Making of the Constitution PDF

MAKING OF THE CONSTITUTION Demand for the constituent Assembly 1934 M N Roy put forth the demand for a constituent assembly 1935 INC officially demanded C.A. to frame Indian Constitution. 1940 Demand accepted in principle in August Offer. 1942 Cripps Proposal for Constitution rejected. 1946 Cabinet Mission Plan accepted by all parties. (Lord Patrick Lawrence, Sir Stafford Cripps, A V Alexander were its members) Composition of the constituent assembly Constituent Assembly was partly nominated (by heads of Princely states) & partly elected body (In British Provinces) Elections were held indirectly Voting by method of proportional representation by means of single transferable vote in case of provincial representation. Seats allotted as per population proportion. The British provinces were divided into three principal communities comprising Muslims, Sikhs, and general. Total Number of Seats in Constituent Assembly – 389 Seats (292 Seats – British Provinces and 93 seats – Princely states). Mahatma Gandhi and Mohammad Ali Jinnah were not the members of the assembly Working of the constituent assembly The elections were held in July 1946 The assembly was constituted in November 1946. 9th Dec 1946 The first meeting of the constituent assembly took place with 211 members. The first President of the assembly was Dr Sachidanand Sinha. 11th Dec 1946Permanent President Dr Rajendra Prasad. Vice President H. C. Mukherjee 13th Dec 1946 Objective resolution was given by Jawaharlal Nehru who laid the philosophical structure of the constitution. It was passed on 22nd July 1947.The modified version later took the shape of the preamble of the constitution of India. The committee worked for 2 years 11 months and 18 days. It had 11 sessions in total. 26th November 1949: The constitution of India was Adopted and Enacted. However, it was ENFORCED on 26th January 1950, after a wait of 2 months. (To give special patronage to the day celebrated as independence day in 1930 during the Lahore Session) In all 284 of the Assembly signed the official copies of the Indian Constitution which came into effect on Jan 26, 1950. The Constitution adopted on November 26, 1949, contained a Preamble, 395 Articles, 22 Parts and 8 Schedules. Important Committees and its head Other functions performed by the Assembly Ratified India’s membership of Commonwealth in May, 1949. Adopted National Flag on July 22, 1947. Adopted National Song & National Anthem on Jan 24, 1950. Elected Rajendra Prasad as first President of India on Jan 24, 1950. Final session of C.A. on Jan 24, 1950. However, it continued as provisional Parliament of India from Jan 26, 1950 till formation of new Parliament (May, 1952). Some important Facts Elephant adopted as C.A. symbol. Sir B.N. Rau was Constitutional Adviser to C.A. V.R. Iyengar was Secretary to C.A. N. Mukherjee was chief draftsman of constitution in C.A. Prem Behari Raizada was the calligrapher of the Constitution. Nand Lal Bose & B.R. Sinha decorated & beautified the Constitution. Hindi version calligraphy done by Vasant Krishan Vaidya & illuminated by Nand Lal Bose. PREAMBLE Four Main Ingredients of the Preamble Source of the The People of India are revealed to be the source. The words, Constitution ‘We, the People of India’ reflect the same. Nature of Indian India as the sovereign, secular, republic, secular and democratic State nation. Statement of its Justice, Liberty, Equality and Fraternity objectives Date of its November 26, 1949 adoption Keywords in the Preamble Sovereign: India is not a dependency or a dominion of any other country or external power, but rather an independent state. There is no authority above it, and it is free to manage its own internal and external affairs. Secular: The word “secular” was added to the Preamble by the 42nd Constitutional Amendment Act in 1976, and it embodies the positive concept of secularism, which states that all religions in our country (irrespective of their strength) have equal status, respect, protection, and support from the state. Socialist: The term means the achievement of socialist ends through democratic means. It holds faith in a mixed economy where both private and public sectors co-exist side by side. It was also added in the Preamble by 42nd Amendment, 1976. Democratic: The term implies that the Constitution of India has an established form of Constitution which gets its authority from the will of the people expressed in an election. There are two kinds of democracy: Direct democracy: It is a democracy in which citizen participate directly in democratic decision - making. Indirect democracy: It is known as representative democracy, and its two forms are parliamentary and presidential. The Indian Constitution provides for representative parliamentary democracy, in which members of parliament are elected to serve as the nation’s representatives. Republic: The term indicates that the head of the state is elected by the people. In India, the President of India is the elected head of the state. Objectives of the Preamble Justice : In the Preamble, the term Justice refers to social, economic, and political security, which is ensured by various provisions of the Directive Principles of State Policy (DPSP) and Fundamental Rights in the Indian Constitution. Liberty: The term “liberty” refers to the absence of restrictions or dominance on an individual’s activities, such as freedom from slavery, dictatorship, imprisonment, serfdom, etc. while also providing opportunities for the development of individual personalities. The concept of liberty was inspired by the French Revolution. Liberty of thought, expression, belief, faith, and worship are guaranteed by their Fundamental Rights, which are enforceable in a court of law if violated. Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and behaviour in society. Liberty does not mean freedom to do anything, a person can do anything but, in the limit, set by the law. Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and all the people. Fraternity helps to promote dignity and unity in the nation. Amendment of the Preamble In the Kesavananda Bharati case (1973), the Supreme Court held that the Preamble is a part of the Constitution and can be amended under Article 368 of the Constitution, but the basic structure of the preamble cannot be amended. The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd Amendment Act, 1976. Union and its Territory Articles 1 to 4 under Part-I of the Constitution deal with the Union and its territory. 28 States | 8 UTs (At present) Article 1 - India, that is, Bharat as a ‘Union of States’ rather than a ‘Federation of States’ The Constituent Assembly had to adopt a mix of both ‘India, that is, Bharat’ (as some members suggested the traditional name (Bharat), while other advocated the modern name (India).) Why is India described as ‘Union’ although its Constitution is federal in structure? The phrase ‘Union of States’ has been preferred to ‘Federation of States’ for two reasons: 1) The Indian Federation is not the result of an agreement among the states. 2) The states have no right to secede from the federation. The federation is a Union because it is indestructible. According to Article 1, the territory of India can be classified into three categories: 1. Territories of the states 2. Union territories 3. Territories that may be acquired by the Government of India at any time *The ‘Territory of India’ is a wider expression (includes not only the states, but also union territories and territories that may be acquired by the Government of India at any future time.) *‘Union of India’ includes only states. Article 2 empowers the Parliament to ‘admit into the Union of India, or establish, new states on such terms and conditions as it thinks fit’. Article 2 grants two powers to the Parliament: (1) The power to admit into the Union of India new states (admission of states which are already in existence) (2) The power to establish new states (the establishment of states which were not in existence before.) Article 3 authorises the Parliament to - (a) Form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state (b) Increase the area of any state (c) Diminish the area of any state (d) Alter the boundaries of any state (e) Alter the name of any state Article 3 lays down two conditions in this regard: 1) A bill contemplating the above changes can be introduced in the Parliament only with the prior recommendation of the President. 2) Before recommending the bill, the President has to refer the same to the state legislature concerned for expressing its views within a specified period. Thus, the Constitution authorises the Parliament to form new states or alter the areas, boundaries or names of the existing states without their consent. Therefore, India is rightly described as ‘an indestructible union of destructible states’. Article 4 declares that- Laws made for admission or establishment of new states (under Article 2) and formation of new states and alteration of areas, boundaries or names of existing states (under Article 3) are not to be considered as amendments of the Constitution under Article 368. CITIZENSHIP The Constitution deals with the citizenship from Articles 5 to 11 under Part II. However, the constitution only identifies the persons who became citizens of India at its commencement (i.e., on January 26, 1950). It does not deal with the problem of acquisition or loss of citizenship subsequent to its commencement. Hence, it empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship. Accordingly, the Parliament has enacted the Citizenship Act (1955). The Citizenship Act 1955 has been amended six times till now, i.e. in 1986, 1992, 2003, 2005, 2015, and 2019. Modes of Acquisition of Citizenship - BRAND 1. B - By Birth A person born in India on or after January 26, 1950 but before July 1, 1987 is a citizen of India by birth irrespective of the nationality of his parents. 