Salient Features of Indian Constitution 1.

Lengthiest Constitution of the World Originally 395

Arts, Presently 443 Arts divided into 26 Parts and 12 Schedules 2. Establishment of a Sovereign,
Socialist, Secular, Democratic Republic Sovereign No more dependent upon any outside authority,
Socialist Some form of ownership of means of production and distribution by State, Secular No
recognized religion of State, Democratic rulers elected by people and responsible to them, Republic
there shall be an elected Head of State who shall be the chief executive Head i.e. the President in
India 3. Establishment of Parliamentary form of Govt. essence responsibility to the legislature.
President Constitutional Head. Real executive power vested with CoM whose head is PM. CoM
responsible to the lower house i.e. Lok Sabha. Members of Lok Sabha elected directly by people for 5
yrs through adult franchise. Thus responsible Govt. 4. Unique mixture of rigidity and flexibility
Procedure of amendmt of Const. difficult. Written const. amended 98 times during 62 years. 5.
Fundamental Rights Part III of the Const. prohibitions against the State 6. Directive principles of
State Policy Part IV of the Const. Aims and Objectives to be taken up by the States in the
governance of the Country 7. Establishment of Federation with strong centralizing tendency During
emergency distribution of powers b/w Centre and States changes. Central govt. empowered to give
directions to States. 8. Adult Suffrage Every man & woman above 18 yrs has right to vote 9.
Independent Judiciary custodian of rights of citizens. Determines the limits of power of Centre and
States 10. Single citizenship for whole of India unlike America 11. Fundamental duties 10 of them
introduced by 42nd Amdmt. basic norms of democratic conduct and behavior for citizens. 11 th added
by 86th amdmt. In 2002.
Financial Relations b/w Union and States Distribution of sources of revenue b/w Centre and the
States based on Scheme laid down in the Govt. of India Act, 1935. Art. 280 Provides for apt. of Fin.
Comm. within 2 yrs of the commencement and thereafter at every 15 yrs or earlier if President
considers necessary. Fin. Comm. to recommend dist. Of taxes b/w union & States and principle on
which Union Govt. was to make grants-in-aid to the States.
Taxation only by authority of law Art 265 No tax can be levied or collected other than by
authority of law.
Distribution of revenue b/w Union & the States - 1. Duties levied by the Union but
Collected and Appropriated by the States: Stamp duties and duties of excise on the medical and
toilet preparations - Art. 268 2. Taxes Levied and Collected by the Union but Assigned to the
States within which they are leviable: (a) Succession duty in respect of property other than
agriculture land (b) Estate duty in respect of property other than agricultural land (c) Terminal taxes
on goods or passengers carried by railways, sea or air (d) Taxes on railway fares and freights (e) Taxes
on transactions in stock exchanges (f) Taxes on sale and purchase of newspapers, including
advertisements published therein (g) Taxes on the sale and purchase of goods other than
newspapers, where such purchase takes place in the course of inter-state trade or commerce. - Art.
269 (h) Taxes on the consignment of Goods taking place in the course of inter-state trade or
commerce added by 46th amdmt. Art 269 (1) 3. Taxes Levied and collected by the Union and
distributed between the Union and the States: taxes on income other than agricultural income
and corporation tax Art. 270 4. Taxes Levied and collected by the Union and may be
distributed between the Union and the States: excise duties as are included in the Union List,
excepting medicinal and toilet preparations. Art. 272 5. Taxes for the purpose of the Union
Surcharge levied by Parliament on duties or taxes mentioned in Art. 269 & 270 will form part of
Consolidated Fund of India. - Art. 271 6. Grants-in-Aid: To states from Union resources (a) U/Art. 273
To states of Assam, Bihar, Orissa & WB in lieu of export duty on jute products. (b) Art. 275 Parliament to may make grants to such States as are in need of financial assistance, particularly for
the promotion of welfare of tribal areas, including special grant to Assam. (c) U/Art. 282 Both the
Union & State make grant for public purpose. The central govt. under this Art. May make grants to
hospitals or schools. 7. Loans: The Union Government may make loan to any State or give
guarantees with respect to loans raised by any States. 8. Although taxes on income, other than
agricultural income, are levied by the Union, yet the State Legislatures can levy taxes on profession,
trade, etc. provided that the total amount of such taxes payable in respect of anyone person should
not exceed Rs. 2500 per month.
Legislative Relations b/w the Union & the States (Articles 245-255): Two kinds
1. With respect to territorial jurisdiction (Doctrine of Territorial Nexus) Art. 245 (1)
jurisdiction of a State Legislature is limited to the territory of that State. Art. 2454 (2) Parliament has
power to legislate i.e. make laws for the whole or any part of the territory of India. Parliament has the
power of extraterritorial legislation which means that laws made by the Union Parliament will govern
not only persons and property within the territory of India, but also Indian subjects resident and their
property situated anywhere in the world.

2. Jurisdiction w.r.t. subject-matter three lists (i) Union List: List I Includes 99 items. Subjects
are of national importance. E.g. defence, armed forces, arms and ammunition, atomic energy, foreign
affairs, coinage, banking and insurance. (ii) State List: List II Comprises 61 items. Subjects of local
importance, e.g. State taxes and duties, police, administration of justice, local self-government, public
health, agriculture, forests, fisheries, industries and minerals. States have exclusive power to make
laws. (iii) Concurrent List: List III consists of 52 items, such as criminal law and procedure, civil
procedure, marriage, contracts, port trusts, welfare of labour, economic and social planning.
Residuary Powers Art. 248 - vests the residuary powers with the Parliament. Courts to determine
finally as to whether a particular matter falls under the residuary power or not.
