Indian Polity – II

Framing of the Constitution: Constituent Assembly

Background:

•            The demand for a Constituent Assembly was finally accepted in principle by the British Government in what is known as the ‘August Offer’ of 1940.

•            In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a draft proposal of the British Government on the framing of an independent Constitution to be adopted after the World War II. The Cripps Proposals were rejected by the Muslim League which wanted India to be divided into two autonomous states with two separate Constituent Assemblies.

•            Finally, the Cabinet Mission was sent to India in 1946. While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.

Composition of The Constituent Assembly: Cabinet Mission Plan

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

•            The features of the scheme were:

1.           The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats to the Princely States.

2.           Each province and princely state were to be allotted seats in proportion to their respective population.

3.           Seats allocated to each British province were to be decided among the three principal communities (Hindus, Muslims, Sikhs) in proportion to their population.

4.           The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote.

5.           The representatives of princely states were to be nominated by the heads of the princely states.

•            The Constituent Assembly was to be a partly elected and partly nominated body.

•            Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise4

•            The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces) were held in July-August 1946.

o            The Indian National Congress won 208 seats, the Muslim League 73 seats, and the small groups and independents got the remaining 15 seats.

o            However, the 93 seats allotted to the princely states were not filled as they decided to stay away from the Constituent Assembly.

Working of the Constituent Assembly

•            The Constituent Assembly held its first meeting on December 9, 1946.

•            The Muslim League boycotted the meeting and insisted on a separate state of Pakistan. The meeting was thus attended by only 211 members.

•            Dr Sachchidanand Sinha, the oldest member, was elected as the temporary President of the Assembly, following the French practice.

•            Later, on December 11, 1946, Dr Rajendra Prasad and H C Mukherjee were elected as the President and Vice-President of the Assembly respectively.

Objectives Resolution

•            On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly.

•            It read:

o            This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution

o            wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside India and the States as well as other territories as are willing to be constituted into the independent sovereign India, shall be a Union of them all and

o            wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality and

o            wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes

•            This Resolution was unanimously adopted by the Assembly on January 22, 1947.

Changes by the Independence Act

•            After the acceptance of the Mountbatten Plan of June 3, 1947 for a partition of the country, the representatives of most of the other princely states took their seats in the Assembly.

•            The members of the Muslim League from the Indian Dominion also entered the Assembly.

•            The Indian Independence Act of 1947 made the following three changes in the position of the Assembly:

1.           The Assembly was made a fully sovereign body, which could frame any Constitution it pleased. The act empowered the Assembly to abrogate or alter any law made by the British Parliament in relation to India.

2.           The Assembly also became a legislative body. In other words, two separate functions were assigned to the Assembly, that is, making of a constitution for free India and enacting of ordinary laws for the country. These two tasks were to be performed on separate days.

•            Thus, the Assembly became the first Parliament of free India (Dominion Legislature).

•            Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body, it was chaired by G V  Mavlankar.

•            These two functions continued till November 26, 1949, when the task of making the Constitution was over.

3.           The Muslim League members (hailing from the areas included in the Pakistan) withdrew from the Constituent Assembly for India.

•            Consequently, the total strength of the Assembly came down to 299 as against 389 originally fixed under the 1946 Cabinet Mission Plan.

•            The strength of the Indian provinces (formerly British Provinces) was reduced           from 296 to 229 and those of the princely states from 93 to 70.

Other Functions Performed by the Constituent Assembly

•            In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly also performed the following functions:

1.           It ratified the India’s membership of the Commonwealth in May 1949.

2.           It adopted the national flag on July 22, 1947.

3.           It adopted the national anthem on January 24, 1950.

4.           It adopted the national song on January 24, 1950.

5.           It elected Dr Rajendra Prasad as the first President of India on January 24, 1950.

•            In all, the Constituent Assembly had 11 sessions over two years, 11 months and 18 days.

•            On January 24, 1950, the Constituent Assembly held its final session.

•            It, however, did not end, and continued as the provisional parliament of India from January 26, 1950 till the formation of new Parliament after the first general elections in 1951–52.

Committees of the Constituent Assembly.

•            The Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making.

•            Out of these, eight were major committees and the others were minor committees.

•            The names of these committees and their chairmen are given below:

Major Committees

1.           Union Powers Committee – Jawaharlal Nehru

2.           Union Constitution Committee – Jawaharlal Nehru

3.           Provincial Constitution Committee – Sardar Patel

4.           Drafting Committee – Dr. B.R. Ambedkar

5.           Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel.

6.           Rules of Procedure Committee – Dr. Rajendra Prasad

7.           States Committee (Committee tor Negotiating with States) – Jawaharlal Nehru

8.           Steering Committee – Dr. Rajendra Prasad

•            The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.

Enforcement of the Constitution

•            Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament, temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force on November 26, 1949 itself.

•            The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This day is referred to in the Constitution as the ‘date of its commencement’, and celebrated as the Republic Day.

•            January 26 was specifically chosen as the ‘date of commencement’ of the Constitution because of its historical importance. It was on this day in 1930 that Purna Swaraj day was celebrated, following the resolution of the Lahore Session (December 1929) of the INC.

Criticism of the Constituent Assembly

•            The critics have criticised the Constituent Assembly on various grounds. These are as follows:

1.           Not a Representative Body: The critics have argued that the Constituent Assembly was not a representative body as its members were not directly elected by the people of India on the basis of universal adult franchise.

2            Not a Sovereign Body: The critics maintained that the Constituent Assembly was not a sovereign body as it was created by the proposals of the British Government. Further, they said that the Assembly held its sessions with the permission of the British Government.

3.           Time Consuming: According to the critics, the Constituent Assembly took unduly long time to make the Constitution. They stated that the framers of the American Constitution took only four months to complete their work.

4.           Dominated by Congress: The critics charged that the Constituent Assembly was dominated by the Congress party. Granville Austin, a British Constitutional expert, remarked: ‘The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India’9.

5.           Lawyer-Politician Domination: It is also maintained by the critics that the Constituent Assembly was dominated by lawyers and politicians. They pointed out that other sections of the society were not sufficiently represented. This, to them, is the main reason for the bulkiness and complicated language of the Constitution.

6.           Dominated by Hindus: According to some critics, the Constituent Assembly was a Hindu dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston Churchill commented that the Constituent Assembly represented ‘only one major community in India’.

Salient Features of the Constitution

The salient features of the Constitution, as it stands today, are as follows:

Lengthiest Written Constitution

•            Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution.

•            The Constitution of India is the lengthiest of all the written constitutions of the world. It is a very comprehensive, elaborate and detailed document.

•            Originally (1949), the Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules

Drawn From Various Sources

•            The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act of 1935. Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World’.

•            The structural part of the Constitution is, to a large extent, derived from the Government of India Act of 1935. The philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions respectively. The political part of the Constitution (the principle of Cabinet Government and the relations between the executive and the legislature) have been largely drawn from the British Constitution.