2. R - By Registration The Central Government may, on an application, register as a citizen of India any person (not being an illegal migrant) 3. A - Acquisition of Territory If any foreign territory becomes a part of India, the Government of India specifies the persons who among the people of the territory shall be the citizens of India. Such persons become the citizens of India from the notified date. 4. N - By Naturalisation The Central Government may, on an application, grant a certificate of naturalisation to any person (not being an illegal migrant) 5. D- By Descent A person born outside India on or after January 26, 1950 but before December 10, 1992 is a citizen of India by descent, if his father was a citizen of India at the time of his birth. The Citizenship Act (1955) prescribes three ways of losing citizenship whether acquired under the Act or prior to it under the Constitution Renunciation Termination Deprivation Renunciation of Citizenship Any Indian citizen of full age and capacity may file a declaration renouncing his Indian citizenship. Termination of Citizenship When an Indian citizen acquires the citizenship of another country voluntarily (consciously, knowingly, and without duress, undue influence, or compulsion), his Indian citizenship automatically terminates. Deprivation of Citizenship Deprivation is the compulsory termination of Indian citizenship. In some situations, the Indian government can strip a person of his citizenship. It is a compulsory termination of Indian citizenship by the Central government if: the citizen obtained the citizenship through fraud the citizen demonstrated disloyalty to the Indian Constitution the citizen unlawfully traded or communicated with the enemy during a war the citizen was imprisoned in any country for two years within five years after registration or naturalisation the citizen was ordinarily resident outside of India. Latest Amendment in the Citizenship Act (1955) The 2019 CAA amended the Citizenship Act of 1955 allowing Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities who fled from the neighboring Muslim majority countries of Pakistan, Bangladesh and Afghanistan before December 2014 due to "religious persecution or fear of religious persecution". However, the Act excludes Muslims. Fundamental Rights The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. It derived inspiration from the Constitution of USA. Part III of the Constitution is rightly described as the Magna Carta of India. The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. The Fundamental Rights are meant for promoting the ideal of political democracy. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are ‘fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals. Originally, the Constitution provided for seven Fundamental Rights - 1. Right to equality (Articles 14–18) 2. Right to freedom (Articles 19–22) 3. Right against exploitation (Articles 23–24) 4. Right to freedom of religion (Articles 25–28) 5. Cultural and educational rights (Articles 29–30) 6. Right to property (Article 31) 7. Right to constitutional remedies (Article 32) However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. FEATURES OF FUNDAMENTAL RIGHTS:  Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.  They are not absolute but qualified. The state can impose reasonable restrictions on them.  Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.  They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.  They are not sacrosanct or permanent.  They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Fundamental Rights at a Glance *FR available only to citizens and not to foreigners: Articles 15, 16, 19, 29 and 30 *FR available to both citizens and foreigners: Articles 14, 20, 21, 21A, 22, 23, 24, 25, 26, 27 and 28 Article 12 has defined the term ‘STATE’ for the purposes of Part III. It includes the following- (a) Government and Parliament of India, that is, executive and legislative organs of the Union government. (b) Government and legislature of states, that is, executive and legislative organs of state government. (c) All local authorities that is, municipalities, panchayats, district boards, improvement trusts, etc. (d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc. *According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the ‘State’ under Article 12. Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. The term ‘law’ in Article 13 has been given a wide connotation so as to include the following: (a) Permanent laws enacted by the Parliament or the state legislatures (b) Temporary laws like ordinances issued by the president or the state governors (c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification (d) Non-legislative sources of law, that is, custom or usage having the force of law *Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. Article 14 - Equality before Law and Equal Protection of Laws The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The word ‘person’ includes legal persons, viz, statutory corporations, companies, registered societies or any other type of legal person. The concept of ‘equality before law’ is of British origin while the concept of ‘equal protection of laws’ has been taken from the American Constitution. Rule of Law - The concept of ‘equality before law’ is an element of the concept of ‘Rule of Law’, propounded by A.V. Dicey, the British jurist. His concept has the following three elements or aspects: (i) Absence of arbitrary power, that is, no man can be punished except for a breach of law. (ii) Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts. (iii) The primacy of the rights of the individual, that is, the constitution is the result of the rights of the individual as defined and enforced by the courts of law rather than the constitution being the source of the individual rights. Exceptions to Equality - The President of India and the Governor of States enjoy the following immunities (Article 361):  The President or the Governor is not answerable to any court the exercise and performance of the powers and duties of office.  No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term office.  No process for the arrest or imprisonment of the President or Governor shall be issued from any court during his term of office  No civil proceedings against the President or the Governors be instituted during his term of office in any court in respect of act done by him in his personal capacity, whether before or a he entered upon his office, until the expiration of two months n after notice has been delivered to him. Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. The word ‘only’ connotes that discrimination on other grounds is not prohibited. No citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex, or place of birth with regard to (a) Access to shops, public restaurants, hotels and places of public entertainment; or (b) The use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public. Exceptions to this general rule of non-discrimination: (a) The state is permitted to make any special provision for women and children. (b) The state is permitted to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. (c) The state is empowered to make any special provision for the advancement of any socially and educationally backward classes. (d) The state is empowered to make any special provision for the advancement of any economically weaker sections of citizens. Article 16 provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence. Exceptions to this general rule - (a) Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. (b) The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services. (c) A law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination. (d) The state is permitted to make a provision for the reservation of up to 10% of appointments or posts in favour of any economically weaker sections of citizens. Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The term ‘untouchability’ has not been defined either in the Constitution or in the Act. In 1976, the Untouchability (Offences) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955 to enlarge the scope and make penal provisions more stringent. In 1989, the Government of India enacted the Scheduled Castes and Tribes (Prevention of Atrocities) Act in order to prevent atrocities against SC/STs. The purpose of the Act was to prevent atrocities and help in the social inclusion of Dalits into society. Article 18 abolishes titles and makes four provisions in that regard (a) It prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner. (b) It prohibits a citizen of India from accepting any title from any foreign state. (c) A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president. (d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president. The hereditary titles of nobility like Maharaja, Raj Bahadur, Rai Bahadur, Rai Saheb, Dewan Bahadur, etc, which were conferred by colonial States are banned. In 1996, the Supreme Court upheld the constitutional validity of the National Awards– Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri. It ruled that these awards do not amount to ‘titles’ within the meaning of Article 18. Article 19 guarantees to all citizens the six rights. These are: (i) Right to freedom of speech and expression. (ii) Right to assemble peaceably and without arms. (iii) Right to form associations or unions or co-operative societies. (iv) Right to move freely throughout the territory of India. (v) Right to reside and settle in any part of the territory of India. (vi) Right to practice any profession or to carry on any occupation, trade or business. *Originally, Article 19 contained seven rights. But, the right to acquire, hold and dispose of property was deleted by the 44th Amendment Act of 1978. *These six rights are protected against only state action and not private individuals. However, the State can impose restrictions on the freedom of speech and expression in the interests of the integrity, security and sovereignty of the country, friendly relations with foreign nations, for public order, with respect to defamation, incitement to offence or contempt of court. Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation. It contains three provisions in that direction: (a) No ex-post-facto law: No person shall be (i) Convicted of any offence except for violation of a law in force at the time of the commission of the act, nor (ii) Subjected to a penalty greater than that prescribed by the law in force at the time of the commission of the act. (b) No double jeopardy: No person shall be prosecuted and punished for the same offence more than once. (c) No self-incrimination: No person accused of any offence shall be compelled to be a witness against himself. Recently, the Criminal Procedure (Identification) Act, 2022 has come into force. It provides Legal sanction to the police to take physical and biological samples of convicts as well as those accused of crimes. It replaces the Identification of Prisoners Act, 1920, a colonial era law, and authorises police officers to take measurements of people convicted, arrested or facing trial in criminal cases. Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. *The K. Puttaswamy judgement holds that the right to privacy is protected as a fundamental right. *In the Lata Singh vs. state of Uttar Pradesh case, the Supreme Court viewed the right to marry a person of one’s own choice as a component of right to life under Article 21 of Indian Constitution. Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine. This provision was added by the 86th Constitutional Amendment Act of 2002. In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009. Article 22 grants protection to persons who are arrested or detained. Detention is of two types, namely, punitive and preventive.  Punitive detention is to punish a person for an offence committed by him after trial and conviction in a court.  Preventive detention means detention of a person without trial and conviction by a court. The Article 22 has two parts–the first part deals with the cases of ordinary law and the second part deals with the cases of preventive detention law. Article 23 prohibits traffic in human beings, begar (forced labour) and other similar forms of forced labour. It protects the individual not only against the State but also against private persons. The expression ‘traffic in human beings’ include (a) Selling and buying of men, women and children like goods (b) Immoral traffic in women and children, including prostitution; (c) Devadasis (d) Slavery To punish these acts, the Parliament has made the Immoral Traffic (Prevention) Act, 1956. Article 23 also provides for an exception to this provision. It permits the State to impose compulsory service for public purposes, as for example, military service or social service, for which it is not bound to pay. Article 24 prohibits the employment of children below the age of 14 years in any factory, mine or other hazardous activities like construction work or railway. But it does not prohibit their employment in any harmless or innocent work. In 2006, the government banned the employment of children as domestic servants or workers in business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-shops and so on. It warned that anyone employing children below 14 years of age would be liable for prosecution and penal action. The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986. Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are: (a) Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires. (b) Right to profess: Declaration of one’s religious beliefs and faith openly and freely. (c) Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas. (d) Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. These rights are subject to public order, morality, health and other provisions relating to fundamental rights. Article 25 also contains two explanations: 1) Wearing and carrying of kirpans is to be included in the profession of the Sikh religion; 2) The Hindus, in this context, include Sikhs, Jains and Buddhists. Article 26, every religious denomination or any of its section shall have the following rights: (a) Right to establish and maintain institutions for religious and charitable purposes (b) Right to manage its own affairs in matters of religion (c) Right to own and acquire movable and immovable property (d) Right to administer such property in accordance with law *Article 25 guarantees rights of individuals *Article 26 protects collective freedom of religion Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or maintenance of any particular religion or religious denomination. The State should not spend the public money collected by way of tax for the promotion or maintenance of any particular religion. This provision prohibits only levy of a tax and not a fee. Article 28- No religious instruction shall be provided in any educational institution wholly maintained out of State funds. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instruction in such institution. No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to attend any religious instruction or worship in that institution without his consent. In case of a minor, the consent of his guardian is needed. Article 29 provides that any section of the citizens residing in any part of India having a distinct language, script or culture of its own, shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, or language. *Article 29 grants protection to both religious minorities as well as linguistic minorities. Article 30 - Right of Minorities to Establish and Administer Educational Institutions The following rights to minorities, whether religious or linguistic: (a) All minorities shall have the right to establish and administer educational institutions of their choice. (b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31). (c) In granting aid, the State shall not discriminate against any educational institution managed by a minority. Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). The right under Article 30 also includes the right of a minority to impart education to its children in its own language. Recently, the Supreme Court (SC) ruled that government aid to an institution is a matter of policy and it is not a fundamental right. Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen. The right to get the Fundamental Rights protected is in itself a fundamental right. The right to move the Supreme Court directly by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed. It shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include -  Habeas corpus (to have the body of)  Mandamus (we command)  Prohibition (to forbid)  Certiorari (to be certified)  Quo-warranto (by what authority or warrant) Difference between High Court (Art. 226) and SC (Art. 32) Jurisdiction Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces. The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. The expression ‘members of the armed forces’ also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants. Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. DIRECTIVE PRINCIPLES AND STATE POLICY Introduction:  Borrowed from Ireland – Irish constitution.  Part IV of the Constitution of India (Article 36–51)  Enshrines Socio-economic democracy.  They are an ‘instrument of instructions’ which are enumerated in the Government of India Act, 1935.  Not legally enforceable by the courts for their violation  The concept behind the DPSP is to create a ‘Welfare State’. Classification of Principles: Article 38: Promoting welfare of the society by securing a social order permeated by justice. Article 39: To secure.  Right of adequate means of livelihood  Equitable distribution of material resources of the community for the common good  Equal pay for equal work for men and women Article 41: To secure the right to work to education and to public Socialistic assistance in cases of unemployment, old age, sickness and principles disablement Article 42: Make provisions for just and humane conditions for work and maternity relief. Article 43: To secure a living wage, a decent standard of life and social and cultural opportunities for all workers. Article 47: Raise the level of nutrition and the standard of living of people and to improve public health Article 40: To organize village panchayats and endow them with necessary powers. Article 43: To promote cottage industries on an individual and cooperative basis. Gandhian Article 46: To promote educational and economic interests of SCs, principles STs and other weaker sections. Article 47: To prohibit the consumption of intoxicating drinks and drugs. Article 48: To prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their breeds Article 44: To secure a uniform civil code for all Article 45: To provide early childhood care until 6 years of age Article 48: To organize agriculture and animal husbandry on modern scientific lines. Liberal- Intellectual Article 49: To protect monuments, places and objects of artistic or principles historic interest. Article 50: To separate judiciary from the executive. Article 51: To promote international peace and security Amendments in DPSP: Article 39: To secure opportunities for healthy development of children Article 39A: To provide free legal aid to the poor. 42nd Constitutional Amendment, 1976 Article 43A: Participation of workers in management of Industries.K1M Article 48A: To protect and improve the environment. 