M.A.

(POLITICS)
SEMESTER - II (CBCS)

INDIAN CONSTITUTION

SUBJECT CODE : 93429

 © UNIVERSITY OF MUMBAI
Prof. Suhas Pednekar
Vice Chancellor
University of Mumbai, Mumbai.
Prof. Ravindra D. Kulkarni Prof. Prakash Mahanwar
Pro Vice-Chancellor, Director
University of Mumbai. IDOL, University of Mumbai.

Programe Co-ordinator and Editor : Anil R. Bankar

Head, Faculty Head, Arts and Humanities, IDOL,
University of Mumbai
Course Co-ordinator : Mr. Bhushan Thakare
Assistant Professor, IDOL, University of Mumbai.

Editor: : Dr. Ravi Rameshchandra Shukla

Assistant Professor, R.D. &
S.H. National & SWA Science College

Course Writer : Dr. Devidas Muley

Acharya & Marathe College.
Chembur, Mumbai

Dr. Ravi Rameshchandra Shukla

R.D. & S.H. National & SWA Science College

November 2021, Print I ISBN: 978-93-91735-30-2

Published by : Director
Institute of Distance and Open Learning ,
University of Mumbai,
Vidyanagari, Mumbai - 400 098.

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 CONTENTS
Unit No. Title Page No

Module I
Making of Indian Constitution 1

Module II
Federation In Indian Constitution 19

Module III
Parliamentary Institutions 37

Module IV
State And Local Governments 68

*****
 CORE PAPER VIII
INDIAN CONSTITUTION
(6 Credits, 60 hours)

1. Constitution as Instrument of Socio-Economic Change (15 hours)

a) Making of the Indian Constitution, salient features, Preamble
b) Fundamental Rights, Directive Principles of State Policy, Fundamental Duties.
c) Constitutional amendments.

2. Federalism in Indian Constitution (15 hours)

a) Federal structure
b) Re-organisation of the states
c) Emerging trends in centre-state relations.

3. Parliamentary Institutions (15 hours)

a) Union Executives: President, Prime Minister and the Council of Ministers
b) Role and significance of the Parliament.
c) Judicial independence and judicial activism, debate between Judiciary and Parliament.

4. State and Local Governments (15 hours)

a) Governor, Chief Minister and the Council of Ministers
b) Panchayati0 raj and the Seventy-third constitutional amendment
c) Municipal government and the Seventy-fourth constitutional amendment.

Reading List: Indian Constitution

1. Basu, D.D., Introduction to the Constitution of India, Prentice Hall, New Delhi, 2008.
2. Bhargava, Rajeev (Ed.), Politics and Ethics of the Indian Constitution, Oxford University
press, New Delhi, 2008.
3. Chakrabarty, Bidyut, and Pandey, Rajendra Kumar, Indian Government and Politics, Sage,
New Delhi, 2008.
4. Granville, Austin, The Indian Constitution: Cornerstone of a Nation, Second Edition, Oxford
University Press, Delhi, 1999.
5. Kashyap, Subash (Ed.), Constitutional Reforms: Problems, Prospects and Perspectives,
Radha, New Delhi, 2004.
6. Mohanty, Biswaranjan, Constitution, Government and Politics in India, New Century, New
Delhi, 2009.
7. Noorani, A.G., Constitutional Questions in India: The President, Parliament and the States,
Oxford University Press, Delhi, 2000.
8. Pylee, M.V., An Introduction to the Constitution of India, Vikas, New Delhi, 2008.
9. Saez, Lawrence, Federalism Without a Centre: The Impact of Political and Economic
Reforms on India’s Federal System, Sage, New Delhi, 2002.
10. Sharma, Brij Kishore, An Introduction to the Constitution of India, Vikas, New Delhi, 2008.
11. Singh, M.P., and Roy, Himanshu (Eds.), Indian Political System, Manak, New Delhi, 2005.
*****
 MODULE1
MAKING OF INDIAN CONSTITUTION
Unit Structure
1.0 Objectives
1.1 Introduction
1.2 Making of Indian Constitution
1.3 Salient Feature of the constitution
1.4 The philosophy of the constitution
1.5 Fundamental Rights
1.6 Fundamental Duties
1.7 Unit End Questions

1.0 OBJECTIVE

 This Unit is design to make students to introduce basic aspects of

Constitution of India.
 To understand Basic and salient features of Constitution.

1.1 INTRODUCTION

The constitution of a country is generally described as its fundamental law

of the state. It represents the vision and values of the nation. It is a living
organization of functioning Institutions.

The Indian Constitution is not a product of a political revolution but of the

research and deliberations of body eminent representatives of the people.
For our present purpose we need not to go beyond the years 1858, when
the British Crown assumed sovereignty over India from East Indian
Company. Even we need not to mention the details of constitutional
history which has started from the government of India Act 1858. The
1858 that was the starting point of domination of the principle of absolute
Imperial control. The act of 1861 provided Governor Generals executive
council. The Indian council Act 1892 introduced Provincial Legislative
Councils. The First attempt for introducing a representative and popular
element was made by the Morley Minto reforms i.e. Indian Council Act of
1909.

This act recognized the principal of indirect election and introduces

principle of communal representation by giving separate representation to
Muslims. The important landmark in the constitutional development of
India is The Act of 1919 which was based on Montagu Chelmsford
reforms report. The erst while Legislative council was replaced by
bicameral legislature. The act also introduced Diarchy system in eight
major Provinces.
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However the Acct failed to fulfill the aspirations of the people of India.
This led to an agitation by the congress. As a result of this a commission
was appointed under the chairmanship of John Simon to review the
reforms.

Three round table conferences were held to consider and examine the
demands of Indian leaders. A joint committee was appointed for the
purpose. The Government of India Act 1935 was introduced on the basis
of this report. This act was A Remarkable feature of Indian constitutional
history. The act prescribed a Federal structure for India. Diarchy at the
Centre level. The central legislature was made by bicameral. The division
of Legislative powers between the centre and the provinces are some of
the significant features of the Act of 1935. However the act of 1935
incorporated various provisions which were later became the part of
Indian Constitution. The Indian Independence Act of 1947 set up two
independent dominions as India and Pakistan and the constituent assembly
of each Dominion gave complete freedom to frame and adopt any
constitution for their respective Nations

1.2 MAKING OF INDIAN CONSTITUTION

The task of framing the constitution of sovereign democratic nation is

performed by a representative body of its people. The concept of
constituent assembly has been linked with the growth of National
Movement in India. The first definite reference to a constituent assembly
was made by Mahatma Gandhi in 1922.

A national convention was called on 24th April 1923 under the president-
ship of Sir Tej Bahadur Sapru. This convention drafted the
Commonwealth of India bill‟. The draft was submitted to all parties‟
conference held at Delhi in January in 1925 under the president sheep of
Mahatma Gandhi.

The bill was introduced in house of commons but was defeated. But it was
a major effort by the Indians to outline a constitutional system for India.

Later on the adoption of famous Motilal Nehru resolution in 1924 and

1925 on the national demand was a historical event in the constitutional
history of India.

The failure of the Simon Commission and the Round table conference,
which led to the enactment of the Government of India Act 1935 to satisfy
Indian aspirations, accentuated the demand for a constituent assembly of
the people of India. This demand was reiterated by the All-India national
convention of Congress legislators in March 1937. The demand for
constituent assembly was for the first time authoritatively at theory is
considered by the British government or indirectly through August after
1940.

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The situation of world war II was forced the British Govt. to consider the
demand of constituent Assembly Sir Stafford Cripps, a cabinet member of
British Govt. visited India and given a draft declaration on this proposal .
This is popularly known as „Cripps Mission Plan‟. But due to separatist
movement of Muslim league and some other political movements the
Cripps Mission plan was rejected.

After the rejection of Cripps proposal (and followed by the Quit India
movement) various attempts were made to recognize the two parties
(Congress and Muslim League) but remained unsuccessful. British Govt.
send a three cabinet member delegation and put forward its own proposal
for constituents Assembly to be elected to draft the constitution and
suggested a basic framework for Indian Constitution.

Elections to the constituent Assembly was held for 296 seats and
completed by July-August 1946. The Congress won 208 seats and
Muslims League 73. And rest of the seats won by independents and other
minor parties. This constituent Assembly (which was elected for
undivided India) held its first sitting on 9th Dec 1946. A draft Resolution
of objectives which was moved by Nehru on 13th Dec 1946 was finally
adopted by the CA on 22nd Jan 1947.

With the partition and independence of country on 14-15 Aug 1947, the
constituent Assembly of India become free from the fetters of the cabinet
mission plan; and became a fully sovereign body. As a result the CA
reassembled on 31st Oct 1947. The proposed constitution had been lined
by various committees of Assembly with other native and additional
proposals in the form of a „Draft Constitution of India which was
submitted to the president of Assembly. On 21st Feb 1948, The clause by
clause consideration of the Draft constitution was completed on 16th Nov
1949 and on the next day CA took up the third reading of the constitution.
Dr. B.R. Ambedkar moved a motion „that the constitution as settled by the
Assembly be passed ‟. The motion was adopted on 26 th Nov 1949 and it
was adopted and passed on the same day saying that the people of India
enact and gave to themselves the constitution of the Sovereign democratic
Republic of India. The constitution was finally signed by members of the
CA on 24th Jan 1950 along with the signature of Dr. Rajendra prasad who
was president of constituent Assembly.

Dr. B. R. Ambedkar, the chairman of Drafting Committee said that the

journey is not an end. The good or bad constitution does not depend on the
nature of the constitution it is the people and political parties to decide and
depend upon hoe they will setup as their politics.‟‟

The constitution kept growing for better or worse and acquire newer and
newer. Meanings by the manner in which and men by whom it was
worked from time to time. The story continues

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Review Questions:
1) How the constituents Assembly were set up?
2) Take a brief review of the working of constituent Assembly
3) Discuss the role of Dr. B.R. Ambedkar in drafting the constitution.

1.3 SALIENT FEATURE OF THE CONSTITUTION

The constitution of India is remarkable for many outstanding features

which distinguish it from other constitutions in the world, though it is
prepared after ransacking of all the known constitutions of the world and
most of the provisions are substantially borrowed from others. The only
new things is removed faults and to accommodate it to the needs of the
country. However many of the original features have been modified by
making various amendments. From time-to-time, Some of the important
features of the constitution can be noted down as per the following

1) Size of the constitution:

Indian constitution is the longest constitution ever given to any nation. It is
a comprehensive document and includes many matters which could
legitimately be the subject matters of ordinary legislation. The original
constitutional contained as many as 395 Articles and 8 schedules. After
the various amendments and repealing of several provisions, it controls
448 Articles and 12 schedules with 104 amendments till 25th Jan 2020.

2) Written constitution
Constitution may be written or unwritten like USA and UK respectively.
Indian constitution is a written document. Prepared by the constituent
Assembly. Our constitutions is more full of words than other constitutions
because it has embodied the modified results of judicial decisions made
elsewhere interpreting comparable provisions, on order to minimize
uncertainty and litigation.

3) Rigid and Flexible:

Federal constitutions are usually classified as rapid constitution because of
their difficult amending process. Indian constitution may be said to be a
combinations of rigid and flexible e.g. few of the provisions of the
constitution can be modified by the parliament by simple majority; some
provisions require ratification by the state legislature. In some cases the
constitution has given power to parliament to supplement the provisions
by legislation. The constitution thus ensures adaptability by prescribing
variety of modes.

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4) Federal or unitary:
The classic example of Federal constitution is USA and unitary
constitution is of UK‟s constitutions. The federal constitutions is usually
written and rigid and divides power between Federal govt. and Federating
units, where as in unitary constitution all powers are vested in the central
govt. The Indian constitution is described as Quasi federal constitution,
Federal in structure but unitary in sprit. Reasons for this unique, unitary –
federal mix are to be found in the history of India. The text of the
constitution does not anywhere use the term „federal or federation. The
Supreme Court has spoken sometimes as quasi federal and sometimes
unitary.

5) Parliamentary System:
It has been stated that the form of government introduced by our
constitution both at the union and the states is the parliamentary govt. of
the British type. India has adopted a Republic therefore an elected
president is the Head of the union and all govt. actions are taken in the
name of president. The president has no act in accordance with the aid and
advice of the council of ministers. The principle of ministerial
responsibility to the legislature which is a part of British System,
embodied in the provisions of our constitution.

6) Parliamentary sovereignty – Vs Judicial Supremacy:

The harmonization between parliamentary sovereignty and judicial
supremacy is a unique achievement of over constitution makers. An
absolute balance of power between various organizations of the govt. has
been maintained. Pandit Nehru had appropriately said that, “No judiciary
can stand over the sovereign will of the parliament, it can pull up that
sovereign will if it goes wrong. “Our constitution thus places
parliamentary supremacy as much as that is possible within the bouns of
the written constitution.

7) Independent Judiciary:
The constitution establishes an independent judiciary with powers of
judicial review. The high courts and Supreme Court from a single
integrated judicial structure with jurisdiction over all laws. Judiciary is a
custodian of individual‟s rights and freedom and the constitution.
Therefore the review of legislation to determine its vires visa a vis the
constitution. The Supreme Court also functions as the arbiter of any
disputes in regard to jurisdiction and distribution of powers between the
statues and union.

8) Adult Franchise:
The adoption of universal suffrage (Act 326) without any qualification is a
bold experiment in India with an overwhelming illiteracy. The concept of
popular sovereignty underlined by the preamble is realized by this
provision. The only effective medium of peoples sovereignty in modern
democracy is adult franchise with an independent electoral machinery.
This bold experiment has been crooned with success in the lst 16 general
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elections since 1952 and several state legislature elections. The
constitution has abolished the communal representation (which was
introduced during British period)

9) Single Citizenship:
The constituent Assembly was fully aware about the spirit and objectives
of National freedom movement. In keeping with this aim to credit, India as
united and integrated nation, the concept of single citizenship was
essential despite of the federal character of our constitution. There is only
Indian citizenship and no states have right to issue separate identify to the
people. All citizens have equal rights without decimation.

10) Fundamental Rights:

It is a remarkable features of or constitution. Fundamental rights are
incorporated in part III (Art 12 to 35) of the constitution. They are
resistive against the state. Any executive action depriving on individual
citizens can be challenged in the court of law. It will be held un-
constitutional and invalid unless it is covered by the restrictions spelled
out by law. FRs is not absolute. A balance between the rights of citizens
and interests of society has been maintained. The remedies for enforcing
these rights have been provided by Art 32. Any law or executive order
which offends against fundamental rights is liable to be declared void by
the Supreme Court or high courts.

11) Directive Principle of state policy:

This provision has been inspired by the Irish precedent and a unique
feature of our constitution. The intention of incorporating these provisions
in the constitution is to give directives to the state for formulating its
socio-economic policies and welfare schemes. Most of these directives
aim to establish of socio-eco democracy which is pledged for in the
preamble. These directives are not enforceable in the courts and do not
create any justiciable rights in favor of the individuals. However these
principles have assumed greater relevance and importance not only for the
legislatures but also in the eyes of the judiciary.

12) Fundamental Duties:

The 42nd Amendment to the constitution added a new part under the head
of fundamental duties. It lays down a code of 10 duties. The fundamental
rights without corresponding duties are meaningless. There is no provision
in the constitution for direct enforcement of any of these duties not for any
sanction to present their violation

13) Preamble:
It is a very unique feature of Indian constitution. No other world
constitution has preamble type provision. It reflects the philosophy and
values on which the Indian democracy is based. The preamble servers two
purposes. Firstly it indicates the source from which the constitution
derives its authority. Secondly it also states the objects which the
constitution seeks to establish and promote. Combining the ideals of
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political, social and economic democracy with that of equality and
fraternity the preamble seeks to establish what mahatma Gandhi described
as the India of my dreams Namely-

“ …. An India in which the poorest shall feel that it is their country in

whose making they have an effective votes….. and India in which all
communities shall live in perfect harmony. There can be no room in such
an India for the curse of untouchability or the crax of intoxicating drinks
and drugs. Women will enjoy the same rights as men.”

Review Questions:
1. Discuss the unique and cret standing features of the constitution of
India
2. Comment on The Parliamentary sovereignty and basic structure of the
constitution.
3. Discuss the following concepts
i) Universal adult franchise
ii) Single citizenship
iii) Federal and unitary constitution.

1.4 THE PHILOSOPHY OF THE CONSTITUTION

Every constitution has a Philosophy of its own. Indian constitutions has

embodies. The fundamental values, the aims and objectives which the
founding fathers enjoined the polity to strive to achieve in the preamble.
Historically speaking Pt Nehru moved an objectives Resolution which was
adopted in the constituent Assembly on 22nd Jan 1947 and which inspired
the shaping of the constitution. Through all its subsequent stages. Nehru
said that „Resolution was something more than a resolution‟. It is
declaration a firm resolve, a pledge and undertaking and for all of us, a
dedication.‟‟ The ideals embodied in the preamble. The text of the
preamble can be read as following.

ii) We the people of India, having solemnly resolved the constitute India
into Sovereign, Socialist secure democratic Republic and to secure all its
citizens.

Justice social, economic and political Liberty of thoughts, expressions,

belief, faith and worship equality of status and of opportunity and to
promote among them all.

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Fraternity assuming the dignity of the individual and the unity and
integrity of the nation.

In our constituent Assembly this twenty sixth day of Nov 1949 do hereby
adopt enact and give to ourselves this constitution.

The importance and utility of the Preamble has been pointed out to seven
decision of our Supreme Court. Though itself it is not enforceable in a
court of law. The preamble to a written constitution seeks to establish and
promote and also aids the legal interpretation of the constitution where the
language is found ambiguous. In Bharti Bhavan V/S state of Mysore case
the Supreme Court held the view that the scope of the Directive Principles
and Fundamental Rights could be better understood in the light of the
objective enshrined in preamble. In Keshavanand Bharti V/S Kerala state
the majority of the judges referred to the Constituent Assembly debates
and held that the preamble was part of the constitution. Any provisions of
the constitution could be amended under Article 368 only within the broad
contours of the preamble and of the constitution.

Let us discuss in brief meaning of words used in the text of preamble.

1. We the people:
The constitution of India unlike the preceding Govt. of India Acts is not a
gift of the British Parliament. It is ordained by the people off India through
their representatives assembled in a Sovereign Constituent Assembly
which was competent to determine the political future of the country. The
words „We the people of India‟ thus declare the ultimate sovereignty of
the people of India and that the constitution rests on their authority.

2. Sovereignty:
A sovereignty state as one, where there resides within itself a supreme and
absolute power acknowledging no superior. The constitution of India does
not contain any specific provision in regard to the vesting of sovereign
powers. The words „we the people‟ itself expresses the sovereign power
vested to the people of India. India ceased to be a dominion of British on
26th Jan 1950 and became Sovereign nation. The Sovereignty belonged to
the whole people of India. And not to these of separate states. The
membership of common wealth Association does not threat to our
sovereignty. However we have to keep in mind that the mutual limits to
the concept of sovereignty.

3. Democratic:
The picture of democratic Republic which he preamble envisages is
democratic not only from the political but also from the socio eco stand
point. It envisages democratic from the govt and democratic society
infused with justice liberty, equality and fraternity. As a form of govt. we
have chosen a representative form of democracy with adult franchise and
parliamentary form of govt. The constitution holds out equally to all
citizens in the matters of choice of their representatives, who are to run the
8
government. Our democratic republic stands for the good of all the people
embodied in the concept of welfare state. As Dr. Ambedkar explained in
his concluding speech in the constituent Assembly that political
democracy cannot last unless there lies at the base of it social democracy.

4. Re-public:
The concept of Republic is that of a state, in which the people are
supreme, there is no privileged class and all Public offices are open to
every citizen without any discrimination. There are no hereditary rulers
and the head of the state is elected by the people for a fixed term. We have
an elected president as the head of the union.

The words „socialist‟ secular and integrity are inserted in the constitution
by the 42nd Amendment Act 1976, in the text of preamble. Though the
preamble part is not enforceable in the court of law, it was amended with
an intention to provide more clarity to our social and economic objectives.
No one has objected to this amendment.

5. Socialist:
As mentioned above, this word was inserted to the preamble by the 42nd
Amendment Act 1976. Though the word „socialism‟ is vague. Our
Supreme Court has observed that its principle aim is to eliminate
inequality of income and status and standard of life. The constitution 45th
Amendment Bill attempted to define „socialist‟ to mean free from all
forms of exploitation. After addition of the word „Socialist‟ in the
preamble the courts in their interpretation of the constitution could
expectedly learn in favourship eliminating economic inequality and
abolition of forms of exploitation.

