Drafting of the Constitution
The Constituent Assembly appointed a Drafting Committee under the Chairmanship of Dr B. R. Ambedkar, the then Law Minister.
The Constitution of India was enacted, signed and adopted by the Constituent Assembly on 26 November 1949.
Commencement of Constitution On 26 January 1950, the Constitution of India came into force. It was also on this date that India became a Republic.
Structure of the Indian Constitution
Constitution is not to be interpreted as a mere law, but as the machinery by which laws are made. A constitution is a living and organic thing, which, of all instruments, has the greatest claim to be construed broadly and liberally. The Constitution of India consists of:
- The Preamble
- Parts I to XXII, covering over 395 Articles
- Schedules 1-12
The 42nd Amendment (1976) added the words ‘Secular’ and ‘Socialist’ and now the Preamble reads as follows:
‘We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens: Justice, social economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby, Adopt, Enact and Give to Ourselves This Constitution’.
Preamble as Part of the Indian Constitution
The Supreme Court, in 1973, gave a landmark verdict (Kesavananda Bharti v/s State of Kerala) stating, ‘Preamble is a part of the constitution and is subject to amending power of the Parliament, as any other provisions of the constitution provided the basic structure of the constitution found in the preamble is not destroyed.’ The objectives specified in the constitution contains the basic structure of our constitution which cannot be amended.
Parts and Articles of the Constitution
There are XXII parts in the Constitution total comprising of 395 Articles
Part 1/Articles 1-4 (Territory of India, admission, establishment or formation of new states)
Part II/Articles 5-11 (Citizenship)
Part III/Articles 12-35 (Fundamental Rights)
Part IV/Articles 36-51 (Directive Principles of State Policy)
Part IV-A/Article 51 A (Duties of a citizen of India)
Part V/Articles 52-151 (Government at the Union level)
Part VI/Articles 152-237 (Government at the State level)
Part VII/Article 238 (Repealed by 7th Amendment, 1956)
Part VIII/Articles 239-241 (Administration of Union Territories)
Part IX/Articles 242-243 O (The Panchayats)
Part IX-A/Articles 243P-243 ZG (The Muncipalities)
Part X/Articles 244-244 A (Scheduled and tribal areas)
Part XI/Articles 245-263 (Relations between the Union and States)
Part XII/Articles 264-300 A (Finance, property, contracts and suits)
Part XIII/Articles 301-307 (Trade, commerce and travel within territory of India)
Part XIV/Articles 308-323 (Services under the Union and States)
Part XIV-A/Articles 323A-323B (Deals with administrative tribunals)
Part XV/Articles 324-329A (Election and Election Commission)
Part XVI/Articles 330-342 (Special provision to certain classes SCs/STs, OBCs and Anglo Indians)
Part XVII/Articles 343-351 (Official languages)
Part XVIII/Articles 352-360 (Emergency provisions)
Part XIX/Articles 361-367 (Miscellaneous provisions)
Part XX/Article 368 (Amendment of Constitution)
Part XXI/Articles 369-392 (Temporary, transitional and special provisions)
Part XXII/Articles 393-395 (Short title, commencement and repeal of the Constitution)
Schedules can be added to the Constitution by amendment. The original Constitution only had eight Schedules. The Ninth Schedule was the first Schedule added to the original constitution by the 1st Amendment of 1951 and the Twelfth Schedule is the latest schedule added by the 74th Amendment of 1992. A brief introduction to the Schedules in the Constitution follows:
First Schedule(Articles 1 & 4) It deals with the territories of the 28 states and 7 union territories of the Indian Union.
Second Schedule(Articles 59. 65,75, 97 125. 148. 138. 164. 186 and 221) Deals with salaries. allowances, etc., payable to the President of India, Governors of States, Chief Justice of India, judges of the Supreme Court and High Courts and the Comptroller and Auditor General of India. The revised salaries now are:
Third Schedule (Articles 75,99. 124. 148. 164. 188 and 219) It prescribes the various forms of oath or affirmation, which various incumbents have to take before assuming a public office.
Fourth Schedule (Articles 4 and 80) Allocates seats to each state and union territory in the Rajya Sabha. Fifth Fifth Schedule (Article244) It deals with the administration and control of the Schedules Areas.
Sixth Schedule (Articles 244 and 275) Deals with provisions regarding administration of tribal areas in the states ofAssam, Meghalaya, Mizoram, Tripura and Mizoram.
