Q :- Point out the difference between directive Principles of State Policy and

Fundamental rights .
Answer :The directive Principles of State policy are contained in Chapter iv while
the Chapter iii of the Constitution of India deals with the Fundamental
Rights .

Fundamental Rights

Directive Principles.

The Fundamental
Rights are enforceable
in a court of law by
appropriate
remedies, including
the constitutional
remedies i.e., the
writs of habeas
corpus, mandamus,
prohibition and
certiorari which the
Supreme Court and
High Courts are
empowered to issue
against the
Government.

But the Courts cannot

compel the Government to
carry out any Directive nor
can any individual seek a
legal remedy on the ground
that the State has failed to
comply with a Directive say,
to prohibit the slaughter of
cows or to introduce free
education for children. The
Directive in short do not
create any legal right in
favour of any individual.

2.

The Fundamental
Rights constitute
limitations upon State
actions.

Directive Principles are in

the nature of instruments to
the Government of the day
to do certain things and to
achieve certain ends by
their actions.

3.

For the same reason a

law which
contravenes a
Fundamental Right
can be declared by the
appropriate Court to
be void.

But a law which is contrary

to a Directive cannot be so
held to be void.

In case of any conflict

between the
Fundamental Rights
and Directives, the
Fundamental Rights
shall prevail , unless
the conflict arises out
of a law to implement
the Directives in Art.
39 (b)-(c), i.e. for the
socialisation of the
means of production
and the material

In this context , it is to be
noted that by the
42nd Amendment Ac t, 1976,
this protection (offered by
Art. 31 C ) was sought to be
extended to any law made
to implement any of the
Directives of State Policy as
contained in Part IV ; but the
Supreme Court has
invalidated such extension in
the case of Minerva Mills v.
Union of India. In the result

1.

4.

The Directives, however,

require to be implemented
by legislation, and so long
as there is no law carrying
out the policy laid down in a
Directive neither the State
nor an individual can
violate any existing law or
legal rights under colour of
following a Directive.

The
Directives
differ
from the

Fundamental Rights on the following points which may be shown in the

tabular form :-

According to the majority of the supreme Court , in the Minerva

Mills case, by seeking to give all the Directives in Part IV a blanket
cover so as to undermine the Fundamental Rights, violated all the basic
features of the Constitution as formulated above.
*****
Q:- Explain the significance of the Preamble to the Constitution of India .
Every written constitution of the world contains a preamble . Every preamble is
the soul of that constitution . It shows the aims , objects and ideas which are tried
to be achived by the constitution . Where the language is found to be ambiguous
the preamble to a written Constitution aids the legal interpretation .
It would be better to reproduce the noble words of the Preamble to our
Constitution before analysing its contents . The preamble as amended in 1976
runs thus :
WE THE PEOPLE OF INDIA , having solemnly resolved to constitute
India a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens ;
JUSTICE, social, economic and political;
LIBERTY of thought expression, belief, faith and worship;
EQUALITY of status and of opportunity; and no promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of
the Nation;
IN OUR CONSTITUENT ASSEMB LY this twenty sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
The preamble expresses the following objects and purposes underlying the
Constitution:

The words we the people of India say that the Constitution is created by the
people of India as a whole and so none has any power to put an end to the
Constitution.
The term sovereign speaks that India is an independent State and it is not
subject to control by any external power or authority though it is a member of
the Commonwealth of Nations.
The word Republic means India is neither a monarchy nor an oligarchy . We
have an elected President instead of a king at the head of our State.
The preamble declares that the India is Republic and shall be a democratic in
the representative form . The ultimate power remains in the electorate
comprising the entire adult population.
The preamble further says the constitution shall ensure social, economic and
political justice. The word justice requires abolition of all sorts of inequity . The
ideal of economic justice means equal reward for equal work, irrespective of
caste, creed etc. , prevention of exploitation of women, children and other
weaker sections of the community. Political justice means absence of arbitrary
distinction in the political sphere, universal adult suffrage and one man one
vote.
Liberty of thought, expression, belief, faith and worship are guaranteed by the
Fundamental Rights. These liberties are required for the development of the
individual.
Further , the Constitution also aims at establishing equality of status and
opportunity, e.g., by guaranteeing equality before the law and equal protection
of the laws, equality of opportunity for public employment, and the like.
Lastly, our ideal is to foster a sense of brotherhood which in view, the
Constitution seeks to abolish untouchability, and all communal or sectional
interests.
*****
Q:- Can there be accession of any new State in India ? How a new State is created ? What is
the procedure for creation of a new State ?
Article 2 of the Constitution of India laid down the provision for admission or
establishment of new States . According to this Article Parliament may by law
admit into the Union, or establish, new States on such terms and conditions as it
thinks fit.
As for example by virtue of the Chandernagore Merger Act , 1954 , the said
territory was merged in India . By Article 2-A of the Constitution of India Sikkim
was also merged into India but by the 36thConstitution Amendment Act , the
Article 2-A was repealed .
Article 3 of the Constitution of India laid down the provisions for formation of
new States and alteration of areas, boundaries or names of existing States . This
Article says that the Parliament may by law-

(a) form a new State by separation of territory from any State or by uniting two
or more States or parts of States or by uniting any territory to a part of any
State;
(b) increase the area of any State;
(c)diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State;
It has further been provided that no Bill for the purpose shall be introduced in
either House of Parliament except on the recommendation of the President and
unless, where the proposal contained in the Bill affects the area, boundaries or
name of any of the States, the Bill has been referred by the President to the
Legislature of that State for expressing its views thereon within such period as
may be specified in the reference or within such further period as the
President may allow and the period so specified or allowed has expired.
Explanation I says that in this article 3 , in clauses (a) to (e) , the word State
includes a Union Territory, but in the proviso, the word State does not include a
Union territory.
Explanation II provides that the power conferred on Parliament by clause ( a)
includes the power to form a new State or Union Territory by uniting a part of
any State or Union territory to any other State or Union territory.
As seen most recently in the Bihar Reorganisation Act ,2000 , Madhya
Pradesh Reorganisation Act ,2000 and Uttar Pradesh Reorganisation Act ,2000 ,
which resulted in the creation of the States of Jharkhand , Chattishgarh and
Uttarakhand , respectively .
Article 4 of the Constitution laid down that ---(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for
the amendment of the First Schedule and the Fourth Schedule as may be
necessary to give effect to the provisions of the law and may also contain such
supplemental, incidental and consequential provisions ( including provisions as
representation in Parliament and in the Legislature or Legislatures of the State
or States affected by such law ) as Parliament may deem necessary.
(2) No
such law as aforesaid shall be deemed to be an amendment of this Constitution
for the purposes of Article 368.
*****
Q :- Who are the citizens of India ? Under what circumstances shall a citizen of
India lose his citizenship .
Articles 5,6 and 8 provide , very widely , who will be the citizens of India . And
Article 10 says about continuance of citizenship of India once it is acquired . On
the other hand , Articles 7 and 9 provide the situations when one can lose the
citizenship of India .

Article 5 deals with the Citizenship at the Commencement of the

Constitution. According to this Article at the commencement of this Constitution
every person who has his domicile in the territory of India and(a)Who was born in the territory of India; or
(b)

either of whose parents was born in the territory of India ; or

(c)who has been ordinarily resident in the territory of India for not less than
five years immediately preceding such commencement, shall be a citizen of
India.
Article 6 deals with the rights of citizenship of certain persons who have
migrated to India from Pakistan. According to this Article notwithstanding
anything in Article 5, a person who has migrated to the territory of India from
the territory now included in Pakistan shall be deemed to be a citizen of India
at the commencement of this Constitution ifa) he or either of his parents or any of his grand- parents was born in India
defined in the Government of India Act, 1935 ( as originally enacted ); and
b) (i) in the case where such person has so migrated before the nineteenth
day of July 1948, he has been ordinarily resident in the territory of India
since the date of his migration, or
(ii) in the case where such person has so migrated on or after the
nineteenth day of July, 1948 he has been registered as a citizen of India by an
Officer appointed in that behalf by the Government of the Dominion of India
on an application made by him therefore to such officer before the
commencement of this Constitution in the form and manner prescribed by
that Government.
Provided that no person shall be so registered unless he has been resident in
the territory of India for at least six months immediately preceding the date of
his application.
Aeticle 8 provides the rights of Citizenship of certain persons of Indian
origin residing outside India . This Article provides that notwithstanding
anything in Article 5, any person who or either of whose parents or any of
whose grand-parents was born in India as defined in the Government of India Act,
1935 (as originally enacted), and who is ordinarily residing in any country outside
India as so defined shall be deemed to be a citizen of India if he has been
registered as a citizen of India by the diplomatic or consular representative of
India in the country where he is for the time being residing on an application
made by him therefore to such diplomatic or consular representative, whether
before or after the commencement of this Constitution, in the form and
manner prescribed by the Government of the Dominion of India or the
Government of India.