How the repugnancy of Central & State law is removed? 1. Predominance of Union Law: In
case of over-lapping of a matter between the three Lists, predominance to the Union List over the
State List and Concurrent List and Concurrent List over the State List. 2. Each entry to be
interpreted broadly Calcutta Gas Ltd. vs S. of WB, 1962 SC said widest possible and most
liberal interpretation should be given to each entry. Court should try as far as possible to reconcile
entries and to bring harmony b/w them. When not possible only then overriding power of Union
legislature. UoI vs H.S.Dhillon question on parliaments power to pass wealth-tax act imposing
wealth tax on the assets of a person in agricultural land. Court held if not in List II and III then
parliament competent under residuary power. International Tourism Corp. vs S. of Haryana
Appelants challenged validity of s.3 of Haryana Passenger and Goods Taxation Act, 1952, which
permitted levy of tax on passenger and goods carried on by carriages plying on NHs. Court held State
legislature competent under entry 56 of List II.
Doctrine of Pith and Substance - Pith and substance is a legal doctrine used to determine under
which head of power a given piece of legislation falls. The doctrine is primarily used when a law is
challenged on the basis that one level of government has encroached upon the exclusive jurisdiction
of another level of government. Pith means true nature or essence of something and Substance
means the most important or essential part of something. Doctrine says that where the question
arises of determining whether a particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter. Thus, if the substance falls within Union List,
then the incidental encroachment by the law on the State List does not make it invalid. Profulla
Kumar Mukherjee vs. Bank of Khulna, 1947 Validity of Bengal Money Lenders Act, 1946, which
limited amt. and rate of int. recoverable by a money lender on loan challenged. Privy Council held
that act in pith and substance a law in respect of money lending and lenders - a state subject. So
valid even if incidently trenches Promisory notes a central subject. S. of Bombay vs.
F.N.Balsara Bombay Prohibition Act, prohibiting sale and possession of liquors challenged on
ground that encroaches upon import & export of liquor across custom frontier a central subject.
Court held it valid bcoz in pith & substance act fell under State List.
Doctrine of Colorable Legislation Art 246 Doctrine of Colorable Legislation states, Whatever
legislature cant do directly, it cant do indirectly. By applying this principle the fate of the impugned
legislation is decided. In K.C.Gajapati vs. s. of Orissa SC Held if the constitution of a state
distributes the legislative power among diff. legislative bodies, which have to act within their
respective spheres marked out by the specific legislative entries, or if there are limitations on the
legislative authority in the shape of fundamental rights, questions do arise as to whether the
legislature in a particular case has not, in respect to the subject matter of the statute or in the
method of enacting it, transgressed the limits of the constitutional power. The doctrine does not
involve any question of bonafides or malafides intention on the part of the legislature. If the
legislature is competent enough to enact a particular law, then whatever motive which impelled it to
act are irrelevant. S. of Bihar Vs. KAMESHWAR SINGH; only case where a law has been declared
invalid on the ground of colourable legislation. In this case the Bihar Land Reforms Act,1950, was held
void on the ground that though apparently it purported to lay down principle for determining
compensation yet in reality it did not lay down any such principle and thus indirectly sought to
deprive the petitioner of any compensation.
Parliaments power to legislate on State subjects: (a) In the National Interest Art 249: If
the Council of States (Rajya Sabha) declares by a resolution of 2/ 3 of its members present and
voting, that it is necessary in the national interest. Such a resolution normally lasts for a year. Cease
to have effect on the expiration of 6 mnths after resolution has ceased to operate. (b) During
Proclamation of National or Financial Emergency Art 250: Parliament shall have power to
legislate on all matters in the State list. Cease to have effect on the expiration of 6 mnths after
resolution has ceased to operate. (c) By Agreement between States Art 252 : If the
Legislatures of 2 or more States resolve that it shall be lawful for Parliament to make laws with
respect to any matters included in the State List relating to those States, Parliament shall have such

power. (d) To implement treaties Art 253 : for implementing treaties or international
agreements and conventions. (e) In case of Failure of Constitutional Machinery in a State
Art 256: When such a Proclamation is made by the President, the President may declare that the
powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
Legislative Methods of the Union to Control over States:
(i) Previous sanction to introduce legislation in the State Legislature (Article 304).
(ii) Assent to specified legislation which must be reserved for consideration [Article 31 A (1)].
(iii) Instruction of President required for the Governor to make Ordinance relating to specified matters
[Article 213(1)].
(iv) Veto power in respect of other State Bills reserved by the Governor (Article 200).
Procedure to Pass an Ordinary Bill i.e Bill other than money bill Art 107 (1) May originate
in either of the houses. Bill has to pass through 3 stages known a Readings 1. 1st Reading At 1st
stage bill introduced. No discussion unless disputed. 2 nd stage consideration stage bill discussed
clause by clause. 2. 2nd Reading Amdmts may be moved. Mover of the bill may make one of the
following motions - (i) That it be taken into consideration (ii) that it be referred to a select committee
(iii) that it be referred to a joint committee of the houses (iv) that it be circulated for eliciting public
opinion. 3. 3rd Reading - last stage of an ordinary Bill in either house. Brief general discussion on the
bill. No amendment is accepted except that which aims at correcting same verbal flow. Bill passed.
The Bill in the other House: after being adopted by one House is sent to the other. It has to
undergo the same stages again. When the other House also passes the Bill in its original form, it is
sent to the President for his assent. If Other house (i) refuses to pass the Bill (ii) suggests such
amendments not favoured with the former House (iii) does not return the Bill within 6 months - dead
lock is created - President summons joint sitting of the Houses for the purpose of voting on the Bill.
