Module-5

The State Executive: - Governor, Chief Minister, State Legislature & High
Courts
Election Commission, Elections and Electoral Process
Amendments
Emergency Provisions

The State Executive:

The Constitution has divided the powers into three lists:

1. Central/union list: There are 97 subjects like Defence, foreign affairs, finance,
railways, monuments, post and telegraph, Telephone, wireless, Prisons, roads etc in
these matters the center can make laws.

2. State List: There are 66 subjects like police, forests, land revenue, agriculture, law
courts, Labour welfare etc. Here the state can make the laws.

3. Concurrent list: There are 47 subjects like education, electricity, Industries factories,
Power, joint family marriage, medical services, press, religion, etc. Here the center
and state have the power of making laws.

Unitary type: Where there is only one government to the entire nation. Example England,
France etc
Federal type: Where the powers of the nation are divided between the center and states.
Example India, USA.

Governor:

1. Article 153 of the constitution, there shall be a governor for each state, but the
1956(7th) constitutional amendment makes it possible to appoint the same (Single)
person for 2 or more states.
2. The governor is the constitutional or executive head of the state
3. He represents the state government
4. He plays a vital role in the administration of the affairs of the state
5. He is a central agent.

Qualification: -
As per article 157 & 158
1. He must be a citizen of India.
2. He must be complete the age of 35 years
3. He shall not be member of Parliament or any state legislature ( It is deemed that he
has vacated his seat in that house)
4. He should not be unsound mind.
 5. He shall not hold any office of profit under the Govt of India or any state.
6. He should not punished by any court on the basis of crime more than two years

Appointment:-

1. Article 155 of the constitution, the governor of the state is appointed by the president
of India.
2. Before appointment of the governor, the president shall take the advice of the union
cabinet.
3. The constitution does not make any reference regarding the appointment of outsiders
as governor.
4. But, a conventions has been developed to appoint the persons of other states as
governors. This convention is being followed to ensure the impartiality of governor’s
office.
5. Ex.1. H C Mukharjee who was a Bengali by birth was appointed as the governor of
west Bengal. 2 Padmaja naidu, whose mother was a Bengali and Father an Andhraite.
3 Jayacharaja Wodeyar( The memorable King of Mysuru) was appointed as a
governor to Mysuru state.4. Sardar Ujjal Singh were also appointed as governor to
Punjab.

Term
1. As per article 156, the term of office of the governor is 5 years. But he hold the office
at the pleasure of the president and indirectly at the pleasure of the union
cabinet( Article 56(1) i.e governor can be removed at any time.
2. The governor may be continued for the next term if president appoint him
3. Even after completion of the term he can continue in office until the appointment of
his successor

Oath
1. Article 159, the person appointed as governor of a state shall take oath in the presence
of chief justice of the high court or in his absence before the next senior judge.
I(Name) do swear in the name of God/solemnly affirm that I will faithfully executive
the office of governor ( or discharge the functions of the governor of(name of the
state) the law and that I will devote myself to the service and will being of the people
of (name of the state)
Resignation
1. If governor wishes to vacant his office, he may do so by addressing resignation letter
to the president of India

Removal of the Governor

1. President may ask resignation of governor, on the advice of the union cabinet
2. The political changes in the center
3. Ex: 1977 janata government ask resignation of umashakar dixit, 1980 Indira Gandhi
government ask resignation of Raghukula Tilak, 2004 Dr Manamohan Singh
government ask resignation of Goa’s governor K N Sahani Kaliashpati Mishra of
Gujrat, Babu Paramanand of Haryana and Vishnu Kant Shastri of UP
Transfer of Governor
1. The constitution does not contain any provision for the transfer governor from state to
state.
2. But central have the practice
3. Ex 1961 V V Giri was transferred from UP to Kerala . Jayacharaja Wodeyar( The
memorable king of Mysuru) was transferred from Mysuru state to Madras state in
1964. P. Venkatasubbaiah was transferred from Bihar to Karnataka. Vjapayee
transferred Justice Ramajois from Jharkhand to Bihar.

Salaries and Alliances

1. The governor is entitled for office residence ( Raj Bhavan) without payment of rent.
2. As per the 44th amendment to the constitution in 1978 the salary and other allowances
have to be given as determined by the parliament from time to time
3. They are entitled to medical, transportation and telephone facilities.
4. Salaries, allowances and other privileges of the governor cannot be varied to their
disadvantage during the period of service
5. In the beginning the governor was getting Rs 5500/- per month. It was raised to
11,000 in 1987 again it was raised to 36,000/- in 1996. Now Governor is getting a
salary of Rs 1,00,000/- per month.
6. But he has no pension. Former governors at present do not get any pension or post-
retirement benefits except medical facilities as per rules.
7.
Power and function of the governor Article-154
Executive, Legislative, Financial, Judicial and Discretionary powers.

