UNIT 1

MEANING OF THE TERM “CONSTITUTION”

The Constitution of India is the supreme law of India. It lays down the framework defining fundamental
political principles, establishes the structure, procedures, powers and duties of government institutions and sets
out fundamental rights, directive principles and the duties of citizens.
IMPORTANCE-MAKING OF THE INDIAN CONSTITUTION 1946-49
Constitution protects the rights of the citizens of a concerned nation, irrespective of their religion, caste, creed, sex
or physical appearance. A constitution, thus, can be safely said to be a social contract between the government
and the people it governs. It can also be deemed as the fundamental underlying framework of government for a
nation.

 World's lengthiest written constitution had 395 articles in 22 parts and 8 schedules at the time of
commencement. Now Constitution of India have448 articles in 25 parts, 12 schedules, 5 appendices and
100 amendments. On the other hand the American Constitution having only 7 articles and amended only
27 times in span of 242 years (the USA got independence on July 4, 1776). There is no written
constitution in the U.K. but they are following old customs , conventions and rituals of the nation.
 Part-III: Fundamental Rights are granted by the constitution. Constitutional Remedies which are five
writes to save the rights of citizen.
 Part-IV: Directive Principles of state policy which are guide to government for welfare state.
 Fundamental duties are incorporated by 42 amendment
 Independent Judiciary which borrowed the concept of JUDICIARY REVIEW from the American
Constitution.
 Single citizenship, Single Constitution and Single Judiciary whereas in the USA every state having own
constitution, dual citizenship, even some states having own military force.
 Checks and Balance theory adopted and power is equally divided among the three wings i.e. Legislative,
Executive and Judiciary. Three lists of subjects 1. Central list 2. State list 3. Concurrent list.
 India is a quasi federal state in case emergency situation or normal conditions , it is a federal system.
 The President of India is a nominal head of the state whereas the cabinet led by Prime Minister is a real
head of the government.

Significance Of Constitution

 The primary function of a constitution is to lay out the basic structure of the government according to
which the people are to be governed. It is the constitution of a country, which establishes the three main
organs of the government, namely, the legislature, executive and judiciary.
 The constitution of a country not only defines the powers allotted to each of the three main organs, but it
also significantly makes a clear demarcation of the responsibilities assigned to each of them. It effectively
regulates the relationship between these organs as well as the relationship between the government and its
people.
 Since the country’s constitution stands superior to all the laws framed within the territorial precincts of the
country, any law enacted by the ruling government has to be in conformity with the concerned
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 constitution. As such, the citizens would, in turn, be abiding by not just the law, but also working in sync
with the demarcations of the constitution laid by the country.
 The constitution does not simply provide a recipe for an efficient government, but also deals with
limitations on power. Since power corrupts and absolute power corrupts absolutely, a constitution is
established to restrict the abuse of power by those who conduct governmental functions.
 The constitution of a particular country lays down the national goals which form the basic edifice on
which the nation rests upon. For instance, the constitution of India has inscribed in it the primary facets of
the nation which are democracy, socialism, secularism and national integration.
 A constitution, besides thrusting on the rights of the citizens of the concerned nation, also has embedded in
it the duties that the citizens require to adhere to as well.

DR.AMBEDKAR’S CONTRIBUTION

B. R Ambedkar's role and contribution to the making of the Indian Constitution is certainly of the most significant
level-- on 15th August 1947, when India achieved its independence, Nehruji made Ambedkar as his first Law
Minister, in recognition of his legal prowess; and also, in fact, made him the Chairman of the Indian Constitution
Drafting Committee: a singular honor, and of course, his first/primary important 'contribution' to this document
i.e. its actual writing/drafting and structuring, which is no small thing, as it is Ambedkarji's words that roll off so
decorously when we read the document.

As writer/drafter/framer and 'prime mover' of the new Indian Constitution, Ambedkar also had a central role in
guiding his committee towards the sort of socialistic, idealistic vision that he had, and that to some extent he also
shared with Nehru ji. According to Granville Austin, this document thus was first and foremost, a 'social
document' i.e. one which identified many of the basic problems besetting and needing to be addressed, for the
amelioration of the masses-- and in this regard it is worthwhile noting down point wise some of Ambedkar's main,
personal contributions, depending upon his own expertise and interests/concerns:

1. Guarantees of basic civil liberties to Indian citizens

2. Abolition of all forms of discrimination of caste and creed, freedom of religion and abolition of 'untouchability'
in principle at least-- something very personal for him, coming as he did from untouchable origins.

3. Equal rights under law to Indian women, and full social and economic freedom/s to them, too.

4. Various job quotas guarantees for scheduled castes and tribes and minorities in India, to ensure fair play and
some modicum of 'removal' of social inequalities for remote and under privileged communities.

These were no small achievements personally, and along with their adoption, the whole of the Indian Constitution
was thereafter formally passed by Parliament (Constituent Assembly) on 26th November 1949.

Conclusion
The contribution of Dr. Ambedkar in Indian Democracy is not to be forgotten. As a chairman of the Constitutional
Committee he gave a shape to our country of a complete Sovereign, Democratic and Republic based on adult
franchise. Baba SahebAmbedkar’s name will be written in golden letters in the history of India as a creator of
social justice. This fact is doubtless. He was not only the man of age and builder of the Constitution but also the
creator of social justice and betterment of the downtrodden. He was one of the few sons in the History of India
that he can be said to the gift of Indian freedom movement. If Mahatma Gandhi gave direction and lesson of
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morality then Baba Saheb gave shape to social aspect without exploitation. In true sense of the word, he gave
democratic and anti caste aim. He spent his whole life for the betterment of the poor, exploited, untouchables and
troubled classes. Thus, Dr. Ambedkar’s contribution to the Indian Constitution is undoubtedly of the highest
order. Indeed he deserved to be called the “father or the Chief Architect” of the Indian Constitution.
PREAMBLE
Preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and
principles of the document, and it indicates the source from which the document derives its authority, meaning,
the people.The hopes and aspirations of the people as well as the ideals before our nation are described in the
preamble in clear words. It may be considered as the heart and soul of Constitution. The preamble can be referred
to as the preface which highlights the entire Constitution. It was adopted on 26 November 1949 by the Constituent
Assembly and came into effect on 26th January,1950

Definition of preamble
1. an introductory statement; especially : the introductory part of a constitution or statute that usually states
the reasons for and intent of the law
2. an introductory fact or circumstance; especially : one indicating what is to follow

Preamble to the Constitution of India

1. Introduction
The Preamble to the Constitution of India records the aims and aspirations of the people of India which have been
translated into the various provisions of the Constitution. A Preamble means the introduction to the statute. The
objectives before the Constituent Assembly were to Constitute India into a “sovereign democratic republic” and to
secure its citizens “justice liberty, equality and fraternity”. The ultimate aim of the makers of the Constitution was
to have a welfare state and an egalitarian society projecting the aims and aspirations of the people of India who
sacrificed everything for the attainment of country’s freedom. It is worthwhile to note that the preamble was
adopted by the Constituent Assembly after the Draft Constitution had been approved. The basic idea behind it was
the preamble should be in conformity with the provisions of the constitution and express in a few words the
philosophy of the constitution. It may be recalled that after the transfer of power, the constituent Assembly
became sovereign, which is reflected in the use of words “give to ourselves this constitution” in the preamble. It
also implied that the preamble emanated from the people of India and sovereignty lies with them.

Chief JusitceSubba Rao in Golak Nathv. State of Punjab[i]had held that “The preamble to an Act sets out the
main objectives which the legislation is intended to achieve”.

Unlike the Constitution of Australia, Canada or U.S.A., the constitution of India has an elaborate preamble. The
purpose of the preamble is to clarify who has made the constitution, what is its source, what is the ultimate
sanction behind it, what is the nature of the polity which is sought to be established by the constitution.

Meaning and Concept

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The term ‘Preamble’ means the introduction to a statute. It is the introductory part of the constitution. A preamble
may also be used to introduce a particular section or group of sections.[iii] According to Chambers Twentieth
Century Dictionary, a preamble means preface, introduction, especially that of an act of Parliament, giving its
reasons and purpose – a prelude. [iv]

Black’s Law Dictionary states that the preamble means a clause at the beginning or a statute explanatory of the
reasons for its enactment and the objectives sought to be accomplished. Generally, a Preamble is a declaration
made by the legislature of the reasons for the passage of the statute and is helpful in the interpretation of any
ambiguities within the statute to which it is prefixed. [v]

The Constitution opens with a Preamble. Initially, the Preamble was drafted by Sh. B. N. Rau in his memorandum
of May 30, 1947 and was later reproduced in the Draft of October 7, 1947. In the context of the deliberations by
the Constituent Assembly, the Preamble was reformulated. The Committee claimed that they had tried to embody
in it the spirit, and as far as possible, the language of the Objectives Resolution.[vi] Constitutions all over the
world generally have a preamble. The form, content and length of the preamble differ from constitution to
constitution. Irrespective of these differences the preamble generally sets the ideas and goals which the makers of
the constitution intend to achieve through that constitution.

 Object, Purpose and Scope of the Preamble

The Preamble does not grant any power but it gives a direction and purpose to the Constitution. It outlines the
objectives of the whole Constitution. The Preamble contains the fundamentals of the constitution. The preamble
to an Act sets out the main objectives which the legislation is intended to achieve.

The proper function of preamble is to explain and recite certain facts which are necessary to be explained and
recited, before the enactment contained in an act of Parliament could be understood. A preamble may be used for
other reasons, such as, to limit the scope of certain expressions or to explain facts or introduce definitions. It
usually states, or professes to state, the general object and meaning of the legislature in passing the measure.
Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words
which may possibly have more meaning, or determining of the Act, whenever the enacting part in any of these
respect is prone to doubt. In a nutshell, a court may look into the object and policy of the Act as recited in the
Preamble when a doubt arises in its mind as to whether the narrower or the more liberal interpretation ought to be
placed on the language which is capable of bearing both meanings. In A.KGopalanv. State of Madras[vii], it was
contended that the preamble to our constitution which seeks to give India a ‘democratic’ constitution should be
the guiding start in its interpretation and hence any law made under Article 21 should be held as void if it offends
the principles of natural justice, for otherwise the so-called “fundamental” rights to life and personal liberty would
have no protection. The majority on the bench of the Supreme Court rejected this contention holding that ‘law’ in
article 21 refers to positive or state made law and not natural justice, and that this meaning of the language of
article 21 could not be modified with reference to the preamble. In Berubari Union case[viii]the Supreme Court
held that the preamble had never been regarded as the source of any substantive power conferred on the
government or on any of its departments. The court further explained that “what is true about the powers is
equally true about the prohibitions and limitations”. It, therefore, observed that the preamble had limited
application. The court laid down that the preamble would not be resorted to if the language of the enactment
contained in the constitution was clear. However, “if the terms used in any of the articles in the constitution are
ambiguous or capable of two meanings, in interpreting them some assistance may be sought in the objectives
enshrined in the Preamble.” In State of Rajasthan v. BasantNahata [ix] it was held that a preamble with an

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ordinary Statute is to be resorted only when the language is itself capable of more than one meaning and not when
something is not capable of being given a precise meaning as in case of public policy.

In KesavanandaBharati[x] case the Supreme Court attached much importance to the preamble. In this case, the
main question before the Supreme Court related to the scope of amending power of the Union Parliament under
Article 368 of the Constitution of India. The Supreme Court traced the history of the drafting and ultimate
adoption of the Preamble. Chief Justice Sikri observed,

“No authority has been referred before us to establish the propositions that what is true about the powers is
equally true about the prohibitions and limitations. Even from the Preamble limitations have been derived in
some cases. It seems to me that the preamble of our Constitution is of extreme importance and the constitution
should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”

A majority of the full bench held that the objectives specified in the preamble contain the basic structure of our
constitution, which cannot be amended in exercise of the power under Article 368 of the constitution. It was
further held that being a part of the constitution, the preamble was not outside the reach of the amending power of
the Parliament under article 368. It was in the exercise of this amending power that the constitution (42nd
amendment) Act 1976 amended the preamble inserting therein, the terms socialist, secular and integrity.

In the 1995 case of Union Government v. LIC of India also the Supreme Court has once again held that the
Preamble is an integral part of the Constitution.

The Preamble serves the following purposes:

a) It indicates the source from which the Constitution comes, viz., the people of India.

b) It contains the enacting clause which brings into force, the Constitution which makes it an act of the people,
for the people and by the people.

c) It declares the rights and freedoms which the people of India intended to provide to all citizens and the basic
type of government and polity which was to be established. [xi]

 Amendment to the Preamble

The issue that whether the preamble to the constitution of India can be amended or not was raised before the
Supreme Court in the famous case of KesavanandaBharativ. State of Kerala, 1973[xiv]. The Supreme Court has
held that Preamble is the part of the constitution and it can be amended but, Parliament cannot amend the basic
features of the preamble. The court observed, “The edifice of our constitution is based upon the basic element in
the Preamble. If any of these elements are removed the structure will not survive and it will not be the same
constitution and will not be able to maintain its identity.”[xv]

The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the words
Socialist, Secular and Integrity were added to the preamble by the 42nd amendment Act, 1976, to ensure the
economic justice and elimination of inequality in income and standard of life. Secularism implies equality of all

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religions and religious tolerance and does not identity any state religion. The word integrity ensures one of the
major aims and objectives of the preamble ensuring the fraternity and unity of the state.


 “We, the People of India”

The preamble begins with the words “We the people of India…” thus clearly indicating the source of all authority
of the constitution. At the dawn of independence, we were 350 million (approximately). This figure constituted
1/6th of the humanity. The words “We, the people of India” declares in umabmiguios terms that the Constitution
has been adopted, enacted and given to themselves by the people of India. It emphasizes the sovereignty of the
people and the fact that all powers of government flow from the people. It is the people of India on whose
authority the Constitution rests. The preamble surmises that it is the people of India who are the authors of the
constitution. Although the constitution was not directly voted upon by the people of the country as it was
practically impossible for four hundred million people to take part in the voting, it is clear from the Preamble that
the framers of the constitution has been promulgated in the name of the people, attached importance to the
sovereignty of the people and the constitution. The constitution is not based on the mandate of several states
which constitute the units of the Union. In this sense also, the constitution is one, given by the people of the
country to themselves. Jawahar Lal Nehru in the constituent assembly stated that the word ‘People’ indicated that
the constitution was not created by the States, nor by the people of the several States but by the people of India in
their aggregate capacity. By analogy, even the Constitution of U.S.A., in spite of the fact that it was actually born
out of the agreement between the number of independent states, professes to be established by the people of the
United States, and not by the federating states in their sovereign capacities.

The words “we the people of India” echo in the opening words in the preamble to the constitutions of the United
States and of Ireland. It is emphasized that the constitution is founded on the authority of the people, in whom is
vested the ultimate sovereignty. The Supreme Court in Union of India v. Madangopal[xvi], referred to these
words in the preamble while recognizing the power of the Indian legislatures, to enact laws with retrospective
operation beyond the commencement of the constitution itself. The court observed that “our constitution as
appears from the preamble derives its authority from the people of India”.

‘We, the people if India’, means in other words, ‘we, the citizens of India’, whether voters or non- voters. The
terms- ‘people of India’ and ‘citizens’ are synonyms terms. Both the words describe the political body which lays
the basis of sovereignty and which hold the power and conduct of the government through their representatives;
they are what we familiarly call the ‘sovereign people’ and every citizen is one of this people and they are a
constituent member of this sovereignty.

Constitutional expert D.D. Basu has stated that though the constitution of India has been made by men who
cannot be said to be fully representatives of the nation and it has been ratified by a direct vote of the people, the
Constitution of India, like that of the United States professes that is has been founded on the consent and
acquiescence of the people.[xvii] The preamble says that the people of India enacted and adopted the constitution,
after “having solemnly resolved…” It explains that the founding fathers had given a serious thought to the
provisions of the Constitution. They had performed a sacred duty and exercised full wisdom and political
knowledge on their part. They had no axe to grind beyond “securing a good and workable constitution”. [xviii]

 Sovereign

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According to preamble, the constitution of India has been pursuance of the solemn resolution of the people of
India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well defined objects set forth in
the preamble. Sovereignty denotes supreme and ultimate power. It may be real or normal, legal or political,
individual or pluralistic. In monarchial orders, sovereignty was vested in the person of monarchs. But, in
republican form of governments, which mostly prevail in the contemporary world, sovereignty is shifted to the
elected representatives of the people. According to D.D Basu, the word ‘sovereign’ is taken from article 5 of the
constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and uncontrolled within its own
sphere’. In the words of Cooley, “A state is sovereign when there resides within itself supreme and absolute
power, acknowledging no superior”. Sovereignty, in short, means the independent authority of a state. It has two
aspects- external and internal. External sovereignty or sovereignty in international law means the independence
of a state of the will of other states, in her conduct with other states in the comity of nations. Sovereign in its
relation between states and among states signifies independence. The external sovereignty of India means that it
can acquire foreign territory and also cede any part of the Indian territory, subject to limitations(if any) imposed
by the constitution. On the other hand, internal sovereignty refers to the relationship between the states and the
individuals within its territory. Internal sovereignty relates to internal and domestic affairs, and is divided into
four organs, namely, the executive, the legislature, the judiciary and the administrative. Though India became a
sovereign country on 26th January, 1950, having equal status with the other members of the international
community, she decided to remain in the Commonwealth of Nations. Pandit Nehru declared that India will
continue – “her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol
of the free association of the independent nations and as such the Head of the Commonwealth”. Her membership
of the Commonwealth of Nations and that of the United Nations Organization do not affect her sovereignty to any
extent. It is merely a voluntary association of India and it is open to India to cut off this association at her will,
and that it has no constitutional significance.

 Socialist

The constitutional commitment to the goal of socio-economic justice, as envisaged by the original preamble by
the constitution of India has been fortified by the constitution (42nd Amendment) Act, 1976. The term ‘socialist’
literally means a political-economic system which advocates state’s ownership of the means of production,
distribution and exchange.[xix]Concise Oxford Dictionary defines ‘socialism’ as a political and economic theory
of a social organisation which advocates that the means of production, distribution and exchange should be owned
or regulated by the community as whole.” Professor M.C Jain Kagzi while noting that socialism has interspersed
in the provision of the constitution remarks that preambular reference was intended ushering in a socio-economic
revolution.

The term ‘socialist’ has not been defined in the constitution. Professor M.P Jain observes that the term ‘does not
however envisage doctrinaire socialism in the sense of insistence on state ownership as a matter of policy’. It does
not mean total exclusion of private enterprise and complete state ownership of material resources of the nation.
D.D. Basu regards that Supreme Court has gone a step further toward social justice. P.M Bakshi understands
socialism in the context of social justice.[xx] A broad spectrum of Indian jurists and authors admit the relevance
of socialism in India. Swarnsingh, the chief architect of the 42 nd amendment Act, 1976 explained that by the word
‘socialism’ nothing more was meant than what was explained at the Awadi session of Congress, which is short
aimed at a ‘mixed economy’. Mrs. Indira Gandhi, the then Prime Minister, further explained that the term
‘socialist’ was used simply to indicate that the goal of the state in India was to secure a ‘better life for the people’
or ‘equality of opportunity’. She said that socialism like democracy was interpretable differently in different
countries. She, thus, made it clear that India had her own concept of socialism and all she wanted was a better life
for the people. That the framers wished to go socialist was never in doubt. Our first Prime Minister and a member
of the Constituent Assembly Pt. Jawaharlal Nehru exclaimed “I stand for socialism and I hope, India will stand for
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Socialism and that India will go towards the constitution of a socialist state, and I do believe that the whole world
will go that way.” [xxi]

In Excel Wear v. Union of India[xxii], the Supreme Court observed that “the addition of the word socialist might
enable the courts to lean more in favour of nationalization and state ownership of the industry. But, so long as
private ownership of industries is recognized and governs an overwhelming large proportion of our economic
structure, the principle of socialism and social justice cannot be pushed to such an extent so as to ignore
completely or to a very large extent, the interest of another section of the public, namely, the private owners of the
undertaking.”

In D.S Nakarav. Union of India[xxiii], the court observed that, “the basic framework of socialism is to provide a
decent standard of life to the working people and especially provide security from cradle to grave.” The principle
aim of socialist State, the Supreme Court held, was to eliminate inequality in income and status and standard of
life.

In Air India Statutory Corporation v. United LabourUnion[xxiv], the Supreme Court elaborated the concept of
“socialism” and stated that the word socialism was expressly brought in the constitution to establish an egalitarian
social order through rule of law as its basic structure.

In Samathav. State of Andhra Pradesh[xxv]the Supreme Court observed that the word Socialist used in the
Preamble must be read from the goals, Article 14,15,16,17,21,23,38,39,46 and all other cognate Articles sought to
establish, i.e. to reduce inequalities in income and status and to provide equality of opportunities and facilities.

 Secular

In Webster’s Dictionary the word ‘secular’ has been described as a ‘view of life’, or of any particular matter based
on premise that religious considerations should be ignored or purposefully excluded or as a system of social ethics
based upon doctrine that ethical standards and conduct be determined exclusively without reference to religion. It
is the rational approach to life and it refuses to give plea for religion. For the first time, by the 42 nd amendment of
the constitution in 1976, the term-‘secular’ was inserted into the Preamble but without a definition of the term.
Secular is derived from the Latin word speculum, which means an indefinite period of time. Before the mid-
nineteenth century, the word ‘secular’ was occasionally used with contempt. Although the term secular was not
included anywhere in the constitution, as it was originally adopted on November 26, 1949, the founding fathers of
the constitution were clear in their mind as to what they meant by secularism. The word secular has no Indian
origin. It traces its origin from West in context of Christian religion. Unlike in the West, in India secularism was
never born out of the conflict between the church or the temple and the State. It was rooted in India’s own past
history and culture. It is based on the desire of the founding fathers to be just and fair to all communities
irrespective of their number. The term secular inserted by the Constitution (42 nd Amendment) Act, 1976, explains
that the state does not recognize any religion as a state religion and that it treats all religions equally, and with
equal respect, without, in any manner, interfering with their individual rights of religion, faith or worship. It does
not mean that it is an irreligious or atheistic state. Nor, it means that India is an anti-religious state. It neither
promotes nor practices any particular religion, nor it interferes with any religious practice. The constitution
ensures equal freedom to all religions.

The Supreme Court in St. Xavier’s College v. State of Gujarat[xxvi], explained “secularism is neither anti-God
nor pro-God, it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state
and ensures that no one shall be discriminated against on the grounds of religion”. That, every person is free to
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mould or regulate his relations with his God in any manner. He is free to go to God or to heaven in his own ways.
And, that worshipping God is left to be dictated by his own conscience.

In S.R Bommai v. Union of India[xxvii], a nine judge bench of the apex court observed that the concept of
“Secularism” was very much embedded in our constitutional philosophy. What was implicit earlier had been
made explicit by the constitution (42nd amendment) in 1976.

In Aruna Roy v. Union of India[xxviii], the Supreme Court has said that secularism has a positive meaning that
is developing, understanding and respect towards different religions. Recently in I.R Coelho v. State of Tamil
Nadu[xxix] it has been held that secularism is a matter of conclusion to be drawn from various Articles conferring
Fundamental Rights. “If the secular character is not to be found in Part III”, the Court ruled, “it cannot be found
anywhere else in the Constitution, because every fundamental right in Part III stands either for a principle or a
matter of detail”.

In Valsamma Paul v. Cochin University[xxx], the apex court emphasised that inter-caste marriages and adoption
were two important social institutions through which “secularism” would find its fruitful and solid base for an
egalitarian social order under the Constitution of India. “Secularism,” the court said, was a bridge between
religions in a multi-religious society to cross over the barriers of their diversity. In the positive sense it was the
cornerstone of an egalitarian and forward looking society which our constitution endeavored to establish.

 Democratic

The term Democracy is derived from Greek words ‘demos’ which means ‘people’ and ‘kratos’ which means
‘authority’. It thus means government by the people. Democracy may properly be defined as that form of
government in the administration of which the mass of adult popolutaion has some direct or indirect share.

 Republic

A republic means a state in which the supreme power rests in the people and their elected representatives or
officers, as opposed to one governed by the king or a similar ruler. The word ‘republic’ is derived from res
publica, meaning public property or commonwealth. According to Montesquieu, “a republican government is that
in which a body, or only a part of people, is possessed of the supreme power”. The term ‘republic’ is used in
distinction to monarchy. A republic means a form of government in which the head of the state is an elected
person and not a heredity monarch like the king or the queen in Great Britain. Under such a system, the political
sovereignty is vested in the people and the head of the state is the person elected by the people for a fixed term. In
a wider sense, the word ‘republic’ denotes a government where no one holds the public power as a proprietary
right, but all power is exercised for the common good-where inhabitants are the subjects and free citizens at the
same time. The constitution of India envisions

the Indian government as a ‘republican form of government’, in which, the ultimate power resides in the body of
the people exercised via universal adult suffrage. The president of India who is the executive head of the state is
elected by the people (though indirectly) who holds office for a term of five years. All citizens are equal in the
eyes of law, there is no privileged class and all public offices are open for all the citizens without any distinction
on basis of race, caste, sex or creed.
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In a republic, the state sovereignty is vested in, and held by the people, and the political power is exercised
popularly as an expression of the people’s sovereign command, grace or pleasure. The Constitution is adopted and
given to themselves by the People. The Constitution of India has been adopted enacted and given “To ourselves
by “We, the People”.

 Justice

The preamble of the constitution of India professes to secure to all its citizens political, economic and social
justice. Social justice means the abolition of all sorts of inequities which may result from the inequalities of
wealth, opportunity, status, race, religion, caste, title and the like. To achieve this ideal of social justice, the
constitution lays down the directives for the state in Part IV of the constitution.

In Air India Statutory Corporation v. United labourUnion[xxxiv], the Supreme Court observed that the aim of
social justice was to attain substantial degree of social, economic and political equality which was the legitimate
expectation and constitutional goal. It was held that social justice was dynamic device to mitigate the sufferings of
the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality, to
live a life with dignity of person.

The expression ‘economic justice’ means justice from the stand pint of economic force. In short, it means equal
pay for equal work, that every person should get his just dues for his labour irrespective of his caste, sex or social
status.

Political justice means the absence of any unreasonable or arbitrary distinction among men in political matters.
The constitution has adopted the system of universal adult suffrage, to secure political justice.

The expression ‘justice’ is the harmonious reconcilement of individual conduct with the general welfare of the
society. An act or conduct of a person is said to be just if it promotes the general well-being of the community.
Therefore, the attainment of the common good as distinguished from the good of individuals is the essence of
justice. Justice is considered to be the primary goal of a welfare state and its very existence rests on the
parameters of justice.