Article 10 says regarding Continuance of the rights of citizenship . According to

this Article every person who is or is deemed to be a citizen of India under
any of the foregoing provisions of this Part shall, subject to the provisions of
this Part shall, subject to the provisions of any law that may be made by
Parliament, continue to be such citizen.

Article 9 and 7 provide when a person may lose Citizenship of India .

Article 9 provides that the Persons voluntarily acquiring

citizenship of a foreign State shall not to be citizens of India . This Articles
elaborates this principle by saying that no person shall be a citizen of India by
virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or
Article 8, if he has voluntarily acquired the citizenship of any foreign State.

Under Article 7 if a person had gone from the territory of India to the territory
now included in Pakistan after 1-3-47, with the intention of shifting his
permanent residence from India to Pakistan, he will lose his citizenship of India
which could have accrued to him by his coming within the terms of Art 5.

Article 7 also provides that nothing in this article shall apply to a person who,
after having so migrated to the territory now included in Pakistan, has returned
to the territory of India under a permit for resettlement or permanent return
issued by or under the authority of any law and every such person shall for the
purposes of clause (b) of Article 6 be deemed to have migrated to the territory
of India after the nineteenth day of July , 1948.

Parliament has since enacted the Citizenship Act. 1955. Which provides for the
acquisition of citizenship subsequent to the date of commencement of the
Constitution .

Q;- Enumerate the Fundamental Rights which are dealt with in Part III of the
Constitution.
The fundamental rights represent the basic values enriched by the people of
India . The aim behind having an elementary right of the individual is to preserve
and protect certain basic human rights against interference by the State . The
inclusion of fundamental rights in the Constitution is in accordance with the
trends of modern democratic thought . The object is to ensure the individuality of
certain essential rights against political vicissitudes .
The Constitution itself classifies the Fundamental Rights under 7 groups as
follows;
1) Right to Equality.
Article 14 to 18 of the Constitution deal with the right to equality . This group
includes;
(i) Equality before law ( Article 14 );
(ii) Prohibition of discrimination by the State on grounds of religion, race, caste,
sex or place of birth ( Article 15 );
(iii) Equality in matters of public employment ( Article 16 );
(iv) Abolition of untouchability ( Article 17 );
(v) Abolition of titles ( Article 18 ) .
It will be seen that some of these confer positive rights upon the citizens while
the others are in the nature of constitutional limitations upon the power of the
State to create conditions of inequality.
2) Right to Freedom
Article 19 to 22 of the Constitution deal with the right to freedom .
This group contains a large number of rights:
( i) Article 19 says the Freedom of
( a) speech and expression ,(b) assembly ,(c) association ,(d) movement,( e)
residence and settlement,
( f) profession;

(ii) protection in respect of conviction for offences under any of the prohibited
conditions ( Article 20 );
(iii) protection of life and personal liberty ( Article 21 );
(iv) protection against arrest and detention in certain cases ( Article 22 ) .
It is to be kept in mind that the freedom of property, which was guaranteed by
sub-cl. (f) of Art 19 (1) has been omitted, by the Constitution (44th Amendment )
Act, 1978. So there are now only 6 of the 7 freedoms which had been originally
guaranteed by the Constitution.

3) Right against Exploitation .

Article 23 and 24 of the Constitution deal with the right against Exploitation .
This includes :
(i) Prohibition of traffic in human beings and forced labour( Article 23);
(ii) Prohibition of employment of children in factories hazardous employments (
Article 24 ) .
4) Right to freedom of Religion.
Article 25 to 28 of the Constitution deal with the Right to freedom of Religion.
This group includes :
(i) Freedom of conscience and free profession practice and propaganda of
religion ( Article 25 );
(ii) Freedom to manage religion affairs ( Article 26 );
(iii) Immunity from payment of taxes for the promotion of any particular religion
( Article 27 );
(iv) Immunity from attendance at religious instruction or worship in educational
institution ( Article 28 ) .
5) Cultural and Educational Rights.
Article 29 to 31 of the Constitution deal with the Cultural and Educational Rights.
These include :
(i) Protection of the language script or culture of the minorities ( Article 29 );
( ii) Right of minorities to establish and administer educational institutions (
Article 30 ) .
The Article 31 is omitted which dealt with compulsory acquisition of property .

6) Right to Property
It has already been pointed out that the right to property, which was
guaranteed by Arts 19 and 31, has been removed from the list of Fundamental
Rights by the 44th Amendment Act.1978 . A new Art. 300A now provides that no
person can be deprived of his property without the authority of law; but that is
not a fundamental Right.
7) Right of Constitutional Remedies.
Article 32 to 35 of the Constitution deal with the Right to Constitutional
Remedies.
This portion provides for the enforcement of the above mentioned
fundamental rights through the judicial writs of habeas corpus, mandamus and
the like.

*****
Q:- What are the seven freedoms guaranteed by the Indian Constitution and what
are the limitations thereon? Explain the scope of reasonable restrictions
permitted by the Constitution.
Article 19 of the Constitution of India has guaranteed to the citizens seven
freedoms in the nature of fundamental rights. These seven freedoms in the
nature of fundamental rights are as follows :--1. Freedom of speech and expression. 2. Freedom of assembly.
3. Freedom of association. 4. Freedom of movement. 5. Freedom of residence
and settlement .
6. Freedom of property. 7. Freedom of profession,occupation,trade or business.
These are popularly known as the seven freedoms, under the Constitution of
India. By the Constitution (44th Amendment ) Act 1978, the right to property has
been omitted from the list of Fundamental rights by deleting from Art. 19 ( 1) .
As a result, since 1978, there are only six freedoms under the Constitution
instead of seven . Since 1978 , right to property is not a fundamental right but it
is effective as Constitutional right because it has been moved to the Article .
Absolute individual rights cannot be guaranteed by any modern State. The
guarantee of each of the above right is, therefore, limited by the Constitution
itself by, certain restrictions which may be imposed by laws made by the State,
in the larger interest of the community. State , in this context , includes not
only the legislative authorities but also Municipalities, Union Boards, etc., under
the control of the Government of India. So, all of these authorities may impose
reasonable restrictions upon the above freedom.

(i)
The Constitution guarantees to the citizens freedom of speech and
expression .
But this freedom is subject to reasonable restrictions imposed by the State to
check
(a) defamation ;
(b) contempt of Court;
(c) decency or morality;
(d) security of the State ;
(e) friendly relation with foreign States;
(f) incitement to an offence;
(g) public order;
(h) sovereignty and integrity of India.

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

licence to say whatever he likes or to commit illegal or immoral acts or to incite
others to overthrow the established government by force or unlawful means.
(ii)
Similarly , the Constitution guarantees to the citizens the freedom of
assembly .
This freedom of assembly is also subject to the restrictions that the assembly
must be peaceful and without arms . And subject to such reasonable
restrictions as may be imposed by the State in the interests of public order. This
right of meeting or assembly shall not abuse other so as to create public
disorder or a breach of the peace.
(iii)

Again , all citizens have the right to form associations or unions.