The speaker or on his absence the Deputy speaker presides Art 118 (4). The Bill is then put to the
vote of the members of both the Houses. It is carried by the majority vote of the members present
and voting. If passed by majority of the total no. of members of both the houses present & voting
deemed to be passed by both the houses Art 108 (4). At joint sitting no new amdmt proposed
except which are necessary by delay in passage of bill Art 108 (4)(b).
Assent of the President Art 111: No bill can become act without the assent of the President. The
President may either (i) give his assent, (ii) withhold his assent this amounts to vetoing the bill
exercised on advice of ministry (iii) return if not money bill to the house for reconsideration with or
without his suggestions for amendment. if the Bill is passed by both the Houses again in an amended
or original form, the President has to give his assent thereto. If the President gives his assent, the Bill
becomes a law. After the President's assent the Act is published in the Gazette of India. In this way
the bill becomes an act.
Definition of Money Bill Art 110 (1) Money bill is a bill, which contains provisions w.r.t. all or
any of the following matters: (a) the imposition, abolition, remission, alteration or regulation of any
tax; (b) regulation of borrowing of money or giving of any gurantee by the GoI; (c) custody of the
Consolidated Fund or Contingency Fund of India, payments or withdrawal of money from these Funds;
(d) appropriation of money out of the Consolidated Fund of India; (e) declaring of any expenditure to
be expenditure charged on the Consolidated Fund of India (f) 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 sub-clauses (a) to (f).
But a Bill is not Money Bill by reason only that it provides for (i) the imposition of fines or other
pecuniary penalties (ii) the payment of fees for licence or services rendered (iii) imposition, abolition,
remission, alteration or regulation of any tax by any local authority or body for local purposes.
Bill money bill or not decision of speaker of LS final. So when bill sent to RS or President, a
certificate of the speaker shall be endorsed that it is a money bill.
Procedure to Pass Money bill 109(i) 1. Can only be introduced in the LS Can only be
introduced with the recommendation of the President No recom. Necessary for moving amdmt for
making provision for reduction or abolition of a tax. Art 117(1) 2. After passed by LS sent to RS
must return to LS within 14 days - LS may accept or reject all or any recom. of RS. 3. LS accepts any
recom. of RS bill deemed to have been passed by both Houses with amdmts by RS and acceptance
by LS 4. Not returned to LS within 14 days deemed to have been passed by both the Houses 5. LS
rejects all recom. of RS deemed to be passed by both the houses in the form it was passed by LS
president assent.
Thus, LS has final say with regard to passing of a money bill.
Assent of President Since power to veto a Bill can only be exercised on the advice of the Cabinet
President bound to give assent.

Financial Bills Any bill which relates to revenue or exp. Includes 3 kinds of bills (i)Money bills
Art 110(1) (ii)Other Financial Bills Art 117 (1) (iii)Bills involving expenditure Art 117(3)
Procedure to Pass Finance bill 1. Can only be introduced in the LS Can only be introduced with
the recommendation of the President like MB 2. Unlike MB RS may accept or reject as in case of OB
sub. to limitation that an amdmt for making provision for reduction or abolition of a tax cannot be
moved in either House without Presidents recom. 3. Passed through 3 readings like OBs. And in case
of final disagreement b/w the 2 houses joint sitting in Art. 108. 5. LS rejects all recom. of RS
deemed to be passed by both the houses in the form it was passed by LS president assent.
Diff. b/w MB and FB 1. FB apart from dealing with one or more matters as in Art. 110(1), deals
with other matters also. Thus, all MBs are FBs but all FBs are not MBs. 2. MB and FB do not differ in 2
things - Can only be introduced in the LS Can only be introduced with the recommendation of the
President 3. FB can be amended or rejected by RS unlike MB 4. Procedure for passage diff. 5.
Presidential assent in case of MB may give or refuse. Cant return unlike FB.
Parliamentary Privileges Provisions regarding Parliament and State Legislature identical. Art 105
Deals with privileges of Parliament. Art 194 Deals with privileges of SL.
1. Freedom of Speech - No member of Parliament shall be liable to any proceeding in any court in
respect of anything said or any vote given by him in Parliament or any committee thereof absolute
immunity unlike Fundamental rights. Subject to the provisions of this Constitution and the rules and
standing orders regulating the procedure of Parliament, there shall be freedom of speech in
Parliament. One such restriction A 121 prohibits discussion in P. w.r.t. conduct of the judge of SC or
HC in discharge of duties except when motion for his removal is under consideration. 2. Right of
Publication of its proceedings - no person shall be so liable in respect of the publication by or
under the authority of either House of Parliament of any report, paper, votes or proceedings.
Protection not available to pvt. Persons. Surendra vs. Nebakrishna, 1958 Editor of a newspaper
held guilty of committing Contempt of Court for publishing statement made in the House.
Parliamentary Proceedings Act, 1956 passed Provided no person liable for pub. Of true reports
unless such proceeding expressly ordered to be expunged by the Speaker. 3. Freedom from arrest
no MoP shall be arrested in a civil case 40 days before and after the adjournment of the House (Lok
Sabha or Rajya Sabha) and also when the House is in session. Available for civil arrest does not
extend to arrest on criminal charges, contempt of court, preventive detention. Smt. Indira Gandhi vs.
Raj Narain, 1975
4. Right to exclude strangers: Held only on exceptional circumstances voters to be kept
informed of wht representatives are doing in legislature. 5. Right to regulate internal
proceedings Exclusive right to regulate its own proceedings. A 122 says validity of proceedings in
Parliament cannot be questioned in a court of law on ground of alleged irregularity of procedure.
S.M.Sharma vs. Sri Krishna 6. Right to punish members and outsiders for contempt: Effect
of expulsion seat becomes vacant. However, does not disqualify from contesting elections from the
same. 1977 Indira Gandhi expelled from membership of LS and sentenced to jail for committing
contempt of House.
