AIBE: Constitutional Law carries 5 marks as per the latest bar exam syllabus. Find and know about the intricacies of Constitutional Law for AIBE.
Part I – General features of the Indian Constitution, Fundamental Rights and Directive Principles
AIBE: Constitutional law The Making of our Constitution
- The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies.
- The Assembly met, in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution.
- The chairman of the drafting commission of the constituent assembly was Dr. B.R. Ambedkar and Dr. Rajendra Prasad was the chairman of the Constituent Assembly.
- The Constitution, in its current form, consists of a preamble, 22 parts containing 448 articles, 12 schedules, 5 appendices – it is the longest written constitution of the world.
The Preamble and its features
The Preamble sets the goal and objectives that the constitution maker seeks to achieve. However, the preamble is not directly enforceable in the court of law, but has been relied on by the courts to interpret the provisions of the Constitution. The framers of the Indian constitution sought to achieve a sovereign, socialist, secular, democratic, republic. The word socialist and secular were added by the 42nd amendment to the constitution.
- The preamble provides for three kinds of justice – social, economic and political.
- Liberty of thought, expression, belief, faith and worship.
- Equality of status and opportunity
- It strives to promote fraternity assuring the dignity of the individual and the unity and integrity of the nation.
The constitution was adopted on 26th November, 1949 as given in preamble but it came into force on 26th January 1950.
Fundamental Rights (‘FRS’)
The fundamental rights are charter of rights that guarantees certain basic civil rights and freedom to all. However, these rights are not absolute.
- A person can go to the court of law for enforcement of fundamental rights in case of its violation.
- During emergency, operation of all fundamental rights other than Article 19 is suspended.
- However, after 44th amendment, the right to move to the court for the enforcement of the fundamental rights given under Article 20 and 21 cannot be suspended.
- The fundamental rights are enforceable against the state and not against private individual.
- Article 12 of the constitution defines state as consisting of- The Government and Parliament of India- Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States, The Government and Legislature of each State, State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them, Local Authorities within the territory of India Authority means Power to make rules, bye- laws, regulations, notifications and statutory orders and power to enforce them. Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund and Other Authorities
Classification of Fundamental Rights
Article 14 – Equality before law.
- The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- The state is under an obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being.
- Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.
- However, nothing in this article prohibits the state from making special provisions for women and children, socially and educationally backward classes or for the scheduled castes and scheduled tribes.
- There shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the state.
- Nothing in this article shall prevent the state from reserving the seats in favour of any backward class, scheduled tribes and scheduled castes.
- This article abolishes Untouchabilty and forbids its practice in any form.
- This fundamental right can be implemented against individuals
- Article 18 states that, no title, not being a military or academic distinction, shall be conferred by the state and no person from India shall accept any title from any foreign state.
- No person who is not a citizen of India shall while he holds any office of profit or trust under the state, accept without the consent of the president any title from any foreign state.
Right to Freedom: (Articles 19 to 22)
- Article 19 provides- freedom of speech and expression, to assemble peacefully without arms ,to form associations and unions d) to move freely throughout the territory of India ,To reside and settle in any part of the territory of India. , To practice any profession or to carry on any occupation, trade or business. Originally, Article 19 guaranteed seven freedoms. The freedom to hold and acquire property was repealed in 1978.
Under Article 20,
- No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence.
- No person shall be prosecuted and punished for the same offence twice- Principle of Double Jeopardy
- No person accused of any offence shall be compelled to be a witness against himself- the prohibition against self-incrimination
Article 21 provides that no person shall be deprived of his life or personal liberty according to the procedure established by law.
- The scope of Article 21 has widened with time and it has been given multi dimensional interpretation. Article 21 includes many rights such as right to go abroad, right to privacy, right against solitary confinement, right against hand cuffing, right against delayed execution, right to shelter, right against custodial death, right against public hanging etc.
- Right to life and liberty given under Article 21 is available both to citizens and non-citizens
- Article 21-A was introduced by 86th amendment, 2002 and it provides for the free and compulsory education to children from 6 to 14yrs of age. So, right to be educated is now a fundamental right.
- It provides that no person who is arrested shall be detained in custody without being informed as soon as possible the grounds for such arrest.
- The arrested person shall not be denied the right to consult, or to be defended by a legal practitioner of his choice.
