Indian Constitution Law

8/16/2019 Indian Constitution Law

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Q :- Point out the diference between directive Principles o State Policy and

Fundamental rights .

Answer :-

The directive Principles of State policy are contained in Chapter iv while

the Chapter iii of the Constitution of India deals with the Fundamental

Rights

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The

!irectives

di"er

from the

Fundamental Rights !irective Principles

# The Fundamental

Rights are enforcea$le

in a court of law $y

appropriate

remedies% including

the constitutional

remedies ie% the

writs of ha$eas

corpus% mandamus%prohi$ition and

certiorari which the

Supreme Court and

&igh Courts are

empowered to issue

against the

'overnment

(ut the Courts cannot

compel the 'overnment to

carry out any !irective nor

can any individual see) a

legal remedy on the ground

that the State has failed to

comply with a !irective say%

to prohi$it the slaughter of

cows or to introduce freeeducation for children The

!irective in short do not

create any legal right in

favour of any individual

* The Fundamental

Rights constitute

limitations upon Stateactions

!irective Principles are in

the nature of instruments to

the 'overnment of the dayto do certain things and to

achieve certain ends $y

their actions

+ For the same reason a

law which

contravenes a

Fundamental Right

can $e declared $y theappropriate Court to

$e void

(ut a law which is contrary

to a !irective cannot $e so

held to $e void

The !irectives% however%

re,uire to $e implemented

$y legislation% and so long

as there is no law carrying

out the policy laid down in a

!irective neither the State

nor an individual can

violate any eisting law or

legal rights under colour of

following a !irective

. In case of any con/ict$etween the

Fundamental Rights

and !irectives% the

Fundamental Rights

shall prevail % unless

the con/ict arises out

of a law to implement

the !irectives in Art

+0 1$2-1c2% ie for the

socialisation of the

means of production

and the material

In this contet % it is to $enoted that $y the

.*nd Amendment Ac t% #034%

this protection 1o"ered $y

Art +# C 2 was sought to $e

etended to any law made

to implement any of the

!irectives of State Policy as

contained in Part I5 6 $ut the

Supreme Court has

invalidated such etension in

the case of 7inerva 7ills v

8nion of India In the result


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9Fundamental Rights on the following points which may $e shown in the

ta$ular form :-

According to the maority of the supreme Court % in the 7inerva

7ills case% $y see)ing to give all the !irectives in Part I5 a $lan)et

cover so as to undermine the Fundamental Rights% violated all the 9$asic

features; of the Constitution as formulated a$ove


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The words 9we the people of India ; say that the Constitution is created $y the

people of India as a whole and so none has any power to put an end to the

Constitution

The term 9sovereign ; spea)s that India is an independent State and it is not

su$ect to control $y any eternal power or authority though it is a mem$er of

the Commonwealth of Bations

The word 9 Repu$lic 9 means India is neither a monarchy nor an oligarchy >e

have an elected President instead of a )ing at the head of our State

The pream$le declares that the India is Repu$lic and shall $e a democratic in

the representative form The ultimate power remains in the electorate

comprising the entire adult population

The pream$le further says the constitution shall ensure social% economic and

political ustice The word ustice re,uires a$olition of all sorts of ine,uity The

ideal of economic ustice means e,ual reward for e,ual wor)% irrespective of

caste% creed etc % prevention of eploitation of women% children and otherwea)er sections of the community Political ustice means a$sence of ar$itrary

distinction in the political sphere% universal adult su"rage and one man one

vote

i$erty of thought% epression% $elief% faith and worship are guaranteed $y the

Fundamental Rights These li$erties are re,uired for the development of the

individual

Further % the Constitution also aims at esta$lishing e,uality of 9status and

opportunity;% eg% $y guaranteeing e,uality $efore the law and e,ual protection

of the laws% e,uality of opportunity for pu$lic employment% and the li)e

astly% our ideal is to foster a sense of $rotherhood which in view% theConstitution see)s to a$olish untoucha$ility% and all communal or sectional

interests $$$$$

Q:- "an there be accession o any new State in #ndia % &ow a new State is created % 'hat is

the procedure or creation o a new State %

Article * of the Constitution of India laid down the provision for admission or

esta$lishment of new States According to this Article Parliament may $y law

admit into the 8nion% or esta$lish% new States on such terms and conditions as it

thin)s t

As for eample $y virtue of the Chandernagore 7erger Act % #0J. % the saidterritory was merged in India (y Article *-A of the Constitution of India Si))im

was also merged into India $ut $y the +4thConstitution Amendment Act % the

Article *-A was repealed

Article + of the Constitution of India laid down the provisions for formation of

new States and alteration of areas% $oundaries or names of eisting States This

Article says that the Parliament may $y law-

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1a2 form a new State $y separation of territory from any State or $y uniting two

or more States or parts of States or $y uniting any territory to a part of any

State6

1$2 increase the area of any State6

1c2diminish the area of any State6

1d2 alter the $oundaries of any State6

1e2 alter the name of any State6

It has further $een provided that no (ill for the purpose shall $e introduced in

either &ouse of Parliament ecept on the recommendation of the President and

unless% where the proposal contained in the (ill a"ects the area% $oundaries or

name of any of the States% the (ill has $een referred $y the President to the

egislature of that State for epressing its views thereon within such period as

may $e specied in the reference or within such further period as the

President may allow and the period so specied or allowed has epired

=planation I says that in this article + % in clauses 1a2 to 1e2 % the word State

includes a 8nion Territory% $ut in the proviso% the word State does not include a

8nion territory

=planation II provides that the power conferred on Parliament $y clause 1 a2

includes the power to form a new State or 8nion Territory $y uniting a part of

any State or 8nion territory to any other State or 8nion territory

As seen most recently in the (ihar Reorganisation Act %*KKK % 7adhya

Pradesh Reorganisation Act %*KKK and 8ttar Pradesh Reorganisation Act %*KKK %

which resulted in the creation of the States of Dhar)hand % Chattishgarh and

8ttara)hand % respectively

Article . of the Constitution laid down that ----

1#2 Any law referred to in Article * or Article + shall contain such provisions for

the amendment of the First Schedule and the Fourth Schedule as may $e

necessary to give e"ect to the provisions of the law and may also contain such

supplemental% incidental and conse,uential provisions 1 including provisions as

representation in Parliament and in the egislature or egislatures of the State

or States a"ected $y such law 2 as Parliament may deem necessary 1*2 Bo

such law as aforesaid shall $e deemed to $e an amendment of this Constitution

for the purposes of Article +4L


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Article J deals with the Citienship at the Commencement of the