44th Constitutional Article 38: to minimize inequalities in income, status, facilities Amendment, 1978 and opportunities changed the subject-matter and made elementary education 86th Amendment Act a fundamental right under Article 21A. The amendment of 2002 directed state to provide early childhood care until the completion of six years 97th amendment act of Article 43B: cooperative societies 2011 Difference between Fundamental Rights and DPSP: Fundamental Rights DPSP Negative since they prohibit the state from doing Positive since they compel states to certain things take actions Justiciable in nature Non-justiciable in nature Aim: establishing political democracy Aim: economic and social democracy Legal sanctions Moral and political sanctions Requires legislation for their Do not require legislation for their implementation implementation FUNDAMENTAL DUTIES Introduction:  The idea of Fundament Duties was borrowed from USSR constitution.  Enumerated in Part IV(A) and consist of single Article 51-A  Fundamental duties are non-justiciable  Added by 42nd CAA 1976, on recommendations of Swaran Singh committee (Committee recommended only Eight Duties, amendment added ten duties)  One more duty added by 86th CAA 2002 – 51A(k) = Total 11 duties.  FD apply only to citizens and DO NOT EXTEND TO FOREIGNERS List of Fundamental Duties: ARTICLES PROVISIONS Art. 51 A – a To abide the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Art. 51 A – b To cherish and follow the noble ideals which inspired our national struggle for freedom. Art. 51 A – c To uphold and protect the sovereignty, unity and integrity of India. Art. 51 A – d To defend the country and render national services when called upon to do so. Art. 51 A – e To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. Art. 51 A – f To value and preserve the rich heritage of our composite culture. Art. 51 A – g To value protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Art. 51 A – h To develop the scientific temper, humanism and spirit of inquiry and reform. Art. 51 A – I To safeguard public property and to abjure violence. Art. 51 A – j To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Art. 51 A – k Duty of the parent or guardian to provide opportunities for education to his child, as the case may be, ward between the age of six and fourteen years (added by 86th Amendment Act, 2002). (DPSP – until six years) AMENDMENTS OF THE CONSTITUTION *Indian Constitution is neither flexible nor rigid. The procedure for the amendment of the Constitution as laid down in Article 368 is as follows:  An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament (Lok Sabha & Rajya Sabha) and not in the state legislatures.  The bill can be introduced either by a minister or by a private member.  The bill must be passed in each House by a special majority, t hat is, a majority (that is, more than 50 per cent).  Each House must pass the bill separately.  If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority Types of Amendments in Indian Constitution 1. Amendment by simple majority of the Parliament 2. Amendment by special majority of the Parliament 3. Amendment by special majority of the Parliament and the ratification of at least half of the state legislature Art. 368 provides for amendment through Special majority and special majority along with ratification by half of the states only. 1. By Simple Majority of Parliament These provisions include:  Admission or establishment of new states.  Formation of new states and alteration of areas, boundaries or names of existing states.  Abolition or creation of legislative councils in states.  Second Schedule-emoluments, Allowances, privileges and so on of the president, the governors, the Speakers, judges, etc.  Salaries and allowances of the members of Parliament.  Rules of procedure in Parliament.  Privileges of the Parliament, its members and its committees.  Conferment of more jurisdictions on the Supreme Court.  Citizenship-acquisition and termination.  Elections to Parliament and state legislatures. 2. By Special Majority of Parliament A majority (that is, more than 50 percent) of the total membership of each House and a majority of two- thirds of the members of each House present and voting. The special majority is required only for voting at the third reading stage of the bill but by way of abundant caution. The provisions which can be amended by this way include: (i) Fundamental Rights (ii) Directive Principles of State Policy (iii) All other provisions which are not covered by the first and third categories. 2. By Special Majority of Parliament and Consent of States The following provisions can be amended in this way:  Election of the President and its manner.  Extent of the executive power of the Union and the states.  Supreme Court and high courts.  Distribution of legislative powers between  The Union and the states.  Any of the lists in the Seventh Schedule.  Representation of states in Parliament.  Power of Parliament to amend the Constitution and its procedure (Article 368 itself). BASIC STRUCTURE DOCTRINE  According to the Indian Constitution, the Parliament and the State Legislatures can make laws within their jurisdictions.  The power to amend the Constitution is only with the Parliament and not the state legislative assemblies.  However, this power of the Parliament is not absolute.  The Supreme Court has the power to declare any law that it finds unconstitutional void.  As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the constitution is invalid.  There is no mention of the term “Basic Structure” anywhere in the Indian Constitution. The idea that the Parliament cannot introduce laws that would amend the basic structure of the constitution evolved gradually over time and in many cases.  The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. This doctrine helps to protect and preserve the spirit of the constitution document.  It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:  Supremacy of the Constitution  Unity and sovereignty of India  The democratic and republican form of government  Federal character of the Constitution  Secular character of the Constitution  Separation of power  Individual freedom Over time, many other features have also been added to this list of basic structural features. Some of them are:  Rule of law  Judicial review  Parliamentary system  Rule of equality  Harmony and balance between the Fundamental Rights and DPSP  Free and fair elections  Limited power of the parliament to amend the Constitution  Power of the Supreme Court under Articles 32, 136, 142 and 147  Power of the High Court under Articles 226 and 227 *Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution. EMERGENCY PROVISIONS A state of emergency in India refers to a period when the central government becomes all empowered over the subject matters given in the state list. It is a method through which the federal character of the Indian constitution becomes unitary without any formal amendment of the constitution. The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively. The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. The Constitution stipulates three types of emergencies- (i) National Emergency (ii) Constitutional Emergency/State Emergency/President’s Rule (iii) Financial Emergency NATIONAL EMERGENCY National emergency can be declared on the basis of war, external aggression or armed rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type. Grounds of declaration: (i) Under Article 352, the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. (ii) The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression (iii) When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’. This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term it was known as internal disturbance. Parliamentary approval and duration The proclamation of emergency must be approved by both the houses of parliament within one month from the date of its issue. However, if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the 1st sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. If approved by both the houses, the Emergency continues for 6 months and can be extended to an indefinite period with an approval of the Parliament for every six months. Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. Revocation of proclamation A proclamation of Emergency may be revoked by the President at any time by a subsequent proclamation. Such proclamation does not require parliamentary approval. The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority disapproving its continuation. Effects of national emergency A proclamation of Emergency has drastic and wide-ranging effects on the political system. These consequences can be grouped into 3 categories: Effects on the centre-state relations: While a proclamation of Emergency is in force, the normal fabric of the Centre-State relations undergoes a basic change. This can be studied under three heads: Executive: Centre becomes entitled to give executive directions to a state on ‘any’ matter Legislative: The parliament becomes empowered to make laws on any subject mentioned in the state list, the president can issue ordinances on State subjects also, if the parliament is not in session. The laws made on state subjects by the parliament become inoperative six months after the emergency has ceased to be in operation. Financial: the president can modify the constitutional distribution of revenues between the centre and the states. Effect on the life of the Lok Sabha and State Assembly: While a proclamation of National Emergency is in operation, the life of the Lok Sabha may be extended beyond the normal term for one year at a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. Similarly, the Parliament may extend the normal tenure of a state Legislative Assembly by one year each time during a national emergency, subject to a maximum period of six months after the emergency has ceased to operate. Effect on fundamental rights: Articles 358 and 359 describes the effect of a National Emergency on the Fundamental Rights. These two provisions are explained below: Suspension of Fundamental rights under Article 19: According to Article 358, when a proclamation of National Emergency is made, the six fundamental rights under article 19 are automatically