- Under clause 2 of Article 22, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24hrs of such arrest.
– Under this Article employment of children below the age of 14 year in any factory, mine or other hazardous occupation is prohibited.
Articles 25 to 28 – Right to Freedom of religion
- Right to freedom of religion, covered in Articles 25, 26, 27 and 28, confers rights relating to freedom of religion on all persons of India.
- Article 25-28 also protects religion and religious practices from state interference. India has no preferred or state religion and all religions are treated alike and enjoy equal constitutional protection.
Cultural and Educational Rights: (Articles 29 and 30)
- Articles 29 and 30 protect the rights of minorities. Any community which has a language and a script of its own has the right to conserve and develop it.
Right to Constitutional Remedies(Article 32)
- Any person whose fundamentals right is infringed can move to the Supreme Court for the enforcement of his fundamental right.
- The Supreme Court is bound to issue appropriate writs for the enforcement of these rights.
- The basic function of the writs is to protect the fundamental rights as guaranteed under Part III of the Constitution.
- The Supreme Court can issue 5 kinds of writs under Article 32.
Writ of Habeas Corpus
- The writ of Habeas Corpus means “produce the body”
- It is a process by which a person who is confined without legal justification may secure a release from his confinement.
Writ of Mandamus
- Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of statutory duty
Writ of Quo Warranto
- The object of the writ is to prevent a person who has wrongfully usurped an office from continuing in that office.
- The writ calls upon the holder of the office to show to the court under what authority he holds the office. If the court determines that the incumbent is holding the office in question illegally, it would pass the order of ouster which must be obeyed by him.
Writ of Prohibition
- A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a tribunal possessing judicial or quasi- judicial powers from assuming or threatening to assume jurisdiction which it does not possess. 2. The writ lies both for excess of jurisdiction and absence of jurisdiction.
Writ of Certiorari
- The writ of Certiorari is an order of the court issued to inferior courts, tribunals or authorities to transmit to it the record of proceeding pending with them for scrutiny and, if necessary, for quashing the same. 2. The writ of certiorari can be issued to a judicial or quasi-judicial body on the following grounds- want or excess of jurisdiction, violation of procedure or disregard of principles of natural justice, error of law apparent on the face of the record.
The writs can be issued by Supreme Court under Article 32 and the High Court under Article 226. Article 32 is remedial and not substantive in nature. Dr. B.R. Ambedkar described it as the heart and soul of the constitution.
Directive Principles and Fundamental Duties
The Directive Principles of State Policy provide the guidelines for the framing of laws by the government. These principles are not enforceable by any court of law, but they are fundamental for the governance of the country. The government is duty bound to apply these principles while making laws. There are 20 Directive Principles laid down in our Constitution.
List of directive principles
Article 38- State to secure a social order for the promotion of the welfare of the people.
Article 39- The state shall direct its policies towards securing adequate mean of livelihood to men and women equally, equal pay for equal work, prevention of concentration of wealth etc.
Article 39A- The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme. This provision of equal justice and free legal aid was introduced into the constitution by 42nd Amendment Act, 1976
Article 40- It provides for organization of Village Panchayats. This directive principle was implemented via 73rd Amendment Act of the constitution which introduced Panchayats in Part IX of the Constitution.
Article 41- Right to work, to education and to public assistance in certain cases. The state shall within the limits of its economic capacity and development, make effective provision for ensuring employment, education and public assistance in cases of unemployment, old age, sickness and disablement.
Article 42- The state shall make provision for securing just and humane condition of work and for maternity relief.
Article 43- This article requires the state to strive to secure to the worker work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
Article 43-A- The state shall take steps to ensure by suitable legislation or in any other way, the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. This provision was introduced into the Constitution by the 42nd Amendment Act, 1976.
Article 44- Uniform Civil Code. The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.
Article 45- The state shall endeavor to provide early childhood care and education for all children until they complete the age of 14 yrs. The right to education has now become a fundamental right under Article 21-A
Article 46- The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and tribes, and shall protect them from social injustice and all form of exploitations.
Article 47- The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duty.
Article 48- The state shall endeavor to organize agriculture and animal husbandry.
Article 49- It shall be the obligation of the state to protect every monument or place or object of artistic or historic interest that is of national importance, from spoliation, disfigurement, destruction, removal, disposal or experts, as the case may be.