 Liberty

The preamble of constitution of India professes to secure liberty of belief, thought, expression, faith and worship
which are essential to the development of the individuals and the nation. Liberty or freedom signifies absence of
external impediments of motion. It implies absence of restraint. Liberty is power of doing what is allowed by law.
Aristotle stated that in democracy, liberty is supposed, for it is commonly held that no man is free in any other
government. Liberty is a concept of multiple strands. No universally accepted definition of liberty exists, although
statesmen and judges, among others, have attempted to give an all-comprising definition of the same. Liberty in
the preamble of constitution of India does not mean mere absence of restraint of domination. It is a positive
concept of the, ‘right to liberty of thought, expression, belief, faith and worship’. Acharya J.B Kriplani observed
that ‘liberty of thought, expression, belief, faith and worship’ all these freedoms can be only be guaranteed on the
basis of non-violence. Democracy is closely connected with the concept of liberty. Therefore, certain minimal
rights are to be enjoyed by every person in a community for free and civilized existence in the civil society. In an
ordered society, the liberty of no individual can be absolute or unfettered. It must be subject to social control, in
order to protect the collective interests of the aggregate of the individuals who constitute that society. For
example, for prevention and investigation of crimes and the prosecution of criminals. In order, to sustain
10
democracy, liberty is not to degenerate into license. This has been highlighted by Justice Ramaswamy in his
dissenting opinion in Kartar Singh’s Case.[xxxv]

Liberty is the most cherished possession of a man. Liberty is the right of doing an act which the law permits.
Constitution has recognized the existence of rights in every man. “Liberty is confined and controlled by law,
whether common law or statute. It is a regulated freedom. It is not an abstract or absolute freedom. The safeguards
of liberty lie in the good sense of the people and in the system of representative and responsible government,
which has been evolved. Liberty is itself the gift of law and may by the law forfeited abridged”[xxxvi]

Equality

Guaranteeing of certain rights to each individual is meaningless unless all equality is banished from the social
structure, and each individual is assured of equality status and opportunity for the development of what is best in
him. Rights carry no meaning, if they cannot be enjoyed equally by all members of the community. One of the
main tasks of the constitution makers was to ensure equality of status and opportunity for all and to provide basis
for ultimately establishing an egalitarian society. They proceeded to achieve these objectives by incorporating a
set of fundamental principles into the constitution.

 Fraternity

Fraternity means the spirit of brotherhood, a feeling that all people are children of the same soil, the same
motherland. The term was added to the preamble by a drafting committee of the constituent assembly, “as the
committee felt the need for fraternal concord and the goodwill in India was never greater than by then in this
particular aim of the new constitution should be emphasised by special mention in the preamble”. The drafting
committee has taken notice of the diversities of India based on race, religions, languages and cultures. Fraternity
is the cementing factor of the inherent diversities. Fraternity means brotherhood, the promotion of which is
absolutely essential for a country which is composed of many race and religions. Brotherhood is a particular kind
of relationship which links all human beings, irrespective of gender and generation. A democratic system will
function in a healthy manner only if there is a spirit of brotherhood, oneness among the people of the land.
Fraternity is not possible unless the dignity of each individual is preserved and mutually respected. The longing
for forming company paves the way for fraternity. Peaceful co-existence, live and let live others, mutual
understanding, feeling for inter-se cooperation, attitude of adjustment, sacrifice, to be useful to others, enjoyment
of common weal, solidarity for defence of all and other good human qualities develop fraternity- are the
promotion for the concept of fraternity. The expression ‘to promote among them all’ preceding the word
‘fraternity’ is significant in this respect. ‘Among them all’ promotes, more particularly the word ‘all’-not only
among under privileged classes but also among the entire people of India. ‘Do hereby adopt, enact’ etc. has been
borrowed from the last line the preamble of the Irish constitution. In the words of the Supreme Court- fraternity
means a sense of common brotherhood of all Indians. In a country like ours with so many disruptive forces of
regionalism, communalism and linguism, it is necessary to emphasis and re-emphasise that the unity and integrity
of India can be preserved only by a spirit of brotherhood. India has one citizenship and every citizen should feel
that he is Indian first irrespective of other basis.[xlii]

Dignity of the Individual

Dignity of the individuals is to be maintained for the promotion of fraternity. Therefore, the preamble of the
constitution of India assures the dignity of each and every individual. This dignity is assured by securing to each
individual equal fundamental rights and at the same time, by laying down a number of directives for the state to
11
direct its policies towards, inter alia, securing to all citizens, men and women equally, the right to an adequate
means of livelihood, just and humane conditions of work, a decent standard of life. The constitution of India seeks
to achieve ‘dignity of individual’ by guaranteeing equal fundamental rights to each individual, so that he can
enforce minimal rights, if invaded by anybody in the court of law. Dignity of individual in a nation is the dignity
of the nation itself. The preamble of constitution of India recognizes and ensures enforcement of Fundamental
Right necessary for existence, full development of personality, dignified lives such as equality and freedom of the
Indians. It is to be noted that our Supreme Court has read the preamble with article 21 to come to the conclusion
that the right to dignity is a fundamental right.

5. Preamble to the Constitution: A Comparative Study

Preamble is introductory part of the Constitution. Every constitution has its own preamble. There is comparative
study of preamble of USA and Canada as below:

The Preamble of the Constitution of USA

The Preamble of the constitution of USA declares,

“We the people of United States, in order to form a more perfect union, establish justice, insure domestic
tranquility, provide for the common defence, promote the general welfare, and secure the blessing of liberty to
ourselves, and our posterity, do ordain and establish this constitution for United States of America”.

The preamble of the constitution of the USA, in a precise form contains a “declaration” and a descriptive
objective. The declaration is to the effect that the people of United States “ordain and establish” the constitution
for the United States of America.

On the other hand, the preamble of the constitution of India serves two purposes:

1. It indicates the source from which the constitution derives its authority, and

2. It also states the objects which the constitution seeks to establish and promote.

The Constitution of India, like that of the United State of America, strikes one as a monumental piece prepared by
men of great eminence and patriotism. Undoubtedly there is a difference between the constitution of U.S.A and
India in phraseology and emphasis – more than a century and half has passed between the adoptions of two
Constitutions, many world events of far-reaching social and economic consequence had taken in the meantime
and people’s ideas had passed through radical transformations.

The constitution of U.S.A is the supreme law of the land. It guarantees fundamental right of person, property, and
liberty. It is however, noteworthy that these rights were incorporated in the constitution by a number of
amendments effected after the constitution was promulgated. They were not enumerated in the original draft of
the constitution. But by subsequent amendment individual liberty has been effectively safeguarded. Only 133
years later with 19th amendment, women acquired the right to vote. The rights of the citizen are made enforceable
by recourse to judiciary. These rights cannot be modified or suspended except by a constitutional amendment. The
constitution of U.S.A is based on popular sovereignty in the U.S.A is attributed to the people. Unlike the United

12
Kingdom where the hereditary monarchy is the head of the state, the United States of America is a republic with
the president as the elected head of the state. The constitution has derived its authority from the people.

Thus the constitution of the U.S.A is a unique constitution presenting a constitutional model entirely different
from U.K. Its stability and strength is the envy of the different constitution of the world .Some of the developing
democracies like Sri Lanka and Pakistan have opted for it. The constitution has aura of the sacred about it. It
occupies a shrine up in the higher stretches of American reverence.[xliii]

The Preamble of the Constitution of the Canada

The constitution of Canada consists of many laws as well as political convention and judicial practices. The
preamble state that the province of Canada nova Scotia and new Brunswick have expressed their desire to be
federally united into one domain under the crown with the constitution similar in the Principle to that of the
united kingdom. The preamble of the constitution has cited the four –fold objective:

 To fulfill the desire of the constituent units of Canada to form into a union under the crown
 That such a union would be conductive to welfare of the provinces and promote the interest of the British
empire
 That a legislative authority and an executive government be provided for and;
 To enable the eventual admission into the union of other parts of British north America

In compare to Canada Preamble Indian Preamble lays down main objective of state to be:

 To establish democratic, republic, sovereign, socialist and secular state

 To achieve Justice- social, economic and political;
 Liberty of thoughts, expression, belief, faith and worship;
 Equality of status and opportunity; and
 Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

As Indian Preamble lays down the basic structure of Indian Constitution which is not as such depicted in the
Preamble of Canada and USA, so it can be concluded that Indian Preamble is more structured than Preamble of
USA and Canada.

13
METHOD OF AMENDING THE CONSTITUTION AND ITS LIMITATION

Amending the Constitution of India is the process of making changes to the nation's fundamental law or
supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the
Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on
arbitrary power of the Parliament of India.

However, there is another limitation imposed on the amending power of the constitution of India, which
developed during conflicts between the Supreme Court and Parliament, where Parliament wants to exercise
discretionary use of power to amend the constitution while the Supreme Court wants to restrict that power. This
has led to the laying down of various doctrines or rules in regard to checking the validity/legality of an
amendment, the most famous among them is the Basic structure doctrine as laid down by the Supreme Court in
the case of KesavanandaBharati v. State of Kerala.

Procedure
The Constitution of India provides for a distinctive amending process when compared to the Constitutions of
other nations. It can be described as partly flexible and partly rigid. The Constitution provides for a variety in the
amending process. This feature has been commended by Australian academic Sir Kenneth Wheare who felt that
uniformity in the amending process imposed “quite unnecessary restrictions” upon the amendment of parts of a
Constitution.An amendment of the Constitution can be initiated only by the introduction of a Bill in either House
of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House
and by a majority of not less than two-thirds of the members of that House present and voting.There is no
provision for a joint sitting in case of disagreement between the two Houses. The Bill, passed by the required
majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make
any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures
of not less than one-half of the States. Although, there is no prescribed time limit for ratification, it must be
completed before the amending Bill is presented to the President for his assent.

Every constitutional amendment is formulated as a statute. The first amendment is called the "Constitution (First
Amendment) Act", the second, the "Constitution (Second Amendment) Act", and so forth. Each usually has the
long title "An Act further to amend the Constitution of India".

Types of amendments
The original constitution provided for three categories of amendments.

amendments can be effected by Parliament by a simple majority such as that required for the passing of any
ordinary law. The amendments under this category are specifically excluded from the purview of article 368
which is the specific provision in the Constitution dealing with the power and the procedure for the amendment of
the Constitution.

14
The second category includes amendments that can be effected by Parliament by a prescribed ‘special majority’;
and the third category of amendments includes those that require, in addition to such "special majority",
ratification by at least one half of the State Legislatures. The last two categories are governed by article 368.

Amendments under article 368

part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and
empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision
according to the procedure laid down therein, which is different from the procedure for ordinary legislation.[6]
Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively. The following is
the full text of Article 368 of the Constitution, which governs constitutional amendments. New clauses 368 (1)
and 368 (3) were added by the 24th Amendment in 1971, which also added a new clause (4) in article 13 which
reads, "Nothing in this article shall apply to any amendment of this Constitution made under article 368."[1] The
provisions in italics were inserted by the 42nd Amendment, but were later declared unconstitutional by the
Supreme Court in Minerva Mills v. Union of India in 1980.[4] After the 24th amendment, Article 4(2), etc. of the
constitution are superseded/made void by article 368 (1) which is the only procedure for amending the
constitution however marginal may be the nature of the amendment.[7] Supreme court ruled that the constituent
power under article 368 must be exercised by the Parliament in the prescribed manner and can not be exercised
under the legislative powers of the Parliament.

Limitations
The Constitution can be amended five to seven times by the Parliament; and only in the manner provided.
Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed
upon the amending power, meaning that there is no provision of the Constitution that cannot be amended. In
Abdul Rahiman Jamaluddin v. Vithal Arjun (AIR 1958 Bombay, 94, (1957)), the Bombay High Court held that
any attempt to amend the Constitution by a Legislature other than Parliament, and in a manner different from that
provided for, will be void and inoperative.[1]

The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of I.C. Golak Nath
and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13:
"The State shall not make any law which takes away or abridges the rights conferred by [the charter of
Fundamental Rights]". The term "law" in this article was interpreted as including a constitutional amendment.
Parliament responded by enacting the twenty-fourth Amendment of the Constitution of India which declared that
"nothing in Article 13 shall apply to any amendment of this Constitution".

The current limitation on amendments comes from KesavanandaBharati v. The State of Kerala, where the
Supreme Court ruled that amendments of the constitution must respect the "basic structure" of the constitution,
and certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to
remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that
"there shall be no limitation whatever on the constituent power of Parliament to amend ...this Constitution".
However, this change was itself later declared invalid by the Supreme Court in Minerva Mills v. Union of India.

The issue of whether an entire constitutional amendment is void for want of ratification or only an amended
provision required to be ratified under proviso to clause (2) of article 368 was debated before the Supreme Court
in KihotaHollohon v. Zachilhu (AIR 1993 SC 412), in which the constitutional validity of the Tenth Schedule of
15
the Constitution inserted by the 52nd Amendment in 1985 was challenged. The decisions of the
Speakers/Chairmen on disqualification, which had been challenged in different High Courts through different
petitions, were heard by a five-member Constitution Bench of the Supreme Court. The case, now popularly
known as Anti-Defection case, was decided in 1992. The Constitution Bench in its majority judgement upheld the
validity of the Tenth Schedule, but declared Paragraph 7 of the Schedule invalid because it was not ratified by the
required number of the Legislatures of the States as it brought about in terms and effect, a change in articles 136,
226 and 227 of the Constitution. While doing so, the majority treated Paragraph 7 as a severable part from the rest
of the Schedule. However, in the dissenting opinion, the minority of the Judges held that the entire Amendment is
invalid for want of ratification.

AN OVER VIEW OF CONSTITUTIONAL DEVELOPMENTS

The British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of
trading in India under a charter granted by Queen Elizabeth I. In 1765, the Company obtained the 'diwani' (rights
over revenue and civil justice) of Bengal, Bihar and Orissa. This started its career as a territorial power. In 1858,
in the wake of the 'sepoy mutiny', the British Crown assumed direct responsibility for the governance of India.
This rule continued until India was granted independence on 15 August, 1947.

With Independence came the need of a Constitution. A Constituent Assembly was formed for this purpose in 1946
and on 26 January, 1950, the Constitution came into being. However, various features of the Indian Constitution
and polity have their roots in the British rule. There are certain events in the British rule that laid down the legal
framework for the organisation and functioning of government and administration in British India. These events
have greatly influenced our constitution and polity.

Regulating Act, 1773

The act designated the Governor of Bengal as the Governor-General of Bengal. The First Governor-General of
Bengal was Lord Warren Hastings. The act subordinated the Governors of Bombay and Madras to the Governor-
General of Bengal.

The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.

Pitt's India Act of 1784

The act established Board of Control over the Court of directors to guide and supervise the affairs of the company
in India. It was introduced to remove the drawbacks of the Regulating Act. It was named after the then British
Prime Minister.

The act placed the Indian affairs under the direct control of the British Government.

Charter Act of 1833

Company's monopoly of trade with India was completely abolished. The act created the post of Governor General
of India. It made the Governor General of Bengal as the Governor General of India. First Governor General of
India was Lord William Bentick.

16
Governments of Bombay and Madras were deprived of their legislative powers. This was the final step towards
centralization in the British India. The act ended the activities of the East India Company as the commercial body.

Charter Act of 1853

In 1853, the charter act of 1833 was to time out and had to be renewed. It was renewed but no substantial changes
were made. Legislative and Executive Councils were separated.

The charter act of 1833 provided the Haileybury college of London should make quota to admit the future civil
servants. However, this system of an open competition was never effectively operated. A The Committee under
the chairmanship of Lord Macaulay had prepared the regulations in this context.

Government of India Act of 1858

British Crown assumed sovereignty over India from the East India Company. It provided absolute imperial
control without any popular participation in the administration of the country. This Act transferred the
Government, territories and revenues of India from the East India Company to the British Crown. The rule of
company was replaced by the rule of Crown in India.

The powers of the British Crown were to be exercised by the Secretary of State for India. The secretary of state
was a member of the British Cabinet. He was assisted by the Council of India, having 15 members. He was vested
with complete authority and control over the Indian administration through the Governor-General as his agent. He
was responsible ultimately to the British Parliament. The Governor General was made the Viceroy of India. Lord
Canning was the first Viceroy of India 1858.

Indian Councils Act of 1861

It introduced, for the first time, the representative institutions in India. It provided that the Governor
General's Executive Council should have some Indians as the non-official members while transacting the
legislative businesses.

The act initiated the process of decentralization by restoring the legislative powers to the Bombay and the Madras
Presidencies. It accorded the statutory recognition to the portfolio system.

Indian Councils Act of 1892

The act introduced the principle of elections but in an indirect manner. It enlarged the functions of the
Legislative Councils and gave them the power of discussing the Budget and addressing questions to the
Executive.

Indian Councils Act of 1909

This act is also known as the Morley-Minto Reforms after the Secretary of State for India (Lord Morley and the
Viceroy Lord Minto). It changed the name of the Central Legislative Council to the Imperial Legislative Council.

The act introduced a system of Communal representation for Muslims by accepting the concept of 'separate
electorate'. It was the first attempt to introduce a representative and popular element in Indian Administration.
Lord Minto came to be known as the 'Father of communal electorate'.

17
Government of India Act of 1919

This act is also called Montegue-Chelmsford Reform after the Secretary of State for India (Montegue) and the
Viceroy (Chelmsford). It introduced Dyarchy in the Provinces that is division of subjects of administration into
transferred and reserved. Transferred subjects to be the responsibility of Ministers responsible to the Legislative
Council. Indian Legislature to become Bi-Cameral (Council of State composed of 60 members and Legislature
Assembly composed of 144 members).

Simon Commission, 1927

In November 1927 (2 years before the schedule), the British Government announced the appointment a seven-
member statutory commission under the chairmanship of Sir John Simon to report on the condition of India under
its new Constitution. All the members of the commission were British and hence, all the parties boycotted the
commission.

The commission submitted its report in 1930 and recommended the abolition of diarchy, extension of responsible
government in the provinces, establishment of a federation of British India and princely states, continuation of
communal electorate and so on. To consider the proposals of the commission, the British Government
convened three round table conferences of the representatives of the British Government, British India and Indian
princely states.

On the basis of these discussions, a 'White Paper on Constitutional Reforms' was prepared and submitted for the
consideration of the Joint Select Committee of the British Parliament. The recommendations of this
committee were incorporated (with certain changes) in the next Government of India Act of 1935.

Communal Award, 1932

In August 1932, Ramsay MacDonald, the British Prime Minister, announced a scheme of representation of the
minorities, which came to be known as the Communal Award. The award not only continued separate electorates
for the Muslims, Sikhs, Indian Christians, Anglo-Indians and Europeans but also extended it to the
depressed classes (scheduled castes).

Gandhiji was distressed over this extension of the principle of communal representation to the depressed classes
and undertook fast unto death in Yeravada Jail (Poona) to get the award modified. At last, these was an agreement
between the leaders of the Congress and the depressed classes. The agreement, known as Poona Pact, retained the
Hindu joint electorate and gave reserved seats to the depressed classes.

Government of India Act 1935

The act provided for federation taking the Provinces and the Indian princely states as units. A federal court was to
be established. Burma was separated from India.

The act divided the powers between the centre and the units in terms of three lists, namely the Federal List, the
Provincial List and the Concurrent List. It provided for the establishment of a Reserve Bank of India to control the
currency and credit of the country.

The act introduced bicameralism in 6 out of 11 Provinces. These six Provinces were Assam, Bengal, Bombay,
Bihar, Madras and the United Province.

18
Indian independence Act of 1947

It was based on the famous Mountbetton Plan (3rd June, 1947). Parliament on July 5, 1947. The Act relieved the
assent of the crown on 18 July, 1947 and be became effective on 15 August, 1947. The main provisions were:

 Two Dominion States, India and Pakistan, came into existence on 15 August, 1947.
 The boundaries between the two Dominion States were to be determined by a boundary Commission headed by Sir
Cyril Radcliff.
 Both the states had the right to frame their Constitutions by their respective Constituent Assemblies. They also had
the right to leave the British Common wealth.
 Till the new Constitutions were not effective, the governments in the two states would be run on the basis of
Provisions of the Government of India Act, 1935.
 The British Crown ceased to be ruler of India.
 The members of the civil services appointed before 15 August, 1947 continued to remain in service and to enjoy all
benefits, which they were entitled to avail so far.

Composition of Constituent Assembly

The Constituent Assembly was constituted in November 1946 under the scheme formulated by the
Cabinet Mission Plan.

The total strength of the Constituent Assembly was to be 389. Of these 296 seats were to be allotted to British
India, 93 seats to the Princely States. Out of 296 seats allotted to the British India, 292 members were to be
drawn from the eleven governors' provinces and four from the four chief commissioners' provinces, one from
each.

Each province and princely state (or group of states in case of small states) were to be allotted seats in proportion
to their respective population. Roughly, one seat was to be allotted for every million population. Seats allocated to
each British province were to be decided among the three principal communities - Muslims, Sikhs and general (all
except Muslims and Sikhs), in proportion to their population.

The representatives of each community were to be elected by members of that community in the provincial
legislative assembly and voting was to be by the method of proportional representation by means of single
transferable vote. The representatives of princely states were to be nominated by the heads of the princely seats.
It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body.

The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces) were held in
July-August 1946. The Indian National Congress won 208 seats, the Muslim 73 seats, and the small groups and
independents got the remaining 15 seats. However, the 93 seats allotted to the princely states were not filled as
they decided to stay away from the Constituent Assembly.

The constituent Assembly was set up in November 1946 as per the Cabinet Mission Plan of 1946. The Drafting
Committee was appointed on 29 August 1947, with Dr. B.R. Ambedkar as the Chairman. Originally, the
constitution had 22 parts, 395 articles and 8 schedules. The only state having constitution of its own is Jammu and
Kashmir.

The Mountbetton plan of 3 June, 1947 announced the partition of the country and a separate constituent assembly
for the proposed state of Pakistan.

19
Working of the Constituent Assembly

The Constituent Assembly held its first meeting on 9 December, 1946. The Muslim League boycotted the meeting
and insisted on a separate state of Pakistan. The meeting was thus attended by only 211 members. Dr.
Sachchidanand Sinha, the oldest member, was elected as the temporary President of the Assembly, following the
French practice.

Later on 11 December, 1946, Dr. Rajendra Prasad and HC Mukherjee were elected as the president and vice-
president of the Assembly respectively. Sir B N Rau was appointed as the Constitutional advisor to the Assembly.

The Constituent Assembly worked in three phases:

 I Phase - 6 December 1946 to 14 August 1947

 II Phase - 15 August 1947 to 26 November 1949
 III Phase - 27 November 1949 to March 1952

20
UNIT 2

The democratic institutions created by the Constitution

Parliament of India
The Parliament of India is the supreme legislative body of the Republic of India. The Parliament is composed of the President of India
and the houses. It is bicameral with two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). The
President in his role as head of legislature has full powers to summon and prorogue either house of Parliament or to dissolve Lok Sabha.
The president can exercise these powers only upon the advice of the Prime Minister and his Union Council of Ministers.

Those elected or nominated (by the President) to either house of Parliament are referred to as members of parliament (MP). The
Members of Parliament, Lok Sabha are directly elected by the Indian public voting in Single-member districts and the Members of
Parliament, Rajya Sabha are elected by the members of all of the State Legislative Assembly by proportional representation. The
Parliament has a sanctioned strength of 545 in Lok Sabha including the 2 nominees from the Anglo-Indian Community by the President,
and 245 in Rajya Sabha including the 12 nominees from the expertise of different fields of science, culture, art and history. The
Parliament meets at Sansad Bhavan in New Delhi.

Indian people
Indians are the people who are the nationals or citizens of India, the second most populous nation containing 17.50%[25] of the world's
population. "Indian" refers to nationality, but not ethnicity or language. The Indian nationality consists of many regional ethno-linguistic
groups, reflecting the rich and complex history of India. India hosts all major ethnic groups found in the Indian Subcontinent. The
diaspora populations with Indian ancestry, as a result of emigration, are somewhat widespread most notably in Asia and North America.

Judiciary
The judiciary (also known as the judicial system or court system) is the system of courts that interprets and applies the law in the name
of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the
judiciary generally does not make statutory law (which is the responsibility of the legislature) or enforce law (which is the responsibility
of the executive), but rather interprets law and applies it to the facts of each case. However, the judiciary does make common law, setting
precedent for other courts to follow. This branch of the state is often tasked with ensuring equal justice under law.

In many jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review
power, may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the
provisions of the constitution or international law. Judges constitute a critical force for interpretation and implementation of a
constitution, thus de facto in common law countries creating the body of constitutional law. For a people to establish and keep the 'Rule
of Law' as the operative norm in social constructs great care must be taken in the election or appointment of unbiased and thoughtful
legal scholars whose loyalty to an oath of office is without reproach. If law is to govern and find acceptance generally courts must
exercise fidelity to justice which means affording those subject to its jurisdictional scope the greatest presumption of inherent cultural
relevance within this framework.

In the US during recent decades the judiciary became active in economic issues related with economic rights established by constitution
because "economics may provide insight into questions that bear on the proper legal interpretation". [3] Since many countries with
transitional political and economic systems continue treating their constitutions as abstract legal documents disengaged from the
economic policy of the state, practice of judicial review of economic acts of executive and legislative branches have begun to grow.

In the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and
oppressed by using a very broad interpretation of several articles of the Indian Constitution.[4]

Budget of the judiciary in many transitional and developing countries is almost completely controlled by the executive. The latter
undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution

21
including the government spending on the judiciary is subject of the constitutional economics. It is important to distinguish between the
two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private. [5]

The term "judiciary" is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the
core of a judiciary (sometimes referred to as a "bench"), as well as the staffs who keep the system running smoothly.

In some countries and jurisdictions, judiciary branch is expanded to include additional public legal professionals and institutions such as
prosecutors, state lawyers, ombudsmen, public notaries, judicial police service and legal aid officers. These institutions are sometimes
governed by the same judicial administration that governs courts, and in some cases the administration of the judicial branch is also the
administering authority for private legal professions such as lawyers and private notary offices.

Election Commission of India

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India.
The body administers elections to the Lok Sabha, Rajya Sabha, state Legislative Assemblies in India, and the offices of the President and
Vice President in the country.[1][2] The Election Commission operates under the authority of Constitution per Article 324,[3] and
subsequently enacted Representation of the People Act.[4] The Commission has the powers under the Constitution, to act in an
appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election.
Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom,
along with the country’s higher judiciary and lately the UPSC

Comptroller and Auditor General of India

The Comptroller and Auditor General (C&AG) of India is an authority, established by the Constitution under Constitution of
India/Part V - Chapter V/Sub-part 7B/Article 148, which audits all receipts and expenditure of the Government of India and the state
governments, including those of bodies and authorities substantially financed by the government. The CAG is also the external auditor of
Government-owned corporations and conducts supplementary audit of government companies, i.e., any non-banking/ non-insurance
company in which Union Government has an equity share of at least 51 per cent or subsidiary companies of existing government
companies. The reports of the CAG are taken into consideration by the Public Accounts Committees (PACs) and Committees on Public
Undertakings (COPUs), which are special committees in the Parliament of India and the state legislatures. The CAG is also the head of
the Indian Audit and Accounts Department, the affairs of which are managed by officers of Indian Audit and Accounts Service, and has
over 58,000 employees across the country.

Central Bureau of Investigation

The Central Bureau of Investigation (CBI) is the domestic security agency of India. The CBI is overseen by the Ministry of Personnel,
Public Grievances and Pensions of the Federal government, headed by a Cabinet Minister who reports directly to the Prime Minister.
Currently the CBI director is Alok Verma.

According to Supreme Court of India, the CBI has been criticized for being a "caged parrot speaking in its master's voice", due to its
excessive political interference irrespective of which party happened to be in power at the time.