Executive Power
1. The governor is head of the state executive. All administrative works will done in his
name( Article 166)
2. The cabinet headed by the chief minister will be function as adviser to the governor.
3. He appointed the chief minister, and other minister and to administer the oath of
officer( Article 164)
4. He appoints the advocate general of the state ( Article 165), Chairman and members
KPSC, judges of the subordinate courts, Vice-chancellor of state university.
5. He is the chancellor for state university and preside and address the convocation.
6. He assists the president to appoint High court chief justice and other judges(Article
217)
7. He removes the minister as per the advice of Chief minister.
8. He has a power to send report to the union government regarding the function of the
state government.
9. His real power, when the president rule is imposed. At that time he is the actually rule
the state.
10. Chief minister should report about important functions of the state.

Legislative power and functions

He is not a member of either houses of the state legislature, But he is a

part of the state legislature.(Article 168)
1. He call the session of legislature and adjourning the same ( article 177)
 2. Address the session of the new assembly constituted after the election and also the
first session of the year(Articl3e 176)
3. Address the legislature and to send the message to the legislature(Article 175)
4. He nominate six persons to the legislative council, they should have special
Knowledge or practical experience in respect of literature, science, arts, Co-operative
movement and social work
5. He dissolves the legislative assembly.
6. Without the governor’s assent, no bill can be become law even after it is passes by
both the houses. ( He may give his assent or withhold it or may reserve the bill for the
consideration of the president.
7. If governor send back to the government, if it again pass in both the legislative
without any correction, the governor has to give his assent.
8. Power promulgate ordinance during the period when legislature is not in session.
Such a ordinance should be approved by the state legislative within six
week(Article213)
9. He nominate one Anglo-India to state legislative assembly( Article 333)

Financial Powers and Functions

1. Before any introducing financial bill in the assembly, the permission of the governor
is essential.
2. For any amendment to a financial bill also permission of the governor is essential.
3. But no permission is required to reduce tax or impose tax
4. The governor can grant permission to the government to spend money out of the state
contingency fund during emergency period. Without prior sanction of the legislature.

Judicial Power

1. He assists the president to appoint High court chief justice and other judges. He
appoints judges of the Subordinate courts.
2. The governor has the power to grant, suspend, reduce the punishment and death
sentence of any person convicted of any offence.

Discretionary Power

1. Appointing a new chief minister when no single party have majority.

2. Dismissing a ministry where it refuses to resign even after losing majority support in
the legislative assembly
3. Dissolution of assembly on the advice of a chief minister who has lost majority
support.
4. Sending to the president report about the failure of constitutional machinery on the
state and to impose president’s rule in the state.
5. Giving assent to bill passed by the legislature.
The Role of the Governor

1. The governor does not represent any political party or any group
2. He should represent entire people of the state
3. He does not involve in political activities of the stat and treats all parties alike
4. Usually the governors will seniors and well experience in administrative matter
5. His suggestion will be of immense useful to the state
6. He must give consent for the enactments of the state.

Chief Minister & Cabinet

1. The entire political system revolves around him.

2. The chief minister have more power and prestige
3. The chief minister is the King-maker
4. He is rightly called as in elected king. Sun in the solar system
5. He has been describe as “ Keystone of the Cabinet Arch”, “Elected Monarch”
“Supreme Ruler” and “ Central Figure” of state politics.

Appointment

1. According to article 164, the chief minister is appointed by the governor

2. But the governor has no real choice in the matter
3. After the general election to the state MLA’s of the Majority group elect their leader.
(if no single party gets the majority more than 50%, the group of likeminded MLA’s
may together and form and elect their leader)
4. This leader so elected will be appointed as chief minister by the governor. Then he
will be sworn in by the governor as chief minister.

Oath

Every person elected as chief minister take oath in the presence of governor of state.

Term

1. There is no fixed term for the chief minister ( Maximum is 5 years for one election)
2. He holds office during the pleasure of the president. This means he can remains in
office as long as he enjoys the support of the members of the Legislative assembly.
3. A No- Confident motion, a split or defection in the party, rejection of the Budget,
resignation on his own, occasionally dissolution of legislative assembly, which ends
his term

Position of the Chief Minister

1. He is the most powerful functionary who controls both the state legislative and the
executive
2. He is the head of the council or minister, the chief minister is the head of the
government.
 3. He is the leader of the ruling party or coalition of parties. He is the leader of the house
of people(Legislative assembly)
4. He is the channel of communication between the council of ministers and the
governor.
5. He is the real executive head of the state, he is also the leader of the state.