Article 50- The state shall take steps to separate the judiciary from the executive in the public services of the state.
Article 51- The state shall endeavor to promote international peace and security, maintain just and honorable relations between nations, foster respect for international law and treaty obligations, encourage settlement of international disputes by arbitration.
Fundamental Rights vs. Directive Principles
Fundamental rights are guaranteed under the constitution and can be enforced by the court of law in case of its violation, i.e. they are justiciable. Directive principles only have persuasive value and are guidelines provided to the State and are not enforceable by court.
List of Fundamental Duties
Part IV-A of the constitution introduced by 42nd Amendment Act, 1976 provides for the Fundamental duties given is section 51-A of the constitution.
There are 11 fundamental duties.
- To abide by the constitution and respect its ideals and institutions, the national flag and the national anthem.
- To cherish and follow the noble ideas which inspired our national struggle for freedom – To uphold and protect the sovereignty, unity and integrity of India.
- To defend the country and render national service when called upon to do so.
- To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
- To value and preserve the rich heritage of our composite culture;
- To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
- To develop the scientific temper, humanism and the spirit of inquiry and reform. – To safeguard public property and to abjure violence;
- To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements.
- Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen yrs. This clause (k) was introduced by the 86th Amendment Act, 2002 of the constitution.
What is the role of the Judiciary in our country? How does it function? What are the levels in the Indian judicial system? Let’s start with the hierarchy of courts, beginning with the Supreme Court at the highest level.
The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Article 124 provides for the establishment and constitution of the Supreme Court.
- The Supreme Court of India comprises of the Chief Justice of India and not more than 30 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority. Supreme Court Judges retire upon attaining the age of 65 years.
- In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years, or the person must be, in the opinion of the President, a distinguished jurist.
The Supreme Court has original, appellate and advisory jurisdiction.
Article 131 provides for the original jurisdiction in any dispute between the Government of India and one or more states, between the Government of India and any state or states on one side and one or more states on the other, and between two or more states.
- Appellate jurisdiction- An appeal shall lie to the Supreme Court from any judgment, decree or final order of a high court in the territory of India, whether in a civil, criminal, or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this constitution.
- Advisory Jurisdiction- Under Article 143, if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing give its opinion to the president
However the Supreme Court headed by Chief Justice of India is not bound to give opinion nor is the President bound to follow the advice given by the Supreme Court.
Special leave to appeal by the Supreme Court
Under Article 136 the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 136 confers a wide discretion on the Supreme Court to entertain appeals in the suitable cases not otherwise provided for by the constitution.
What is judicial independence? How has the Constitution ensured independence of the Supreme Court judges?
- a) The function of the Judiciary is to protect the rights of Individual, solve the disputes between centre and state and interpret the constitution, making its Independence, a necessity.
- b) The provision for appointment, allowances and salary are provided in the constitution to ensure that legislation does not hamper the independence of Judiciary
Power to punish contempt
Under Article 129 and Article 142 of the Constitution, the Supreme Court has been vested with power to punish anyone for contempt of any law court in India including itself. The Supreme Court is the highest court and it is necessary that everyone should abide by the orders of Supreme Court. To ensure that, constitution has made the provision to punish anyone for contempt of court
Impeachment /removal of the judge
- Under Article 124, clause 4, a judge may resign from his office by writing under his hand addressed to the president.
- A judge of the Supreme Court can be impeached by an order of the president on the grounds of proven misbehavior and incapacity. But the president’s power is exercisable only after an address by both house of parliament, supported by a majority of total membership and majority of not less than two-third of the members present and voting.
- Article 214 provides for the high court for the states. Article 215 provides that High courts will be a court of record.
- The constitution of High court- consists of a chief justice and such other judges as president from time to time appoint.
- Process of removal is similar to the process of removal of Supreme Court judges.
- A person to be eligible to be appointed as the High court judge should be citizen of India and- has for at least 10yrs held a judicial office in India or had for at least 10yrs been an advocate of High court
- Power of Superintendence- Article 227 provides that High court shall have superintendence over all courts and tribunals throughout the territories that come under that high court’s jurisdiction.
- The control over the subordinate judiciary, including the power to transfer, maintain discipline and keep control over the judicial officials, is vested in the high court.