But this right is also subject to reasonable restrictions imposed by the State in
the interests of the general public. Thus this freedom will not entitle any group of
individuals to enter into a criminal conspiracy or to form any association
dangerous to the public peace or to make illegal strikes or to commit a public
disorder.
(iv)
Similarly , every citizen shall have the right to move freely throughout the
territory of India .
This right shall also be subject to the restrictions imposed by the State in the
interest of the general public . As for example , one can be stopped to move to
any restricted area .

(v)
Likewise , every citizen shall have the right to reside and settle in any
part of the country .
This right shall also be subject to the restrictions imposed by the State in the
interest of the general public or for the protection of any aboriginal tribe .
(vi)
Again , every citizen has the right to practise any profession or to carry
on any occupation trade or business .
But subject to reasonable restrictions imposed by the State in the interests of
the general public and subject to qualifications laid down by the State for
carrying on any profession or technical occupation, or for carrying on any
trade or business by the State itself to the exclusion of the citizens.
Since the guarantee of the Fundamental Rights in Art. 19(1) can be limited
by the power conferred upon the State by imposing restrictions upon each of
these rights , it has been observed by some people that what has been granted
by one hand has been taken away by the other. But this comment is not justified
because in no country the guarantee of fundamental rights is absolute or free
from limitations altogether. The reason is that while the individual is in need of
certain personal freedoms, the society, collectively, is also in need of certain
safeguards in the interest of all, to ensure that the unfettered exercise of
individual rights is not turned into licence and chaos. This should be ensured that
ones unfettered right is not taking away the right of another .The individual
himself will not be safe to exercise his personal rights unless the State, which
represents the society, has certain powers to enforce law and order , morality
and the like to prevent other individuals from wrongly interfering with the
exercise of his rights.

But there is a difference between the Constitution of the U.S.A. and India
as to the manner in which this collective power is secured. In India these very
grounds of restriction are laid down in the Constitution itself.

*****
Q:- Enumerate the Directive Principles of State Policy.
There are three kinds of Directive Principles of State Policy as enumerated in the
Constitution of India from Article No 38 to Article No 51 . They are as follows :1) The directives in the nature of ideals of the State,
2) The directives shaping the policy of the State and
3) The directives in the nature of non-justiciable rights of every citizen

1) The directives in the nature of ideals of the State arei) The State shall strive to promote the welfare of the people by securing a
social order permeated by social, economic and political justice (Art. 38 ).
ii) The State shall endeavour to secure just and humane conditions of work
a living wage a decent standard of living and social and cultural opportunities
for all workers (Art 43).
iii)The State shall endeavour to raise the level of nutrition
living and to improve the health of the people (Art. 47).

and standard of

iv)The State shall endeavour to promote international peace and amity (Art. 51)
v)The State shall direct its policy towards securing equitable distribution of the
material resources of the community and prevention of concentration of
wealth and means of production to the common detriment (Art . 39)
2) Directives in the nature of policy of the State
i) To establish economic democracy and justice by securing certain
economic rights ( to be enumerated under the next head).
ii) To secure

a uniform civil code for the citizen (Art. 44)

iii) To provide free and compulsory primary education ( Art. 45)

iv) To prohibit consumption of liquor and intoxicating
purposes (Art. 47).

drug except for medical

v) To develop cottage industries ( Art. 43).

vi) To organise agriculture and animal husbandry on modern lines (Art. 48).
vii) To prevent slaughter of useful cattle i.e. cows, calves and other milch and
draught, cattle ( Art. 48).
viii) To organise village Panchayats as units of self-government (Art. 40),
ix) To protect and improve the environment and to safeguards forest and wild
life (Art. 48A).
x) To protect and maintain places of historic or artistic interest (Art. 49).
xi) To separate the Judiciary from the Executive (Art. 50).

3) Directives in the nature of non-justiciable rights of every citizeni) Right to adequate means of livelihood (Art. 39 (a))
ii) Right to both sexes to equal pay for equal work (Art. 39 (d))

iii) Right against economic exploitation (Art. 39(e) (f)).

iv) Right to work (Art.41)
v) Right to education (Art41).
*****
Q :- Describe the mode of election of the President .

Article 54 of the Constitution of India provides the mode of election of the

President .
According to this Article the President of India is elected by indirect election by
an electoral college, according to the system of proportionate representation
by means of the single transferable
vote.

Under Article 54 the electoral college shall consist ofa) the elected members of both Houses of Parliament and
(b) the elected members of the Legislative Assemblies of the States.
There shall be uniformity of representation of the different States at the
election, as far as practicable, according to the population and the total number
of elected members of the Legislative Assembly of each State, and parity shall
also be maintained between the States as a whole and the Union.
This system of indirect election of the President has been criticised by some as
falling short of the democratic ideal underlying universal franchise . But this
system of indirect election has been supported by the framers of the
Constitution on the following groundsi) direct election by an electorate of millions of people would mean a
tremendous loss of energy and money ; and
ii) under the system of responsible Government introduced by the Constitution,
the real power would vest in the ministry . Therefore , it would be anomalous to
elect the President directly by the people without giving him real powers.

*****
Q :- Explain the qualifications for being the President or Vice President of India.

Article 58 of the Constitution and Article 66 of the Constitution provide

qualifications to be President and Vice- President , respectively , of India .
In case of President or a Vice President , two qualifications are common , viz,
that the person must be
(a) a citizen of India and
(b) over 35 years of age .
c) Further, in order to be a President, he must be qualified for election as a
members of the House of the people, while in order to be a Vice President he
must be qualified for election as a member of the Council of States.
There are two negative qualifications or disqualifications , apart from the above
positive qualifications. And they are as follows :a) According to the Explanation to the Clause 4 of Article 66 , neither the
President nor the Vice- President shall hold any other of profit (i.e. paid
employment ). But the President of India a sitting Vice President a Governor or
a Minister of the Union or of a State is not disqualified
for being eligible for
the office of Vice-President .
b) Article 59 and 66 provide that neither the President nor the Vice President
shall be a member of either House of Parliament , and if a Member of Parliament
is elected President or Vice President, he shall be deemed to have vacated his
membership on the date of which he enters upon the Office of President or VicePresident, as the case may be .
*****
Q:- Explain the provision as to (a) duration of the Parliament (b) summoning,
prorogation and dissolution of Parliament .
According to the Article 80 of the Constitution of India the Council of States is
not subject to dissolution. It is a permanent body, but 1/3 of its members
retire on the expiration of every second year, in that behalf . It follows that
there will be an election of 1/3 of the Council of States at the beginning of
every third year .
According to the Article 83 of the Constitution of India the normal life of
the House of the People is 5 years , but it may be dissolved earlier by the
President under Article 85 (2) (b) of the Constitution of India .
On the other hand , under proviso to Article 83 (2) , the President has also
the power to extend the normal duration of Parliament (i.e., the period of 5
years ) in case of a Proclamation of Emergency, i.e. by a period of one year at
a time and not extending beyond 6 months after the Proclamation ceases to
operate.

i) Summon either or both Houses of Parliament to meet at such time

and place as he thinks fit, subject to the condition that not more than 6 months
shall intervene between the last sitting of one session and the first sitting of
another; ii) Prorogue the Houses; iii) Article 85 of the Constitution of India
further provides that the President may dissolve the Houses of the
People . These powers will, of course, be exercised by the President with the
advice of the Ministry, or more accurately , of the Prime Minister, as in England .
The power of adjournment as in England belongs to the Houses
themselves.
*****
Q:- what are the qualifications and disqualifications for membership of
Parliament? Can a person be a member both of Parliament and of a House of the
Legislature of a State?
Article 84 of the constitution of India provides the qualification for being member
of Parliament . According to this Article a person shall not be qualified to be
chosen to fill a seat in Parliament unless he
a) is a citizen of India , and makes and sub-scribes before some person authorized
in that behalf by the Election Commission an oath or affirmation according to the
form set out for the purpose in the Third Schedule ;
b) is , in the case of a seat in the Council of States , not less than 30 years of age
and not less than 25 years of age in the case of the House of the People ; and
c) possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament .
Article 102 of the constitution of India provides the disqualifications for
membership.
According to this Article a person shall be disqualified for being chosen as, and
for being a member of either House of Parliament .
a) If he holds any office of profit under the Government of India or the
Government of any State other than an office declared by Parliament by law not
to disqualify its holder;
b) if he is of unsound mind and stands so declared by a competent Court ;
c) if he is an undischarged insolvent;
d) If he is not a citizen of India or has voluntarily acquired citizenship of a
foreign State or is under acknowledgment of allegiance or adherence to a
foreign State ;
e) If he is so disqualified by or under any law made by Parliament.
It has also been explained by the Article 102 that for the purpose of this clause a
person shall not be deemed to hold an office of profit

under the Government of India or the Government of any State by reason only
that he is a minister either for the Union or for any State.
Article 103 says that if any question arises as to whether a member of either
House of Parliament has become subject to any of the above disqualifications ,
the question shall be referred for the Presidents decision and his decision shall
be final . Art. 103 further says that before giving any decision on any such
question , the President shall obtain the opinion of the Election Commission and
shall act according to such opinion .