Power and Function of the CM

1. Formation of the government

2. Constitution and size of the cabinet
3. Allocation of portfolios among the ministers.
4. Control over the functioning of minister-removal of ministers
5. Dissolving the state legislative assembly.
6. Head of the cabinet
7. Leader of the state legislative assembly
8. Head of the government
9. Advisor to the governor
10. Power of appointments
11. Supervisory Function
STATE LEGISLATURE

1. According to article 168 for every state there shall be a legislature consisting of the
governor.
2. The legislature in a state consisting of 2 houses is called Bi-cameral
Only 6 states have two houses, they are Bihar, Karnataka, Maharashtra, Andhra
Pradesh and Telangana, Uttar Pradesh.

3. The legislature in a state consists of 1 house is called Uni-cameral

4. The lower houses is known as legislative assembly (Vidhan sabha) and its member is
called MLA’s. They are directly elected from people
5. The upper house is known as legislative council (Vidhan Parishad) and its member
are called as MLC’s. They are indirectly elected.

Legislative Assembly

The lower houses is known as legislative assembly (Vidhan sabha) and its member is called
MLA’s. They are directly elected from people

.Composition:-

1. Article 170 of the constitution, it says the legislative assembly of each state shall
consists of not more than 500 and not less than 60 members.
2. But there is exception is made regarding three states namely Mizoram ( 40 seats) ,
Goa ( 40 seats), Skim ( 32 seats)
 3. Article 32 reservation of seats for SC’s and ST’s must also be made.
4. In Karnataka assembly 33 seats for SC’s and two for ST’s are reserved.
5. The number of members to the state is decided by population
6. Karnataka has 224 member of MLA’s and one Anglo-Indian nominated by governor

Term

1. According to article 172 the term of the legislative assembly is 5 years from date of its
first session after election.
2. During emergency, the state legislature may extend the term for one year
3. The assembly may be dissolved by president of India, before its term of 5 years is
completed.

Qualifications For Membership:- Article 173 of the Constitution

1. He\ She must be citizen of India.

2. The Candidate should not be less than 25 years of age.
3. He should not unsound mind
4. He should not hold any office of profit under the central or state government
5. He should not be an discharged insolvent
6. He should not be convicted by any court for crimes.

Facilities to the MLA’s:- According to the article 195.

Monthly salary, Free accommodation in the legislature home, free Bus pass, Medical
Facilities, sitting fees, Traveling allowances, Telephone facilities, Loan to purchase vehicles,
service of PA & Pension.

Session of Legislative assembly

1. The Legislative assembly must conduct its session at least 2 times in a year and there
shall not be a gap of more than 6 months between two sessions.
2. The for the sitting is 10% of the total membership.

Speaker and Deputy Speaker of the Legislative assembly

The members of L.A choose 2 members among themselves as a Speaker and Deputy speaker.
Speaker is the chief presiding officer of legislative assembly. He conduct the meeting of the
house.

Legislative Council:-

1. The upper house is known as legislative council (Vidhan Parishad) and its member
are called as MLC’s. They are indirectly elected.
Only the states of Bihar, Karnataka, Maharashtra, Andhra Pradesh , Telangana and
Uttar Pradesh have legislative councils. There is called the upper house or house of
elders and also the services of elders and experienced in the field of arts, Science,
 education, social service. Who are the members of his house are very valuable to the
Government and people.

Composition of Legislative Council: - Article-171

The Constitution the minimum number of member legislative council shall not be less than
40members and shall not more than one/third(1/3)rd of the members of the Legislative
assembly.

The present strength of legislative council is 75 members.

The legislative council has the members from various fields. The distribution is under:-

1. 1/3 rd its members will be elected by the members of local self-governing bodies like
Panchayat, gram panchayat, municipalities etc
2. 1/12 of its members will be elected by the teachers
3. 1/12 of its members will be elected by the Graduates
4. 1/3 its members will be elected by the LA
5. 1/6 of its members will be nominate by the Governor on the recommendation of the
cabinet from the field of art, science, social work, literature etc

Qualification and Eligibility of members of Legislative council

1. He shall be citizen of Indian, age 30 years

2. He should not hold any office of profit under the Government.
3. He should not unsound Mind
4. He should not be an undercharged insolvent
5. He should not be disqualified under any law made by the parliament.