6. Secularism:
The Secular objective of the state has been specifically expressed by
inserting the word „Secular‟ in the preamble. There is no provision in the
constitution making any religion official. The liberty of belief, faith and
worship is promoted by the constitution (see Art 25, 29). The state does
not owe loyalty to any particular religion as such it is not iridaceous or
antireligious. The vision of the founding fathers was that of a Nation
transcending all diversities of religion, caste and creed. It seems …….

That the term secular be clearly defined by the constitution and firm
Legislation has to be passed and prevent the misuse of religion for
political interests.

7. Justice:
The preamble promises justice to all citizens. Justice means harmonization
of interests between individuals and groups and on the other hand interests
of the community of course the concept of Justice is very wide. Social
justice implies that all citizens are treated equally irrespective of their
status in society. Economic justice would require that the rich and poor are
treated alike and efforts to be made in bridging the gap between them.
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(See Art 39).Political justice means equal share to all citizens in the right
to participation in the political process without any distinction on race,
caste etc. (see Art 16).

8. Liberty:
Liberty was conceived as absence of interference in individual freedom by
the right to liberty of thought expression, belief etc. (Art 19). Democracy
cannot be established without liberty written is necessary for force and
civilized existence. However liberty should be coupled with social
restraint and subordinated to the liberty of the greatest number of common
happiness.

9. Equality:
Guarantee of certain rights is meaningless, unless all inequality is banished
from the social structure and even individual is assured of equality of
status and opportunity for the development of best in him. Equality has
legal, political, social and economic aspects. This is secured by the
constitution. (See Art 14,15,16,17,18,) The political quality is guaranteed
by providing universal adult franchise (A 326)

10. Fraternity:
The ideals of justice, liberty and equality are relevant and meaningful only
in as much as these promote a common feeling of brotherhood. The
fundamental rights and directives Principle plays a vital role by making
various socio-eco provisions to establish human dignity. Removing of
social and economic disparity is the only way of maintaining dignity of
individual.

12. Unity and the integrity of the Nation:

Unity amongst the inhabitants of this vast subcontinent, tron asunder by a
multitude of problems and fissiparous forces, was the first requisite for
maintaining the independence of the country as well as to make the
experiment of a democracy successful. The ideal of unity has been
buttressed by adding the words „and integrity‟ of the Nation.
(42ndAmendment Act 1976). But neither the integration of the people nor
a democratic political system could be ensured without infusing a spirit of
brotherhood amongst the heterogeneous population of this country.

13. Conclusion:
Thus an analysis of the various concepts and terms preamble shows that
the noble words of preamble represent the quintessence, the philosophy
and the soul of entire constitution of India. The preamble contained the
basic features of the constitution. Combining the ideals of political, social
and economic democracy with that of equality and fraternity the preamble
seeks to establish what Mahatma Gandhi describes as the India of my
dreams.

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Review questions:
1. What is the importance and place of „Preamble „of the constitution?
2. Which new concepts have been added in the „preamble‟ by the
amendment in the constitution?
3. What is the real meaning of „we the people and „Republic‟ incorporated
in the „Preamble?‟
4. Discuss the following concepts
1) Socialist
2) Secular
3) Fraternity

1.5 FUNDAMENTAL RIGHTS

Introduction:
In UK‟s unwritten constitution there is no code of fundamental Rights.
However this does not mean there is no recognition of these basic rights.
This individual liberty is secured by judicial decisions. In USA the
American Bill of rights is equally binding upon the legislature as upon the
executive. The result has been the established of judicial supremacy in
UK.

In India the Simon Commission and joint parliamentary Committee had

rejected the idea of enacting declaration of fundamental rights on ground
that „abstract declarations useless. there exist the will and the means to
make them effective‟. But Nationalist opinion, since the time of Nehru
Report was definitely in favor of Bill of Rights Regardless of the British
opinion the makers of our constitution adopted fundamental Rights to
safeguard liberty of Indian people and to strengthen our democratic
system. According to Justice Bhagvati,‟ our fundamental Rights represent
the basic values cherished by the times and are calculated to protect the
dignity of the individual and create conditions in which every human
being can develop his personality to the fullest extent.

General Features:
General features of fundamental Rights can be summarized (in short) as
per the following

a) Roots in freedom struggle:

Roots of these rights are found in our freedom struggle movement. Nehru
Report was the documentary evident for the demand of basic rights.

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b) Rights are justifiable:
The rights which are incorporated in the constitutions are justifiable in the
court of law. The judiciary is the protector of rights and liberty of the
people. Ways and means are provided by the Constitution (Art 32) for this
purpose.

c) Reflecting social Reality:

Our fundamental Rights are not only a code of Rights and liberty. We
consider that democracy is not only a political form but a way of life. This
has properly reflected in the part III of the Constitution.

d) Elaborated provisions:
While incorporating the chapter of fundamental Rights in the constitution
makers have taken care of elaborating each and every right in detail with
exceptions and limitations (some of the limitations have been added by the
parliament by laws of amendment).

e) Positive and Negative:

Freedom or Rights have two sides which tell us what to do and what not to
do, these are positive and negative aspects of rights. The restrictions or
limitations on the rights are visible sides of it. The rights and freedom has
to be enjoyed with social concern.

Fundamental Rights in the Constitution:

The constitution of India has embodied number of fundamental Rights in
part III of the Constitution. The constitution itself classifies the
fundamental Rights under seven groups as follows.
i) Right to equality (Art 14-18)
ii) Right to freedom (Art 19-22)
iii) Right against exploitation (Act 23, 24)
iv) Freedom of Religion (Art 25-28)
v) Cultural and educational rights (Art 29-30)
vi) Right to property (Art 31) Eliminated by the 44th Amendment Act so
that only six freedoms are remained.
vii) Rights to constitutional remedies (Art 32-35)

Let us take a survey of all these rights in particular (Article wise)

Part III of the constitution which contains the most elaborate chapters of
human rights. These are, as described by Justice Gajendra gadkar as the
“Very foundation and Corhorstone of democratic way of life ushested in
this country by the constitution.”

Under art 12 the definition of „state is given which includes the

government and parliament of India, Government and legislatures of the
state, all local authorities and other authorities under the control of
government of India.

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Art 13 declares all laws and executive orders inforce immediately before
the commencement of the constitution in consistent with the fundamental
rights to be ultra-virus and void to the extent of such inconsistency.

All the fundamental rights are subject to reasonable restrictions and

limitations imposed by law or by court decision from time to time. The
Supreme Court has authorized to decide the reasonableness of the
restrictions imposed by the parliament by law.

I Right to Equality. (Art 14-18):

Art 14 – Equality before Law Equal Protection of the laws
Art 15 – No discrimination against any citizens on grounds of religion
race, caste sex of place of birth?
Art 17 – Untouchability and its practices in any form is punishable
Offence
Art 16 – Equality of opportunity in matters of public employment?
Art 18 – Abolition of titles?

The principle of equality does not mean that every law must have
universal application for all persons who are not by nature attainment or
circumstance in the same position as the varying needs of different classes
of persons often require separate treatment. The principle does not take
away from the state the power of classifying persons for legitimate
purposes.

Some reasonable restrictions on Right to equality-

1) In offences relating to women, they may be placed in more favorable
position.
2) To differentiate between civil and military personnel in some cases.
3) Making special provisions for women and children.
4) To prescribe certain condition for employment
5) Making adequate reservations for socially and economically
disadvantaged groups.

II Right to freedom (Art 19-22):

Art -19 embodies seven freedoms as under.
a) Freedom of speech and expression.
b) Freedom to assemble
c) Freedom of forming associations
d) Freedom of movement
e) Freedom of residence/settlement
f) Right to property (deleted by 44th amendment act 1978)
g) Freedom of profession/occupation

Art 20 – Protection in respect of conviction for offences

13
Art 21 – Protection of life & personal liberty
Art 22 – Protection against assets and detention

Right to freedom guaranteed in this section is subject to reasonable

restrictions imposed by the state by law, relating to defamation, contempt
of court, decency or morality security of the state friendly relations with
foreign states incitement to an offence, public order and maintenance of
the sovereignty and integrity of India. The expression reasonable
restrictions seek to strike a balance between the freedom of an individual
and society. The reasonableness should be determined from both the
sustentative and procedural stand point. There is no specific provision in
our constitution guaranteeing the freedom of press because it is included in
the wider freedom of expression. Which is guaranteed by Art 19 (I) (a)
The right to live is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity. Likewise the
other rights of personal liberty are subject to reasonable restrictions by
law.

III Right against Exploitation:

Art 23 – Prohibition on traffic in human beings and forced labour.
Art 24 – No child below the age of 14 yrs. shall be employed to work in
any factory or any hazardous employment.

The whole idea is not to allow the state or anyone to compel a person to
work against his/her will or to misuse the human in any way. The only
exception is compulsory service for public purposes. These rights are
included in keeping with the human rights concepts and United Nations
norms.

IV Right to freedom of Religion (Art 25-28):

Art 25 – All persons are equally entitled to freedom, of conscience and
Right to freely profess, practice and propagate religion of
his/her choice.
Art 26 – Every religious groups have right to manage their religious
Affairs.
Art 27 – No person shall be compelled to pay any taxes/ expenses of
any particular religion.
Art 28 – Forbids totally any religious instruction being imparted in
educational institutions maintained by state funds.

India under the constitution is a „secular state‟ i.e. A state which observes
an attitude of neutrality and impartiality towards all religions. There is no
state religion in India. The state will neither establish a religion of its own
nor confer any special patronage upon any particular religion.

The ambit of the freedom of religion has been widened by the judicial
interpretation. It should be pointed out that the court has the right to
14
determine whether a particular rite is regarded as essential by the tenets of
a particular religion and to interfere if a particular practice offends against
public health or morality.

In this context the word secular is a dubious word capable of diverse

meanings. The state of confusion has been set at rest by the Supreme
Court which states that secularism does not mean that the state should be
hostile to religion but it should be hostile to all religions. The neutrality of
the state would be violated if religion is used for political purposes. It is in
this sense that secularism is to be regarded as basic feature of the
constitution.

V. Cultural and Educational Rights:

Art 29 – Guarantees to every citizens residing anywhere in India
having Distinct language script or culture the right to
conserve the same.
Art 30 – All minorities whether religious or linguist shall have the
right to establish and administer educational institutions of
their choice.

However it does not mean right to mal administration. The right is subject
to regulatory power of the state. Clause 2 of the Art 30 provides that in the
matter of giving aid, the state shall not discriminate against minority
managed institutions.

Vi- Right to Proerty (Art 31):

Art 31 – The original article includes the right to acquire property
(legally) to hold and to dispose it freely with a reasonable
restriction.

When the question arises of paying the compensation for the acquiring
private property for public purpose by state by law, underwent serious
changes as a result of amendments of the constitution, 4th, 17th 25thnd and
finally 44th amendments.

The 44th Amendment act 1978 repealed articles 19(1) (f) and article 31
from the category of fundamental rights completely with effect from 20th
June 1979. Instead in part XII the of the constitution a new chapter,
chapter IV and a new article 300 A was added to provide that No person
shall be deprived of his property save by authority of law Art 300 A gives
protection against executive action and not against legislative decision.

VII Right to constitutional Remedies:

Abstract declaration of fundamental Rights in the constitution are not
useful without the means to take them effective. The power of the courts
to enforce obedience to the fundamental rights depends not only on
impartially and independence of judiciary but also on the effectiveness of

15
the instruments available to it compete such obedience against the state or
any other person or authority.

The Indian constitution lays down some provisions for the enforcement of
fundamental rights guaranteed by the constitution. Art 32 is the corner
stone of the entire edifice set up by the constitution. It provides a
guaranteed remedy for the enforcement of those rights and this itself made
a fundamental right included in part III. These are provision in the
constitution for empowering courts other than the Supreme Court or the
high courts to issue the wrist by making a law of parliament. But no such
law has yet been passed. With the result that no courts other than Supreme
Court or high courts have got the power to issue these writs noted below.

1. Habeas Corpus:
Habeas corpus literally means to have a body. This writ is in the nature of
an order calling upon the person who has detained another to produce the
later before the court know on what ground he has been confined and to
set him free if there is no legal justification for the imprisonment.

2. Mandamus:
Literally means a command. It commands the person to whom it is
addressed to perform some public or quasi- public legal duty which he has
refused to perform and the performance of which cannot be enforced by
any other adequate legal remedy.

3. Prohibitions:
The writ of prohibition is a writ issued by the Supreme Court or a High
court to an inferior court forbidding the later to continue proceedings
therein in excess of its jurisdiction. It is available not only against
druidical authorities but also against administrative authorities. Hence
prohibition is not available against public officers who are not vested with
judicial functions.

4. Certiorari:
The prohibition is available at an earlier stage certiorari is available at a
later stage on similar grounds. The object of both is to secure that the
jurisdiction of an inferior court or tribunal is properly exercised and that it
does not usurp the jurisdictions which it does not possess. High court can
issues a writ of certiorari to quash the decision of the inferior tribunal and
the Supreme Court can also issue the writ in such cases, provided some
fundamental right has also been infringed by the order complained against.

5. Quo-Warranto:
It is a proceeding whereby the court enquiries into the legality of the the
claim which a party asserts to a public office and to oust him from its
enjoyment if the claim be not well founded. Quo-warranto is a very
powerful instrument for safeguarding against the usurpation of public
officers.

16
The fundamental rights guaranteed by the constitution will remain
suspended while a proclamation of emergency is made by the president
under Art -352.

Review Questions:
1. Justify the Indian demand for guaranteed fundamental Rights can
parliament amend them?
2. Critically examine the concept of equality before law.
3. Discuss the various writs guaranteed under Art 32
4. What is the position of Right to poverty today?
5. What is Reasonable Restrictions? Who decides it and to what extent?
6. Define and discuss the meaning of secular state?

1.6 FUNDAMENTAL DUTIES

Duty is an inalienable part of right. The two represent the two sides of the
same coin, what is duty for one is another‟s right and vice versa. If all men
have right to life a duty is also cast upon all men to respect human life and
not to injure another person. Gandhi it sought to emphasis the socio
economic responsibilities of all citizens. It was in keeping with his ideas
that the constitution 42nd Amendment Act 1976 added to the constitution a
new part IV A titled fundamental Duties after. The original part III and IV.

The new part IV a Consisted Article. 51 A incorporates the following then

duties. It shall be the duty of every citizen of India.
1) To abide by the constitution and respect the national flag and the
national anthem.
2) To cherish and follow the noble ideas which inspired our national
struggle for freedom.
3) To protect the sovereignty, unity and integrity of India.
4) To defend the country and render national service when called upon to
do so.
5) To promote the spirit of common brotherhood amongst all the people
of India.
6) To value and preserves the rich heritage of our composite culture.
7) To protect and improve the natural environment
8) To develop the scientific temper and spirit of inquiry.
9) To safeguard public property and to abjure violence.

17
10) To strive towards excellence in all spheres of individuals and
collective activity.

In this context it would be better to remove a misnomer involved in the

expression. Composite culture in clause (F) of article 51A. The Supreme
court pointed out that, Though the people of this country differed in a
number of ways they all were proud to regard themselves as participants in
common heritage and that heritage eternally is the heritage of Sanskrit.

There is no provision in the constitution for direct enforcement of any of

these duties nor for any sanction to prevent their violation. But it is
expected that in determining the constitutionality of any law, if a court
finds that it seeks to give effect to any of these duties it may consider such
law to be reasonable in relation to Art 14 or 19 thus save such law from
unconstitutionality. It would also serve as a warning to reckless citizens
against anti social activities. They only way to bring about adherence to
fundamental duties is through public opinion and education.

1.7 UNIT END QUESTIONS

1 What is the place of Fundamental Duties in Indian Constitution?

2. Discuss the relationship between fundamental rights and fundamental
duties.
3. How the fundamental Duties are enforced?

*****

18
 MODULE 2
FEDERATION IN INDIAN CONSTITUTION
Unit Structure
2.0 Objectives
2.1 Federal Structure
2.2 Re- organization of State
2.3 Emerging trends in Centre- State Relations

2.0 OBJECTIVES

 To understand the concept of federal structure in Indian Constitution.

 To understand the process of reorganization and formation of Indian
states.
 Emerging trends in Centre- state relations, areas of conflict and
cooperation.

Chapter Scheme:
a. Federal Structure
1. Introduction
2. Meaning and Definition
3. Characteristics of Indian Federalism
2.1 Political Dualism
2.2 Division of Power
2.3 Bicameralism
2.4 Strong Centre
2.5. Integrated and independent judiciary
2.6 No equality of States representation
4. Conclusion

b. Re- organization of State

2.1 Introduction
2.2 Formation of Indian State after independence
2.3 Demands for Linguistic States
2.4 Formation of New States
2.5 Conclusion

3. Emerging trends in Centre- State Relations

3.1 Introduction
3.2 Emerging Trends of Cooperation between Centre and State
3.3 Emerging Trends of Conflicts between Centre and State

19
3.4 Role of Commissions and Institutions
3.5 Conclusion

A. Federal Structure
1. Introduction
2. Meaning and Definition
3. Characteristics of Indian Federalism
a. Political Dualism
b. Division of Power
c. Bicameralism
d. Strong Centre
e. Integrated and independent judiciary
f. No equality of States representation
4. Conclusion

1. INTRODUCTION

The political structures of (Mostly democratic) Nations are described

either as ‘federal’ pf ‘unitary’ for the purpose of governance. The main
objectives of this arrangement is to define, distribute and coordinate the
sphere of power and functions of the center and the federating units. In the
federal system the federating units derive their power from center, but are
free in several matters. In the Unitary system they are completely
dependent upon Union government. India is a ‘quasi-federal’ state. It is a
federal nation, with unitary bias.

Whereas, in a federal system of government the power have been divided

between central and federating units or states. The power in a federal
government is divided by the constitution itself, and both in their
respective jurisdiction independently. Norway, China, Britain, France,
Japan, Italy, Belgium, Sweden, Spain etc. are some of the examples of the
unitary government. Whereas, Brazil, Russia, Canada, Argentina,
Switzerland, Australia, US are some of the examples of the federal form of
government. India has adopted a mixed model comprising the best features
from both types of systems. The very first Article 1 of the Indian
constitution terms, ‘India, that is Bharat shall be the union of the states.’
Thus the constitution describes India, as the ‘Union of States’. According
to Dr. B. R. Ambedkar, ‘the phrase ‘Union of States’ have been preferred
to ‘Federation of States’ to indicate two things:
(a) The Indian federation is not the results of an agreement among the
states like the American federation,
(b) The state have no right no right to secede from the federation. The
federation is Union because it is indestructible.

20
2. MEANING

In the state of West Bengal vs Union of India (1962), the Supreme Court
held that the ‘Indian constitution is not federal. But in 1994 a nine-judge
Bench of Supreme Court held that ‘federalism is a part of the basic
structure of the Constitution. Therefore, on many occasions, the court and
scholars have concluded that, the Indian federal system is not a copy of
USA. The 7th Schedule of legislative entries (Art. 246) clearly concludes
that, ‘Constitution if unitary’. Art. 245 o 254 of legislative powers of state
and center provides for guidelines. The power to admit, create Art. 2),
alter the boundaries (Art. 3) a new state lies with Indian parliament. This is
why the Constitution is often described as ‘quasi-federal’.

There are 98 subjects (originally 97) in the Union List, on which

Parliament has exclusive power to legislate. The State List has 59 subjects
(originally 66) on which states alone can legislate. The Concurrent List
has 52 subjects (originally 47) on which both the Centre and states can
legislate, In case of a conflict, the law made by Parliament prevails
(Article 254).

Federalism is a type of government in which the power is divided between

the national government and other governmental units. It contrasts with a
unitary government, in which a central authority hold the power and a
confederation, in which state for example are clearly dominant. That is
why the unitary and federal government are the most popular form of
political administration. In unitary form of governments, all the powers are
concentrated in national government. The regional or provincial units
derive their power from national government. It depends up to the
administrative and political suitability of a country to adopt federal or
unitary model of polity. That is why it is regarded as a ‘quasi - federal’
country. It is federal in form because of duel governments at at center and
state, duel legislature being Indian parliament and states legislature but
unitary in spirit for having single constitution, citizenship, judiciary, role
of governor etc.

3. DEFINITION

The Indian federal system is based on Canadian model and not on

American model.1 Some of the leading experts of Indian constitution have
defined the Indian federal system as under:

Dr. B. R. Ambedkar observed that, ‘the constitution if a Federal

constitution in as much as it establishes a duel polity. The Union is not a
league of states, united in a loose relationship, nor are the states the
agencies of the union deriving powers from it’(Ambedkar).