suspended. Article 19 is automatically revived after the expiry of the emergency. The 44th Amendment Act laid out that Article 19 can only be suspended when the National Emergency is laid on the grounds of war or external aggression and not in the case of armed rebellion. Suspension of other Fundamental Rights: Under Article 359, the President is authorised to suspend, by order, the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Thus, remedial measures are suspended and not the Fundamental Rights. The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. The suspension could be for the period during the operation of emergency or for a shorter period. The Order should be laid before each House of Parliament for approval. The 44 Amendment Act mandates that the President cannot suspend the right to move the court for the enforcement of Fundamental Rights guaranteed by Article 20 and 21. Declarations made so far: This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975. The 1st proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA and was in force till January 1968. The second proclamation of National Emergency was made in December 1971 in the wake of the attack by Pakistan. Even when the emergency was in operation, the third proclamation of National Emergency was made in June 1975. Both the second and the third proclamations were revoked in March 1977 PRESIDENT’s RULE Article 355 imposes a duty on the centre to ensure that the government of every state is carried on in accordance with the provisions of the constitution. It is this duty in the performance of which the centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in a state. This is popularly known as ‘President’s Rule’. Grounds of imposition: The president’s ruler can be proclaimed under Article 356 on two grounds: Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre, it will be lawful for the President to 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. Parliamentary approval and duration: A proclamation imposing president’s rule must be approved by both the houses of parliament within two months from the date of its issue. However, if the proclamation of President’s rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the rst sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the meantime. Consequences of the President’s rule: The President acquires the following extraordinary powers when the President’s rule is imposed in a state: He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state. He can declare that the powers of the state legislature are to be exercised by the parliament. He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state. FINANCIAL EMERGENCY Grounds of declaration: Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened. Parliamentary approval and duration: A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the 1st sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. Effects of Financial Emergency Extension of the executive authority of the Union over the financial matters of the States. Reduction of salaries and allowances of all or any class of persons serving in the State. Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State. Direction from the President for the reduction of salaries and allowances of all or any class of persons serving the Union; and the judges of the Supreme Court and the High Courts. President of India Who is President of India? Article 52: The Indian President is the head of the state. He is the first citizen of India and is a symbol of solidarity, unity, and integrity of the nation. He is a part of Union Executive along with the Vice-President, Prime Minister, Council of Ministers, and Attorney-General of India. How is President elected? Article 54: The President of India is elected indirectly by the electoral college consisting of elected members of: 1. Lok Sabha and Rajya Sabha 2. Legislative Assemblies of the states (Legislative Councils have no role) 3. Legislative Assemblies of the Union Territories of Delhi and Puducherry Article 55 deals with the manner of election of the President of India: Aditya Rai What is the principle Proportional Representation with means of a single transferable of election used in the vote President’s election? How does voting take It is a secret ballot system of voting place in the election of Indian President? What is a quota of votes in President’s elections? How is the Supreme Any dispute related to his election is taken up by SC. SC’s decision Court (SC) involved is final. in the President’s election? Note: After the election of President is declared null and void, the acts done by the President in his office remain valid even after his removal. Who does not take part in the President’s elections? 1. Nominated Members of Rajya Sabha (12) 2. Nominated Members of State Legislative Assemblies 3. Members of Legislative Councils (Both elected and nominated) in bicameral legislatures 4. Nominated Members of union territories of Delhi and Puducherry What is the term of the President’s office? Article 56 - The term of office of the President. It states the following provisions, The President can hold office for up to 5 years from the date of entering the office. He/She can resign from office by giving a handwritten resignation letter to the Vice- President of India. He/She may be impeached from the office of President in case of “violation of the Constitution.” The President can continue to hold office even after the expiration of the tenure until the successor enters office. Article 57 – The person currently holding or the person who had the office of President is eligible for re-election to that office. Unlike the USA, the person can be re-elected any number of times as the President of India. Aditya Rai What are the qualifications of the President? Article 58 of the Indian Constitution deals with the qualifications required for election as President and they are as follows: 1. He should be an Indian Citizen. 2. His age should be a minimum of 35 years. 3. He should qualify the conditions to be elected as a member of the Lok Sabha. 4. He should not hold any office of profit under the central government, state government, or any public authority. What are the conditions of the President’s office? Article 59 - The conditions of the President’s office. They are as follows, 1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of the house, he should vacate the seat on his first day as President in the office. 2. He should not hold any office of profit. 3. For his residence, Rashtrapati Bhavan is provided to him without the payment of rent. 4. Parliament decides his emoluments, allowances and privileges. 5. Parliament cannot diminish his emoluments and allowances during his term of office. 6. He is given immunity from any criminal proceedings, even in respect of his personal acts. 7. Arrest or imprisonment of the President cannot take place. Only civil proceedings can be initiated for his personal acts that too after giving two months’ of prior notice. Oath taken by the President of India Article 60 of the Constitution deals with the oath or affirmation that should be made by the President of India before entering his office. To faithfully execute the office of President To do the best of his/her ability to preserve, protect and defend the Constitution and law To devote himself/herself to the service and well-being of the people of India. The President of India takes the oath in the presence of the Chief Justice of India or the senior Judge of the Supreme Court in case of the absence of the Chief Justice of India. What is the procedure for impeachment of a President? Article 61 - The only condition for the initiation of impeachment of the Indian president is the ‘violation of the constitution.’ Aditya Rai Note: Indian Constitution contains no definition of ‘violation of the constitution.’ The impeachment process of President is given below. (We have taken Lok Sabha as the first house to initiate the impeachment charges, however, Rajya Sabha too can initiate the impeachment charges against President and in that case, it will pass the resolution and send the charges to Lok Sabha which will investigate and pass it if it finds those charges valid.) Can the President’s office be vacant? Article 62 - This deals with provisions related to the vacancy of the office of the President of India. They are as follows, 1. When the President of India completes his term of five years in the office. 2. If the President resigns by putting forward his resignation to the Vice-President of India. 3. If Lok Sabha/Rajya Sabha initiates an impeachment charge and they stand valid, he is removed. 4. If he dies in the office. 5. If the Supreme Court declares his election invalid. Note: Vice-President discharges the duties as President; if the latter’s office falls vacant in the circumstances mentioned above, except by the expiry of the term. If the Vice-President office is vacant too, Chief Justice of India (CJI) (or in his absence); Supreme Court’s senior- most judge, discharge the functions of the President (till new President is elected.) What are the powers and functions of the President of India? Article 53 - Executive Powers of President Aditya Rai 1. For every executive action that the Indian government takes, is to be taken in his name. 2. He may/may not make rules to simplify the transaction of business of the central government. 3. He appoints the Attorney general of India and determines his remuneration. 4. He appoints the following people: 1. Comptroller and Auditor General of India (CAG) 2. Chief Election Commissioner and other Election Commissioners 3. Chairman and members of the Union Public Service Commission 4. State Governors 5. Finance Commission of India chairman and members 5. He seeks administrative information from the Union government. 6. He requires PM to submit, for consideration of the council of ministers, any matter on which a decision has been taken by a minister but, which has not been considered by the council. 