Seventh Schedule (Article 246) Gives three lists of powers and subjects to be looked after by the Union and the states, as follows:
(1) Union List—Comprises subjects of all India importance like Defence, International Affairs, Railways, Post and Telegraph, Income tax, etc. The Parliament has the exclusive power to legislate on these subjects. It contains 97 subjects;
(2) State List—Contains subjects of local importance. Normally, the State Legislature alone legislates on these subjects. It contains 66 subjects;
(3) Concurrent List—Contains subjects on which the Parliament as well as the State Legislature enjoy authority. According to the 88th amendment, service tax is to be levied, collected and appropriated by the union and the states.
Eighth Schedule (Articles 344 and 351) Gives a list of 22 regional languages recognised by the Constitution. The languages are as follows:
(1) Assamese, (2) Bengali, (3) Bodo, (4) Dogri, (5) Gujarati, (6) Hindi, (7) Kannada, (8) Kashmiri, (9) Malayalam, (10) Maithali, I1) Marathi, (12) Odia, (13) Punjabi, (14) Sanskrit, (15) Sindhi, (16) Tamil, (17) Telugu, (18) Santhali, (19) Urdu, (20) Konkani, (21) Manipuri, (22) Nepali.
Ninth Schedule (Article 31-B) Contains certain Acts and regulations of the State Legislature dealing with land reforms and abolition of the zamindari system.
Tenth Schedule (Articles 102 and 191) Contains certain provisions regarding disqualification of members on grounds of defection.
Eleventh Schedule (Article 243-G) It lists 29 subjects on which the Panchayats have been given administrative control. It was added to the Constitution on 20 April 1992, by the 73rd Amendment in 1992.
Twelfth Schedule (Article 243-W) It lists 18 subjects on which the Municipalities are given administrative control. It was added to the Constitution on 20 April 1992 by the 74th Amendment in 1992.
Important Constitutional Doctrines
- Doctrine of Double Jeopardy: A person shall not be prosecuted and punished for the same offence more than once. [Article 20(2)].
- Doctrine of Eclipse: The State is prohibited from making any law which contravenes any of the fundamental rights [Article 13(2)].
- Doctrine of Basic Feature of the Constitution: This is also known as Doctrine of Basic Structure or Basic Elements of the Constitution (propounded in 1973 as tabulated in the Kesavnanda case): (i)Supermacy of the Constitution; (ii) Republican and democratic form of government; ( i ) Secular character of the Constitution; (iv) Separation of powers and (v) Federal character of the Constitution etc.
- Doctrine of Ministerial Responsibility: For every act of the State, the ministers are responsible to the people through their elected representative in the Parliament [Article 75(3)]. It is an essential indicator of the parliamentary system.
Part II (Articles 5-11)
The Constitution provides for only single citizenship and there is no separate citizenship of states. Citizenship can be acquired (Citizenship Act, 1955) by birth, descent, registration, naturalization or when India acquires new territories. Citizenship can be lost by renunciation, termination or deprivation. Parliament can, by law, deprive any person of his citizenship if it is satisfied that citizenship was acquired by fraud, false representation, or concealment of material facts.
Dual Citizenship 2005
Under the Citizenship Act 2003, those eligible to become citizens of India as on 26 January 1950, could apply for dual Indian citizenship. The government has extended dual citizenship to all those who were holding the Person of Indian Origin Card (PIOs) and who had migrated from India after the formation of the Indian Republic. Persons of Indian origin who were citizens of Australia, Canada, Finland, France, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Cyprus, Sweden, Switzerland, the United Kingdom and the United States of America were eligible to apply the dual citizenship. A person who has been at any time a citizen of Pakistan, Bangladesh or any other country that the government may notify in future is not entitled to dual citizenship.
Part III (Articles 12-35)
Originally, seven Fundamental Rights were listed in the Constitution. However, after the 44th Amendment 1978, there are now only six Fundamental Rights, they are:
1. Right of Equality (Articles 14-18)
2. Right of Freedom (Article 19). It guarantees:
i. Freedom of speech and expression
ii. Freedom to assemble peacefully and without arms
iii. Freedom to form associations and unions
iv. Freedom of movement throughout India
v. Freedom to reside and settle in any part of India
vi. Freedom to practise any profession, or to carry on any occupation, trade or business
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 Constitutional Remedies (Article 32)
Rights to Information
What does Right to Information mean? .
It includes the right to— (1) inspect works, documents. records; (2) take notes, extracts or certified copies of documents or records; (3) take certified samples of material: (4) obtain information in form of printouts, diskettes, floppies, tapes. video cassettes or in any other electronic mode or through printouts.
The Act extends to the whole of India except the State of Jammu and Kashmir.
Right to Property used to be a Fundamental Right but has now become only a legal right. The Janata Government on 20 June 1978 omitted the Right to Property by Constitution (44th) Amendment Act, 1978. No person shall be deprived of his property save by authority of law [Article 300A].