K. C. Where described the constitution of Indian, ‘Quasi Federal’. Further,

he remarked that, ‘Indian Union is a Unitary state with subsidiary federal
21
features rather than a federal state with subsidiary unitary features’
(Where, KC).

Granville Austin called the Indian federalism as a ‘co-operative

federalism’ (Austin).

Therefore, the Indian federalism stands as an distinguished model of

governance, with a fine balance between ‘Federal’ and ‘Unitary’ system.
The makers of Indian constitution shaped and modified the best existing
laws before adopting to suit Indian conditions.

4. CHARACTERISTICS OF INDIAN FEDERAL SYSTEM

The Indian federal system took shape to suit the diversity and socio-
cultural distinctions to accommodate the needs and aspiration of wide and
large nation. The unique features of Indian Federalism is as follows:

A. Political Dualism:
The Federal system is technically made of two level of polity and
administration. First level is national government, which has the
responsibility of major national area like Defense, Currency and Coinage,
Foreign Policy and international relations amongst many. The second level
of government is state government. It has the responsibility to implement
the national policies and work for the welfare of the people within its
jurisdiction. In India the Union government is run by the council of
ministers headed by the Prime Minister (Art. 74 (1)), who solicits ‘aid and
advise’ to the President of India (Art. 75 & Art. 78). Similar arrangements
are made at state level also. The state government is run by a council of
ministers headed by the Chief Minister. The governor is given the position
of head of the state as an overseer of the administration on behalf of the
President of India. Similarly, the legislative powers are also divided.

B. Division of Power:
The Seventh Schedule of the Constitution contains three lists that
distribute power between the Centre and states (Article 246).The Indian
Parliament has right to make the law on 98 (originally 97) items of union
list. The state government can make the law in the 59 (originally 66)
items. There is third list known as concurrent list with 52 (originally 47)
items. This detailed constitutional arrangements are helpful to provide a
detailed administration in a vast diversity like India. All the Legislative,
Administrative and Financial powers are divided.

C. Bicameralism:
The parliamentary democracy in India is inspired by the British
Parliamentary government also known as Westminster model. It has two
houses. House of Lords (Upper House) and House of Commons (Lower
House) of the parliament. Indian parliament consists of Upper House and
Lower House, also known as Lok Saba and Rajya Sabha. The members of
Lok Sabha are directly elected by the people for a term of 5 years.
22
Whereas, the members of Rajya Sabha are elected by the elected Members
of Legislative Assemblies from all the states and Union Territories for a
term of 6 years. India has 29 states and 7 union territories. The states are
unicameral, except for Maharashtra, Uttar Pradesh, Karnataka, Andhara
Pradesh, Telangana and Bihar have bicameral legislature. They have
Legislative Assembly and Legislative Councils. Thus, India follows
bicameral legislative system.

D. Strong Centre:
Indian federal system is a ‘federal state with unitary bias’. The
constitutional arrangements are made in such a way, where the balance of
power is tilted towards the union government. It can be understood in
terms of Legislative, Administrative and Financial relations between the
Union and State governments. As far as legislative powers are concerned,
the center and state have their respective lists of legislative powers. But in
case of any conflict between the law made by the union and state, the
union law prevails. In fact in concurrent list also the union has an upper
hand. The administrative bureaucracy i.e. IAS, IPS and other class one
services officers are recruited by the UPSC and sent to states to work as a
top decision makers. The state has power to allocate them duties and
transfer within the state. Their services are controlled by the Central
government only. In terms of financial arrangements, the union controls
maximum revenue sources. Through Legislative, Executive and Financial
controls the Union government dominates the power and will of the states,
i.e. Role of Governor, list of legislative powers, Role of All India Services
officers, Finance Commission, NITI ayog etc. Therefore, In Indian federal
system the balance is tilted towards the center.

E. Integrated and Independent Judiciary:

Article 124 to 147 of Indian Constitution provides for an independent
single integrated judiciary. It also provides for establishment of an
independent judiciary. The apex judiciary that is Supreme Court of India
heads all the judicial institutions. Right from District or Session court to
High Court to Supreme Court the judicial system functions as one single
hierarchy. The apex judiciary has got the power to review and interpret the
Constitution. It settles the disputes between the states and center or
between the states. The judiciary is completely independent. The terms
and conditions of services and benefits are exempted from vote of
parliament. Judges are secured from any kind of political or administrative
interference. They enjoy fixed tenure and perks as per the Constitutional
guideline.

F. No Equality of states representation:

In a pure federal state the center and have equal political representation.
In US the principle of equality of representation of states in the Upper
house is fully recognized. Thus the American senate has 100 members,
two from each state. However, Indian parliament and states have different
pattern of representation. It is based on the population of the state. Highly
populated states like UP, Bihar, Maharashtra have greater representation
23
and small states like Sikkim, Nagaland, Manipur have less seats in
assembly and parliament. UP sends 80 MPs in Lok Sabha and 31 seats in
Rajya Sabha, whereas Sikkim has only one each in both the houses. Thus
unequal representation is another unique feature of Indian federalism.

Check Your Progress:

1. Explain the concept of ‘Federal’ and ‘Unitary’ model of governments.
2. What are the main characteristics of Indian Federalism?

II. CENTRE - STATE RELATIONS IN INDIA

Chapter Scheme
1. Introduction
2. Legislative Relations
3. Administrative relations
4. Financial Relations
5. Conclusion

INTRODUCTION

The constitution of India is federal in nature with unitary bias. It has

carefully laid down the procedure of separation of Legislative,
Administrative and Financial power between centre and state. However,
there is no separation of Judicial power. Hence, India has a single
integrated judiciary. The centre and state are given full liberty in their
areas of functions. But in case of any excess or violation of the
constitution it is possible to restrict them. Thus, the constitution provides a
detailed roadmap for the conduct of the centre - state relation in India. The
centre - state relations can be studied as follows:
 Legislative Relations (Art. 245 to 255 of Part XI)
 Administrative Relations (Art. 256 to 263 of Part XI)
 Financial Relations (Art. 268 to 293 of Part XII)

The scheme for demarcation of powers through three list. The union list
details the subjects on which Parliament may make laws. The state list
gives details of subjects under state legislature and the concurrent list has
subjects in which both Parliament and state legislature have jurisdiction.
The constitution also provides primacy to Parliament on concurrent list
items. If there is a conflict, a central law will override a state law.2 still
there are laws enacted by the Union Parliament which leads to conflict
between the Centre and state. For example, the Right to free and
24
compulsory Education Act. was passed by Parliament in 2009. The
provision of financial burden on states are a matter of concern and dispute.
Another challenge before the centre arises is of maintaining the uniformity
of law while implementing it in different states with different conditions.
The Centre - state relationship, thus can be examined as under:

1. Legislative Relations (Art. 245 to 255 of Part XI):

Article 245 to 255 of Part XI of the Indian Constitution provides for the
main provisions of the centre- state legislative relations. Besides, these
articles, there are other provisions as well regulating this area. The Centre
- state legislative relations cover the territorial extent of this legislation. In
that, the states have been authorized to legislate within the territorial limit
of that particular region. Also the President of India and Governor of the
state have power to direct the government to not to apply any particular
law in the state.

It provides for distribution of the legislative subjects as:

(I) Union List : Parliament has exclusive powers to make laws with
respect to any of the matters enumerated in the list. The union list has 100
items (originally 97) like defence, banking, foreign affairs, atomic energy,
communications, census etc. The state do not have power to make laws in
the union list. However, if any such legislation required by more than two
states, it can be represented in Rajya Sabha for the purpose of making laws
therein.

(II) State List: The state list has got 61 subjects (originally 66 subjects).
‘in normal circumstances’ the state has exclusive power to make laws in
this list. Sometimes in case of emergency, the Union Parliament or the
President of India through an ordinance make a law in the state list also.

(III) Concurrent List: There are certain subject which are important for
both Centre and State governments. Such subjects have been kept under
the concurrent list. At present 52 subjects are kept in this list (originally 47
subjects).

Also there are provisions for Parliamentary legislation in the state list, in
cases of issue being a matter of national or international importance or the
subjects between two or more states.

Administrative Relations (Art. 256 to 263 of Part XI):

Art. 256 to 263 deals with the provisions of administrative relations
between the center and the states. It has specifically distributed the
administrative power as following:
I. The state has absolute liberty over its administration, except in case of
‘special circumstances’. The state have their own cadre of staff,
recruited for this purpose. Also the union government is duty bound to
manage the administrative affairs of central government, with the help
of All India Services officers.
25
II. As per Art. 365 of the constitution, the state are under obligation to
follow the central governments administrative guideline. Also, ‘if the
president is satisfied that the constitutional machinery in the state has
failed, through a report of governor or otherwise’ he may impose
President Rule under Art. 356 of the constitution.
III. Center may also issue directives and advisory to the states for
cooperating with the centre government and following the laws made
therein
IV. As per Art. 263 the President can establish an inter- state council to
investigate and discuss the subjects of common importance.

2. Financial Relations (Art. 268 to 293 of Part XII):

The financial powers of the Centre are greater than those of the states.
However, the extent of power to legislate laws are as following:
I. The union Parliament has only got the power to levy taxes on the
subjects, which is mentioned in the list.
II. The state government can impose taxes on the subjects it deals with
state subjects only.

Nevertheless, the clear cut division of sources of revenue between the

federal and the state governments makes each other financially
independent of each other. Therefore, the Constitution has made elaborate
provisions regarding distribution of the revenue between centre and the
states. They are as under:

1. Duties levied by the Union but Collected and appropriated by the

states:
Stamp duties and toilet preparations are levied by the Government of
India, collected and appropriated by the states, within their territorial
jurisdiction. Union territories are exempted from such provisions under
Art. 268.

2. Taxes Levied and Collected by the Union but Assigned to the states,
within which they are imposed. It includes Succession duty on non-
agricultural property, Estate duty on non- agricultural land, Terminal taxes
on goods and passengers carried by railways, air or sea.

3. Taxes Levied and collected by the union and distributed between

the union and the states: It aims at the equitable distribution of the
revenue. For example income tax - other than agricultural income, excise
duties as per Union list etc.

4. Surcharges: The parliament is however, authorized to levy surcharge

on the taxes mentioned above.

5. Grants in aid: Parliament may make grants in aid from the

consolidated fund of India to such states as are in need of assistance,

26
particularly for the promotion of welfare of tribal areas, including special
grants to Assam.

6. Loans: The Union government may make loan to any state or give
guarantee with respect to loans raised by any states.

7. According to Art. 301, freedom of trade, commerce and intercourse

throughout the territory of India is guaranteed, but the Parliament has the
power to impose reasonable restrictions in public interest.

Finance Commission: Although the constitution has made efforts to

allocate every possible source of revenue either to the union or the states.
However, they are very broad classifications. Therefore, the Constitution
provides that, “Finance Commission is to be constituted by the President
every 5 years. The Chairman mast be a person having ‘experience in
public affairs’. other four members must be appointed from amongst the
following:
I. A Judge of High Court or any person who is qualified to be a judge in
a High Court.
II. A person having knowledge of the finances and accounts of the
government.
III. A person having work experience in financial matters and
administration.
IV. A person having special knowledge of economics.

Conclusion:
The centre- state relations are at the core of the Indian federal system. The
centre and state governments are duty bound to cooperate with each other
in order to secure the welfare of the people and give them a good
government. The centre and states work together in the matters like
environment, education, infrastructure development and welfare of the
backward sections of the society. Thus it can be safely said that, Indian
constitution is essentially federal in formation but unitary in functioning. It
is one of the unique political system that exists and has strengthen over the
period of tie since Independence.

Question for exercise:

1. Write a detailed note on the concept and essential features of
federalism.
2. What are the important features of the center - state relations in India?
3. Examine the areas of conflicts and cooperation between the center and
states.

27
References:
 Laxmikanth, M (2016) : Indian Polity, 4th Edi. McGraw Hill
Education PVT. LTD. New Delhi, p. 13.2.
 PRS Legislative (2012): center - state relations, available on
www.prsindia.org, accessed on 3.9.2019, at 12:16pm.
 Concept of Federalism,www.cliffsnotes.com, accessed on 31/8/2019,
11.00am
 Centre - State relations www.legalservicesindia.com accessed on
2/9/2019, 5.00pm

a. Re- organization of State

2.1 Introduction
2.2 Formation of Indian State after independence
2.3 Demands for Linguistic States
2.4 Formation of New States
Conclusion

2.1 INTRODUCTION

Modern Indian state is a product of reconciliation and re – organization

post-Independence. The process of reorganization of Indian of India as a
nation was a unique and tough job. As far as India as a nation is
concerned, it was Chankya who laid down the foundations of
Bharatvashra (a geographical and demographic expression for the people
from Ancient Gandhar – todays Afghanistan to edges of Himalaya –
todays Nepal) in the form of Mauryan Empire. After that many kingdoms
ruled various parts of India. After that during medieval era many
aggressors came from Arab world who ruled India for more than 800
years. Then came the British who ruled from 1765 to 1947. The struggle
for Independence that began in 1857 strengthened the feeling of
nationalism and sovereign nationhood. It led to a great fight for
independence in violent as well as non- violent ways. Finally, British left
India in administrative and political turmoil. Then there was the problem
of the princely states, almost 500 of them, each ruled by a maharaja or a
nawab, each of whom had to be persuaded to join the new nation. The
problems of the refugees and of the princely states had to be addressed
immediately. In the longer term, the new nation had to adopt a political
system that would best serve the hopes and expectations of its population.

28
2.2. PROCESS OF CREATION OF STATES IN INDIA

To create a new state in India President of India recommends to the

parliament to initiate the process of creation of a state. In case of
bifurcation of any existing state, the legislature of such state sends a
proposal passed by its legislature to the President of India. Then As per
Art. 3 of the Indian Constitution a Bill is tabled in Parliament. There are
various reasons behind formation of a new state in India ranging from
Social-Economic, Political, and Administrative, Cultural- Linguistic etc.
like the states Jharkhand, Uttarakhand and Chhattisgarh were created in
2000 on socio-political basis. The states of Maharashtra, Gujarat, Andhra
Pradesh were created on linguistic grounds. States of Nagaland, Mizoram,
Manipur, Tripura were created for a mixture of reasons. Besides full
flagged states there are Autonomous regions like Gorakhaland Hill
Council, Bodo Hill Council etc. which enjoys a limited administrative ad
legislative autonomy from the state of its location to address the socio-
economic and administrative issues of the area.

2.3 FORMATION OF INDIAN STATE AFTER

INDEPENDENCE

After 1947, India was reorganized. British left the country as British Ruled
India and Princely states (more than 500). Sardar Valabhbhai Patel was
given the responsibility of the herculean task of integration. Initially the
state were merged and acquired and divided into Part – A British India,
Part – B princely rules states and Part – C the residual territory. In 1956,
the Seventh Amendment to the Constitution and the States Reorganization
Act was passed with an aim to reorganize the states on linguistic and
administrative line. However the demand of linguistic states for Marathi
speaking people and Telgu speaking people was intensified and took a
violent turn. In Maharashtra 105 people were martyred while demanding
for ‘sanyukta maharashtra’ (unified Maharashtra) in 1956. Much before
that in 1953 Gandhian leader Pottu Sreeramulu started fast unto death and
died after 56 days. It has built a lot of public pressure on government to
create the states on the basis of language. Thus on the basis of the
recommendations of State Reorganisation Commission in 1956, 14 states
and 6 UTs were created. The chronology of states’ bifurcation in India
after 1956:
1960 - Bombay state split into Maharashtra and Gujarat
1963 - Nagaland carved out of Assam
1966 - Haryana and Himachal Pradesh carved out of Punjab state
1972 - Meghalaya , Manipur and Tripura were formed
1975 - Sikkim became part of Indian union
1987 - Goa and Arunachal Pradesh became states (earlier these were
UTs)
2000 - Uttaranchal (out of UP), Jharkhand (out of Bihar) and
29
 Chhattisgarh (out of Madhya Pradesh) were formed
2014 - Telangana (out of Andhra Pradesh), became India’s 29th state.
The 28 Indian States and their capitals are as follows.
States Name Capital Founded Date
Andhra Pradesh Amaravati 1 Nov, 1956
Arunachal Pradesh Itanagar 20 Feb, 1987
Assam Dispur 26 Jan, 1950
Bihar Patna 26 Jan, 1950
Chhattisgarh Raipur 1 Nov, 2000
Goa Panaji 30 May, 1987
Gujarat Gandhinagar 1 May, 1960
Haryana Chandigarh 1 Nov, 1966
Himachal Pradesh Shimla 25 Jan, 1971
Jharkhand Ranchi 15 Nov, 2000
Karnataka Bengaluru 1 Nov, 1956
Kerala Thiruvananthapuram 1 Nov, 1956
Madhya Pradesh Bhopal 1 Nov, 1956
Maharashtra Mumbai 1 May, 1960
Manipur Imphal 21 Jan, 1972
Meghalaya Shillong 21 Jan, 1972
Mizoram Aizawl 20 Feb, 1987
Nagaland Kohima 1 Dec, 1963
Odisha Bhubaneswar 26 Jan, 1950
Punjab Chandigarh 1 Nov, 1956
Rajasthan Jaipur 1 Nov, 1956
Sikkim Gangtok 16 May, 1975
Tamil Nadu Chennai 26 Jan, 1950
Telangana Hyderabad 2 Jun, 2014
Tripura Agartala 21 Jan, 1972
Uttar Pradesh Lucknow 26 Jan, 1950
Uttarakhand Dehradun (Winter)Gairsain 9 Nov, 2000
(Summer)
West Bengal Kolkata 1 Nov, 1956
At Present India now has 28 States and 8 Union Territories. The
erstwhile state of Jammu and Kashmir has been bifurcated into two Union
Territories (UT) of J&K and Ladakh. The newly formed union territories
have been formed under a reorganization act passed by the Parliament on
5-6 August 2020. At present India has 8 Union Territories.
Union Territories Capital Founded on
Names
Andaman and Nicobar Port Blair 1 Nov, 1956
Islands
Chandigarh Chandigarh 1 Nov, 1966
Dadra & Nagar Daman 26 Jan, 2020
Haveli and Daman &
Diu
30
 Delhi New Delhi 9 May, 1905
Jammu and Kashmir Srinagar 31 Oct 2019
(Summer)Jammu
(Winter)
Lakshadweep Kavaratti 1 Nov, 1956
Puducherry Pondicherry 1 Nov, 1954
Ladakh Leh 31

2.4 DEMANDS FOR LINGUISTIC STATES AND ROLE

OF COMMISSIONS APPOINTED

After independence India was integrated and merged into ABC category
as an ad-hoc arrangement. The plan to rearrange the nation on the
administrative and financial lines. However, the identity based pressure on
union government made them to rearrange the states on linguistic and
cultural line. It kept on becoming strong due to social and economic
disparities and financial backwardness. To address the demands from
various regions several commissions were appointed. Following
commissions were prominent amongst them.

Dhar Commission 1948:

Dhar Commission was appointed under Justice S K Dhar to examine the
possibilities of formation of linguistic states. The commission
acknowledged the importance of linguistic aspirations, but suggested that
historical, geographical and economic factors were more important for the
formation of state. It concluded that administrative convenience should be
given priority over linguistic considerations. But its suggestions were
opposed nationwide. This led to appointment of another commission.

JVP Committee 1948:

The JVP was named after its members Jawaharlal Nehru, Vallabhbhai
Patel and Pattbhi Sitaramayya. It was appointed in December, 1948 and
submitted its reports in April 1949. The JVP committee out rightly
rejected the demands of formation of linguistic states. However, it left the
option of reconsideration of linguistic demands.

Formation of Andhra 1953:

Veteran Gandhian leader Potti Sriramulu went on hunger strike with a
demand f creation of separate Telagu speaking state. But the government
was adamant on its stand. However, he died after 56 days hunger strike.
The situation become very violent in Telagu speaking regions. Under this
pressure the union government carved out te state of Andhra Pradesh from
Madras province.

Fazal Commission 1953:

Fazal Ali Commission was appointed on 22 December, 1953. The Prime
Minister announced appointment of the commission. K M Panikkar and H
N Kunzru were other members. This commission submitted its report in
31
1955. It recommended formation of 16 states and 3 union territories. But
the government did not accept the rcommendation.

While accepting Commission’s recommendation to do away with the four-

fold distribution of states as provided under the original Constitution, it
divided the country into 14 states and 6 union territories under the States
Reorganization Act 1956.