7. He appoints National Commissions of: 1. Scheduled Castes 2. Scheduled Tribes 3. Other Backward Classes 8. He appoints Inter-state council. 9. He appoints administrators of union territories. 10. He can declare any area as a scheduled area and has powers with respect to the administration of scheduled areas and tribal areas. Legislative Powers of President 1. He summons or prorogues Parliament and dissolve the Lok Sabha 2. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock. 3. He addresses the Indian Parliament at the commencement of the first session after every general election. 4. He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya Sabha when the seats fall vacant. 5. He nominates 12 members of the Rajya Sabha. 6. He can nominate two members to the Lok Sabha from the Anglo-Indian Community. (This provision is no more there after 104th Constitutional Amendment Act, 2019). 7. He consults the Election Commission of India on questions of disqualifications of MPs. 8. He recommends/ permits the introduction of certain types of bills. 9. He promulgates ordinances 10. He lays the following reports before the Parliament: 1. Comptroller and Auditor General 2. Union Public Service Commission 3. Finance Commission, etc. Financial Powers of President 1. To introduce the money bill, his prior recommendation is a must. 2. He causes Union Budget to be laid before the Parliament. 3. To make a demand for grants, his recommendation is a pre-requisite. Aditya Rai 4. Contingency Fund of India is under his control. 5. He constitutes the Finance Commission every five years. Judicial Powers of President 1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him. 2. He takes advice from the Supreme Court, however, the advice is not binding on him. (Article 143) 3. He has pardoning power: Under Article 72, he has been conferred with power to grant pardon against punishment for an offence against union law, punishment by a martial court, or death sentence. Note: Pardoning powers of the president includes the following types: Pardon with the grant of pardon convicts both conviction and sentence completely absolved. Commutation with this nature of the punishment of the convict can be changed. Remission reduces the term of the imprisonment. Respite awards lesser punishment than original punishment by looking at the special condition of a convict. Reprieve stays the execution of the awarded sentence for a temporary period. Diplomatic Powers of President 1. International Treaties and agreements that are approved by the Parliament are negotiated and concluded in his name. 2. He is the representative of India in international forums and affairs. Military Powers of President He is the commander of the defence forces of India. He appoints: 1. Chief of the Army 2. Chief of the Navy 3. Chief of the Air Force Emergency Powers of President He deals with three types of emergencies given in the Indian Constitution: 1. National Emergency (Article 352) 2. President’s Rule (Article 356 & 365) 3. Financial Emergency (Article 360) What is the Ordinance Making Power of the President? Article 123 deals with the power to promulgate ordinance when either of the two houses of the Parliament is not in session. As mentioned earlier, this power of the President is subjected to a few limitations. They are as follows, Aditya Rai o The ordinance-making power is available to the President only when either of the Houses of Parliament is not in session or when both the Houses are not in session. o According to Article 123(1), the President can promulgate an ordinance only when he is satisfied that the circumstances exist which render it necessary for him to take immediate action. o The ordinance enacted should not abridge or take away any of the fundamental rights enshrined in the Indian Constitution. o According to Article 123(2)(a), every ordinance introduced during the recess of the Parliament should be laid before both the Houses of Parliament when it reassembles. This article also states two circumstances where the ordinance will become ineffective. 1. If the ordinance is not approved by the Parliament, then it will cease to operate at the expiration of 6 weeks from the reassembly of Parliament. 2. If the ordinance is disapproved by the Parliament before the expiration of six weeks, then the ordinance will become ineffective. Under Article 123(2)(b), even the President can withdraw the ordinance at any time. o Either to introduce or withdraw the ordinance, the President can act only on the advice of the Prime Minister and his Council of Ministers. Thus, the ordinance making power of the President is not a discretionary one. o The ordinance making power of the President is coextensive with the legislative power of the Parliament in two ways, 1. The President can issue an ordinance only on the subjects on which Parliament can make legislation. 2. Similarly, an ordinance is subject to the same set of limitations as that of the Parliamentary act. o However, they differ with regard to the duration. Unlike Parliamentary laws, the laws promulgated as ordinances by the President are temporary in nature. What is the Veto Power of the President? Article 111 - When a bill is introduced in the Parliament, Parliament can pass the bill and before the bill becomes an act, it has to be presented to the Indian President for his approval. It is on the President of India that: 1. He may give his assent to the bill, or 2. He may return the bill, or 3. He may withhold his assent to the bill. The choice of the President over the bill is called his veto power. There are four types of veto power: 1. Absolute Veto - The power of the President to withhold the assent to the bill passed by the legislature. 2. Suspensive Veto - The power of the President to return the bill to the Parliament for reconsideration. Aditya Rai 3. Pocket Veto - The power of the President to not act upon the bill passed by the legislature. 4. Qualified Veto – Which can be overridden by the legislature with a higher majority. Note: Of the above four, the President of India is vested with three – absolute veto, suspensive veto and pocket veto. ----------------------------------************------------------------------------- Aditya Rai VICE-PRESIDENT The Vice-President of India is the second highest office under Article 63 to 71, Part V of the Constitution of India. ELECTION OF VICE-PRESIDENT The Vice-President is indirectly elected not directly by the people. Article 66 of the Constitution of India, the Vice-President is elected by the members of the Electoral College. Electoral College consists of: Elected members of Rajya Sabha. Nominated members of Rajya Sabha. Elected members of Lok Sabha. QUALIFICATION Should be a citizen of India. Should have completed 35 years of age. Should be qualified for election as a member of the Rajya Sabha. Should not hold any office of profit under the Union government or any state government or any local authority or any other public authority. TERM OF OFFICE (ART - 67) The Vice-President holds office for a term of five years from the date on which he enters his office. He can resign from his office at any time by addressing the resignation letter to the President. He is also eligible for re-election to that office for any number of terms. OATH AND AFFIRMATIONS (ART - 69) Vice-President is administered by the President or some person appointed on that behalf by him. REMOVAL Removed from office before the completion of his term. No ground has been mentioned in the Constitution for his removal. A formal impeachment is not required. Resolution for removal can be introduced only in the Rajya Sabha and not in the Lok Sabha. ROLES AND RESONSIBILITIES Acts as President in the absence of the president due to death, resignation, impeachment, or other situations. Ex- officio Chairperson of the Rajya Sabha. (ART - 64) COMPARING INDIAN AND AMERICAN VICE - PRESIDENT Though the office of the Indian Vice-President is modelled on the lines of the American Vice-President, there is a difference. American Vice-President Indian Vice-President The American Vice-President succeeds to The Indian Vice-President, on the other the presidency when it falls vacant, and hand, does not assume the office of the remains President for the unexpired term President when it falls vacant for the of his predecessor. unexpired term. He merely serves as an acting President until the new President assumes charge. Why he is called ‘His Superfluous Highness? Constitution has not assigned any significant function to the Vice-President in our country. Hence, Constitutional scholars called him ‘His Superfluous Highness.' FACTS Article 63 – The office of the Vice President of India. Vice President is a member of neither Lok Sabha nor Rajya Sabha. First Vice President of India – Dr. S. Radhakrishnan (1952). He served twice as the Vice President of India from the year 1952 to 1962. Present Vice President of India – Jagdeep Dhankhar PRIME MINISTER Prime Minister is the real executive authority (de facto executive) in a parliamentary form of government. PM is the head of the government. APPOINTMENT Article 75 – Prime Minister shall be appointed by the President. However, the President is not free to appoint anyone as the Prime Minister. As per the conventions of the parliamentary system – The President has to appoint the leader of the majority party in the Lok Sabha as the Prime Minister. When no party has a clear majority in the Lok Sabha in case of coalition governments. In such cases, a vote of confidence must be passed in Lok Sabha within one month of appointment of the Prime Minister. In case of Death or Resignation of the Prime minister the entire council is dissolved and a new council of ministers needs to be appointed. QUALIFICATION He must be a citizen of India. He must be a member of either Rajya Sabha or Lok Sabha at the time of taking oath or should