- The district judges are appointed by the governor in consultation with the high court (Article 233)
The Union and the State Government
Components of the Union Executive
The Union executive comprises of the President, the Council of States (Rajya Sabha), and the House of People (Lok sabha)
Article 52 provides that there shall be a President of India. The power conferred upon him shall be exercised either directly or through the offices subordinate to him.
Qualifications for election as the President
- The candidate must be a citizen of India and less than 35 yrs of age. He must be qualified to be a member of Lok Sabha and he must not hold any office of profit.
Who shall elect the President?
- President is elected by an electoral college consisting of elected members of both the houses of parliament and of the state legislative assemblies.
Term of office of the President/ Removal
The term of the president is 5yrs and he is eligible to be re-elected. The president addresses his letter of resignation to the vice president. In case of the resignation, absence or death of the president, the vice president officiates his post.
Powers and functions
- He appoints prime minister and on his advice, the council of ministers.
- He must be informed of all decisions of council of ministers
- He summons, prorogues and addresses the parliament.
- No bill can become a law without president’s assent. Except the money bill, president can return the other bill without signing for reconsideration.
- When two houses do not agree on the provision of the bill, he may summon them for a joint session.
- He may promulgate ordinance, when parliament is not in session.
- When the security of India is threatened he can proclaim emergency, he also promulgates the President’s rule as well as the financial emergency
- He appoints- Judges of Supreme Court, High Courts, Governors of States, Comptroller and Auditor General, Chief Election Commissioner, members of UPSC, Finance Commission, Inter State Council, Ambassadors and diplomatic representatives of India in abroad, etc.
- He is the supreme commander of the Indian Defense Force
- President has the special power to grant pardons, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the punishment or offence is by a court martial, where the punishment or sentence is for an offence against a law relating to a matter to which the union’s executive power extends and in cases of death sentence.
Procedure for impeachment of the President
- President can be impeached for the violation of the constitution ( Article 61)
- A resolution for his impeachment can be moved in either house of the parliament after a notice of 14 days that is signed by at least one- fourth of the total member of the house
- Then the resolution has to be passed by two- third majority of the total membership of the house.
- After that, the other house investigates the charge and if it adopts the resolution with two- third majority of the total membership, then the president stands impeached.
- Vice president is the ex- officio chairman of the Rajya Sabha and he acts as the President in the absence of president and when the office of president lies vacant
- During the period when he is performing the function of president, he ceases to be ex- officio chairman of Rajya Sabha.
- He is elected by an electoral college consisting of members of both the houses of parliament.
- He is elected for the term of 5 yrs and can be re- elected.
- He can be impeached by a resolution adopted by a majority of members of Rajya Sabha and approval of this resolution by a majority of members of Lok Sabha.
The matter relating to the election of President and Vice President shall be inquired into and decided by the Supreme Court whose decision shall be final.
Prime Minister and Council of Ministers
- The Prime Minister of India, in practice, is the most powerful person in the government of India.
- Prime minister is appointed by the president. He is the leader of the majority party in the Lok Sabha and is the head of the council of ministers.
- He is responsible for the appointment of council of ministers and allocation of work among them.
- Council of ministers is collectively responsible to the lok sabha.
- Prime minister is the chairman and spokes person of the cabinet.
- His resignation would automatically amount to the resignation of the council of ministers
- He co-ordinates government policy and acts as a channel of communication between the council of ministers and the president.
Relationship between the Council of Ministers (headed by the Prime Minister) and the President
- The council of the Minster headed by the prime minister shall aid and advice the president who shall in the exercise of his functions, act in accordance with such advice.
- It shall be the duty of the prime minister to communicate all the decisions of council of ministers and to furnish such information as relating to the administration to the president.
- Lok Sabha consists of not more than 550 members elected directly by the people on the basis of universal adult suffrage.
- 530 members are elected from state and 20 from the union territories by the system of direct election from territorial constituencies.
- Council of ministers is responsible to Lok Sabha
- Rajya Sabha is the upper house of Parliament.
- The maximum strength of Rajya Sabha has been fixed at 250 members. Of these, 238 are elected representatives of states and union territories and 12members are nominated by the president from the field of literature, science, art and social services.
- The seats are allotted among the various states and the union territories on the basis of population. d) The representatives of a state in Rajya sabha are elected by the elected members of the state legislature assembly.
