ust be decided on the floor of the ouse.

(3) ;is%issal of 8e'islatie Asse%bly Bor%ally the Asse%bly will be dissoled by the

*oernor on the adice of the cabinet. ut when the Chief $inister has lost the %a>ority in

the ouse and adises the *oernor to dissole the Asse%bly the *oernor %ay refuse to

do so. e %ay ta,e his own decision in this %atter.

(#) nder para 1/(2) of /th chedule in respect of tribal areas of Assa% In this respect the

Constitution e!pressly proides that in certain circu%stances the *oernor %i'ht act in his

discretion. his is confined to tribal areas of Assa% only.

(5) In adisin' the President to i%pose President rule in tates In this %atter the *oernor

is not re&uired to consult his cabinet. he *oernor ta,es his own decision whether there

are circu%stances >ustifyin' that *oern%ent of the tate can not be carried on in

accordance with the proisions of the Constitution he %ay then report the %atter to the

President for appropriate actions under the Constitution.

Q. 5* Describe the composition of


40/95

prescribed by or under any law %ade by Parlia%ent to that of *raduate of any such

uniersity7

(c) as nearly as %ay be+ one-twelfth shall be elected by electorates consistin' of persons

who hae been at least three years en'a'ed in teachin' in such educational institutions

within the state+ not lower in standard than that of a secondary school+ as %ay be+

prescribed by or under any law %ade by Parlia%ent7

(d) as nearly as %ay be+ one-third shall be elected by the %e%bers of the le'islatie

Asse%bly of the state fro% a%on'st persons who are not %e%bers of the Asse%bly7

(e) he re%ainder shall be no%inated by the *oernor in accordance with the proisions of

clause (5).

he %e%bers to be elected under sub-clauses (a)+ (b) and (c) of clause (3) shall be chosen

in such territorial constituencies as %ay be prescribed by or under any law %ade by

Parlia%ent+ and the elections under the said sub-clauses and under sub-clause (d) of the

said clause+ shall be held in accordance with the syste% of proportional representation by

%eans of the sin'le transferable ote.

he %e%bers to be no%inated by the *oe

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