Part IV (Articles 36-51)
Part IV of the Constitution deals with the Directive Principles of state policy. The main
Directive Principles are:
- Provision of adequate means of livelihood to all.
- Equitable distribution of wealth among all.
- Protection of children and youth.
- Equal pay for equal work to both men and women.
- Free and compulsory education for children up to the age of 14 years.
- Prevention of cow slaughter.
- The right to work, to education, to public assistance in case of unemployment, old age, sickness and disability.
- Prohibition of liquor.
- Establishment of village panchayats.
- Protection of historical and national monuments.
- Separation of the judiciary from the Executive to secure for all citizens, a uniform civil code.
- Promotion of international cooperation and world security.
- Free legal aid from the state to the weaker sections of society.
- State to protect natural environment, forests and wildlife.
Difference between Fundamental Rights and Directive Principles:
- Fundamental Rights constitute a limitation upon the State actions whereas, Directive Principles are instruments of instruction to the government to carry out certain responsibilities.
- Directive Principles cannot be enforced in a court of law and do not create any justifiable right in favour of an individual. The 42nd Amendment Bill, 1976 had given the Directive Principles precedence over the Fundamental Rights. This amendment also added two more Directive Principles: (i) Free legal aid from State to weaker sections and (ii) State to protect natural environment, forests and wildlife.
Part IVA (Articles 51 A)
The 42nd Amendment Bill 1976 had added eleven fundamental duties, viz.,
- To abide by the Constitution and to respect its ideals and institutions, the national flag and the national anthem [Article 51 A(a)].
- To cherish and follow the noble ideas which inspired our national freedom struggle [Article 51 A(b)].
- To uphold and protect the sovereignty, unity and integrity of India [Article 51 A(c)].
- To defend the country and render national service when called upon to do so [Article 51 A(d)].
- To promote harmony and spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women [Article 51 A(e)].
- To value and preserve the rich heritage of our composite culture [Article 51 A(f)].
- To protect and improve the natural environment [Article 51 A(g)].
- To develop a scientific temper, humanism and the spirit of enquiry and reform [Article 51 A(h)].
- To safeguard public property and abjure violence [Article 51 A(i)].
- 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 [Article 51 A(j)].
- To provide opportunities for free and compulsory education to his child or ward between the age of six and fourteen years (Added by 86th Amendment Act, 2002) [Article 51 A(k)].
THE UNION EXECUTIVE
The President of India is the constitutional head of a parliamentary system of government. He represents the nation but does not rule it. The real power vests with the council of ministers. The President is elected by an electoral college consisting of:
- Elected members of the Parliament (both Houses)
- Elected members of the state legislature.
- He must be a citizen of India.
- He must not be less than 35 years of age.
- He must be qualified to be an elected member of the Lok Sabha but shall not be a sitting member.
- He must not be holding any office of profit under the Government of India or any other governments.
Tenure and Emoluments
- Elected for five years but is eligible for immediate re-election and can serve any number of terms.
- Receives a salary of 1,50,000 per month (currently). Ex-President receives a pension of Rs.75,000 per month.
- Executive and Administrative Powers: He appoints the senior officials of the state including the Prime Minister. All Union Territories are under the President of India.
- Legislative Powers:
- Appoints 12 members to the Rajya Sabha and two Anglo- Indian members to the Lok Sabha;
- Dissolves the House of People;
- Assents or withholds his assent to any Bill passed by the Parliament;
- Issues ordinances.
- Financial Powers:
- Causes the budget to be laid before the Parliament;
- Sanctions introduction of money bills;
- Apportions revenue between the Centre and the States.
4. Judicial Powers: Empowered to grant pardons, reprieve, remit the sentences, or suspend, remit or commute punishments.
5. Emergency Powers: Article 352 empowers the President to proclaim an emergency and take under his direct charge the administration of any State. The President cannot be questioned by any court for the action taken by him in the discharge of his duties. No criminal proceedings can be launched against him. He may be removed from office for violation of the Constitution by impeachment (Article 61).
- Election: The Vice-President is elected by members of an electoral college consisting of the members of both the Houses of Parliament. However, his election is different from that of the President as the state legislatures have no part in it.
- Tenure: Five years and is eligible for immediate re-election.
- Acts as ex-officio Chairman of the Rajya Sabha.
- Officiates as President in case of death, resignation or removal of the latter.
- Functions as the President when the President is unable to discharge his functions due to illness, absence or any other cause.
The Prime Minister
The Prime Minister of India heads the council of ministers. He is the leader of the party that enjoys a majority in the Lok Sabha. He is appointed by the President.
- Tenure: Five years and holds the office with the consent of the President till a new Lok Sabha is formed.