Controversy b/w Parliamentary Privileges and Court 1. Ref. case U/A 143, 1965 Keshava
Singh Not member of UP assembly arrested for Contempt of House Imprisonment for 7 days
Writ of Habeas Corpus moved by Mr.Solomon his advocate tht detention illegal & malafide no opp. To
defend 2 judge bench of Allahabad HC grant interim bail Assembly passed resolution tht all 4 has
committed contempt of court 2 judges and adv. Separately moved petition U/A 226 contending the
resolution passed amounted to Contempt of Court Petition heard by full bench stay against
resolution passed by assembly warrant of arrest withdrawn President referred to SC U/A 143 - SC
held judges not guilty by issuing bail order A 226 Court has jurisdiction to order the release of a
person from illegal detention A 226 confers wide power to HCs to issue Habeas Corpus against any
authority including legislature. 2. Eenadu Privilege Issue 1984 Chief Editor of Telgu Newspaper
found guilty of contempt of Andhra Pradesh Legislative Council for publishing an item Elders
Commotion ordered to appear b4 the House- SC issues stay order to Secretary not to arrest him
Council proceeded saying House supreme CM requested the House to postpone the deliberations
and referred the matter to President.
Powers of the President of India
1. Executive Powers head of the executive of the Union Govt. So, all executive powers are vested
in his hands. He can exercise these powers either directly or through the subordinate officers. (i)
Power to make appointments He chooses the PM, other ministers on advice of PM, Governors of the
States, the Judges of the Supreme Court and High Courts of the States, CAG of India, Chairman of

Finance Commission, Chairman of Election Commission (ii) responsible for the administration of the
UTs - For this Chief Commissioners and Lieutenant Governors of the centrally administered areas. (iii)
empowered to set up a Commission for the settlement of disputes relating to the supply of water
between two or more States. (iv) Supreme Commander-in-Chief of the Army, Navy and the Air Force
of the Union. He has the power to declare war. (v) Diplomatic Powers - He appoints the diplomatic
representatives of India to the foreign States. Receives Ambassadors and other diplomatic
representatives. The President represents India in international affairs. Power to conclude treaties
with foreign States and international agreements.
2. Judicial Powers A 72 Power to grant pardons, reprieves, respites or remission of punishments
or to suspend, remit or commute the sentence of any person convicted of any offence (i) by court
martial (ii) An offence against any law relating to matter to which executive power of union extends
(iii) in case of death sentence. Objective to give this power is to correct possible judicial errors.
Pardon Absolves the offender from all sentences. Commutation Substituting one punishment
with another of lighter character. Remission Reduction in sentence. Respite Lesser punishment
on special grounds e.g. pregnancy of woman offender. Reprieve Temporary suspension of death
sentence.
Whether pardoning power is not unbridled? Powers U/Arts 72 & 161 never intended to e used as
an unbridled power. To be exercised cautiously and in appropriate cases which in effect mitigates the
sentence awarded and not wipes out the conviction.- S. of Haryana vs Jagdish, 2010. In Maru
Ram vs UoI, 1981 Power to be exercised by President on advice of CoM. Kuljeet Singh vs
Governor of Delhi, 1982 Question arose regarding scope of pardoning power U/A 72 (1).
Petitioners (Ranga and Billa) found guilty of murdering innocent children and awarded death sentence
by Sessions Court, which also confirmed by HC. Mercy petition U/A 72 rejected by President.
Petitioners contended power of the President. Court said it did now know whether GoI has formulated
any guidelines for exercise of powers U/A 72. Put general stay order on execution of all convicts
whose mercy petition rejected by President or Governor. Jan 1982, vacated the stay order and
ordered execution of Ranga and Billa, saying this was not an appropriate case for laying Guidelines. In
Sher Singh vs. S. of Punjab, 1983 While disposing a writ-petition for commutation of death
sentence into life imprisonment on grounds of inordinate delay Court impressed upon Centre and
State Govt.s tht mercy petitions be disposed expeditiously. Long delay hurdle in disposition of justice
and shakes confidence of people.
3. Legislative Powers - an integral part of Indian Parliament. Parliament consists of the President
and two Housesthe House of the people (Lok Sabha) and the Council of States (Rajya Sabha). (i)
has the power of to summon and prorogue both the House of Parliament. (ii) He can also dissolve the
House of the People before the expiry of its term. (iii) to address either house or both the houses
assembled together from time to time (iv) to deliver an address to the Parliament at the
commencement of the first session every year. (v) to send messages to Parliament to take into
consideration (vi) Power to give assent to bills
4. Financial Powers: (i) the Annual Financial Statement is placed by the President before both the
Houses of Parliament. This statement shows the estimates of revenue and expenditure of the central
Government for the next year. (ii) No money bill can be introduced in Parliament without the
recommendations of the President. (iii) proposal for taxation and expenditure cannot be made
without the approval of the President.