be a member of any house within six months. He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of age if he is a member of the Lok Sabha. OATH The President administers to him the oaths of office and secrecy. TERM There is no fixed term for Prime Minister. He holds office till the pleasure of the president till he enjoys the majority support in the Lok Sabha. The President cannot dismiss the PM as per his/her will. The Prime Minister can be dismissed by the President if he loses confidence of the Lok Sabha. POWER AND FUNCTIONS With Respect to the Council of PM recommends a person to the President for Minister appointment as ministers. The PM has the authority to assign portfolios to the Ministers. Chairman of the cabinet and presides the meetings of the Cabinet. In relation with the President Acts as the link between President and cabinet. He communicates all decisions of the Cabinet to the President which is related to the administration of the affairs of the Union and proposal. (Article-78) With Respect to the leader of the lower house. Parliament recommend the President about the prorogued and summoning the sessions of the Parliament. recommend the dissolution of the Lok Sabha at any time to the President. other functions and powers Chairman of Niti Aayog, NDC, National Integration Council, National Water Resource Council and Inter-state council. Chief spokesman of the Union government. COUNCIL OF MINISTERS Articles74 to 78 in Part V broadly deals with Central Council of Minister. CONSTITUTIONAL PROVISIONS ARTICLES DESCRIPTION 74 Council of Ministers to aid and advise President 75 Other provisions as to Ministers 77 Conduct of business of the Government of India 78 Duties of the Prime Minister as respects the furnishing of information to the President, etc. 88 Rights of Ministers with respects th to the Houses. APPOINTMENT Prime Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Prime Minister. President can appoint only those persons as ministers who are recommended by the Prime Minister. A person who is not a member of either House of Parliament can also be appointed as a minister. However, within six months, he must become a member (either by election or by nomination) of either House of Parliament; otherwise, he ceases to be a minister. OATH AND SALARY OF MINISTERS The oath to every new minister is administered by the President of India. The salaries and allowances of ministers are determined by PARLIAMENT from time to time. CATEGORY OF MINISTERS Cabinet Ministers The Cabinet Ministers heads the important portfolios of the Central Government such as the Home Ministry, Finance Ministry, Defence Ministry, External Affairs Ministry etc. Cabinet Ministers consist of 18 to 25 ministers. Attend the crucial meetings and play a crucial role in the policy formation of the nation. Ministers of State The Minister of State performs the same functions (Independent Charged) and exercises the same powers as Cabinet Ministers do with their dept. and ministries. not members of the cabinet. Hence, not entitled to attend the cabinet meetings until they are not invited. Ministers of State Ministers of State are given the charge of the departments of the ministries headed by the Cabinet Ministers or allotted specific items of work related to the ministries headed by the Cabinet Ministers. They work under the supervision and guidance of the Cabinet Ministers. Deputy Ministers Deputy Ministers are lowest in the rank. They are not given independent charge of the ministries/departments. They are attached to the Cabinet Ministers or Ministers of State to help them in their administrative, political and parliamentary duties. Deputy Ministers do not constitute part of the cabinet. Hence, they do not attend the meetings of the cabinet. KITCHEN CABINET Every Prime Minister in India has had his ‘Inner Cabinet’–a circle within a circle. Kitchen Cabinet consists of an informal body of the Prime Minister and 2-4 influential colleagues in whom he has faith and with whom he can discuss every problem. Not only cabinet ministers but also outsiders like friends and family members of the Prime Minister can include. Members of the kitchen cabinet advise the Prime Minister on important political and administrative issues and assist him in making crucial decisions. RESPONSIBILITIES OF MINISTERS Collective Responsibility: Article 75 clearly states that the COM is collectively responsible to the Lok Sabha. This means that all the ministers own joint responsibility to the Lok Sabha for all their acts of omission and commission. Individual Responsibility: It states that the ministers hold office during the pleasure of the President, which means that the President can remove a minister even at a time when the COM enjoys the confidence of the Lok Sabha. However, the President removes a minister only on the advice of the Prime Minister. POWERS OF COUNCILOF MINISTERS Executive Powers: The Council of Ministers is the real executive. All executive powers of the President of India are really used by the Council of Ministers. The Cabinet formulates the policies which are to be submitted to the Parliament for approval. The Cabinet/PM coordinates and controls the working of all departments of the government. All treaties and other international agreements are negotiated and signed by the ministers on behalf of the President. Legislative Powers: A bill not supported by the Council of Ministers cannot get passed from the Parliament because the ministry enjoys the support of the majority in Parliament. The President summons, prorogues or dissolves the Parliament in accordance with the advice of the Cabinet. They are the ones who introduce and pilot the majority of the bills. PARLIAMENT Articles 79 to 122 in Part V of the Constitution deal with the organisation, composition, duration, officers, procedures, privileges, powers and so on of the Parliament. Under the Constitution, the Parliament of India consists of three parts - 1. The President 2. Council of States (Rajya Sabha) 3. House of the People (Lok Sabha) *Though the President of India is not a member of either House of Parliament, he is an integral part of the Parliament. COMPOSITION OF RAJYA SABHA The maximum strength of the Rajya Sabha is fixed at 250, out of which, 238 are to be the representatives of the states and union territories (elected indirectly) and 12 are nominated by the president. The Fourth Schedule of the Constitution deals with the allocation of seats in the Rajya Sabha to the states and union territories. 1. Representation of States The Rajya Sabha members are elected by the elected members of state legislative assemblies. The election is held in accordance with the system of proportional representation by means of the single transferable vote. The seats are allotted to the states in the Rajya Sabha on the basis of population. 2. Representation of Union Territories Each union territory member in the Rajya Sabha is indirectly elected by members of an electoral college specially constituted for the purpose. This election is also held in accordance with the system of proportional representation by means of the single transferable vote. Only 3 UTs (Delhi, Puducherry and J&K) have representation in Rajya Sabha. 3. Nominated Members The president nominates 12 members to the Rajya Sabha from people who have special knowledge or practical experience in art, literature, science and social service. COMPOSITION OF LOK SABHA The maximum strength of the Lok Sabha is fixed at 552. Out of this, 530 members are to be the representatives of the states, 20 members are to be the representatives of the union territories and 2 members are to be nominated by the president from the AngloIndian community. 1. Representation of States The representatives of states are directly elected by the people from the territorial constituencies in the states. The election is based on the principle of universal adult franchise. Every Indian citizen who is above 18 years of age and who is not disqualified under the provisions of the Constitution or any law is eligible to vote at such election. *The voting age was reduced from 21 to 18 years by the 61st Constitutional Amendment Act, 1988. 2. Representation of Union Territories The Constitution has empowered the Parliament to prescribe the manner of choosing the representatives of the union territories in the Lok Sabha. Accordingly, the Parliament has enacted the Union Territories (Direct Election to the House of the People) Act, 1965, by which the members of Lok Sabha from the union territories are also chosen by direct election. 3. Nominated Members Earlier, the president could nominate 2 members from the Anglo-Indian community if the community is not adequately represented in the Lok Sabha. This provision was to operate till 1960 but has been extended till 2020 by the 95th Amendment Act, 2009. However, 104th Constitutional Amendment Act ceased the reservation of seats for the Anglo-Indians in the Lok Sabha and State Legislative Assemblies. SYSTEM OF ELECTIONS TO LOK SABHA 1. Territorial Constituencies For the purpose of holding direct elections to the Lok Sabha, each state is divided into territorial constituencies on the basis of population, which ensures that there is uniformity of representation. 2. Reservation of Seats for SCs and STs Though the Constitution has abandoned the system of communal representation, it provides for the reservation of seats for scheduled castes and scheduled tribes in the Lok Sabha on the basis of population ratios. 