- Resignation: If the government is defeated in the Lok Sabha (not in Rajya Sabha), the cabinet as well as the Prime Minister have to resign.
- Emoluments: The PM gets the same salary and allowances which are paid to the member of Parliament. In addition, he gets a sumptuary allowance of? 15,000 per month, free residence, free travel and medical facilities.
Council of Ministers
The Constitution provides for a council of ministers headed by the Prime Minister. It is a policy-making body and the government in the real sense. The Prime Minister is appointed by the President and the other ministers are appointed by the President on the advice of the Prime Minister.
Any person who is not a member of the legislature, can also be appointed as a minister, but he cannot continue in that capacity for more than six months unless he secures a seat in either House of Parliament.
The total number of ministers in the Council of Ministers must not exceed 15% of the total number of members of the House of the People.
The Parliament is the Union legislature of India which comprises:
- The President of India.
- The Council of States (Rajya Sabha).
- The House of People (Lok Sabha).
It is the Council of States which is also known as the Upper House. It is made up of representatives from the states and members nominated by the President, who have distinguished themselves in literature, arts, science or social service.
- Strength: 250 members (238 members representing the States and Union Territories who come through election and 12 members who are nominated by the President).
- Chairman of the Rajya Sabha: The Vice-President of India is the ex-officio Chairman and the Deputy Chairman is elected from the members of the Rajya Sabha.
- Tenure: The Rajya Sabha is a permanent body, not subject to dissolution. A third of its members retire after every two years. Thus, every member enjoys a six-year tenure.
- Functions: Shares with the Lok Sabha the power of amending the Constitution. It can originate any bill (except a money bill); refer the charge of impeachment against the President. The elected members of the Rajya Sabha take part in the election of the President and the Vice-President.
Also called the House of People or the Lower House of the Parliament. It consists of members elected by direct election from territorial constituencies in various states and union territories and two members nominated (Anglo-Indian) by the President.
- Strength: 552 (530 represent states and 20 represent Union Territories) and not more than two members of the Anglo-Indian community to be nominated by the president, only if the President thinks this community is not adequately represented in the house.
- Presiding Officer: Speaker, who is elected by the members. The Speaker of the House elects a Deputy Speaker, who discharges the duties of the Speaker in his absence.
Conduct of Business in Parliament
1. Ordinary Bills: All bills, except money bills, are introduced in either House of Parliament.
A bill, after debate, is passed by a majority vote and sent to the other House. In case certain amendments are suggested in the other House, it is sent back to the House where the bill had originated for reconsideration. The bill is regarded as passed by both the Houses if the original House accepts the amendments of the other House. It is then presented to the President for his assent, in case:
- if the President gives his assent to the bill, it then becomes an Act.
- if the President withholds his assent, the bill is nullified.
- if the President neither gives his assent nor withholds his assent, he may return it to the Parliament for reconsideration.
- if, however, the Houses pass the bill again after reconsideration, the President is bound to give his assent.2. Money Bills: A money bill can originate only in the Lok Sabha on the recommendation of the President. After it has been passed by the Lok Sabha, it is sent to the Rajya Sabha. The Rajya Sabha is given 14 days to make its recommendation. If it fails to do so within 14 days, the bill is considered as passed by both Houses. If the Rajya Sabha returns the bill with its recommendation, it is up to the Lok Sabha to accept or reject the recommendations. Even if the Lok Sabha rejects the recommendations of the Rajya Sabha, the bill is considered to have been passed.3. Joint Sitting of Parliament: A joint session of both Houses is ordered by the President to consider a particular bill in case:
- a bill is passed by one House and is rejected by the other.
- the amendments made by the other House are not acceptable to the House where the bill originated.
- a bill remains pending (failed) in a House for more than six months from the date of its receipt from the House where it originated.
THE UNION JUDICIARY
The Supreme Court stands at the apex of the judicial system of India.
- Composition: The Supreme Court consists of one Chief Justice and there are 30 sanctioned posts of judges in Supreme Court of India. The Chief Justice is appointed by the President and the other judges are appointed by the President in consultation with the Chief Justice.
- Seat: The Supreme Court normally sits in New Delhi. However, it can hold its meetings anywhere in India. The decision in this regard is taken by the Chief Justice of India in consultation with the President.
- Original Qualification: Any citizen who has been a judge of a High Court for 5 years or an eminent jurist or who has been a practising advocate of High Court for a period of 10 years, can be nominated as a Supreme Court judge.
- Jurisdiction of the Supreme Court (Article 121):
(i) It decides disputes between the Union Government and the states;
(ii) It hears certain appeals in civil and criminal cases from the High Courts;
(iii) The President can refer any question of law or fact of sufficient importance to the Supreme Court for its opinion and
(iv) It can issue directions or writs for the enforcement of any of the Fundamental Rights referred by the Constitution.