Diversion of the State of Bombay:

The demand of Sanyukta Maharashtra state was very strong in
Maharashtra. Formation of Andhra Pradesh intensified the demands of
unified Maharashtra with Bomabay as its capital. The demand was
accepted and separate state of Maharashtra came into existence on 1st May
1960. Bomabay province was divided into two separate states namely
Maharashtra and Gujarat.

Formation of Nagaland:
Nagaland was carved out of Assam in 1963. The territory of Nagaland was
kept under control of Governor of Assam in 1961. The distinct culture,
language and tradition was main driving force behind the demand, which
resorted to militant methods also.

Territories from France and Portuguese:

Some of the Indian territories under foreign rule even after 1947. The
people of India and the Government were continuously agitating against
foreign rule on Indian Territory. As a result of that, the acquisition of
Chandernagore, Mahe, Yaman and Karekal from France, and the
territories of Goa, Daman and Diu from the Portuguese, these were either
merged with the neighbouring states or given the status of union
territories.

PEPSU (Shah Commission):

PATIALA AND EAST PUNJAB STATES UNION (PEPSU) was an
amalgamation of , eight East Punjab princely states of Patiala, Jind,
Nabha, Kapurthala, Faridkot, Kalsia, Malerkotia and Nalagarh. It was
inaugurated by Sardar Vallabhbhai Patel, Deputy Prime Minister of India
on 15 July 1948. Maharaja Yadavinder singh of Patiyala was appointed as
first Governor or Rajpramukh. Further in 1966 Indian Parliament passed
Punjab Reorganization Act. It was a step taken to implement the
recommendations of Shah Commission. Also there was tremendous
pressure from Haryana and Himachal Pradesh regions for creation of
separate states. This Act led to the formation of Punjab, Haryana and
Himachal Pradesh with Chandigarh as the capital of Punjab and Haryana
and Union Territory as well. Thus the number of Indian states rose to 17.

2.5 FURTHER FORMATION OF THE STATE

1. In 1969, the state of Meghalaya was created out of the state of Assam.
Initially, the state was given autonomous status within Assam, but
32
 subsequently it was made a full-fledged state. This raised the strength
of Indian states to 18.

2. In 1971, with the elevation of the union territory of Himachal Pradesh

to the status of a state, the strength of Indian states rose to 19 and then
to 21 with the conversion of the Union Territories of Tripura and
Manipur into states.

3. In 1975, Sikkim was admitted as a state of the Indian Union. Initially,

Sikkim was given the status of an associate state but was subsequently
made a full-fledged state.

4. In 1986 it was decided to give Mizoram, a Union Territory of India,

the status of a full-fledged state. However, it actually acquired the
status of a state in February 1987 and became the 23rd state of the
Indian Union.

5. In February 1987 Arunachal Pradesh, another Union Territory of

India, was also given the status of a state and became the twenty-
fourth state of the Indian Union.

6. In May 1987 the state of Goa was created by separating the territory
of Goa from the Union territory of Goa, Daman and Diu. While
Daman and Diu continued to be a Union Territory, Goa became the
25th state of the Indian Union. Three new states of Chhattisgarh,
Jharkhand and Uttaranchal were created in November 2000.

CONCLUSION

It is noteworthy that the administrative consolidation of various princely

states proved to be very helpful in consolidation of more than 500 princely
ruled states. But the strong leadership and management skills of the Iron
Man of India Sardar Patel has single handily completed the mammoth
project of Indian reorganisation.

Questions for Practice

1. Explain the process of reorganisation of Indian States post-
Independence.
2. Examine the role of various commissions on state reorganisation.
3. What is the process of formation or a new state in India?

33
 EMERGING TRENDS IN CENTRE- STATE
RELATIONS
3.1 Introduction
3.2 Emerging Trends of Cooperation between Centre and State
3.3 Emerging Trends of Conflicts between Centre and State
3.4 Conclusion

INTRODUCTION

The Constituent Assembly has a long and intense discussion on the issue
of nomenclature of the Indian federal system. Finally, the term ‘Union of
State’ was adopted. Article 1 of the Constitution says, ‘India, that is
Bharat shall be the Union of States.’ Whereas, the legislative,
administrative and financial powers and functions have been divided in
three lists, namely Union list, State list and Concurrent list.

Union List: The subjects of national importance, such as, defence, foreign
affairs, money and banking, communication, national highways, shipping,
ports, airways, regulation of oilfields and mineral development. Inter –
state rivers and macro- economic management.

State List: It contains the subjects of regional importance, such as, public
order, agriculture, irrigation, public health and sanitation, roads and
bridges and industries other that those declared by Parliament to be of
strategic importance are assigned are assigned to states.

Concurrent List (Art. 254): Concurrent List are criminal law,

administration of justice, contracts, forests, economic and social planning,
population control and family planning, education and newspapers.

Despite a fine arrangement of division of power, the constitutional

arrangements are clearly inclined towards a strong center. That is why it
is also regarded as ‘semi- federal’ or ‘quasi- federal’ state. The centre
enjoyed exclusive jurisdiction of making the law in all the lists, including
Union, concurrent, residuary and some times in the state list too, in order
to give effect to international treaties and agreements.

However, over the period of 75 years lot of new trends emerged in the
Indian political, economic and social system which has resulted both in
co-operation as well as confrontation between the union and state. Most of
the deputes have taken place on role of Governor (Art. 356), financial
Powers and sharing of resources, centers encroachment upon states powers
and sometimes different party rules in center and states results into
political conflicts. The main trends which have emerged between the
centre – state relations can be examined a following:

34
 Emerging Trends in Centre – State Relations

Trends in Executive Power:

After independence the Congress party rules the centre as well as most of
the states. Therefore, the political dominance of Congress party led to
create a sense of cooperation and toing the lines of centre. Therefore, the
Centre – State relations between 1950 – 1967 was dominated by the Union
government. The Union government would interfere into small and big
decision. After 1967 the second phase of centre state relations has
undergone through tremendous political pulls and push. The rise of
regional parties and leaders posed a direct challenge to Congress party and
the central government led by Indira Gandhi. Finally, the national
emergency was imposed by using Art. 352 of the Constitution. The
governments in seven non- Congress ruling states were suspended. It was
the beginning of a new episode in centre- state relations (after Kerala
episode in 1959), where the Governors exercised the power under Art. 356
and suspended the state governments led by the oppositions parties.

In 1977 when Janata Party came to power, it suspended Nine Congress

party led state governments. Thus a revenge taking rivalry had ensued
which is alive today as well. During emergency 42nd Amendment to the
constitution was made, which has largely affected the centre- state
relations. To ease the strain between centre and state, Sarkaria
Commission (details given above) was appointed. But most of its
recommendations were not accepted by then central government.

After 1990 the country entered into a multi – party electoral system which
was dominated by the regional parties. These parties were strongly raising
the issues of regional disparity and economic backwardness. It was largely
supported by people who were driven by identity politics too.

The Administrative and Legislative powers of the Central and State

government are provided in Art. 73 and 162 of the Indian Constitution.
Along with that Article 257 (1) provides that, the State shall not prejudice
its powers in such a way that poses the challenge to the authority of the
Union or the Constitution. Also Article 73 (1) provides power to the Union
government to exercise power against the will of the state government in
the matters of external treaties and foreign relations.

The financial relations between Union and State is mediated by

institutional mechanisms such as Finance Commission by Article 280. Art.
275 (1) provides for grant-in-aid of the revenues of such States and
Parliament may determine to be in need of assistance. Article 282 enables
the Union or a State to make any grants for any public purpose,
notwithstanding that the purpose is not one with respect to which
Parliament or the Legislature of a State, as the case may be, may make
laws. The borrowing powers of the Central and State Governments are
regulated by Articles 292 and 293 under which States can borrow from
sources outside India only with the prior consent of the Government of
India.
35
i. Cooperation - for political power, problem solving, economic
development, security.
ii. Conflict - over political power, policy, resources, projects etc.
iii. Competition - for political support, resources, projects, investments;
iv. Dependence - for political support, resources, technical know-how,
policy, security, etc.;
v. Autonomy - for sociocultural identity, political space, economic
policy and development; and
vi. Innovation - for consultation, cooperation, problem solving.

3.4 MECHANISM TO SOLVE DISPUTE

The Supreme Court has used two mechanisms to solve the dispute
between Centre and states over the entry list in Seventh Schedule. The
mechanisms are Doctrine of Pith and Substance and Doctrine of
Colourable Legislation. The Doctrine of Pith and Substance says that the
constitutionality of legislation is upheld if it is largely covered by one list
and touches upon the other list only incidentally.

The doctrine relates to finding out the true nature of a statute. Pith denotes
the ‘essence of something’ or the ‘true nature’, while substance states the
most significant or essential part of something. The Doctrine of
Colourable Legislation tests the competence of the legislature against an
enacted law. This doctrine states the fact that what cannot be done
directly, cannot also be done indirectly. The doctrine restricts the
overstretching of the constituted power of the legislature in a disguised,
covert or indirect manner

CONCLUSION

The aim of the Indian Constitution is to establish either collaborative or

cooperative federalism. Through the division of powers between the
Centre and the States, a certain autonomy is granted to the States to ensure
that the administration at the grass-root level remains efficient.
Simultaneously, the Centre exercises its power over the States to maintain
a balance. There are several challenges in the way of maintenance of a
federation but the key solution is healthy debate and discussion between
the parties involved.

QUESTIONS FOR PRACTICE

1. Explain the federal structure of Indian state.

2. Discuss the relations between Union and State.
3. Elaborate the process of reorganization of Indian State
4. Examine the recent trends in Centre- State relations.

*****
36
 MODULE 3
PARLIAMENTARY INSTITUTIONS
Unit Structure
a. Union Executive : President, Prime Minister, Council of Ministers
b. Role and Significance of the Parliament
c. Judicial independence and judicial activism, debate between
judiciary and Parliament.

OBJECTIVES

 To understand the concept of Parliamentary Democracy.

 To understand the position of President, PM and Council of Ministers.
 To understand the organization and judicial interdependence
 To understand he division of power between Legislature and Judiciary

Chapter Scheme:

a. Union Executive : President, Prime Minister, Council of Ministers

3.1 INTRODUCTION

India is a parliamentary democracy. It has the legacy of British

administration and Westminster model of democracy. However, unlike
British democracy India has an elected President as the head of the state
and executive. As such the President is the nominal head. The constitution
of India provides that, „there shall be a Council of Ministers, headed by the
Prime Minister to give aid and advice to the president.‟

According to Dr. B. R. Ambedkar, ‘At the head of Indian Union there is a

functionary called the President of the Union. The title of this functionary
reminds one of the President of the United States. But beyond identity of
names there is nothing in common between the forms of government
prevalent in America and the form of government envisaged under the
Indian constitution… under the Indian Constitution the President occupies
the place as the British Monarch under the English Constitution. He is the
head of the State but not of the government. He represents the nation but
does not rule the nation. He is the symbol of the nation. His place in the
administration is that of a ceremonial deice or a seal by which the
nation’s decisions are made known.’ (Constituent Assembly Debates, Vol.
VII. Pp. 33 -34).

3.2 PRESIDENT
The Article 52 of the Constitution provides a detailed provision for
qualification, election and impeachment of the President of India.
37
President of India is the head of State of the Republic of India. He is the
formal Head of the Nation. Along with Administrative head, he is the head
of all the armed forces of India. Part – V of the Constitution provides for
the Union Executive. Article 53 of the Constitution says that the President
is empowered to exercise his authority but through the union Council of
Ministers. Article 54 explains the role of the President as the head of
Legislature, Executive, Armed forces and protector of the Constitution of
India. The President of India is expected to be see everyone equal in the
eyes of law. Without any prejudice, the president gives justice to States,
Union or very citizen in India.

3.2.1. Election of the President:

Qualifications of the President:
A candidate has to meet some qualifications to be elected as the president.

Those qualifications of the President are:

i. He should be an Indian Citizen
ii. His age should be a minimum of 35 years
iii. He should qualify the conditions to be elected as a member of the Lok
Sabha
iv. He should not hold any office of profit under the central government,
state government, or any public authority.

Article 54 provides that, the President shall be elected by the members of

an electoral college consisting of the:
i. The elected members of both the Houses of Parliament
ii. The Elected members of the Legislative Assemblies of the State.
iii. As per Article 55, „the state includes the National Capital territory of
Delhi and Union territory of Pondicherry.

 The value of the vote of an MLA is given below:

Value of the vote of an MLA

 The value of the vote of an MP is given below:

Value of the vote of an MP=

38
However, there are certain members of union and state legislature who can
not participate in the election of president of India.
i. Nominated Members of Lok Sabha (2) and Rajya Sabha (12)
ii. Nominated Members of State Legislative Assemblies
iii. Members of Legislative Councils (Both elected and nominated) in
bicameral legislatures
iv. Nominated Members of union territories of Delhi and Puducherry

3.2.2 Qualifications:
The following are the qualifications needed for the office of President as
per Articles 58 and 59 of the Indian Constitution.
He/ She should be a citizen of India.
He/ She should be 35 years of age or above.
He/ She should be qualified to become a member of the Lok Sabha.
He/ She shall not be a member of either House of Parliament.
He/ She shall not be a member of a House of Legislature of any State.
The President of India cannot hold any other office of profit under the
Union, State or local governments.

In case a member of either House of Parliament or of a House of

Legislature of any State is elected as the President then he shall be deemed
to have vacated his seat in that House on the date he assumes the office of
the President of India.

3.2.3 Term of Office:

The President of India is elected for a term of five years from the date on
which he enters his office. The office of the President of India may fall
vacant on the following grounds:
 On the expiry of the tenure of Five years
 Addressing a letter of resignation to the Vice President of India.
 Impeachment- removal of the President.
 In case of death.
 In case of a vacancy in the Office of President, the Vice- President of
India acts as the President till the time a new President is elected
which is within 6 months from the date of vacancy. Also, if any
disputes arise due regarding the election of President they are to be
settled by the Supreme Court of India. In this situation, the Vice
President enjoys all the powers and immunities received by the
President. Also, the President is eligible for re-election.

3.2.4 Oath:
The President and every person acting as President or discharging the
functions of the President before entering his/ her office make and
subscribe an oath in the presence of the Chief Justice of India or, in his
absence, the senior-most Judge of the Supreme Court available.
39
The Oath is subscribed as follows:
"I, do swear in the name of God that I will faithfully execute the office of
President of India and will to the best of my ability preserve, protect and
defend the Constitution and the law and that I will devote myself to the
service and well-being of the people of India".

3.2.5 Impeachment:
The procedure of impeachment or removal of the President of India is
discussed in article 56 and 61 of the Indian Constitution. The constitution
of India describes “Violation of Constitution” as the grounds for the
impeachment process. The process can begin in any house of the Indian
Parliament. The charges of impeachment should be signed by 1/4th
member of the particular house where it initiated and a prior notice of 14
days has to be given to the President. Then, it has to be passed by not less
than 2/3rd of the total members in the house. It is then sent to the other
house which investigates the charges levied against the President. While
the investigation is going, the President has the right to be present for such
investigations. After the investigation, if the other house also passes the
impeachment resolution by 2/3rd majority of the total membership of the
house then the President stands impeached or removed from the office
from the date on which the resolution is passed.

However, in this process of impeachment, it has to be noted that the

nominated members of either house of the Parliament can participate
while the elected members of the legislative assemblies of the states and
the Union territories of New Delhi and Pondicherry cannot take part
although they are a part of the election process. So far not a single
President has been removed through impeachment. However, it was
presented against President R. Venkatraman and withdrawn latter.

3.2.6 Powers and Functions:

The Power and functions of president of India are always subject to the aid
and advice of the council of ministers headed by the PM. Therefore, the
powers of President are nominal, that is why he is regarded as the rubber
stamp. Unlike the president of USA, the president of India is not that
powerful.
i) Executive Powers of President:
Every action and agreement taken by the Government of India is done in
his name. He has power to make appointments like attorney general of
India, CAG, Election Commissioner, Chairman of UPSC, State governors,
chairman of finance Commission and other constitutional bodies. The
council of ministers, headed by the Prime Minister to give aid and advise
to the President of India. He seeks administrative information from the
Union Government.
ii) Legislative Powers of President:
The President is a part of Parliament. No Bill can become an Act without
receiving signature of the President. The President addresses the joint
sessions of Parliament before commencement of each session. He causes
40
to lay down the bills and reports before the parliament. The president also
nominates 12 members of Rajya Sabha and not more than 2 members of
Lok Sabha from the Anglo- Indian community.
iii) Financial Powers of President:
The president has significant power in financial matters. He recommends
the money bill. Without presidents recommendations the money bill
cannot be introduced. He also causes the Union Budget to be laid down
before the Parliament. Also, any demands for grant can be considered only
if it is recommended by the president of India. Most importantly the
Contingency Fund of India is under his control.
iv) Judicial Powers of President:
The president of India makes appointments for the apex judiciary. The
Chief Justice of India, Judges of Supreme Court and High Court are
appointed by the President of India. President can seek advice from CJI
and other Judges of Supreme Court but such advises are not binding on
him.
v) Pardoning power:
Under Article 72 the President has the power to grant pardon against
punishment for an offence against union law, punishment by a martial
court, or death sentence. However, before taking any decision on such
matters the President makes a reference to the home ministry as well as to
the legal experts.
vi) Diplomatic Powers of President:
All the international treaties and representations of Republic of India are
made on behalf of the President. Though, the Prime Minister and Council
of Ministers have a greater say in this matter but it is concluded in under
the hand and seal of the President of India.

vii) Military Powers of President:

The President of India is commander in chief of all the defence forces. The
appointments of Chief of Defence Staff (CDS, Chief of Army, Chief of
Navy and Chief of Air Force are done by the President of India. Any
decision related to war and peace are taken in the name of President of
India. The peace keeping forces sent to UNO are sent by him.

viii) Emergency Powers of President:

In case of any external invasion, internal civil war, armed rebellion or any
such calamity that has nationwide impact and beyond control of existing
administrative machinery, a national emergency under Article 352 is
proclaimed. So far the national emergency has been proclaimed only once
in between 1975 – 1977 during Indira Gandhi government.

Constitutional Emergency/ Presidents rule in a state is proclaimed by the

President under Article 356. The constitution clearly says that, „if the
president if satisfied by a report of the Governor or otherwise that, „the
constitutional machinery in the state has failed‟ the President can proclaim
41
his rule. Art. 365 says that whenever a state fails to comply with or to give
effect to any direction from the center, it will be lawful for the president to
proclaim his rule. In such a situation the Governor acts as a Chief
Executive of administration o behalf of the President.

Article 360 of the Constitution provides that, in case of a situation in

which the financial stability or credit of India or any part of its territory is
threatened, Financial Emergency can be declared.

ix) Ordinance Making Power of the President:

Article 123 deals with the ordinance making power of the President. The
President has many legislative powers and this power is one of them. He
promulgates an ordinance on the recommendation of the union cabinet. To
read more on Ordinance Making Power of the President.

x. Veto Power of the President:

The President of India does not have any formal veto power. However, the
President of USA enjoys veto power which makes him stronger than the
Senate and Congress. But in case of Indian President there is no such
formal arrangement in the constitution. Though, except finance bill, he can
withhold the bill till anytime. It is on the President of India to reject the
bill, return the bill or withhold his assent to the bill. The choice of the
President over the bill is called his veto power. The Veto Power of the
President of India is guided by Article 111 of the Indian Constitution. To
continue reading Veto Power, check the linked article.

3.3 CONCLUSION

Thus the President of India holds very important position in Indian

parliamentary system. He/She performs multiple roles from being the first
citizen of India to the head of the Republic of India. However, the
President depends upon the aid and advice of the Council of Ministers
headed by the PM. It makes the position of president weaker than the
Prime Minister of India. This is done deliberately to restrict the President
from becoming a dictator.

Questions for practice

a. Explain the position of the President in the Constitution.
b. Describe the process of Election and conditions of office of President.
c. What are the powers and functions of the President of India?

42
 PRIME MINISTER
i. Election of PM
ii. Powers and Position of PM
iii. Relation of PM with President and Council of Ministers

3.4.1 INTRODUCTION

The Prime Minister is the head of the Government. He/ She is appointed
by the President of India. The President calls the leader of majority party
in the Lok Sabha to form the government.