*****

Q:- Discuss the power of President to promulgate Ordinances .

Alike Article 213 of the Constitution of India which provides the power of
Governor to promulgate Ordinances during recess of Legislature , Article 123 of
the Constitution also provides the Power of President to promulgate
Ordinances during recess of Parliament .
According to the Clause (1) of Article 123 if at any time, except when both
Houses of Parliament are in session, the President is satisfied that
circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinance as the circumstances appear to him to
require.
Clause (2) says that the Ordinances promulgate under this article shall have
the same force and effect as an Act of Parliament , but every such Ordinancea) shall be laid before both Houses of Parliament and shall cease to
operate at the expiration of six weeks from the reassembly of Parliament, or, if
before the expiration of that period resolutions disapproving it are passed by
both Houses, upon the passing of the second of those resolution ; and
b) may be withdrawn

at any time by the President.

It has also been explanation by the Article 123 that where the Houses of
Parliament are summoned to reassemble on different dates, the period of six
weeks shall be reckoned from the later of those dates for the purposes of this
clause.
Clause 3 provides that if and so far as an Ordinance under this article makes
any provision which Parliament would not under this Constitution be
competent to enact, it shall be void .

In the case of A.K. Roy Vs. Union of India it was held that the power of President
or Governor to issue an Ordinance is a legislative power conferred by the
Constitution itself .

Q :- Discuss the constitution of the Supreme Court. Explain the provision relating to the
appointment and tenure of the Judges of the Supreme Court of India .
Article 124 of the Constitution of India provides establishment and constitution
of Supreme Court of India .
According to this Article the Supreme Court stands at the head of the Judicial
system of India. Parliament has the power to make laws regulating the
constitution, organisation, jurisdiction and powers of Supreme Court . Subject to
such legislation, the Supreme Court consists of the Chief Justice of India and ,
according to the amendment of 1986 , not more than twenty five other Judges .
Article 124 further provides that every Judge of the Supreme Court shall be
appointed by the President of India. The President shall, in this matter consult
with such of the Judges of the Supreme Court and of the High Courts in the States
as the President may deem necessary for the purpose .other persons besides
taking the advice of his Ministers. In the matter of appointment of the Chief
Justice of India , he shall consult such Judges of the Supreme Court and of the
High Court as he may deem necessary. The above provision , thus ensured
independence of Judiciary by renouncing the mode of appointment of Judge by
the Executive and also tried to make it free from being committed Judiciary .
A person shall not be qualified for appointment as a Judge of the Supreme
Court unless he is
( i ) a citizen of India ; and

(ii) a distinguished jurist ; or

(iii) has been an Advocate of a High Court or of two or more such Courts in
succession for at least 10 years, or
(iv) has been for at least five years a Judge of a High Court or of two or more such
Courts in succession .

No minimum age is prescribed for appointment as a Judge of the Supreme

Court nor any fixed period of office. Once appointed, a Judge of the Supreme
Court may cease to be so, on the happening of any one of the following
contingencies:

a) on attaining the age of 65 years ;

b) on resigning his Office by writing addressed to the President ;
c) on being removed by the President upon an address to that effect being
passed by a special majority of not less than two thirds of the members of that
House present and voting in each House of Parliament .

*****

Q :- What are Money Bills? How shall they be passed under the Constitution of
India .

Article 110 of the Constitution of India defines Money Bill . This Article says that
a Bill is deemed to be a Money Bill If it contains only provisions relating to all or
any of the following matters :

a) the imposition , abolition, remission, alteration or regulation of any tax;

b) the regulation of the borrowing of money or giving of any guarantee by the
Government of India , or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government of India ;
c) the custody of the Consolidated Fund of the Contingency Fund of India the
payment of moneys into or the withdrawal of moneys from any such fund;

d) the appropriation of moneys out of the Consolidated Fund of India

e) the declaring of any expenditure to be expenditure charged on the
Consolidated Fund of India or the increasing of the amount of any such
expenditure ;
f) the receipt of money on account of the consolidated Fund of India or the
public account of India or the custody or issue of such money or the audit of
the accounts of the Union or of a State; or
g) any matter incidental to any of the matters specified in (a) to (f) .

A bill shall not be deemed to be a money Bill by reason only that it provides for
the imposition of fines or other pecuniary penalties , or for the demand or
payment of fees for licences or fees for services rendered , or by reason that it
provides for the imposition , abolition , remission , alteration or regulation of any
tax by any local authority or body for local purposes .

If any question arises whether a Bill is a Money Bill or not the decision of the
Speaker of the House of the People for of the Legislative Assembly in the case
of State Legislature thereon shall be final . When a Bill is transmitted to the
Upper House of the Legislature or is presented for the assent of the President or
of the Governor in the case of a State , it shall bear the endorsement of the
Speaker of the Lower House that it is a Money Bill.

Article 109 of the Constitution laid down the special procedure in

respect of Money Bills . The following is the procedure for the passing of Money
Bills in Parliament :

A Money shall not be introduced in the Council of States.

After a Money Bill has been passed by the House of the People it shall
be transmitted to the Council of States for its recommendations and the Council
of States shall within as period of fourteen days from the date of receipt of the
Bill return the Bill to the House of the people with its recommendations.

If the House of the people accepts any of the recommendations of the

Council of the States , the Money Bill shall be deemed to have been passed by
both Houses with the amendments recommended by the Council of States and
accepted by the House of the People.

If the House of the People does not accept any of the recommendations
of the Council of States the Money Bill shall be deemed to have been passed by
both Houses in the form in which it was passed by the House of the People
without any of the amendments recommended by the Council of States.

If a Money Bill passed by the House of the People and transmitted to

the Council of States for its recommendations and is not returned to the House
of the People within the said period of fourteen days, it shall be deemed to have
been passed by both houses at the expiration of the said period in the form in
which it was passed by the House of the People .
*****
Q:- Discuss the power of Governor to promulgate Ordinances .
Article 213 of the Constitution of India provides the power of
Governor to promulgate Ordinances during recess or Legislature .
According to this Article 213 if at any time, except when the Legislative
Assembly of a State is in session, or where there is a Legislative Council in a
State except when both Houses of the Legislature are in session, the Governor
is satisfied that circumstances exist which render it necessary for him to
take immediate action, he may promulgate such Ordinances as the
circumstances appear to him to require.
It has also been provided that the Governor shall not, without
instructions from the President , promulgate any such Ordinance ifi) a Bill containing the same provisions would under this Constitution have
required the previous sanction of the President for the introduction thereof
into the Legislature ; or
ii) he would have deemed it necessary to reserve a Bill containing the same
provisions for the consideration of the President; or
iii) an Act of the Legislature of the State containing the same provisions
would under this Constitution have been invalid unless, having been
reserved for the consideration of the President, it had received the assent of
the President.

An Ordinance promulgated under this article shall have the same force and
effect as an Act of the Legislature of the State assented to by the Governor, but
every such Ordinance-

i) shall be laid before the Legislative Assembly of the State , before both the
Houses , and shall cease to operate at the expiration of six weeks from the
reassembly of the Legislature, or if before the expiration of that period a
resolution disapproving it is passed by the Legislative Assembly and agreed to
by the Legislative Council, if any, upon the passing of the resolution or, as the
case may be, on the resolution being agreed to by the Council; and
ii) may be withdrawn

at any time by the Governor.