Law declared by Supreme Court to be binding an all courts (Article 141).
Supreme Court to be a court of record (Article 129).
- Tenure: Judges of the Supreme Court can hold office up to the age of 65 years.
- Remuneration: Chief Justice of India—Rs.1,00,000 per month; Judges of the Supreme Court— Rs.90,000 per month.
- Retirement: The Chief Justice and other judges are entitled to a pension of Rs. 60,000 and Rs.54,000 per annum, respectively. After retirement a judge of the Supreme Court shall not plead or act in any court before any authority in India.
Removal of a Judge Article 124(4)
A judge of the Supreme Court can only be removed from office by an order of the President, after an address by each House of Parliament, supported by a majority of the total membership of the Houses and by a majority of not less than two-third of the members present and voting. He can be removed only on the grounds of:
- proven misbehaviour
- incapacity to act as a judge [Article 124(4)].
THE STATE EXECUTIVE
The executive at the state level consists of:
- The Governor
- The Chief Minister
- The Council of Ministers
The Governor is the nominal executive head of the state and is appointed by the President of India for a term of 5 years. He holds the office with the consent of the President.
Remuneration: Rs. 1,10,000 per month (varies from state to state), in addition he is entitled to free residence, medical facilities and certain other allowances.
- Executive Power
- Legislative Power
- Financial Powers
- Judicial Power
- Discretionary Power
President vs. Governor
The governor of a state cannot appoint the judges of the State High Courts but the President can (in consultation with the governor and the Chief Justice of India). Also, the governor has no emergency powers but the President has.
STATE COUNCIL OF MINISTERS
The leader of the party that commands a majority in the Legislative Assembly is invited by the Governor to become the Chief Minister.
A person, who is not a member of the State Legislature, can be appointed as the Chief Minister but the person concerned is required to get himself elected as a member within six months of his appointment.
The Chief Minister recommends the names of ministers together with proposed portfolios for them to the Governor, who then appoints them.
Term: 5 years
Removal of Chief Minister
The Chief Minister of a state can be removed from his office if:
- his government is defeated in the State Assembly: or
- after his defeat in the State Assembly, the Chief Minister refuses to resign: or
- he fails to get himself elected to the State Assembly within six months of his appointment, in case he was not already a member: or
- the President proclaims emergency in the state on account of failure on the part of the state government to carry on the administration in accordance with the provisions of the Constitution.
Council of Ministers
- The Formation of Council of Ministers: As per the Constitution, every state must have a Council of Ministers to aid and advise the Governor in exercising his executive functions (apart from those functions in which he shall act at his discretion). Once the Governor appoints a Chief Minister, as per the Constitution. the Chief Minister finalizes the list of his Ministers, which is customarily permitted by the Governor. Thus, the Ministry is created in the state and a formal Council of Minister takes precise shape. The Council of Ministers is permanently interconnected to the State Legislature and it functions as an executive arm of the State Legislature. Constitutionally, all ministers have to be members of either House of State Legislature. Representation of Parliament of India
- The Oath and the Emoluments: Before a Minister enters his office, the Governor administers the oaths of office and of secrecy to him according to the forms set out for the purpose in the Third Schedule. The salaries and allowances of ministers are as the Legislature of the state specifies.
- Provisions as to the Council of Ministers: The Council of Ministers are collectively responsible to the Legislative Assembly of the State. It means that the ministry can remain in office till it commands the confidence of the Lower House. A minister who, for any period of six consecutive months, is not a member of the Legislature of the state shall, at the expiration of that period, cease to be a minister.
THE STATE LEGISLATURE
The State Legislature consists of the Governor and one or two houses, as the case may be. If the state has only one House, it is known as Legislative Assembly. The other is the Legislative Council. The states having one House are called unicameral and the states having two Houses—bicameral.
At present only five states have a bicameral legislature, that is: Bihar, Jammu and Kashmir, Karnataka, Maharashtra and Uttar Pradesh. All other states have only one house.
Legislative Council (Vidhan Parishad)
Also known as the Upper House.
- Strength: The total strength does not exceed one-third of the strength of the Legislative Assembly, subject to a minimum of 40 members. The strength varies as per population of the state concerned.
- Tenure: Six years with one-third of the members retiring every two years.
- Election: One-third of the members of a Legislative Council are elected by local bodies, one-third by the Legislative Assembly, one-twelfth by university graduates of at least three years standing, similar proportion by teachers and one-sixth are nominated by the Governor.