Public Service Commission in India

Articles 315 to 323 in Part XIV [1] of the Constitution of India provides for the establishment of Public Service Commission for the
Union and a Public Service Commission for each State. The same set of Articles (i.e., 315 to 323 in Part XIV) of the Constitution also
deal with the composition, appointment and removal of members,power and functions and independence of a Public Service
Commission. Union Public Service Commission to conduct examinations for recruitment to all India services and higher Central services
and to advise the President on disciplinary matters. State Public Service Commission in every state to conduct examinations for
recruitment to state services and to advise the governor on disciplinary matters.

22
National Human Rights Commission of India
The Rights Commission (NHRC) of India is an autonomous public body constituted on 12 October 1993 under the Protection of
Human Rights Ordinance of 28 September 1993. [1] It was given a statutory basis by the Protection of Human Rights Act, 1993
(TPHRA).[2] The NHRC is the National Human Rights Commission of India,[3] responsible for the protection and promotion of human
rights, defined by the Act as "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants".

"Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or
embodied in the International covenants and enforceable by courts in India. "Commission" means the National Human Rights
Commission constituted under section of All human beings are born free and equal in dignity and rights known as Human rights, as
commonly understood, are the rights that every human being is entitled to enjoy freely irrespective of his religion, race, caste, sex and
nationality, etc. (Jagdish chand, 2007) In Declaration of Independence acknowledged the fundamental human rights. Human right means
different thing to different people. Human Rights are not static, but are rather dynamic in nature. New rights are recognized and enforced
from time to time. Only persons fully conversant with the latest development about the expanding horizons of Human Rights can
promote their awareness better than others.

Functions
 proactively or reactively inquire into violations of human rights or negligence in the prevention of such violation by a public
servant
 by leave of the court, to intervene in court proceeding relating to human rights
 to visit any jail or other institution under the control of the State Government, where persons are detained or lodged for
purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make
recommendations
 review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human
rights and recommend measures for their effective implementation
 review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial
measures
 to study treaties and other international instruments on human rights and make recommendations for their effective
implementation
 undertake and promote research in the field of human rights
 engage in human rights education among various sections of society and promote awareness of the safeguards available for the
protection of these rights through publications, the media, seminars and other available means
 encourage the efforts of NGOs and institutions working in the field of human rights
 such other function as it may consider it necessary for the protection of human rights.
 requisitioning any public record or copy thereof from any court or office.

DUTIES OF THE PRIME MINISTER OF INDIA

1. Forms the Government:
The Constitution specifically provides that the President shall appoint the ministers on the advice of the Prime
Minister. Prior to the passage of 42nd Amendment Act 1976, his advice used to be accepted by the President,
inconsonance with conventions of a parliamentary democracy.

The President cannot thrust his own choice on an unwilling Prime Minister. It is the latter who is to constitute a
team, which should work with him smoothly. He may include or exclude anybody from his Cabinet. Pandit Nehru
included such individuals. His Cabinet included Dr. John Mathai, an industrialist, C. D. Deshmukh, a retired

23
I.C.S., C.C. Biswas, retired judge of Calcutta High Court, G. Aiyyanger, K.C. Niyogi and T.T. Krishnamachari
former Dewans of the old native states.

V.K. Krishna Menon rightly remarked on the earlier cabinets of Pt. Nehru, “Perhaps it would be wrong to call
them composite cabinets but they certainly contained persons who were not Congress party members or even if
they were, were new entrants. Those cabinets may therefore be regarded as more formal.” Though there are no
constitutional restrictions on his choice, yet P.M’s. hands are fettered to some extent, by party compulsions,
geographical considerations, and due representation to the various communities inhabiting our land. The personal
likes and dislikes also matter.

A strong Prime Minister may not like to be led by party high command or dictated by any extraneous
consideration. To quote a few illustrations Mrs. Gandhi had in the past appointed Ch. Bansi Lal, once considered
strong man of Haryana as the Defence Minister and G.S. Dhillon, Speaker of the Lok Sabha as the Cabinet
Minister.

Next time she showed special consideration for Rao Birendra Singh, once Chief Minister of Haryana and
Chairman of the Vishal Haryana Party and Giani Zail Singh ex Chief Minister of Punjab. Her illustrious son Mr.
Rajiv Gandhi included in his Cabinet Ch. Bansilal and Sh. K.C. Pant who had suffered an eclipse earlier.
Likewise Narasimha Rao as Prime Minister or his successors Deve Gowda and I.K. Gurjral had constituted their
Council of Ministers.

However the hands of the latter two P.Ms were fettered as they had to appease 13 constituents which had formed
United Front and were keen to have men of their choice in the Council of Ministers. A.B. Vajpayee leading NDA
held the reins of the coalition ministry effectively but his hands also were clipped to quite a great extent. Certain
ministers were to be taken as they were the choices of the coalition partners. Likewise Dr. Manmohan Singh P.M.,
heading UPA Government—a coalition, even in the second tenure could not keep out the ministers recommended
by his coalition partners.

Even Parliament session remained stalled for many days, on account of opposition’s displeasure over the
inclusion of certain ministers whom they chose to call ‘tainted’ ministers. In these cases both the P.M.s in
succession at times happened to be helpless as the coalitional exigencies so necessitated it.

2. Allocation of Portfolios:
The Prime Minister allocates portfolios to the individual Minister according to his choice. He is empowered to
review the allocation of offices among his colleagues, from time to time. Though the Prime Minister possesses
discretionary authority to assign portfolios yet important party whips must get portfolios of substantial
importance, otherwise they would not accept the offices of insignificant nature.

24
For instance, Morarji Desai resigned when Mrs. Indira Gandhi, as the Prime Minister, deprived him of finance
portfolio. However, very rarely, the assignment is declined as it may mean end of political career or at least its
eclipse for times to come. After March, 1977 elections Morarji Desai, the then Prime Minister assigned portfolios
to the Ministers as he wished.

Nobody could question Mrs. Indira Gandhi’s shuffling of her pack as she pleased after January, 1980 elections.
Rajiv Gandhi also changed portfolios of ministers very often. For instance N.D. Tewari was earmarked external
affairs and Shiv Shankar was entrusted commerce. Sometimes later, Natwar Singh was allocated External Affairs
portfolio. Prime Minister Narasimha Rao believed in occasional change of portfolios though with caution.

Later I.K. Gujral the Prime Minister supported by a coalition of 13 parties and banking upon outside support of
Congress retained the CoM constituted by Deve Gowda his predecessor. However to Jaipal Reddy of Janata Dal,
he entrusted Information and broad-casting ministry. A.B. Vajpayee who led NDA found his hands fettered while
allocating portfolios due to pulls and pressures of coalitional parties. Jaswant Singh said to be the Front runner for
Finance portfolio was not included in the Cabinet due to R.S.S. axe on him. Instead Yashwant Sinha a former
bureaucrat was allocated this key portfolio L.K. Advani President BJP got Home. Samata Party President George
Fernandes was earmarked Defence whereas Prime Minister himself kept External Affairs.

Choice of nominees of each coalition partner and also the portfolio allocated to them to a great extent speaks of
compulsion of coalitional politics. The PM’s hands remained fettered due to undue pressures of all powerful
coalition partners viz., AIADMK, Lok Shakti, Akali Dal and extra constitutional centre of authority RSS. The
present incumbent—P.M. Dr. Manmohan Singh is no exception. Certain portfolios were specifically asked for by
some ministers. For example Mamata Banjerjee in the second UPA tenure persistently asked for Railways and got
it.

3. Shuffling of his Pack:

The Prime Minister can shuffle his pack as he pleases. As a captain of the team and head of the administration, he
can drop out any of his colleagues if in his opinion the presence of such a colleague is detrimental to policy of the
Government. If difference of opinion between him and any minister arises, it is the latter who quits. He can
demand his resignation. In the 1st UPA Government, Shibu Soren a JMM Party leader had to resign on the P.Ms’
asking due to an old case reopened against him. In August, 2006 External Affairs minister was ousted.

Later M.S. Gill was appointed Minister of Sports in place of Manishanker Iyer, keeping in view Common Wealth
Games, 2010, Besides Young Turks like Jyotiraditya Scindia and Minister of State Communication and Jatin
Prasad Minister of Steel were inducted in the CoM. In the recent past Dr. Manmohan Singh changed the portfolios
of certain ministers, e.g., Ajay Makan replaced H.S. Gill as Sport Minister. Kapil Sibal was given additional
charge of A. Raja’s portfolio of Telecom as the latter was involved in 2G Spectrum scam.

25
If a minister is reluctant to resign, on his own accord, he can dismiss him or eliminate him by formulating a new
ministry and excluding his name from it. According to the letter of law, dismissal of the minister can take place by
the President though on the advice of the Prime Minister. But this is a mere formality. Dr. Ambedkar said
“……….. No person shall be retained as a member of the Cabinet, if the Prime Minister says that he shall be
dismissed. It is only when members of the Cabinet both in the matter of their appointment as well as in the matter
of their dismissal are placed under the Prime Minister that it would be possible to realize our ideal of collective
responsibility…” It may however, be pointed out that dismissal is a very harsh step. Hence, generally, that may
not be resorted to.

4. Chairman of the Cabinet:

As a Chairman of the Cabinet, the P.M. presides over the meetings of the Cabinet and determines what business is
to be transacted in these meetings. In case of difference of opinion amongst the ministers in the meetings of the
Cabinet, he can impose his decision. He controls the agenda of the Cabinet meetings. He may accept or reject
proposals for Cabinet discussions.

A comparative study of functioning of Prime Ministers during the last decades reveals that the Prime Minister can
impose his will on the ministers and effectively control the Cabinet meetings only if he commands stable majority
at his back and has equation with the high command of the Party. Prime Ministers heading coalitions have been
comparatively more ineffective and more non assertive in the Cabinet meetings. An Editorial so commented
“More than his predecessor Mr. Deve Gowda, Mr. Gujral gave the impression of having been a back-seat driven
Prime Minister.

5. Coordinator:
The Prime Minister is the chief coordinator of government business. He is to coordinate the activities of several
heads of departments and various ministers. He is to see that the Governmental mechanism works harmoniously.
Due to the rapid growth of the activities of the State, the functions of the Government have got multiplied
considerably. Hence, the head of the Government is to share his burden with his trusted colleagues. Co-ordination
is done through various committees of the Cabinet and not the Prime Minister alone. A general supervision of the
departments is still done by him. The departmental heads invariably consult him in all major and minor matters.

6. Leader of the Lok Sabha:

The Prime Minister of India is a leader of the Lok Sabha unlike that of England, where the Prime Minister
designates another colleague as the leader of the House in order to lessen his onerous burden of responsibilities,
though the ultimate responsibility still rests with the Prime Minister. Our Prime Minister makes all important
policy announcements.

All questions on critical and baffling issues are addressed to him. He initiates and leads in the debates of a general
nature. He shields his colleagues on the floor of the House, for their errors of omission and commission. He

26
assists the speaker in maintaining order and discipline in the House. He keeps liaison with the opposition parties
so that the areas of disagreement are removed as much as possible.

In the words of Kaul, the Prime Minister “exercises direct influence on the course of business. The whole policy
of the Government and measures dealing with the course of its business is concentrated in his person.

7. Link between the President and the Cabinet:

He is the chief link between the President and the Cabinet. He communicates to the President all decisions of the
Cabinet, relating to the administration of the affairs of the Union and proposals for legislation. He is to furnish
such information to the President, as and when the latter asks for.

The President may require him to submit for the consideration of the Council any matter on which a decision was
taken by an individual minister. The critics are of the view that Rajiv Gandhi did not take President Giant Zail
Singh in his confidence for many matters that transpired between him and the Cabinet. Prime Ministers Narsimha
Rao, Deve Gowda and I.K. Gujral have been showing proper protocol by keeping in touch with President Dr. S.D.
Sharma. I.K. Gujral has been a frequent visitor of Rashtrapati Bhavan during his brief tenure as Prime Minister.
A.B. Vajpayee also has been following the tradition and so is the case with the present incumbent—Dr.
Manmohan Singh.

8. Makes Major Appointments:

He exercises vast patronage in the matter of appointments. In reality, all major appointments viz., Governors,
ambassadors, members of Public Service Commission etc. etc. are made by him, though in the name of the
President of India. He may consult his colleagues if he so wishes. Likewise some of the removals are effected
through him.

Rajiv Gandhi appointed Arjun Singh—a leader of the masses as Governor of Punjab to help solve ticklish Punjab
problem in most turbulent times in the history of our country. The latter was instrumental in Rajiv-Longowal
Punjab Accord. I.K. Gujral during his short tenure is said to have done maximum in accommodating his friends in
high assignments. A journalist assessing the tenure of Gujral commented “The only thing that would outlive Mr.
Gujral will be the army of friends whom he had put in different positions of office for terms more lasting than his
own…”

9. Spokesman of Government Policy:

He is the chief spokesman of the Government on all matters of domestic and foreign policy. His role in shaping
general policy is decisive. He represents India in various International and Commonwealth conferences.
Jawaharlal was a frequent visitor of foreign countries for various international agreements and treaties.

Indira Gandhi did not lag behind in this respect. She has been hailed like her father as cultural ambassador of the
spiritual East to the material West. She has been described by the foreign journalists, as a soft dove symbolizing
27
peace with sharp claws. Rajiv Gandhi was also doing commendable work in cementing India’s relations with the
foreign countries. He has left indelible stamp on the NAM and erstwhile Soviet Russian block.

In the initial stage, Reagan’s administration was also impressed by his visit to USA. His role in stabilizing
SAARC cannot be under-estimated. Narasimha Rao espoused policy of liberalisation and privatization to bring
country out of economic destitution. Gujral doctrine has been widely appreciated by the South Asian countries
and also the West. He has been a powerful spokesman for smooth relations between India and Pakistan and also
among SAARC countries.

P.M. Vajpayee made historic declaration of triple nuclear explosion at Pokhran on May 11, 1998. Dr. Manmohan
Singh recently announced that his government will enact a National Employment Guarantee Act to provide at
least 100 days of employment to one adult in the family. As a forceful spokesman of Indians aspiration to be a
global power, he has made impact in USA, erstwhile USSR, UK and France.

10. Leader of the Nation:

The Prime Minister is not only the leader of the majority party or head of the government, but he is also the leader
of the nation. He is to shape the destiny of the nation. It is said “when he speaks, the Nation has spoken”. The first
three General Elections have been in reality the elections of Prime Minister.

The slogan on the occasion of General Election was “Vote for the Congress and strengthen the hands of Nehru”.
K.R. Srinivasan Iyengar, writing on “Prime Minister”, said, “when he enters an Assembly, be it a Select
Committee or a mass rally, the effect is invariably the same. All eyes converge towards him, all hands clap in
eager affectionate welcome as if to a preordained tune, and in hushed expectancy watch his intrepid movements
and strain to catch his words and whispers. The men are a little out of breath, the women are almost oven
whelmed”. Jawaharlal Nehru, and Lal Bahadur Shastri, proved mirror of public opinion by their speeches.

The nation listened to them with rapt attention. Nehru, in particular, was the personification of Indian Nation. His
illustrious daughter Mrs. Indira Gandhi excelled her father in certain respects.

The nation extolled her to mystical heights by giving her massive vote in the mid-term and later General
Elections. She symbolized the Indian nation which considered her as a beacon-light in the hour of dismay and
distress. She led the nation successfully when Pakistan challenged our territorial integrity. She was hailed as the
leader of the masses. Her massive victory, after crushing defeat in 1977 stood witness to the fact that she had not
failed to captivate hearts of teeming millions once again.

Rajiv Gandhi was the youngest (with Benazir Bhutto coming in power in Pakistan in November 1988 he ceased to
be the youngest) Prime Minister of the world’s largest democracy. He succeeded in carving for himself a niche in
India’s history and in fact Indians’ mind. Suave, mild, affable but iron willed and firm, Rajiv captivated the hearts
of Indian masses.
28
He was acknowledged as a young dynamic leader of the Nation. He embodied hopes and aspirations of the young.
Had he not been assassinated, he would have been again heading the Government of the country and guiding the
destiny of the nation.

The Nation faced insatiability of Government for a few years, because no leader could match the political acumen
of stalwarts like Pt. Nehru, Lal Bahadur, Indira Gandhi, and Rajiv Gandhi. A.B. Vajpayee who headed NDA
emerged as the ray of hope for the teeming millions facing grinding poverty and destitution but his ‘India shining’
and “feel good” boost made him lose one year of tenure as P.M. as he proponed elections with the hope of
massive victory on false assumptions. The Indians pinned high hopes on the new leader Dr. Manmohan Singh,
who is a renowned economist, having a clean image and of unimpeachable integrity. His Nuclear Deal for civil
purposes with USA and efforts to improve G.D.P. earned him appreciation from a grateful nation in his first
tenure enabling him to come to power again with greater strength.

11. As Leader of the Party:

The Prime Minister in India has emerged as the leader of the Party, though ordinarily the President of the party
supporting the Prime Minister could afford to be more assertive yet in case of India both Pt. J.L. Nehru and his
daughter. Mrs. Indira Gandhi succeeded in making the Congress President to their respective lines. Only for a
brief spell of time, after the death of Pandit Nehru, K. Kamraj, Congress President assumed the job of “King
maker” and was instrumental in bringing Lai Bahadur Shastri at the helm of governmental affairs.

However his political ascendancy was only a matter of time. Since Mrs Indira Gandhi meteoric rise on the
political horizon, the Congress Presidents once again started dancing to the Prime Minister’s tune. The split of the
Congress and the rout of the syndicate at the hands of the New Congress in the Lok Sabha election in March 1971
and States’ election of February 1972 restored the old glory of the Prime Minister’s office and Indira Gandhi
emerged as the leader both of the party and the Government.

The Congress party was named after her. Congress (I)’s victory reflected that her leadership was unassailable. Her
successor Rajiv Gandhi was not only the Prime Minister but the President of the Congress (I). His writ ran in the
party. Thus the substance of power lies with the government while the party only exercises its influence.
Government means the Prime Minister and his palatable team of yesmen.

In BJP led government A.B. Vajpayee enjoyed supreme position as the leader of the party. In the present UPA Dr.
Manmohan Singh, is likely to toe the lines laid down by Mrs. Sonia Gandhi— the Congress president and chair-
person of coordination committee of UPA. She is being portrayed as the king maker. However she has not been
over assertive and has shown highest regard for Dr. Manmohan Singh, who has gradually gained ground among
the Indian masses as well.

29
President of India
The President of the Republic of India is the head of state of India and the commander-in-chief of the Indian
Armed Forces.

The President is indirectly elected by an electoral college comprising the Parliament of India (both houses) and
the Legislative Assemblies of each of India's states and territories, who themselves are all directly elected.

Although the Article 53 of the Constitution of India states that the President can exercise his powers directly or by
subordinate authority, with few exceptions, all of the executive powers vested in the President are, in practice,
exercised by the Prime Minister (a subordinate authority) with the help of the Council of Ministers.[3] The
President is bound by the constitution to act on the advice of the Prime Minister and Cabinet as long as the advice
is not violating the constitution.

Name
1 Rajendra Prasad
2 Sarvepalli Radhakrishnan
3 Zakir Husain
V. V. Giri (Acting President)
Mohammad Hidayatullah
(Acting President)
4 V. V. Giri
5 Fakhruddin Ali Ahmed
Basappa Danappa Jatti (
Acting President)
6 Neelam Sanjiva Reddy
7 Giani Zail Singh
8 Ramaswamy Venkataraman
9 Shankar Dayal Sharma
10 Kocheril Raman Narayanan
11 A.P.J Abdul Kalam
12 Pratibha Patil
13 Pranab Mukherjee
14 Ram Nath Kovind
Tenure
26th January 1950 – 12th May 1962
13th May 1962 – 13th May 1967
13th May 1967 – 3rd May 1969
3rd May 1969 – 20th July 1969
20th July 1969 – 24th August 1969
24th August 1969 – 24th August 1974
24th August 1974 – 11th February 1977
11th February 1977 – 25th July 1977
25th July 1977 – 25th July 1982
25th July 1982 – 25th July 1987
25th July 1987 – 25th July 1992
25th July 1992 – 25th July 1997
25th July 1997 – 25th July 2002
25th July 2002 – 25th July 2007
25th July 2007 – 25th July 2012
25th July 2012 – 25th July 2017
Incumbent – From 25th July 2007

Powers and duties

Duty
The primary duty of the President is to preserve, protect and defend the constitution and the law of India as made
part of his oath (Article 60 of Indian constitution). The President is the common head of all independent
constitutional entities. All his actions, recommendations (Article 3, Article 111, Article 274, etc.) and supervisory
powers (Article 74(2), Article 78 c, Article 108, Article 111, etc.) over the executive and legislative entities of

30
India shall be used in accordance to uphold the constitution. There is no bar on the actions of the President to
contest in the court of law.

Legislative powers

Legislative power is constitutionally vested by the Parliament of India of which the President is the head, to
facilitate the law making process per the constitution (Article 78, Article 86, etc.). The President of the Republic
summons both the Houses (The House of the People and 'The Council of States') of the Parliament and prorogues
them. He can dissolve the Lok Sabha.

The President inaugurates Parliament by addressing it after the general elections and also at the beginning of the
first session every year per Article 87(1). The Presidential address on these occasions is generally meant to outline
the new policies of the government.

All bills passed by the Parliament can become laws only after receiving the assent of the President per Article
111. After a bill is presented to him, the President shall declare either that he assents to the Bill, or that he
withholds his assent from it. As a third option, he can return a bill to Parliament, if it is not a money bill, for
reconsideration. President may be of view that a particular bill passed under the legislative powers of parliament
is violating the constitution, he can send back the bill with his recommendation to pass the bill under the
constituent powers of parliament following the Article 368 procedure. When, after reconsideration, the bill is
passed accordingly and presented to the President, with or without amendments, the President cannot withhold his
assent from it. The President can also withhold his assent to a bill when it is initially presented to him (rather than
return it to Parliament) thereby exercising a pocket veto on the advice of prime minister or council of ministers
per Article 74 if it is inconsistent to the constitution.[10] Article 143 gave power to the president to consult the
Supreme Court about the constitutional validity of any issue. President shall assent the constitutional amendment
bills without power to withhold the bills per Article 368 (2).

When either of the two Houses of the Parliament of India is not in session, and if the government feels the need
for an immediate procedure, the President can promulgate ordinances which have the same force and effect as an
act passed by Parliament under its legislative powers. These are in the nature of interim or temporary legislation
and their continuance is subject to parliamentary approval. Ordinances remain valid for no more than six weeks
from the date the Parliament is convened unless approved by it earlier.[12] Under Article 123, the President as the
upholder of the constitution shall be satisfied that immediate action is mandatory as advised by the union cabinet
and he is confident that the government commands majority support in the Parliament needed for the passing of
the ordinance into an act and Parliament can be summoned to deliberate on the passing of the ordinance as soon as
possible. The promulgated ordinance is treated as an act of Parliament when in force and it is the responsibility of
the President to withdraw the ordinance as soon as the reasons for promulgation of the ordinance are no longer
applicable. Bringing laws in the form of ordinances has become a routine matter by the government and President,
but the provisions made in Article 123 are meant for mitigating unusual circumstances where immediate action is
inevitable when the extant provisions of law are inadequate. Re-promulgation of ordinances after failing to get
approval within the stipulated time of both houses of parliament is an unconstitutional act by the President.[13]
President should not incorporate any matter in an ordinance which is violating the constitution or needs
amendment to the constitution. The President should take moral responsibility when an ordinance elapses
automatically or is not approved by the Parliament or violating the constitution.[14]

Executive powers

Per Article 53, the executive power of the country is vested in the President and is exercised by President either
directly or through officers subordinate to him in accordance with the Constitution. When parliament thinks fit it
31
may accord additional executive powers to the president per Article 70 which may be further delegated by the
president to the governors of states per Article 160. Union cabinet with Prime Minister as its head, should aid and
advice the President in performing his functions. Per Article 74 (2), the council of ministers or Prime Minister are
not accountable legally to the advice tendered to the President but it is the sole responsibility of the President to
ensure compliance with the constitution in performing his duties. President or his subordinate officers is bound by
the provisions of the constitution notwithstanding any advice by union cabinet.[15]

Per Article 142, it is the duty of President to enforce the decrees of Supreme Court.

Judicial powers

The primary duty of the President is to preserve, protect and defend the constitution and the law of India per
Article 60. The President appoints the Chief Justice of the Union Judiciary and other judges on the advice of the
Chief Justice. He dismisses the judges if and only if the two Houses of the Parliament pass resolutions to that
effect by a two-thirds majority of the members present.[16]

Attorney General for India who is the Indian government's chief legal advisor, is appointed by the President of
India under Article 76(1) and holds office during the pleasure of the President. If the President considers a
question of law or a matter of public importance has arisen, he can also ask for the advisory opinion of the
Supreme Court per Article 143. Per Article 88, President can ask the Attorney General to attend the parliamentary
proceedings and report to him any unlawful functioning if any.[17]

Appointment powers

The President appoints, as Prime Minister, the person most likely to command the support of the majority in the
Lok Sabha (usually the leader of the majority party or coalition). The President then appoints the other members
of the Council of Ministers, distributing portfolios to them on the advice of the Prime Minister.[18]:72 The Council
of Ministers remains in power at the 'pleasure' of the President.

The President appoints 12 members of the Rajya Sabha from amongst persons who have special knowledge or
practical experience in respect of such matters as literature, science, art and social service. President may
nominate not more than two members of Anglo Indian community as Lok Sabha members per Article 331

Governors of States are also appointed by the President who shall work at the pleasure of the President. Per
Article 156, President is empowered to dismiss a governor who has violated the constitution in his acts.

The President is responsible for making a wide variety of appointments. These include:

 The Chief Justice, other judges of the Supreme Court and High Courts of India
 The Chief Minister of the National capital territory of Delhi (Article 239 AA 5 of the constitution)
 The Attorney General
 The Comptroller and Auditor General
 The Chief Election Commissioner and other Election Commissioners
 The Chairman and other Members of the Union Public Service Commission
 Vice-Chancellor of the central university and academic staff of the central university through his nominee
 Ambassadors and High Commissioners to other countries (only through the list of names given by the Prime
Minister)[19][20]:48

32
Financial powers

 A money bill can be introduced in the Parliament only with the President’s recommendation.
 The President lays the Annual Financial Statement, i.e. the Union budget, before the Parliament.
 The President can take advances out of the Contingency Fund of India to meet unforeseen expenses.
 The President constitutes a Finance commission after every five years to recommend the distribution of the taxes
between the centre and the States.[21][22]:48

Diplomatic powers

All international treaties and agreements are negotiated and concluded on behalf of the President.[23]:18 However,
in practice, such negotiations are usually carried out by the Prime Minister along with his Cabinet (especially the
Foreign Minister). Also, such treaties are subject to the approval of the Parliament. The President represents India
in international forums and affairs where such a function is chiefly ceremonial. The President may also send and
receive diplomats, i.e. the officers from the Indian Foreign Service.[11]:143 The President is the first citizen of the
country.[19]

Military powers

The President is the Supreme Commander of the Indian Armed Forces. The President can declare war or conclude
peace,[19] on the advice of the Union Council of Ministers headed by the Prime Minister. All important treaties
and contracts are made in the President's name.[24] He also appoints the chiefs of the service branches of the armed
forces.