Explanation to the Article 213 says that where the Houses of the Legislature
of a State having a Legislative Council are summoned to reassemble on
different dates, the period of six weeks shall be reckoned from the later of
those dates for the purposes of this clause.
If and so far as an Ordinance under this article makes any provision which
would not be valid if enacted in an Act of the Legislature of the State assented
to by the Governor , it shall be void.
It has further been provided that for the purposes of the provisions of this
Constitution relating to the effect of an Act of the Legislature of a State
which is repugnant to an Act of Parliament or an existing law with respect to
a matter enumerated in the Concurrent List, an Ordinance promulgated under
this article in pursuance of instructions from the President shall be deemed to
be an Act of the Legislature of the State which has been reserved for the
consideration of the President and assented to by him.
Q :- Discuss the constitution of the Supreme Court. Explain the provision relating to the
appointment and tenure of the Judges of the Supreme Court of India .
Article 124 of the Constitution of India provides establishment and constitution of
Supreme Court of India .
According to this Article the Supreme Court stands at the head of the Judicial
system of India. Parliament has the power to make laws regulating the
constitution, organisation, jurisdiction and powers of Supreme Court . Subject to
such legislation, the Supreme Court consists of the Chief Justice of India and ,
according to the amendment of 1986 , not more than twenty five other Judges .
Article 124 further provides that every Judge of the Supreme Court shall be
appointed by the President of India. The President shall, in this matter consult
with such of the Judges of the Supreme Court and of the High Courts in the States
as the President may deem necessary for the purpose .other persons besides
taking the advice of his Ministers. In the matter of appointment of the Chief
Justice of India , he shall consult such Judges of the Supreme Court and of the
High Court as he may deem necessary. The above provision , thus ensured
independence of Judiciary by renouncing the mode of appointment of Judge by
the Executive and also tried to make it free from being committed Judiciary .
A person shall not be qualified for appointment as a Judge of the Supreme
Court unless he is

( i ) a citizen of India ; and (ii) a distinguished jurist ; or (iii) has been an

Advocate of a High Court or of two or more such Courts in succession for at least
10 years, or
(iv) has been for at least five years a Judge of a High Court or of two or more such
Courts in succession .
No minimum age is prescribed for appointment as a Judge of the Supreme
Court nor any fixed period of office. Once appointed, a Judge of the Supreme
Court may cease to be so, on the happening of any one of the following
contingencies:
a) on attaining the age of 65 years ;
b) on resigning his Office by writing addressed to the President ;
c) on being removed by the President upon an address to that effect being
passed by a special majority of not less than two thirds of the members of that
House present and voting in each House of Parliament .
*****
Q:- Discuss the functions and jurisdiction of the Supreme Court of India . or The Supreme
Court in the Indian Union has more powers than any Supreme Court in any part of the World
Comment.
The jurisdiction of the Supreme Court is three-fold, namely ,
(a) Original jurisdiction .
Article 131 of the Constitution of India deals with the original jurisdiction of the
Supreme Court of India ;
(b) Appellate jurisdiction .
The appellate jurisdiction of the Supreme Court of India is provided by the
Articles 132, 133, 134,136 and 138 of the Constitution of India ; and
(c) Advisory jurisdiction .
Advisory jurisdiction of the Supreme Court of India is provided by the Article 143
of the Constitution of India .
In the Constituent Assembly Sir Alladi Krishnaswami Ayyar observed that
the supreme Court in the Indian Union has more powers than any supreme Court
in any part of the World. Because the Supreme Court of India is guardian of the
Constitution . The expression guardian of the Constitution is used in a federal
country in the sense that the Supreme Court solves the disputes with regard to
the distribution of powers between the Union and the States and interprets as
well as enforces the provisions of the written Constitution upon all the

constituent bodies of the State . It is also the highest Court of appeal in the
country, to hear appeals from all causes, subject, of course to certain limitations.
Original jurisdiction :According to the Article 131 of the Constitution of India subject to the provisions
of the Constitution the Supreme Court shall to the exclusion of any other Court ,
have original Jurisdiction in any dispute ---a) between the Government of India and one or more States ; or
b) between the Government of India and any State or States on one side and one
or more other States on the other ; or
c) between two or more States .
It is also provided by the Art.131 that the Supreme Court shall have no
jurisdiction to try any dispute relating to any State, if such jurisdiction is barred
by the provisions of any treaty , agreement engagement or the like.
Appellate jurisdiction:The Appellate jurisdiction of the Supreme Court may be divided under three
heads:
i) Under Article 132 of the Constitution of India if any substantial question of
law as to the interpretation of the constitution is involved , an appeal shall lie to
the Supreme Court from any judgment or final order of any High Court either on
the certificate of the High Court that such a question is involved, or by special
leave of the Supreme Court .
ii) Under Article 133 of the Constitution of India in ordinary civil cases, where no
constitutional question is involved an appeal shall lie to Supreme Court only if
the High Court certifies-.
a) that the case involves a substantial question of law of general importance ;
and
(b) that in the opinion of the High Court the said question needs to be decided
by the Supreme Court.
iii) Under Article 134 of the Constitution of India in criminal cases, an appeal
shall lie to the Supreme Court from the decision of a High Court, if the High Courta) has an appeal reversed an order of acquittal of an accused person and
sentenced him to death ; or
(b) has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and sentenced
him to death ; or
( c) certifies that the case is a fit one for appeal to the Supreme Court .

Under Article 136 of the Constitution of India the Supreme Court may also grant
special leave to appeal in any case not covered by Articles 132, 133 and 134 . This
jurisdiction is very wide, inasmuch as it relates not only to judgments or orders of
the High Courts but also to those of any tribunal in the territory of India
excepting military tribunals.
According to the Art. 138 of the Constitution of India , besides the above powers
enumerated by the Constitution , Parliament is empowered
to confer additional jurisdiction upon the Supreme Court as regards any matter
included in the Union Legislative List .
Advisory jurisdiction:Article 143 provides advisory jurisdiction and says that besides the above regular
jurisdiction of the Supreme Court, it shall have an advisory jurisdiction, to give
its opinion on any question of law or fact of public importance as may be
referred to its consideration by the President .
As for example , a reference was made to the Supreme Court by the Central
Government as to whether the structure in Ayodhya was a temple or a mosque ,
for its opinion on the question of law and fact of public importance .
*****
Q:- Discuss the provision as to appointment and tenure of High Court Judges.
According to the Article 217 of the Constitution of India every Judge of a High
Court shall be appointed by the President. In making the appointment the
President shall consult the Chief Justice of India, the Governor of the State and
also the Chief Justice of that High Court in the matter of appointment of a Judge
other than Chief Justice.
A person shall not be qualified for appointment as Judge of a High Court
unless he is citizen of India anda) has for at least ten years held judicial office in the territory of India ; or
b) has for at least ten years been an advocate of a High Court or two more such
Courts in succession.
According to the Art. 217 (3) of the Constitution of India a permanent Judge of
the High Court shall hold office until the age of 62 years . If any question arises
as to his age of a Judge of a High Court , the question shall be decided by the
President, in constitution with the chief Justice of India and the decision of the
President shall be final .
In the case of an additional or acting Judge , as provided in Article 224 , and in
any other case , he shall hold office until attains the age of sixty-two years .
Provided that

(i)
A Judge may by writing under his hand addressed to the President resign
his office ;
(ii)
The office of a Judge shall be vacated by his being by the President to be a
a Judge of the Supreme Court or by his being transferred to any other High
Court within the territory of India ;
(iii)
A Judge may be removed from his office by the President in the manner
provided in clause (4) of Article 124 on an address of both Houses of Parliament
supported by the vote of 2/3rd of the members present , on the ground of
proved misbehaviour or incapacity. The mode of removal of a Judge of the High
Court shall be the same as that of a Judge of the Supreme Court .
*****
Q :- Describe the administrative functions of the High Courts, and the power of
superintendence over subordinate Courts and tribunals.
Article 227 of the Constitution of India provides the power of
superintendence over all courts by the High Court .
Under this Article every High Court shall have the power of superintendence
over all Courts and tribunals throughout the territories in relation to which it
exercises its jurisdiction .
The power of superintendence of the High Court is a very wide power inasmuch
as it extends to all Courts and tribunals within the State, whether such Court or
tribunal is subject to the appellate jurisdiction of the High Court or not .