Legislative Assembly (Vidhan Sabha)
Also known as the Lower House.
- Strength: Legislative Assembly consists of not more than 525 members and not less than 60 members. However, the legislative assembly of Sikkim has only 32 members.
- Tenure: 5 years.
- Election: Members are chosen by direct election from the territorial constituencies of the state.
The Council of Ministers is collectively responsible to the Assembly. The Chief Minister is the leader of the House.
THE STATE JUDICIARY
Each state has a High Court, which is the highest judicial organ of the state. However, there can be a common High Court for two or more states. For example, Punjab, Haryana and the Union Territory of Chandigarh have a common High Court.
At present there are 21 High Courts in the country.
- Constitution – The state judiciary consists of a Chief Justice and such other judges as the President of India may deem necessary to appoint. The strength of High Courts is not identical. For example, the Allahabad High Court has 37 judges against five in Jammu and Kashmir High Court.
- Term – A judge of the High Court holds office till the age of 62 years. His term can be cut short due to resignation or removal by the president through the process of impeachment in the Parliament.
- Removal – The President can remove a judge of the High Court only if the Parliament passes a resolution by a two-third majority of its members present and voting in each house, requesting him to remove a judge.
- Restriction on Legal Practice – A person who has held office of a judge of the High Court is not allowed to practise law before the authority of the same court except the Supreme Court and a High Court, other than the one in which he served as a judge.
Functions of the High Courts
- Judicial: A High Court has original appellate and revisory jurisdiction with respect to revenue and its collection as also for enforcement of the fundamental rights. It is a ‘Court of Record’ and its decisions are referred to in all future cases.
- Administrative: It supervises the working of all subordinate courts and frames rules and regulations for the transaction of business. It can examine the records of subordinate courts. However, it does not have any power of superintendence over any court or tribunal constituted under any military law.
Appointment of Judges
Every judge of a High Court including the chief justice is appointed by the President. The appointment of the Chief Justice is made after consultation with the Chief Justice of India and the Govenor of the State concerned. In case of appointment of a judge, the Chief Justice of the High Court concerned is also consulted in addition to the Chief Justice of India and the Governor of the State concerned. Appointment of all judges, is, however, done by the President only.
On 6 October 1993, the Constitution bench of the Supreme Court held that the opinion of the Chief Justice (of the concerned High Court and the Supreme Court) will have primacy on both the appointment as well a transfer of senior judges.
Qualification: For appointment as a judge to the High Court, the person:
(1) must be a citizen of India;
(2) should have been an advocate of a High Court or of two such courts in succession for at least 10 years; or should have held judicial office in Indian territory for a period of at least 10 years.
THE POLITICAL PROCESS IN INDIA
India is a constitutional democracy with a parliamentary system of government and at the heart of the system is a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership of the two Houses of Parliament, the state and union territory Legislative Assemblies and the Presidency and Vice-Presidency. The decline of the Congress (I) since the late 1980s has brought an end to the dominant single-party system that had long characterised India’s politics. Under the old system, conflict within the Congress was often a more important political dynamic than conflict between the Congress and the opposition.
General Elections 2014
The general elections to the 16th Lok Sabha were held from 7th April 2014 to 12th May 2014. The elections took place in nine phases. BJP-led National Democratic Alliance (NDA) outshined all opposition parties to clinch a big win. Bhartiya Janta Party (BJP) got clear majority (282 seats out of 543 seats) and Mr Narendra Modi became the Prime Minister of India. Indian National Congress (INC), the ruling party, mustered only 44 seats which was their lowest ever tally.
The makers of the Indian Constitution faced a peculiar problem in selecting a national language as more than 1600 spoken languages were used by the vast population of India. The official language of the Union was decided to be Hindi in Devanagri script [as per Article 343(1) of the Constitution], but for a period of 15 years from the commencement of the Constitution, the English language was allowed to be used for all the official purposes of the Union for which it was being used immediately before such commencement. Thus, English continued to be the official language of the Union side by side with Hindi, until 1965 and thereafter, the use of English for any purpose depended on parliamentary legislation. The Parliament made this law by passing the Official Languages Act 1963. The Act also lays down that both Hindi and English shall compulsorily be used for certain specified purposes such as resolutions, general orders, rules, notifications, press communiqués, administrative and other reports, licences, permits, contracts, agreements, etc.
- The official language(s) of any state, shall be as the State Legislature adopts [Article 345].
- The President, under Article 350B appoints the special officers for linguistic minorities.
- The Supreme Court and High Courts use the English language as per Article 348.