The powers enjoyed and functions performed by the Prime Minister are as
follows:
a. In Relation to Council of Ministers:
The Prime minister is the head of the council of Ministers. In case of
his/her death or resignation, the entire Council of Ministers stands
dissolved.
1. Although the President of India appoints the Council of Ministers, it is
the Prime Minister who recommends exercises the persons to be
appointed as Ministers.
2. The meetings of the council of ministers are presided over by the
Prime Minister.
3. The Prime Minister has the power to ask a minister to resign or advise
the President to dismiss him in case of difference of opinion.
4. Allotment and re shuffling of portfolios among the ministers is done
by the Prime Minister.

b. In Relation to the President:

1. He is the principal channel of communication between the president
and the council of ministers.
2. He advises the president with regard to the appointment of important
officials like attorney general of India, comptroller and auditor
general of India, chairman and members of the UPSC, election
commissioners, chairman and members of the finance commission
and so on.

c. In Relation to Parliament:
The prime minister is the leader of the Lower House. In this capacity, he
enjoys the following powers:
1. He advises the president with regard to summoning and proroguing of
the sessions of the Parliament.
2. He can recommend dissolution of the Lok Sabha to president at any
time.
43
3. He announces government policies on floor of the House.

d. Other Powers & Functions:

In addition to the above-mentioned three major roles, the prime minister
has various other roles. These are:
1. He is the chairman of the Planning Com-mission (now NITI Aayog),
National Development Council, National Integration Council and
Inter-State Council,
2. He plays a significant role in shaping the foreign policy of the
country.
3. He is the chief spokesman of the Union government.
4. As a leader of the nation, he meets various sections of people in
different states and receives memoranda from them regarding their
problems, and so on.
5. He is the crisis manager-in-chief at the political level during
emergencies. He is leader of the party in power and the political head
of the services.

3.4.2 Questions for Practice:

1. Describe the office of the Prime Minister of India?
2. Explain the different functions of the Indian Prime Minister?

3.5 THE COUNCIL OF MINISTERS

 Concept of Council of Minister and Cabinet system

 Composition of Council of Ministers
 Powers and Functions of Council of Ministers.
 Conclusion

3.5.1 Concept of Council of Minister and Cabinet system:

The Council of Ministers headed by the Prime Minister of India is the
actual executive authority in the country. Article 74 and 75 of the Indian
Constitution deal largely with the council of ministers.

Article 74 of the Constitution reads as follows:

(1) There shall be a Council of Ministers with the Prime Minister at the
head to aid and advice the President who shall, in the exercise of his
functions, act in accordance with such advises. Provided that the
President may require the Council of Ministers to reconsider such

44
 advice, either generally or otherwise, and the President shall act in
accordance with the advises tendered after such reconsideration
(2) The advice tendered by Ministers to the President shall not be
inquired into in any court.

Article 75 on the other hand deals with the tenure, appointment,

responsibility, qualifications, oath, salary and allowances of the ministers.

a. Collective Responsibility:
The principle of collective responsibility is the underlying principle of
Parliamentary form of government. Article 75 of the Indian Constitution
states that the council of Ministers are collectively responsible to the Lok
Sabha for their acts of omissions and commissions. In case the motion of
no confidence has been passed in the Lok Sabha then all the council of
ministers resigns along with the ministers in Rajya Sabha. The President
can be advised by the Council of Ministers to dissolve the Lok Sabha on
the ground that Lok Sabha no longer represents the views of the electorate.

Collective responsibility also implies that Cabinet decisions bind all

Cabinet ministers and thus it is the duty of each and every minister to
support the cabinet decisions in and out of the Parliament. If the minister
disagrees then he or she can resign.

b. Individual Responsibility.
Art. 75 also talks about individual responsibility. It mentions that
Ministers shall hold office during the pleasure of the President meaning
that the President has the power to remove a particular minister while
other ministers continue to enjoy the confidence of the Lok Sabha. This
can be done only on the advice of the Prime Minister. An Individual
Minister continues to be a member of the Council of Ministers till he or
she enjoys the confidence of the Prime Minister. If the Prime Minister is
not satisfied with the work of a Minister or when there is a difference of
opinion he or she can demand resignation from any Minister or the Prime
Minister may advice President to dismiss the minister.

3.5.2 Composition of the Council of Ministers.

The composition of the Council of Ministers is divided into three
categories. They are the Cabinet Minister, Ministers of State and Deputy
Ministers. The Prime Minister is at the apex of the Council of Ministers.

The Cabinet Ministers: The cabinet ministers are the ministers

responsible for important ministries of the central government. It includes
ministries like home affairs, defense, finance, external affairs etc.

The Ministers of State:

They are second category of ministers. A minister of state may holds an
independent charge of a small department or is attached to a Cabinet
Minister. They are required to work under the cabinet ministers in case of
45
attachment. If they exercise an independent charge then they exercise
same power and perform similar functions in relation to the ministries or
departments as the cabinet ministers do. But, it I to be noted that they are
not the members of the cabinet and do not attend the meetings of the
cabinet unless invited.

Deputy Ministers:
The deputy ministers are attached to the Cabinet Ministers or the Ministers
of State. They thus do not have an independent charge or any department
or a ministry. They also do not attend the cabinet meetings.

Kitchen Cabinet:
The cabinet is highest decision-making body in the formal sense is, a small
body consisting of the prime minister as its head and some 15 to 20 most
important ministers. However the real center of power is inner Cabinet or
Kitchen Cabinet has become real Centre of power. This informal body
consists of the prime minister and two to four influential colleagues in
whom he has faith. It gives advises on important political and
administrative issues. This body also makes crucial decisions. It is
composed of not only cabinet ministers but also outsiders like friends and
family members of the prime minister.

Questions for Practice:

1. Write in brief about the Council of Ministers?
2. Explain the Collective and Individual Responsibility of the Council of
Ministers?

3.6 ROLE AND SIGNIFICANCE OF THE PARLIAMENT

 Introduction
 Composition of Parliament
 Powers and Functions of Parliament
 Conclusion

I. OBJECTIVES

 The objective of this Unit is to make the students understand the

Union Legislature of India that is the Parliament of India consisting of
the two houses the Lok Sabha and the Rajya Sabha.
 It becomes important to understand these topics as it in the Parliament
that the laws are formulated for the entire country.
46
 The unit tries to make the students aware about the basic organization,
functions, presiding officers of both the houses.

II. INTRODUCTION

The term legislature can be defined as the organized body having the
authority to make laws for a political unit. India has both Union as well as
State legislatures. The Parliament of India is the legislative branch of the
Indian Government. There exist two models of legislature – the
Parliamentary form of government and the Presidential form of
government. India after Independence has adopted the Parliamentary form
of government, which is also described as the „Westminister‟ model of
government.

III The Union Legislature:

The Indian Parliament according to the article 79 consists of:
a. The President.
b. The Lok Sabha or the House of People
c. The Rajya Sabha or the Council of States.

1. THE RAJYA SABHA/ COUNCIL OF STATES.

1.1 COMPOSITION OF THE RAJYA SABHA

The Rajya Sabha also known as the Council of States is the Upper house
of the Indian Parliament. The Constitution of India has fixed the maximum
membership of Rajya Sabha at 250. Out of 250 members, 238 members
are elected indirectly from the states and the Union territories of India. The
elections to the Rajya sabha are indirect in nature as the members of the
various state legislative assemblies elect the members on the basis of
proportional representation by means of single transferrable vote system.
The seats to various states are allotted on the basis of population and hence
they vary from state to state. For instance, Uttar Pradesh sends 31
members to the Rajya sabha while Maharashtra sends 19. However, out of
the seven Union territories of India only two i.e. Delhi and Puducherry
have representation as the other union territories have little population to
receive nomination. The President nominated 12 members who have
special knowledge or practical experience in various fields like art,
literature, science and social service.

1.2 DURATION

The Rajya Sabha is a permanent body and hence it cannot be dissolved.

One-third of the members of the Rajya Sabha retire every second year.
Fresh elections are conducted for the vacant seats and the presidential
nominations take place at the beginning of every third year. The retiring

47
members can be re-elected or re-nominated for any number of times. The
Representation of People‟s Act of 1951 has provided that the term of
office of a member of the Rajya Sabha shall be for six years.

1.3 QUALIFICATIONS OF THE MEMBERS OF RAJYA

SABHA

1. He/ She should be a citizen of India.

2. He/ She must not be less than 30 years of age.
3. He / She must subscribe and oath or affirmation stating to bear true
faith and allegiance to the Constitution of India and uphold the
sovereignty and integrity of India.
4. He/ She must possess other qualifications as prescribed the Parliament
from time to time.

1.4 DISQUALIFICATIONS OF THE MEMBERS OF THE

RAJYA SABHA.

According to the Constitution, a person can be disqualified as an elected

member if:
1. If he/ she hold any office of profit under the Union or state
government.
2. If he/ she is of unsound mind and is so declared by the court.
3. If he/ she is not a Indian citizen and if he/ she has acquired the
citizenship of the foreign state.
4. If he/she is so disqualified under any law made by the Parliament of
India.

1.5 RAJYA SABHA – OFFICIALS

The Vice President of India is the presiding officer of the ex-officio

chairman of the Rajya Sabha. The Deputy Chairman of the Rajya sabha is
elected from amongst the members of the Rajya Sabha and discharges the
duties in the absence of the Chairman.

The Chairman of the Rajya Sabha can be removed from his office only if
he/ she are removed as the Vice President of India. In case of any periods,
when the Vice President is required to act as the President, he/ she refrain
from performing the duties of the Chairman of the Rajya Sabha. The
Chairman is not the member of the Rajya Sabha. He/ She however can
cast a vote in case of a tie.

The Deputy Chairman of the Rajya Sabha is elected by the members of

Rajya Sabha from amongst themselves. He/ She performs the duties or the

48
functions of the Chairman when the office falls vacant or in case or
absence or if the Chairman is required to act as the President.

1.6 SPECIAL POWERS OF THE RAJYA SABHA

The Rajya Sabha has been accorded special powers by the Constitution
that is not enjoyed by the Lok Sabha.
1. According to article 249, the Rajya Sabha can authorize the
Parliament to make a law on the subject enumerated in the state list.
2. According to article 312, the Rajya Sabha can authorize the
Parliament to create a law relating to the All India Services.

IV. THE LOK SABHA.

1. Composition of the Lok Sabha/ House of People:

The Lok Sabha is the lower house of the Union legislature of India. The
maximum strength of the Lok Sabha is 552 members out of which 530
members are elected by the states while 20 members are elected from the
Union territories, and the rest 02 members are nominated by the President
from the Anglo- Indian Community. The representatives from the states
are directly elected by the people on the basis of Universal Adult
Franchise. According to the Union territories (Direct Election to the House
of People) Act 1965, the members to the Lok Sabha are chosen directly by
the people.

2. Duration:
The lok sabha is not a continuing chamber. The normal term of the lok
sabha is for five years from the date of its first meeting after the general
elections. The president is authorized to dissolve the Lok Sabha any time.
The term of the lok sabha can be extended during the period of emergency
for one year at a time. However, the extension can‟t continue after six
months after the emergency has ceased to operate.

3 Territorial Constituencies:
For the purpose of conducting direct elections to the Lok Sabha the
country is divided into territorial constituencies. For this each state is
allotted seats on the basis of its population. For instance, Uttar Pradesh a
highly populated state sends 80 members to the Lok Sabha, Maharashtra
sends 48 members while sparsely populated states like Mizoram and
Nagaland send 01 member each.

4. Reservation of Seats:
The Constitution of India provides for the reservation of seats to the
Schedule Caste and the Schedule Tribes on the basis of the population.
Originally, the provision of reservation was made for ten years however
time and again it has expanded by amendments to the constitution. The
95th Amendment to the Indian Constitution has extended it till 2020.

49
5. Qualifications of the members of Lok Sabha:
1. He/ She should be a citizen of India.
2. He/ She must not be less than 25 years of age.
3. He / She must subscribe and oath or affirmation stating to bear true
faith and allegiance to the Constitution of India and uphold the
sovereignty and integrity of India.
4. He/ She must possess other qualifications as prescribed the Parliament
from time to time.
5. He/ She must possess other qualifications as prescribed the Parliament
from time to time.

6. Disqualifications of the members of Lok Sabha:

According to the Constitution, a person can be disqualified as an elected
member if :
1. If he/ she hold any office of profit under the Union or state
government.
2. If he/ she is of unsound mind and is so declared by the court.
3. If he/ she is not an Indian citizen and if he/ she has acquired the
citizenship of the foreign state.
4. If he/she is so disqualified under any law made by the Parliament of
India.

7. Lok Sabha-Officials:
The Speaker and the Deputy Speaker constitute the officials of the Lok
Sabha.

Speaker of the Lok Sabha.

The presiding officer of the Lok Sabha is called as the Speaker. He/ She is
elected by the Lok Sabha from amongst its members. The speaker is
elected for a term of five years. The speaker remains in office during the
life of the lok sabha however has to vacate the office if :
a. If he / she ceases to be the member of lok sabha.
b. If he/ she resigns.
c. If he/ she is removed by a resolution supported by the majority
members of the Lok Sabha after giving 14 days prior notice to the
speaker.

8. Role, Powers, Functions of the Speaker:

1. To preside over the house and the meetings of the Lok Sabha.
2. To maintain the order and decorum of the house for the smooth
conduct of the business.
3. To interpret the provisions of the (i) the Indian Constitution (ii) the
rules of procedure and the conduct of the Lok Sabha.
4. To adjourn the house and also suspend it in case of absence of the
quorum i.e. one-tenth of the total membership of the house.
50
5. In case of a tie, he / she can cast a vote.
6. To preside over the joint sitting of the two houses.
7. To appoint the chairman of all the parliamentary committees of Lok
Sabha and supervise their functioning.
8. To certify if a bill is a money bill or not.
9. He/ She are the custodian of the rights and privileges of the members
of the house.
10. To disqualify a member in case of defection.
11. To accept the resignation of the members of the house.
12. All the bills, motions, reports are introduced with the prior permission
of the Speaker.

9. Deputy Speaker of the Lok Sabha:

The Deputy Speaker is also elected by the members of the Lok Sabha from
amongst its members. The speaker remains in office during the life of the
Lok Sabha however has to vacate the office if:
a. If he / she ceases to be the member of Lok Sabha.
b. If he/ she resigns by addressing the resignation to the Speaker.
c. If he/ she is removed by a resolution supported by the majority
members of the Lok Sabha after giving 14 days prior notice to the
speaker.

The Deputy Speaker performs the duties when the Speaker‟s office falls
vacant or the Speaker remains absent.
V. Legislative Procedure:
The procedure followed in both houses to pass bills into act is same. The
bills go through the same stages in both houses. Bills can be public bills-
introduced by minister or private bills- introduced by anyone but a
minister.

Quorum: Under article 100(3) of the Indian Constitution, the one tenth of
the total membership of the house is called as Quorum. If there is Quorum,
only then the business of the house can be transacted.

There are generally four types of bills that are introduced in the Indian
Parliament.

1. Ordinary Bills:
Bills that are concerned with any matter other than Financial Bills, money
Bills and Constitutional Amendment Bills.

2. Money Bills:
These Bills deal with the taxes, public expenditure, consolidated and
contingency funds, audit and accounting, etc.

51
3. Financial Bills:
A Bill dealing with revenues or expenditure but is certified as Money Bill
by the Speaker is a Financial Bill.

4. Constitutional Amendment Bills:

The bills that are concerned with the amendment of the provisions of the
Indian constitution.

Ordinary bills:
First Stage/ Reading of the bill:
It can be introduced by a minister or any member of the house in either
house of the Parliament. The member who introduces the bill asks for the
leave of the house. If granted he/ she introduces the bill by reading its title
and objectives. No debates take place at the time of the introduction of the
bill. The bill is then published in the Gazette of India. If any member
opposes the bill, the member is asked to give the reason to oppose the bill
and the question is put to vote. If the house is in favor of the introduction
of the bill it then goes to the next stage. Thus, the introduction and the
publication of the bill constitute the first stage.

Second Stage/ Reading:

This stage is describes as the most important stage as not only does the bill
undergo a general discussion but it also assumed a detailed scrutiny and
gets the final shape. Here, the house can take the bill for:

i) The General Discussion Stage:

The printed copies of the bill are given to all house members and the
house has the following options:-
a. It may take the bill for immediate consideration .
b. It can be referred to a select committee of the house (where the bill
has originated).
c. It can be referred to a joint committee of both houses.
d. It can be circulated for public opinion.

In the first case i.e. if the bill is taken up for immediate consideration then
amendments to the bills and clause by clause considerations to the bill are
undertaken and voting takes place.

1) The Committee Stage:

In this stage the bill is generally referred to the select committee, which
examines the bill in detail discusses it clause by clause. It can also amend
the provisions of the bill and after the scrutiny the committee reports the
bill back to the house. Then, each clause is discussed and voting takes
place separately, the members can also move amendments to the bill and if
accepted the bill goes for the third reading.

52
Third Stage/ Reading:
In this stage the discussion is limited to the acceptance and rejection of the
bill. If the majority members present and voting accept the bill, then it is
regarded as passed by that particular house. Then, the bill is transmitted to
the second house for its consideration and approval. The second house has
to undergo all the stages as in the originating house. The second house has
three options:
a. It may pass the bill as send by the first house.
b. It may pass the bill by certain amendments and return it to the first
house for reconsideration.
c. May reject the bill.
d. May not take any action resulting in a deadlock between the two
houses.

If the originating house accepts the amendments made by the second

house then the bill is deemed to have been passed and is given to the
President for his/her assent.

Whereas, if the first house does not accept the amendment or the second
house rejects the bill or does not take any action for six months then there
is a deadlock. It is resolved by the President who has the power to
summon the joint meeting of both the houses. In the joint sitting if the
majority of the members pass the bill then it is sent to the President for the
assent. If not, then the bill lapses.

The Assent of the President:

After a bill is passed by both the houses either separately or through a joint
sitting then it goes to the President for his/her assent to the bill. The
President has the following options:
a. May give the assent to the bill.
b. May withhold the assent to the bill.
c. May return the bill for reconsideration to the houses.
If the President gives the assent to the bill it becomes an Act. If the
President withholds the assent then it does not become an act. If the
President send back the bill for reconsideration and it is again passed by
both the houses then the President has to give his or her assent.
Thus, the three readings together followed by the assent of the President
are described as the Legislative or the law making procedure.
1. Money Bills:
Money bill is a bill that deals with the revenue and expenditure except a
financial bill is a money bill. The Speaker of the Lok Sabha has the sole
power to certify whether a bill is a money bill or not. The Constitution has
laid down a special procedure to pass the money bills. The money bill can
be introduced in the Lok Sabha only after the recommendation of the

53
President. Such a bill is supposed to be introduced only by a minister and
is hence called as the government bill.
If the money bill is passed by the Lok Sabha it then goes to the Rajya
Sabha. The Rajya Sabha does not have the power to amend the bill or
reject the bill; however it has the power to make certain recommendations
to the Lok Sabha. It must return the money bill back to the Lok Sabha in
14 days with or without recommendations. The Lok Sabha has the power
to accept or reject the recommendations. In any case, the bill is deemed to
be passed by the Lok Sabha. If the Rajya Sabha doesn‟t return the bill
back in 14 days, then it deemed to have been passed by it.
Once the bill goes to the President for the assent, he/ she may either give
the assent and it becomes an Act. The President can however with hold his
assent but cannot return it back to the house for re consideration. Usually
the President gives the assent as the bill is introduced with the prior
permission of the President.
VI. Parliamentary Privileges:
Parliamentary privileges refer to the legal immunities, exemptions enjoyed
by the members of both the houses. It also extends to the persons who can
take part and speak in the proceedings of the house. Some of the
privileges enjoyed by the members are:
a. Freedom of speech in Parliament.
b. The members enjoy freedom from arrest in any civil case 40 days
before and after the adjournment of the house and also when the
house is in session. It is not applicable to criminal cases and
preventive detention.
c. They are exempted from attending court as a witness or can refuse to
give evidence when the Parliament is in session.
d. No person shall be held liable for publishing any reports, discussions
etc. of the house under the authority of the member of the house.

VII- Parliamentary devices to control the Executive:

1. Question Hour:
The first hour of a sitting of house is devoted to the Questions. Asking
questions is an inherent right of members of Parliament. There are
questions on every aspect of administration and activity of the
government. Government policies in national as well as international
spheres come into sharp focus. If the member is not satisfied by the
answer received, he /she can request the presiding officer to open up the
issue for a discussion.

2. Zero hour:
The question hour is followed by the "Zero Hour". It starts at around 12
noon and members can, with prior notice to the Speaker before 10.00am
by clearly stating the issue that has to be raised and taken for discussion
during the zero hour.