Pardoning powers
See also: Presidential pardon

As mentioned in Article 72 of the Indian Constitution, the President is empowered with the powers to grant
pardons in the following situations:[19]

 Punishment is for an offence against Union Law

 Punishment is by a Military Court
 Sentence is that of death[24]

The decisions involving pardoning and other rights by the President are independent of the opinion of the Prime
Minister or the Lok Sabha majority. In most cases, however, the President exercises his executive powers on the
advice of the Prime Minister and the cabinet.[18]:239[25]

Emergency powers

The President can declare three types of emergencies: national, state and financial, under articles 352, 356 & 360
in addition to promulgating ordinances under article 123.[23]:12

National emergency
See also: The Emergency (India)

A national emergency can be declared in the whole of India or a part of its territory for causes of war or armed
rebellion or an external aggression. Such an emergency was declared in India in 1962 (Indo-China war), 1971
(Indo-Pakistan war),[26] and 1975 to 1977 (declared by Indira Gandhi).[see main]
33
Under Article 352 of the India Constitution, the President can declare such an emergency only on the basis of a
written request by the cabinet of ministers headed by the Prime Minister. Such a proclamation must be approved
by the Parliament with two thirds majority within one month. Such an emergency can be imposed for six months.
It can be extended by six months by repeated parliamentary approval-there is no maximum duration.[23][page needed]

In such an emergency, Fundamental Rights of Indian citizens can be suspended.[5]:33 The six freedoms under Right
to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended
(Article 21).[27]:20.6

The President can make laws on the 66 subjects of the State List (which contains subjects on which the state
governments can make laws).[28] Also, all money bills are referred to the President for approval.[22]:88 The term of
the Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of Parliament
beyond six months after the end of the declared emergency.[18]:223

National Emergency has been proclaimed 3 times in India till date. It was declared first in 1962 by President
Sarvepalli Radhakrishnan, during the Sino-Indian War. This emergency lasted through the Indo-Pakistani War of
1965 and up to 1968. It was revoked in 1968. The second emergency in India was proclaimed in 1971 by
President V. V. Giri on the eve of the Indo-Pakistani War of 1971. The first two emergencies were in the face of
external aggression and War. They were hence external emergencies. Even as the second emergency was in
progress, another internal emergency was proclaimed by President Fakhruddin Ali Ahmed, with Indira Gandhi as
Prime Minister in 1975. In 1977, the second and the third emergencies were together revoked.

State emergency
See also: Federalism in India

If the President is fully satisfied, on the basis of the report of the Governor of the concerned state or from other
sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he can
proclaim under Article 356 a state of emergency in the state. Such an emergency must be approved by the
Parliament within a period of 2 months.

Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum period of three
years with repeated parliamentary approval every six months. If the emergency needs to be extended for more
than three years, this can be achieved by a constitutional amendment, as has happened in Punjab and Jammu and
Kashmir.

During such an emergency, the President can take over the entire work of the executive, and the Governor
administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in
suspended animation. The Parliament makes laws on the 66 subjects of the state list[29] (see National emergency
for explanation).

A State Emergency can be imposed via the following:

1. By Article 356 – If that state failed to run constitutionally, i.e. constitutional machinery has failed. When a state
emergency is imposed under this provision, the state is said to be under "President's rule.[30]:159
2. By Article 365 – If that state is not working according to the direction of the Union Government issued per the
provisions of the constitution.[31]

This type of emergency needs the approval of the parliament within 2 months. It can last up to a maximum of
three years via extensions after each 6-month period. However, after one year it can be extended only if
34
 1. A state of National Emergency has been declared in the country or in the particular state.
2. The Election Commission finds it difficult to organise an election in that state.

The Sarkaria Commission held that presidents have unconstitutionally misused the provision of Article 356 many
times for achieving political motives, by dismissing the state governments although there was no constitutional
break down in the states.[32] During 2005, President's rule was imposed in Bihar state, misusing Article 356
unconstitutionally to prevent the democratically elected state legislators to form a government after the state
elections.

There is no provision in the constitution to re-promulgate president's rule in a state when the earlier promulgation
ceased to operate for want of parliaments approval within two months duration. During 2014 in Andhra Pradesh,
president's rule was first imposed on 1 March 2014 and it ceased to operate on 30 April 2014. President's rule was
promulgated after being fully aware that the earliest parliament session is feasible in the end of May 2014 after
the general elections. It was reimposed again unconstitutionally on 28 April 2014 by the president.[33][34]

Financial emergency

Article 282 accords financial autonomy in spending the financial resources available with the states for public
purpose. Article 293 gives liberty to states to borrow without any limit to its ability for its requirements within the
territory of India without any consent from the union government. However union government can insist for
compliance of its loan terms when a state has outstanding loan charged to the consolidated fund of India or an
outstanding loan in respect of which a guarantee has been given by the Government of India under the liability of
consolidated fund of India.[36]

Under article 360 of the constitution, President can proclaim a financial emergency when the financial stability or
credit of the nation or of any part of its territory is threatened.[7] However, until now no guidelines defining the
situation of financial emergency in the entire country or a state or a union territory or a panchayat or a
municipality or a corporation have been framed either by the finance commission or by the central government.

Such an emergency must be approved by the Parliament within two months by simple majority. It has never been
declared. A state of financial emergency remains in force indefinitely until revoked by the President.

The President can reduce the salaries of all government officials, including judges of the Supreme Court and High
Courts, in cases of a financial emergency. All money bills passed by the State legislatures are submitted to the
President for approval. He can direct the state to observe certain principles (economy measures) relating to
financial matters.

Executive Functions and positions

1. Head of the Union: The President is at the head of the Union Executive. Consequently, all executive powers
are exercised in his name. The executive power of the Union to be exercised by the President is extended to the
matters with respect to which Parliament has power to make laws and to conclude treaty and agreement.

2. Appointments: As head of the executive, the President appoints the Governors of States, the Judges of the
Supreme Court and the High Courts, the Auditor General of India and many other high officials, such as the
members of Finance Commission, Election commission, Union Public commission etc.

3. Appointment of the Prime Minister and other Ministers: The President also appoints the Prime Minister
and with his advice the other Ministers of the Union Council of Ministers. But here too, as in all other
35
appointments, the President can seldom use his discretion. He is, ordinarily, duty-bound to summon the leader of
the political party which secures an absolute majority in the Lok Sabha to become the Prime Minister and form
the Ministry. He does enjoy some discretionary powers in the matter only under exceptional circumstances. When
no single political party wins a clear absolute majority and, as a result, no Council of Ministers can be formed
without a coalition of parties the President can exercise his discretion judiciously in appointing the Prime
Minister. Such situations developed in the past.

India has entered into an age of coalition politics. And it may so happen that no single party will be able to secure
an absolute majority, and the President may be required to exercise his discretionary power for some time to
come, in appointing Prime Minister.

4. Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally remains in office for five
years, unless dissolved earlier for any reason. The President must be satisfied that the Council of Ministers enjoys
the confidence of the majority of the Lok Sabha. In case of any doubt he can ask the Council of Ministers to prove
its majority in the Lok Sabha, as the Prime Ministers Sri H.D. Deve Gowda was asked by the President after the
official withdrawal of support by the Congress Party from Ministry. The President can also dissolve the Union
Council of Ministers in accordance with Article 75(2) of the constitution, if he finds that the Ministry does not
enjoy the support of the majorities in the Lok Sabha.

5. Supreme Commander: As head of State, the President is the supreme Commander of the Armed Forces of
India and is entitled to declare war or conclude a treaty.

Legislative Powers and Functions

1. President is a part of Parliament: The Union Legislature or Parliament consists of the President and two
Houses of Parliament. The President is, therefore, an integral part of Union Legislature. He shall summon from
time to time, either separately or jointly, the Houses of Parliament. The President can prorogue the Houses or
either House of Parliament and, if necessary, can dissolve the lower Chamber of Parliament, the Lok Sabha. For
example, the President solved the twelfth Lok Sabha in early 1999 when the confidence motion in favour your of
the Vajpayee government was lost in the Lok Sabha.

2. Summons and Addresses Parliament: The President may address either or both House of Parliament. In such
address, at the first session after general election to the Lok Sabha and at beginning of a joint session of
Parliament each year, he may place the reasons for summoning it. Apart from addressing Parliament, the
President may also, in case of necessities, send messages to either House, or to both Houses [Article 86(2)].
Normally, the President does not send such a message, unless however, he has a serious disagreement with the
Council of Ministers.

3. Nomination: The President nominates a number of members in both Houses. The chief purpose of the
nomination is to ensure adequate representation in Parliament of all sections of population which many not always
be achieved through elections.

4. Power in respect of Bills: The President has certain functions in respect of passing of a Bill. A bill passed by
both the Houses of Parliament requires his assent in order to become an Act. He may give his assent to a bill or
can withhold assent when a bill, after getting approved in both the Houses, is placed before the President. But, if
Parliament, acting on President’s refusal to assent to a bill, passes it again with or without amendment, for the

36
second time and presents it to the President for his approval, the President shall not withhold his assent there from
under Article 111. In other words, it becomes obligatory upon him to give his assent.

In certain cases, prior sanction of the President is required for initiating any legislation. For instance, bill for
formation of a new State or altering the boundaries of the existing State or States is to be placed before Parliament
with prior approval of the President. Money bill is another example where obtaining of such approval of the
President is a constitutional necessity.

5. Bill passed by a State Legislature: A bill passed by a State Legislature may also be reserved for the
consideration of the President by the Governor of that State. The President enjoys this right in relation to a bill
passed by a State Legislature only in such cases where those are referred to him by the Government of a State
under Article 200.

FRANCHISE AND ADULT FRANCHISE

In India, Every adult (whos age is above 18) rich or poor irrespective of their religion caste or education is free to
vote.Universal Adult Franchise is based on the concept of equality.

The right of the people to vote and elect their representatives is called franchise. Adult franchise means that the
right to vote should be given to all adult citizens without the discrimination of caste, class, colour, religion or sex.
It demands that the right to vote should be equally available among all. To deny any class of persons from
exercising this right is to violate their right to equality. the system of adult franchise is the bedrock of a
democratic system. People are called political sovereign because they possess the right to vote a government into
power, or to vote a government out of power

Universal adult franchise enables all citizens to be involved in the governance of their state. They do so by
electing their representatives who govern to serve and protect the interests of the people.

Article 326

Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult
suffrage.— The elections to the House of the People and to the Legislative Assembly of every State shall be on
the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen
years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature
and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the
ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be
registered as a voter at any such election.

Evolution

 Paradoxically, our Constitution which provides for Universal adult suffrage was drafted by a Constituent
Assembly that was composed of members elected by restricted franchise.
 The Motilal Nehru report of 1928 advocated unlimited adult franchise and equal rights for women.
 The resolution of the 1931 Karachi session of the Indian National Congress adopted a resolution on
Fundamental Rights and Economic Policy which encapsulated the notion of universal adult franchise.
 India adopted the principle of universal adult franchise when the present Constitution was enacted in 1949
which as you know was implemented on January 26, 1950.
37
World context

 The western countries, which are known for their long experience of some sort of representative system of
governance, introduced adult franchise only in the wake of the First World War (1914 – 18), a war which
was proclaimed to be fought by the Allied Powers (Great Britain, France and United States and the allies)
to make the ‘world safe for democracy’.
 The ‘defeated’ Germany incorporated the principle of universal adult franchise in 1919, it took nine more
years for Great Britain to Democracy at Work extend franchise to women in 1928. In 1918, Britain had
granted franchise to limited number of women. It was decided that while all adult men, 21 years of age
and above would have the right to vote, women only above the age of 30 years could possess the right to
vote. This discrimination was removed only in 1928.

France, the land that gave the popular slogans of Liberty, Equality and Fraternity, could introduce the
right of universal adult franchise to its people only after the end of the Second World War i.e. 1945.

Switzerland, the home of direct democracy denied the right to vote to women till 1973. India
adopted the principle of universal adult franchise when the present Constitution was enacted in 1949
which as you know was implemented on January 26, 1950.

Age of voting across the world

 The voting age varies from country to country.

 In Denmark and Japan, a person, man or woman, is entitled to vote after attaining the age of 25 years.
 In Norway, the age limit is 23, in Great Britain, the United States, Russia and Turkey it is 18.
 In Switzerland, it is 20 years.
 In our country, now the minimum age for exercising franchise is 18 years. The 61st Amendment Act
lowered the voting age from 21 to 18 years.

Importance of Universal Adult Suffrage

The introduction of universal adult suffrage is considered one of the most important decisions that changed India
for the better. Granting voting rights to all is no mean achievement for the founding fathers of Indian Constitution,
especially Dr B.R. Ambedkar. It provided the government with “unchallengeable legitimacy against any military
intervention” or secessionist movements. Besides achieving gender equality by giving women the right to vote, it
eliminated untouchability and ensured equal opportunities for backward class people as well.

The concept of universal adult suffrage along with free and fair voting are looked upon as the “guarantors of
minority rights.” It also had a trickle-down impact on poverty alleviation. By allowing voting rights to all citizens,
the poor found an opportunity to choose the political administrators and increase the scope of governance at a
local level. The direct outcome is prosperity at grassroots level and development of infrastructure.

Another significant transformation that has become evident over the years is the representation of backward
sections in Parliament. The composition of the members of Parliament has changed to include individuals from
those communities, who become the voice of the oppressed.

The voting age varies from country to country. In Denmark and Japan, a person, man or woman, is entitled to vote
after attaining the age of 25 years. In Norway, the age limit is23, in Great Britain, the United States, Russia and
Turkey it is 18. In Switzerland, it is 20 years. In our country, now the minimum age for exercising franchise is 18

38
years. The 61st Amendment Act of 1989 lowered the voting age from 21 to 18 years. There are certain qualifications
prescribed for a voter in India. As you have already read, a voter:

 must be a citizen of India,

 must have attained 18 years of age,
 must not be of unsound mind,
 must not have been declared bankrupt by a competent court.
Methods of Representation
Universal adult franchise enables all citizens to be involved in the governance of their
state. They do so by electing their representatives who govern to serve and protect the
interests of the people. There are two main methods of electing representatives. These
are known as Territorial and Functional representation.

Territorial Representation
This is the most popular method of electing representatives in most of the democratic
countries. In this system all eligible voters living in a specified area vote to elect their
representative. The total electorate of the country, irrespective of their profession or group
is divided into territorial constituencies, which elect one or more representatives. The
entire population is devided into constituencies with more or less equal number of voters.

Functional Representation
Functional representation means that representatives are elected by various professional
and functional groups like – industrial workers, trading functionaries, medical practitioners,
lawyers, teachers, transporters, etc. According to this method separate constituencies are
set up for people belonging to specific group. For example, there may be a constituency of
teachers who elect their representative. The electorate is professionally or functionally categorized and each of
professional categories is called upon to elect one or more representatives, irrespective of their place of residence in the
country. Unlike the territorial representation the electorate is not divided on the basis of territorial constituencies but on
the basis of their profession. It is a scheme of representation to various occupational groups

ELECTION COMMISSION
The Election Commission of India is an autonomous, quasi-judiciary constitutional body of India. Its mission is to
conduct free and fair elections in India. It was established on 25 January 1950 under Article 324 of the
Constitution of India. The commission presently consists of a Chief Election Commissioner and two Election
Commissioners, appointed by the president. Until October 1989, there was just one Chief Election Commissioner.
In 1989, two Election Commissioners were appointed, but were removed again in January 1990. In 1991,
however, the Parliament of India passed a law providing for the appointment of two Election Commissioners.
This law was amended and renamed in 1993 as the Chief Election Commissioner and other Election
Commissioners (Conditions of Service) Amendment Act 1993. As of 7 April 2011, the CEC is Shahabuddin
Yaqoob Quraishi.

Composition of Election Commission- Article324(2) of the constitution provides that the Election Commission
shall consist of

39
the Chief Election Commissioner and such number of other Election Commissioners if any, as the President may
fix from time to time .
PROVISION OF MULTI-MEMBER ELCTION COMMISSION: Though
an Act of the Parliament passed on Dec,20,1993,
provisions has been made of a multi-member Election Commission.
APPOINTMENT- Acc to Article-324(2) the appointment of
the chief Election Commissioner, the other Election
Commissioners and the Regional Commissioner shall be
made by the President of India in accordance with the rules

laid down by the Parliament.

Qualifications- Indian constitution is salient in this regard.

TENURE- Fixed by the President according to the rules
laid down by the Parliament.
REMOVAL FROM OFFICE- The method of removal
from office of the chief Election commissioner is same
as that of the Judges of Supreme Court.
SALARY AND CONDITION OF SERVICE- Fixed by the President according to the rules laid down by the
Parliament.

STAFF FOR ELECTION COMMISSION-Appointed by the President and the Governors respectively.

FUNCTIONS OF ELECTION COMMISSION

The Superintendence, Direction and Control of

Election Preparation of Electoral Rolls

To declare the date of Election

To reognise and derecognise Political Parties

To prepare code of conduct for Political Parties

Control over the staff connected with Election

To conduct Election

To establish Polling Stations

Safety of Ballot Boxes and Counting

To declare ineligible for contesting Election

To order Re-poll

To issue Direction

40
INDEPENDENCE OF ELECTION COMMISSION
1. Constitutional Recognition
2. Fixed Tenure
3.Difficult method of Removal
4. Effective Powers
5. High Salaries
6. Condition of service can not be changed to
the disadvantage of the Election Commissioners.

PANCHAYAT RAJ SYSTEM

The Panchayat raj is a South Asian political system found mainly in India, Pakistan, Bangladesh, Sri Lanka,
Trinidad and Tobago[1][2][3][4], and Nepal. It is the oldest system of local government in South Asia, and historical
mentions date to the c. 250 AD period.[5] The word raj means "rule" and panchayat means "assembly" (ayat) of
five (panch). Traditionally panchayats consisted of wise and respected elders chosen and accepted by the local
community. However, there were varying forms of such assemblies. Traditionally, these assemblies settled
disputes between individuals and between villages.

In India, the Panchayati Raj generally refers to the system introduced by constitutional amendment in 1992,
although it is based upon the traditional panchayat system of South Asia. The modern Panchayati Raj and its
Gram Panchayats are not to be confused with the extra-constitutional Khap Panchayats (or Caste Panchayats)
found in northern India.[1] The Panchayati Raj system was formalized in 1992, following a study conducted by a
number of Indian committees on various ways of implementing more decentralized administration.

Mahatma Gandhi advocated Panchayati Raj as the foundation of India's political system, as a decentralized form
of government in which each village would be responsible for its own affairs.[2][3] The term for such a vision was
Gram Swaraj ("village self-governance"). Instead, India developed a highly centralized form of government.[4]
However, this has been moderated by the delegation of several administrative functions to the local level,
empowering elected gram panchayats. There are significant differences between the traditional Panchayati Raj
system, that was envisioned by Gandhi, and the system formalized in India in 1992.[5]

In India, the Panchayati Raj now functions as a system of governance in which gram panchayats are the basic
units of local administration. The system has three levels: Gram Panchayat (village level), Mandal Parishad or
Block Samiti or Panchayat Samiti (block level), and Zila Parishad (district level).[6] It was formalized in 1992 by
the 73rd amendment to the Indian Constitution.[7]

Various committees on Panchayati Raj:

 Balwant Rai Mehta: established 1957

 V.T. Krishnammachari: 1960
 Takhatmal Jain Study Group: 1966
 Ashok Mehta Committee: 1977
 G.V.K. Rao Committee: 1985

41
  Dr. L.M. Singhvi Committee: 1986

Block level panchayat

Main article: Panchayat Samiti (Block)

Newly elected panchayat in Punjab, India

A Panchayat Samiti (block panchayat) is a local government body at the tehsil level. This body works for the
villages of the tehsil that together are called a "development block". The Panchayat Samiti is the link between the
Gram Panchayat and the district administration. Just as the tehsil goes by other names in various parts of India,
notably mandal and taluka, there are a number of variations in nomenclature for the block panchayat. For
example, it is known as Mandal Praja Parishad in Andhra Pradesh, Taluka Panchayat in Gujarat and Karnataka,
and Panchayat Samiti in Maharashtra. In general, the block panchayat has the same form as the gram panchayat
but at a higher level.

Constituency

Membership in the block panchayat is mostly ex-official; it is composed of: all of the Sarpanchas (gram
panchayat chairmen) in the Panchayat Samiti area, the MPs and MLAs of the area, the sub-district officer (SDO)
of the subdivision, co-opt members (representatives of the SC/ST and women), associate members (a farmer from
the area, a representative of the cooperative societies and one from marketing services), and some elected
members.

The Panchayat Samiti is elected for a term of five years and is headed by a chairman and a deputy chairman.

Departments

The common departments in the Samiti are as follows:

 General Administration
 Finance
 Public Works
 Agriculture
 Health
 Education
 Social Welfare
 Information Technology
 Water Supply Department
 Animal Husbandry and others

There is an officer for every department. A government-appointed Block Development Officer (BDO) is the
executive officer to the Samiti and the chief of its administration, and is responsible for his work to the CEO of
ZP.

42
Functions

 Implementation of schemes for the development of agriculture and infrastructure

 Establishment of primary health centres and primary schools
 Supply of drinking water, drainage and construction/repair of roads
 Development of a cottage and small-scale industries, and the opening of cooperative societies
 Establishment of youth organisations

District level panchayat

Main article: District Councils of India

The governing of the advance system at the district level in Panchayat Raj is also popularly known as Zila
Parishad. The chief of administration is an officer of the IAS cadre.

Composition

The membership varies from 40 to 60 and usually comprises- Deputy Commissioner of the District. Presidents of
all Panchayat Samitis in the district, and heads of all Government Departments in the district;members of
Parliament and Members of Legislative Assemblies in the district; a representative of each cooperative
society ;some women and Scheduled Caste members if not adequately represented; and co-opted members having
extraordinary experience and achievements in public service.

Functions

 Provide essential services and facilities to the rural population

 Supply improved seeds to farmers and inform them of new farming techniques
 Set up and run schools and libraries in rural areas
 Start primary health centers and hospitals in villages; start vaccination drives against epidemics
 Execute plans for the development of the scheduled castes and tribes; run ashram shalas for Adivasi
children; set up free hostels for them
 Encourage entrepreneurs to start small-scale industries and implement rural employment schemes
 Construct bridges, roads and other public facilities and their maintenance
 Provide employment

Sources of income

 Taxes collected locally such as on water, place of pilgrimage, local mandirs (temples), and markets
 A fixed grant from the State Government in proportion to the land revenue and money for works and
schemes assigned to the Parishes

Village level panchayat

Main article: Gram panchayat

A gram panchayat is a village level administrative body, with a Sarpanch as its elected head. The members of the
gram panchayat are elected for a period of five years by the members of Gram Sabha.[10]

Reservation for women in PRIs in India

43
On August 27, 2009, the Union Cabinet of the Government of India approved 50% reservation for women in PRIs
(Panchayati Raj Institutions). The Indian states Andhra Pradesh, Bihar, Chhattisgarh, Himachal Pradesh,
Jharkhand, Kerala, Karnataka, Madhya Pradesh Maharashtra, Odisha, Rajasthan, Tamil Nadu, Tripura and
Uttarakhand[11] have implemented 50% reservation for women in PRIs.[12][13] The majority of candidates in these
Panchayats are women. Currently 100% of elected members in Kodassery Panchayat in Kerala are women.

1. Village Panchayat:

In the structure of the Panchayati Raj, the Village Panchayat is the lowest unit. There is a Panchayat for each village or a
group of villages in case the population of these villages happens to be too small. The Panchayat chiefly consists of
representatives elected by the people of the village.

Only the persons who are registered as voters and do not hold any office of profit under the government are eligible for
election to the Panchayat. The persons convicted by the court for criminal offences are disqualified from election of the
Panchayat.

There is also provision for co-option of two women and one member of the Scheduled Castes and Scheduled Tribes, if they
do not get adequate representation in the normal course.

The Panchayat as a body is accountable to the general body of the village known as Gram Sabha which meets at least twice
a year. The Gram Panchayat must present its budget, accounts of the previous year and annual administrative report before
the Gram Sabha. Furthermore, it has to secure the latter’s approval of the village production plan, proposals for taxation and
development programmes before they are enforced by the Panchayat.

Every Panchayat elects a President or Sarpanch and a Vice-President or Upsarpanch. In some states the Sarpanch is directly
elected by the Gram Sabha either through the show of hands or through secret ballot while in other states the mode of
election is indirect.

The Sarpanch occupies a pivotal position in Gram Panchayat system. He supervises and coordinates the various activities of
the Panchayat.

He is an ex-officio member of the Panchayat Samiti and participates in its decision-making as well as in the election of the
Pradhan and of the members of various Standing Committees. He acts as the executive head of the Panchayat, represents it
in the Panchayat Samiti as its spokesman and coordinates its activities and those of other local institutions like cooperatives.

The Panchayat Secretary and the Village Level Worker are the two officers at the Panchayat level to assist the Sarpanch in
administration.

The Panchayat Secretary assists the Panchayat in recording decisions, keeping minutes, preparing budget estimates and
reports, and does other sundry jobs like preparing notices, explaining circulars, organising Gram Sabha meetings etc.

The Village Level Worker now called Village Development Officer assists the Panchayat in drawing up agricultural
production plans, helps farmers in securing loans for agriculture, arranges the supply of inputs like seeds and fertilizers, and
educates farmers about modern agricultural practices. He serves as the principal link between the Panchayat and the
Panchayat Samiti.

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He keeps the Panchayat informed of various development programmes and reports to the Panchayat Samiti about the
progress of the schemes and achievement of targets. He is accountable to the Sarpanch at the Panchayat level on the one
hand, and to the Block Development Officer and extension officers on the other hand at the Samiti level.

The Gram Panchayats can levy certain taxes and duties to meet their expenses. Some of the taxes which the Gram
Panchayats can levy include tax on animals, vehicles, house, vacant lands and professions. They can also levy duty on
transfer or property situated in the area under their jurisdiction.

The fees paid for presenting civil criminal cases before the Panchayats and fines on account violation of Panchayat laws are
other sources of its income. But a, as the duties to be performed by the Panchayats are so onerous that they have to depend
on the state government for further finances.

As regards the principal functions performed by the Village Panchayat, they include maintenance of roads, wells, schools,
burning and burial grounds, sanitation, public health, libraries, reading rooms, community centre etc.

The Panchayat also keeps records of births and deaths. It makes necessary provisions for the promotion of agriculture and
animal husbandry, cottage CONTI industries, co-operative societies etc. The minor disputes among residents of village are
also settled by the Village Panchayat.

It seeks to ensure a minimum standard of cultivation for raising agricultural production. In addition, the Panchayat also acts
as the agent of the Panchayat Samiti in executing schemes of development at the village level.

2. Panchayat Samiti:

The Panchayat Samiti is the second on join tier of the Panchayati Raj. The Balwant Rai Mehta Committee report has
envisaged the Samiti as a single representative and vigorous democratic institution to take charge of all aspects of
development in rural areas. The Samiti, according to the Committee, offers “an area large enough for functions which the
Village Panchayat cannot perform and yet small enough to attract the interest and services of residents.”