Constitution According to this Article at the commencement of this Constitution

every person who has his domicile in the territory of India and-

1a2>ho was $orn in the territory of India6 or

1$2 either of whose parents was $orn in the territory of India 6 or

1c2who has $een ordinarily resident in the territory of India for not less than

ve years immediately preceding such commencement% shall $e a citien of

India

Article 4 deals with the rights of citienship of certain persons who have

migrated to India from Pa)istan According to this Article notwithstanding

anything in Article J% a person who has migrated to the territory of India from

the territory now included in Pa)istan shall $e deemed to $e a citien of India

at the commencement of this Constitution if-

a2 he or either of his parents or any of his grand- parents was $orn in India

dened in the 'overnment of India Act% #0+J 1 as originally enacted 26 and

$2 1i2 in the case where such person has so migrated $efore the nineteenth

day of Duly #0.L% he has $een ordinarily resident in the territory of India

since the date of his migration% or

1ii2 in the case where such person has so migrated on or after the

nineteenth day of Duly% #0.L he has $een registered as a citien of India $y an

@Ncer appointed in that $ehalf $y the 'overnment of the !ominion of India

on an application made $y him therefore to such oNcer $efore the

commencement of this Constitution in the form and manner prescri$ed $y

that 'overnment

Provided that no person shall $e so registered unless he has $een resident in

the territory of India for at least si months immediately preceding the date of

his application

Aeticle L provides the rights of Citienship of certain persons of Indian

origin residing outside India This Article provides that notwithstanding

anything in Article J% any person who or either of whose parents or any of

whose grand-parents was $orn in India as dened in the 'overnment of India Act%

#0+J 1as originally enacted2% and who is ordinarily residing in any country outside

India as so dened shall $e deemed to $e a citien of India if he has $een

registered as a citien of India $y the diplomatic or consular representative of

India in the country where he is for the time $eing residing on an application

made $y him therefore to such diplomatic or consular representative% whether

$efore or after the commencement of this Constitution% in the form and

manner prescri$ed $y the 'overnment of the !ominion of India or the

'overnment of India


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Article #K says regarding Continuance of the rights of citienship According to

this Article every person who is or is deemed to $e a citien of India under

any of the foregoing provisions of this Part shall% su$ect to the provisions of

this Part shall% su$ect to the provisions of any law that may $e made $y

Parliament% continue to $e such citien

Article 0 and 3 provide when a person may lose Citienship of India

Article 0 provides that the Persons voluntarily ac,uiring

citienship of a foreign State shall not to $e citiens of India This Articles

ela$orates this principle $y saying that no person shall $e a citien of India $y

virtue of Article J% or $e deemed to $e a citien of India $y virtue of Article 4 or

Article L% if he has voluntarily ac,uired the citienship of any foreign State

8nder Article 3 if a person had gone from the territory of India to the territory

now included in Pa)istan after #-+-.3% with the intention of shifting his

permanent residence from India to Pa)istan% he will lose his citienship of India

which could have accrued to him $y his coming within the terms of Art J

Article 3 also provides that nothing in this article shall apply to a person who%after having so migrated to the territory now included in Pa)istan% has returned

to the territory of India under a permit for resettlement or permanent return

issued $y or under the authority of any law and every such person shall for the

purposes of clause 1$2 of Article 4 $e deemed to have migrated to the territory

of India after the nineteenth day of Duly % #0.L

Parliament has since enacted the Citienship Act #0JJ >hich provides for the

ac,uisition of citienship su$se,uent to the date of commencement of the

Constitution


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6- =numerate the Fundamental Rights which are dealt with in Part III of theConstitution

The fundamental rights represent the $asic values enriched $y the people of

India The aim $ehind having an elementary right of the individual is to preserve

and protect certain $asic human rights against interference $y the State The

inclusion of fundamental rights in the Constitution is in accordance with the

trends of modern democratic thought The o$ect is to ensure the individuality of

certain essential rights against political vicissitudes

The Constitution itself classies the Fundamental Rights under 3 groups as

follows6

#2 Right to =,uality

Article #. to #L of the Constitution deal with the right to e,uality This group

includes6

1i2 =,uality $efore law 1 Article G #. 26

1ii2 Prohi$ition of discrimination $y the State on grounds of religion% race% caste%

se or place of $irth 1 Article G #J 26

1iii2 =,uality in matters of pu$lic employment 1 Article G #4 26

1iv2 A$olition of untoucha$ility 1 Article G #3 26

1v2 A$olition of titles 1 Article G #L 2

It will $e seen that some of these confer positive rights upon the citiens while

the others are in the nature of constitutional limitations upon the power of the

State to create conditions of ine,uality

*2 Right to Freedom

Article #0 to ** of the Constitution deal with the right to freedom

This group contains a large num$er of rights:

1 i2 Article G #0 says the Freedom of G

1 a2 speech and epression %1$2 assem$ly %1c2 association %1d2 movement%1 e2

residence and settlement%

1 f2 profession6

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1ii2 protection in respect of conviction for o"ences under any of the prohi$ited

conditions 1 Article G *K 26

1iii2 protection of life and personal li$erty 1 Article G *# 26

1iv2 protection against arrest and detention in certain cases 1 Article G ** 2

It is to $e )ept in mind that the freedom of property% which was guaranteed $y

su$-cl 1f2 of Art #0 1#2 has $een omitted% $y the Constitution 1..th Amendment 2

Act% #03L So there are now only 4 of the 3 freedoms which had $een originally

guaranteed $y the Constitution

+2 Right against =ploitation

Article *+ and *. of the Constitution deal with the right against =ploitation

This includes :

1i2 Prohi$ition of traNc in human $eings and forced la$our1 Article G*+26

1ii2 Prohi$ition of employment of children in factories haardous employments 1

Article G *. 2

.2 Right to freedom of Religion

Article *J to *L of the Constitution deal with the Right to freedom of Religion

This group includes :