Functioning of the Lok Sabha and Rajya Sabha
- Speaker and deputy speaker are appointed for the functioning of the lok sabha.
- Vice president is the ex- officio chairman of Rajya Sabha and carries out its functioning and in his absence, functioning of Rajya Sabha is carried out by Deputy Chairman.
- No member of parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in parliament; the members of parliament are immune from arrest in civil cases while the parliament is in session and for 40 days before and after. In criminal cases they cannot be arrested while house is in session.
- Introduction of bills- Ordinary bill can be introduced both in Lok Sabha and Rajya Sabha, however a money bill cannot be introduced in Rajya Sabha and it has no power to amend or reject it. When the money bill is passed by the lok sabha, it is sent to Raja Sabha, if the Rajya Sabha fails to recommend it within 14 days, then the bill is considered to be passed by both the houses.
- Rajya Sabha has two special powers, firstly it empowers parliament to make legislations with respect to matter given in the state list and it empowers parliament to create new All India Services.
- Quorum- Minimum number of members required to be present for the functioning of the house of parliament, one-tenth of the total strength of the house is required for starting the session of the house of parliament.
Introduction of bills in the Parliament
- A bill to be passed as law can be introduced in either house of the parliament. However a money bill cannot be introduced in the council of the state.
- The money bill deals with borrowings of the government of India, custody and maintenance of consolidated fund, contingent fund or public accounts of India.
- A bill (except money bill) can be introduced in either house of the parliament and passes through various stages to become a law i.e. first reading, second reading, committee stage, report stage and third reading. After it is passed by one house of the parliament, it is sent to the other house and after it is passed from both the houses, it is sent to president for his assent and after president’s assent, it becomes the law.
Dissolution of the house
- The council of states (Rajya sabha) is not subjected to dissolution but one-third of its member retires every second year.
- The house of the people unless sooner dissolved shall continue for 5 yrs from the date appointed for its first meeting.
- During emergency, the term of the lok sabha can be extended by a year.
Qualification for membership of Parliament
- A person should be citizen of India to be elected as the member of either house of parliament.
- He should not be less than 30yrs of age in case of Rajya Sabha and not less than 25 yrs of age in case of lok sabha.
Disqualification of the Member of Parliament (Article 101)
- Where a person is member of two houses of legislature.
- A member is subject to disqualification( under Section 102) – if he holds any office of profit, if he is of unsound mind, if he is an undischarged insolvent, if he is not a citizen of India, if he is so disqualified by or under any law made by the parliament.
- If a member of the house absents himself for 60 days without permission of the house.
Attorney General of India
- Article 76 provides that president shall appoint a person who is qualified to be appointed as a judge of the Supreme Court to be Attorney- General of India.
- The function of the Attorney General is to give legal advice to the Government of India on such matters as may be referred to him by the president, to perform such other duties of legal character conferred upon him by the President.
- The Attorney General shall have right of audience in all courts in the territory of India.
- The Attorney General shall hold office during the pleasure of the President.
The State Executive
- The state executive consists of governor and legislative assembly but States where there are two houses; the executive consists of governor, legislative council and legislative assembly.
- The state legislature in Bihar, Maharashtra, Madhya Pradesh, Karnataka and Uttar Pradesh is bicameral. It consists of two houses i.e. legislative council and legislative assembly. In all other states, the state legislature is unicameral
The Legislate Assembly
- The legislative assembly consists of members who are directly elected by the people from the territorial constituencies of the state on the basis of universal adult franchisee, once in 5 years.
- In emergency, its life may be extended by a period of one year.
- The minimum number of members in legislative assembly may be 60 at the minimum and 500 at the maximum.
Functions of the legislative assembly
- The state legislature performs similar function for the state as does parliament for the whole of India.
- It makes laws, levies taxes, sanctions funds for the public expenditure.
The Legislative Council
- The state can have a second chamber called the legislative councils.
- The total membership of the legislative council cannot be less than 40 members or more than one- third of the total membership of the legislative assembly.
- The members of legislative council are elected by- electorates consisting of members of municipalities, district boards; electorates consisting of graduates, teachers; members of the state legislative assembly; the remainder of the members are nominated by the governor from the field of literature, science, co- operative movement and social service.