•            The other provisions of the Constitution have been drawn from the constitutions of Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan, and so on.

Various Sources of our Constitution:

1.           Government of India Act of 1935      

•            Federal Scheme, Office of governor, Judiciary, Public Service Commissions, Emergency provisions and administrative details.

2.           British Constitution   

•            Parliamentary government, Rule of Law, legislative procedure, single citizenship, cabinet system, prerogative writs, parliamentary privileges and bicameralism.

3.           US Constitution           

•            Fundamental rights, independence of judiciary, judicial review, impeachment of the president, removal of Supreme Court and high court judges and post of vice-president.

4.           Irish Constitution        

•            Directive Principles of State Policy, nomination of mem-bers to Rajya Sabha and method of election of president.

5.           Canadian Constitution            

•            Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.

6.           Australian Constitution          

•            Concurrent List, freedom of trade, commerce and inter-course, and joint sitting of the two Houses of Parliament.

7.           Weimar Constitution of Germany     

•            Suspension of Fundamental Rights during Emergency.

8.           Soviet Constitution (USSR, now Russia)        

•            Fundamental duties and the ideal of justice (social, economic and political) in the Preamble.

9.           French Constitution

•            Republic and the ideas of liberty, equality and fraternity in the Preamble

10.        South African Constitution    

•            Procedure for amendment of the Constitution and election of members of Rajya Sabha.

11.        Japanese Constitution            

•            Procedure established by Law.

Blend of Rigidity and Flexibility

•            Constitutions are also classified into rigid and flexible. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution.

•            A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.

•            The Constitution of India is neither rigid nor flexible but a synthesis of both. Article 368 provides for two types of amendments:

(a)         Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.

(b)         Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.

Federal System with Unitary Bias

•            The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.

•            However, the Indian Constitution also contains a large number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, emergency provisions, and so on.

•            Moreover, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other hand, describes India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation.

•            Hence, the Indian Constitution has been variously described as ‘federal in form but unitary in spirit’, ‘quasi-federal’, ‘bargaining federalism’, ‘co-operative federalism’, ‘federation with a centralising tendency’, and so on.

Parliamentary Form of Government

•            The Constitution of India has opted for the British parliamentary System of Government rather than American Presidential System of Government. The parliamentary system is based on the principle of cooperation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.

•            The parliamentary system is also known as the ‘Westminster’ model of government, responsible government and cabinet government. The Constitution establishes the parliamentary system not only at the Centre but also in the states.

•            The features of parliamentary government in India are:

(a)         Presence of nominal and real executives

(b)         Majority party rule

(c)          Collective responsibility of the executive to the legislature

(d)         Membership of the ministers in the legislature

(e)         Leadership of the prime minister or the chief minister

(f)          Dissolution of the lower House (Lok Sabha or Assembly)

•            Even though the Indian Parliamentary System is largely based on the British pattern, there are some fundamental differences between the two. For example, the Indian Parliament is not a sovereign body like the British Parliament. Further, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy).

•            In a parliamentary system whether in India or Britain, the role of the Prime Minister has become so significant and crucial that the political scientists like to call it a ‘Prime Ministerial Government’.

Integrated and Independent Judiciary

•            The Indian Constitution establishes a judicial system that is integrated as well as independent.

•            The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there are high courts at the state level. Under a high court, there is a hierarchy of subordinate courts, that is, district courts and other lower courts. This single system of courts enforces both the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by the federal judiciary and the state laws are enforced by the state judiciary.

•            The Supreme Court is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and the guardian of the Constitution. Hence, the Constitution has made various provisions to ensure its independence—security of tenure of the judges, fixed service conditions for the judges, all the expenses of the Supreme Court charged on the Consolidated Fund of India, prohibition on discussion on the conduct of judges in the legislatures, ban on practice after retirement, power to punish for its contempt vested in the Supreme Court, separation of the judiciary from the executive, and so on.

Fundamental Rights

•            Part III of the Indian Constitution guarantees six fundamental rights to all the citizens:

(a)         Right to Equality (Articles 14-18),

(b)         Right to Freedom (Articles 19-22),

(c)          Right against Exploitation (Articles 23-24),

(d)         Right to Freedom of Religion (Articles 25-28),

(e)         Cultural and Educational Rights (Articles 29-30), and

(f)          Right to Constitutional Remedies (Article 32).

•            The Fundamental Rights are meant for promoting the idea of political democracy. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. They are justiciable in nature, that is, they are enforceable by the courts for their violation.

•            The aggrieved person can directly go to the Supreme Court which can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the restoration of his rights.

A Secular State

•            The Constitution of India stands for a secular state. Hence, it does not uphold any particular religion as the official religion of the Indian State.

•            The following provisions of the Constitution reveal the secular character of the Indian State:

(a)         The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.

(b)         The Preamble secures to all citizens of India liberty of belief, faith and worship.

(c)          The State shall not deny to any person equality before the law or equal protection of the laws (Article 14).

(e)         Equality of opportunity lor all citizens in matters of public employment (Article 16).

(f)          All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).

(g)         Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26).

(h)         No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27).

(i)          No religious instruction shall be provided in any educational institution maintained by the State (Article 28).

(j)          Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29).

(k)         All minorities shall have the right to establish and administer educational institutions of their choice (Article 30).

(l)          The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).

•            The Western concept of secularism connotes a complete separation between the religion (the church) and the state (the politics). This negative concept of secularism is inapplicable in the Indian situation where the society is multireligious. Hence, the Indian Constitution embodies the positive concept of secularism, i.e., giving equal respect to all religions or protecting all religions equally.

•            Moreover, the Constitution has also abolished the old system of communal representation13, that is, reservation of seats in the legislatures on the basis of religion. However, it provides for the temporary reservation of seats for the scheduled castes and scheduled tribes to ensure adequate representation to them.

Three-tier Government

•            Originally, the Indian Constitution, like any other federal constitution, provided for a dual polity and contained provisions with regard to the organisation and powers of the Centre and the states. Later, the 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government (i.e., local) which is not found in any other Constitution of the world.

•            The 73rd Amendment Act of 1992 gave constitutional recognition to the panchayats (rural local governments) by adding a new Part IX and a new Schedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992 gave constitutional. recognition to the municipalities (urban local governments) by adding a new Part IX-A and a new Schedule 12 to the Constitution.

Basic Structure of the Constitution

Emergence of the Basic Structure

•            The question whether Fundamental Rights can be amended by the Parliament under Article 368 came for consideration of the Supreme Court within a year of the Constitution coming into force. In the Shankari Prasad case (1951), the constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.

•            The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

•            But in the Golak Nath case (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.

•            The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.

•            The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24^th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.

•            However, in the Keshvananda Bharati case (1973), the Supreme Court overruled its judgement in the Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights.

•            At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means Parliament cannot abridge or takeway a Fundamental Right that forms part of Basic Structure of Constitution.