1i2 Freedom of conscience and free profession practice and propaganda of

religion 1 Article G *J 26

1ii2 Freedom to manage religion a"airs 1 Article G *4 26

1iii2 Immunity from payment of taes for the promotion of any particular religion

1 Article G *3 26

1iv2 Immunity from attendance at religious instruction or worship in educational

institution 1 Article G *L 2

J2 Cultural and =ducational Rights

Article *0 to +# of the Constitution deal with the Cultural and =ducational Rights

These include :

1i2 Protection of the language script or culture of the minorities 1 Article G *0 26

1 ii2 Right of minorities to esta$lish and administer educational institutions 1

Article G +K 2

The Article +# is omitted which dealt with compulsory ac,uisition of property


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42 Right to Property

It has already $een pointed out that the right to property% which was

guaranteed $y Arts #0 and +#% has $een removed from the list of Fundamental

Rights $y the ..th Amendment Act#03L A new Art +KKA now provides that no

person can $e deprived of his property without the authority of law6 $ut that is

not a fundamental Right

32 Right of Constitutional Remedies

Article +* to +J of the Constitution deal with the Right to Constitutional

Remedies

This portion provides for the enforcement of the a$ove mentioned

fundamental rights through the udicial writs of ha$eas corpus% mandamus and

the li)e


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1i2 The Constitution guarantees to the citiens freedom of speech and

epression

(ut this freedom is su$ect to reasona$le restrictions imposed $y the State to

chec) G

1a2 defamation 6

1$2 contempt of Court6

1c2 decency or morality6

1d2 security of the State 6

1e2 friendly relation with foreign States6

1f2 incitement to an o"ence6

1g2 pu$lic order6

1h2 sovereignty and integrity of India

So freedom of speech and epression will not confer upon an individual a

licence to say whatever he li)es or to commit illegal or immoral acts or to incite

others to overthrow the esta$lished government $y force or unlawful means

1ii2 Similarly % the Constitution guarantees to the citiens the freedom of

assem$ly

This freedom of assem$ly is also su$ect to the restrictions that the assem$ly

must $e peaceful and without arms And su$ect to such reasona$le

restrictions as may $e imposed $y the 9State in the interests of pu$lic order This

right of meeting or assem$ly shall not a$use other so as to create pu$lic

disorder or a $reach of the peace

1iii2 Again % all citiens have the right to form associations or unions

(ut this right is also su$ect to reasona$le restrictions imposed $y the State in

the interests of the general pu$lic Thus this freedom will not entitle any group of

individuals to enter into a criminal conspiracy or to form any association

dangerous to the pu$lic peace or to ma)e illegal stri)es or to commit a pu$lic

disorder

1iv2 Similarly % every citien shall have the right to move freely throughout the

territory of India

This right shall also $e su$ect to the restrictions imposed $y the State in the

interest of the general pu$lic As for eample % one can $e stopped to move to

any restricted area


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1v2 i)ewise % every citien shall have the right to reside and settle in any

part of the country

This right shall also $e su$ect to the restrictions imposed $y the State in the

interest of the general pu$lic or for the protection of any a$original tri$e

1vi2 Again % every citien has the right to practise any profession or to carryon any occupation trade or $usiness

(ut su$ect to reasona$le restrictions imposed $y the State in the interests of

the general pu$lic and su$ect to ,ualications laid down $y the State for

carrying on any profession or technical occupation% or for carrying on any

trade or $usiness $y the State itself to the eclusion of the citiens

Since the guarantee of the Fundamental Rights in Art #01#2 can $e limited

$y the power conferred upon the State $y imposing restrictions upon each of

these rights % it has $een o$served $y some people that what has $een granted

$y one hand has $een ta)en away $y the other (ut this comment is not ustied

$ecause in no country the guarantee of fundamental rights is a$solute or freefrom limitations altogether The reason is that while the individual is in need of

certain personal freedoms% the society% collectively% is also in need of certain

safeguards in the interest of all% to ensure that the unfettered eercise of

individual rights is not turned into licence and chaos This should $e ensured that

one;s unfettered right is not ta)ing away the right of another The individual

himself will not $e safe to eercise his personal rights unless the State% which

represents the society% has certain powers to enforce law and order % morality

and the li)e to prevent other individuals from wrongly interfering with the

eercise of his rights

(ut there is a di"erence $etween the Constitution of the 8SA and India

as to the manner in which this collective power is secured In India these very

grounds of restriction are laid down in the Constitution itself


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#2 The directives in the nature of ideals of the State are-

i2 The State shall strive to promote the welfare of the people $y securing a

social order permeated $y social% economic and political ustice 1Art +L 2

ii2 The State shall endeavour to secure ust and humane conditions of wor)

a living wage a decent standard of living and social and cultural opportunitiesfor all wor)ers 1Art .+2

iii2The State shall endeavour to raise the level of nutrition and standard of

living and to improve the health of the people 1Art .32

iv2The State shall endeavour to promote international peace and amity 1Art J#2

v2The State shall direct its policy towards securing e,uita$le distri$ution of the

material resources of the community and prevention of concentration of

wealth and means of production to the common detriment 1Art +02

*2 !irectives in the nature of policy of the State G

i2 To esta$lish economic democracy and ustice $y securing certain

economic rights 1 to $e enumerated under the net head2

ii2 To secure a uniform civil code for the citien 1Art ..2

iii2 To provide free and compulsory primary education 1 Art .J2

iv2 To prohi$it consumption of li,uor and intoicating drug ecept for medical

purposes 1Art .32

v2 To develop cottage industries 1 Art .+2

vi2 To organise agriculture and animal hus$andry on modern lines 1Art .L2

vii2 To prevent slaughter of useful cattle ie cows% calves and other milch and

draught% cattle 1 Art .L2

viii2 To organise village Panchayats as units of self-government 1Art .K2%

i2 To protect and improve the environment and to safeguards forest and wild

life 1Art .LA2

2 To protect and maintain places of historic or artistic interest 1Art .02

i2 To separate the Dudiciary from the =ecutive 1Art JK2

+2 !irectives in the nature of non-usticia$le rights of every citien-

i2 Right to ade,uate means of livelihood 1Art +0 1a22

ii2 Right to $oth sees to e,ual pay for e,ual wor) 1Art +0 1d22


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iii2 Right against economic eploitation 1Art +01e2 1f22

iv2 Right to wor) 1Art.#2

v2 Right to education 1Art.#2


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Article JL of the Constitution and Article 44 of the Constitution provide