- The parliament may abolish the legislative council if a resolution to that effect with the majority of the total membership and majority of not less than two-third present and voting is passed by the concerned legislative assembly.
Powers and Function of Governor
- The governor is the chief executive of state.
- The same person can be appointed as governor by the president for 2 or more states.
- Power and function of governor are similar to that of the president.
- His function includes, appointment of chief minister and on his advice, council of ministers; promulgation of ordinance etc. All executive action of a state is taken in the name of the governor.
Power and Function of Chief Minister
- Chief Minister is the head of council of minister and is appointed by the Governor.
- It is his duty to communicate to the governor of the state all decision of council of ministers and to furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for.
Advocate General of the State
- Advocate General of the state is the state counterpart of the Attorney General of India and is appointed by the Governor of the state.
- It shall be the duty of the Advocate- General to give advice to the Government of the State upon such legal matter and to perform such other duties of legal character as may from time to time be conferred upon him by the governor.
Distribution of power between Centre and State in Indian Federalism
- In a federation, there is a division of power between the centre and the state governments. The distribution of legislative powers between the centre and the regions is the most important characteristic of federalism.
- The Indian constitution shows a centralised tendency that is why it is known as Quasi Federal.
- The Indian Constitution contains a very elaborate scheme of distribution of powers. The Indian Constitution provides with Union List, State List and Concurrent List, allocating an area of function to Union and State.
- The parliament has an exclusive power to make laws with respect to matter given in Union List. The union list has 99 entries
- The state has an exclusive power to make laws with respect to matters enumerated in State list. The state list has 66 entries.
- Concurrent list deals with subject on which both Centre and State can make laws. The concurrent list has 52 entries.
- Residuary powers- Central government has the power to form laws with respect to subjects which are not mentioned in any of the three lists.
- Article 370 gives special status to the state of Jammu and Kashmir.
- In Jammu and Kashmir, laws with respect to matter given in union list and concurrent list can only be made by the president by order in consultation with the state government.
Comptroller and Auditor- General of India.
- Article 148 provides for the Comptroller and Auditor general of India who shall be appointed by the President under his hand and seal.
- He can be removed from office in like manner and on the like grounds as a judge of the Supreme Court.
- The Comptroller and Auditor General (CAG) shall perform such duties and exercise such powers in relation to the accounts of the Union and the States and of any other authority or body as may be prescribed by or under any law made by the parliament.
Constitutional Provisions for Amendment of the Constitution
Article 368 specifies the power of the Parliament to amend the Constitution and the procedure for the same.
Procedure for the Amendment of the Constitution
For the purpose of amendment the provisions of the Constitution fall under 3 categories.
- Firstly, those that can be affected by a simple majority, required for the passing of an ordinary law.
- Secondly, those that can be effected by a special majority of the total membership of each house of parliament as well as by the majority of not less than two-third present and voting as laid down in Article 368(2)
- Thirdly, those that require, in addition to the special majority as described above, ratification by resolution passed by not less than one-half of the state legislature.
Basic structure doctrine
- The power of the parliament to amend the constitution is subject to the basic structure doctrine.
- The notion of the basic feature of the constitution was given in the Keshavnanda Bharati v. State of Kerela case.
- Features like supremacy of the constitution; republican and democratic form of the government; secular character of the constitution; separation of power between the legislature, executive and judiciary; federal character of the constitution; Sovereignty and territorial integrity of India, rule of law; Supreme Court’s power of judicial review, etc. forms the basic structure of the constitution.
Part XVIII of the constitution provides for the emergency provisions.
There are three kinds of emergency:
National Emergency (Article 352):
- If the president is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may by proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation.
- The word “armed rebellion” was added to the constitution via 44th Amendment Act, 1978 by replacing “Internal disturbance” as ground for emergency.
- While the proclamation of the emergency is in operation then the executive power of the Union extends to the giving of directions to any state as to the manner in which executive power thereof is to be exercised.
During the period of Emergency, the legislature may make laws that are inconsistent with the rights guaranteed under Article 19; however, their validity cannot be challenged. Nonetheless, as soon as the proclamation of emergency ceases to operate, the legislative enactments which are in conflicts with the rights given under Article 19 becomes inoperative. During the operation of proclamation of emergency, enforcement through courts of all or any of the fundamental rights except those in Article 20 and 21 may be suspended by the president.