5. Emergency Powers - The President of India exercises extra-ordinary powers in times of
emergency. The three kind of Emergency situations are: (a) Emergency due to armed rebellion
or external aggression A 352 to subjective satisfaction of President exercised only on written
advice from cabinet not as done by PM Indira Gandhi in June 1975 Minerva Mills Ltd. vs. UoI,
1980 Effects (i) Extension of centres executive power A 353(a) can give directions to any
state as to the manner in which executive power of the State is t be exercised (ii) Parliament
empowered to legislate on state subjects A 353(b) (iii) Parliament empowered to alter distribution
of revenues b/w Union and the State A 354 (iv) Ext. of life of LS A 83 (2) President may do so by
one year each time not exceeding 6 mnths after proclamation ceases to operate. (v) Suspension of
Fund. Rights guaranteed by A 19 Art 358 44th Amdmt Art 19 may be suspended only when
proclamation on ground of war or armed rebellion 59th Amdmt or by armed rebellion, or that
integrity of India is threatened by internal disturbance in the whole or any part of the territory of
Punjab in case of Punjab cease to operate after 2 yrs from commencement i.e. 30/3/1988 (vi)
Suspension of enforcement of Fund. Rights A 359 Right to move court and pending proceedings
for enforcement of rights as mentioned in the Oder other than A 20 and 21 suspended suspended
rt. Should be related to emergency (b) Emergency arising from the breakdown of
constitutional machinery in a State A 356 on receipt of report from Governor or otherwise
that situation has arisen in State that Govt. cannot fucn. As per provisions of Const. may assume to
himself The maximum duration of this type of emergency is three (3) years. Effects (i) President may
assume to himself the executive powers of the State. (ii) May declare that powers of the legislatures

of the State are to be exercised by the Union (iii) May make incidental and consequential provisions
as desirable for giving effect to the proclamation. (c) Financial Emergency A 360 - The President
may also issue a Proclamation of Financial Emergency if he is satisfied that the financial stability of
India is threatened. Will remain in force for 2 mnths unless approved by the President. Effects (i)
The Central Government may give directions to the States for canons of financial propriety. Direction
may include reduction in salaries and allowances of all or any class serving in a State, including the
Judges of the SC and HCs. (ii) All money-bills or financial bills passed by the State Legislatures are to
be reserved for the consideration of the President.
Ordinance making powers of the President A 123 - grants the President make laws when
either of the two Houses of Parliament is not in session and hence it is not possible to enact laws in
the Parliament. It will have the same force as an act of Parliament. An Ordinance may relate to any
subject that the Parliament has the power to legislate on and is as per provisions of the Const., else it
will be void. Limitations with regard to the Ordinance making power: (i) Legislature is not in session
(ii) Immediate action is required to deal with unforeseen or urgent matters (iii) Parliamentary
approval during session: Ordinances must be approved by Parliament within six weeks of
reassembling or they shall cease to operate. They will also cease to operate in case resolutions
disapproving the Ordinance are passed by both the Houses.
The President may withdraw an ordinance at any time. However, the President exercises the power
on his own satisfaction on the advice of the Council of Ministers headed by the Prime Minister. An
ordinance may have retrospective effect and may be modify repeal any act of Parliament or even
another ordinance. It may also amend or alter a tax law but never can be used to amend the
Constitution. R.K.Garg vs UoI, 1981 5 judge bench of SC held Special Bearer Bonds Ordinance,
1981, aws not ultravires of A 123 and President competent to issue an Ordinance amending or
altering tax laws. K.Nagraj vs. S. of AP Ordinance can only be invalidated for contravention of
constitutional limitations, not for non-application of mind or malafide. Misuse of Ordinance
making power D.C.Wadhwa vs. S. of Bihar, 1987 b/w 1967 ^ 1981 the Bihar Governor
passed 256 Ordinances. All these kept alive for periods ranging from 1 to 14 yrs by re-promulgation
from time to time. Out of 256, 69 re-promulgated several times with prior permission of President.
Court held it as subversion of democratic process and colorable exercise of powers and held it
unconstitutional. The matter brought b4 the Court by a prof. who carried a detailed research in the
matter. Court directed Bihar Govt. to pay Rs.10,000 to the petitioner for expenses as a result of
whose research the abuse of power brought to knowledge of Court.
Position of President before and after the passing of 42 nd Amdmt, 1976
Before 42nd Amdmt A 53 (1) Says executive power of Union vested with President to be
exercised by him directly or through subordinate officers in accordance with Const. Art 74 There
shall be a CoM with PM at the head to aid and advise the Pres. Art 74 (2) Question on whether and
what advice given by CoM to Pres. Shall not be enquired in any Court. Art 75 PM to be appointed by
Pres. And other ministers on advice of PM. Art 75 (2) Ministers shall hold office during the pleasure
of the Pres.
Literal interpretation of above Arts. No clear provision that the President was bound by
ministerial advice. President if so desires could become a dictator. Can manage to seize all exec.
Powers by dissolving the Parliament and declaring emergency thereby suspending FRs. As supreme
commander of Armed forces, can use military to suppress civil forces. Ram Jawaya vs S. of Punjab
and Pres. Formal or constitutional head of the executive and real powers vested with CoM.
After 42nd Amdmt, 1976 Amended Art 74 There shall be a CoM with the PM at the Head to aid
and advise the Pres. Who shall, in the exercise of his func.s act in accordance with such advise. In
view of this amdmt. Pres. Couldnot even act as advisor or guide.
44th Amdmt, 1978 Inserted provision in Cl. (1) of Art 74 i.e. Provided that Pres. May reconsider
such advice with CoM, and shall act in accordance with such reconsideration. This amdmt to
prevent recurrence of situation which arose in 1975 when Pres. had to sign Emergency Proclamation
only on advice of then PM Indira Gandhi without consulting her cabinet colleagues.
Position of Pres. - Weak position does not mean his office is superfluous symbol of national unity
vital role in working of Govt. being impartial and above party politics May exert influence on
decisions of PM, depends on his personality Pres. Role at best is advisory, cannot assume role of
master of CoM which is assigned to PM.