Usually a Panchayat Samiti consists of 20 to 60 villages depending on area and population. The average population under a
Samiti is about 80,000 but the range is from 35,000 to 1, 00,000. The Panchayat Samiti generally consists of- (1) about
twenty members elected by and from the Panches of all the Panchayats falling in the block area; (2) two women members
and one member each from the Scheduled Castes and Scheduled Tribes to be co- opted, provided they do not get adequate
representation otherwise;

(3) two local persons possessing experience of public life and administration, which may be beneficial for the rural
development; (4) representatives of the Co-operatives working within the jurisdiction of the block; (5) one representative
elected by and from the members of each small municipality lying within the geographical limits of a block; (6) the
members of the State and Union legislatures representing the area are to be taken as associate members.

The President of the Panchayat Samiti is the Pradhan, who is elected by an electoral college consist of all members of the
Panchayat Samiti and all the Panchas of the Gram Panchayat falling within the areas. Besides the Pradhan, the Up-pradhan
is also elected. The Pradhan convenes and presides over the Panchayat Samiti meetings. He guides the Panchayats in making
plans and carrying out production programmes.

He ensures the implementation of the decisions and resolutions of the Samiti and its Standing Committees. He exercises
administrative control over the Vikas Adhikari (BDO) and his staff. He is a member of the Zilla Parishad by virtue of his
office as a Pradhan. He is the ex- officio chairman of the Standing Committees of the Samiti.

45
As the Chief Executive Officer of the Panchayat Samiti, the Block Development Officer is entrusted with the responsibility
for implementing the resolutions of the Samiti and its Standing Committees. He prepares the budget of the Samiti and places
it before the Samiti for approval. Preparing the annual report of the Samiti and sending it to the Zilla Parishad and State
Government also comes within the purview of his responsibility. He is accountable to the President of the Samiti for his
actions.

The principal function of the Panchayat Samiti is to co-ordinate the activities of the various Panchayats within its
jurisdiction. The Panchayat Samiti supervises the work of the Panchayats and scrutinises their budgets. It also reserves the
right to suggest measures for improving the functioning of the Panchayats. The Samiti is charged with the responsibility of
preparing and colon implementing plans for the development of agriculture, animal to SU (husbandry, fisheries, small scale
and cottage industries, rural health tropic etc.

On the face of things it may appear that the Panchayat Samiti enjoys enormous powers. But the reality is something
different. It has no independence in instituting special programmes or development projects of its choice. It simply carries
out the directives of the State Government pertaining to specific projects.

Furthermore, the primacy of the non-elected members of the Samiti over the elected members amounts to a mockery of
democracy so far as democratic decentralisation is concerned. Despite all world these it cannot be gainsaid that the
Panchayat Samiti serves as a launching pad for the political leaders for higher responsibilities at the district and state levels.

3. Zilla Parishad:

The Zilla Parishad stands at the apex of the three-tier structure of the Panchayati Raj system. Generally, the Zilla Parishad
consists of representatives of the Panchayat Samiti; all the members of the State Legislature and the Parliament representing
a part or whole of the district; all district level officers of the Medical, Public Health, Public Works, Engineering,
Agriculture, Veterinary, Education and other development departments.

There is also a provision for special representation of women, members of Scheduled Castes and Scheduled Tribes provided
they are not adequately represented in the normal course. The Collector is also a member of the Zilla Parishad.

The Chairman of the Zilla Parishad is elected from among its members. There is a Chief Executive Officer in the Zilla
Parishad. He is deputed to the Zilla Parishad by the State Government. There are subject matter specialists or officers at the
district level in all the states for various development programmes.

The Zilla Parishad, for the most part, performs co-ordinating and supervisory functions. It coordinates the activities of the
Panchayat Samitis falling within its jurisdiction. In certain states the Zilla Parishad also approves the budgets of the
Panchayat Samitis.

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The Zilla Parishad also renders necessary advice to the Government with regard to the implementation of the various
development schemes. It is also responsible for the maintenance of primary and secondary schools, hospitals, dispensaries,
minor irrigation works etc. It also promotes local industries and art.

The finances of the Zilla Parishad consist of the grants received from the State Government and share in the land cess and
other local cess and taxes. Sometimes it has been allowed by the State Government to levy certain taxes or enhance the taxes
already levied by the Panchayat Samitis subject to a certain limit.

Panchayati Raj in India

Not many erstwhile political leaders were enthusiastic about Mahatma Gandhi’s idea of democratic
decentralisation through the Panchayati Raj System in India. The concept of micro-management and bringing
good governance to the remotest corners of the country had to prove its worth, before it could find a place in the
Indian constitution. After a series of failed attempts to deal with local issues at the national level, panchayats were
again brought into the picture in 1992, after its initial attempts of establishment in the 1950s. It got recognised as
institutions of local self-governance in 1958. Panchayats now have a presence across the country barring
Meghalaya and Nagaland.

Panchayat Raj – The Beginning

The genesis of Panchayat Raj dates back to 1958, when Pandit Jawaharlal Nehru popularised the idea after the
recommendations of the Community Development Programme (1952) and the National Extension Service (1953),
were approved by the NDC (National Development Council.) Nehru actually coined this term as an extension of
Gandhiji’s belief, that each village should be made responsible for its own affairs. His vision of “village self-
governance” (Gram Swaraj) and a decentralised form of government prompted the birth of this new system. The
objective behind establishing such a system is to take democracy to the village level, by delegating powers to the
people at the grass roots level. Rajasthan was the first state to adopt Panchayat Raj in 1958.

Types of Panchayat in India

India follows a three-tier Panchayat system – Gram Panchayat at a village level, Panchayat Samiti at a block level,
and Zila Parishad at a district level. Gram Panchayat, which is considered as the “cornerstone” of the Panchayati
Raj system, operates at the village or small town level. It is incumbent upon the elected head (commonly referred
to as a Sarpanch) to take stock of the infrastructural development of the region, tax collection, and public health
and hygiene. The head of the Gram Panchayat regularly convenes meetings on pressing issues.

District level panchayat or the Zila Parishad has an IAS officer as the administrative head. The prime role of the
panchayat is to ensure that the locals have access to essential services and facilities. Its focus remains on
Education, Health, and Agricultural segments. Besides, Zila Parishad is also entrusted with the duty of inspiring
entrepreneurial spirit and implementing employment schemes. The members of Zila Parishad mainly comprise of
MPs elected from that particular district. The major chunk of their revenue comes in the form of grants from the
State Government panchayat, along with the earnings from taxes on water, tourism and markets.

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Block panchayat (Panchayat Samiti) is the replication of same style of governance at the tehsil level. It’s a form of
the Panchayati Raj that works for the villages of the tehsil that are called a Development Block. This governing
body is composed of ex-MPs and MLAs of the area, and other elected members. Block Panchayat takes care of
important departments such as Finance, Public work, Health, Education, and IT. Each department is headed by an
individual officer. He/she is accountable before the Block Development Officer (BDO), who is at the helm of its
administration. The panchayat is elected for five years. While the members of the Panchayats are elected directly
by the people, the Panchayat Samiti members are elected by the Panchayats.

Importance of Panchayat Raj in India

Panchayats can reach where the bureaucrats can’t. India has accepted this fact with grace. Each village has its own
set of issues, which only the locals can understand. Members of a Panchayat are far more cognizant of the region-
specific problems, and thus they are capable of taking a more informed decision in favour of the people of their
village or tehsil. Moreover, this mechanism of local self-governance acts as a force to counter the dominance of a
particular group or caste in a village.

According to experts, the evolution of Panchayats is seen as a boon by the villagers, as they can now discuss
about their issues with confidence, and even seek solutions through the Panchayat in their region. The Panchayat
system has made a common man even in the rural areas, more conscious of their rights. The good thing about
Panchayats is their high-degree of accountability before the people. When it comes to administrative benefits, the
Panchayati Raj has “bridged the gulf between the central government and the people in the rural areas.” The
Panchayat system also works towards the development of their regions according to the needs of the people. A
Panchayat works at various levels, from creation of necessary establishments such as primary schools, to hygiene-
related issues, to water requirements, to seek the central government’s help towards generating jobs at the village
level as well.

The increasing prominence of the panchayat at various levels in the village areas, led to the creation of the
Ministry of Panchayati Raj in 2004, to empower Panchayati Raj Institutions (PRIs) and “ensure efficient delivery
of services and inclusive development of the nation.”

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 Unit 3
Fundamental Rights of India

What are Fundamental Rights?

After independence India laid down some fundamental rights that every citizen of India is guaranteed by the law.
It is important to know what they are so that no one can deprive you of them.

6 Fundamental Rights of India

1. Right to equality
2. Right to freedom
3. Right against exploitation
4. Right to freedom of religion
5. Right to cultural expression and education
6. Right to constitutional remedies

1. Right to Equality

Every citizen is the same under the law. This means that men and women are equal no matter what religion or
caste they belong to. The law will treat a brahmin woman the same way that it would treat a Christian man if they
were to break the law.

2. Right to Freedom

The law allows the citizens of India to criticize the government and its policies. They can organise themselves
however they choose and carry out their daily lives in any way they seem fit (within limits of course). In short,
people are able to exist without fear of a higher force such as the government.

3. Right against Exploitation

To be exploited is to be misused. Children and poor people are especially vulnerable to being exploited. This
fundamental right ensures things like education for children and equal pay for equal work.

4. Right to Freedom of Religion

Every citizen can practice their religion of choice. Everyone is free to do whatever their religion tells them to do.
So Muslims fast during Ramzan, Christians during Lent and Hindus during Navaratri. However, in following our
religion we should not forget that other people are free to follow theirs and that this is no reason to fight.

5. Cultural and Educational Rights

These rights are especially laid down to protect minorities. These are groups of people who are less in number or
live in remote areas or have been downtrodden by the traditional society. This includes certain castes and tribes

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who live in forests, away from developed big cities. Even the Dalits or the small religious groups like the Parsis
are minorities. They have a fundamental right to enjoy all the benefits that the majority of citizens enjoy.

6. Right to Constitutional Remedies

Every citizen has equal right to appeal to the court of law for justice if there is a threat to his life or property or to
join the government in order to affect this change.

Constitution of India and Rights of Equality & Backward Classes

Backward Classes

The Central Government of India classifies some of its citizens based on their social and economic condition as
Scheduled Caste (SC), Scheduled Tribe (ST), and Other Backward Class (OBC). The OBC list presented by the
commission is dynamic (castes and communities can be added or removed) and will change from time to time
depending on social, educational and economic factors. For example, the OBCs are entitled to 27% reservations in
public sector employment and higher education. In the constitution, OBCs are described as “socially and
educationally backward classes”, and government is enjoined to ensure their social and educational development.

Until 1985, the affairs of Backward Classes were looked after by the Backward Classes Cell (BCC) in the
Ministry of Home Affairs. With the creation of a separate Ministry of Welfare in 1985 (renamed as Ministry of
Social Justice and Empowerment on 25 May 1998) the matters relating to Scheduled Castes, Scheduled Tribes,
Other Backward Classes (OBCs) and Minorities were transferred to the new Ministry.

The Backward Classes Division in the ministry looks after the policy, planning and implementation of
programmes relating to social and economic empowerment of OBCs. It also looks after matters relating to two
institutions set up for the welfare of OBCs: National Backward Classes Finance and Development Corporation
(NBCFDC) and the National Commission for Backward Classes (NCBC).

OBC Definition:

What is Other Backward Class: The peoples economically & socially backward other than SC, ST and FC are an
Other Backward Class (OBC).

Who are the Other Backward Class: The peoples who belong to Backward Class (BC), Most Backward Class
(MBC) and Denotified Community (DCN) category in the respective Indian states government’s criteria are
grouped & called as Other Backward Class (OBC).

Overview:

Backward class people is a collective term, used by the Government of India, for castes which are economically
and socially disadvantaged. They typically include the Other Backward Classes (OBCs). According to “The
Times of India” on 31 August 2010, even after 17 years, at most 7% of seatshave been filled by OBCs, regardless
of their 27% reservation. This difference between proportion of different communities in higher educational
institutions is mainly because of difference in primary school enrolment. Political parties inIndia have attempted
to use these communities as vote banks.

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Obligation of the government:
Under Article 340 of the Indian Constitution, it is obligatory for the government to promote the welfare of the
Other Backward Classes (OBC). Article 340(1) states, ” The president may by order appoint a commission,
consisting of such persons as he thinks, fit to investigate the conditions of socially and educationally backward
classes within the territory of India and the difficulties under which they labour and to make recommendations as
to the steps that should be taken by the union or any state to remove such difficulties and as to improve ‘their
condition and as to the grants that should be made, and the order appointing such commission shall define the
procedure to be followed by the commission.”

Article 340(2) states, “A commission so appointed shall investigate the matters referred to them and present to the
president a report setting out the facts as found by them and making such recommendations as they think proper.”

Constitution of India and rights of Equality:

In perusing the Indian Constitutional provisions regarding the discrimination on the grounds of religion, race,
caste, sex or place of birth, the following Articles make it absolutely clear against any such discrimination. The
framer of the Constitution, Dr. B. R. Ambedkar was himself one of the disaffected persons. It is unfortunate that
this malady of caste bias has taken deeper roots than eliminating it. Today any quotas, reservations,
privileges, advantages in the name of caste, religion, minorities, grants, subsidies, educational institution
admissions, job preferences, scholarships etc have all become a method of exploitation and pride than an
opportunity for a deserving and needy to help. It is unfortunate that all these Constitutional instruments have been
allowed to rot in the theory of the intelligent exercise of their wisdom than putting it to sincere practice to uplift
the deserving masses. I reproduce hereunder the related articles as ready reckoner for everyone.

Right to Equality

14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection
of the laws within theterritory ofIndia.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.

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(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any
special provision, by law, for the advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in clause (1) of article 30.

16. Equality of opportunity in matters of public employment.—(1) There shall be equality of opportunity for
all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them,
be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes
of employment or appointment to an office under the Government of, or any local or other authority within, a
State or Union territory, any requirement as to residence within that State or Union territory prior to such
employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented
in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented
in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or
clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or any member of the governing body
thereof shall be a person professing a particular religion or belonging to a particular denomination.

17. Abolition of Untouchability.—“Untouchability” is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with
law.

18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept
without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any
present, emolument, or office of any kind from or under any foreign State.
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Women Rights in India: Constitutional Rights and Legal Rights
The rights available to woman (ladies) in India can be classified into two categories, namely as constitutional rights and
legal rights. The constitutional rights are those which are provided in the various provisions of the constitution. The legal
rights, on the other hand, are those which are provided in the various laws (acts) of the Parliament and the State
Legislatures.

Constitutional Rights to Women:

The rights and safeguards enshrined in the constitution for women in India are listed below:

1. The state shall not discriminate against any citizen of India on the ground of sex [Article 15(1)].
2. The state is empowered to make any special provision for women. In other words, this provision enables the state
to make affirmative discrimination in favour of women [Article 15(3)].
3. No citizen shall be discriminated against or be ineligible for any employment or office under the state on the
ground of sex [Article 16(2)].
4. Traffic in human beings and forced labour are prohibited [Article 23(1)].
5. The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)].
6. The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
7. The state is required to ensure that the health and strength of women workers are not abused and that they are
not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
8. The state shall make provision for securing just and humane conditions of work and maternity relief [Article 42].
9. It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-
A(e)].
10. One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for
women [Article 243-D(3)].
11. One-third of the total number of offices of chairpersons in the Panchayats at each level shall be reserved for
women [Article 243-D(4)].
12. One-third of the total number of seats to be filled by direct election in every Municipality shall be reserved for
women [Article 243-T(3)].
13. The offices of chairpersons in the Municipalities shall be reserved for women in such manner as the State
Legislature may provide [Article 243-T(4)].

Legal Rights to Women:

The following various legislation’s contain several rights and safeguards for women:

1. Protection of Women from Domestic Violence Act (2005) is a comprehensive legislation to protect women in India
from all forms of domestic violence. It also covers women who have been/are in a relationship with the abuser and
are subjected to violence of any kind—physical, sexual, mental, verbal or emotional.
2. Immoral Traffic (Prevention) Act (1956) is the premier legislation for prevention of trafficking for commercial
sexual exploitation. In other words, it prevents trafficking in women and girls for the purpose of prostitution as an
organised means of living.
3. Indecent Representation of Women (Prohibition) Act (1986) prohibits indecent representation of women through
advertisements or in publications, writings, paintings, figures or in any other manner.
4. Commission of Sati (Prevention) Act (1987) provides for the more effective prevention of the commission of sati
and its glorification on women.
5. Dowry Prohibition Act (1961) prohibits the giving or taking of dowry at or before or any time after the marriage
from women.
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6. Maternity Benefit Act (1961) regulates the employment of women in certain establishments for certain period
before and after child-birth and provides for maternity benefit and certain other benefits.
7. Medical Termination of Pregnancy Act (1971) provides for the termination of certain pregnancies by registered
medical practitioners on humanitarian and medical grounds.
8. Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994) prohibits sex
selection before or after conception and prevents the misuse of pre-natal diagnostic techniques for sex
determination leading to female foeticide.
9. Equal Remuneration Act (1976) provides for payment of equal remuneration to both men and women workers for
same work or work of a similar nature. It also prevents discrimination on the ground of sex, against women in
recruitment and service conditions.
10. Dissolution of Muslim Marriages Act (1939) grants a Muslim wife the right to seek the dissolution of her marriage.
11. Muslim Women (Protection of Rights on Divorce) Act (1986)protects the rights of Muslim women who have been
divorced by or have obtained divorce from their husbands.
12. Family Courts Act (1984) provides for the establishment of Family Courts for speedy settlement of family disputes.
13. Indian Penal Code (1860) contains provisions to protect Indian women from dowry death, rape, kidnapping,
cruelty and other offences.
14. Code of Criminal Procedure (1973) has certain safeguards for women like obligation of a person to maintain his
wife, arrest of woman by female police and so on.
15. Indian Christian Marriage Act (1872) contain provisions relating to marriage and divorce among the Christian
community.
16. Legal Services Authorities Act (1987) provides for free legal services to Indian women.
17. Hindu Marriage Act (1955) introduced monogamy and allowed divorce on certain specified grounds. It provided
equal rights to Indian man and woman in respect of marriage and divorce.
18. Hindu Succession Act (1956) recognizes the right of women to inherit parental property equally with men.
19. Minimum Wages Act (1948) does not allow discrimination between male and female workers or different
minimum wages for them.
20. Mines Act (1952) and Factories Act (1948) prohibits the employment of women between 7 P.M. to 6 A.M. in mines
and factories and provides for their safety and welfare.
21. The following other legislation’s also contain certain rights and safeguards for women:
1. Employees’ State Insurance Act (1948)
2. Plantation Labour Act (1951)
3. Bonded Labour System (Abolition) Act (1976)
4. Legal Practitioners (Women) Act (1923)
5. Indian Succession Act (1925)
6. Indian Divorce Act (1869)
7. Parsi Marriage and Divorce Act (1936)
8. Special Marriage Act (1954)
9. Foreign Marriage Act (1969)
10. Indian Evidence Act (1872)
11. Hindu Adoptions and Maintenance Act (1956).
22. National Commission for Women Act (1990) provided for the establishment of a National Commission for Women
to study and monitor all matters relating to the constitutional and legal rights and safeguards of women.
23. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal). Act (2013) provides
protection to women from sexual harassment at all workplaces both in public and private sector, whether
organised or unorganized.

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 CONCEPT OF MINORITY

The expression “minority” has been derived from the Latin word “minor” and the suffix ‘ity’, which
means “small in number”. According to Encyclopedia Britannica minorities means “group held
together by ties of common descent, language or religious faith and feeling different in these respects
from the inhabitants of a given political entity”.
According to Capotorti's definition for the United Nation"Minority" means a community:
a) Compactly or dispersedly settled on the territory of a state;
b) Which is smaller in number than the rest of the population of a state;
c) Whose members are citizens of that State.
d) Which have ethnic, linguistic or cultural features different from those of the
rest of the population.
e) Whose members are guided by the will to safeguard these features.

Sociology of minority groups

Sociologist Louis Wirth defined a minority group as “A group of people who,
because of their physical or cultural characteristics singled out from the others
in the society in which they live of differential and unequal treatment and who therefore regard themselves as
objects of collective discrimination.”
Religious Minorities
Persons belonging to religious minorities have a faith which is different to that held by the majority.
Most countries of the world have religious minorities. It is now widely accepted that people should
have the freedom to choose their own religion, including not having any religion (atheism or
agnosticism), and including the right to convert from one religion to another.
Gender and Sexual Minorities
While in most societies, number of men and women are roughly equal, the
status of women as a subordinate group has led some to equate them with
minorities
Age Minorities
The elderly, while traditionally or even (in a gerontocracy) dominant in the past, have in the modern
age usually been reduced to the minority role economically ‘non-active’ groups.
Disabled Minorities
The Disability rights movement has contributed to an understanding of disabled people as a minority
or a coalition of minorities who are disadvantaged by society, not just as people who are
disadvantaged by the society but as people who are disadvantaged by their impairments.
Minorities according to law
Law defines a ‘minority’ as “A group numerically inferior to the rest of the population in a non
dominant position.” In the politics of some countries a minority is an ethnic group that is recognized
as such by respective laws of its country and therefore has some rights that other group lack.Speakers
of legally recognized minority language, for instance, might have right to education or
communication with the government in their mother tongue.

55
UNIT 4
WRITS
The Constitution of India assured greater protection of individuals rights and afforded larger freedom to t
he court to look into executive failures. The judiciary has provided various measures in
preserving the liberty and freedom of the people of the country Each citizen of India has
inherent right to challenge the constitutionality of any executive enactment restrains him from enjoying his
fundamental
rights. By judicial interpretations the fundamental rights, distribution of executive powers and other con
stitutional restrictions and limitations were provided a new meaning. The fundamental object of judicial r
eview is to infuse life in the dry and abstract postulates of the
constitution enabling it to be a living organism so as to satisfy the needs of the time.

Articles 32
and 226 of the Indian Constitution makes provisions for writs in the country. Under clause (2)
of Article 32 the Supreme Court is empowered to issue appropriate direction, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition quo
warranto and certiorari for the enforcement of any fundamental rights guaranteed by Art III
of the constitution. By this article the Supreme Court has been constituted as a protector and guarantor of
the fundamental rights and
once a citizen has shown that there is infringement of his fundamental right the
court cannot refuse to entertain petitions seeking enforcement of fundamental rights. Article 226(1) empo
wers every High Court, notwithstanding anything in Article
32, throughout the territories in relation to which it exercises jurisdiction to issue any person or authorit
y, including appropriate cases any government, within those territories directions, orders or writs includin
g writs in the nature of habeas corpus,
mandamus, quo warranto, prohibition and certiorari for the enforcement of Fundamental Rights or for any
other purpose.

WRIT JURISDICTION OF THE SUPREME AND HIGH COURTS

A writ is a quick remedy against injustice, a device for the protection of the rights of citizens against any
encroachment by the governmental authority. writs originated in Britain where they were king’s or queen’s
‘prerogative’ writs and were commands to the judicial tribunals or other bodies to do or not to do something.
Since writs carried the authority of the crown they were to be obeyed. Later, writs came to be enjoyed by the
judges of the King’s Bench. In India, the power to issue writs has been vested in the Supreme Court and the high
courts. It is an extraordinary remedy which can be expected in special circumstances.

The Supreme Court has been empowered to issue writs in the nature of habeas corpus, mandamus, prohibition,
and certiorari and quo warranto for protecting the fundamental rights [article 32(2)]. Similar power has been
conferred on the high courts via article 226. The high court can issue the above writs for protecting the
fundamental as well as statutory and common law rights. The high courts can issue writs to any governmental
authority outside their territorial jurisdiction, provided the cause of action arises (in whole or in part) within their
territorial jurisdiction.

56
A writ is a discretionary remedy and the high court can refuse it on the ground of acquiescence, laches (delay),
available alternative remedy and no benefit to the party. Under article 226(3), a high court can grant interim relief
by way of interlocutory orders.

While the jurisdiction of the high court is more extensive than that of the Supreme Court, art. 226 (4) provides
that the powers conferred on a high court shall not be in derogation of the powers conferred on the supreme court
by article 32(2). In L Chandra Kumar verses UOI, held that a person cannot go directly to the Supreme Court
from a decision of a tribunal, without first going to the high courts. Thus, the aggrieved person has got another
remedy by way of a writ petition before the high court concerned. Thus, what was earlier two-tier litigation has
now become three-tier litigation. The tribunals cannot oust the jurisdiction of the high courts under articles
226/227.

There are five well-known writs:

(a) Habeas Corpus

It literally means ‘a demand to produce the body’ or ‘you may have the body’ (whether dead or alive). the
issuance of the writ means an order to the detaining authority or person to physically present before the court the
detained person and show the cause of detention so that the court can determine its legality or otherwise
(however, the production of the body of the person alleged to be unlawfully detained is not essential). If the
detention is found to be illegal, the detained person is set free forthwith. Its purpose is not to punish the
wrongdoer but merely to secure the release of the person illegally detained.

Since now, article 21 cannot be suspended even during the proclamation of emergency; this becomes a very
valuable writ for safeguarding the personal liberty of the individual. While the Supreme Court can issue the writ
of habeas corpus only against the state in cases of violation of fundamental rights, the high court can issue it also
against private individuals illegally or arbitrarily detaining any other person.

Writ of habeas corpus can be filed by any person on behalf of the person detained or by the detained person
himself. InSunil Batra verses Delhi Administration, a letter written by a convict to one of the judges of the
Supreme Court was treated as a writ petition. The court employed this writ for the neglect of state penal facilities.
The writ was also issued when a ban was imposed on the law students to conduct interviews with prison mates for
affording them legal relief.

(b) Mandamus

It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it has a legal right which
casts certain legal obligations on b, a can seek a writ of mandamus directing to perform its legal duty? Mandamus
may lie against any authority, officers, government or even judicial bodies that fail to or refuse to perform a
public duty and discharge a legal obligation.

The Supreme Court may issue a mandamus to enforce the fundamental right of a person when its violation by
some governmental order or act is alleged. The high courts may issue this writ to direct an officer to exercise his
constitutional and legal powers, to compel any person to discharge duties cast on him by the constitution or the
statute, to compel a judicial authority to exercise its jurisdiction and to order the government not to enforce any
unconstitutional law.

57
mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing some specific act” which
that agency is obliged to do or to refrain from doing under the law and which is in the nature of a public duty or a
statutory duty. It is considered as a residuary remedy of the public law.

It is a general remedy whenever justice has been denied to any person. It may be issued not only to compel the
authority to do something but also to restrain it from doing something. Therefore, it is both negative and positive
and hence can do the work of all other writs. It can be issued on all those counts on which certiorari and
prohibition can be issued.

Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a specific demand for the
fulfillment of duty and there must be specific refusal by the authority. The applicant must’ve a legal right to the
performance of a legal duty. If the rights are purely of a private character no mandamus can be issued. A ‘public
duty’ is one which is created either by a statute, the constitution or by some rule of common law. The public duty
enforceable through mandamus must also be an absolute duty i.e. which is mandatory and not discretionary.
Mandamus would not lie where the duty is ministerial in nature i.e. where the authority has to act on the
instructions of his superior. The remedy of mandamus will not be available against any person involved in the
election process.