Term of the Members of Legislative Council( MLC):-

1. The legislative council, that is videhana parishad it is a permanent house

2. Its members( MLCs) will have a term of six years but all members will not retire at a
time 1/3 of the members will retire in every two years.
3. After the completion of term
4. Newly elected members have to take oath from the chairman

Session of the Legislative Council

1. The Governor has the power to call the session of the legislative council
2. It is mandatory to hold the session at least twice in a year and there should not be gap
of 6 months between one session and the others.

Preceding officer of the Legislative Council:-

1. The preceding officer of the legislative council is the chairman. The chairman is
elected by the members of the legislative council from amongst themselves.
 2. The chairman presides over the meeting of the members of the legislative council
from amongst themselves.
3. The deputy chairman presides over the meeting of the legislative council in the
absence of the chairman.

Power and Function chairman of the Legislature Council as per Speaker Legislature
Assembly

1. Legislative powers
2. Executive powers
3. Financial Power
4. Election Powers
5. Constitution amendment powers

Legislative Powers:-

1. The state legislature have the power to enact law on police, cooperative, institutions,
public health, public distribution, education, communication, land matters, forest,
sericulture ,taxes excise etc
2. State legislature is a law making body
3. Legislative bill can be introduced in either houses of state legislature( if the bill
introduced by a member is called a private bill)
4. The debate on the bill in the house where it is introduced becomes very important.
5. According to article 108
6. It may reject the bill
7. It may suggest some amendments which are not agreeable to the house
8. It may not return the bill even after the lapse of six months.

Financial Function of Legislative assembly

The powers of legislative council, as far as finance bill are concerned is comparatively lesser
than that of legislative assembly

1. The finance bill will be sent to legislative council after they are passed in legislative
2. The approval of legislative council is only formal and even if legislative council reject
such bill it will be treated as passed
3. The government has to obtained permission of legislative assembly for any
expenditure before 31st of March every year.

Executive Powers

1. The legislature exercises a direct control over the government

2. The functioning of the government may be questioned and criticized in the houses
3. The legislative assembly through a no-confidence motion can unseat the government

Election Powers
 1. The members of Legislative assembly(MLA’s) would cast their votes in the election
of president of India
2. The members of Rajya Sabha from a state will be elected by the MLA’s of the state
3. MLA’s have a power of elect or remove the Chief minister Speaker and Deputy
speaker
4. MLC’s hav a power of elect r remove the chairman and Deputy Chairman

High Court
State Judiciary-High Courts

The High Court of each state is at the Apex of the Judiciary system of that state. Constitution
provides for the establishment of a HC in each state. However the parliament has power to
establish a common HC for 2 or more sates.

Eg:

1. Single HC at Chandigarh for state of Punjab & Haryana

2. Single HC at Guwahati for states of Assam, Meghalaya, Nagaland, Manipur &
Tripura.
3. Single HC at Mumbai for state of Maharashtra & Goa

Appointment of Judges:

HC consists of one chief justice & such other judges as the president may from time to time
deem it necessary to appoint. Besides the president has power to appoint

1. Additional Judges for a temporary period not exceeding 2yrs for clearance of arrears
of work.
2. Acting judge, when a permanent judge is temporary absent.

Qualification:

1. Citizen of India
2. Practicing Advocate of a HC for at least 10yrs
3. Person holding judicial office at least 10 yrs

Term:-

The judges of the High Court holds office till he attains 62 years of age

Powers & Functions:

1. Original Jurisdiction:- In cases relating to admiralty, will company law & contempt
of court, are the matters dealt with in this original jurisdiction. It can also issue writs
under Art. 226
2. Appellate Jurisdiction:- It has Appellate jurisdiction in both civil & criminal matters.
  Civil Cases:- The civil cases may go to the High Court on either first appeal
or Second appeal. The appeal from district judges and subordinate judges may go
to High Court.
 Criminal Cases:- The High Court can take up Criminal cases on appeal in two
cases

 A person can appeal against the decision of a session judge or an additional

session judge in a case where the punishment is an imprisonment exceeding 7
years

 Against the decisions of an Assistant Sessions judge or other judicial magistrate in

certain special cases other than petty cases.

3. Supervisory Jurisdiction: - High Court has power of superintendence over all courts
throughout the territory in relation to exercise of jurisdiction.
4. Public interest litigation: - Sometimes, Govt, or public authority violates the law or
exploiting the citizens, at that time any affected citizen may directly complain to the
court. Even a letter of complaint is taken up as PIL by the court.
5. Court of Record: It is a court of records. The proceedings, acts & decisions of the
HC are kept in records & those re cords can be used as evidences or precedents for the
future cases.