•            Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42^nd Amendment Act (1976).

•            This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

•            Again in the Waman Rao case (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the date of the judgement in the Keshvananda Bharati case).

Elements of the Basic Structure

•            The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

•            However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

•            From the various judgements, the following have emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:

1.           Supremacy of the Constitution

2.           Sovereign, democratic and republican nature of the Indian polity

3.           Secular character of the Constitution

4.           Separation of powers between the legislature, the executive and the judiciary

5.           Federal character of the Constitution

6.           Unity and integrity of the nation

7.           Welfare state (socio-economic justice)

8.           Judicial review

9.           Freedom and dignity of the individual

10.         Parliamentary system

11.         Rule of law

12.         Harmony and balance between Fundamental Rights and Directive Principles

13.         Principle of equality

14.        Free and Fair Elections

15.        Independence of Judiciary

16.         Limited power of Parliament to amend the Constitution

17.         Effective access to justice

18.         Principle of reasonableness

19.         Powers of the Supreme Court under Articles 32, 136, 141 and 142

Parliamentary System

•            The Constitution of India provides for a parliamentary form of government, both at the Centre and in the states.

•            Articles 74 and 75 deal with the parliamentary system at the Centre and Articles 163 and 164 in the states.

•            Modern democratic governments are classified into parliamentary and presidential on the basis of nature of relations between the executive and the legislative organs of the government.

•            The parliamentary system of government is the one in which the executive is responsible to the legislature for its policies and acts.

•            The presidential system of government, on the other hand, is one in which the executive is not responsible to the legislature for its policies and acts, and is constitutionally independent of the legislature in respect of its term of office.

•            The parliamentary government is also known as cabinet government or responsible government or Westminster model of government and is prevalent in Britain, Japan, Canada, India among others.

•            The presidential government, on the other hand, is also known as non-responsible or non-parliamentary or fixed executive system of government and is prevalent in USA, Brazil, Russia, Sri Lanka among others.

Features of Parliamentary Government

The features or principles of parliamentary government in India are:

1.           Nominal and Real Executives:

•            The President is the nominal executive (de jure executive or titular executive) while the Prime Minister is the real executive (de facto executive).

•            Thus, the President is head of the State, while the Prime Minister is head of the government.

•            Article 74 provides for a council of ministers headed by the Prime Minister to aid and advise the President in the exercise of his functions.

•            The advice so tendered is binding on the President.

2.           Majority Party Rule

•            The political party which secures majority seats in the Lok Sabha forms the government.

•            The leader of that party is appointed as the Prime Minister by the President; other ministers are appointed by the President on the advice of the prime minister.

•            However, when no single party gets the majority, a coalition of parties may be invited by the President to form the government.

3.           Collective Responsibility

•            This is the bedrock principle of parliamentary government. The ministers are collectively responsible to the Parliament in general and to the Lok Sabha in particular (Article 75).

•            They act as a team, and swim and sink together.

•            The principle of collective responsibility implies that the Lok Sabha can remove the ministry (i.e., council of ministers headed by the prime minister) from office by passing a vote of no confidence.

4.           Double Membership

•            The ministers are members of both the legislature and the executive.

•            This means that a person cannot be a minister without being a member of the Parliament.

•            The Constitution stipulates that a minister who is not a member of the Parliament for a period of six consecutive months ceases to be a minister.

5.           Dissolution of the Lower House

•            The lower house of the Parliament (Lok Sabha) can be dissolved by the President on recommendation of the Prime Minister.

•            In other words, the prime minister can advise the President to dissolve the Lok Sabha before the expiry of its term and hold fresh elections.

•            This means that the executive enjoys the right to get the legislature dissolved in a parliamentary system.

Features of Presidential Government

Unlike India, the USA has Presidential form of government. Its main features are:

(a)         The American President is both the head of the State and the head of government.

•            As the head of State, he occupies a ceremonial position.

•            As the head of government, he leads the executive organ of government.

(b)         The President is elected by an electoral college for a fixed tenure of four years.

•            He cannot be removed by the Congress except by impeachment for a grave unconstitutional act.

(c)          The President governs with the help of a cabinet or a smaller body called ‘Kitchen Cabinet’.

•            It is only an advisory body and consists of non-elected departmental secretaries.

•            They are selected and appointed by him, are responsible only to him, and can be removed by him any time.

(d)         The President and his secretaries are not responsible to the Congress for their acts.

•            They neither possess membership in the Congress nor attend its sessions.

(e)         The President cannot dissolve the House of Representatives—the lower house of the Congress.

Merits of the Parliamentary System

The parliamentary system of government has the following merits:

1.           Harmony Between Legislature and Executive

•            The greatest advantage of the parliamentary system is that it ensures harmonious relationship and cooperation between the legislative and executive organs of the government.

•            The executive is a part of the legislature and both are interdependent at work.

•            As a result, there is less scope for disputes and conflicts between the two organs.

2.           Responsible Government

•            By its very nature, the parliamentary system establishes a responsible government.

•            The ministers are responsible to the Parliament for all their acts of omission and commission.

•            The Parliament exercises control over the ministers through various devices like question hour, discussions, adjournment motion, no confidence motion, etc.

3.           Prevents Despotism

•            Under this system, the executive authority is vested in a group of individuals (council of ministers) and not in a single person.

•            This dispersal of authority checks the dictatorial tendencies of the executive.

•            Moreover, the executive is responsible to the Parliament and can be removed by a no-confidence motion.

4.           Ready Alternative Government

•            In case the ruling party loses its majority, the Head of the State can invite the opposition party to form the government.

•            This means an alternative government can be formed without fresh elections.

5.           Wide Representation

•            In a parliamentary system, the executive consists of a group of individuals (ministers) who are representatives of the people.

•            Hence, it is possible to provide representation to all sections and regions in the government.

•            The prime minister while selecting his ministers can take this factor into consideration.

Demerits of the Parliamentary System

In spite of the above merits, the parliamentary system suffers from the following demerits:

1.           Unstable Government

•            The parliamentary system does not provide a stable government. There is no guarantee that a government can survive its tenure.

•            The ministers depend on the mercy of the majority legislators for their continuity and survival in office.

•            A no-confidence motion or political defection or evils of multiparty coalition can make the government unstable.

2.           No Continuity of Policies

•            The parliamentary system is not conductive for the formulation and implementation of long-term policies.

•            This is due to the uncertainty of the tenure of the government. A change in the ruling party is usually followed by changes in the policies of the government.

3.           Dictatorship of the Cabinet

•            When the ruling party enjoys absolute majority in the Parliament, the cabinet becomes autocratic and exercises nearly unlimited powers.

4.           Against Separation of Powers

•            In the parliamentary system, the legislature and the executive are together and inseparable.

•            The cabinet acts as the leader of legislature as well as the executive.

5.           Government by Amateurs

•            The parliamentary system is not conductive to administrative efficiency as the ministers are not experts in their fields.