In Jatinder Kumar verses State of Punjab, held that article 320(3) of the constitution which provided that before
a government servant was dismissed, the UPSC should be consulted, did not confer any right on a public servant
and hence failure to consult the public service commission did not entitle the public servant to get mandamus for
compelling the government to consult the commission. However, if the authority is under law obliged to exercise
discretion, mandamus would lie to exercise it in one way or the other.

In Praga Tools Corporation verses CVI Manual, held that a mandamus could issue against a person or body to
carry out the duties placed on them by the statutes even though they are not public officials or statutory body.
Technicalities should not come in the way of granting that relief under article. 226. In Unni Krishnan verses
Union of India, held that a private medical/engineering college comes within the writ jurisdiction of the court
irrespective of the question of aid and affiliation.

In hearing the petition for mandamus, the court does not sit as a court of appeal. The court will not examine the
correctness or otherwise of the decision on merits. It cannot substitute its own wisdom for the discretion vested in
the authority unless the exercise of discretion is illegal. this is true for other writs also.

In UOI verses Prakash P. Hindu , it was held that parliament exercises sovereign power to enact laws and no
outside power or authority can issue a direction to enact a particular piece of legislation. Similarly, no mandamus
can be issued to enforce an act which has been passed by the legislature. therefore, the direction issued by the
apex court in Vineet Narain case regarding conferment of statutory status on CVC cannot be treated to be of such
a nature the non-compliance whereof may amount to contempt.

Where, however, the issuance of mandamus directing the investigating agencies to investigate into offences was
found futile, the court forged out a new tool of “continuing mandamus” requiring the agencies to report the
progress to the court so that monitoring by the court could ensure continuance of the investigation.

(C) Certiorari

‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal demand for information.
The king wishing to be certified of some matter ordered that the necessary information be provided for him.
‘certiorari’ may be defined as a judicial order operating in personam and made in the original legal proceedings,
58
directed to any constitutional, statutory or non-statutory body or person, requiring the records of any action to be
certified by the court and dealt with according to law.

it can be issued against constitutional bodies (legislature, executive and judiciary or their officers), statutory
bodies like corporations, non-statutory bodies like companies and cooperative societies and private bodies and
persons. Certiorari can be issued to quash judicial, quasi-judicial as well as administrative actions (AK Kraipak
verses Union of India ). In this case, the writ of certiorari was issued to quash the action of a selection board, on
the ground of personal bias.

The writ is corrective in nature, thus its scope of operation is quite large. The purpose of certiorari is not only
negative (to quash an action) but it contains affirmative or positive action also. In Gujarat steel tubes v Mazdoor
Sabha , held that while quashing the dismissal order, the court can also order reinstatement and the payment of
back wages.

Grounds for the issue of certiorari are:

(1) lack of jurisdiction; or the authority declining jurisdiction where it legally belongs to it.

(2) excess of jurisdiction.

(3) abuse of jurisdiction.

(4) violation of the principles of natural justice.

(5) error of law apparent on the face of the record – it includes not a mere error but a manifest error based on clear
ignorance or disregard of the law, or on a wrong proposition of the law, or on clear inconsistency between facts
and the law and the decision.

In Syed Yakoob verses Radhakrishnan, held that the jurisdiction of the high court to issue a writ of certiorari is a
supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. An error of law
which is apparent on the face of the record can be corrected by a writ, but not an error of fact, howsoever grave it
may appear to be. However, if a finding of fact is based on ‘no evidence,’ that would be regarded as an error of
law which can be corrected by certiorari.

(D) Prohibition

Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory) from continuing their
proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or in
contravention of the law of the land. it is issued primarily to prevent an inferior court or tribunal from exercising
its jurisdiction (i.e. exercising power or authority not vested in them).

Prohibition does not lie against an authority discharging purely administrative or executive functions, it issues
only against an authority discharging judicial functions (Isha Beevi verses Tax Recovery Officer).

Before the writ of prohibition can be issued there must be something to be done. It is a ‘writ of right’. Prohibition
has much in common with certiorari’, both are ‘jurisdictional writs’ issued against judicial or quasi-judicial
authorities on similar grounds. however, prohibition is issued while judicial process is in motion to prevent it from
proceeding further, certiorari is issued to quash the proceedings and is therefore issued when the judicial process

59
has ended in a decision (i.e. on completion of the proceeding). Thus, the object of the writ of prohibition is in
short ‘prevention’ rather than cure, while certiorari is used as a ‘cure.’

However, these remedies may be applied simultaneously, certiorari to quash the proceedings and prohibition to
stop the tribunal from continuing to exceed its jurisdiction. The usual practice is to pray for prohibition and
alternatively certiorari because it may happen that pending proceedings for prohibition the agency may hand over
its final decision.

(e) Quo-Warranto

Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be sought to clarify in public
interest the legal position in regard to claim of a person to hold a public office. An application seeking such a writ
may be made by any person provided the office in question is a substantive public office of a permanent nature
created by the constitution or law and a person has been appointed to it without a legal title and in contravention
of the constitution or the laws.

It can be issued against offices created by the constitution such as the advocate-general, the speaker of legislative
assembly, officers under the municipal act, members of a local government board, university officials and
teachers, but it will not issue against the managing committee of a private school which is not appointed under the
authority of a statute.

PUBLIC INTEREST LITIGATION

In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is
not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his
or her right should personally approach the court.

INTER-RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE

PRINCILPES OF STATE POLICY
(FUNDAMENTAL RIGHTS AND DRECTIVE PRINCIPLES OF STATE POLICY)

To implement the ideals and to achieve the goals enshrined in the preamble and to establish welfare state, fundamental
rights and the directive principles of state policy have been provided for in the constitution. Part III, which contains
Articles 12 to 35, deals with fundamental rights, while part-IV, which contains Articles 36 to 51, deals with directive
principles of state policy.

Before examining the relationship between the fundamental rights and directive principles, it is necessary to discuss
about the two in brief as follow:

Fundamental Rights (part-III):- fundamental rights are rights without which a human being cannot survive in
dignified manner in a civilized society. Fundamental rights are known as “basic rights or Justiciable rights”. They are
also called as individual rights or negative rights” and impose negative obligations on the state not to encroach on
individual liberty.

Directive Principles (Part-IV):- Part-IV of the constitution deals with “directive principles of state policy”. They are
positive rights and impose positive obligations on the state.
60
The directive principles are categorized under three heads namely

(1) Social and economic charter

(2) Social security charter and

(3) Community welfare charter

In social and economic charter, Art 38 (1) provider for social justice and Arts 39 (d) Equal pay for equal work. In
social security Charter, Art 43 provides for workers participation in management of factories. Arts 45 insist on free and
nd
compulsory education to all children up to the age 14 years and Arts 39-A as inserted by the 42 Amendment provides
for equal justice and free legal aid. In community welfare charter, Arts 44 envisages “uniform civil code and Art 48-A
nd
(inserted by the 42 Amendment Act, 1976) deals with “protection and improvement of forests and wild life.”

DIFFERENCE BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE

POLICY.
Directive principles are in the nature of instruments of instructions to the government of the day to do something
positive. They are not justiciable or enforceable in courts. On the other hand, the fundamental rights are enforceable in
1
the courts under Arts 32 and 226 of the constitution and hence are justiciable.

During the proclamation of emergency the operation of the Fundamental rights (except Arts. 20 and 21) can be
suspended, but no such provisions is required to be made with regard to the Directive Principle of State Policy. Article
32(2) prohibits the state to make any law which takes away or abridges the right conferred by Part III of the
constitution, but there is no such categorical restriction on the power of the state regarding the Directive Principle of
State policy.

Fundamental rights are facilities given by the state to the people, whereas directive principles are directions given by
the constitution to the state. Fundamental rights aim at establishing political democracy in India, while directive
principles attempt to provide socio-economic foundations to Indian democracy.

The framers of the constitution gave primacy to fundamental rights by placing them ahead of directive principles.
However, fundamental rights and directive principles are not contrary, but complimentary to each other. Both
ultimately aim at the welfare and well-being of the citizens.

Although directive principles are non-justiciable, this does not imply that their implementation has been left at the will
and mercy of the state. Directive principles are part of the constitution, and the judiciary is under obligation to maintain
the supremacy of the same. The supreme court of India has resorted to provisions relating to the directive principles
while delivering its verdict is several cases.

CONSTITUTION (42nd AMENDMENT ACT 1976)

EQUAL JUSTICE AND FREE LEGAL AID – (Article 39-A)

Article 39-A of the Indian constitution provides for “Equal Justice and free legal Aid”. It (39-A) was inserted/added by
the Constitution (forty Second Amendment) Act, 1976. It came into force from 3.1.1977 and reads as follows.

“The state shall secure that the operation of the legal system promote justice, on the basis of equal opportunities and
shall, in particularly, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This article
was added to the constitution pursuant to the new policy of the government to give legal aid to economically backward
classes of people.

Art. 39-A and Art.21 as interpreted by the supreme court and S.304 of the code of Criminal procedure, 1973 provide
for free legal aid, particularly in criminal cases. As such, ‘Legal aid’ and ‘speedy trial’ have now been held to be
61
fundamental rights under Article 21 of the constitution available to all prisoners and enforceable by the courts. The
state is under the duty to provide lawyer to a poor person and it must pay to the lawyer, his fees as fixed by the court.
2
In State Bank v. N.S. Money

In this case it was held that the government should set up a “suitor’s fund” to meet the cost of defending a poor or
indigent person.
3
In M Hoskot v State of Maharastra and Hussainara Khatoon v Home Secretary, State of Bihar
The court held that the legal aid and speedy trial are fundamental rights under art 21 of the constitution which are
available to all detainees. Further, it ruled that the state is under a duty to provide a lawyer to a poor person, and it must
pay to the lawyer his fees as fixed by the court.
4
In Center of legal research v state of Kerala

The court held that in order to achieve the objectives in art 39A, the state must encourage and support the participation
of voluntary organizations and social action groups in operating the legal aid programmes. Further, legal aid schemes,
which are meant to bring social justice to the people, cannot remain confined to traditional or litigation-orientation
attitudes, and must take into account the socio-economic conditions prevailing in the country, and adopt more dynamic
approaches. The voluntary organizations must be involved and supported for implementing the legal aid programme,
and they should be free from government control.
5
In Abdul Hassan v Delhi Vidyut Board,

The Supreme Court commended the system of lok adalats set up by the parliament by enacting the Legal Services
authority Act 1987. The court directed that most authorities ought to set up such adalats.
6
In State of Maharastra v Manubhai Bagaji Vashi
The Supreme Court held that art 21 read with art 39-A casts a duty on the state to offer grants-in-aid to recognized
private law colleges, which qualify for receipt of the grant. The aforesaid duty cast on the state cannot be whittled
down in any manner, either by pleading paucity of funds, or otherwise.

PROTECTION AND IMPROVEMENT OF FORESTS AND WILD LIFE.

Article 48-A requires the State to take steps to protect and improve the environment and to safeguard the forests and
7
wild life of the country. In M.C Mehta v. Union of India , the supreme court relying on Article 48-A gave directions to
the Central and the State Governments and Various local bodies and Boards under the various statutes to take
appropriate steps for the prevention and control of pollution of water.

ARTICLE 31-C AND THE DIRECTIVE PRINCIPLES

th
Art 31-C was added by the Constitution 25 Amendment, 1971. The amendment has considerably enhanced the
importance of the directive principles. The object of the amendment as stated in the object clause of the Bill was that
this was enacted to get over the difficulties placed in the way of giving effect to the directive principles of State
policy. The first part of article 31-C provides that no law which is intended t give effect to the directive principles
contained in Art. 39 (b) and (c) shall be deemed to be void on the ground that it is inconsistent with or takes away or
abridges any of the rights conferred by Article 14, or 19. The second part of Art 31-C provided that “no law
containing a declaration that it is for giving effect to such policy can be called in question on the ground that it
does not in fact give effect to such policy’’ (invalid). The validity of first part of Article 31-C was upheld in the
fundamental rights case

62
8,but the second part of this Article, which barred the judicial scrutiny of such laws was struck down as
unconstitutional.
INTER-RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

The question of relationship between the Directive Principles and the Fundamental rights has caused some difficulty,
and the judicial attitude has undergone transformation on this question over time. What if a law enacted to enforce a
directive principle infringes a fundamental right? On this question, the judicial view has veered round from
irreconcilability to integration between the Fundamental rights and Directive Principles and in some of the more recent
cases, to giving primacy to the Directive Principles.

Initially, the courts adopted a strict and literal legal position in this respect. The Supreme Court adopting the literal
interpretative approach to Art. 37 ruled that a Directive Principle could not override a Fundamental right, and that in
case of conflict between the two, the Fundamental right would prevail over the Directive Principle

This point was settled by the Supreme Court in State of Madras v. Champakam Dorairajan, where governments
order in conflict with Art. 29 (2), a fundamental right, was declared invalid, although the government did argue that it
9
was made in pursuance of Art 46, a Directive Principle . The court ruled that while the Fundamental rights were
enforceable, the Directive Principles were not, and so the laws made to implement Directive Principles could not take
away Fundamental rights. The Directive Principles should conform, and run as subsidiary, to the Fundamental rights.
The Fundamental rights would be reduced to ‘a mere rope of sand’ if they were to be override by the directive
principles. The court observed in this regard.
“The Directive Principles of the state policy, which by Art. 37 are expressly made unenforceable by a court cannot
override the provisions found in part III (fundamental rights) which, notwithstanding other provisions, are expressly
made enforceable by appropriate writs, orders or directions under article 32. The chapter on fundamental rights is
sacrosanct and not liable to be abridged by any legislative or executive act or order, except to the extent provided in the
appropriate article in part III. The Directive Principles of state policy have to conform to and run as subsidiary to the
chapter on Fundamental rights.”

In course of time, a perceptible change came over the judicial attitude on this question. The Supreme Court’s view as
regards the interplay of Directive Principles and Fundamental rights underwent a change. The Supreme Court started
giving a good deal of value to the Directive principles from a legal point of view and started arguing for harmonizing
the two-the Fundamental rights and Directive Principles.

The Supreme Court came to adopt the view that although Directive Principles, as such, were legally non-enforceable,
nevertheless, while interpreting a statute, the courts could look for light to the “lode star” of the Directive Principles.
“Where two judicial choices are available, the construction in conformity with the social philosophy” of the Directive
10
Principles has preference . The courts therefore could interpret a statute so as to implement Directive Principles instead
of reducing them to mere theoretical ideas. This is on the assumptions that the law makers are not completely
unmindful or obvious of the Directive Principles.

Without, therefore, making the directive principles justifiable as such, the courts began to implement the values
underlying these principles to the extent possible. The Supreme Court began to assert that there is “no conflict on
the whole” between the fundamental rights and the directive principles. ‘They are complementary and
supplementary to each other.13”
Since then, the judicial attitude has become more positive and affirmative towards directive principles, and both
fundamental rights and directive principles have come to be regarded as co-equal. There is in effect a judicial
tendency to interpret Fundamental rights in the light of, and so as to promote, the values underlying Directive
Principles.
This aspect of the directive principles was stressed upon by the Supreme Court in Golak Nath14. The Supreme
Court there emphasized that the fundamental rights and directive principles formed an “integrated scheme” which
was elastic enough to respond to the changing needs of the society.

63
 15
In Kesavananda Bharti v. State of Kerala, HEGDE and MUKHERJI,JJ ., observed:

“the fundamental rights and directive principles constitute the “conscience of the constitution” there is no antithesis
between the fundamental rights and directive principles and one supplements the other.”

SHELAT and GROVER,JJ., observed in their judgment :

“both parts III (fundamental rights) and IV (directive principle) have to be balanced and a harmonized then alone the
dignity of the individual can be achieved they were meant to supplement each other.,”
16
The Supreme Court said in State of Kerala v. N.M Thomas , that the Directive Principles and Fundamental rights
should be construed in harmony with each other and every attempt should be made by the court to resolve any apparent
in consistency between them.
17
In Pathumma v. State of Kerala , the Supreme Court has emphasized that the purpose of the directive principles is to
fix certain socio-economic goals for immediate attainment by bringing about a non-violent social revolution. The
constitution aims at bringing about synthesis between Fundamental rights and the Directive principles.

PRINCIPLES OF SUSTAINABLE DEVELOPMENT

A special concern for environment, economy and society while balancing the economic growth and
social development is generally called as principle of sustainable development. Each and every eco-
system in which humans interact for development has its carrying capacity. Principle of sustainable
development mandates that while striving for economic growth and social development caution should
be taken for the carrying capacity of the ecosystem. Major sustainable development principles are listed
in the figure below.
Major Sustainable Development Principles

Intergenerational Equity/Trans-Anthropocentric Appraoch

Public Trust Doctrine
Precautionary Principle
Sustainable State and Governance
Equity as well as Equality based Distribution of Resources
Polluter Pays Principle

Intergenerational Equity
Intergeneration equity simply implies a duty of present generationtowards future generations. A trust in
which the present generations of human being are obliged to take care of the natural resources and
ecology so that all future generations shall also have an equal chance to enjoy the mother nature and right
to life. “The present generation has a right to use and enjoy the resources of the Earth but is under an
obligation to take into
account the long term impact of its activities and to sustain the resource base and the global environment
for the benefit of future generations of humankind.”1 Brundtland Commission2 clearly emphasized on the
importance of the concept of intergenerational equity. It says that “we borrow environmental capital from
future generations with no intention or prospect of repaying ... We act as we do because we can get away
with it:
future generations do not vote; they have no political or financial power;
they cannot challenge our decisions.”3 A trans-anthropocentric approach of development is essential
forachieving sustainability in growth and human settlements on earth. This
64
report has very famously incorporated the duty of present generations towards future generations in the
following words: “Development that meets the needs of the present without compromising the ability of
future generations to meet their own needs”

Prof. Edith Brown Weiss in his seminal paper ‘The Planetary Trust: Conservation and Intergenerational
Equity’5 described the idea of intergenerational trust as: ‘This planetary trust obligates each generation to
preserve the diversity of the resource base and to pass the planet to future generations in no worse
condition than it receives it. Thus, the present
generation serves both as a trustee for future generations and as a beneficiary of the trust. In fulfilling our
role as planetary trustees, we can draw on the law of trusts, a body of distilled teachings concerning
intergenerational cooperation and conflict, to help resolve the challenges confronting our global
heritage’.6 Further Prof Weiss making this planetary trust a fiduciary obligation to future generations.’
The essence of a trust is a
fiduciary relationship. This relationship imposes on trustees a duty to act for the benefit of beneficiaries
with respect to trust matters. Our fiduciary obligation as trustees of the planetary trust can be inferred
from the nearly universal recognition and acceptance among peoples of an obligation to protect the
natural and cultural heritage for future generations.’7 In a very calculative method Prof. Geir B. Asheim
described how real the intergenerational conflicts are and also affecting our present wellbeing. “There are
approximately 6.8 billion people currently alive (as of November 15, 2009). Approximately 100 billion
people have ever lived. Hence, the ratio of people who have ever lived in the past to people living today
is approximately 14 to 1. With 500 million years left of acceptable habitat for humans on Earth,
population being stable at 10 billion with an
Public Trust Doctrine
The origins of the public trust doctrine are traceable to Roman law
concepts of common property. Under Roman law, the air, the rivers, the sea
and the seashore were incapable of private ownership; they were dedicated
to the use of the public.10 Roman law recognized the public trust doctrine
whereby common properties such as rivers, seashore, forests and the air
were held by the Government in trust for free and unimpeded use of the
public. These resources were either owned by no one (res nullious) or by
everyone in common (res communious).11 The facets of Public Trust
Doctrine have been provided in Figure 2 below.

Sustainable development principles under Article 39 of the

Constitution
Article 39 Certain principles of policy to be followed by the State
The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an
adequate means to livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
65
common detriment;
(d) that there is equal pay for equal work for both men and
women
Sustainable development principles under Article 39 of the
Constitution
Article 39 Certain principles of policy to be followed by the State
The State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an
adequate means to livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
common detriment;
(d) that there is equal pay for equal work for both men and
women
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited
to their age or strength;
(f) that children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity
and that childhood and youth are protected against
exploitation and against moral and material abandonment

PUBLIC SERVICE COMMISSIONS

The civil servants occupy an important role in the successful administration of state at different levels. Therefore, their
recruitment, training, emoluments, conditions of service,
promotion policies, etc. assume importance. For an impartial consideration of these matters
relating to civil servants, an independent and expert authority is required which is known as the institution of public service
commission.
One of the important features of our Constitution is the inclusion of Public Service Commission at both Union and State
levels in the Constitution itself.
While UPSC and SPSC are constitutional bodies, a joint public service commission is created by an Act of Parliament.

The Need of an Independent Agency

Recruitment of civil servants has to be neutral, unbiased and free from prejudices of any kind. Then alone any merit system
will inspire confidence. To ensure objectivity and impartiality in recruitment, several measures have been taken.The
constitution of an independent agency in the form of a public service commission for recruitment is one.Through this agency
:
(i) the executive branch has been divested of the power of making recruitment to the
superior levels of civil services.
(ii) the agency thus created is an extra-departmental body such as a commission, which
functions outside the normal machinery of government.
(iii) a special constitutional status is conferred on this agency to ensure autonomous

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functioning. It must be remembered that the commission is only a recruiting agency, and not an appointing authority. The
authority of making appointments rests with the government. The commissions an advisory and recommendatory body. Its
decisions are not mandatory. Normally, government accepts its recommendations, but government may not always accept
what the commission suggests. However, in such cases the reasons for not accepting the recommendations have to be
explained and recorded.

Why A Commission Type of Organization?

The constitution provided a commission as distinct from the customary departmental type
for undertaking the task of recruitment of civil servants. The fathers of the constitution
were perhaps guided in their decision by the fact that the task requires experts and longer
specialized knowledge also and that facilitates collective deliberation by a group of experts
who are able to pool their knowledge and experience to arrive at informed and objective
decisions. Such a method of making decisions collectively is described as corporate mode
of functioning or decision making. Further a plural body like public service commission consisting of experts in parts
professional and technical weight age in the process of decision making. When several heads combine for deliberations,
biases are eliminated and objectivity is ensured. A commission functions outside the normal governmental machinery, hence
greater flexibility and innovativeness of approach is possible. Bureaucratic rigidities and delays, which characterize
government departments can thus be avoided
Composition of Union Public Service Commission
For the purpose of the higher level civil services of the Union Government, the Constitution provides for the setting up of
the Union Public Service Commission (UPSC). The number of members of the Commission and the conditions of their
service are left to be determined by the President, which means the government. It has since been decided that there shall be
a chairman and six to eight members of the Commission. At present the strength of the Commission is nine including the
chairman. The chairman and the members of the Commission are appointed by the President. The Constitution provides that
at least half the members have to be persons who have served for at least ten years under the Government of India or a State
Government.
A member holds office for a term of six years from the date he joins duty or until he attains the age of sixty five years,
whichever is earlier. The Chairman is ineligible for any future employment under the government, but other members are
entitled to accept the chairmanship of the UPSC or of a State Public Service Commission.

The conditions of service of members cannot be changed to their disadvantage after appointment. Their salaries, allowances,
etc. are not submitted to the vote of Parliament as they are charged on the Consolidated Fund of India. It is also provided
that the chairman or a member of the Commission can be removed from office by the President on the ground of
misbehavior .

It is only after an inquiry by Supreme Court, on a reference being made to it by the President. Pending the inquiry by the
Court, the President may suspend the member concerned. A member including the chairman
would be deemed guilty of misbehavior if he becomes interested in any monetary benefit in the discharge of duties as a
member. It is also provided that the President may remove
the chairman or any other member from office, on the ground of insolvency, infirmity of mind or body, or if he is engaged
during the term of office in any paid employment outside the duties of his office.
Functions of Union Public Service Commission
The functions of the UPSC as described in the Constitution are :
(i)To advise the government on all matters relating to the methods of recruitment and norms to be followed in making
apointments to civil services either directly or by promotion.

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(ii)To advise on the suitability of candidates for appointment, promotion and transfer.
(iii)To conduct examinations for appointment to All India services.
(iv)To advise on disciplinary matters affecting government servants.
(v)To advise on claims of legal proceedings instituted against a government servant and
on the claims in respect of injuries sustained by a government servant while on duty.
(vi)To advise on another matter specifically referred by the President.

There is also a provision for extending the functions of the Commission by Parliament not
only in respect of government services but also in respect of services under local authorities, corporations or other public
institutions.
The jurisdiction of the Commission can be reduced by taking away some posts from its purview. For example, the
Commission is not consulted in regard to selections for the folowing appointments:
(i)membership or chairmanship of tribunals or commissions
(ii)posts of high diplomatic nature
(iii)Group C and Group D employees who constitute nearly 90% of the total number of
the Central Government employees.

The Commission is consulted in matters of censure, compulsory, retirement, removal or

dismissal from service, seduction to lower same grade or post or scale, with holding of
increments or promotion, recovery of the whole or part of any loss caused to the government by negligence or branch of
order. Moreover, the Commission is also consulted in relation to an order of the President on an appeal against any of the
above penalties made by a subordinate authority after consideration of any petition or memorandum or otherwise.
The Commission also tenders advice to government on methods of recruitment, and the
principle to be followed in making appointments, promotions and transfers from one service
to another and the suitability of candidates for such appointments, promotions or transfers.
It is the duty of the Commission to present annually to the President a report as to the
work done by the Commission. The report along with the memorandum explaining the
action taken by the government on the recommendations of the Commission, is placed
before the Parliament. Government, thus, becomes responsible to explain the reasons in
case it has not accepted the recommendations of the commission.
Composition of State Public Service Commission
Each state in India has a public service commission. The Constitution stipulates that the
Governor determines the number of members of the Commission.
At least half of the members of Commission are persons with a minimum of ten years of experience under the central or a
state government. Members are appointed by the Governor for a term of six years or until the age of 62 years. Though the
Governor is the appointing authority but members can be removed only by the President. Conditions of service of the
members are determined by the Governor but the Constitution stipulates that these shall not be revised to their disadvantage.
Implicit in the foregoing are certain safeguards to ensure the Commission’s independence.

A member of a state public service commission on retirement or otherwise can be appointed as chairman or member of
UPSC, or as chairman of that or any other state service commission.

As in the case of UPSC, the state public service commission submits its annual report to the Governor. The Governor goes
through the report to be placed before the state legislature along with the cases in which the government has not accepted the
advice of the Commission. In such cases the government has to record the reasons for non-acceptance or rejection of the

68
recommendations. The state public service commission performs the same functions in regard to its respective states public
services as are performed by the Union Public Service Commission in regard to the Union Government.
A Joint Public Service Commission
Two or more states may agree that there should be one public service commission for
them. If a resolution to that effect is passed by the House or by each house of legislature
(where there are two houses) of the respective states. Parliament may by law provide for
the appointment of a Joint State Public Service Commission to serve the needs of those
states. The chairman and other members of this joint commission are also appointed by the
President.
Independence of Public Service Commission
The following constitutional provisions are intended to make the commission, both UPSC and SPSC, independent of any
external influence :
1.Members are appointed for a fixed tenure of six years or until the attainment of sixty-five years of age in the case of
UPSC, and sixty-two years in the case of SPSC.
2.The conditions of service of a member cannot be changed to his/her disadvantage during his tenure of office.
3.The removal of a member can take place by an order of the President on certain epecific grounds in consultation of the
Supreme Court.
4.The expenses of the commission are charged on the Consolidated Fund of India.
5.All regulations to be issued by the government excluding any matter from the purview of the commission will have to be
laid before the Parliament or the state legislature for such modification as it may deem fit to make.
6.Further employment of any member is severely restricted.