Electoral Process ( 324 to 329(b)

Election Commission
1. Democracy is sustained by free and fair elections. Only free and fair elections
to the various legislative bodies in the country can guarantee the growth of a
democratic polity. To ensure free, fair and impartial elections, the constitution
establishes the election commission, a body autonomous in character and
insulated from political pressures or executive influence.
2. Art. 324 Superintendence, direction and control of elections to be vested in an
Election Commission the superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of, all elections to
parliament and to the Legislature of every state and of elections to the offices
of president and Vice-president held under this constitution shall be vested in a
commission ( referred to in this constitution as the election commission)

Elections in India
The constitution of India provides a separate chapter dealing with elections. Part-XV
Article 324-329 of the constitution outlines the laws of election and power and
functions of the election commission. There are also certain acts passed in order to
conduct 3 monthly the electoral process. The union parliament has enacted
The Following acts:
1. The Presidential & Vice-Presidential Election Act-1952:-
The Constitution of India lays down the procedure for election to the offices of
the president and vice-president of India. But it has not laid down the procedure
for election to the parliament & state legislature.
2. The Representation of People’s Acts of 1950 to 1972:
It Prescribes the mode of election. Representation of the people (Amendment)
Act-1988 with effect from 15-3-1989
3. The Delimitation Commission Acts of 1962 to 1972:
This prescribes delimitation of the constitution relating to elections to the house
of parliament & state legislature assembly. The Delimitation of parliamentary
and assembly constituencies order 1976 is also passed.

Electoral Process ( Art. 324)

General Election: it is held during a particular period. ( once in five years) when all
the electorates simultaneously go to elect their representatives.
Bye Election: It is held to fill a vacancy for a short term, caused either by resignation
or death, till general election is held again.

The election system in India is largely based on the pattern of Britain.

The independent and impartial machinery to conduct elections in India is Election

commission: This is an independent body like Supreme Court and High Court which
is entrusted with the superintendence, direction and control of all elections to
parliament, state legislature and to the offices of the president and Vice-president of
India. The Election commission will perform its functions freely without the influence
and interference of political parties and executives.

Composition:
Election Commission of India consists of one chief election commissioner and such
other election commissioners as the president may fix from time to time. They are
appointed by the president. Election commission is a multimember commission,
consists of 3 members i.e Chief Election commissioner and 2 other Election
commissioner, The term of office is 6years or 65 yrs, whichever is earlier.

Removal:
The Chief Election commissioner of India can be removed from his office in the
similar manner and on the similar grounds as a judge of SC. Before the expiry of the
term of 6yrs, he can be removed by the president on the recommendation of the
parliament

Provisions:
1. Every territorial constituency will have on electoral role. i.e it is the work
of chief electoral officer of each state and the electoral registration officer
of each constituency to prepare and maintain all the electoral rolls of the
Country.
 2. Adult suffrage shall be the rule for election, means every citizen of India
who is 18 yrs and above is entitled to vote. Voting age was 21 yrs , by
amendment Act, it is changed from 21 to 18yrs.
3. Some seats were reserved for SC’s & ST’s in the union parliament , state
legislature and Union territories.

Functions of the Election Commission

1. Election commission conduct elections to parliament, state legislature & union
territories, it includes office of the president and vice-president
2. Election commission shall not conduct election to the post of prime minister
and speaker of Lok Sabha.
3. Election commission prepares electoral rolls for the elections to parliament,
state legislatures as well as local bodies and revises the electoral rolls.
4. Election commission decides the schedule of election to the parliament and
state legislature.
5. Election commission lays down general rules for elections and issues election
notification
6. The Election process starts only after the notification ( of the president or
governor as the case may be) calling upon the voters to elect their
representatives.
7. Allotment of symbol and according recognition to political parties
8. Normally 8 days is allowed for filing nomination papers of the candidates with
respect to two conditions.
i) The candidate must be the voter in the country
ii) The Proposers must be voters in the concerned constituency where
the candidates are contesting
It is accepted principle that an individual may contest from any number of
constituencies if he has proposers from more than one constituency.

9.Election Deposit:

The candidate has to deposit Rs. 10,000/- for lok Sbha and Rs 5000 for state
Legislative assembly along with the nomination papers. Fr SC’s and ST’s candidates,
the election deposit of Rs. 5000 for lok sabha and Rs.2,500/- Assembly.

The deposit will be returned to a candidate of the secures more than 1/6 of the total
votes polled in his constituency.

10.After the nominations, the returning officer scrutinizes the nomination papers, if he
finds any serious defect in them; he may reject the nomination papers.
1. After examination two days are allowed to the candidates for the withdrawal of
their nomination papers.
2. Finally the returning officer finalizes the list of candidates.
3. A period of 20 days (from the date of withdrawal of nomination) is allowed for
campaigning.
 4. The candidates should stop their campaigning before 48 years of the poll.
5. Expenditure limits for Lok Sabha elections to a maximum of Rs 70 Lakh to 95
lakh rupees in bigger states and Rs 54 Lakh to 75 lakhs in smaller states.