,ualications to $e President and 5ice- President % respectively % of India

In case of President or a 5ice GPresident % two ,ualications are common % vi%

that the person must $eO

1a2 a citien of India and

1$2 over +J years of age

c2 Further% in order to $e a President% he must $e ,ualied for election as a

mem$ers of the &ouse of the people% while in order to $e a 5ice President he

must $e ,ualied for election as a mem$er of the Council of States

There are two negative ,ualications or dis,ualications % apart from the a$ove

positive ,ualications And they are as follows :-

a2 According to the =planation to the Clause . of Article 44 % neither the

President nor the 5ice- President shall hold any other of prot 1ie paid

employment 2 (ut the President of India a sitting 5ice President a 'overnor or

a 7inister of the 8nion or of a State is not dis,ualied for $eing eligi$le for

the oNce of 5ice-President

$2 Article J0 and 44 provide that neither the President nor the 5ice GPresident

shall $e a mem$er of either &ouse of Parliament % and if a 7em$er of Parliament

is elected President or 5ice President% he shall $e deemed to have vacated his

mem$ership on the date of which he enters upon the @Nce of President or 5ice-

President% as the case may $e


16/41

i2 Summon either or $oth &ouses of Parliament to meet at such time

and place as he thin)s t% su$ect to the condition that not more than 4 months

shall intervene $etween the last sitting of one session and the rst sitting of

another6 ii2 Prorogue the &ouses6 iii2 Article LJ of the Constitution of India

further provides that the President may dissolve the &ouses of the

People These powers will% of course% $e eercised $y the President with the

advice of the 7inistry% or more accurately % of the Prime 7inister% as in =ngland

The power of adournment as in =ngland $elongs to the &ouses

themselves


17/41

under the 'overnment of India or the 'overnment of any State $y reason only

that he is a minister either for the 8nion or for any State

Article #K+ says that if any ,uestion arises as to whether a mem$er of either

&ouse of Parliament has $ecome su$ect to any of the a$ove dis,ualications %

the ,uestion shall $e referred for the President;s decision and his decision shall

$e nal Art #K+ further says that $efore giving any decision on any such,uestion % the President shall o$tain the opinion of the =lection Commission and

shall act according to such opinion


18/41

In the case of AQ Roy 5s 8nion of India it was held that the power of President

or 'overnor to issue an @rdinance is a legislative power conferred $y the

Constitution itself

Q :- (iscuss the constitution o the Supreme "ourt. Eplain the provision relating to the

appointment and tenure o the )udges o the Supreme "ourt o #ndia .

Article #*. of the Constitution of India provides esta$lishment and constitution

of Supreme Court of India

According to this Article the Supreme Court stands at the head of the Dudicialsystem of India Parliament has the power to ma)e laws regulating the

constitution% organisation% urisdiction and powers of Supreme Court Su$ect to

such legislation% the Supreme Court consists of the Chief Dustice of India and %

according to the amendment of #0L4 % not more than twenty ve other Dudges

Article #*. further provides that every Dudge of the Supreme Court shall $e

appointed $y the President of India The President shall% in this matter consult

with such of the Dudges of the Supreme Court and of the &igh Courts in the States

as the President may deem necessary for the purpose other persons $esides

ta)ing the advice of his 7inisters In the matter of appointment of the Chief

Dustice of India % he shall consult such Dudges of the Supreme Court and of the

&igh Court as he may deem necessary The a$ove provision % thus ensured

independence of Dudiciary $y renouncing the mode of appointment of Dudge $y

the =ecutive and also tried to ma)e it free from $eing committed Dudiciary

A person shall not $e ,ualied for appointment as a Dudge of the Supreme

Court unless he isO

1 i 2 a citien of India 6 and

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19/41

1ii2 a distinguished urist 6 or

1iii2 has $een an Advocate of a &igh Court or of two or more such Courts in

succession for at least #K years% or

1iv2 has $een for at least ve years a Dudge of a &igh Court or of two or more such

Courts in succession

Bo minimum age is prescri$ed for appointment as a Dudge of the Supreme

Court nor any ed period of oNce @nce appointed% a Dudge of the Supreme

Court may cease to $e so% on the happening of any one of the following

contingencies:

a2 on attaining the age of 4J years 6

$2 on resigning his @Nce $y writing addressed to the President 6

c2 on $eing removed $y the President upon an address to that e"ect $eing

passed $y a special maority of not less than two thirds of the mem$ers of that

&ouse present and voting in each &ouse of Parliament


20/41

d2 the appropriation of moneys out of the Consolidated Fund of India

e2 the declaring of any ependiture to $e ependiture charged on the

Consolidated Fund of India or the increasing of the amount of any such

ependiture 6

f2 the receipt of money on account of the consolidated Fund of India or thepu$lic account of India or the custody or issue of such money or the audit of

the accounts of the 8nion or of a State6 or

g2 any matter incidental to any of the matters specied in 1a2 to 1f2

A $ill shall not $e deemed to $e a money (ill $y reason only that it provides for

the imposition of nes or other pecuniary penalties % or for the demand or

payment of fees for licences or fees for services rendered % or $y reason that it

provides for the imposition % a$olition % remission % alteration or regulation of any

ta $y any local authority or $ody for local purposes

If any ,uestion arises whether a (ill is a 7oney (ill or not the decision of the

Spea)er of the &ouse of the People for of the egislative Assem$ly in the case

of State egislature thereon shall $e nal >hen a (ill is transmitted to the

8pper &ouse of the egislature or is presented for the assent of the President or

of the 'overnor in the case of a State % it shall $ear the endorsement of the

Spea)er of the ower &ouse that it is a 7oney (ill

Article #K0 of the Constitution laid down the special procedure in

respect of 7oney (ills The following is the procedure for the passing of 7oney

(ills in Parliament :