Procedure for appt. of SC every judge of SC to be appointed by Pres. after consultation with
other judges of SC and HC as he may deem necessary Shall hold office till he attains age of 65
years appt. of judge other than CJI, CJI will always b consulted. S.P.Gupta vs UoI, 1982 President
not bound by such consultation. SC Advocate on Record Association vs UoI, 1993 SC overruled
S.P.Guptas case decision. Held opinion of CJI must be given the greatest weight in selection of judges
of SC and HC and transfer of HC judges. Thus, executive element reduced to min. and political

interference eliminated. Criterion for appt. of CJI seniority. Presidential Reference, 1999 SC (9
judges bench) unanimously held recomm. Of CJI without following consultation process not binding on
govt. consultation with CJI means with plurality of judges For appt. of judges of SC, CJI must
consult a collegium of 4 most senior judges of SC. Must include the successor CJI. Opinion must be
in writing.
Jurisdictions (Powers) of SC of India 4 kinds of jurisdiction
1. As the Court of Record A 129: The SC of India is a Court of Record. Its decisions bind all courts
in India. HCs and Subordinate Courts use its decisions/judgments as laws and decide the cases before
them. Records of the Supreme Court are of evidential value and cannot be questioned when produced
and referred to in any court of India. It has the power to punish for its contempt. Mohd. Aslam vs.
UoI, 1994 SC held CM of UP Mr.Kalyan Singh guilty of Contempt of Court for violating the order of
the Court not to allow any permanent structure on disputed land. CM took defense that the
construction done by congregation of sadhus and any attempt to prevent the work would have
created a violent situation endangering the structure itself. Court awarded him token sentence of 1
day and fine of Rs.2000 to be paid within 2 mnths. The verdict establishes the principle no authority
is above the law.
2. Original Jurisdiction A 131: Means SC can directly hear cases which cannot be heard by any
other court. It involves following cases: (i) Disputes between the GoI and one or more States (ii)
Disputes between the GoI and any State or States on the one side and one or more States on the
other (iii) Disputes between two or more States which involves any question on which the existence
of a legal right depends. i.e. no jurisdiction in matters of political nature.
Original Jurisdiction for enforcement of Fundamental Rights A 32 Under this Art. a person
can directly go to SC for enforcement of his FRs. SC has power to issue directions in form of writs
Habeas Corpus, Mandamus, Prohibition, Certiorari.
3. Appellate Jurisdiction A 132:
The SC is the highest court of appeal in all civil and criminal cases. It can hear appeals against the
decisions of the State HCs, and this constitutes its Appellate Jurisdiction. The appeal can come before
the SC in case the HC issues a certificate to this effect. (a) Appeal in constitutional matters A
132(1) appeal against the judgment of the HC, when later certifies that case involves a substantial
question of law as to interpretation of Const.
- Even after certificate is granted by HC, SC may refuse to hear the appeal if satisfied appeal is not
competent: Syedana Taher vs. S. of Bombay Appellant in appeal b4 SC not entitled to challenge
decision on ground other than that on which certificate granted by HC: Darshan Singh vs. S. of
Punjab
(b) Appeal in Civil Cases A 133 - (i) When case involves a substantial question of law of general
importance (ii) In the opinion of the HC the said question needs to be decided by SC. (c) Appeal in
criminal cases A 134 In 2 ways (i) Without a certificate A 134(a) & (b), when (A.) has on
appeal reversed an order of acquittal of an accused and sentenced him to death (ii) has withdrawn for
trial a case from any subordinate court and awarded death sentence to the accused. If HC has
reversed the order of conviction and ordered the acquittal of an accused no appeal would lie o SC. (ii)
With a certificate A 134(c) HC certifies U/A 134-A that it is fit case for appeal to SC. (d) Appeal
by Special Leave A 136: The Supreme Court can grant special leave of appeal against any
judgment, decree, or order in any case decided by any court or tribunal in India. Clerks of Calcutta
Tramways vs. Calcutta Tramways Co. Ltd., 1957 SC can interfere with decisions of tribunals
where (i) tribunal acts in excess of jurisdiction conferred upon it by the Statute (ii) apparent error on
face of decision (iii) award made in violation of principle of natural justice (iv) tribunal has erroneously
applied well-accepted principles of jurisprudence.
4. Advisory or Consultative Jurisdiction A 143: The President of India can seek the advice of
the SC (i) in respect of any legal matter of high public importance (ii) question of law or fact has
arisen or is likely to arise relating to validity of provisions of existing laws, Validity of provisions
proposed in bills, any other ques. of constitutional importance. In such a case the SC has to give its
advisory opinion to the President. However, such an advice is not binding upon the President.
Moreover, SC is not bound to answer a reference made to it by President. Kerala Education Bill
Case SC held the view that Advisory opinion of SC U/A 143 though of great respect, not binding on
courts as it is not a law within the meaning of A 141. Special Courts Bill Case Held contrary view.
Question whether parliament empowered to establish Special Courts for trial of emergency
offences. SC held yes.
Powers of SC to withdraw and transfer cases - 139A. Transfer of certain cases A 139A (1)
Where cases involving the same or substantially the same questions of law are pending before the SC
and one or more HCs or before two or more HCs and the SC is satisfied on its own motion or an
application made by the AG of India or by a party to any such case that such questions are

substantial questions of general importance, it may withdraw them dispose of them itself. It may after
disposing of the said questions of law return any case to the HC with a copy of its judgment and the
HC will dispose of the case in accordance with such judgment. A 139A (2) Empowers SC to transfer
cases, appeals or other proceedings pending before any HC to another HC.
This Art. Enables SC to decide cases involving same ques. of law without delay and avoiding
conflicting interpretations of Const. by diff. HCs.