•            The Prime Minister has a limited choice in the selection of ministers; his choice is restricted to the members of Parliament alone and does not extend to external talent.

•            Moreover, the ministers devote most of their time to parliamentary work, cabinet meetings and party activities.

Comparing Parliamentary and Presidential Systems

Parliamentary System	Presidential System
Features:	Features:
Dual Executive Collective responsibility. Political homogeneity Double membership. Leadership of prime minister. Dissolution of Lower House. Fusion of powers.	Single Executive Non-responsibility Political homogeneity may not exist. Single membership Domination of president. No dissolution of Lower House. Separation of powers.
Merits: Harmony between legislature and executive. Responsible government. Prevents despotism. Wide representation.	Demerits: Conflict between legislature and executive. Non-responsible government. May lead to autocracy. Narrow representation.
Demerits: Unstable government. No continuity of policies. Against separation of powers Government by amateurs.	Merits: Stable government. Definiteness in policies. Based on separation of powers. Government by experts

Reasons for Adopting Parliamentary System

•            A plea was made in favour of US presidential system of government in the Constituent Assembly.

•            But, the founding fathers preferred the British parliamentary system due to the following reasons:

1.           Familiarity with the System

•            The Constitution-makers were somewhat familiar with the parliamentary system as it had been in operation in India during the British rule

2.           Preference to More Responsibility

•            The American system gives more stability but less responsibility. The British system, on the other hand, gives more responsibility but less stability.

•            The Draft Constitution in recommending the parliamentary system of Executive has preferred more responsibility to more stability.

3.           Need to Avoid Legislative Executive Conflicts

•            The framers of the Constitution wanted to avoid the conflicts between the legislature and the executive which are bound to occur in the presidential system prevalent in USA.

•            They thought that an infant democracy could not afford to take the risk of a perpetual cleavage, feud or conflict or threatened conflict between these two organs of the government.

4.           Nature of Indian Society

•            India is one of the most heterogeneous States and most complex plural societies in the world.

•            Hence, the Constitution-makers adopted the parliamentary system as it offers greater scope for giving representation to various section, interests and regions in the government.

Distinction between Indian and British Models

•            The parliamentary system of government in India is largely based on the British parliamentary system.

•            However, it never became a replica of the British system and differs in the following respects:

1.           India has a republican system in place of British monarchical system.

•            In other words, the Head of the State in India (that is, President) is elected, while the Head of the State in Britain (that is, King or Queen) enjoys a hereditary position.

2.           The British system is based on the doctrine of the sovereignty of Parliament, while the Parliament is not supreme in India and enjoys limited and restricted powers due to a written Constitution, federal system, judicial review and fundamental rights.

3.           In Britain, the prime minister should be a member of the Lower House (House of Commons) of the Parliament.

•            In India, the prime minister may be a member of any of the two Houses of Parliament.

4.           Usually, the members of Parliament alone are appointed as ministers in Britain.

•            In India, a person who is not a member of Parliament can also be appointed                minister, but for a maximum period of six months.

5.           Britain has the system of legal responsibility of the minister while India has no such system.

•            Unlike in Britain, the ministers in India are not required to countersign the official acts of the Head of the State.

6.           ‘Shadow cabinet’ is an unique institution of the British cabinet system It is formed by the opposition party to balance the ruling cabinet and to prepare its members for future ministerial office.

•            There is no such institution in India.

Amendments to Indian Constitution

THE    AMENDING    BODY

1. In most cases, Parliament has the sole authority to amend the Constitution.
2. However, in some special cases, an amendment passed by Parliament needs to be ratified by at least half State Legislative Assemblies.

SOURCE    OF    THE   AMENDING   POWER

Article 368(1):

• In exercise of its constituent power
  • Parliament may amend any provision of this Constitution
    • by addition, variation or repeal
  • in accordance with procedure laid down in this article

AMENDING    PROCEDURE

Article 368(2):

• Initiation of amendment:
  • by introduction of a Bill in either House of Parliament
• Passing of the Bill:
  • by each House
    • by a majority of total membership of that House and
    • by a majority of not less than 2/3^rd members present and voting
• Assent of President:
  • The Bill then shall be presented to the President
    • who shall give his assent

Ratification by State Legislatures

• An amendment requires to be ratified
  • by not less than one-half of State Legislatures
  • if it seeks to make any change in…
    • Articles 54, 55, 73, 162 and 241
    • provisions relating to Judiciary and distribution of legislative powers
    • any of the three Lists in the Seventh Schedule
    • representation of States in Parliament
    • provisions of Article 368

LIMITATIONS   ON   THE   AMENDING   POWER

Literal interpretation:

• Article 368 of the Constitution does not, in terms, put any limitation on the constituent power of Parliament, other than prescribing a special procedure of State-Assembly-ratification in some specified cases.

Judicial interpretation

• The Supreme Court of India came up with a novel limitation in 1973 while propounding the Basic Structure Doctrine in Kesavananda Bharati  v.  State of Kerala, a judgment delivered by a 13-Judge Bench by a 7:6 majority on 24^th April 1973

THE   THEORY   OF   BASIC   STRUCTURE

• Some provisions of the Constitution of India form its basic structure which are not amendable by Parliament by exercise of its constituent power under Article 368.
• The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

Question:

• What comprises the Basic Structure?

Ans:

• The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic forms of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The court, however, did not spell out in any exhaustive manner as to what the basic structure was except that some judges gave the abovesaid examples.

***************

Question:

• Whether Fundamental Rights could be taken away by Parliament by Constitutional Amendments?

Ans:

Stage 1

Shankari Prasad     v.      Union of India   [1951 SC]

• Supreme Court held that ‘Law’ in Art 13(3) did not include Amendments u/a 368. Thus, Parliament could amend Fundamental Rights.

Stage 2

Golak Nath     v.     State of Punjab   [1967 SC]

• Supreme Court reversed its decision of 1951 in Shankari Prasad case and held that Parliament could not take away or abridge FRs even by constitutional amendments

Stage 3

24^th Amendment, 1971

• Parliament added clause (4) in Article 13
  • “Nothing in this Article shall apply to amendments u/A 368”
• Parliament added clause (3) in Article 368
• “Nothing in Article 13 shall apply to amendments made under this Article”

Stage 4

Keshavanand Bharti     v.    State of Kerala   [1973 SC]

• Supreme Court upheld validity of the 24^th Amendment
• Supreme Court propounded the Basic Structure doctrine

Stage 5

42^nd Amendment, 1976

• Parliament added clause (4) to Article 368
  • “No amendment u/A 368 shall be called in question in any court on any ground”
• Parliament added clause (5) to Article 368
  • “There is no limitation whatsoever on amending power of Parliament”

Stage 6

Minerva Mills      v.      Union of India   1980

• Clauses (4) and (5) of Art 368  were struck down by the Supreme Court
• Clause (4) was held as violative
  • of the basic feature of ‘judicial review’
• Clause (5) was held as violative
  • of the basic feature of ‘limited amending power of the Parliament’

Current Legal Position

• Parliament’s amending power under article 368 is limited by the Basic Structure doctrine. 
• Parliament’s amending power is subject to judicial review.