A 7oney shall not $e introduced in the Council of States

After a 7oney (ill has $een passed $y the &ouse of the People it shall

$e transmitted to the Council of States for it;s recommendations and the Council

of States shall within as period of fourteen days from the date of receipt of the(ill return the (ill to the &ouse of the people with it;s recommendations

If the &ouse of the people accepts any of the recommendations of the

Council of the States % the 7oney (ill shall $e deemed to have $een passed $y

$oth &ouses with the amendments recommended $y the Council of States and

accepted $y the &ouse of the People


21/41

If the &ouse of the People does not accept any of the recommendations

of the Council of States the 7oney (ill shall $e deemed to have $een passed $y

$oth &ouses in the form in which it was passed $y the &ouse of the People

without any of the amendments recommended $y the Council of States

If a 7oney (ill passed $y the &ouse of the People and transmitted to

the Council of States for it;s recommendations and is not returned to the &ouse

of the People within the said period of fourteen days% it shall $e deemed to have

$een passed $y $oth houses at the epiration of the said period in the form in

which it was passed $y the &ouse of the People


22/41

i2 shall $e laid $efore the egislative Assem$ly of the State % $efore $oth the

&ouses % and shall cease to operate at the epiration of si wee)s from the

reassem$ly of the egislature% or if $efore the epiration of that period a

resolution disapproving it is passed $y the egislative Assem$ly and agreed to

$y the egislative Council% if any% upon the passing of the resolution or% as the

case may $e% on the resolution $eing agreed to $y the Council6 and

ii2 may $e withdrawn at any time $y the 'overnor

=planation to the Article *#+ says that where the &ouses of the egislature

of a State having a egislative Council are summoned to reassem$le on

di"erent dates% the period of si wee)s shall $e rec)oned from the later of

those dates for the purposes of this clause

If and so far as an @rdinance under this article ma)es any provision which

would not $e valid if enacted in an Act of the egislature of the State assented

to $y the 'overnor % it shall $e void

It has further $een provided that for the purposes of the provisions of thisConstitution relating to the e"ect of an Act of the egislature of a State

which is repugnant to an Act of Parliament or an eisting law with respect to

a matter enumerated in the Concurrent ist% an @rdinance promulgated under

this article in pursuance of instructions from the President shall $e deemed to

$e an Act of the egislature of the State which has $een reserved for the

consideration of the President and assented to $y him

Q :- (iscuss the constitution o the Supreme "ourt. Eplain the provision relating to the

appointment and tenure o the )udges o the Supreme "ourt o #ndia .

Article #*. of the Constitution of India provides esta$lishment and constitution of

Supreme Court of India

According to this Article the Supreme Court stands at the head of the Dudicial

system of India Parliament has the power to ma)e laws regulating the

constitution% organisation% urisdiction and powers of Supreme Court Su$ect to

such legislation% the Supreme Court consists of the Chief Dustice of India and %

according to the amendment of #0L4 % not more than twenty ve other Dudges

Article #*. further provides that every Dudge of the Supreme Court shall $e

appointed $y the President of India The President shall% in this matter consult

with such of the Dudges of the Supreme Court and of the &igh Courts in the States

as the President may deem necessary for the purpose other persons $esides

ta)ing the advice of his 7inisters In the matter of appointment of the Chief Dustice of India % he shall consult such Dudges of the Supreme Court and of the

&igh Court as he may deem necessary The a$ove provision % thus ensured

independence of Dudiciary $y renouncing the mode of appointment of Dudge $y

the =ecutive and also tried to ma)e it free from $eing committed Dudiciary

A person shall not $e ,ualied for appointment as a Dudge of the Supreme

Court unless he isO

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23/41

1 i 2 a citien of India 6 and 1ii2 a distinguished urist 6 or 1iii2 has $een an

Advocate of a &igh Court or of two or more such Courts in succession for at least

#K years% or

1iv2 has $een for at least ve years a Dudge of a &igh Court or of two or more such

Courts in succession

Bo minimum age is prescri$ed for appointment as a Dudge of the Supreme

Court nor any ed period of oNce @nce appointed% a Dudge of the Supreme

Court may cease to $e so% on the happening of any one of the following

contingencies:

a2 on attaining the age of 4J years 6

$2 on resigning his @Nce $y writing addressed to the President 6

c2 on $eing removed $y the President upon an address to that e"ect $eing

passed $y a special maority of not less than two thirds of the mem$ers of that

&ouse present and voting in each &ouse of Parliament

orld (ecause the Supreme Court of India is 9guardian of the

Constitution ; The epression 9guardian of the Constitution ; is used in a federal

country in the sense that the Supreme Court solves the disputes with regard to

the distri$ution of powers $etween the 8nion and the States and interprets as

well as enforces the provisions of the written Constitution upon all the

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24/41

constituent $odies of the State It is also the highest Court of appeal in the

country% to hear appeals from all causes% su$ect% of course to certain limitations

@riginal urisdiction :-

According to the Article #+# of the Constitution of India su$ect to the provisions

of the Constitution the Supreme Court shall to the eclusion of any other Court %have original Durisdiction in any dispute ----

a2 $etween the 'overnment of India and one or more States 6 or

$2 $etween the 'overnment of India and any State or States on one side and one

or more other States on the other 6 or

c2 $etween two or more States

It is also provided $y the Art#+# that the Supreme Court shall have no

urisdiction to try any dispute relating to any State% if such urisdiction is $arred