The bigger states include Maharashtra, Madhya Pradesh, Uttar Pradesh, West Bengal
and Karnataka, and the smaller states include Goa, Sikkim, Arunachal Pradesh and
UTs. The ceiling on poll expenditure in UT of Jammu and Kashmir has been raised to
95 lakhs.

For Assembly constituencies, expenditure limits have been enhanced from 28 lakh
rupees 40 lakh rupees in bigger states and from 20 lakhs to 28 lakhs in smaller states.

6. The candidates must submit accounts of expenditure during campaigning

within 30 days from the date of polling
7. Election commission has power to disqualify the candidates for a period of 3yrs
for being a Member of Parliament or state legislature,if the candidates made
more expenditure than the stipulated amount.
8. Election commission counts the votes and declares the results

Election Disputes: Article 329(b)

Disputes regarding qualification of candidates, rigging, booth-capturing, proxy-voting,

bribing, voting by force etc. the ordinary court will not have jurisdiction relating to an
election petition and the power to decide is vested with the High Court. If the High
Court judgment is not satisfactory to either parties, they may go on an appeal to the
Supreme Court.
 Major Constitutional Amendments (Art.368)

“ Change is the Law of Nature”

The constitution which was enacted in the year 1950, cannot remain the
same even after successful completion of more 60 years.

The constitution makers had all these factors in their mind while drawing
up the constitution, so they incorporated a chapter on constitutional
amendments. The constitution of India contains procedure for
Amendment. However the constitution contains some basic features such
as socialism, equality, justice, secularism, judicial etc which cannot be
amended. There it can be said that the constitution can be amended, care
should be taken to see that the basic features/basic structure cannot be
destroyed. Utmost care should be taken while introducing amendments to
this basic law of the land.

The Constitution of India is not static document but a dynamic law based on
the will of the people of India. As the society grows changes becomes
necessary based on that growth. Hence the constitution should suit the needs of
the changing circumstances and people. For the changing need of socio-
economic circumstances, we need to change in the constitution.

The word amendment is originated from a Latin term emendare, which means
removal of mistake

1. Constitutional amendment is a change that are to be effected to correct the

mistakes
Or
2. Amendment to constitution, means effective change to the existing system
OR
3. Amendment means change, modification, revision, addition and deletion or
any provision of the constitution.
Note:
1. According to Herman Finer “to amend is to reconstitute and reconstitute”
2. According to N A Palkiwala “ a) To improve or better; to remove mistake and
error; b) to make change which may improve the instrument but which does not
alter or destroy the basic features of the instrument or c) to make any change
what so ever.
3. According to Pandit J Nehru “ While we want this constitution to be as solid
and permanent as we can make it, there is no permanence in a constitution
There should be a certain flexibility. If you make any constitution rigid and
permanent you stop the nation’s growth, the growth of a living, vita, organic
people.
Procedure to amend:
Article 368 of the constitution contains three methods to amend the constitution:

1. By Simple majority:
These provisions can be amended by passing ordinary legislation in
parliament by simple majority i.e 1/4th majority(25%). Simple majority
of members present and voting e.g
 The power of parliament to admit a new state in to the Union of India.
 Parliament to make provisions for the acquisition and termination of
Citizenship.
 To determine the salaries and allowances of the president, governor, prime
minister, council of ministers etc.
 Privileges, powers and immunities of the Members of the parliament.
 Creation of legislative councils in a state

2. By 2/3rd majority or special majority:

The bill has to be passed by each House by a majority of its total
membership and majority of not less than 2/3 of its members present and
voting.
Such Bill is presented to president for his assent, the date on which such
assent is received the Constitution stands amended e.g
 The power of parliament to amend provisions contained in part III i.e
Fundamental Rights
 Part IV & Part IV A i.e DPSP & Fundamental Duties etc

3. By 2/3 rd majority with ratification by half of the state legislature

There are certain constitutional provisions which are related to the interest of
both Centre and State. Special majority or 2/3rd majority by the parliament
&1/2 of the states should accept the amendment by simple majority. E.g

 Distribution of powers b/w centre and states i.e. dealing with union, state &
concurrent list.
 Election to the office of the President
 Amendment of Article 368 itself
 Union and State judiciary

Major Amendment:

42nd Amendment Act 1976

This amendment is well known as the mini-constitution of India. This
amendment is known as the lengthiest amendment of the constitution. This Act
was enacted during the period of Mrs. Indira Gandhi
 Three words were added to preamble i.e Socialist, secular & Republic.
 Directive principles of state policy have got supremacy over fundamental
rights
 Adding new part IV A i.e fundamental duties
 Life of lok sabha and state legislative assembly was increased to 6 yrs
 President shal be bound by the advice of the council of ministers.
 The entries such as education, forest, protection of wild animals and birds
and weight and measures were taken out from the state list and placed in the
concurrent list.
 Before this amendment if the emergency is declared under Art. 356,
approval of the parliament is needed at the end of every six months. Ater
this amendment such time is extended to one year

44th amendment act 1978:

Forty-second amendments was very controversial, hence the janta Government

which was in power repealed some of the drastic provisions affected by forty
second amendment, by passing forty-third and forty –fourthy amendment act.
i.e this amendment was made in order to rectify the error committed in 42nd
amendment.
 Life of lok sabha & state legislature assembly was restored to 5 yrs
 Art 31 i.e Right to property was taken out from the Fundamental Rights and
inserted under Article 300A and made it an ordinary legal right
 One of the ground for the declaration or proclamation of National
Emergency was “ Internal disturbance” was substituted by the word
“Armed rebellion”
 The proclamation of National Emergency would remain in force for six
months ( instead of one year) from the date of its approval by the House of
parliament
 During emergency the president can suspend the enforcement of any of the
fundamental rights except Art. 20 & 21

73rd amendment Act 1993

To establish democracy at the gross root level and to recognize the

importance of local self Government, a new part IX dealing with the provisions
o Panchayats has been inserted in the Constitution to Constitute.
 Gram Sabha in a village or group of villages
 Panchayats in rural areas

74th amendment Act 1993

A new part IXA relating to the Municipalities has been incorporated to provide
for among other things, constitution of three types of Municipalities, such as
  Nagar Panchayats for areas in transition from a rural area to urban area
 Municipal Councils for smaller urban areas and
 Municipal Corporations for larger Urban areas

76th amendment Act 1994

This amendment raised the reservation quota of Government jobs and seats for
admission in the education institution in favor of socially and educationally
backward classes to 69% in Tamilnadu, Further, the Amendment act has been
included in the 9th Schedule of the Constitution to exempt it from the purview
of judicial scrutiny.

Reservation in govt jobs/education institutions admission in inda:

In central-government funded higher education institutions, 22.5% of available

seats are reserved for Scheduled Caste (SC) and Scheduled Tribe (ST) students
(7.5% for STs, 15% for SCs,20% for ESC,12% for SCA,16% for SCB,22% for
SCC,18% for SCD).
27% OBC, 10% EWS

86TH amendment Act 2002

 Article 21A was inserted. The Right to Education was made a Fundamental
right and the state was directed to provide free and Compulsory education
to all children of age of 6 to 14 years.
 Articles 45 was amended to provide early childhood and education to
children below 6 years of age
 A new fundamental Duty was added where parents or guardians were
directed to proved educational opportunities to children between 6 and 14
year

91th amendment Act

 Article 75 was amended to restrict the total number of ministers including

the prime-minister, to not more than 15% of the total number of members of
House of people
 Article 164 was amended to the same effect for each state.
 New Article 361 B was inserted which prohibited a person disqualified to
become a member of parliament, to become a minister.
 Emergency Provisions
Emergency refers to a difficult situation arising suddenly
Emergency means a situation of extraordinary peril.

The term emergency as sudden serious event or solution requires immediate action by
Oxford dictionary
When
If the country is threatened by emergency attack, armed rebellion, civil unrest etc..
The democracy system of government do not work, because peoples have many voice
(Different opinion)

Why
The founding fathers of the Indian constitution felt whenever the emergency situation
arise, and the normal provisions of the constitution might not be sufficient to meet
such situations. There should be emergency provisions or special provisions to meet
such a situations and to protect the independence, integrity and security of the nation,
and to safeguard the constitution and the democracy system.

(Indian constitution has armed the president of India with deadly weapon to deal with
exigencies and contingencies and save the country and the constitution. Used with
rationality and good sense, they are instruments to tide over emergencies. Used with
political caprice and pervert sense, they are deadly weapons that will exterminate our
liberty, freedom and democracy).