UoI vs Shiromani Gurdwara Prabandhak Committee Petition for transfer of suit for damages
against UoI for loss of Gurdwara Properties under operation Blue Star filed in Punjab to SC
extraordinary situation prevailing in Punjab fair trial not possible transferred. A.R.Antulay vs
R.S.Nayak - Inter-state transfer among courts subordinate to HC inter-se of from a court subordinate
to HC, to HC within jurisdiction of the appropriate HC. Swaranjit Kaur vs Swaran Singh Soni
Divorce petition allowed to be transferred from Delhi District Judge to District Judge, Indore as
petitioner dependent on parents has 2 children difficult travelling to Delhi.
Independence of Judiciary Importance - Basic feature of federal constitution div. of powers
b/w centre & states language of constitution ambiguous meaning likely to be interpreted
differently by diff. authorities at diff. times therefore disputes may arise b/w centre & states
regarding their powers independent judiciary needed to maintain supremacy of constitution and
decide such disputes. Also needed to protect rights of individuals.
Provisions to ensure Independent Judiciary 1. Security of tenure of judges A 124 Judges of
SC cannot be transferred from office except by an order of the Pres. that also only on ground of
proven misbehavior or incapacity, supported by resolution passed by majority in each house and also
by majority of not less than 2/3 of the members of the House present and voting. 2. Salary of judges
fixed, not subject to the vote of legislature Fixed by Const. and charged on the Consolidated Fund of
India 3. Parliament can extend, but cannot curtail the jurisdiction and power of the SC A 138 4. No
discussion in Parliament or State Legislature on conduct of judges A 121 5. Power to punish for its
contempt A 129 & 215 - SC and HC both have 6. Separation of judiciary from Executive A 50 7.
Judges of the SC are appointed by Executive with the consultation of legal experts A 124 (2) - Appt.
not left to unguided discretion of executive 8. Prohibition on practice after retirement A 124.
Threats to independence of judiciary 1. Although judges appointed by Executive in consultation
with legal experts, consultation did not mean concurrence, Executive not bound by the advice of the
judges, may ignore completely S.P.Gupta vs. UoI 2. Power of president to transfer a judge from
one HC to another undermines independence. 3. Present practice of appointing retired judges in
various capacities serious danger to judicial independence.
Cases- Advocate on Record Association vs UoI, 1993 - Refer above. UoI vs. Pratibha
Banerjee, 1995 SC held judges and officials of HC and SC not govt. servants. No master and
servant relationship b/w them.
Power and Procedure of Amending the Constitution Various Arts. Divided into 3 heads:
1. Amdmt by Parliament by Simple Majority - of members present and voting like ordinary law.
Such Bills are not deemed as Constitution Amendment Bills within the meaning of Article 368. Arts.
5, 169, 239-A (i) formation of new States, alteration of boundaries, areas, names of existing States.
Require recommendation of the President for introduction. (ii) Creation or abolition of Legislative
Councils in the States. Require the prior resolution by the State Legislative Assembly concerned. (iii)
Administration and control of Scheduled Areas and STs (iv) Administration of Tribal Areas in the States
of Assam, Meghalaya, Tripura and Mizoram.
2. Amdmt by Parliament by Special Majority - Procedure for such bills is prescribed under Article
368 (2) of the Const. Can be introduced in either House. Such bills can never be treated as MBs or
FBs. So, no recommendation of President is needed for introduction. These bills have to be passed by
a majority of the total membership of each House as well as not less than 2/3 of the members of
that House present and voting.
3. Amdmt by Special Majority and ratification by half of the State Legislatures
Fundamental matters where unilateral amdmt by Parliament may affect fundamental basis of the
system. The ratification by the SLs has to be made by resolutions to that effect and these must be
passed before the Const. Amdmt Bill is presented to the Pres. for Assent. (i) The Election of the
President A 54 & 55 (ii) The extent of the Executive Power of the Union and the States A 73 & 162
(iii) Arts. Dealing with judiciary, SC and HCs in States & UTs A 124 to 147, 214 to 231, 241 (iv)
Distribution of Legislative Powers b/w Union & States A 245 to 255 (v) Any of the Lists in the VIII
Schedule (vi) Representation of States in Parliament IV Schedule (vii) A 368 itself.
Procedure May be introduces in either House Must be passed by a majority of the total
membership of each House as well as not less than 2/3 of the members of that House present and
voting Bill passed by both the Houses President assent. But bills seeking amdmt of A 368 also
require ratification by half of the States.

Power of the parliament to amend the constitution - There has been a lot of controversy on the
power of the parliament to amend the constitution. Article 13 of the original constitution said that
the state shall not make any law that takes away or abridges the rights given to the citizens in Part III
and any such law made in contravention of this article shall be deemed void to the extent of
contravention. Thus, it seemed that parliament cannot amend the constitution in a way that takes
away the fundamental rights of the citizens.
This logic was first tested by the Supreme Court in the case of Shankari Prasad vs Union of India AIR
1951. In this case, an amendment to add art 31 A and 31 B to the constitution was challenged on the
ground that they take away fundamental right of the citizens and therefore not allowed by article 13.
It was argued that "State" includes parliament and "Law" includes Constitutional Amendments.
However, SC rejected the arguments and held that power to amend the constitution including
fundamental rights is given to the parliament by art 368 and that "Law" is art 13 refers only to
ordinary law made under the legislative powers.
In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given in the case of
Shankari Prasad and held that the words "amendment of the constitution" means amendment of all
provisions of the constitution.
However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its previous judgement
and held that parliament has no power from the date of this judgement to amend part III of the
constitution so as to take away any fundamental right. It held that "amendment" is a law as meant
under art 13 and so is limited by art 13(2).
To overcome the judgement in the case of Golak Nath, the parliament added another clause in art
13by the 24th amendment in 1971 It says that this article does not apply to the amendment of the
constitution done under art 368. A similar clause was added in art 368 for clarity in the same
amendment, which says that amendment done under art 368 shall not come under the purview of art
13.