That apart , the power of superintendence would include a revisional

jurisdiction to intervene in cases of gross injustice or non-exercise or abuse of
jurisdiction , even though no appeal or revision against the orders of such
tribunal was otherwise available.
The power of superintendence of the High Court includes the power to ----i) call for returns;
ii) make and issue general rules and prescribe forms for regulating the practice
and proceedings of such courts; and
iii) prescribe forms in which books, entries and accounts shall be kept by the
officers of such courts.
The High Court may also and settle tables of fees allowed to the sheriff and all
clerks and officers of courts; and to attorneys, advocates and pleaders practising
therein.
*****

Q:- Explain the distribution of legislative powers between the Union and the
States under the Constitution . Discuss the Legislative relations between the
Union and the States in India .
According to the Art 246 of the Constitution of India there is a threefold
distribution of legislative powers between the Union and the States. There are
three Legislative Lists in Sch. VII of the Constitution.
List I or the Union List contains subject over which the Union shall have
exclusive power of legislation This list includes 97 items or subjects. They are
defence, foreign affairs, banking, currency and coinage, Union duties and taxes
and etc.
List II or the State List now comprises of 66 items or entries over which the
State Legislature shall have exclusive power of legislation, such as public order
and police, local government , public health and sanitation, agriculture, forests
and fishers, education, State taxes and duties and etc.
List III gives concurrent powers to the Union and the State Legislatures over 47
items, such as Criminal law and procedure , Civil procedure, marriage, contacts,
torts, trusts, welfare of labour, social insurance, economic and social planning
and etc.
In the event of overlapping of a matter as between the three Lists,
predominance has been given to the Union Legislature. Thus, the power of the
State Legislature to legislate with respect to matters enumerated in the State
List has been made subject to the power of the Union Parliament to legislate
in respect of matters enumerated in the Union and Concurrent Lists. In case of
repugnancy between a law of a State and a valid Union legislation relates to a
concurrent subject, the State legislation may prevail notwithstanding, such
repugnancy, if the State law was reserved for the President and has received
his assent.
As for example , some provisions of the West Bengal Land Reforms Act are
repugnant to the Constitutional provision of right to property but since the Land
Reforms Act has obtained Presidents assent , these provisions will prevail .
Under the Act of 1935, the residual powers were vested neither in the
Federation not in the State but were placed at the hands of the GovernorGeneral . But the Article 248 of the Constitution vests the residuary power i.e.
the power to legislate in respect of any matter not enumerated in any one of
the three Lists,- in the Union . The foregoing is an account of the division of
legislative powers between the Union and the States with reference to the
subjects of legislation.
According to the Clause 4 of Article 246 of the Constitution of India the territorial
jurisdiction is also divided . A State Legislature may make laws for that State
only, but the Union Parliament may make laws for the whole of the territory of
India or any part thereof. As regards territories not included i.e. a State (e.g., the

Union Territories). Parliament may make laws even with respect to subjects which
are included in the States List .
*****
Q:- What do you mean by Proclamation of Emergency ? Indicate the effects of
such a Proclamation under the Constitution.
Emergencies are of three kinds , firstly , under Article 352 when the security of
India is threatened , secondly , under Article 356 when constitutional machinery
of any State is broken down and thirdly , under Article 360 when financial
stability of India or any part of the territory is threatened .
According to the Article 352 of the Constitution of India Emergency means the
existence of a condition whereby the security of India or any part thereof is
threatened by war or external aggression or armed rebellion. A state of
emergency exists under the Constitution when the President makes a
Proclamation of Emergency. The actual occurrence of war or any internal
violence is not necessary to justify a Proclamation of Emergency by the
President. The President may make such a Proclamation under Article 352 of the
Constitution if he is satisfied that there is an imminent danger of such external
aggression, and the Courts have no jurisdiction to enquire whether the security
of India has in fact been threatened or not. In other words, the Courts cannot
enquire into the validity of a Proclamation by the President on the ground that
no emergency did exist in fact .
The effects of a Proclamation of Emergency on the working of the Constitution
may be discussed under four heads --a) Executive;
b) Legislative;
c) Financial ; and
d) as to Fundamental Rights.
a) Executive : According to the Article 353 , Clause (a) when a Proclamation of
Emergency has been made the executive
power of the Union shall, during the operation of the Proclamation , extend to
the giving of directions to any State as to be exercised.
In normal times, the Union Executive has the power to give directions to a
State which includes only the matters specified in Arts. 256-257. But under a
Proclamation of Emergency , the Government of India shall acquire the power
to give direction to a State on any matter, so that though the State
Government will not be suspended , it will be under the complete control of
the Union Executive, and the administration of the country, in so far as the
Proclamation goes, will function as under a unitary system wiah local subdivisions.

b) Legislative : According to the Article 83 (2) while a Proclamation of

Emergency is in operation , Parliament
may, by law, extend the normal life of the House of the People ( 5 years) for a
period not exceeding one year at a time and not extending in any case beyond a
period of 6 months after the Proclamation has ceased to operate .
As soon as a Proclamation of Emergency is made the Legislative Competence
of the Union Parliament shall be automatically widened and the limitation
imposed as regards List II, by Article 246 (3) , shall be removed. In other words,
during the operation of the Proclamation of Emergency, Parliament shall have
the power to legislate as regards List II ( State List) as well under Article 250 ,
Clause (1). Though the Proclamation shall not suspend the State Legislature, it
will suspend the distribution of legislative powers between the Union and the
State, so far as the Union is concerned,- so that the Union Parliament may meet
the emergency by legislation over any subject as may be necessary , as if the
Constitution were unitary.
According to the Article 353 , Clause(b) in order to carry out the laws made
by the Union Parliament under its extended jurisdiction as outlined above
Parliament shall also have the power to make laws conferring powers, or
imposing duties as may be necessary for the purpose, upon the Executive of the
Union .
c) Financial :Under Article 354 the during operation of the Proclamation of
Emergency, the President shall have the Constitutional power to modify the
provisions of the Constitution relating to the allocation of financial relations
between the Union and the States , by his own Order. But no such Order shall
have effect beyond the financial year in which the Proclamation itself ceases
to operate , and , further, such Order of the President shall be subject to
approval by Parliament.
d) As regards Fundamental Rights: Articles 358-359 lay down the effects of a
Proclamation of Emergency upon fundamental rights.
While Art 358 provides that the State would be free from the limitations
imposed by Art. 19, so that these rights would be non-existent against the State
during the operation of a Proclamation of Emergency made on the grounds of
War or extend aggression under Art. 359. the rights themselves would not be
suspended but the right to move the Courts for the enforcement of the
fundamental rights other than Arts. 20 and 21, would remain suspended by
Order of the President. On the other hand, while the suspension under Art. 358
will continue during the operation of the Proclamation , the duration of the
suspension under Art. 359 may be made shorter by the Presidents Order, so
that it may not continue beyond the necessities of the case. In short, the
provisions of Art. 352 and its allied article arm the centre with extraordinary
powers not only against the units of the Federation but also against the people.