Kinds of emergency provisions

The constitution of India, provide three types of emergency and prescribed the
relevant emergency provisions to meet those three types of emergency.
1. National emergency or war emergency.(Article 352)
2. State emergency (Article 356)
3. Financial emergency (Article 360)

National emergency ( Article 352)

Under the article 352, emergency may arise due to war external aggression or armed
rebellion ( internal disturbance replaced 44th amendment)

Procedure
1. The president can declare national emergency only after receiving a written
recommendation from the cabinet
2. The emergency can be for the whole India or a part of it.
3. The proclamation of emergency is not subjected to judicial review.
4. It can be question in the court for malafide intentions.
5. The proclamation ceases to operate at the expiry of One Month unless
approved by both houses of parliament (2/3rd majority)
 6. The Lok Sabha had been dissolved. The Rajya Sabha give approval, The Lok
sabha shall approved it as soon as it reassembles.
7. The approved proclamation remains for six months. If it want to continues, the
parliament can be approve its continuations for another six month at a time.

Effects of national emergency

1. The India federation works as a unitary one or body ( All the state government
under the control of central government)
2. Proclamations of emergency gives vast powers to the central government on
executive, legislative financial etc and direct the state governments in the
exercise of executive powers.
3. Union government has ultimate power of making law
4. Revenue distribution between union and states may be modified by the
president
5. The Enjoyment of some fundamental rights may be suspended ( during
emergency, fundamental rights related to life and liberty cannot be suspended
( Article 20 & 21)
6. The term(life) of Lok Sabha may extended to one year only( Not more than one
year)

Duration
1. The proclamation ceases to operate at the expiry of One Month unless
approved by both houses of parliament(2/3rd majority)
2. The Lok Sabha had been dissolved. The Rajya Sabha give approval. The Lok
sabha shall approve it as soon as it reassembles.
3. The approved proclamation remains for six months. If it want to continues the
parliament can approve its continuations for another six month at a time
( Every time six month only)

Termination of Emergency
1. The president may terminate the emergency at any time without the approval of
the parliament.
2. The parliament may resolve to terminate the emergency in which case the
president has to approve to revote the proclamation.
Previous Emergencies declared in India
National Emergency has been issued three times.
1. 1962 due to Chinese aggression
2. 1971 war with Pakistan (Bangladesh Freedom)
3. 1975 on the basis of Internal Disturbance ( In 1975 Indira Gandhi
government impose national emergency on the flimsy ground
Gandhi government impose national emergency on the flimsy ground. In
1975 Indira Gandhi, without consulting her cabinet, alone sent a
communication to the president Fakruddin Ali Ahmed, and proclaim of
emergency was made secretly)
State Emergency ( Article 356)
State emergency or emergency arising from failure of constructional
machinery ( Internal disturbance, external aggression, Hung assembly and cannot
accordance with the constitution etc( in any particular state necessitating presidents
rule.
Why :
1. The president rule is impose on the state emergency, on the basis of the
governor report
2. The president is satisfied that the government of the state cannot be carried
accordance with the constitution or failure of constitution machinery

Procedure
1. Very proclamation must ceases to operation at the expiry of two months
approved by resolutions of two houses.
2. The approved proclamation remains for six months. If it want to continues,
the parliament can approve its continuations for another six month at a
time( Evert time six month only). And for not more than a total of three
years.

Termination of Emergency

1. The president may terminate the emergency at any time without the
approval of the parliament
2. The parliament may resolve to terminate the emergency in which case the
president has to approve to revoke the proclamation.
Note: Article 356 has been used more than 100 times of flimsy grounds, and it
is misused frequently and good use rarely.

Effects:
1. The president may assume to himself or extend to the governor all the
powers and functions of the state.
2. The state legislative assembly is dissolved and all its powers are exercised
by the parliament

Note: The president cannot take away the jurisdiction of the high court
During state emergency. The constitution power of high court is
unaffected
.
Financial Emergency (Article 360)
President to make a proclamation of financial emergency if he is convinced that
the country faces.
a) A threat to its financial stability
b) A threat to credit of India or any part of India
Duration
3.The proclamation ceases to operate at the expiry of Two Months unless approved
by both houses of parliament(2/3rd majority)
4. The Lok Sabha had been dissolved. The Rajya Sabha give approval. The Lok
sabha shall approve it as soon as it reassembles.
5. The approved proclamation remains for six months. If it want to continues the
parliament can approve its continuations for another six month at a time
( Every time six month only)

Procedure, and termination of financial emergency are same national

emergency

Effects of Financial emergency

1. Central government can give directions to any state to observe
restrictions in financial spending as may be necessary.
2. The president may issue direction for reducing salaries and allowances
of any class of central and state government employees, including
judges of supreme court and high courts.
3. Money bills passed by the state legislature may be reserved for
presidents consideration.
4. President may modify revenue allocations between the center and state.

Previous Emergencies declared in India

It may be noted that, so far there has been no occasion for the proclamation of
financial emergency in India