Panchayati Raj System in Independent India
(Articles 243-243 O)
Balwant Rai Mehta Committee After the independence, ‘Community Development Programme’ was started in 1952, but because it was not attached to the people, it, therefore, did not prove to be a success story. A team, under the leadership of Balwant Rai Mehta, tried to find out the cause for the failure of this programme and came up with the inference that there should be an organization at the village level, which would select the true beneficiaries and implement various government programmes and schemes. This organization would act as the representative of all villagers and would ensure the development of the village as well as participation of villagers. In this way Balwant Rai Mehta tried to achieve local self-government through panchayats. This concept of local self-government was the right step towards a decentralized democracy. In this process, for the first time the State of Rajasthan adopted the three levelled structure of panchayati raj—Village Level, Intermediate Level and District Level.
Ashok Mehta Committee In 1977, the Ashok Mehta Committee was set up to review the working of panchayats. The committee found out that panchayati raj is the soul of democracy and therefore, it should be empowered with more authority. The panchayats which were formed after 1977 are known as Second Generation Panchayats. In West Bengal, Panchayats became more effective after accepting the suggestions made in this report. During the decade of 1990s, it was realized that without constitutional power, self-government cannot be fruitful; therefore, the Central Government passed the 73rd Constitutional Amendment Act in 1992, which became effective from 20 April 1993 (from the date of publication in the Gazette of India).
Structure of Panchayati Raj
Basic Concepts of Panchayati Raj
Panchayati Raj works on the underlying principle of enabling the masses in the rural set-up to think, decide and act as per their own socio-economic interests. Thus, the Panchayati Raj Act is related to village self-governance, where the people in the form of an organization will think, decide and act for their collective interest. Self-government allows us to decide about ourselves without hampering others’ interest. Whenever we talk about collective benefits, one point is clear that there is no conflict between the villagers’ collective interest on one side and societal and national interest on the other, rather they are complementary. Where panchayats end their activities, the state government takes them up.
The five Zonal Councils are:
- Northern Zone—comprising the state of Haryana, Punjab, Rajasthan, Jammu and Kashmir, Himachal Pradesh and the National Capital Region of Delhi.
- Eastern Zone—comprising Bihar, Jharkhand, West Bengal, Orissa, Assam, Manipur, Tripura, Nagaland, Arunachal Pradesh, Mizoram and Meghalaya.
- Central Zone—comprising the states of Uttar Pradesh, Uttarakhand, Madhya Pradesh and Chhattisgarh.
- Western Zone—comprising Gujarat, Maharashtra and Goa.
- Southern Zone—consisting of Andhra Pradesh, Tamil Nadu, Karnataka and Kerala, Telangana.
Zonal councils acts as a consultative body to discuss matters of common interest of the member states. It recommends the member states on the issues of (i) Social Planning; (ii) Inter-state Transport; (iii) Economic Planning; (iv) Border dispute and (v) Matters concerning minorities, etc.
AMENDMENT OF THE CONSTITUTION
Procedure (Article 368)
The methods of amendment are three—according to the subject matter of the Article concerned:
- Articles that may be amended by a simple majority.
- Articles that may be amended by a two-thirds majority of both Houses of Parliament— these are comparatively important matters.
- Articles that require not only a two-thirds majority of the Parliament but also ratification by at least one-half of the State Legislatures.
It may be noted that provisions which affect the federal character of the Constitutioncan be amended only with the approval of the states.
Important Constitutional Amendments
- The First Amendment: 1951, to overcome certain practical difficulties related to Fundamental Rights. It made provision for special treatment of educationally and socially backward classes and added Ninth Schedule to the Constitution.
- The Seventh Amendment: 1956, was necessitated on account of reorganization of states on a linguistic basis and changed First and Fourth Schedules.
- The Eighth Amendment: 1960, extended special provision for reservation of seats for SCs, STs and Anglo-Indians in Lok Sabha and Legislative Assemblies for a period of 10 years from 1960 to 1970.
- The Ninth Amendment: 1960, transferred certain territories to Pakistan following September 1958 Indo-Pak Agreement.
- The Tenth Amendment: 1961, incorporated the territories of Dadra and Nagar Haveli in Indian Union.
- The Twelfth Amendment: 1962, incorporated the territories of Goa, Daman and Diu in Indian Union.
- The Thirteenth Amendment: 1962, created Nagaland as a State of the Union of India.
- The Fourteenth Amendment: 1962, incorporated former French territory of Pondicherry in Indian Union.
- The Eighteenth Amendment: 1966, was made to facilitate reorganization of Punjab into Punjab and Haryana and also created the UT of Chandigarh.
- The Twenty-First Amendment: 1967, included Sindhi as the 15th regional language in the Eighth Schedule.
- The Twenty-Second Amendment: 1969, created a sub-state of Meghalaya within Assam.