*****

Q :- Discuss the provisions of the Constitution of India, for carrying on the

administration of a State in case of failure of the constitutional machinery .
Article 356 deals with the situation of failure of Constitutional
machinery in States .
According to this Article ---(1) If the President on receipt of report from the Governor of a State or
otherwise, is satisfied that a situation has arisen in which the Government of the
State cannot be carried on in accordance with the provisions of this
Constitution, the President may by Proclamation(a)
assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor or
any body or authority in the State other than the Legislature of the State;
(b)
declare that the powers of the Legislature of the State shall be exercisable
by or under the authority of Parliament ;
(c) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or in part the
operation of any body or authority in the State.
It has also been provided that nothing in this clause shall authorise the
President to assume to himself any of the powers vested in or exercisable by a
High Court, or to suspend in whole or in part the operation of any provision of this
Constitution relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) Every Proclamation issued under this article shall be laid before
each House of Parliament and shall, except where it is a Proclamation
revoking a previous Proclamation cease to operate at the expiration of two
months unless before the expiration of that period it has been approved by
resolution s of both Houses of Parliament.

Provided that if any such Proclamation , not being a Proclamation , is

issued at a time when the House of the People is dissolved or the dissolution of
the House of the People takes place during the period of two months referred
to in this clause, and if a resolution approving the Proclamation has been
passed by the Council of States, but no resolution with respect to such
Proclamation has been passed by the House of the People before the expiration
of that period, the Proclamation shall cease to operate at the expiration of
thirty days from the date on which the House of the people first sits after its
reconstitution unless before the expiration of the said period of thirty days a
resolution approving the Proclamation has been also passed by the House of the
People.
(4) A Proclamation so approved shall, unless revoked, cease to operate
on the expiration of a period of six months from the date of issue of the
Proclamation :
I has further been provided that if and so often as a resolution approving
the continuance in force of such a Proclamation is passed by both Houses of
Parliament , the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which under this clause it would
otherwise have ceased to operate, but no such Proclamation shall in any case
remain in force for more than three years.
Provided further that if the dissolution of the House of the People takes
place during any such period of six months and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States, but no resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the said period,
the Proclamation shall cease to operate at the expiration of thirty days from the
date on which the House of the people first sits after its reconstitution unless
before the expiration of the said period of thirty days a resolution approving
the continuance in force of the Proclamation has been also passed by the House
of the People.
It is also provided that notwithstanding anything contained in clause (4), a
resolution with respect to the continuance in force of a Proclamation approved
under clause (3) for any period beyond the expiration of one year from the date
of issue of such Proclamation shall not be passed by either House of Parliament
unless(a)
a Proclamation of Emergency is in operation, in the whole of India or, as
the case may be, in the whole or any part of the State, at the time of the passing
of such resolution , and
(b)
the Election Commission certifies that the continuance in force of the
Proclamation approved under clause (3) during the period specified in such
resolution is necessary on account of difficulties in holding general elections to
the Legislative Assembly of the State concerned .
*****

Q:- What is the Constitutional provision regarding financial Emergency . What are
the effects of proclamation of financial Emergency.

Article 360 of the Constitution deals with financial emergency .

According to Clause 1 of this Article , If the President is satisfied that a
situation has arisen whereby the financial stability or credit of India or any part
of the territory thereof is threatened, he may by a Proclamation make a
declaration to that effect.
Clause 2 speaks that a Proclamation issued under clause (1)a) may be revoked or varied by a subsequent Proclamation and
b) shall cease to operate at the expiration of two months , unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament .
It has further been provided that if any such Proclamation is issued at a time
when the House of the People has been dissolved or the dissolution of the House
of the People takes place during the period of two months referred to in subclause (c), and if a resolution approving the Proclamation has been passed by
the Council of States, but no resolution with respect to such Proclamation has
been passed by the House of the People before the expiration of that period ,
the Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution,
unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People.

Clause 3 provides that during the period any such Proclamation as is mentioned
in clause (1) is in operation, the executive authority of the Union shall extend to
the giving of directions to any State to observe such canons of financial
propriety as may be specified in the directions, and to the giving of such other
directions as the President may deem necessary and adequate for the
purpose.
Clause 4 says that ---(a) any such direction may include-

i) a provision requiring the reduction of salaries and allowances of all or any

salaries and allowances of all or any class of persons serving in connection
with the affairs of a State;

ii) a provision requiring all Money Bills or other Bills to which the provisions of
Article 207 apply to be reserved for the consideration to the President after
they are passed by the Legislature of the State ;
(b)It shall be competent for the President during the period any
Proclamation issued under this article is in operation to issue directions for the
reduction of salaries and allowances of all or any class of persons serving in
connection with the affairs of the Union including the Judges of the Supreme
Court and the High Courts.
*****
Q:- Discuss the power and the procedure of amendment of the Constitution .

Article 368 of the Constitution provides the Power to amend it and the
procedure thereof .
According to the Clause 1 of the Article 368 , notwithstanding anything in this
Constitution, Parliament may in exercise of its constituent power amend by
way of addition variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.
Clause 2 says that an amendment of this Constitution may be initiated only by
the introduction of a Bill for the purpose in either House of Parliament and
when the Bill is passed in each House by a majority of the total membership
of that House by a majority of not less than two- thirds of the members of that
House present and voting , it shall be presented to the President who shall
give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill.
It has also been provided in the Article 368 that if such
make any change in-

amendment seeks to

a)Article 54 or election of President , Article 55 or manner of election of

President , Article 73 or the extent of executive power of the Union , Article 162
the extent of executive power of the State and Article 241 or High Courts for
Union territories, or
b) Chapter IV of Part V or the provisions regarding Union Judiciary, Chapter V of
Part VI or the provisions regarding Subordinate Courts , or Chapter I of Part XI or
the provisions regarding Legislative Relations and distribution of legislative
powers , or
c) any of the Lists in the Seventh Schedule i.e the items of Union list, or
d) the representation of States in Parliament, or
e) the provisions of this article,

the amendment shall also require to be ratified by the Legislature of not less
than one-half of the States by resolutions to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented to
the President for assent.
According to the Clause 3 of the Article that nothing in Article 13 or the
laws inconsistent with or in derogation of the fundamental rights , shall apply to
any amendment made under this article .
In the case of L . Chandra Kumar v. Union of India it was also held that the
Articles-368 and 13 as well as the power of judicial review, is a basic and
essential feature of the Constitution .
Clause 4 of the Article says that no amendment of this Constitution ,
including the provisions of Part III or the provisions of fundamental rights , made
or purporting to have been made under to have been made under this article
,whether before or after the commencement of Section 55 of the Constitution
( Forty second Amendment ) Act, 1976, shall be called in question in any Court
on any ground.
Clause 5 of the Article has lastly declared that for the removal of doubts that
there be no limitation whatever on the constituent power of Parliament to
amend by way of addition, variation or repeal the provisions of this Constitution
under this article.
In the case of Minerva Mills Ltd. v. Union of India , it was held by the
Supreme Court that the Article 368 (4) and (5) (as introduced by
42nd Amendment Act) is unconstitutional as damaging the basic and essential
features of the Constitution .
In the case of Coelho V. State of T.N., it was further held that the Parliament
cannot increase the amending power by amendment of Article 368 to confer on
itself unlimited power of amendment and destroy and damage the
fundamental of the Constitution , nor can it use Article 31-B to achieve the same
purpose . Article 31-B therefore cannot go beyond the limited amending power
contained in Article 368 .
And in the case of Kesavananda Bharati v. State of Kerala it was held by a
landmark Judgment that any amendment that abridges the basic features of the
Constitution shall be deemed to be ultra vires.
There have been several challenges to Constitutional Amendments after 1973
either on the ground that they violate a basic feature or that procedure laid
down in Article 368 has not been followed.
Power of amendment under Article 368 is a derivative power and not unlimited.
Though amendments can affect ordinary principle of equality, basic features of
Constitution cannot be anended.

*****
Attorney General for India .
Answer :Article 76 of the Constitution of India contains the provisions regarding
the Attorney General for India . According to this Article ---

The President shall appoint a person who is qualified to be appointed a Judge

of the Supreme Court to be Attorney -General for India.

It shall be the duty of the Attorney-General to give advice to the Government

of India upon such legal matters, and to perform such other duties of a
legal character , as may from time to time be referred or assigned to him by
the President, and to discharge the functions conferred on him by or under
this Constitution o any other law for the time being in force.

In the performance of his duties the Attorney General shall have

audience in all courts in the territory of India.

right of

The Attorney-General shall hold office during the pleasure of the President,
and shall receive such remuneration as the President may determine.