54
3. Short Duration Discussion:
As per the Rule of procedure and conduct of business in Lok Sabha under
rule 193 there is a provision of Short duration discussion. It is a time
where the embers can raise questions in urgent issues of public
importance.
4. Calling Attention Motion:
With the prior permission of the presiding officer a member may call the
attention of a minister on a particular issue that needs urgent hearing. The
questions placed mainly pertain to the Union Government.
5. Adjournment motion:
The adjournment motion is moved with the consent of the speaker. It is a
motion adopted to set aside the normal functioning of the house and adopt
issues that are of urgent public importance. The main motive of this
motion is to take the government at a task for the recent acts that have a
serious consequence.
6. No confidence motion:
In the house, the government is always supposed to enjoy the majority.
They demonstrate their majority by moving the Motion of Confidence.
This motion pertains to the ruling party and the council of Minister as they
are collectively responsible to the house. However, passing a vote of no
confidence against an individual member is not permissible. If the motion
is passed then the government is bound to vacate the office.

VIII Parliamentary Committees:

The Parliament has voluminous functions to perform. It also lacks
expertise and has to deliver in a short span of time. Hence, the Parliament
is assisted by a number of committees to scrutinize the legislative and
other issues. The parliamentary committees are classified into two
categories:

a. Standing Committees: It refers to the committees that are constituted

periodically or yearly and are continuous in nature.

The Standing committees are divided into six types:

i. Financial Committees: The financial committees consist of three

important types :-

 The Public Accounts Committee:

This committee examines the annual accounts of the Government and the
accounts showing appropriation of different sums granted by the Lok
Sabha. It scrutinizes the report of the Comptroller and Auditor General
(C.A.G.) in regard to the appropriation accounts of the Government.

 The Estimates Committee:

It examines the estimates in order to make suggestion in regard to
economy and improvement in organizational, suggest alternative policies
55
for bringing efficiency and economy in administration, examine whether
the money is well laid out within the limits of the policy and the form in
which the estimates are to be presented to the Parliament.

 The Committee on Public Undertakings:

It examines the reports and accounts of the Public Undertakings specified
in the Rules of the Lok Sabha, the reports of the C.A.G. in regard to a
Government undertaking, if the Government undertakings are being run
according to appropriate principles and norms and other matters which
may be referred by the Speaker to the Committee.

The Rules Committee of the Lok Sabha recommended setting up of 17

department related standing committees (DRSCs) in 1993. In 2004 the
number was increased from 17 to 24.

The main motive of the DRSCs is to give more accountability to the

Executive i.e. the Council of Ministers and the Parliament.

Besides these committees, there are committees which are classified as

Other Standing Committees. They are as follows:-
i. Committees to Inquire: that includes – Committee on Petitions,
Committee of Privileges and Ethics Committee.
ii. Committee to Scrutinize and Control: that includes Committee on
Government Assurance, Committee on subordinate legislation,
committee on papers laid on the table, committee on welfare for SC‟s
and ST‟s, committee on Empowerment of women, Joint Committee
on Offices for Profit.
iii. Committee relating to the day to Day business of the house: it
consists of the Business Advisory committee, Committee on Private
members bills and resolutions, the Rules Committee, and the
Committee on absence of members from the sittings of the house.
iv. House Keeping Committee/ Service Committees- it consists of the
General Purpose Committee, the House Committee, the Library
Committee, Joint Committee on salaries and allowances of members.

b. Ad Hoc Committees:
Ad hoc committees are divided into two types: Inquiry and Advisory
Committees.

Inquiry Committee- Inquiry committees are constituted from time to time

by either by the two houses or by the speaker or the chairman. It includes
the following: Five year plans , Railway convention committee, etc.
Advisory committee- it consist of select or the joint committees on bills
that have to consider the report on bills. They are different from other ad
hoc committees as the procedure to be followed by them is laid down in
the Rules of procedure and directions by the speaker or the chairman.

56
Question for Practice:
1 Elaborate on the various Parliamentary Committees?
2 Describe the various legislative devices to control the Executive?
3 Explain the different Parliamentary privileges enjoyed by the
Members of the Parliament?
4 Describe in detail the Legislative Procedure?

3.7 JUDICIAL INDEPENDENCE AND JUDICIAL

ACTIVISM, DEBATE BETWEEN JUDICIARY AND
PARLIAMENT

 Introduction
 Indian Judiciary: Structure and Compositions
 Powers and Functions of Judiciary
 Judicial Activism
 Debate Between Judiciary and Parliament
 Conclusion

The Judiciary of India:

The Judicial structure of India consists of a three tier system i.e. the
Supreme Court of India which is the apex court. Followed by it are the
High Courts of various states whereas the last tier is the District and the
Sessions court.

A. The Supreme Court of India:

The inauguration of the Supreme Court of India took place on 28 January
1950. It succeeded the Federal Court of India that was set up by the
Government of India Act 1935. It is the highest court of appeal in the
entire country and the decisions of the court cannot be questioned. The
jurisdiction of the Supreme Court of India extends throughout the country.
Articles 124 to 147 of the Constitution of India deal with the Supreme
Court of India and elaborates upon the organization, jurisdiction,
independence etc.

i. Composition :
Initially the Supreme Court comprised of 01 Chief justice and 07 other
judges. The Parliament has over the years increased the number of judges
and at present the Supreme Court comprises of 01 chief justice and 30
other judges.

57
ii. Appointment of the Judges:
The President of India appoints the Judges and the Chief Justice of the
Supreme Court of India. The President however consults other judges as
he/ she deems fit before appointing the chief justice. The President is also
required to consult the chief justice while appointing the judges.

The system of appointment and transfer of judges are decided by the

collegiums system which came into being by the various interpretations of
the constitutional provisions by the Supreme Court called as the Judges
Cases. It is a system wherein appointments and transfers of judges of are
decided by a collegium. The collegiums of the Supreme court comprises
of the Chief Justice of India and the four senior-most judges of the
Supreme Court while the High Court Collegiums consist of the Chief
Justice and four senior most judges of that particular court.
The 99th Amendment to the Constitution, 2014 and the National Judicial
Appointment Commission Act, 2014 (NJAC) had replaced the collegium
system and established National Judicial Appointment Commission.
However, in the year 2015 the Supreme Court of India declared both f
them as null and void and continued with the previous system of
collegium.
iii. Qualifications:
To be appointed as the judge of the Supreme Court a person should
possess the following qualifications:
i. He / She should be a citizen of India.
ii. He/ She should have been a judge of high court or various high courts
in succession for at least five years or he/ she should have been an
advocate of a high court various high courts in succession for at least
ten years or in President‟s opinion he/ she should have been a
distinguished jurist.
iv. Oaths:
The Person appointed as the judge of the Supreme Court before entering
the office has to take the following oath before the President of India:
a. Bear true faith and allegiance to the Constitution of India
b. Uphold the sovereignty and integrity of India
c. Duly and faithfully and to the best of my ability, knowledge and
judgment perform the duties of my office without fear or favor,
affection or ill-will
d. Uphold the Constitution and the laws
v. Tenure and Removal:
The judge of the Supreme Court of India remains in office till he/ she
attains the age of 65. The other ways when the judge vacates his/ her
office before the completion of the tenure is:
 If he/ she resigns by addressing to the President of India.

58
If he/ she is removed by an order of the President supported by not less
than 2/3 rd members present and voting of both the houses of the
Parliament only in case of misbehavior or incapacity
vi. Salaries and Allowances:
The salaries, pensions, privileges, etc are determined from time to time by
the Parliament. They cannot be varied to their disadvantage except during
the financial emergency i.e. Article 360.

vii. Seat of the Supreme Court:

The Supreme Court‟s original seat is at Delhi; however the Constitution
authorizes the chief justice to appoint another place or places as the seat of
the Supreme Court.
viii. Practice after Retirement:
The constitution has mandated that no person after retirement as a judge
from the Supreme Court of India can practice in any court within the
territory of India.
ix. Ad Hoc Judges:
If there is a lack of quorum in the Supreme Court the Chief Justice can
appoint a judge of the High Court as an ad hoc judge, only after the
consultation of the chief justice of that particular high court. Moreover, the
judge who is appointed shall be qualified to be appointed as the judge of
the Supreme Court of India.
x. Acting Chief Justice:
The President of India is empowered to appoint a judge of the Supreme
Court as the acting Chief Justice of India in following situations:
a. If the office of the Chief Justice is vacant
b. If the Chief Justice is absent temporarily
c. The Chief Justice is unable to perform the duties allotted.
I. Independence of the Judiciary:
The Supreme Court of India is the apex court and is also the guarantor and
guardian of the fundamental rights of the citizens of India. Thus, the work
assigned to the Supreme Court is very essential and so it should remain
away from any encroachments, pressure and interferences of both the
executive and the legislature. Hence, the Indian Constitution has made
certain provisions to preserve the independence and the impartiality of the
Supreme Court of India, which are as follows:
i. Appointment:
The Judges of the Supreme Court are appointed by the President of India
in consultation with the judiciary. Thus, it curtails the absolute choice of
the executive and makes sure that appointments are not political in nature.
ii. Tenure:
The judges of the Supreme Court enjoy a fixed tenure and can be removed
by the President only on the ground mentioned in the Constitution.

59
iii. Service Conditions:
The salaries, allowances, privileges, leave and pensions of the judge are
determined by the Parliament from time to time and cannot be changed to
their disadvantage except during the financial emergency that allows them
to discharge their functions impartially.

iv. Expenses on Consolidated Fund of India:

The allowances, salaries, pensions, and administrative expenses are al
charged from the Consolidated Fund of India which is non-votable in the
Parliament.

v. Conduct of judges:
The Constitution of India does not allow any discussion or debate in the
parliament of India regarding the conduct of the judges in discharge to
their duties. This can only be done when the impeachment motion is
taking place.

vi. No practice after retirement:

They judges of the Supreme Court of India are not allowed to plead before
any authority or any Court in India after their retirement that preserves
their dignity.

vii. Contempt of Court:

The Supreme Court enjoys the power to maintain its dignity, authority and
honor and therefore van punish any person for the contempt of Court. The
decisions given and actions taken by the Supreme Court cannot be
criticized or opposed by anyone in the country.

viii. Appointment of the staff:

The executive cannot interfere in the appointments of the judges, servants.
This power has been vested to the Chief Justice of India. Thus the
Supreme Court is independent to decide its own staff.

II. Jurisdiction and the Powers of the Supreme Court of India.

The Supreme Court of India enjoys powers and extensive jurisdiction. The
various jurisdictions enjoyed by the Supreme Court can be grouped as
follows:
1. Original Jurisdiction:
Supreme Court is the Highest Interpreter of the Constitution and settles the
disputes between:
a. Government of India and one or more states
b. Government of India and State(s) on one side and State(s) in other side
c. Between two or more states.
The Supreme Court has exclusive jurisdiction meaning no other court is
entitled to decide such disputes in the country. However, the dispute
should involve a question whether of law or fact on which depends
existence of a legal right which the court is called upon to determine.
60
The Supreme Court is also entitled to declare nay law as null and void or
unconstitutional if it is an infringement of the Fundamental Rights of the
citizens.

2. Writ Jurisdiction:
The Supreme Court is the guarantor and defender of the fundamental
rights of the people. If the fundamental rights are violated then the writ
jurisdiction of the Supreme Court permits the Court to issue various writs
enumerated in the article 32 of the Indian Constitution. It consists of
Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
This writ also comes under the original jurisdiction of the Court however;
it is not exclusive in nature meaning that even the High Courts in India
have the power to issue such writs.

3. Appellate Jurisdiction:
The Supreme Court is the highest court of appeal in the country. It hears
the appeal against the judgments given by the lower courts in India. It
enjoys the following appellate jurisdiction:

a. Appeal in Constitutional Cases:

An appeal can be filed in the Supreme Court against the decision given by
the high court if the high court certifies that a particular case involves a
substantial question of law that needs an interpretation to the Constitution
of India.

b. Appeal in Civil Cases:

An appeal can be filed in the Supreme Court from any judgment of the
High Court if it certifies that the case involves a question of general
importance and that it needs to be decided by the Supreme Court.

c. Appeal in Criminal Cases:

An Appeal can be filed in the Supreme Court against the judgment in a
criminal proceeding of a high court if the high court – (i) has on appeal
reversed an order of acquittal of an accused person and sentenced him/her
to death (ii) has taken a case from the Subordinate Court, convicted the
accused person and sentenced him to death (iii) certifies that the case is a
fir one for appeal to the Supreme Court of India.

d. Appeal by Special Leave:

The Supreme Court has the power to grant a special leave in any issue
from any judgment passed by a tribunal or any court in the country except
Military tribunal and the Court Martial. It has four aspects: (i) it cannot be
claimed a right as it is a discretionary power (ii) can be granted in any
judgment both final and interlocutory.

4. Advisory Jurisdiction:
The article 143 of the Indian Constitution authorizes the President of India
to seek the advice of the Supreme Court in (i) question of a fact or law
having public importance that is likely to arise or has already arisen. (ii)
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on any pre- constitutional treaty, agreement etc. Some examples of such an
appeal are Delhi Laws Act, 1951, Sea Customs Act, 1963, Presidential
Elections, 1974, Cauvery Water disputes Tribunal, 1992.

5. A court of Record:
The judgments, proceedings and acts of the Supreme Court are recognized
as legal precedents and legal references. They are recorded for testimony.
They are of evidentiary value and cannot be questioned when produced
before any court.

6. Judicial Review:
Judicial review means the power given to the Supreme Court to declare
any legislative act or an executive order pertaining to both the central and
the state government as null and void or unconstitutional if the act or the
order contravenes any provision of the Indian Constitution.

B. The State Judiciary: High Court.

Below the Supreme Court of India, there prevail the High Courts. It has
the top position in the judicial set up of the states. In 1862, the high Courts
in India were set up at Calcutta, Bombay and Madras. The Indian
Constitution provides for a high court in very state of India, however, the
Seventh Amendment Act 1956 authorizes the Parliament for the
establishment of a common court for two or more states of India.
Currently, there are 24 high courts in India. Delhi is the only union
territory to have a separate High Court.

Articles 214 to 231 in the VIth Part of the Indian Constitution deal with the
High Courts of India.

i. Organization of high court:

Every High Court consists of a Chief Justice and other judges appointed
by President.

The number of judges for the High Courts is not specified in the
Constitution and varies from State to State.

ii. Appointment of the Judges:

The President appoints the Chief Justice of the High Courts of India after
consulting the Chief Justice of India and the Governor of that particular
state. The President also appoints the judges of the High Courts in India
after consulting the Chief Justice of the respective High Court. The
President consults the Governor of all states in appointing the Chief
Justice and Judges in case of a common High Court.

iv. Qualifications:
A person can be appointed as a Judge of the High Court if:
 He is a citizen of India

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 He has been held a judicial office for not less than 10 years in the
territory of India ; or
 He has been for at least 10 years an advocate of one or of two or more
High Courts in succession.

iv. Oath or Affirmation:

The person appointed as a judge of the High Court has to take an oath
before the Governor of the particular state.
a. Bear true faith and allegiance to the Constitution of India
b. Uphold the sovereignty and integrity of India
c. Duly and faithfully and to the best of my ability, knowledge and
judgment perform the duties of my office without fear or favor,
affection or ill-will
d. Uphold the Constitution and the laws.

v. Tenure and Removal:

The judge of the Supreme Court of India remains in office till he/ she
attains the age of 62. The other ways when the judge vacates his/ her
office before the completion of the tenure is:
 If he/ she resigns by addressing to the President of India.
 If he/ she can be removed by the President after an address supported
by the special majority of each house of parliament (i.e. majority of
the total membership of that house and a majority of not less than
two-thirds members present and voting) only in case of proved
misbehavior or incapacity.

vi. Acting Chief Justice:

The President can appoint a judge of the high court as the Acting Chief
Justice if:
 The office of Chief Justice of the High Court is vacant
 If the Chief Justice is absent for a temporary period.
 If the Chief Justice of the High Court is not able to perform his/her
duties.
vii. Acting Judges of the High Court:
The President of India has the power to appoint a qualified person as the
acting judge of the High Court when:
 The judge of that high court is unable to perform his or her duties.
 That particular judge is appointed as the temporary Chief Justice of
that High Court.
I. Jurisdiction and Powers of the High Court.
Like the Supreme Court of India, the High Court also enjoys extensive
powers. The Indian Constitution does not lay down the detailed provisions
of the High Court. It only provides that the High Court‟s powers and the
Jurisdiction of the High Courts are to be the same as before the
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commencement of the Constitution. The High Court enjoys the following
powers:
1. Original Jurisdiction:
It means the power of the High Courts to hear disputes in the following
areas:
 Will, marriage, divorce, contempt of court etc.
 Disputes concerning the election of members to the State legislatures
and the Parliament.
 Concerning revenue matters.
 Fundamental rights of the citizens and its enforcement etc.
2. Writ Jurisdiction:
The Constitution of India under article 226 empowers the High Courts of
India to issue writs. These writs are Habeas Corpus, Mandamus,
Certiorari, Prohibition and Quo Warranto which can be issued to enforce
the fundamental rights of the citizens. It signifies that of the fundamental
rights of the citizens are violated then the citizen can move to the High
Court directly for which the High court can issue writs to any person,
authority.
3. Appellate Jurisdiction:
Apart from the Original and Writ jurisdiction the High Court also enjoys
Appellate jurisdiction. It means it is a court of Appeal in both Criminal;
Civil issues and hears decisions against the Subordinate Courts in its
territorial jurisdiction.

4. Supervisory Jurisdiction:
Over all the tribunals and the Courts (except the Military courts) in its
jurisdiction the High Court enjoys the power of supervision or
superintendence. It includes:
 High Court can all for returns,
 Issue and form rules and prescribe the procedure and practice for their
working
 It also is authorized to describe the ways in which books, accounts etc
are to be maintained.
5. Control over the Subordinate Courts:
The various ways in which the High Court exercises its authority over the
subordinate courts are:
 The Governor of the state consults the High Court of that State where
appointments, promotions etc of the district judges et are to be made.
 It also has the authority to withdraw a particular case which involves a
substantial question of law and requires the interpretation of the
Constitution from any subordinate court.

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1. A Court of Record:
Just like the Supreme Court of India the High Courts of India act as a
Court of Record. The judgments given and the proceedings conducted are
recorded for perpetual memory and testimony. These records cannot be
questioned by any subordinate courts.

2. The Power of Judicial Review:

Judicial review means the power given to the Supreme Court to declare
any legislative act or an executive order pertaining to both the central and
the state government as null and void or unconstitutional if the act or the
order contravenes any provision of the Indian Constitution. Articles 32
and 226 describe the judicial review in the Constitution of India.

C. Subordinate Judiciary In India:

Supreme
Court

High Courts

District Court and Session Judge’s

Court

Civil Areas Criminal Areas

Court of Subordinate Court of Chief

Judge Judicial Magistrate

Court of Munsif Court of Judicial

Magistrate

The organization of the subordinate judiciary is laid down by the States.

Thus, the structure of the subordinate courts differs from state to state.
Below the High Courts are the Subordinate Courts in every state. When
the judge handles the civil cases, he or she is known as the district judge
and when he or she handles the criminal cases he or she is called as the
sessions judge.

The district judge possesses not only the administrative but also the
judicial powers however, he or she also has supervisory powers over the
subordinate courts prevailing in the district. The Court of Subordinate
Judge has all powers relating to civil suits while the Court of Chief
Judicial Magistrate has all powers relating to the criminal suits. The Chief
Judicial Magistrate can decide cases of imprisonment up to seven years.
The Munsif Court falls below the Court of Subordinate Judge and
possesses limited jurisdiction. Whereas, the Court of Judicial Magistrate
can try cases with imprisonment up to three years.
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X Judicial Review:
The Indian Constitution has originally prescribed for Judicial Review in
India unlike the US Constitution. The concept of judicial review came into
existence for the first time in the Marbury vs Madison case 1803.
Moreover, the concept of judicial review is a part of the basic structure of
the Indian constitution and thus cannot be curtailed even by a
constitutional amendment.

Judicial Review is the power of the judiciary to interpret the constitution

and declare any law or order of the legislature and executive void, illegal
or unconstitutional, if it found to violate the Constitution of India.

Need of Judicial Review:

For the following reasons there is a need of judicial review in the country.
a. to maintain the supremacy of the Indian Constitution.
b. to maintain the balance between the center and the states.
c. to ensure that the fundamental rights of the citizens are protected.

Examples:
The Supreme court has extensively used the power of Judicial Review in
India. Some of the prominent examples are : The Golakhnath case 1967,
the Kesavananada bharati Case 1973, Minerva Mills case, 1980.Recently,
in the year 2015 the Supreme court declared National Judicial
Appointments Commission (NJAC) act, 2014 as null and void.