3. First-Past-The-Post System The Constitution has adopted the system of territorial representation (First-past-the- post system) for the election of members to the Lok Sabha (system of proportional representation in the case of Rajya Sabha). Difference between FPTP and PR DURATION OF RAJYA SABHA The RS (first constituted in 1952) is a continuing chamber, that is, it is a permanent body and not subject to dissolution. However, one-third of its members retire every second year. Their seats are filled up by fresh elections and presidential nominations at the beginning of every third year. The retiring members are eligible for re-election and renomination any number of times. The Constitution has not fixed the term of office of members of the RS and left it to the Parliament. Accordingly, the Parliament in the Representation of the People Act (1951) provided that the term of office of a member of the RS shall be six years. DURATION OF LOK SABHA The LS is not a continuing chamber. Its normal term is five years from the date of its first meeting after the general elections, after which it automatically dissolves. However, the President is authorised to dissolve the LS at any time even before the completion of five years and this cannot be challenged in a court of law. Further, the term of the LS can be extended during the period of national emergency be a law of Parliament for one year at a time for any length of time. MEMBERSHIP OF PARLIAMENT Qualifications - The Constitution lays down the following qualifications for a person to be chosen a member of the Parliament: 1. He must be a citizen of India. 2. He must make and subscribe to an oath or affirmation before the person authorised by the election commission for this purpose. 3. He must be 30 years of age (RS) and 25 years of age (LS). 4. He must possess other qualifications prescribed by Parliament. The Parliament has laid down the following additional qualifications in the Representation of People Act (1951) - 1. He must be registered as an elector for a parliamentary constituency (for both RS and LS). 2. He must be a member of a scheduled caste or scheduled tribe in any state or union territory, if he wants to contest a seat reserved for them. However, a member of scheduled castes or scheduled tribes can also contest a seat not reserved for them. Disqualifications Under the Constitution, a person shall be disqualified for being elected as a MP - 1. If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament). 2. If he is of unsound mind and stands so declared by a court. 3. If he is an undischarged insolvent. 4. If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and 5. If he is so disqualified under any law made by Parliament. The Parliament has laid down the following additional disqualifications in the Representation of People Act (1951) - 1. He must not have been found guilty of certain election offences or corrupt practices in the elections. 2. He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification. 3. He must not have failed to lodge an account of his election expenses within the time. 4. He must not have any interest in government contracts, works or services. 5. He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share. 6. He must not have been dismissed from government service for corruption or disloyalty to the State. 7. He must not have been convicted for promoting enmity between different groups or for the offence of bribery. 8. He must not have been punished for preaching and practising social crimes such as untouchability, dowry and sati. Disqualification on Ground of Defection - The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the 10th Schedule (Anti-Defection Act, included in the Constitution via the 52nd Amendment Act, 1985). A member incurs disqualification under the defection law: 1. If he voluntary gives up the membership of the political party on whose ticket he is elected to the House 2. If he votes or abstains from voting in the House contrary to any direction given by his political party 3. If any independently elected member joins any political party 4. If any nominated member joins any political party after the expiry of six months *The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India), and is subject to judicial review. Vacating of Seats In the following cases, a Member of Parliament vacates his seat – 1. Double Membership A person cannot be a member of both Houses of Parliament at the same time. Thus, the Representation of People Act (1951) provides for the following: (a) If a person is elected to both the Houses of Parliament, he must intimate within 10 days in which House he desires to serve. In default of such intimation, his seat in the Rajya Sabha becomes vacant. (b) If a sitting member of one House is also elected to the other House, his seat in the first House becomes vacant. (c) If a person is elected to two seats in a House, he should exercise his option for one. Otherwise, both seats become vacant. Similarly, a person cannot be a member of both the Parliament and the state legislature at the same time. If a person is so elected, his seat in Parliament becomes vacant if he does not resign his seat in the state legislature within 14 days. 2. Disqualification If a Member of Parliament becomes subject to any of the disqualifications specified in the Constitution, his seat becomes vacant. Here, the list of disqualifications also includes the disqualification on the grounds of defection under the provisions of the Tenth Schedule of the Constitution. 3. Resignation A member may resign his seat by writing to the Chairman of Rajya Sabha or Speaker of Lok Sabha, as the case may be. The seat falls vacant when the resignation is accepted. However, the Chairman/ Speaker may not accept the resignation if he is satisfied that it is not voluntary or genuine. 4. Absence A House can declare the seat of a member vacant if he is absent from all its meetings for a period of sixty days without its permission. In computing the period of sixty days, no account shall be taken of any period during which the House is prorogued or adjourned for more than four consecutive days. 5. Other cases A member has to vacate his seat in the Parliament: (a) if his election is declared void by the court (b) If he is expelled by the House (c) If he is elected to the office of President or Vice-President (d) If he is appointed to the office of governor of a state If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard. PRESIDING OFFICERS OF PARLIAMENT Speaker of Lok Sabha Election and Tenure - The Speaker is elected by the Lok Sabha from amongst its members. Whenever the office of the Speaker falls vacant, the Lok Sabha elects another member to fill the vacancy. *The date of election of the Speaker is fixed by the President. Usually, the Speaker remains in office during the life of the Lok Sabha. However, he has to vacate his office earlier in any of the following three cases: 1. If he ceases to be a member of the Lok Sabha 2. If he resigns by writing to the Deputy Speaker 3. If he is removed by a resolution passed by a majority of all then members of the Lok Sabha. Such a resolution can be moved only after giving 14 days’ advance notice. When a resolution for the removal of the Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present. However, he can speak and take part in the proceedings of the House at such a time and vote in the first instance, though not in the case of an equality of votes. *Whenever the Lok Sabha is dissolved, the Speaker does not vacate his office and continues till the newly-elected Lok Sabha meets. Role, Powers and Functions - The Speaker is the head of the Lok Sabha, and its representative. He is the guardian of powers and privileges of the members, the House as a whole and its committees. He is the principal spokesman of the House, and his decision in all Parliamentary matters is final. He has the following powers and duties: 1. He maintains order and decorum in the House for conducting its business and regulating its proceedings. 2. He is the final interpreter of the provisions of (a) the Constitution of India, (b) the Rules of Procedure and Conduct of Business of Lok Sabha, and (c) the parliamentary precedents, within the House. 3. He adjourns the House or suspends the meeting in absence of a quorum. The quorum to constitute a meeting of the House is one-tenth of the total strength of the House. 4. He does not vote in the first instance. But he can exercise a casting vote in the case of a tie. 5. He presides over a joint setting of the two Houses of Parliament. 7. He decides whether a bill is a money bill or not and his decision on this question is final. 8. He decides the questions of disqualification of a member of the Lok Sabha, arising on the ground of defection under the provisions of the Tenth Schedule. Deputy Speaker of Lok Sabha Like the Speaker, the Deputy Speaker is also elected by the Lok Sabha itself from amongst its members. The date of election of the Deputy Speaker is fixed by the Speaker. The Deputy Speaker performs the duties of the Speaker’s office when it is vacant. He also acts as the Speaker when the latter is absent from the sitting of the House. He also presides over the joint sitting of both the Houses of Parliament, in case the Speaker is absent from such a sitting. *The Deputy Speaker has one special privilege, that is, whenever he is appointed as a member of a parliamentary committee, he automatically becomes its chairman. Like the Speaker, the Deputy Speaker, while presiding over the House, cannot vote in the first instance; he can only exercise a casting vote in the case of a tie. Further, when a resolution for the removal of the Deputy Speaker is under consideration of the House, he cannot preside at the sitting of the House, though he may be present. Speaker Pro Tem The President himself administers oath to the Speaker Pro Tem. The Speaker Pro Tem has all the powers of the Speaker. Usually, the senior most member is selected for this. He presides over the first sitting of the newly-elected Lok Sabha. His main duty is to administer oath to the new members. He also enables the House to elect the new Speaker. When the new Speaker is elected by the House, the office of the Speaker Pro Tem ceases to exist. Hence, this office is a temporary office

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