Article 88 says about the rights of Attorney General as respects Houses .

According to this Article the Attorney- General of India shall have the right to
speak in, and otherwise to take part in the proceedings of, either House, any
joint sitting of the Houses, and any committee of Parliament of which he may
be named a member , but shall not by virtue of this article be entitled to vote.

*****

Comptroller and Auditor General of India.

Article 148 provides that --(1) There shall be a Comptroller and Auditor- General of India who shall be
appointed by the President by warrant under his hand and seal and shall only
be removed from office in like manner and on the like grounds as a judge of the
Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-General of India
shall, before he enters upon his office, make and subscribe before the
President, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose in the Third
Schedule.
(3) The salary and other conditions of service of the Comptroller and AuditorGeneral shall be such as may be determined by Parliament by law and, until
they are so determined, shall be as specified in the Second Schedule.
It has also been provided that neither the salary of a Comptroller and Auditor
General not his rights in respect of leave of absence, pension or age of
retirement shall be varied to his disadvantages after his appointment.
(4) The Comptroller and Auditor- General shall not be eligible for further office
either under the Government of India or under the Government of any State
after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law made by
Parliament, the conditions of service of persons serving in the Indian Audit and
Accounts Department and the administrative powers of the Comptroller and
Auditor-General shall be such as may be prescribed by rules made by the
President after consultation with the Comptroller and Auditor-General.
(6) The administrative expenses of the office of the Comptroller and AuditorGeneral, including all salaries, allowances and pensions payable to or in respect
of persons serving in that office, shall be charged upon the Consolidated Fund
of India.
Article 149 provides the duties and powers of the comptroller and
Auditor-General of India . According to this Article the Comptroller and Auditor
General shall perform such duties and exercise such powers in relation to the
accounts of the Union and of the States and of any other authority or body as
may be prescribed by or under any law made by Parliament and until
provision in that behalf is so made, shall perform such duties and exercise such
powers in relation to the accounts of the Union and of the States as were
conferred on or exercisable by the Auditor General of India immediately before
the commencement of this Constitution in relation to the accounts of the
Dominion of India and of the Provinces respectively.

Article 151 deals with the Audit reports . This Article speaks that--(1) The reports of the Comptroller and Auditor General of India relating to the
accounts of the Union shall be submitted to the President, who shall cause
them to be laid before each House of Parliament.
(2) The reports of the Comptroller and Auditor General of India
relating to the accounts of a State shall be submitted to the Governor of the
State, who shall cause them to be laid before the Legislature of the State.
*****
Advocate General for the State .
Article 165 of the Constitution of India provides that the Governor of each
State shall appoint a person who is qualified to be appointed a Judge of a High
Court to be Advocate-General for the State.
And it shall be the duty of the Advocate General to give advice to the
Government of the State upon such legal matters, and to perform such other
duties of a legal character, as may from time to time be referred or assigned to
him by the Governor, and to discharge the functions conferred on him by or
under this Constitution or any other law for the time in force.
Further , the Advocate- General shall hold office during the pleasure of the
Governor, and shall receive such remuneration as the Governor may determine.
*****
Inter-State Council .
With an eye to ensure co-ordination between the States Article 263 of the
Constitution provides for establishment of inter-State Council .
According to the Article 263 , if at any time it appears to the President that the
public interests would be served by the establishment of a Council charged with
the duty ofa) inquiring into and advising upon disputes which may have arisen between
States:
b) investigating and discussing subjects in which some or all of the States, or
the Union and one or more of the States, have a common interest; or
c) making recommendations upon any such subject and, in particular,
recommendations for the better co-ordination of policy and action with respect to
that subject,
it shall be lawful for the President by order to establish such a Council, and
to define the nature of the duties to be performed by it and its organisation and
procedure.

*****
Election Commission of India.
Article 324 provides the power of Superintendence, direction and
control of elections by the Election Commission for the sake of real Democracy .
According to this Article ----The Superintendence, direction and control of the preparation of the electoral
rolls for, and the conduct of, all elections to Parliament and to the Legislature of
every State and of elections to the offices of President and Vice President held
under this Constitution shall be vested in a Commission , referred to in this
Constitution as the Election Commission.
The Election Commission shall consists of the Chief Election Commissioners, if
any, as the President may from time to time fix and the appointment of the
Chief Election Commissioner and other Election Commissioners shall, subject to
the provisions of any law made in that behalf by Parliament be made by the
President.

When any other Election Commissioner is so appointed the Chief Election

Commissioner shall act as the Chairman of the Election Commission.
Before each general election to the House of the People and to the Legislative
Assembly of each State, and before the first general election and thereafter
before each biennial election to the Legislative Council of each State having
such Council, the President may also appoint after consultation with the
Election Commission such Regional Commissioners as he may consider necessary
to assist the Election Commission in the performance of the functions conferred
on the Commission by clause.
Subject to the provisions of any law made by Parliament , the conditions of
service and tenure of office of the Election Commissioners and the Regional
Commissioners shall be such as the President may by rule determine:
It has also been provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like grounds as a
Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantages after his appointment:
It has further been provided that any other Election Commissioner or a
Regional Commissioner shall not be removed from office except on the
recommendation of the Chief Election Commissioner.
The President or the Governor of a State shall, when so requested by the
Election Commission, make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary for the discharge of the
functions conferred on the Election Commission .

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

schedule and conducting of elections. And Chief Election Commissioner is
merely the first among equals .
*****
Constitutional right to be included in the electoral roll .
Article 325 provides the Constitutional right to be included in the electoral
roll .
This Article says that no person to be ineligible for inclusion in, or to claim to be
included in a special, electoral roll on grounds of religion, race, caste or sex:
There shall be one general electoral roll for every territorial constituency for
election to either House of Parliament or to the House or either House of the
Legislature of a State and no person shall be ineligible for inclusion in any such
roll or claim to be included in any special electoral roll for any such constituency
on grounds only of religion, race, caste, sex or any of them.

*****

Article 370 of the Constitution of India .

Article 370 of the Constitution of India provides temporary provisions with
respect to the State of Jammu and Kashmir . Article 370 runs thus ----
Notwithstanding anything in this Constitution,a) the provisions of Article 238 shall not apply in relation to the State of Jammu
and Kashmir;
b) the power of Parliament to make laws for the said State shall be limited toI ) those matters in the Union List and the Concurrent List which , in
consultation with the Government of the State, are declared by the President
to correspond to matters specified in the Instrument of Accession governing
the accession of the State to the Dominion of India as the matters with
respect to which the Dominion Legislature may make laws for that State; and
ii) such other matters in the said Lists as with the concurrence of the
Government of the State, the President may by order specify.

Explanation.- For the purposes of this article, the Government of the

State means the person for the time being recognised by the President as the
Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers
for the time being in office under the Maharajas Proclamation dated the fifth
day of March, 1948;
a) the provisions of Article I and of this article shall apply in relation to the
State.
b) such of the other provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may
by order specify.
Provided that no such order which relates to the matters specified in the
Instrument of Accession of the State referred to in paragraph (i) of sub-clause
(b) shall be issued except in consultation with the Government of the State.
Provided further that no such order which relates to matters other than
those referred to in the last preceding proviso shall be issued except with the
concurrence of that Government.
2) If the concurrence of the Government of the State referred to in Paragraph
(ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of
that clause be given before the Constituent Assembly for the purpose of
framing the Constitution of the State is convened, it shall be placed before such
Assembly for such decision as it may take thereon.
3) Notwithstanding anything in the foregoing provisions of this article, the
President may, by public notification, declare that this article shall cease to be
operative or shall be operative only with such exceptions and modifications and
from such date as he may specify.
Provided that the recommendation of the Constituent Assembly of the State
referred to in clause (2) shall be necessary before the President issues such a
notification.
By the Constitution Amendment ( seventh) Act , 1956 , the Part- vii , containing
Article 238 of the Constitution has been repealed or omitted. The Constitution
( Application to Jammu and Kashmir ) Order , 1954 , has been amended from time
to time .
*****