Judicial Activism and Public Interest Litigation:

The term Judicial Activism was first used by Arthur Schlesinger Jr. In
India the concept of judicial activism was developed by Justice V.R.
Krishna Iyer, Justice P.N. Bhagwati, Justice O. Chinnappa Reddy and
Justice D.A. Desai in the 1970s.

Judicial activism refers to the proactive role played by the judiciary to

promote justice in the society and protect the rights of the citizens of the
country. Moreover, it also implies that the judiciary forces the Legislature
and the Executive organ of the Government to discharge its duties
properly.

The concept of Public Interest Litigationis closely associated with judicial

activism in India. Justice V.R. Krishna Iyer and Justice P.N.Bhagwati
were the pioneers of PIL in India .In case of PIL, any person or an
organization can move to the court for the enforcement of right of the any
person or group of persons who due to their ignorance, poverty or any
other reason couldn‟t approach the court. Earlier, only the aggrieved
person whose rights were violated could move to the court.

Thus PIL can be defined as:

Public Interest Litigation (PIL), means a legal action initiated in a court of
law for the enforcement of public interest or general interest in which the

66
public or class of the community have pecuniary interest or some interest
by which their legal rights or liabilities are affected.”

LET’S SUM UP

Thus, in this chapter we have studied about the Legislature and the
Judiciary of India. The Lok Sabha and the Rajya Sabha comprise of the
Indian Parliament and make laws or the nation. Therefore it is very
important to understand the functioning of both the houses. The legislative
or the law making procedure is described in detail for the various types of
bills that prevail etc. The privileges enjoyed by the members of the
Parliament are also mentioned and the various parliamentary committees
that play an important role in formulation of a law. It in turn is the
judiciary of India that checks if the laws made do not contravene the
provisions of the Indian Constitution. Thus, the role of judiciary is
pertinent as it is the guarantor of the fundamental rights of the citizens.
The detailed structure of the Supreme Court the High Court and the
Subordinate courts is discussed in the chapter.

QUESTIONS FOR PRACTICE

1. Describe the Structure of the Supreme Court of India?
2. Is the Judiciary in India independent? Explain in detail
3. Describe the powers and the jurisdiction of the Supreme Court of
India?
4. Describe the Structure of the High Court of India?
5. Describe the Jurisdiction and powers of the High Court of India?
6. Describe the Structure of the Subordinate Judiciary in India?

*****

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 MODULE IV
STATE AND LOCAL GOVERNMENTS
Unit Structure
4.1 Formation & re-organization of states
4.2 State Executive
4.2.1 Governor
4.2.2 Chief Minister & council of Ministers
4.3 State Legislature
4.4 Rural Local Self Government
4.5 Urban Local Self Government

4.0 OBJECTIVE

 To understand the Organisation of federal structure

 To understand the Role of State legislature
 To understand the power and duties of Local self-government.

4.1 FORMATION & RE-ORGANIZATION OF STATES

Introduction:
The history of Indian states can be traced back to the British period pre
British India was divided into various princely states. When the East India
Company established its political hold on the longer part of Indian sub-
continent, The Company divided the territory into three presidencies viz.
Bengal Madras and Bombay some princely states were merged with
British presidencies and some princely states were independent for their
internal governance and British representative had complete control over
these princely states. The first central govt. came into existence in 1973.
Later on certain changes were made in the bifurcation of Bengal. Punjab
becomes a separate province in 1849. They also restructure Oundh in 1856
central provinces in 1861 Assam in 1874 and north western frontier
provinces in 1901. After independence the NEFA and Sindh became part
of Pakistan. Anyway there is long history of Indian Princely states and
British provinces. It must be remembered that the provinces were created
for administrative convenience they were administrative units.

After Independence:
At the time of the application of Indian constitution (26 Jan 1950) The
Indian states were classified as part A,B,C and D, Earlier Governor’s
provinces were included in part A, The part B was o princely states and
part C consisted some small princely states and commissioners provinces
and part D comprised of Andaman islands.

68
Re-organization of states:
The demand goes back to the year 1903. The participation of Bengal was
an important Land mark in the history of freedom movement. The Nehru
report of (Motilal Nehru) was in favor of reorganization of province on
linguistic basis. The Simon commission report was not in favor of
redrawing the map of India. The Indian National congress retired its
demand for re organization states on linguistic basis by passing resolutions
in 1927, 1937 and 1938.

A Linguistic provinces commission under the chairmanship of S K Dar

(Known as Dar Commission) was setup to examine the question of
formation of the new provinces. However the Dar commission did not get
a favorable reception in the country. Therefore the congress appointed its
own committee popularly known as JVP committee though was favor in
re-Organisation of states but felt that it was not an appropriate time to do.
Considering the pressure and subsequent agitation for the formation of
Andhra state the committee favored its opinion. As a result of this Andhra
state came into existence on 1st Oct 1953.

States Re-Organisation Commission:

The demand for new states got intensified hence the central government
appointed a SR’c under the chairmanship of justice Fazal. (Known as
Fazal Commission) The Govt. of India did not accept all the
recommendations of the commission. However some new states formed.
(About 15 new states) But there was a dispute regarding Gujrat and
Maharashtra. The Sanyukt Maharashtra samiti agitated for the creation of
separate state of Maharashtra (along with Bombay) and finally Gujrat and
Maharashtra separate state have been formed by Re-structuring some
states. At present Indian union have 28 states and 09 which territories.

4.2 THE STATE EXECUTIVE

Indian constitution provides for a federal govt. having separate systems of

administration for the union and its units viz the states. The constitution
contains provisions for the governance of both. It lays down a uniform
structure for the state govt. in part VI of the constitution which is
applicable to all the states. Broadly speaking the pattern of govt. in the
states is the same as that of union viz a parliamentary system. The
executive head of the state Governor, and exercises head of the state
Governor, and exercises powers in accordance with the council of
ministers headed by chief minister.

4.2.1 The Governor:

The institution of Governors in the present from could be attributed to the
British regime. The Governor under British rule was more powerful and
controlling office of the province. The Govt. of India act 1935 occupied a
central position in the administration of provinces.

69
Constitutional provisions:
The executive powers of the state are vested in the office of the Governor.
All executive actions of the state have to be taken in the name of the
Governor. There shall be a Governor for each state and the same person
can be appointed for two or more states (Art 153) The Governor is
appointed by the president (Art 155). The prescribed term of office for a
Governor is five years, but he holds office at the pleasure of the president
(art 156). The pleasure of the president is not justifiable. The Governor is
entitled to revive such emoluments, allowances as may be determined by
the parliament from time to time, as specified in the “Governors
(Emoluments, allowances and privileges) act 1982. The governor has no
diplomatic or military powers. He is not answerable to any court of law for
the exercise of his powers. The executive powers of the state are vested in
the Governor (ART 154) and the exercised by him or any subordinate as
per the provisions of the constitution. The Governor exercises his powers
with the advice of the ministers.

Powers of the Governor:

The powers and responsibilities of the Governor can be summarized as per
the following-

A) Legislative powers:
The Governor is not a member of legislature but is a part of legislature just
as the president is a part of parliament. (Art 164). He has right of
addressing and sending messages and summoning, proroguing and
dissolving in relation to state legislature. In case of vacant post of
speaker/dy speaker he can appoint of the concerned houses. All the bills
that are passed by the state Legislature receive assent of the Governor
before they become law. He is empowered to withhold his assent of the
Governor before they become law. He is empowered to withhold his
assent the bills except money bill which introduced with the prior approval
of the Governor (ART 202) and of making demands for grants and
recommending money bills (Art 207). He is also empowered to issue
ordinances when the legislature is not in session.

b) Executive powers:
The Governor is a constitutional head of the state executive to act on the
advice of the council of ministers (Art 163). The Chief Minister is
appointed by the Governor (a majority party leader) and the other
ministers on the advice of chief minister. The Governor appoints Advocate
General of the state chairman and members of SPSC and Judges of
subordinate courts (Art 165,316 283 and 284) The Governor may
nominate to the legislative council (where it exists) one sixth members
from among persons having special knowledge or practical experience in
science, literature art tec. (Art 171 (3) (e) and (5). He has right to keep the
president informed about the activities of the state govt.

70
c) Financial, Judicial and other powers:
The Governor is required to cause to be laid before the house of the
legislature the annual financial statement. A money bill cannot be
introduced without the prior approval of the Governor.

The Governor has the powers to grant pardons, reprieves, respites, remit or
commute the sentence of any person convicted of any offence against any
law relating to a matter to which executive power of the state extends (Art
161). He is also consulate by the president in the appointment of the chief
justice and the judges of the high court of the state.

The Governor has no emergency powers but he has the p[ower to make a
report to the president whenever he is satisfied that a situation has arisen in
which the govt. of the state cannot be carried on in accordance with the
provisions of the constitution (Art 356)

There are certain areas where the Governor may have to use his own
wisdom and discretion e.g.
a) Appointing a new chief minister where no single party commands
majority support
b) Dismissing a ministry where it refuses to resign even after losing
majority support
c) Dissolution of the assembly on the advice of CM who has lost majority
support etc. The Governor has right to receive reports from accountant
General, SPSC etc. He is also the ex officio Chancellor of the
universities in the state.

Position of the Governor:

If it true that the position of Governor assumes importance from all
perspective, as unlike the office of the president. The Governor possesses
certain discretionary powers. The Governor exercises his discretion in
various issues as discussed above. While exercising discovery powers, he
will not be required to act according to the advice of his ministers.

Right from the day on which the constitution came into force, the office of
the Governor has been a point of debate, mainly because that there are n
number of incidences where the Governor has misused the powers mainly
the discretionary powers. There are opines of politicians and constitutional
experts that the office of the Governor has been used by the ruling partly
at the Centre for safeguarding the political interests of the party at the
Centre. The mode of appointment of the Governor has favored to the
political party at the Centre. It has become a Centre of politics for the
ruling party at the Centre to control and harass the opposition parties who
are ruling the states. It is criticized that Raj Bhavan is a Centre to please
the leaders at New Delhi. The office of the Governor has become a place
for re installation of defeated politicians or retired bureaucrats (who are in
favor of political party at the Centre) It is also felt that the Governor’s
office is a show piece for central govt. Smt. Sarojani Naidu once quoted
71
that the Governor is a bird in a golden cage Mr. Paltabhi Sitaraman once
said that ‘I had no function to perform except making fortnightly reports to
the president’. The office of the Governor witnessed devaluation of its
image. The democratic norms are openly fluted and conventions are
thrown to the winds specially while dealing with the states that did not
have governments. From the ruling party at the centre. A share
controversy has arisen many times upon the question whether the govt. has
power to dismiss the council of ministers in the state and impose
president’s rule.

This practice of dismissing the state govt. by the Governor has Started
from 1959 when the communist govt. in kerala under EMS Nambudripad
toppled in 1959 by V.V. Giri the then Governor of Kerala. The Governor
of Punjab could not dare to demand the resignation of CM Pratap Singh
Kairo even after the Das Commission found him guilty of corruption. The
misuse of office of the Governor to dismiss the state govts frequently used
by the centre after 1967 when non-congress govt. came in power in many
states. In 1967 the Governor of west Bangal dismissed the united front
ministry. In 1970 the Governor of UP G. Gopal Reddy dismissed the
Charan singh Ministry. In both the occasions the chief ministers were not
given an opportunity to prove their majority. These are a long history of
dismissing the state governments of non-congress states right from 1959.
However this is not the case only with congress but the non-congress
parties which came in power at the Centre is not an exception to this type
of practice. It is not always necessary that the Governors have to dismiss
the state ministries but there are other ways of harassing the state govt. by
the Governor. The recent (2020) controversy between the chief minister
and Governor in Maharashtra is an ideal example of this type of
controversy.

The controversies arose due to changed political situations. The Governors

are playing double role i.e. Constitutional head and agent of Centre, which
is not happy expression of Governors position. Practically speaking the
Governor is not only figure head. The exact range of his powers depends
upon the political situation that exits in the state. In case of political
disharmony and instability Governors role become much larger and
important.

The appointment of governors has raised controversy and his removal has
generally public debate. The changing nature of Indian politics i.e. the rise
of coalition politics has influenced the functioning of Governor to a large
extent. Everything was smooth when the same party role continued at the
Centre and in the states but when the regional parties started to occupy
power in the states the governor got embroiled in the politics of the central
government.

There is no provision in the Constitution for the removal of the governor

on account of the change of power at the Centre. But the convention

72
established on the same line. For number of times the Governors are asked
to resign or removed when there is a change in power at the Centre.

However the misuse of the office of the Governor have come down due to
intervention supreme court (SR Bommai case 1994) The judiciary set
down certain checks in the misuse of Art 356. Various commissions and
committees attempted to weed out the theory issues about the Centre state
relations. The Sarkaria commission recommended that the Governors
report (before using Art 356) should be given wide publicity in the media
so that the people can understand the ground of dismissal of govt. The
Supreme Court emphasized that parliament should ratify the presidential
proclamation before goes into effect. However the role of the Governor
still continues to be a thorny issue in the Centre state relations. Act this has
led to the decline of the image of the Governor.
Review Questions.
1. Describe the evolution of the institution of the Governor.
2. Discuss the powers and functions of the Governor.
3. Critically examine the role of the Governor in state admn.
4. How the Governors are appointed and removed.
5. Governors have misused their office examine the statement with some
illustrations.

4.2.2 Chief Minister and Council Of Ministers:

The Governor of a state is the constitutional head and chief minister is the
real head of the state.

Appointment of CM and council of Ministers. Every state has a council of

Ministers, with the chief minister as its head which aids and advice the
Governor in the conduct of affairs of the state (Art163). The Chief
Minister occupies a position akin to that of the PM at the Centre. The
Chief Minister is appointed by the Governor the Leader of the Majority
party in the state Legislative assembly. The other ministers are appointed
by the Governor on the advice of the CM. The council of ministers are
collectively responsible to the Legislative assembly (ART 164) Any
person appointed as minister (including CM) ceases to be a minister if he
is not or does not remain for a period of six consecutive months a member
of a state legislature.

Role and position of Chief Minister:

The CM for all practical purpose is the head of the council of minister. He
is considered to be the captain of the team. It is a prerogative of the CM to
73
formulate any major policy and got the approval. The council of ministers
maintains secrecy regarding its deliberations. CM is the chief
spokesperson of the government.

The major functions of the CM are mainly appointment and dismiss of the
ministers, conducting meetings and discussing the plans and policies and
action plan of the govt. with the council of ministers, to maintain relations
and continuous contacts with the central govt. etc. Being accountable to
the state legislature he has to maintain cordial relations with the legislature
to inform the polices and decisions of the council of minister from time to
time and get the sanction of legislature where ever necessary. The CM has
also do play an administrative role and to see that all dept are managed
effectively and efficiently. The chief secretary provides all the necessary
administrative support to the CM.

The real position of CM depends on his personality political experience

and maturity, administrative capability position in the party organization.
The Position of CM is stronger if he is a leader of single majority party
than the coalition govts. The weak CM works as a puppet in the hands of
senior political Leaders in the party. The CM of a coalition govt. is
virtually a prisoner of circumstances. During congress dominated era the
CMs were reduced to the status of chief mangoes of the party led by the
PM. The position of CM during Nehru era was comparatively strong
because the CMS had sounds footing in their respective states. Nehru’s
attitude towards states was real democratic and federal in nature. The great
and tall personalities were at the helm of affairs in the states during that
period.

However this tradition was discontinued during and after smt. Indira
Gandhi era. The Chief Ministers of congress Party really made a puppet to
work as agents of Central govt at the state level. The Chief Ministers were
changed or replaced without any reason. Principally the chief minister is to
be selected by the majority party MLAs of the assembly but it has become
a practice that the CMs are decided by the OM or at the CMs are decided
by the PM or at the central level. The chief ministers have no authority to
select the members of council of ministers unless it is approval by the
party leader at the Centre.

In case of coalition govt. the position of c.m. is always weak. It depends

on the relationship between coalition partners. The present trend of
coalition policies decides to strengthen or weaken the position of chief
minister.

Council of Ministers: The constitution does not specify the number of

minister to be in corporate in the council of ministers. Generally the
council of ministers consists of three tiered structure i.e. Cabinet ministers,
ministers of state and deputy ministers. In small states the two tier system
is preferred. The cabinet ministers are given separate charge of any
department. Deputy minister-ship is generally a training position, given to
74
the newly added minister. The cabinet minister occupies a significant
position in the council of minister. The cabinet is a small body consists of
very important departments. The decisions of the cabinet meeting are
binding to all.

Constitutionally the ministers are appointed by the Governor on the advice

of Chief Minister. But as we have seen that the chief minister of a single
party leader has to acquire consent of party leader at central level, he has
little choice in making his own council of ministers. Whereas in coalition
government chief minister political parties while making the council of
ministers.

Apart from the above two situations there are other factors to be
considered while making the council of ministers. In Indian situation, the
factor like caste, religion, region, rural urban minority and claims of senior
and or political leaders (who are influential or trouble shooter) The
behavior of some ministers also has become a serious issue now a days.
They develop favorites and exercise under influence on service personnel.
The relationship between political masters and bureaucracy is a
problematic issue in administration. The ministerial responsibility has
been more individual than collective. A compact and competent council of
minister is the pre requisite for purposeful governance in the state.

Review Questions.
1. The Chief Minister is the real head of the state admin explain with
examples
2. Critically examine the role and position of the chief ministers.
3. How the council of minister is formed?
4. Define collective responsibility.
5. Examine the relationship between
a) Governor and chief minister
b) Chief Minister and council of ministers.

4.3 STATE LEGISLATURE

The Constitution provides for a legislature for every state in the Indian
union. The legislature of every state include the Governor and Legislative
Assembly, however these is a provision for legislative council (Second
Chamber) not for all the states but can be created by the amendment by
parliament by simple majority. The procedure for creation of second
75
chamber includes that the legislature Assembly of the concerned state
form a resolution by special majority (i.e 213) followed by an act of
parliament. (Art 169). At present Legislature. The size of the Legislative
council is not more than 1/3rd of the membership of Legislative Assembly
but not less than 40 (Art 171) . The parliament has right to decide the
composition. Broadly speaking 5/6 of the total number of members of the
council is indirectly elected and 1/6 are nominated by the Governor. 5/6
the members which are indirectly elected represent various types of
constituencies created for this purpose viz, local body’s graduates,
teachers and members of legislative assembly.

Composition of legislative Assembly:

The members of the state legislative Assembly is directly elected by the
voters on adult franchise from territorial constituencies. The number of
members of the Assembly shall not be more than 500 and less than 60.
There shall be proportionately equal representation according to
population in respect of each territorial constituency within a state (Art
110) Governor has the power to nominate one member of the Anglo
Indian Community if they are not adequately represented in the assembly
(Art 333). The duration state not dissolved earlier. A citizen of India not
less than 25 years of an age is qualified to be members of assembly and
30yrs for council. He should possess the other qualifications prescribed
under any law made by parliament (ART 173) the disqualifications are
laid down in Art 191. MLCs are elected on the basis of proportional
representation by means of single transferable vote (Act 171)

Presiding Authorities:
The presiding authorities of both the houses are elected by members of the
respective houses. Legislative Assembly presiding authorities are known
as speakers and Dy speakers whereas the council presiding authorities are
known as chairman and Dy chairman. Both of them can be removed from
office by the respective house majority members present and voting.

Powers and functions of State Legislature:

The state Legislature is a Law making authority for the state. It makes
laws an any subjects enumerated in the state list. Regarding money bills in
the second chambers (Council) it cannot be originated. In case of
disagreement between the two houses on any bill, there is no provision for
joint sitting. In case of dead lock on any bill (Except money bill) the
assembly can wait for three months to pass or amend the same by the
council. Otherwise it is deemed to be passed in the form in which the
assembly has passed the bill.

The state Legislature exercises control over executive by way of asking

questions moving various motions etc. The executive is responsible to
legislative assembly only.

Members of state Legislature participate in the election of presiding

authorities of the respective houses.
76
Members of state Legislature are more influential than the members of
parliament, because they are more nearer to the people. They have
frequent contact and communication with the people in their
constituencies. They can easily understand the problems and needs of the
voters directly or with /through their political workers. The success or
failure of MLA moreover depends on how he works in his constituency. It
is expected that he should try to bring the development schemes/projects
of Centre /state to his constituency and see that the overall development of
the constituency is done. He should maintain social harmony by making
contacts with the people. Now days the legislative members are holding
various positions on the socio-economic organisations, educational
institutions, co-operative organizations and so on. The hold of MLA on
these socio eco networks in the constituency help him to understand the
development needs of the area.