$y the provisions of any treaty % agreement engagement or the li)e

Appellate urisdiction:-

The Appellate urisdiction of the Supreme Court may $e divided under three

heads:

i2 8nder Article #+* of the Constitution of India if any su$stantial ,uestion of

law as to the interpretation of the constitution is involved % an appeal shall lie to

the Supreme Court from any udgment or nal order of any &igh Court either on

the certicate of the &igh Court that such a ,uestion is involved% or $y special

leave of the Supreme Court

ii2 8nder Article #++ of the Constitution of India in ordinary civil cases% where noconstitutional ,uestion is involved an appeal shall lie to Supreme Court only if

the &igh Court certies-

a2 that the case involves a su$stantial ,uestion of law of general importance 6

and

1$2 that in the opinion of the &igh Court the said ,uestion needs to $e decided

$y the Supreme Court

iii2 8nder Article #+. of the Constitution of India in criminal cases% an appeal

shall lie to the Supreme Court from the decision of a &igh Court% if the &igh Court-

a2 has an appeal reversed an order of ac,uittal of an accused person and

sentenced him to death 6 or

1$2 has withdrawn for trial $efore itself any case from any court su$ordinate to

its authority and has in such trial convicted the accused person and sentenced

him to death 6 or

1 c2 certies that the case is a t one for appeal to the Supreme Court


25/41

8nder Article #+4 of the Constitution of India the Supreme Court may also grant

special leave to appeal in any case not covered $y Articles #+*% #++ and #+. This

urisdiction is very wide% inasmuch as it relates not only to udgments or orders of

the &igh Courts $ut also to those of any tri$unal in the territory of India

ecepting military tri$unals

According to the Art #+L of the Constitution of India % $esides the a$ove powersenumerated $y the Constitution % Parliament is empowered

to confer additional urisdiction upon the Supreme Court as regards any matter

included in the 8nion egislative ist

Advisory urisdiction:-

Article #.+ provides advisory urisdiction and says that $esides the a$ove regular

urisdiction of the Supreme Court% it shall have an advisory urisdiction% to give

it;s opinion on any ,uestion of law or fact of pu$lic importance as may $e

referred to it;s consideration $y the President

As for eample % a reference was made to the Supreme Court $y the Central

'overnment as to whether the structure in Ayodhya was a temple or a mos,ue %

for it;s opinion on the ,uestion of law and fact of pu$lic importance


26/41

1i2 A Dudge may $y writing under his hand addressed to the President resign

his oNce 6

1ii2 The oNce of a Dudge shall $e vacated $y his $eing $y the President to $e a

a Dudge of the Supreme Court or $y his $eing transferred to any other &igh

Court within the territory of India 6

1iii2 A Dudge may $e removed from his oNce $y the President in the manner

provided in clause 1.2 of Article #*. on an address of $oth &ouses of Parliament

supported $y the vote of *+rd of the mem$ers present % on the ground of

proved mis$ehaviour or incapacity The mode of removal of a Dudge of the &igh

Court shall $e the same as that of a Dudge of the Supreme Court


27/41

:- =plain the distri$ution of legislative powers $etween the 8nion and the

States under the Constitution !iscuss the egislative relations $etween the

8nion and the States in India

According to the Art *.4 of the Constitution of India there is a threefold

distri$ution of legislative powers $etween the 8nion and the States There are

three egislative ists in Sch 5II of the Constitution

ist I or the 8nion ist contains su$ect over which the 8nion shall have

eclusive power of legislation This list includes 03 items or su$ects They are

defence% foreign a"airs% $an)ing% currency and coinage% 8nion duties and taes

and etc

ist II or the State ist now comprises of 44 items or entries over which the

State egislature shall have eclusive power of legislation% such as pu$lic order

and police% local government % pu$lic health and sanitation% agriculture% forests

and shers% education% State taes and duties and etc

ist III gives concurrent powers to the 8nion and the State egislatures over .3items% such as Criminal law and procedure % Civil procedure% marriage% contacts%

torts% trusts% welfare of la$our% social insurance% economic and social planning

and etc

In the event of overlapping of a matter as $etween the three ists%

predominance has $een given to the 8nion egislature Thus% the power of the

State egislature to legislate with respect to matters enumerated in the State

ist has $een made su$ect to the power of the 8nion Parliament to legislate

in respect of matters enumerated in the 8nion and Concurrent ists In case of

repugnancy $etween a law of a State and a valid 8nion legislation relates to a

concurrent su$ect% the State legislation may prevail notwithstanding% such

repugnancy% if the State law was reserved for the President and has received

his assent

As for eample % some provisions of the >est (engal and Reforms Act are

repugnant to the Constitutional provision of right to property $ut since the and

Reforms Act has o$tained President;s assent % these provisions will prevail

8nder the Act of #0+J% the residual powers were vested neither in the

Federation not in the State $ut were placed at the hands of the 'overnor-

'eneral (ut the Article *.L of the Constitution vests the residuary power ie

the power to legislate in respect of any matter not enumerated in any one of

the three ists%- in the 8nion The foregoing is an account of the division of

legislative powers $etween the 8nion and the States with reference to the

su$ects of legislation

According to the Clause . of Article *.4 of the Constitution of India the territorial

urisdiction is also divided A State egislature may ma)e laws for that State

only% $ut the 8nion Parliament may ma)e laws for the whole of the territory of

India or any part thereof As regards territories not included ie a State 1eg% the

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28/41

8nion Territories2 Parliament may ma)e laws even with respect to su$ects which

are included in the States ist


29/41

$2 egislative : According to the Article L+ 1*2 while a Proclamation of

=mergency is in operation % Parliament

may% $y law% etend the normal life of the &ouse of the People 1 J years2 for a

period not eceeding one year at a time and not etending in any case $eyond aperiod of 4 months after the Proclamation has ceased to operate

As soon as a Proclamation of =mergency is made the egislative Competence

of the 8nion Parliament shall $e automatically widened and the limitation

imposed as regards ist II% $y Article *.4 1+2 % shall $e removed In other words%

during the operation of the Proclamation of =mergency% Parliament shall have

the power to legislate as regards ist II 1 State ist2 as well under Article *JK %