Union Public Service Commission

The Union Public Service Commission (UPSC) has been established under Article 315 of the Constitution of
India. The major role played by the Commission is to select personnel to man the various Central Civil Services
and posts and the services common to the Union and States (viz. All India Services).

The UPSC has been entrusted with the following roles and duties under Article 320 and 321:

 Recruitment to services and posts under the Union by conducting competitive examinations;

Recruitment to services & posts under the Central Government through Interviews;

 Advising on the suitability of officers for appointment on promotion as well as transfer-on-deputation;

Advising the Government on all matters relating to methods of Recruitment to various services and posts,
also framing and amending Recruitment rules;

 Disciplinary cases relating to different civil services;

Miscellaneous matters relating to grant of extra ordinary pensions, reimbursement of legal expenses etc.

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Services and Examinations Conducted by UPSC:
Civil Services

 Civil Services (Preliminary) Examination

 Civil Services (Main) Examination
 Entry into the IFS, IAS, IPS and the Central Services, Group A and Group B is through the All India
Combined Competitive Examination.
 Indian Forest Service Examination

India is one of the first countries in the world to have started scientific management of its forests. UPSC
conducts the Indian Forest Service Exam every year for recruiting officers for the Indian Forest Service,
which protects and conserves forest resources.

India is one of the first countries in the world to have started scientific management of its forests. UPSC conducts
the Indian Forest Service Exam every year for recruiting officers for the Indian Forest Service, which protects and
conserves forest resources.

Indian Economic Service / Indian Statistical Service

Indian Economic/Statistical Services Exam is conducted to recruit officers for the Indian Statistical Service (ISS)
and Indian Economic Service (IES), which are involved in economic planning and analysis through state boards,
Planning Commission and other government owned bodies in the country.

Technical/Medical Services

Engineering Services Examination

The Combined Engineering Services Examination is conducted by the UPSC every year for recruitment to the
four categories of Engineering services:

 Civil Engineering
 Mechanical Engineering
 Electrical Engineering
 Electronics & telecommunication Engineering

Geologist Examination

This examination is held for the recruitment of Geologists and Hydro-geologists for the following two categories:

 Category I (Posts in Geological Survery of India)

 Category II (Posts in Central Ground Water Board)

Combined Medical Services Examination

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The Combined Medical Services Examination is conducted by the UPSC for recruitment to the following five
categories:

 Assistant Divisional Medical Officers in the Railways

 Junior Scale Posts in Indian Ordnance Factories Health Service
 Junior Scale Posts in Central Health Services
 Medical Officers in the Municipal Corporation of Delhi (MCD)
 General Duty Medical Officers in the New Delhi Municipal Corporation (NDMC)

Defence Services

Indian defence jobs fall under this broad category. Combined Defence Services exam is conducted by UPSC
twice every year for recruitment to officer cadre of the Navy, the Army and the Air Force.

Candidates appearing at the degree or equivalent examination also eligible to compete. Such candidates will be
required to submit the proof of passing the requisite qualifying examination by a date to be specified in the
Commission's Notice for the Examination. For detailed information click here.

 National Defence Academy & Naval Academy Examination

 Combined Defence Services Examination

Railways

Special Class Railway Apprentices Examination is conducted to recruit candidates for the Mechanical Department
of the Indian Railways. This is a Class-I service and these officials constitute the top rung cadre of the mechanical
wing of the Indian Railways.

Railway Recruitment Control Board recruits Group 'C' personnel for different Zonal Railways/Production Units.
In all, there are 19 (nineteen) RRBs, which cater to the respective zonal staffing requirements. Based on the
indents received, employment notifications are released in Employment News (a publication of the Government
of India) and indicative advertisements in other News Papers. There are generally two notifications in a year by
each RRB. For more information click here

Police Forces

UPSC conducts the Central Police Forces (Assistant Commandants) Examination for the recruitment of Assistant
Commandants (Group A) in the following services:

 Central Police Forces (CPF)

 Border Security Force (BSF)
 Central Reserve Police Force (CRPF)
 Central Industrial Security Force (CISF)
 Indo-Tibetan Border Police (ITBP)
 Sashastra Seema Bal (SSB)
 Central Police Forces (Assistant Commandants) Examination

Non Technical Examination

Section Officers'/ Stenographers' (Grade 'B'/Grade -I) Limited Departmental Competitive Examination
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PUBLIC SERVICE COMMISSION
The Government of India Act, 1935 provided for the establishment of the Public Service Commission at the Provincial level known as the
State Public Service Commission and the constitution of India gave it a constitutional status as autonomous bodies. The State Public
Service Commissions were constituted under the provisions of the Constitution of India
Composition State Public Service Commission (SPSC)
A State Public Service Commission (SPSC) comprises of a chairman and other members appointed by the governor of the state. One half
of the appointed members of the commission should have held office for at least ten years either under the government of India or under
the government of a state. The constitution has not specified the strength of the commission. The governor is empowered to determine
the number of members as well as staff of the commission and their conditions of service.
The governor can appoint one of the members of the SPSC as an acting chairman if:
(i) The office of the chairman of the commission becomes vacant; or
(ii) The chairman of the commission is unable to perform the duties of his office due to absence or for any other reason.
Such member functions as an acting chairman till a person appointed as chairman enters on the duties of the office or till the chairman
resumes his duties, as the case may be.
Tenure:
The chairman and members of the SPSC hold office for a term of six years or until they attain the age of 62 years, whichever is earlier.
The members can resign in between the term by addressing their resignation to the governor.

Duties and Functions

The duties and functions of the SPSC are follows:
(i) It conducts examinations for appointments to the services of the state.
(ii) It is consulted on the matters below:
(a) All matters relating to methods of recruitment to civil services and for civil posts.
(b) The principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one
service to another and on the suitability of candidates for such appointments, promotions or transfers.
(c) All disciplinary matters affecting a person serving under the Government of India in a civil capacity, including memorials or petitions
relating to such matters.
(d) Any claim of costs incurred by a civil servant in defending legal proceedings instituted against him in respect of acts done or purporting
to be done in the execution of his official duty.
(e) Any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India and any
question as to the amount of any such award.
(f) Any matter related to personnel management.
(g) It presents annually to the governor a report as to the work done by the commission.
The state legislature can confer additional functions to the SPSC relating to the services of the state. It can also extend the function of the
SPSC by placing the personnel system of any local authority or other body corporate constituted by law or of any public institution under it.

The annual report of the SPSC regarding its performance is submitted to the governor. The governor then gets this report laid before the
state legislature, together with a memorandum explaining the cases where the advice of the commission was not accepted and the reason
for such non acceptance.

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SEPARATION OF POWERS "AND THE INDIAN CONSTITUTION"
In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity.
In India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and
balance has been embedded so much so that the courts are competent to strike down the unconstitutional
amendments made by the legislature. The constitution makers have also meticulously defined the functions of
various organs of the state. Legislative and executive, which acts the two facets of people’s will have all the
powers including that of finance.

There exists clear division between the head of the state and the head of the government. The executive is
president; the legislature is Parliament (Lok Sabha and Rajya Sabha) and the judiciary contains Supreme Court,
High Courts and other lower courts. Similarly at the level of states, the Governor acts as executive and there exists
legislative body at each state.

Some of the articles in the Indian constitution which emphasizes the separation of powers are the following:

Article 50

Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls
under the Directive Principles of State policy (DPSP) and hence is not enforceable.

Articles 121 and 211

The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only
in matters of impeachment.

Articles 122 and 212

The courts cannot inquire the validity of the proceedings of the legislatures.

Article 361

The President and Governors enjoy immunity from court proceedings.

Checks and balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not
specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of checks and
balances is essential for the proper functioning of three organs of the government. Different organs of the state
impose checks and balances on the other. The following examples illustrate the checks and balances:

 Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws
passed by the Parliament. Similarly, it can declare the unconstitutional executive actions as void.
 Legislatures review the functioning of the executive.
 Executive appoints the judges.
 Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the
constitutional limitation.

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Checks and balances acts in such a way that no organ of the state becomes too powerful. The constitution of India
makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of
democracy. For instance, the legislature can impeach judges but as per the condition i.e. two third majority.

Judicial Pronouncements

In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject
to the basic features of the constitution. So, any amendment violating the basic features will be held
unconstitutional. This scheme cannot be altered by even resorting to Art.368 of the constitution.

In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived
from the legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and
legislative functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their
aid and advice mandatory for the President, who is the formal head of the State.

In Indira Nehri Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a
judicial function and parliament cannot even under constitutional amending power is competent to exercise this
function.

In Swaran Singh case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.

In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti case regarding the
non-amend ability of the basic features of the Constitution and strict adherence to the doctrine of separation of
powers.

Constituent assembly and the separation of powers

There were primarily two reasons for non insertion of separation of powers in the constitution:

 It was felt that it was too late to make amends as the constitution was already drafted and bringing the
amendment inserting the principle of separation of powers would bring in change to the structure of the
constitution.
 Since, British system of parliamentary form of government was adopted, it was thought it would be better to avoid
adopting complete separation of powers as in the American system.

Independence of Judiciary and separation of powers

Independence of Judiciary guarantees fair and neutral judicial system without the interference or influence by the
executive and legislative branches of the government. The concept of independence of judiciary was derived from
the England. The Hampden’s case (1637) and Coke’s (1616) case helped to secure judicial independence.

In India, during pre-independence times, the criminal magistracy was placed under the direct control of the
executive. Executive control of judiciary will breach the rule of law and result may be that the rights of the
citizens may be compromised. Article 50 of the constitution puts an obligation over the state to separate the
judiciary from the executive. In India, independence of judiciary basically limited to delivering justice. Other
things pertaining to the judiciary like salary, allowances, privileges, jurisdiction, appointment and impeachment of
jufges are left with Parliament and the executive. Independence of judiciary has been made as a basic structure of
the constitution. This was observed in the S.K. Gupta v. President of India (1981) case.

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Legislature Versus Judiciary

In India, there exists tug of war between the Judiciary and Legislature on certain issues. Judiciary has striked
down certain laws passed by the Legislature terming them ultra vires. The Legislature, for its part has objected to
the concept of Judicial Activism and sometimes frames fresh piece of legislation to circumvent the objection
raised by the judiciary. It is generally held that the concept of judicial activism outs the doctrine of separation of
powers.

In many instances in the past, the courts have issued laws and policies through their judgments. Some of the
prominent examples are:

 Vishakha case where the Supreme Court issued guidelines on sexual harassment.
 In 2010, it directed the government to distribute food grains.
 Recently, it also appointed a Special investigation Team (SIT) to replace the High Level Committee constituted by
the government for investigating the issue of black money deposits in Swiss Banks.

However, it is often alleged that the judiciary crosses its territory pertaining to the Legislature or executive and is
termed as judicial overreach or judicial adventurism.

At the same time, there are also instances of the legislature reversing the outcome of some of the judgments. For
instance, in the Commissioner of Customs vs. Sayed Ali in 2011 case, imposition of some duties retrospectively by
the Customs Amendment and Validation Bill, 2011 was challenged in the Supreme Court. The Supreme Court
struck down the levy of duties. In order to circumvent that judgment, the Parliament passed Customs Bill, 2011
and amended the provisions to levy duties retrospectively even in those which was earlier struck down by the
Supreme Court. Similarly, Essential Commodities (Amendment) Ordinance, 2009 was passed by the Parliament to
overrule the Supreme Courts judgment regarding the purchase of sugar by the government from the mill.

As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of
the State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government.

DOCTRINE OF SEPARATION OF POWERS

The Doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government
namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and
Aristotle. It was Aristotle who for the first time classified the functions of the

Government into three categories viz., deliberative, magisterial and judicial Locks categorized the powers of the
Government into three parts namely: continuous executive power, discontinuous legislative power and federative
power. “Continuous executive power” implies the executive and the judicial power, and “discontinuous legislative
power” implies the rule making power, while “federative power‟ signifies the power regulating the foreign
affairs.

The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time
enunciated the principle of separation of powers. That is why he is known as modern exponent of this theory.
Montesquieu’s doctrine, in essence, signifies the fact that one person or body of persons should not exercise all
the three powers of the Government viz. legislative, executive and judiciary. In other words each organ should
restrict itself to its own sphere and restrain from transgressing the province of the other.

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Montesquieu explained the doctrine in its own word they are:

“When the legislative and executive powers are united in the same person, or in the same body or magistrates,
there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and
executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed
to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the
Judge might behave with violence and oppression. There would be an end of everything were the same man or the
same body to exercise these three powers…”

Importance of The Doctrine Of Separation Of Powers

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not
accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of
separation of power is that there should be government of law rather than having whims of the official. Also
another most important feature of the above said doctrine is that there should be independence of judiciary i.e. it
should be free from the other organs of the state and if it is so then justice would be delivered properly. The
judiciary is the scale through which one can measure the actual development of the state if the judiciary is not
independent then it is the first step towards a tyrannical form of government i.e. power is concentrated in a single
hand and if it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of
power do plays a vital role in the creation of a fair government and also fair and proper justice is dispensed by the
judiciary as there is independence of judiciary.

Doctrine of Separation of Power in India

The doctrine of separation of powers has no place in strict sense in Indian Constitution, but the functions of
different organs of the Government have been sufficiently differentiated, so that one organ of the Government
could not usurp the function of another.

In Indian Constitution there is express provision that “Executive power of the Union shall be vested in the
President and the executive power of the State shall be vested in Governor..” (Article 154(1) of Indian
Constitution). But there is no express provision that legislative and judicial powers shall be vested in any person
or organ.

President being the executive head is also empowered to exercise legislative powers. In his legislative capacity he
may promulgate Ordinances in order to meet the situation as Article 123(1) says “If at any time, except when both
Houses of Parliament are in Session, 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”.

When Proclamation of emergency has been declared by the President due to failure of Constitutional machinery
the President has been given legislative power under Article 357 of our Constitution to make any Law in order to
meet the situations. A power has also been conferred on the President of India under Article 372 and 372-A to
adapt any Law in country by making such adaptations and modifications, whether by way of repeal or amendment
as may be necessary or expedient for the purpose or bringing the provisions of such Law into accord with the
provisions of the Constitution.

The President of India also exercises judicial function. Article 103(1) of the Constitution is notable in this
connection. According to this Article “If any question arises as to whether a member or either of House of
Parliament has become subject to disqualification mentioned in clause (1) of Article 102, the questions hall be
76
referred for the decision of the President and his decision shall be final”. Article 50 lays emphasis to separate
judiciary from executive. But in practice we find that the executive also exercises the powers of judiciary as in
appointment of judges. (Articles 124, 126 & Article 127). The legislative (either House of Parliament) also
exercises Judicial function in removal of President (Article 56) in the prescribed manner. Judiciary also exercises
legislative power, High Court and Supreme Court are empowered to make certain rules legislative in character.
Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or public
policy it declares the same null and void, and then amendments may be incorporated in the Legal System. Some
time High Court and Supreme Court formulate the principles on the point where law is silent. This power is also
legislative in character.

The first major judgment by the judiciary in relation to Doctrine of separation of power was in Ram Jawaya v.
State of Punjab.[vi] The court in the above case was of the opinion that the Doctrine of separation of power was
not fully accepted in India.

Later in I.C. Golak Nath v. State of Punjab,[vii] Subha Rao, C.J opined that

“The constitution brings into existence different constitutional entitles, namely the union, the state and the union
territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping
their limits. They should function with the spheres allotted to them.”[viii]

In Keshvananda Bharti v Union of India[ix] the court was of the view that amending power was now subject to
the basic features of the constitution. And hence, any amendment tampering these essential features will be struck
down as unconstitutional.[x]

JUDICIAL REVIEW AND THE DOCTRINE OF SEPARATION OF POWERS

As clearly mentioned about the separation of power there were times where the judiciary has faced tough
challenges in maintaining and preserving the Doctrine of separation of power and it has in the process of
preservation of the above said Doctrine has delivered landmark judgments which clearly talks about the
independence of judiciary as well as the success of judiciary in India for the last six decades.

Henceforth, it can be said that the rule of separation of power in today’s scenario cannot be worked out in a proper
way. There is a need for a new and better doctrine which serves the purpose of the present democratic need,
whether it is a parliamentary or presidential type of government. If we take the background of the major countries
like U.S.A, U.K, India, Russia, France, Germany, Spain and U.A.E, it can be seen it there is no complete
separation of power that Montesquieu had advocated. All the organs of the Government are subject to each other’s
scrutiny by way of checks and balance. Thus, it can be better said that all the organs of the government should
behave in a way that they do not violate the principal law or the rule of law of the country and it should be upheld
in all circumstances for the better protection of the rights, liberties and freedoms of the people of that state. So,
each organ are impliedly required to restraint their powers to the sphere which has been provided or set forth in
the Constitution and to undertake steps that serves the purpose for which it is there. Any act, inaction or abuse of
such powers by one organ calls for interference of the other organ. Reference can here be made of Nuremberg
trial, where in the Court has held that the judges are not to act upon the laws which are against the humanity or
based on unreasonable classification or are arbitrary in nature or are against the moral principles; even if such
laws are passed by the parliament. They are to restraint themselves from participating in it and serve the purpose
of the nation by bringing in modification or interpretations to the laws. Similarly, Parliament is to observe that the
laws made by it are not against the rule of law, or against the Constitution or against the public morale and
77
humanity. It should also from time to time keep an eye on the social changes and scientific advancement so that
the laws meet the demands of the time and must not involve in colorable legislation. The Executive should also
refrain from executing the laws which are against natural justice or which is in violation of the rights, liberties and
freedoms of common man or is against the state or constitution in particular. This is the doctrine of Self Restraint,
whereby, all the organs try to fulfill the aspirations of the nation and uphold the rule of law, without interfering
into the domain of the other. The Constitution must in all circumstances be considered supreme, and the laws
made by the legislature should pass the test of reasonableness and the objectives of the Constitution.[xi]

Separation of power is the essential feature of the Democratic Republic established under our Constitution by
division of powers between the three important wings of the State: The Parliament and State Legislatures, the
Executive and the Judiciary. However there is absence of specific provisions in the Constitution exclusively
vesting legislative powers in the legislature and judicial powers in the judiciary was noticed in Delhi Laws in
1951, but the essence of doctrine of separation of powers and of constitutional limitation was accepted as a feature
of basic structure of the Constitution in Indira Gandhi vs. Raj Narain.[xii] Judicial review and activism functions
of the judiciary is an important element of our system of justice to keep a check on the legislature who are the law
makers of the land, so that they do not exceed their powers and work within the allowances that the constitution
has made for them. the separation of the judiciary from the other organs though is taken very seriously so that the
common man’s liberty can in no circumstances be compromised and a fair remedy is available to any individual
citizen of the state. Thus the Indian Constitution, which is an extremely carefully planned document designed to
uphold the integrity and liberty of every citizen, has not in its entirety embraced the doctrine of separation of
powers but has indeed drawn a lot from the concept and kept it as a guiding principle. But the doctrine of
Separation of Powers has been included in our basic structure doctrine as has been ruled and upheld by the
Supreme Court in a number of cases. Thus it holds a position of utmost importance, albeit has been modified to
suit the needs of a modern all pervasive state.[xiii]

JUDICIAL ACTIVISM

Definition
According to Black’s Law Dictionary judicial activism is a “philosophy of judicial decision-making whereby
judges allow their personal views about public policy, among other factors, to guide their decisions.” Judicial
activism is articulated and enforced by judicial rulings suspected of being based on personal or political
considerations rather than on existing law. Judicial activism implies going beyond the normal constraints applied
to jurists and the Constitution, which gives jurists the right to strike down any legislation or rule against the
precedent if it goes against the Constitution. Judicial activism is premised upon the fact that judges assume a role
as independent policy makers or independent “trustees” on behalf of society that goes beyond their traditional role
as interpreters of the Constitution and laws[xiv]

Origin
The origin of judicial activism through judicial review can be traced back under the unwritten Constitution of
Britain during the Stuart period of (1603-1688). Sometime, in the year 1610, the power of judicial review was
asserted for the first time in Britain through the activism of Justice Coke. Evolving the principles of judicial
review, Chief Justice Coke declared that if a law made by the Parliament violated the principles of ‘common law’
and `reason’ then the courts might review and adjudge it as void. Coke’s theory of judicial review was repeated by
Sir Henry Hobart in 1615 and again in 1702 by Sir John Holt. The British chief justices asserted the power of the
judiciary to review acts of the British Parliament under ‘reason’ and ‘common law’. “Though Coke’s words were
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repeated”, John Agresto finds that “except for Dr. Bonham’s case instances of actual nullification of
parliamentary laws by British courts cannot be cited.” Since then, however, judicial review did not get a upper
hand as it was over-shadowed by the evolution of parliamentary sovereignty in Britain.[xv]

Judicial Activism in India

Judicial activism in India means the power of the Supreme Court and the high courts but not the sub-ordinate
courts to declare the laws as unconstitutional and void if it infringes or if the law is inconsistent with one or more
provisions of the constitution. To the extent of such inconsistency while declaring a law as constitutional and void
the courts do not suggest any alternative measures. According to SP Sathe “a court giving a new meaning to the
provision so as to suit the changing social or economic conditions or expanding the horizons of the rights of the
individual is said to be an activist court.”[xvi]

Evolution of Judicial Activism in India

Supreme Court of India started off as a technocratic court in the I950s but slowly started acquiring more power
through constitutional interpretation. Its transformation into an activist court has been gradual and imperceptible.
In fact the roots of judicial activism are to be seen in the court’s early assertion regarding the nature of judicial
review.

In India Judicial activism can be positive as well as negative.

1) A court engaged in altering the power relations to make them more equitable is said to be positively activist
and

2) a court using its ingenuity to maintain the status quo in power relations is said to be negatively activist’ .I
believe this is an elaboration of Cardozo’s oft quoted dictum regarding ‘felt necessities of the times’. It is clear
that the authors in favor of the positively activist court.[xvii]

Landmark Judgments
a) AK Gopalan v. State of Madras[xviii]:

Significant decision was observed because it represented the first case where the court meaningfully examined
and interpreted key fundamental rights enlisted in the constitution including article 19 and 21.[vii] A writ of
habeas corpus was filed. The contention was whether under this writ and the provisions of THE PREVENTIVE
DETENTION ACT, 1950, there was a violation of his fundamental rights which were article 13, 19, 21 and 22.
The counsel on behalf of the petitioner argued that the right to movement was a fundamental right under article 19
and hence the defense counsel must prove that the law of preventive detention was a reasonable restriction as per
the five clauses of article 19(2).

Judge restricted the scope of fundamental rights and by reading them in isolation of article 21 and 22 which
provided guidelines for preventive detention. Foreign precedent like cases of UK and US were used in limiting the
scope of article 21. Justice Kania said that the term due process prevented the courts from engaging in substantive
due process analysis in determining the reasonableness of the level of process provided by the legislature. He
remarked:-

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The word “due” in the expression “due process of law” in the American Constitution is interpreted to mean
“just,” according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to
pronounce what is “due” from otherwise, according to law. The deliberate omission of the word “due” from
article 21 lends strength to the contention that the justifiable aspect of “law”, i.e., to consider whether it is
reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word “due”,
the limitation imposed by the word “procedure” and the insertion of the word “established” thus brings out
more clearly the idea of legislative prescription in the expression used in article 21. By adopting the phrase
“procedure established by law” the Constitution gave the legislature the final word to determine the law.[xix]

Fazl Ali’s dissent broadly construed the provision “procedure established by law” in Article 21 to encompass
higher principles of natural law and justice, and not just statutory law. he said that the Indian Constitution
intended to incorporate the same language as the Japanese Constitution and encompass “procedural due process”
conception, he still cited to American , British and foreign precedent to support a much more expanded view of
due process. They were based on the principles of Natural Justice. Fazal Ali highlighted a series of US decisions;
the US Supreme Court recognized that the word law does not exclude certain fundamental provisions. Drawing on
British and US legal sources he argued for incorporating procedural due process into article 21, guided by
principles of Natural Justice in accordance with universal, transactional and legal norms.

In the above case two major points were held: Art 19, 21 and 22 are mutually exclusive. Art 19 was to not
apply to a law affecting personal liberty to which art 21 applies. In the above case, the restrictions under article 19
applied only on free people. Unless the state arrested a person for making a speech, holding an assembly, forming
an association or for entering a territory, the arrest had to be EXAMINED under article 21. A “LAW” affecting
life and liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure.
Hence article 21 provided no immunity against competent legislative action.

b) Kharak Singh v. State of Uttar Pradesh[xx]:

the petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of
the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the
ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India.
On the basis of the accusations made against him, he had police constables entering his house and shout at his
door, waking him up in the process. On a number of occasions they had compelled him to accompany them to the
station and had also put restrictions on him leaving the town.

The judges made a breakthrough while interpreting and finding the connection between article 19 and 21 by
remarking that:

 If a person’s fundamental right under Article 21 is infringed the State can rely upon a law to sustain the action; but
that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the
attributes covered by Article 19(1) are concerned. In other words, the State must satisfy that both the
fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable
restriction within the meaning of Article 19(2) of the Constitution. But in this petition no such defence is available,
as admittedly there is no such law.
 So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under Articles 19(1)(d)
and 21, were infringed by the State. Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a
writ of mandamus directing the respondent- State of Uttar Pradesh- not to continue visit to his house.

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Here, the majority adopted a restrictive conception of liberty that only extended to direct infringement of the
freedom of movement, and refused to recognize the existence of a right to privacy. However this theory which
was the minority judgement of J Subba Rao went on to become the majority judgement in

c) Satwant Singh Sawhney v. Union of India:[xxi]

Satwant Singh the petitioner was a manufacturer; importer and exporter who were asked to surrender the passport
on the ground that he was likely to leave India to avoid a trial. For the first time, the Court was able to author a
majority decision and binding precedent in the area of personal liberty that built and relied on foreign precedents
dealing with substantive due process. Moreover, Chief Justice Subba Rao used combination of American
precedents, along with the opinions in Kharak Singh, to rule that the term “personal liberty” is as broad in India as
the term “liberty” is in the 5th Amendment of the U.S. Constitution. The court recognized that right to life and
liberty could be taken away by a “procedure established by law”. However it cancelled the government’s order to
the petitioner to surrender his passports. Its judgement was found on the limited ground of the failure to provide
for any procedure regulating the denial/surrender of passports under the Indian Passports Act, 1920. The court’s
objection was based on the absence of a procedure rather than the merits of the existing system. [x] Soon after the
Satwant Singh Judgement, the parliament enacted the Passport Act, 1967 to regulate how passports would be
issued, revoked, impounded or revoked- matters on which legislation did not exist earlier.