Duration of emergency
The emergency provisions are intended to be resorted to in periods of grave national peril and must not be continued for any period beyond what is necessary.
- Such a proclamation of emergency shall be laid before both houses of Parliament and shall cease to operate at the expiration of that period unless approved by resolution of both houses of Parliament.
- When the proclamation of emergency is laid before a house of parliament, it can- approve the proclamation by passing a resolution, take no action, reject or disapprove it.
- In case where both the houses pass the resolution, the proclamation shall remain in force for 6 months from the date of such resolution and may be extended by passing similar resolution at the expiry of every 6 months till it is revoked by the president either of his own or on a resolution of the House of the People disapproving the proclamation. – Where only one house approves of the proclamation, it shall cease to operate at the expiration of one month.
- If either house takes no action the proclamation shall expire after one month. If the proclamation has been disapproved by the house of people, the president must revoke it immediately.
Breakdown of Constitutional Machinery (Article 356)
- Known as “president’s rule” – If the president, on receipt of report from the governor or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution, the president may by proclamation assume to himself all or any of the functions of the government of the state.
- Every proclamation issued under this article shall be laid before each house of parliament and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both houses of parliament. – the proclamation of emergency cannot continue for the period of more than one year from the date of issue of such proclamation unless certain special circumstances exists.
- Proclamation of emergency is in operation in the whole of India, or territory thereof or election commission certifies that the continuance of emergency is necessary on account of difficulties in holding general election to the legislative assembly of the state concerned.
Financial Emergency (Article 360)
- If the president is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, he may by a proclamation make a declaration to that effect.
- A proclamation issued may be revoked or varied by a subsequent proclamation, shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both houses of parliament. – Financial emergency cannot be imposed in the state of Jammu and Kashmir because of its special status under Article 370.
- Article 324 provides for the election commission.
- The elections to the house of parliament and to the legislature of every state and to the post of President and Vice-President are conducted by the election commission.
- The election commission consist of chief election commissioner and such number of election commissioner as president from time to time appoints.
Functions of election commission
- – Superintendence, direction and control of the preparation of electoral rolls
- – Conducting elections to parliament, state legislature, and to the office of president and vice president
- – Advising the president on the question of disqualification of any member of the parliament and advising the governor on the question of disqualification of any member of state legislature.
Introduction to Panchayats and Municipalities Panchayats
- Provisions of Panchayats introduced by 73rd amendment to the constitution.
- Part IX of the constitution provides for Panchayats.
- Panchayats shall be constituted at the village, intermediate and district level.
- Elections of Panchayats- conducted by state election commission.
- Reservation of seats in Panchayats- the scheduled castes, scheduled tribes, women.
- Power, authority and responsibilities of Panchayats- preparation of plans for economic development and their implementation.
- Part IX-A of the constitution provides for municipalities.
- Constitution of municipalities- Nagar Panchayats for a transitional area, Municipal Council for smaller urban area, Municipal Corporation for a larger urban area.
- Reservation of the seats- scheduled castes, scheduled tribes, and women.
- Power, authority and responsibility of Panchayats – preparation and implementation of plans for economic development and social justice.
Quiz on Constitutional Law- Emergency Provisions
1.) What are the grounds for declaring a national emergency?
A.) War, external aggression or armed rebellion
B.) Natural disaster
C.) Natural disaster
D.) None of the above
2.) Which constitutional article lays down the duty of the Union to protect States against external aggression and internal disturbances?
A.) Article 355
B.) Article 352
C.) Article 359
D.) Article 225
3.) Which constitutional article deals with the failure of constitutional machinery (known as State Emergency) in States ?
4.) Which constitutional amendment laid down that Fundamental Rights under Articles 20 and 21 of the Constitution are enforceable despite the operation of an emergency?
A.) 44th Amendment Act
B.) 46th Amendment Act
C.) 45th Amendment Act
D.) 48th Amendment Act
5.) Whose assent is necessary for the extension of emergency in case of threat to the security of India?
A.) Prime Minister
B.) Home Minister
C.) President of India
D.) Vice-President of India
6.) Who has the power to declare a financial emergency?
B.) Prime Minister
C.) Finance Minister
D.) None of the above
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