**************

Amendments to Article 368 itself

• Originally, article 368 contained only the ‘procedure for amendment’
• Two clauses were added by the 24^th Amendment in 1971
  • These were held valid in Kesavananda Bharati case in 1973
• Two more clauses were added by the 42^nd Amendment in 1976
  • These were struck down by the Supreme Court
  • in Minerva Mills case in 1980 holding them as unconstitutional

**********

Important Constitutional Amendments

1^st Amendment, 1951

• Added Clause (4) to Article 15:
  • State was empowered to make special provisions for SEBCs
• Added Article 31A
  • saving laws providing for acquisition of estates, etc
• Added Article 31B and Ninth Schedule
  • to protect from  judicial review
  • land reform and other laws included in the Ninth Schedule

7^th Amendment, 1956

• Abolished existing classification of states
  • in four categories: Part A, B, C and D States
• and reorganised them
  • into 14 States and 6 Union Territories

9^th Amendment, 1960

• Enabled cession of Indian territory of Berubari Union to Pakistan
  • as per 1958 Land Treaty between India and Pakistan

10^th Amendment, 1961

• Incorporated Dadra & Nagar Haveli in Indian Union

12^th Amendment, 1962

• Incorporated Goa, Daman & Diu in Indian Union

14^th Amendment, 1962

• Incorporated Pondicherry in Indian Union

24^th Amendment, 1971

• Added Articles 13(4) and 368(3)
  • Parliament was empowered to amend any part of Constitution including FRs
• Made it compulsory for President
  • to give his assent to a Constitutional Amendment Bill

25^th Amendment, 1971

• Added Article 31C
  • Any law made to give effect to principles in Article 39 (b) or (c) cannot be challenged for violation of FRs u/a 14 and 19

26^th Amendment

• Abolished
  • privy purses and privileges of former rulers of Princely States

36^th Amendment, 1975

• Deleted Art 2A and Tenth Schedule
  • Sikkim was made a full-fledged State

42^nd Amendment, 1976

• Added “socialist”, “secular”, “integrity” to Preamble
• Added Fundamental Duties for citizens: Part IVA
• President made bound by advice of Council of Ministers: Art 74
• Provided for administrative and other tribunals: Part XIVA
• Scope of Article 31C expanded to include all Directive Principles
• Added three new Directive Principles: Art 39A, 43A, 48A
• Shifted 5 subjects from State List to Concurrent List:
  • Education, forests, protection of wild animals and birds, weights and measures, administration of justice

44^th Amendment, 1978

• Deleted Right to Property from Chapter III, made it a legal right under Art 300A
• Empowered President to send back Council’s advice for reconsideration, Proviso to Art 74
• Gave protection to publication of true reports of all legislatures, Art 361A
• Made several changes in Art 352
• Articles 20 and 21 taken beyond suspension power of President during Emergency, Art 359

52^nd Amendment, 1985

• Added Tenth Schedule [Anti-defection Law]

61^st Amendment, 1989

• Amendment of article 326
  • Reduced voting age from 21 years to 18 years for Lok Sabha and Legislative Assemblies

69^th Amendment, 1991

• Inserted 239AA
  • Accorded special status to the Union Territory of Delhi
  • Designated it as the National Capital Territory of Delhi
  • Provided for a Legislative Assembly and Council of Ministers

73^rd Amendment, 1992

• Inserted Part IX
  • Granted Constitutional status and protection to Panchayat Raj institutions
  • Added Eleventh Schedule, containing 29 functional items for Panchayats

74^th Amendment, 1992

• Inserted Part IXA
  • Granted Constitutional status and protection to urban local bodies
  • Added Twelfth Schedule containing 18 functional items for municipalities

77^th Amendment, 1995

• Inserted article 16(4A)
  • Provided for reservation in promotions in govt jobs for SCs and STs
  • Nullified Supreme Court ruling in Indira Sawhney case prohibiting reservation in promotions

81^st Amendment, 2000

• Inserted article 16(4B)
  • Empowered State to consider unfilled reserved vacancies of a year as a separate class to be filled up in succeeding years
  • Such vacancies are not to be considered for 50% ceiling on reservations

82^nd Amendment, 2000

• Amendment of article 335
  • Provided for relaxation in qualifying marks and lowering of standards of evaluation for promotions in favour of SCs and STs

86^th Amendment, 2002

• Inserted article 21A
  • Elementary education made a fundamental right
• Amended article 45
  • Provided for early childhood care and education of children upto 6 years
• A new Fundamental Duty added in article 51A
  • Parents or guardians to provide opportunities for education
  • to children between 6 and 14 years of age

88^th Amendment, 2003

• Inserted article 268A: Provided for imposition of service tax

89^th Amendment, 2003

• Amended article 338
  • Provided for a National Commission for Scheduled Castes
• Inserted article 338A
  • Provided for a separate National Commission for Scheduled Tribes

91^st  Amendment, 2003

• Inserted article 75(1A):
  • Number of ministers in Union Council of Ministers shall not exceed 15% of Lok Sabha strength
• Inserted article 75(1B):
  • A Member of Parliament disqualified for defection shall also be disqualified to be appointed as a Minister
• Inserted article 164(1A)and 164(1B)
  • Amended Tenth Schedule:
  • Exemption from disqualification on spilt by 1/3^rd members of a legislature party deleted

92^nd   Amendment, 2003

• Bodo, Dogri, Maithili and Santhali
  • were included in the Eighth Schedule

93^rd Amendment, 2005

• Added clause (5) to Article 15
  • Empowered State to make special provisions
    • for socially and educationally backward classes or SCs or STs
    • in admission to educational institutions, public or private, aided or unaided

97^th Amendment, 2011

• Amended article 19(1)(c):
  • Right to form co-operative societies made a Fundamental Right
• Inserted article 43B
  • State to promote formation and working of co-operative societies
• Inserted Part IXB
  • Provided for formation and working of co-operative societies

98^th Amendment, 2012

• Inserted article 371J
  • Provided for special provisions for Hyderabad-Karnataka region

99^th Amendment, 2014

• Amended articles 124, 217 and 222
• Added articles 124A, 124B and 124C
  • Provided for establishment of a National Judicial Appointments Commission
    • for appointment of Supreme Court and High Court judges and
    • for transfer of High Court judges

DLA  Note:

• This Amendment
  • has been struck down by the Supreme Court on 16.10.2015
  • holding it as unconstitutional on the ground that it strikes at the independence of judiciary which is a basic feature of our Constitution

100^th Amendment, 2015

• Amended the First Schedule
  • 111 Indian enclaves are transferred to Bangladesh in lieu of transfer of 51 Bangladeshi enclaves to India

DLA  Note:

• This Amendment gives effect to the India-Bangladesh Land Boundary Agreement of 1974

101st Amendment Act 2016

• Inserted article 246A
  • Parliament and State Legislatures have been empowered to make laws with respect to goods and services tax
  • Parliament has been empowered to make laws with respect to inter-state goods and services tax
• Deleted article 268A
  •  This article provided for levy of Service Tax
• Inserted article 279A
  • Provides for constitution of a Goods and Services Tax Council.