Clause 1#2 Though the Proclamation shall not suspend the State egislature% it

will suspend the distri$ution of legislative powers $etween the 8nion and the

State% so far as the 8nion is concerned%- so that the 8nion Parliament may meet

the emergency $y legislation over any su$ect as may $e necessary % as if the

Constitution were unitary

According to the Article +J+ % Clause1$2 in order to carry out the laws made

$y the 8nion Parliament under it;s etended urisdiction as outlined a$ove

Parliament shall also have the power to ma)e laws conferring powers% or

imposing duties as may $e necessary for the purpose% upon the =ecutive of the

8nion

c2 Financial :8nder Article +J. the during operation of the Proclamation of

=mergency% the President shall have the Constitutional power to modify the

provisions of the Constitution relating to the allocation of nancial relations

$etween the 8nion and the States % $y his own @rder (ut no such @rder shall

have e"ect $eyond the nancial year in which the Proclamation itself ceases

to operate % and % further% such @rder of the President shall $e su$ect to

approval $y Parliament

d2 As regards Fundamental Rights: Articles +JL-+J0 lay down the e"ects of a

Proclamation of =mergency upon fundamental rights

>hile Art +JL provides that the State would $e free from the limitations

imposed $y Art #0% so that these rights would $e non-eistent against the State

during the operation of a Proclamation of =mergency made on the grounds of

>ar or etend aggression under Art +J0 the rights themselves would not $e

suspended $ut the right to move the Courts for the enforcement of the

fundamental rights other than Arts *K and *#% would remain suspended $y

@rder of the President @n the other hand% while the suspension under Art +JL

will continue during the operation of the Proclamation % the duration of the

suspension under Art +J0 may $e made shorter $y the President;s @rder% so

that it may not continue $eyond the necessities of the case In short% the

provisions of Art +J* and its allied article arm the centre with etraordinary

powers not only against the units of the Federation $ut also against the people


30/41


31/41

Provided that if any such Proclamation % not $eing a Proclamation % is

issued at a time when the &ouse of the People is dissolved or the dissolution of

the &ouse of the People ta)es place during the period of two months referred

to in this clause% and if a resolution approving the Proclamation has $een

passed $y the Council of States% $ut no resolution with respect to such

Proclamation has $een passed $y the &ouse of the People $efore the epiration

of that period% the Proclamation shall cease to operate at the epiration of

thirty days from the date on which the &ouse of the people rst sits after its

reconstitution unless $efore the epiration of the said period of thirty days a

resolution approving the Proclamation has $een also passed $y the &ouse of the

People

1.2 A Proclamation so approved shall% unless revo)ed% cease to operate

on the epiration of a period of si months from the date of issue of the

Proclamation :

I has further $een provided that if and so often as a resolution approving

the continuance in force of such a Proclamation is passed $y $oth &ouses of

Parliament % the Proclamation shall% unless revo)ed% continue in force for a

further period of si months from the date on which under this clause it would

otherwise have ceased to operate% $ut no such Proclamation shall in any case

remain in force for more than three years

Provided further that if the dissolution of the &ouse of the People ta)es

place during any such period of si months and a resolution approving the

continuance in force of such Proclamation has $een passed $y the Council of

States% $ut no resolution with respect to the continuance in force of such

Proclamation has $een passed $y the &ouse of the People during the said period%

the Proclamation shall cease to operate at the epiration of thirty days from the

date on which the &ouse of the people rst sits after its reconstitution unless$efore the epiration of the said period of thirty days a resolution approving

the continuance in force of the Proclamation has $een also passed $y the &ouse

of the People

It is also provided that notwithstanding anything contained in clause 1.2% a

resolution with respect to the continuance in force of a Proclamation approved

under clause 1+2 for any period $eyond the epiration of one year from the date

of issue of such Proclamation shall not $e passed $y either &ouse of Parliament

unless-

1a2 a Proclamation of =mergency is in operation% in the whole of India or% as

the case may $e% in the whole or any part of the State% at the time of the passingof such resolution % and

1$2 the =lection Commission certies that the continuance in force of the

Proclamation approved under clause 1+2 during the period specied in such

resolution is necessary on account of diNculties in holding general elections to

the egislative Assem$ly of the State concerned


32/41

:- >hat is the Constitutional provision regarding nancial =mergency >hat are

the e"ects of proclamation of nancial =mergency

Article +4K of the Constitution deals with nancial emergency

According to Clause # of this Article % If the President is satised that a

situation has arisen where$y the nancial sta$ility or credit of India or any part

of the territory thereof is threatened% he may $y a Proclamation ma)e a

declaration to that e"ect

Clause * spea)s that a Proclamation issued under clause 1#2-

a2 may $e revo)ed or varied $y a su$se,uent Proclamation and

$2 shall cease to operate at the epiration of two months % unless $efore the

epiration of that period it has $een approved $y resolutions of $oth &ouses of

Parliament

It has further $een provided that if any such Proclamation is issued at a time

when the &ouse of the People has $een dissolved or the dissolution of the &ouse

of the People ta)es place during the period of two months referred to in su$-

clause 1c2% and if a resolution approving the Proclamation has $een passed $y

the Council of States% $ut no resolution with respect to such Proclamation has

$een passed $y the &ouse of the People $efore the epiration of that period %

the Proclamation shall cease to operate at the epiration of thirty days from

the date on which the &ouse of the People rst sits after its reconstitution%

unless $efore the epiration of the said period of thirty days a resolution

approving the Proclamation has $een also passed $y the &ouse of the People

Clause + provides that during the period any such Proclamation as is mentioned

in clause 1#2 is in operation% the eecutive authority of the 8nion shall etend to

the giving of directions to any State to o$serve such canons of nancial

propriety as may $e specied in the directions% and to the giving of such other

directions as the President may deem necessary and ade,uate for the

purpose

Clause . says that ----

1a2 any such direction may include-

i2 a provision re,uiring the reduction of salaries and allowances of all or any

salaries and allowances of all or any class of persons serving in connection

with the a"airs of a State6

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ii2 a provision re,uiring all 7oney (ills or other (ills to which the provisions of

Article *K3 apply to $e reserved for the consideration to the President after

they are passed $y the egislature of the State 6

1$2It shall $e competent for the President during the period any

Proclamation issued under this article is in operation to issue directions for the

reduction of salaries and allowances of all or any class of persons serving inconnection with the a"airs of the 8nion including the Dudges of the Supreme

Court and the &igh Courts


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the amendment shall also re,uire to $e ratied $y the egislature of not less

than one-half of the States $y resolutions to that e"ect passed $y those

egislatures $efore the (ill ma)ing provision for such amendment is presented to

the President for assent

According to the Clause + of the Article that nothing in Article #+ or the

laws inconsistent with or in derogation of the fundamental rights % shall apply toany amendment made under this article