Criticism:
The powers of the state Legislatures from the point of view of state
autonomy are very limited. In most of the states there has been no
effective opposition which has enabled the ruling parties to work in a high
handed manner. The ruling party shows scant regard for the opposition.
Perfection has also been a major drawback in the working of the
legislatures. The increasing attitude of indifference of Legislative
members towards the functioning of legislature has deteriorated the quality
of legislative work. Due to increasing rampant indiscipline the smooth
working of state legislature becomes extremely difficult state Legislatives
have tended to become mere forums of declamatory politics than of
serious engagement in the overview of govt’s polices. The number of
MLAs who can be identified as expert and effective parliamentarians is
decreasing alarmingly. Losses are scarcely filled in by new comers corrupt
and criminal elements have entered into the Legislatures which has
resulted into the deterioration of the quality of state Legislatures.

Review Questions.
1. Describe the composition of state Legislature
2. Write a note on presiding officers of state Legislatures.
3. Explain the powers and functions of state Legislature.
4. Critically examine the role and position of state legislature.

4.4 LOCAL SELF GOVERNMENT

The Pre independence local self govt. institutions are their origin in the
British rule and the post independent institutions are built upon what was
created during the British rule.
77
The municipal institutions were the first to be created by the rule of East
India Company by the orders of the court of directors. The first municipal
corporation setup I India was madras in 1688. The presidency towns of
Calcutta and Bombay had their own corporations in 1972 and 1793
respectively. Other such local bodies were created after 1842.

Relating to Rural local self govt. there were early attempts to organize
them in Bombay and Madras presidencies in the 19th Century. In 1871 and
1874 new municipal acts were passed providing for elective municipal
bodies. In 1882 Lord Ripen issued his famous resolution of local self govt.
which continued to be the basis of local self govt. till 1947.

After independence some states have introduced local self govt. system
with certain changes. There was no uniform system LSG in India. The
Constitution has made a provision in ART 40 (i.e. Directive principles of
state policy) and directed the states, to take steps to organize village
panchayats and endow them with such powers and authority as may be
necessary to enable them to function as units of local govt.’’

A) Rural Local Self Govt. or Panchayat Raj:

Evolution – In India the institution of panchayats has a hoary history. The
quest for the revival of villages in free India was supported by several
innovations aimed at institutions building. The first such experiment was
the community Development Programme. (CDP) inaugurated on 2nd Oct.
1952. The second experiment was the National Extension Service (NEX)
launched in 1953. Both the programmes were trapped within the control of
the bureaucracy which could not appropriate that the imitative for
development must be left with the people. To redress this balanced the
govt of India appointed a committee under the chairmanship of Balwant
rai Mehta to examine the working of CDP and NES Mehta Committee
Suggested (1957) a three tier system of Panchyati Raj from village to
district level with multi-level linkages be created. Most of the states
accepted the Mehta Committee recommendations- with or without
alternations Rajasthan was the first state to launch PR system in the state
in 1959. Andhra Pradesh followed the same. Thereafter a majority of the
states passed. The necessary legislation to setup PRIS.

After the formation of Maharashtra state (1960) Govt. of Maharashtra

appointed a committee in 1961 under the chairmanship of the men revenue
minister V.P. Naike to examine the recommendations of Mehta committee
and suggest suitable PR system for Maharashtra. The Naike committee
suggested a three tier system PR with some modifications in the scheme of
Mehta Committee. Govt. of man accepted the scheme of Naike Committee
and the same has been implemented in Maharashtra w.e.f. may 1962. The
important thing is that the Maharashtra Patterns of PRIs have been so
successful that other states have followed the same pattern and while
making the 73rd amendment the Maharashtra pattern is accepted as a
uniform model for the country.

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In 1977 the Janta Government appointed a committee (Ashok Methta
Committee) with a view to reviving and strengthening the PR system.
However due to collapse of Janta govt in 1980, no progress could be
registered in this direction.

The 73rd constitutional Amendment:

With a view to strengthening the Rural and urban local self govt. system
and recognizing its place in the constitution the 73rd amendment was
passed by the parliament. In 1986 the Singhavi Committeee (of Dept of
Rural Development) recommended constitutional status to the PRIs. In
1989 64th amendment bill was introduced for this purpose but could not
passed in the Rajya Sabha. In June 1990 a conference of Chief Ministers
discussed the reforms in the PR structure However due to the political
upheavals that amendment bill could not get through. When the congress
govt. came in power a modified bill of amendment was introduced in the
parliament (73rd amendments) and was passed in Lok-sabha on 6th
December 1993, And in Rajya sabhas on 23rd December 1992. The
amendment came into force on 24th April 1993. Many states have by then
amended their own acts. Features of 73rd amendment-

The ideas of 73 rd amendment are inserted in the part IX th in the

constitution which relates to PRI’s containing articles 243 to 243 -0 These
provisions are in the nature of basic provisions which are to be
supplemented by the laws made by the respective state legislatures, which
will define the details as to the powers and functions of the various organs
just mentioned.

1) Part IX of the constitution visages a three tier system of the panchayat.

Village level, The District panchayat at district level and panchayat
samiti at block /taluka level (where the population is above 20 lakhs)
2) Members of village panchayats are directly elected by the voters from
territorial constituencies in the panchayat area. The electorate has been
named as gram Sabha.
3) Reservations in PRIS- one third of the total seats in PRIS will be
reserved for women. Reservation of seats for SC/ST will be in
proportion to their population.
4) A state may by law make provision for similar reservation of the
offices of the chairpersons in the PRIS.
5) There shall be mandatory periodic elections every five years under the
supervision, direction and control of the state election commission and
where super sealed in midterm election within six months.
6) The political parties have been allowed to play an effective role in
election and working of PRIs.
7) State Legislatures have the legislative power, to confer on the PRIs
such powers as may be necessary to enable them to function as
institution of self-government (Art 245 G-H) The eleventh schedule

79
 distributes powers between the state legislature and panchayats. The
list contains 29 items.
8) The state govt. shall appoint a finance commission to review the
financial position of PRIS and to make recommendations to distribute
taxes, duties, tills enviable by the state which may be divided between
them and to provide grant-in-aid to the PRIs.
9) The courts shall have no jurisdiction to examine the validity of law,
relating to delimitation of constituencies made under art 243 K.
10) PRIs will prepare plans for economic development on the subjects
enumerated in the 11th schedule.

The present PRIs are certainly a step forward in the direction of

decentralization of powers to the people at gram root level.

Structure of PRIs:
A broad framework of PRIs has been provided by the 73rd amendment act.
It is proud and privilege for us to mention that the PR structure envisaged
by this amendment is more or less equal to that of PR structure in
Maharashtra. It is mainly a three tier structure.

Gram Sabha:
Gram Sabha exists as a statutory body in almost all the states. The 73 rd
amendment gives a constitutional status to this gram root institution under
the new provisions two meetings of the gram sabha must be called in a
year. The Quroreem for Gram Sabha meeting is fixed at 1/10 of the total
members. The budget and programmer of the Panchayat are framed
keeping in view the suggestions made in the Gram Sabha.

II) Gram Panchayat:

The GP is the executive committee of the Gram Sabha. The members of
the GP are elected on the basis of about franchise. The tenure of GP is five
years. Age limit for contesting these elections is 21 years. The Panchayat
is expected to meet once in 15 days. The presiding officer is known as the
Sarpanch in most of the states, in some states he is directly elected by the
Gram Sabha. The Panchayats have wide range of functions to perform, as
they are important agencies of rural govt. The income of Panchayats varies
from state to state. The financial resources are limited hence they are
mainly depending on program grants and grand in aid from the higher
authority. The need therefore is to argument the resources of the
Panchayats. Now days some central govt. schemes grants are directly
transferred in the Panchayat accounts.

III) Panchayat Samiti:

The Panchayat samiti represent the middle level tier in the three tier
structure of PRIs. If functions at the block/Taluka level. There are
variations in the composition and functions of pan-sam in various states.
Each district is divided into several blocks/talukas and each block /taluka
has one panchayat samiti. There is no uniformity in the composition of
80
panchayat samitti in the states. Generally there are two types of models are
exists in the country. Firstly in some states, panchayat samitti consists of
associate and coopted members along with the sarpanch of the panchayat
samiti areas as exfoliate members. The MPs and MLAs are known as
associate members. The pan samitis are coordinating bodies between Zilla
Parishad and village panchayats. Secondly the pan-samitis are directly
elected bodies. (eg. In Maharashtra) generally two members from one ZP
constituencies are elected and members elected from sarpanch
constituency. These is also or provision for co-opted and associate
membership. The pan samiti is the principal executive body responsible
for the implementation of development programmes in the area. The pan-
samiti has generally performs two types of functions i.e. Civic functions
and development functions.

The tenure of pan-samiti is five years. The presiding officers are namely
Sabhapati and Upa-Sabhapati, who are elected by the elected members
among themselves. The pan-samiti works through committee system. The
BPO is the administrative head of pan samiti who works along with the
team of development functionaries. The finance sources of pan-samiti.
Generally include taxes level collected from the area and grants from ZP
state and central govt.

IV) Zilla Parishad:

ZP is the apex body in the system of democratic decentralization. There is
variety of Nome nature in various states. The members of ZP are elected
directly by the people and its tenure is five years. It has executive powers
along with taxing powers. It works through committee system. The
presiding authorities.(i.e. president, vice president and chairmen of various
committees) are elected by the members from among themselves. There is
a provision for associate and coopted members. The MPs and MLAs in the
district are also associate members of ZP except Maharashtra) The
Sources of revenue are taxes, non-tax revenue grants from state and
central and special development grants. The ZP being an executive body
has been entrusted with civic and development functions. The ZP prepares
its own budget and development plan. The development plan is approved
by the DPDC. The CEO (an IAS or equivalent) is true administrative head
of the ZP. He works with his team of development officers. The ZP works
through committees and depths.

V) Role of PRIs:
The 73rd amendment has heralded a new era for PRI. The PRIs have been
provided additional legitimacy and vitality. The participation of women
and weaker, The participation of women and weaker sections is indeed
commendable. The participation of women and vitality. The participation
of women and weaker sections is indeed commendable. The strengthening
of finance (to some extent) induced to make themselves self-sufficient.
The PRIs are playing and making contribution in rural development. These
institutions have enhanced the political consciousness of the rural people.

81
It is true that the PRIs have accelerated the process of decentralization and
development. But still the PRIs are various genuine problems which need
to be attended. In adequate finances is a major problem. In spite of several
legal and statutory efforts, the powers are not yet properly decentralized.
Many states have not established finance commission hence the PRIs are
not getting their proper dues from the state. No adequate powers are given
to perform them development functions. Finance is not only the problem
but adequate autonomy to work is necessary. Under interference of state
and local MPs and MLAs is a barrier in the way.

When it is said that the PRIs have created political consciousness among
the people, another side of the coin which has jeopardized the social
network and harmony i.e. political factions on the basis religion, caste etc
has damaged the social cohesiveness. Use of money and muscle power in
elections has generated conflicts among people. Corruption, dishonesty
and unlawfulness have trickled down from the top instead of development.
Bureaucratization is also a major hindrance in the process of rural
development.

PRIs have succeeded in creating political democracy at the gram root level
but it has remained unsuccessful in establishing social and economic
democracy.

4.5 URBAN LOCAL SELF GOVT

I) Introduction:
Ancient India which was famous for its. ‘Village republics were also a
long of big and well administrated cities and towns. There are reference of
Harappa and Mohenjodaro. The Kautilya has given a graphic description
of Patliputra and Mauryas. The cities like Bombay, Calcutta, and Madras.
The accelerated growth rate in urban population is the natural
consequences of modernist ion and industrialization. According to the
1901 census it was 11.4% increasing to 28.23% by the 2001 census and is
now currently 34% in 2017. According to the World Bank. According to
survey by UN in 2030, 40+76% of the country’s population is expected to
reside in urban areas. In Maharashtra the urban population in last 10 years
has increased by 45.22%. The growing urbanization has affected not only
economic structure of the country but also its social and cultural profiles.
The urban scene in India presents a science of paradoxes- growth and
decay, poverty and affluence, slums and mansions, illiteracy and
educational excellence, parochial groups and universities associations,
hope and despair etc.

The roofs of municipal administration in India can be traced to 1687 when

Madras Municipal Corporation was setup. The Royal charter of 1720
established a majors court in three cities i.e. Madras Bombay Calcutta. In
1850 an Act was passed for British India permitting the formation of local
committees. In 1882 Lord Ripen suggested reforms for establishing local
bodies. He is considered as ‘father of local self govt. in India. The
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government of India act 1919 introduced the system of diarchy and the
local govt. The act of 1935 emphasized provisional autonomy and
declared local govt. as a provisional subject. The constitution of India does
not provide any special provision for urban local self govt. is to be the
seventh schedule of the constitution. The local self govt. being a subject of
state list. All the state govt. has their own laws for the governance of urban
local bodies. There is no uniformity in the types of local bodies in the
state. (This Lacuna has been corrected to some extent by the 74the
constitutional amendment.

The constitution 74th Amendment Act:

The 65th amendment bill brought before the parliament, sought to ensure
municipal bodies with necessary powers and removing their financial
constraints to enable them to function effectively as units of local govt.
The bill envisaged three types of urban bodies i.e. Municipal
Corporation, Municipal council and Nagar Panchayats. However due to
political up heaves. The bill could not be passed. Later on the same bill
with some modification was introduced in Loksabha in Sept 1991. It was
passed by both the Houses in Dec. 1992 and then the bill was ratified by
the State Legislatures. It received the assent of the president on 20th April
1993 and become law known as 74th Amendment Act 1992, which came
into force on 1st June 1993.

The act introduced a new part viz part 11th in the constitution. This part
deals with the provisions of urban local self govt. The 74th amendment act
has given a constitutional status to the urban local bodies. (Called by
comman name municipalities.)

This part gives birth to two types of bodies –

1) Institutions of self govt. (Art 243 Q)
2) Institutions of Planning (Art 2432X and 243ZE)
3) The Institutions of self govt. are
a) Municipal Councils
b) Municipal corporations
c) Nagar Panchayats

Art 243 Q makes it obligatory for every state to constitute such units.

A) Municipal Councils:
A Municipal council is a statutory body created by an act of the state
legislature. The criteria for setting it up vary from state to state. Broadly
these are population, size, sources of income, industrial/commercial
prospects of the city etc. The size of the municipal council (MC) is
determined by the state govt. In Maharashtra there are three types of MCs
based on population criteria. A class MCs more than 1 lakh, B class MCs
–more than 50,000 and c class MCs –less than 50,000. However this
criterion is not strictly followed due to rapid growth of urban population.
The minimum number of councilors should be five and their tenure is five
83
years. A Mc consists of elected associated and coopted members. The
elected members are directly elected on adult franchise. Seats are reserved
for SC/ST, women and other backward classes as per law. The chairperson
of MC is elected by the councilors among themselves. The MCs have
three authorities the council and its committee’s chairmen /president and
the chief executive officer.

The council decides all questions of policy matters and passes the budget.
The council also manages its property and institutions. The major source
of revenue property tax, professional tax terminal tax etc. and now the
share of govt. allocated by the state govt. special project grants are also
given by the state and central govt. The MCs are authorized to borrow
money and run their own enterprises. MCs prepare development plans in
regard to matters listed in the 12th schedule which contains 18items.

Some of the provisions are similar to those contained in part IX eg.

Reservations of seals, finance commission, election commission etc.

B) Municipal Corporations:
Municipal Corporations are set up only in big cities. The 74thamendement
act provides that the area of different types of urban bodies would be
specified by the Governor of the state taking into account the population
density of the population revenue generated by the local body percentage
of employment in non-agriculture activities and other factors. A municipal
corporation has a statutory status as it is created by an act on the state
legislature. In 1947 there were only three municipal corporations in the
country i.e. Bombay, Madras and Calcutta. Now the number of Municipal
Corporation has increased in all the states due to growing urbanization. In
Maharashtra there are 26 Municipal corporations (till 2014). Some cities
have separate acts of municipal corporations. However after the 74th
amendment act various states have amalgamated the different acts and
created one state act for all municipal corporations in the state.

The council of corporation consist of elected counselors whose tenure is

five years. The municipal area is divided into wards for the purpose of
election. The act also provides reservations for SC/ST / women and OBC
classes. According to legal procedure for election of mayor is decided by
the state legislature. The municipal corporation works through
committees. The municipal commissioner is the CEO of the corporation
works through committees. The municipal commissioner is the CEO of the
corporation works through committees. The municipal commissioner is
the CEO of the corporation he is appointed by the state govt. generally
drawn from IAS cadre. He executes the decisions of the council. He
prepares budget and also makes certain appointments. The list of functions
to be performed by the municipal corporation are enumerate in the 12th
schedule of the constitution. The corporation has authorized to long taxes.
It is a major source of revenue and another major source is profit earned
by municipal enterprises in addition to that various gran is also given by
the state and Centre from time to time. Municipal corporations are
84
expected to play a crucial role in the formation of plans for local
development and execution of state plans designed for local area.

C) Nagar Panchayat:
Together with the various forms of urban local govt. existing at present the
amendment act also provides for setting up ‘Nagar Panchayats.’ It is
constituted for a transitional area. Such an area is basically rural in
character which over a period of time is likely to develop urban
characteristics. Hence this urban local body would have to perform both
rural and urban functions. A committee is constituted by the state govt. for
the notified area.

D) Other:
There are other urban local bodies constituted for specific purpose for
small towns where the municipal councils are not created.eg. Town area
committee/ Mohalla committee. It is a semi municipal authority
constituted for small towns. Secondly Township - the large size enterprises
have setup townships which are administered by the municipal corporation
or council which whose boundary they fall. Town Administrator is
appointed to administer the area. Thirdly cantonment Board – This form of
urban local govt. is a British legacy established under the cantonment act
in 1924. They are centrally administered by the defence Ministry. These
boards are mainly for military stations established in the area. It has three
categories class I, II & III based on civilian population residuary in the
area. In addition to these urban bodies multipurpose and single purpose
agencies are also created by the state or central govt. by law to perform
such assigned functions in the urban areas. E.g. Housing boards
improvement trusts. MMRDA tec. Their powers and functions are decided
by the respective government By law. These bodies generally bureaucracy
dominated agencies fully autonomous and controlled by the govt. They
perform their functions in co-ordination with urban local bodies in the area
and experts appointed on the body.

III) Urban Local Government- Some Reflections.

The growing urbanization has affected not only economic structure of the
country but also its social patterns and cultural profile. However
inadequate attention has been paid to the governance of urban bodies. As a
result of this municipal bodies have been anemic, inefficient and corrupt.
Badly drafted municipal laws substandard personnel, poor finances and
stringent central control have been the common maladies responsible for
such maladministration to focus on attention on a few basic problems
facing urban local bodies are varied. These can be summarized below with
points only.
1. Proper decentralization of powers and functions
2. Need to increase people participation in the affairs.
3. Proper co- ordination between state govt. and local bodies’ local
bodies and special agencies.

85
4. Formulation and execution of town planning.
5. Curbing the growth and expansion of urban territories.
6. Development of urban infrastructure eg. Roads, Sanitation, water
supply city transport, electrification etc.
7. Curbing down the unauthorized constructions and development of
slums.
8. Corruption is a genuine problem not only at local levels but all level.
9. Unhealthy hexus of politicians-
10. Excess control of state govt. over local bodies.
11. Inadequate finances etc.

A critical problems in municipal admin arises mainly apaerny of the state

govt. towards local bodies. These bodies have been used as centers of
politics rather than agencies of development.

REVIEW QUESTIONS

1. Account for the evolution of local self govt. in India.

2. Explain the history of PRIS in India
3. Describe the features of 72rd amendment act.
4. Discuss the structure and composition of panchayat raj institutions.
5. Critically examine the role of PRIs in rural development.
6. Account for the history of urban local govt. in India.
7. Discuss the major changes made by the 7th amendment act
8. Write a note in
1) Municipal council
2) Municipal Corporations
3) Other urban Agencies.
9. What are the problem areas of urban local bodies?
10. Critically examine the issues and future prospects of urban
development in India.

*****

86
Document Information

Analyzed document MA Politics SEM 2 Indian Constitution.pdf (D118114822)

Submitted 2021-11-10 17:23:00

Submitted by Pandit Rajashri

Submitter email [email protected]

Similarity 17%

Analysis address [email protected]

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