DLA  Note:

• This Amendment introduced goods and services tax in India

102nd Amendment Act 2018

• Inserts a new Article 338B
  • for establishment of a National Commission for Backward Classes for the socially and educationally backward classes
• Inserts a new Article 342A 
  • to provide that the President may specify the socially and educationally backward classes for a State or UT
• Inserts a new Clause (26C)  in Article 266
  • to define “socially and educationally backward classes”

DLA  Note:

• This Amendment gives constitutional status
  • to the National Commission for Backward Classes

103rd Amendment Act 2019

• Inserted clause (6) in Article 15:
  • Enables the State to make special provision for advancement of economically weaker sections of citizens
  • Enables the State to make special provision
    • for their admission to educational institutions including private educational institutions, whether aided or unaided by State
    • which in case of reservation would be in addition to the existing reservations and subject to a maximum of 10% of total
• Inserted clause (6) in Article 16:
  • Enables the State to make reservation of appointments
    • in favour of economically weaker sections of citizens other than classes mentioned in clause (4)
    • in addition to existing reservation and subject to a maximum of 10% of posts in each category

DLA  Note:

• The Constitution 103rd Amendment Act 2019:
  • enables reservation in educational institutions and public appointments to economically weaker sections of citizens
  • received assent of the President on 12 January 2019 and came into force on 14 January 2019

104th Amendment Act 2019

• Extends reservation to SCs and STs in Lok Sabha and State Legislative Assemblies under articles 330 and 332 for another 10 years
• Amends article 334: Reservation to SCs and STs shall expire after 80 years from the commencement of the Constitution, i.e. by 25 January 2030

DLA  Note:

• This amendment came into force on 25th January, 2020
• This amendment does not extend the term of nominations in Lok Sabha and State Legislative Assemblies for Anglo-Indian community
• Thus, there would be no such nominations for the Anglo-Indian community beyond 25th January 2020

President, Prime Minister and Council of Ministers

SUMMARY    OF    PROVISIONS

Executive power of the Union

Article 53                      

• Executive power of Union shall vest in President
  • to be exercised by him directly or through subordinate officers
  • to be exercised in accordance with this Constitution
•  Supreme command of defence forces shall vest in President

Election of President

Article 54                         

• Electoral college for election of President consists of
  • Elected members of both Houses of Parliament
  • Elected members of State Legislative Assemblies including Delhi and Puducherry

Manner of Election

Article 55                         

• Number of votes of MLA of a State = Population of State / total number of elected MLAs; further divided by 1000
• Number of votes of every MP =  Total number of votes of all MLAs / total number of elected MPs

• ‘Population’ in this Article means
  • Population as per 1971 census
• Population remains frozen at this level
  • till a census beyond 2026

Term of Office

Article 56                             
Normal term

• 5 years from the date of entering office

Shorter term

• Removal by impeachment
• Resignation, to be addressed to Vice-President, who shall communicate it to the Speaker of Lok Sabha

Eligibility for re-election

Article 57                      

• Re-election is possible any number of times

Qualifications

Article 58                      

• Should be a citizen of India
• Should be at least 35 years of age
• Should be qualified to be elected to Lok Sabha
• Should not hold any office of profit under govt or any authority under govt control

• Following offices are not considered as ‘office of profit’:
  • President, Vice President, Governor
  • Union Minister, Minister of a State

IMPEACHMENT

Article 61                        

Ground:

• Violation of Constitution

Procedure:

Step 1:    Preferring of charge

• By either House of Parliament
• A 14-days prior notice signed by not less than ¼th members to be given
• Charge is preferred by passing a resolution
  • with a special majority of not less than two-thirds of the total membership of the House

Step 2:   Investigation of charge

• By the other House, to be called the Investigating House

• If the investigating House passes a resolution
  • by the same special majority sustaining the charge
• the President stands removed

Election disputes

Article 71                        

• Disputes relating to the election of President and Vice-President
  • shall be inquired into and decided by the Supreme Court

Pardoning power of President

Article 72                      

• President has the power
  • to grant pardons or remissions of punishment
  • to suspend, remit or commute sentences
• of any person convicted
  • by a Court Martial
  • of any offence against a law on a matter within executive power of Union or
  • where the sentence is a sentence of death

Executive Power of Union

Article 73        

• Executive power of Union extends to:
  • all matters enumerated in the Union List
  • those matters in Concurrent List where expressly so provided by Constitution or Parliament
  • rights and authority by virtue of any treaty or agreement with other countries

Council of Ministers

Article 74                              

• Council of Ministers with PM at the head
  • to aid and advise the President
  • who shall act in accordance with such advice
• President may return the advice for reconsideration
  • but the subsequent advice is binding

Other provisions as to Ministers

Article 75

• Prime Minister is to be appointed by President: Other ministers are to be appointed by him on advice of PM

• Number of ministers shall not exceed 15% of total members of Lok Sabha

• An MP disqualified under Tenth Schedule is not to be appointed as Minister

• Ministers shall hold office during pleasure of President

• Council of Ministers is collectively responsible to Lok Sabha

• A minister who is not an MP for 6 month ceases to be a minister

******************

Provisions relating to the President, Prime Minister and Council Of Ministers explained in question-answer form:

SHORT-ANSWER   QUESTIONS:

Question 1:

• In which constitutional authority is the Executive power of the Union vested and how is it to be exercised?

Ans:

• Executive power of Union is vested in the President of India.
• He shall exercise this power either directly or through subordinate officers and in accordance with this Constitution

Question 2:

• Who elects the President of India?

Ans:

• The President of India is elected by elected members of both Houses of Parliament and elected members of State Legislative Assemblies including Delhi and Puducherry

Question 3:

• What weight does the vote of an MLA of a State carry?

Ans:

• An MLA of a State has a number of votes. This number equals the population of the State divided by total number of elected MLAs in that State; further divided by 1000

Question 4:

• What is the number of votes of an MP?

Ans:

• The number of votes of an MP equals total number of votes of all MLAs divided by total number of elected MPs

Question 5:

• How many times can a President be re-elected?

Ans:

• A President in India can be re-elected any number of times

Question 6:

• Which offices are excluded from the ambit of the term ‘office of profit’?

Ans:

• The following offices are not considered as ‘office of profit’:

• President, Vice President, Governor
• Union Minister, Minister of a State

Question 7:

• Who decides disputes relating to the election of President?