In the case of Chandra Qumar v 8nion of India it was also held that the

Articles-+4L and #+ as well as the power of udicial review% is a $asic and

essential feature of the Constitution

Clause . of the Article says that no amendment of this Constitution %

including the provisions of Part III or the provisions of fundamental rights % made

or purporting to have $een made under to have $een made under this article

%whether $efore or after the commencement of Section JJ of the Constitution

1 Forty Gsecond Amendment 2 Act% #034% shall $e called in ,uestion in any Court

on any ground

Clause J of the Article has lastly declared that for the removal of dou$ts that

there $e no limitation whatever on the constituent power of Parliament to

amend $y way of addition% variation or repeal the provisions of this Constitution

under this article

In the case of 7inerva 7ills td v 8nion of India % it was held $y the

Supreme Court that the Article +4L 1.2 and 1J2 1as introduced $y

.*nd Amendment Act2 is unconstitutional as damaging the $asic and essential

features of the Constitution

In the case of Coelho 5 State of TB% it was further held that the Parliamentcannot increase the amending power $y amendment of Article +4L to confer on

itself unlimited power of amendment and destroy and damage the

fundamental of the Constitution % nor can it use Article +#-( to achieve the same

purpose Article +#-( therefore cannot go $eyond the limited amending power

contained in Article +4L

And in the case of Qesavananda (harati v State of Qerala it was held $y a

landmar) Dudgment that any amendment that a$ridges the $asic features of the

Constitution shall $e deemed to $e ultra vires

There have $een several challenges to Constitutional Amendments after #03+

either on the ground that they violate a $asic feature or that procedure laiddown in Article +4L has not $een followed

Power of amendment under Article +4L is a derivative power and not unlimited

Though amendments can a"ect ordinary principle of e,uality% $asic features of

Constitution cannot $e anended


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Comptroller and Auditor G'eneral of India

Article #.L provides that ---

1#2 There shall $e a Comptroller and Auditor- 'eneral of India who shall $eappointed $y the President $y warrant under his hand and seal and shall only

$e removed from oNce in li)e manner and on the li)e grounds as a udge of the

Supreme Court

1*2 =very person appointed to $e the Comptroller and Auditor-'eneral of India

shall% $efore he enters upon his oNce% ma)e and su$scri$e $efore the

President% or some person appointed in that $ehalf $y him% an oath or

aNrmation according to the form set out for the purpose in the Third

Schedule

1+2 The salary and other conditions of service of the Comptroller and Auditor-

'eneral shall $e such as may $e determined $y Parliament $y law and% untilthey are so determined% shall $e as specied in the Second Schedule

It has also $een provided that neither the salary of a Comptroller and Auditor G

'eneral not his rights in respect of leave of a$sence% pension or age of

retirement shall $e varied to his disadvantages after his appointment

1.2 The Comptroller and Auditor- 'eneral shall not $e eligi$le for further oNce

either under the 'overnment of India or under the 'overnment of any State

after he has ceased to hold his oNce

1J2 Su$ect to the provisions of this Constitution and of any law made $y

Parliament% the conditions of service of persons serving in the Indian Audit and

Accounts !epartment and the administrative powers of the Comptroller and

Auditor-'eneral shall $e such as may $e prescri$ed $y rules made $y the

President after consultation with the Comptroller and Auditor-'eneral

142 The administrative epenses of the oNce of the Comptroller and Auditor-

'eneral% including all salaries% allowances and pensions paya$le to or in respect

of persons serving in that oNce% shall $e charged upon the Consolidated Fund

of India

Article #.0 provides the duties and powers of the comptroller and

Auditor-'eneral of India According to this Article the Comptroller and Auditor G

'eneral shall perform such duties and eercise such powers in relation to the

accounts of the 8nion and of the States and of any other authority or $ody as

may $e prescri$ed $y or under any law made $y Parliament and until

provision in that $ehalf is so made% shall perform such duties and eercise such

powers in relation to the accounts of the 8nion and of the States as were

conferred on or eercisa$le $y the Auditor G'eneral of India immediately $efore

the commencement of this Constitution in relation to the accounts of the

!ominion of India and of the Provinces respectively

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Article #J# deals with the Audit reports This Article spea)s that---

1#2 The reports of the Comptroller and Auditor G'eneral of India relating to the

accounts of the 8nion shall $e su$mitted to the President% who shall cause

them to $e laid $efore each &ouse of Parliament

1*2 The reports of the Comptroller and Auditor 'eneral of Indiarelating to the accounts of a State shall $e su$mitted to the 'overnor of the

State% who shall cause them to $e laid $efore the egislature of the State


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It was held that the =lection Commission is in sole charge of determining

schedule and conducting of elections And Chief =lection Commissioner is

merely the rst among e,uals


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=planation- For the purposes of this article% the 'overnment of the

State means the person for the time $eing recognised $y the President as the

7aharaa of Dammu and Qashmir acting on the advice of the Council of 7inisters

for the time $eing in oNce under the 7aharaa;s Proclamation dated the fth

day of 7arch% #0.L6

a2 the provisions of Article I and of this article shall apply in relation to theState

$2 such of the other provisions of this Constitution shall apply in relation to

that State su$ect to such eceptions and modications as the President may

$y order specify

Provided that no such order which relates to the matters specied in the

Instrument of Accession of the State referred to in paragraph 1i2 of su$-clause

1$2 shall $e issued ecept in consultation with the 'overnment of the State

Provided further that no such order which relates to matters other than

those referred to in the last preceding proviso shall $e issued ecept with theconcurrence of that 'overnment

*2 If the concurrence of the 'overnment of the State referred to in Paragraph

1ii2 of su$-clause 1$2 of clause 1#2 or in the second proviso to su$-clause 1d2 of

that clause $e given $efore the Constituent Assem$ly for the purpose of

framing the Constitution of the State is convened% it shall $e placed $efore such

Assem$ly for such decision as it may ta)e thereon

+2 Botwithstanding anything in the foregoing provisions of this article% the

President may% $y pu$lic notication% declare that this article shall cease to $e

operative or shall $e operative only with such eceptions and modications and

from such date as he may specify

Provided that the recommendation of the Constituent Assem$ly of the State

referred to in clause 1*2 shall $e necessary $efore the President issues such a

notication ?

(y the Constitution Amendment 1 seventh2 Act % #0J4 % the Part- vii % containing

Article *+L of the Constitution has $een repealed or omitted The Constitution

1 Application to Dammu and Qashmir 2 @rder % #0J. % has $een amended from time

to time


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Documents

Indian Constitution Law