India’s democratic structure following the Emergency was shaken to the core as it had severely impinged on a
person’s fundamental rights. The citizens were resentful and there was severe dishonesty on the part of the
government along with the crippled nature of the highest court in land.

d) Maneka Gandhi v Union of India[xxii]:

In this case the Supreme Court restored the citizen’s faith in judiciary. The 3 landmark judgements were depicting
a great change in the thought process of the judiciary and had set the stage for Judicial Activism to be introduced.

The Supreme Court not only broadened the meaning of “personal liberty” but also adopted the theory of “due
process” in “procedure established by law”. The court recognized that when a law restricts personal liberty, a
court should examine whether the restriction on personal liberty also imposed restrictions on any of the rights
given by article 19. The Court held that personal liberty includes “a variety of rights which go to constitute the
personal liberty of man,” in addition to those mentioned in Article 19, and that one such right included in
“personal liberty” is the right to go abroad. The court also held that according to the “audi alteram partem”
theory, impounding Mrs. Gandhi’s passport without giving her a hearing violated procedure established by law.
These were principles of natural justice and fair procedure. The court had to decide whether Mrs. Gandhi was
entitled to a hearing before her passport was impounded. It was resolved that as there was no post decisional
hearing, the impounding was UNCONSTITUTIONAL AND VOID.

Amongst the fundamental rights, article 14, 19 and 21 of the constitution- composing the “golden triangle” have
been invoked most often to declare legislation or arbitrary state action invalid. In this particular case, there was
conflict whether the right to travel abroad formed a right to personal liberty under article 21. The Supreme Court
departed from the stereotyped notion and held that fundamental rights form an integrated scheme under the
constitution. Emphasizing the need to read Part III of the Constitution in a holistic manner, the SC said that the
mere fact that a law satisfied the requirements of one fundamental right did not exempt it from the operation of
other fundamental rights. The majority of the seven judge bench stated that any procedure established by law
under article 21 would have to be “fair, just and reasonable” and it differed from the Satwant Singh case by
establishing that even in presence of a law, an arbitrary law will not be considered. The Supreme Court after this
judgement became the watchdog of the constitution instead of supervisors.
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Judicial creativity

Expansion Of Right To Life By Means Of Judicial Activism

The above topic was an exhaustive evaluation of judges and their path breaking performance with regard to
changing the dynamics of article 21. American Constitution’s concept of Due process was finally embodied in the
words “procedure established by law”. The current topic will deal with the expansion of the provision due to the
revolution created by the MANEKA GANDHI JUDGEMENT. The concept of PIL[xiv] started taking shape,
which was pioneered by the great Justice P.N Bhagwati who took cognizance of the fact that in certain
circumstances, A PIL may be introduced in a court of law by the court itself (suo moto), rather than the aggrieved
party or another third party. Post Maneka Gandhi’s case, the Supreme Court ascertained that,

“In order to treat a right as a fundamental right, it is not necessary that it should be expressly stated in the
constitution as fundamental right. Political, social and economical changes in the country entail the recognition of
new rights. The law grows to meet the demands of the ever evolving society”

Hence the Supreme Court has found Article 21 to incorporate the substantive freedom that serves as means to
remove major areas such as poverty, poor economic opportunities as well as systematic social deprivation. A most
significant feature of expansion of article 21 has been that many of the Non-justifiable Directive Principles have
been converted into ENFORCEABLE FUNDAMENTAL RIGHTS by the hands of judges. Guarantees of
economic opportunities and protection against social deprivations were established in various decisions:

1. Quality of life
2. Right to Livelihood
3. Right to medical care
4. Right to Die
5. Sexual Harassment
6. Ecology and Environment
7. Right to Privacy

Right to Privacy
The constitution does not grant in specific and express terms any right to privacy as such Right to Privacy is not
encumbered as a Fundamental Right in the Constitution. However, such a right has been culled by the Supreme
Court from Art 21 and several other provisions of the Constitution read with the Directive Principles of State
Policy.

As mentioned above, the Kharak Singh was the first of its own kind, to inaugurate the idea of “privacy” where
issues were raised regarding implying the right to privacy from existing fundamental rights such as Article
19(1)(d) and 19(1)(e) and 21. During that time, J Subba Rao had commented

“The right to personal liberty takes in not only a right to be free from restrictions but also free from
encroachments on his private life”

In 1965, the Supreme Court of India heard and decided State of Uttar Pradesh v. Kaushaliyaa case which
involved the question of whether women who are engaged in prostitution can be forcibly removed from their
residences and places of occupation, or whether they were entitled, along with other citizens of India, to the

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fundamental right to move freely throughout the territory of India, and to reside and settle in any part of the
territory of India.

In its decision, the Supreme Court denied them this right holding that “the activities of a prostitute in a particular
area are so subversive of public morals and so destructive of public health that it is necessary in public interest to
deport her from that place. The statutory restrictions imposed by the Suppression of Immoral Traffic Act on
prostitutes, were upheld by the Court as constitutionally-permissible “reasonable restrictions” on their
movements.

In 1972, the Supreme Court decided a case – one of the first of its kind – on wiretapping.[xxiii]

In R. M. Malkani v. State Of Maharashtra[xxiv]the petitioner’s voice had been recorded in the course of a
telephonic conversation where he was attempting blackmail. He asserted in his defence that his right to privacy
under Article 21 had been violated. The Supreme Court declined his plea holding that “The telephonic
conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by
tapping the conversation. The protection is not for the guilty citizen against the efforts of the police tovindicate the
law and prevent corruption of public servants. The case had fallen in the PRE MANEKA era.

In Govind vs. State of Madhya Pradesh[xxv], decided by a three-Judge Bench of the Supreme Court is regarded as
being a setback to the right to privacy Jurisprudence where the judges established that surveillance is not an
unreasonable restriction upon right to privacy. It is only persons who are suspected to be habitual criminals and
those who are determined to lead a criminal life that is subjected to surveillance.

An interesting angle was brought about in the famous NAZ FOUNDATION CASE[xxvi]. The petitioners argued
‘to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section
377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under
Article 21 [which] can be abridged only for a compelling state interest which, in its submission, is amiss here’

The Court then disposed of claims that this invasion of privacy was justified within the exception to Article 21.

“While it could be “a compelling state interest” to regulate by law, the area for the protection of children and
others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does
not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals
engaged in consensual sex in private without intending to cause harm to each other or others.

However this case suffered a huge setback when Supreme Court overturned the ruling of the Delhi High Court
condemning homosexuality by holding Section 377 of the Indian Penal Code valid and demanding the legislature
to take appropriate action pertaining to the abolishment of this particular provision. Right to privacy has been
hence denied to anyone who commits the offence under Section 377.

A similar concept of ‘public interest’ would seem to apply when private companies disclose personal information
without a person’s consent. Without delving into the issue in too much detail, it would suffice here to mention one
of the most important cases to have come up on the issue. In Mr. X v. Hospital Z, a person sued a hospital for
having disclosed his HIV status to his fiancé without his knowledge resulting in their wedding being called off.
The Supreme Court held that the hospital was not guilty of a violation of privacy since the disclosure was made to
protect the public interest.

The Times of India reported that the law ministry is working on a proposal to make right to privacy a fundamental
right in the Indian Constitution. The right to privacy would include the right to confidentiality of communication,
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confidentiality of private or family life, protection of his honour and good name, protection from search, detention
or exposure of lawful communication between individuals, privacy from surveillance, confidentiality of banking,
financial, medical and legal information, protection from identity theft of various kinds protection of use of a
person’s photographs, fingerprints, DNA samples and other samples taken at police stations and other places and
protection of data relating to individual.

Features of Indian Federal System

The main federal features of the Indian Constitution are as follows:

 Written Constitution:
 Supremacy of the Constitution:
 Rigid Constitution:
 Division of Powers:
 Independent Judiciary:
 Bicameral Legislature:
 Dual Government Polity:

A federation is created when several independent and sovereign states having common aims and objectives
form an association on constitutional, legal and permanent basis. The federating states surrender their
sovereignty for the common good. The federal state becomes sovereign. It consists of units having a large
measure of autonomy as far as regional matters are concerned.

Federal Features

A study of the Indian federal structure reveals certain distinguishing features which are described below:-

1.Two sets of governments

There exists two sets of governments in a federation. The governments are:

(i) Federal, National or Central Government;

(ii) Regional Governments which may be called States (as in the U.S.A. and India), Cantons in Switzerland
or Provinces in: Canada.

A federation is formed out of the desire to have union, rather than

unity. Unity is the goal of unitary state, but union is the basis of federation. It is because under federation,
the units do have political autonomy except in matters of national interest. So dual government having
supremacy in their own sphere is the first feature of a federal government.

2. Constitutional Division of Powers

Distribution of powers between central and regional governments is a marked feature of a federal
government. In a federal state the subjects of national importance are given to the
central government and those of regional importance, are given to the units.
The distribution of powers is made by a written constitution.[1]

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Subjects of national importance like defence, foreign affairs, currency, foreign trade and maritime shipping
etc. are under the control of the Central Government, and those of local or regional importance like peace
and order, education, civil rights, hospitals and property are under the Regional Governments.

Generally, powers may be distributed in three ways:

(1) The powers of the Central Government and those of the Regional Government may be enumerated.

(2) The powers of the Central Government may be enumerated and the rest belongs to the units.

(3) The powers of the units may be enumerated and the residuary powers belong to the centre.

In U.S.A., Switzerland, Australia, and the U.S.S.R. central governments have been given the enumerated
powers, but the residuary powers belong to the units or regional governments. In the case of Canada the
powers of the units are enumerated and the residuary powers are with the centre.

In India distribution of power is based on three lists: -

 Union list,
 State list and
 Concurrent list.

Union list consists of 100 items,(Originally 97 items) State list consists of 61 items(Originally 66 Subjects)
and the Concurrent list has 52 items.(Originally 47 subjects) Residuary powers belong to the Central
government.[2] The Union legislature is empowered to legislate on the items enumerated in the Union list;
and the State legislatures legislate on the items enumerated in the State list. On the Concurrent list both
the Union and the State legislature can make laws. But in case of conflict between Union law and the State
law, the former shall prevail. During the time of emergency, Union government has been provided with
power to make law for the whole country on any list. Even in normal time, the Union government has been
empowered to legislate on any matter in the State list, if the Rajya Sabha passes a resolution by two-third
majority, declaring a particular subject of national importance. Hence, Prof. Wheare describes India to be
'Quasi Federal'.

3. Written and Rigid Constitution

The distribution of powers as envisaged by federalism cannot be ensured properly if there is no written
constitution. A written constitution defines the relation between central government and regional
governments in definite terms. Dicey says that a written constitution is the 'Charter of rights and duties of
the federal and state authorities'.

Prof. Wheare says if the government is to be federal there must be supremacy of the constitution.
Supremacy of the constitution means that the terms and agreements which distribute power between
central and regional governments must be binding on both. Not only the constitution should be written, it
should be rigid to ensure the rights of both central and regional government. It means that the constitution
should not be amended either by central or regional governments by means of ordinary, law-making
procedure. Secondly, power of amendment should not be at the disposal of one government only.

It should belong to both to give equality of states to both central and regional government. In the United
States of America, amendment to the constitution may be proposed by a majority of two-thirds of both the
houses of Congress or by a convention summoned by Congress on the application of the legislatures of two-
third of states. The proposed amendments become effective when ratified by the legislature of three-fourth
of states or by conventions in three-fourth of states according to the one or the other method of ratification
proposed by Congress. In Australia, the constitution can be amended on a proposal by an absolute majority

85
of the two houses of parliament of the Commonwealth, or one House and it is to be ratified at a referendum
of the people.

The Constitution of India followed a totally different procedure of amendment. Prof. Wheare rightly
remarked that the constitution of India established a unitary state with subsidiary federal features. It talks
of three different procedures of amendment. Some partsof the constitution like creation of new states,
abolition of state boundaries and upper chamber, can be amended by simple majority in both the houses of
Parliament. Some parts like election of the President, executive and legislative powers of Union or states,
the provisions regarding the Supreme Court, the procedure of amendment require a majority of the total
membership in each house of Parliament, a majority of two-thirds of the members present and voting and
ratification by the legislature of one-half of the states.[3] The remaining provision requires a majority of
total members present and voting in each house of the Parliament. However, the procedure of amendment
in a federal state demands that it should be difficult and should give equal power to both centre and the
states.

4. Independent Federal Court

A federal state must have an independent federal court. The federal court is to settle disputes between
central and state government. Secondly it is to ensure and guarantee the rights of regional governments
against the encroachment of central government. Federal court should act as the protector of the
constitution by guaranteeing the distribution of power. But the judges must be given the scope to deliver
their judgement independently and impartially.

Central State Relation - Legislative, Administrative and Financial

In India, before the formation of the federation the States were not ‘sovereign’ entities.

As such, there was no need for safeguards to protect ‘States’. On account of the exigencies of the situation, the
Indian federation has acquired characteristics which are quite different from the American model.

(i) The residuary powers under the Indian Constitution are assigned to the Union and not to the States. However,
it may be noted that the Canadian Constitution does the same mode of distributing the powers cannot be
considered as eroding the federal nature of the Constitution.

(ii) Though there is a division of powers between the Union and the States, the Indian Constitution provides the
Union with power to exercise control over the legislation as well as the administration of the States. Legislation
by a State can be disallowed by the President, when reserved by the Governor for his consideration.

The Governor is appointed by the President of the Union and holds office “during his pleasure”. Again these ideas
are found in the Canadian Constitution though not in the Constitution of the U.S.A.

(iii) The Constitution of India lays down the Constitution of the Union as well as the States, and no State, except
Jammu and Kashmir, has a right to determine its own (State) Constitution.

(iv) When considering the amendment of the Constitution we find that except in a few specific matters affecting
the federal structure, the States need not even be consulted in the matter of amendment of the Constitution. The
bulk of the Constitution can be amended by a Bill in the Union Parliament being passed by a special majority.

(v) In the case of the Indian Constitution, while the Union is indestructible, the States are not. It is possible for the
Union Parliament to reorganise the States or to alter their boundaries by a simple majority in the ordinary process
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of legislation.

The ‘consent’ of the State Legislature concerned is not required; the President has only to ‘ascertain’ the views of
the Legislatures of the affected States. The ease with which the federal organisation may be reshaped by an
ordinary legislation by the Union Parliament has been demonstrated by the enactment of the States Reorganisation
Act, 1956. A large number of new States have, since, been formed.

(iv) Under the Indian Constitution, there is no equality of representation of the States in the Council of States.
Hence, the federal safeguard against the interests of the lesser States being overridden by the interests of the larger
or more populated States is absent under our Constitution. Its federal nature is further affected by having a
nominated element of twelve members against 238 representatives of the States and Union Territories.

Centre State Relations

The Constitution of India provides a dual polity with a clear division of powers between the Union and the States,
each being supreme within the sphere allotted to it. The Indian federation is not the result of an agreement
between independent units, and the units of Indian federation cannot leave the federation.

Thus the constitution contains elaborate provisions to regulate the various dimensions of the relations between the
centre and the states.

The relations between centre and state are divides as:

1. Legislative relations
2. Administrative relations
3. Financial relations

1. Centre State Legislative Relations

Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre and the
State.

Extent of laws made by Parliament and by the Legislatures of States

The Parliament can make laws for the whole or any part of the territory of India. Territory of India includes the
states, UTs and any other area for the time being included in the territory of India. Whereas, the state legislature
can make laws for whole or any part of state.

The Parliament can alone make ‘extra territorial legislation’ thus the laws of the Parliament are applicable to the
Indian citizens and their property in any part of the world.

Subject-matter of laws made by Parliament and by the Legislation of States

The Constitution divides legislative authority between the Union and the States in three lists- the Union List, the
State List and the Concurrent List. The Union list consists of 99 items. The Union Parliament has exclusive
authority to frame laws on subjects enumerated in the list. These include foreign affairs, defence, armed forces,
communications, posts and telegraph, foreign trade etc.

The State list consists of 61 subjects on which ordinarily the States alone can make laws. These include public
order, police, administration of justice, prison, local governments, agriculture etc.

The Concurrent list comprises of 52 items including criminal and civil procedure, marriage and divorce, economic
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and special planning trade unions, electricity, newspapers, books, education, population control and family
planning etc. Both the Parliament and the State legislatures can make laws on subjects given in the Concurrent
list, but the Centre has a prior and supreme claim to legislate on current subjects. In case of conflict between the
law of the State and Union law on a subject in the Concurrent list, the law of the Parliament prevails.

Residuary powers of legislation

The constitution also vests the residuary powers (subjects not enumerated in any of the three Lists) with the Union
Parliament. The residuary powers have been granted to the Union contrary to the convention in other federations
of the world, where the residuary powers are given to the States. However, in case of any conflict, whether a
particular matter falls under the residuary power or not is to be decided by the court.

Parliament’s Power to Legislate on State List

Though under ordinary circumstances the Central Government does not possess power to legislate on subjects
enumerated in the State List, but under certain special conditions the Union Parliament can make laws even on
these subjects.

a) In the National Interest (Art.249)

If the Rajya Sabha declares by a resolution supported by not less than 2/3 of its members present and voting, that
it is necessary or expedient in the national interest that the Parliament should make laws with respect to any
matter enumerated in the State List (Art.249). After such a resolution is passed, Parliament can make laws for the
whole or any part of the territory of India. Such a resolution remains in force for a period of 1 year and can be
further extended by one year by means of a subsequent resolution.

b) Under Proclamation of National Emergency (Art.250)

Parliament can legislate on the subjects mentioned in the State List when the Proclamation of National Emergency
is in operation. However, the laws made by the Parliament under this provision shall cease to have effect on the
expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or
omitted to be done before the expiry of the said period.

c) By Agreement between States (Art. 252)

The Parliament can also legislate on a State subject if the legislatures of two or more states resolve that it is lawful
of Parliament to make laws with respect to any matter enumerated in the State List relating to those State.
Thereafter, any act passed by the Parliament shall apply to such states and to any other state which passes such a
resolution. The Parliament also reserves the right to amend or repeal any such act.

d) To Implement Treaties (Art. 253)

The Parliament can make law for the whole or any part of the territory of India for implementing any treaty,
international agreement or convention with any other country or countries or any decision made at any
international conference, association or other body. Any law passed by the Parliament for this purpose cannot be
invalidated on the ground that it relates to the subject mentioned in the State list.

e) Under Proclamation of President’s Rule (Art.356)

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The President can also authorize the Parliament to exercise the powers of the State legislature during the
Proclamation of President’s Rule due to breakdown of constitutional machinery in a state. But all such laws
passed by the Parliament cease to operate six months after the Proclamation of President’s Rule comes to an end.

Center's control over State Legislation

The Constitution empowers the centre to exercise control over the state’s legislature in following ways:
1. The governor can reserve certain types of bills passed by the state legislature for the consideration of the
President. The President enjoys absolute veto over them.
2. Bills on certain matters enumerated in the State List can be introduced in the state legislature only with the
previous sanction of the President as imposing restrictions on freedom of trade and commerce.
3. The President can direct the states to reserve money bills and other financial bills passed by the state legislature
for his consideration during a financial emergency.

2. Centre State Administrative Relations

The administrative jurisdiction of the Union and the State Governments extends to the subjects in the Union list
and State list respectively. The Constitution thus defines the clauses that deal with the administrative relations
between Centre and States.

Centre State Relations During Normal Ties

1. Executive Powers of State be exercised in compliance with Union Laws: Article 256 lays down that the
executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament
and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of
such directions to a state as may appear to the Government of India to be necessary for that purpose.

2. Executive Powers of State not to interfere with Executive Power of Union: Article 257 of the Constitution
provides that the executive power of every state shall be so exercised as not to impede or prejudice the exercise of
the executive power of the Union, and the executive power of the Union shall extend to giving of such directions
to a state as may appear to the Government of India to be necessary for that purpose. In short, the Union
Government can issue directions to the state Government even with regard to the subjects enumerated in the state
list.

3. Maintain means of communication of National or Military importance: The Union Government can give
directions to the state with regard to construction and maintenance of the means of communication declared to be
of national or military importance.

4. Protection of the Railways: Union can issue State Governments necessary directions regarding the measures to
be taken for the protection of the railways within the jurisdiction of the State. It may be noted that the expenses
incurred by the State Governments for the discharge of these functions have to be reimbursed by the Union
Government.

5. To ensure welfare of Scheduled Tribes in the States: Union can direct the State Governments to ensure
execution of schemes essential for the welfare of the Scheduled Tribes in the States.

6. To secure instruction in the mother-tongue at the primary stage of education: Union can direct the State
Governments to secure the provision of adequate facilities for instruction in the mother-tongue at the primary
stage of education to children belonging to linguistic minority groups.

7. To ensure development of the Hindi language: Union can direct the State Governments to ensure the
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development of the Hindi language.

8. To ensure government of a State is carried on in accordance with the provision of the Constitution: Union can
direct the State Governments to ensure that the government of a State is carried on in accordance with the
provision of the Constitution. If any State failed to comply with any directions given by the Union in exercise of
its executive power, then President may hold that, a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of the Constitution. Thus he may proclaim President’s
Rule in that State.

9. Delegation of Union’s function to State: The President of India can entrust to the officers of the State certain
functions of the Union Government. However, before doing so the President has to take the consent of the state
Government. But the Parliament can enact law authorizing the Central Government to delegate its function to the
State Governments or its officers irrespective of the consent of such State Government. On the other hand, a State
may confer administrative functions upon the Union, with the consent of the Union only.

10. Appointment of High Dignitaries: Union has major say in appointment and removal of Governor and
appointment of Judges of High Court and Members of State Public Service Commission.

11. All India Services: The presence of the All India Services - the Indian Administrative Services, Indian police
Services - further accords a predominant position to the Union Government. The members of these services are
recruited and appointment by the Union Public Service Commission. The members of these services are posted on
key posts in the states, but remain loyal to the Union Government.

12. Union to adjudicate Inter-State River Water Dispute: The Parliament has been vested with power to adjudicate
any dispute or complaint with respect to the use, distribution or control of the waters of, or in any inter-state river
or river-valley. In this regard, the Parliament also reserves the right to exclude such disputes from the jurisdiction
of the Supreme Court or other Courts.

Centre State Relations During Emergencies

1. Under President’s Rule: The State Governments cannot ignore the directions of the Union Government,
otherwise the President can take the action against the Government of the State stating that the administration
cannot be carried on the accordance with the provisions of the Constitution and thus can impose President's rule
on the State. In such an eventuality the President shall assume to himself all or any of the functions of the state
Government.

2. Under Proclamation of National Emergency: During a Proclamation of National Emergency, the power of the
Union to give directions extends to the giving of directions as to the manner in with the executive power of the
State is to be exercised relating to any matter.

3. Under Proclamation of Financial Emergency: During a Proclamation of Financial Emergency, Union can direct
the State Governments to observe certain canons of financial propriety and to reduce the salaries and allowances
of all or any class of person serving in connection with the affairs of the Union including the Judges of the
Supreme Court and High Courts. Union also requires all Money Bills or Financial Bills to be reserved for the
consideration of the President after they are passed by the Legislature of the State.

It is thus, evident that in the administrative sphere the States cannot act in complete isolation and have to work
under the directions and in cooperation with the Center.

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3. Centre State Financial Relations:
Indian Constitution has made elaborate provisions, relating to the distribution of the taxes as well as non-tax
revenues and the power of borrowing, supplemented by provisions for grants-in-aid by the Union to the States.

Article 268 to 293 deals with the provisions of financial relations between Centre and States.

The Constitution divides the taxing powers between the Centre and the states as follows:

The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List, the state legislature
has exclusive power to levy taxes on subjects enumerated in the State List, both can levy taxes on the subjects
enumerated in Concurrent List whereas residuary power of taxation lies with Parliament only.

Distribution of the tax-revenue

1. Duties Levied by the Union but Collected and Appropriated by the States: Stamp duties on bills of Exchange,
etc., and Excise duties on medical and toilet preparations containing alcohol. These taxes don’t form the part of
the Consolidated Fund of India, but are assigned to that state only.

2. Service Tax are Levied by the Centre but Collected and Appropriated by the Centre and the States.

3. Taxes Levied as Well as Collected by the Union, but Assigned to the States: These include taxes on the sale
and purchase of goods in the course of inter-state trade or commerce or the taxes on the consignment of goods in
the course of inter-state trade or commerce.

4. Taxes Levied and Collected by the Union and Distributed between Union and the States: Certain taxes shall be
levied as well as collected by the Union, but their proceeds shall be divided between the Union and the States in a
certain proportion, in order to effect on equitable division of the financial resources. This category includes all
taxes referred in Union List except the duties and taxes referred to in Article 268, 268-A and 269; surcharge on
taxes and duties mentioned in Article 271 or any Cess levied for specific purposes.

5. Surcharge on certain duties and taxes for purposes of the Union: Parliament may at any time increase any of the
duties or taxes referred in those articles by a surcharge for purposes of the Union and the whole proceeds of any
such surcharge shall form part the Consolidated Fund of India.

Grants-in-Aid
Besides sharing of taxes between the Center and the States, the Constitution provides for Grants-in-aid to the
States from the Central resources.

There are two types of grants:-

1. Statutory Grants: These grants are given by the Parliament out of the Consolidated Fund of India to such States
which are in need of assistance. Different States may be granted different sums. Specific grants are also given to
promote the welfare of scheduled tribes in a state or to raise the level of administration of the Scheduled areas
therein (Art.275).

2. Discretionary Grants: Center provides certain grants to the states on the recommendations of the Planning
Commission which are at the discretion of the Union Government. These are given to help the state financially to
fulfill plan targets (Art.282).

Effects of Emergency on Center-State Financial Relations:-

1. During National Emergency: The President by order can direct that all provisions regarding division of taxes
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between Union and States and grants-in-aids remain suspended. However, such suspension shall not go beyond
the expiration of the financial year in which the Proclamation ceases to operate.

2. During Financial Emergency: Union can give directions to the States:-

1. To observe such canons of financial propriety as specified in the direction.

2. To reduce the salaries and allowances of all people serving in connection with the affairs of the State, including
High Courts judges.

3. To reserve for the consideration of the President all money and financial Bills, after they are passed by the
Legislature of the State.

Finance Commission
Although the Constitution has made an effort to allocate every possible source of revenue either to the Union or
the States, but this allocation is quite broad based. For the purpose of allocation of certain sources of revenue,
between the Union and the State Governments, the Constitution provides for the establishment of a Finance
Commission under Article 280. According to the Constitution, the President of India is authorized to set up a
Finance Commission every five years to make recommendation regarding distribution of financial resources
between the Union and the States.

Constitution
Finance Commission is to be constituted by the President every 5 years. The Chairman must be a person
having ‘experience in public affairs’. Other four members must be appointed from amongst the following:-
1. A High Court Judge or one qualified to be appointed as High Court Judge;

2. A person having knowledge of the finances and accounts of the Government;

3. A person having work experience in financial matters and administration;

4. A person having special knowledge of economics.

Functions
The Finance Commission recommends to the President as to:-
1. The distribution between the Union and the States of the net proceeds of taxes to be divided between them and
the allocation between the States of respective shares of such proceeds;

2. The principles which should govern the grants-in-aid of the revenue of the States out of the Consolidated Fund
of India;

3. The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Panchayats and Municipalities in the State;

4. Any other matter referred to the Commission by the President in the interest of sound finance

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