Ans:

• Disputes relating to the election of the President shall be inquired into and decided by the Supreme Court

Question 8:

• How shall the President exercise his powers?

Ans:

• The President shall exercise his powers with the aid and advice of the Council of Ministers with the Prime Minister at the head. He shall act in accordance with such advice.
• However, the President may return the advice for reconsideration once, but the subsequent advice is binding

Question 9:

• What is the maximum number of ministers in the Union Council of Ministers?

Ans:

• 15% of the total members of Lok Sabha

Question 10:

• Who can be appointed a minister in the Union Council of Ministers?

Ans:

• Any person who has not been disqualified as a Member of Parliament under the Tenth Schedule can be appointed a minister.
• He shall however cease to be a minister if he is not a Member of Parliament for a continuous period of six months.

Question 11:

• What authority can remove the Union Council of Ministers and how?

Ans:

• The Union Council of Ministers can be removed by the House of People by passing a no-confidence motion against the Council.

Question 12:

• What is meant by the collective responsibility of the Union Council of Ministers to the Lok Sabha?

Ans:

• The Union Council of Ministers is collectively responsible to the Lok Sabha. It can be removed as a whole by the House of People by passing a no-confidence motion.

LONG –ANSWER   QUESTIONS:

Question 13:

• What are the qualifications for a person to contest the election of the President?

Ans:

• He should be a citizen of India
• He should be at least 35 years of age
• He should be qualified to be elected to Lok Sabha
• He should not hold any office of profit under govt or any authority under govt control

Question 14:

• In what cases can the President grant pardon?

Ans:

• The President can grant pardon to any person
  • convicted by a Court Martial or
  • convicted of any offence against a law on a matter within executive power of Union or
  • sentenced to a sentence of death

Question 15:

• What is the effect of a Presidential pardon?

Ans:

• The grant of pardon wipes off the guilt of the convict and brings him to the original position of innocence as if he had never committed the offence for which he was convicted. 
• It affects both the punishment prescribed for the offence and the guilt of the offender.

Question 16:

• Can the power under Article 72 be exercised by the President on his own or has it to be exercised on the advice of the Central Government?

Ans:

• A Constitutional Bench of the Supreme Court held in Maru Ram v. Union of India that the power under Article 72 is to be exercised on the advice of the Central Government and not by the President on his own, and that the advice of the Government binds the head of the Republic.

Question 17:

• Can there be a judicial review of the clemency powers of the President?

Ans:

• A limited judicial review of exercise of clemency powers is available to the Supreme Court and High Courts as held by the Supreme Court in Epuru Sudhakar v. Govt. of Andhra Pradesh.  

Question 18:

• What are the grounds on which the clemency powers can be challenged?

Ans:

• Granting of clemency by the President can be challenged on the following grounds:
  • The order has been passed without application of mind.
  • The order is mala fide.
  • The order has been passed on extraneous or wholly irrelevant considerations.
  • Relevant material has been kept out of consideration.
  • The order suffers from arbitrariness.

Question 19:

• What matters are included in the Executive power of the Union?

Ans:

• Matters included in the executive power of the Union:
  • all matters enumerated in the Union List
  • those matters in Concurrent List which are expressly so included by the Constitution or Parliament
  • rights and authority by virtue of any treaty or agreement with other countries

VERY  LONG-ANSWER   QUESTIONS

Question 20:

• What is the procedure for impeachment of the President ?

Ans:

• The procedure for impeachment of the President:

Step 1:    Preferring of charge

• The charge can be preferred by either House of Parliament
• A 14-days prior notice signed by not less than ¼th members of that House has to be given
• For preferring the charge a resolution has to be passed by this House with a special majority of not less than two-thirds of its total membership 

Step 2:   Investigation of charge

• The charge preferred by the first House shall be investigated by the other House, to be called the Investigating House
• If the investigating House passes a resolution by the same special majority sustaining the charge, the President shall stand removed

Question 21:

• State with reasons weather it is essential to have a Council of Ministers under Article 74(1) even at a time when the House of the People has been dissolved or its term has expired?

Ans:

• yes

Reasons as given by the Supreme Court in U. N. R. Rao v. Indira Gandhi  [1971] :

• Article 75(3) brings into existence what is usually called “Responsible Government”. The Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved, Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People.
• On the other hand, Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers.
• We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2).
• In the context, therefore, Article 75(3) only applies when the House of People does not stand dissolved or prorogued.

Question 22:

• State with reasons weather a person who is not a member of either House of Parliament can be appointed as the Prime Minister of India?

Ans:

• yes

Reasons as given by the Supreme Court in S.P. Anand v. H.D. Deve Gowda  [1997]:

• On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired to permit a person who was not a member of either House of Parliament to be appointed a Minister.
• The person who is appointed the Prime Minister is chosen by the elected representatives of the people and can occupy the position only if he enjoys the confidence of the majority of the elected representatives in the Lok Sabha.
• Even when a Prime Minister is not a member of either House of Parliament, once he is appointed he becomes answerable to the House and so also his Ministers and the principle of collective responsibility governs the democratic process.

Parliament of India

Constitution of Parliament [Article 79]

• Parliament consists of
  • the President, the House of People and the Council of States

Composition of Council of States [Article 80]

• the Council of States shall consist of
  • 12 members to be nominated by the President
  • a maximum of 238 members representing States and UTs

• Allocation of seats in the Rajya Sabha to States and UTs
  • is specified in the Fourth Schedule

DLA Note:

• The present number of Rajya Sabha members from States and UTs as per the Fourth Schedule is 233
• Total strength: 233 from States and UTs plus 12 nominated

Requirement for nomination:

• Special knowledge or practical experience in
  • Literature, Science, Art and Social service

• Representatives of a State in the Rajya Sabha are to be elected
  • by elected members of the Legislative Assembly

Composition of Lok Sabha  [Article 81]

• the Lok Sabha shall consist of
  • not more than 530 members chosen by direct election from territorial constituencies in States
  • not more than 20 members to represent UTs

• Number of seats to be allocated to each State is to be in proportion to its population: Population here is as determined by the 1971 census
• Each State is to be divided into territorial constituencies: Each constituency is to have practically the same population: Population here is as determined by the  2001 census

DLA Note:

• The present number ofLok Sabha members from States and UTs is 543
• Total strength: 543 from States and UTs plus 2 nominated from the Anglo-Indian community

Readjustment after each census  [Article 82]

• Allocation of seats to States and
• division of each State into territorial constituencies
  • is to be readjusted after every census
  • by an authority determined by Parliament [Delimitation Commission]

• No readjustment is now required
  • till the first census taken after 2026

Duration of Houses  [Article 83]

Council of States:

• Not subject to dissolution
• 1/3^rd of its members shall retire every second year

House of People:

• Normal term:  5 years: Expiration of 5 years shall operate as dissolution
• Can be dissolved sooner than 5 years by the President
• During Emergency: term may be extended by Parliament by 1 year at a time