This amendment itself was challenged in the case of Keshavanand Bharati vs State of Kerala AIR
1973. In this case, SC reversed its judgement again and held that "Law" in art 13 only means ordinary
law made under legislative power, The 24th amendment is only clarifying that position and so it is
valid. However, it further held that "amendment" means that the original spirit of the constitution
must remain intact after the amendment. Thus, the basic structure or features of the constitution
cannot be changed. According to C J Sikri, the basic structure of the constitution includes - Supremacy
of the Judiciary, democratic republic, secularism, separation of powers among judiciary, legislative,
and the executive, and the federal character of the constitution.
This judgement was delivered by 7:6 majority and is one of the most important judgements in the
history of independent India. The effect of this judgement can be seen in the case of Indra Sawhney
vs Union of India 1993, where SC prevented the politicians from running amok in the matter of
reservation. It this case it held that inclusion of creamy layer violates the fundamental right of
equality, which is a basic feature of the constitution and so its inclusion cannot be permitted even by
constitutional amendment.

SupremeCourtofIndia:Organisation,JurisdictionandPosition!
TheSupremeCourtistheapexlevelcourtandthecourtoffinal
appealinIndia.TheConstitution(Article124)provides:There
shallbe,aSupremeCourtofIndia.Itenjoyssupremejudicial
authorityinthecountry.Thewholeofjudicialadministrationis
organisedandruninaccordancewiththeordersandrulesofthe
SupremeCourt.Itsdecisionsbindallcourts,allpeopleandall
institutions.Noappealliesagainstitsdecisions.
(A)Organisation:

1.CompositionoftheSupremeCourt:
AtthetimeoftheinaugurationoftheConstitution,theSupreme
CourtconsistedofoneChiefJusticeandsevenotherJudges.
Presently,theSupremeCourtconsistsofaChiefJusticeandthirty
otherJudges.
2.ProvisionsfortheAppointmentofAdhoc(Temporary)Judges:
TheConstitutionprovidesfortheappointmentofadhocjudgesifat
anytimethenumberofjudgesavailableisnotsufficientforthe
quorumtoholdorcontinueanysessionoftheCourt,theChief
JusticeofIndia,withthepriorconsentofthePresident,canrequest
inwritingtheattendanceofaHighCourtjudgeasanadhocjudge
inasessionoftheSupremeCourtforadefiniteperiod.
3.MethodofAppointmentofJudges:
ThejudgesoftheSupremeCourtareappointedbythePresident
afterconsultationwithsomesittingJudgesoftheSupremeCourt
andtheHighCourtsinthestates.Intheappointmentofother
judges,thePresidentconsultstheChiefJusticeoftheSupreme
CourtandwhileappointingtheChiefJustice,heconsultsother
judgesorsomeofthem.
3.(a)AppointmentoftheChiefJustice:
RegardingthemethodofappointmentoftheChiefJusticeofIndia,
theseniorityprincipleisrespectedandfollowed.Wheneverthereis
avacancyintheofficeofChiefJusticeofIndia,theseniormost
judgeoftheSupremeCourtiselevatedtothisoffice.
3.(b)AppointmentofanActingChiefJustice:
IncasetheofficeoftheChiefJusticesuddenlyfallsvacantorwhen
theChiefJusticemaybeunabletoperformhisdutiesdueto
absenceorotherwise,thePresidentcanappointanActingChief
Justice.ThePresidentappointsthenextseniormostjudgeofthe
SupremeCourtastheactingChiefJustice.Hecontinuestoperform
hisdutiestilltheappointmentofanewChiefJusticeortillthe
resumptionofofficebytheregularChiefJustice.
4.QualificationsfortheJudges:
EachjudgeoftheSupremeCourtpossessesfollowingessential
qualifications:
(i)HeisaCitizenofIndia;
(ii)Hehasbeen,foratleast5years,ajudgeofaHighCourtorof

twoormoresuchCourtsinsuccession;or
(iii)HehasbeenanadvocateofaHighCourtforatleasttenyears;
or
(iv)Heis,intheopinionofthePresident,adistinguishedjurist.
5.TermofOffice:
AJudgeoftheSupremeCourtholdsofficeuntilheattainstheage
ofsixtyfiveyears.
6.MethodofRemovalofJudges:
TheConstitutionprovidesforadifficultmethodofremovalof
judges.Theycanberemovedonlyonthegroundofproven
misbehaviororincapacity.Judgescanberemovedby
impeachment.AjudgeoftheSupremeCourtcanberemovedfrom
hisofficebyanorderofthePresident.
SuchanordercanbepassedbythePresidentonlywhenanaddress
passedbythetwoHousesoftheParliamentbyamajorityoftotal
membersand2/3rdmajorityofmemberspresentandvotingineach
House,ispresentedtohim.However,anyJudgecanatanytime
resignhisjudgeship.
7.SalaryandAllowances:
TheChiefJusticeofIndiaandeveryotherjudgedrawsamonthly
salaryofRs.100000andRs.90000respectively.Thesesalariesare
chargedontheConsolidatedFundofIndiaandhencearenot
subjecttoParliamentsvote.Besidesthesalary,everyjudgedraws
severalotherallowances,anduponretirementisentitledtoa
pension.
8.SeatoftheSupremeCourt:
TheSupremeCourtsitsinDelhi.Itcan,however,meetinanyother
placeastheChiefJusticemaydecidewiththeapprovalofthe
PresidentofIndia.
I. Total membership means the total number of members comprising the House irrespective of
whether there are vacancies or absentees on any account.
II. Present and voting, means members who vote for ayes or for noes. Members who are
present in the House and vote abstention either through the electronic vote recorder or on a voting
slip or in any other manner, are not treated as present and voting.