- The Twenty-Sixth Amendment: 1971, abolished titles and special privileges of former rulers of princely states.
- The Twenty-Seventh Amendment: 1971, provided for the establishment of the states of Manipur and Tripura; the formation of the Union Territories of Mizoram and Arunachal Pradesh.
- The Thirty-First Amendment: 1973, increased elective strength of Lok Sabha from 525 to 545. Upper limit of representatives of state became 525 from 500.
- The Thirty-Sixth Amendment: 1975, made Sikkim a state of the Indian Union.
- The Thirty-Eighth Amendment: 1975,provided that thePresident can make a declaration of emergency and the promulgation of ordinances by the President, Governors and administrative heads of UTs would be final and could not be challenged in any court.
- The Thirty-Ninth Amendment: 1975, placed beyond challenge in courts, the election to Parliament of a person holding the office of Prime Minister or Speaker and election of the President and Vice President.
- The Forty-Second Amendment: 1976, provided supremacy of Parliament and gave primacy to Directive Principles over Fundamental Rights; added 11 Fundamental Duties and altered the Preamble.
- The Forty-Fourth Amendment: 1978, restored the normal duration of Lok Sabha and Legislative Assemblies to 5 Years; Right to property was deleted from Part III; it limited the power of the govt to proclaim internal emergency.
- The Fifty-Second Amendment: 1985, inserted the Tenth Schedule in the Constitution regarding provisions as to disqualification on the grounds of defection.
- The Fifty-Fifth Amendment: 1986, conferred statehood on Arunachal Pradesh.
- The Fifty-Sixth Amendment: 1987, Hindi version of the Constitution of India was accepted for all purposes and statehood was also conferred on the UT of Goa.
- The Fifty-Eighth Amendment: 1987, provided reservation of seats in legislatures for the four north-eastern states of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland.
- The Sixty-First Amendment: 1989, reduced voting age from 21 to 18 years for Lok Sabha and Assemblies.
- The Seventy-Second Amendment: 1992, (Panchayati Raj Bill) provided Gram Sabha in villages, constitution of panchayats at village and other levels, direct elections to all seats in panchayats and reservation of seats for SC/ST and fixing of Panchayat’s tenure to 5 years.
- The Seventy-Third Amendment: 1993, (Nagarpalika Bill) provided for constitution of municipalities, reservation of seats in every municipality for the SC and ST, women and the backward classes.
- The Seventy-Fourth Amendment: 1993, inclusion of a new part IX-A relating to the municipalities had been incorporated in the Constitution to provide, among other things, constitution of three types of municipalities, that is, ‘Nagar Panchayats’ for areas in transition from a rural area to urban area, ‘Municipal Councils’ for smaller urban area and ‘Municipal Corporations’ for larger urban areas.
- The Eighty-Fourth Amendment: 2002, The number of representatives in the Lok Sabha and State Assemblies to freeze to current levels for the next 25 years (till 2026).
- The Eighty-sixth Amendment: 2002, The Act deals with the insertion of a new Article 21A after article 21. The new Article 21A deals with Right to Education. ‘The state shall provide free and compulsory education to all children from the age of 6 to 14 years in such a manner as the state may, by law, determine.’
- The Eighty-Eighth Amendment: 2003, provides for the insertion of a new Article 268A: Service tax levied by Union and collected and appropriated by the Union and the States. The Eighty-Ninth Amendment: 2003, provides for the amendment of Article 338. There shall be a National Commission for the SCs/STs.
- The Ninety-First Amendment: 2003, amended the anti-defection laws and provided for amendment of Article 75. The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent of the total number of members of the House of the people.
- The Ninety-Second Amendment: 2003, provided for the amendment of Eighth Schedule by adding four new regional languages (Bodo, Maithili, Santhali and Dogri) thus extending the list to 22 languages.
- The Ninety-Third Amendment: 2006, (came into effect on 20 January 2006), provided for special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SCs/STs in so far as such special provisions relate to their admission to educational institutions including private educational institutions.
- The Ninety-Sixth Amendment: 2011, alters language ‘Oriya’ as ‘Odia’ in the Eighth Schedule.
- The Ninety-Seventh Amendment: 2012 (came into force on 12 January 2012 date of ascent), add the words ‘or co-operative societies’ after the word ‘or unions’ in Article 19(l)(c) and insertion of Article 43B i.e., Promotion of co-operative societies and added Part-IXB i.e.. The co-operative Societies.
- The Ninety-Eighth Amendment: 2012 (came into force on 01 January 2013), deals with insertion of new article 371J, on special provisions with respect to the state of Karnataka to empower the Governor of Karnataka to take steps to develop the Hyderabad-Karnataka Region.