Extension of Lok Sabha term

• Term of the 5th Lok Sabha was extended by 1 year, from March 1976 to March 1977

Qualification for members [Article 84]

• Should be a citizen of India
• Should make an oath before the Election Commission
• Should not be less than 30 years for RS and 25 years for LS
• Should possess other qualifications as prescribed by Parliament

Sessions of Parliament [Article 85]

• President to summon Houses from time to time: 6 months shall not intervene between the last and first sittings of two sessions
• President to prorogue Houses from time to time
• President may dissolve the Lok Sabha                  

Right to address and send messages to Houses [Article 86]

• President has the right
  • to address either House of Parliament
• President has the right
  • to send messages to either House, relating to a pending bill, or otherwise

Special address by President [Article 87]

• President shall address both Houses assembled together
  • at the start of first session after each general election to the Lok Sabha
  • at the start of first session of each calendar year

Rights of Ministers [Article 88]

• Every Minister
  • has the right to speak in and take part in proceedings of either House
  • but is not entitled to vote
• Attorney General of India also has similar right

Officers of Council of States [Article 89]

• Chairman:
  • Vice-President of India, ex-officio
• Deputy Chairman:
  • to be chosen by the Council from amongst its members

Removal of Dy. Chairman  [Article 90]

•  Removal of Deputy Chairman:
  • by a resolution of the Council by a majority of all the then members of the Council

Officers of Lok Sabha              

• Lok Sabha shall choose
  • one of its members as Speaker and another member as Dy. Speaker

• Removal of Speaker/Dy. Speaker:
  • by a resolution of the House passed by a majority of all the then members

On dissolution of the House:

• Speaker to continue in his office
  • until immediately before the first meeting of the new House

Voting in Houses [Article 100]

• Except when otherwise provided:
• All questions in either House or in a joint sitting to be determined
  • by majority of votes of members present and voting
  • other than the Speaker or the person acting as Speaker or Chairman

Casting Vote

• Chairman or Speaker or person acting as such
  • shall not vote in the first instance
  • but shall exercise a casting vote in case of equality of votes

Validity of Proceedings

• Proceedings in Parliament to remain valid
  • even when discovered subsequently that a person not entitled to sit or vote had done so

Quorum:

• 1/10^th of total number of members

Vacation of seats  [Article 101]

• No person shall be a member of both Houses
• If a person is chosen a member of both Houses:
  • he shall vacate his seat in one House

• No person shall be a member of Parliament and state legislature
• If a person is chosen a member of both:
  • his seat in Parliament shall become vacant unless he resigns his seat in state legislature within a period specified in Rules [14 days]

• A seat in either House becomes vacant when
  • a member is disqualified under Article 102
  • he resigns his seat and resignation is accepted by Chairman/Speaker
•  Chairman/Speaker shall not accept resignation
  • if satisfied that it is not voluntary or genuine

• House may declare a seat vacant
  • if a member is absent without permission of the House
  • for a period of 60 days

Disqualifications for membership   [Article 102]

• A person shall be disqualified
  • for being chosen as and for being a member of either House
    • if he holds any office of profit under government
    • if he is of unsound mind, so declared by a court
    • if he is an undischarged insolvent
    • if he is not a citizen of India
    • if he is so disqualified under a law made by Parliament
• Disqualification shall not attach
  • to offices so declared by Parliament and
  • to office of a minister

• A person shall be disqualified for being a member of either House
  • if he is disqualified under the Tenth Schedule

Decision on disqualifications  [Article 103]

• A question of disqualification under Art 102(1) is to be referred to President: His decision shall be final

• Before his decision: President shall obtain opinion of Election Commission
• President shall act according to such opinion

Privileges & Immunities   [Article 105]

• There shall be freedom of speech in Parliament
  • subject to rules and standing orders
  • subject to this Constitution [Ref Art 121]

• No MP shall be liable to any proceedings in any court
  • for anything said by him or any vote given by him in Parliament

• Other powers, privileges and immunities
  • shall be defined by Parliament by law
• Until so defined:
  • these shall be the same as those of British House of Commons

• Persons specified in Art 88 [Ministers, Attorney General]
  • also enjoy similar privileges and immunities

Additional information from DLA:            

Other privileges, not specified in Constitution:

• A Member of Parliament cannot be arrested in civil cases
  • during the session of Parliament
  • 40 days before the beginning of a session
  • 40 days after the end of a session

• A Member of Parliament cannot be compelled
  • to appear as witness in a court when Parliament is in session

Power to punish for contempt

• Parliament can punish members as well as outsiders
  • for breach of its privileges or for its contempt

Salaries of MPs [Article 106]

• Salaries and allowances of MPs
  • are to be determined by Parliament by law

Additional information

• Salaries and allowances of MPs were revised in 2018:
  • Salary  :   Rs. 100,000 p.m.
  • constituency allowance   :   Rs. 70,000 p.m.
  • daily allowance while attending Parliament   :   Rs. 2,000
  • office expense allowance   :   Rs. 60,000 p.m.

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Types of Bills:

Ordinary Bills             Money Bills             Other Financial Bills

Introduction of Bills

Article 107

• Ordinary Bills may originate in either House
• Money Bills and Other Financial Bills can originate only in the Lok Sabha

Passing of Bills

• Ordinary Bills and Other Financial Bills need to be passed by both Houses
• Money Bills need to be passed by only the Lok Sabha; the Rajya Sabha may only make recommendations

Lapsing of bills

• A Bill shall lapse on dissolution of Lok Sabha if
  • it is pending in Lok Sabha or
  • it is pending in Rajya Sabha, having been passed by LS

Joint sittings  [Article 108]

• Conditions precedent for convening joint sitting of the Houses of Parliament:
  • A Bill passed by one House is rejected by the other or
  • A Bill is passed by one House, the other House makes  amendments to the Bill, the first  House does not agree to these amendments  or
  • A Bill passed by one House is pending with the other House for more than 6 months
•  This clause shall not apply to a Money Bill

Steps to convene a joint sitting

Step 1:

• President notifies his intention to summon the Houses for a joint sitting

Effect

• Neither House shall proceed with the bill thereafter
• Next step can follow even if the Lok Sabha is dissolved thereafter

Step 2:

• President summons the Houses for  a joint  sitting

Procedure in joint sitting:

• The Bill is to be passed by a majority of
  • total number of members of both Houses present and voting

DLA Note:

• Joint sittings have so far been held only on 3 occasions:
  • in 1961, 1978 and 2002

Special procedure for passing of Money Bills  [Article 109]

• Rajya Sabha can only make recommendations after the Bill is passed by the Lok Sabha
• Lok Sabha may or may not accept these recommendations
• Rajya Sabha has to return the Bill within 14 days
• If not so returned: the Bill is deemed to have been passed by both Houses

Definition of Money Bills  [Article 110]

• A Bill is a Money Bill
• if it contains any of the following provisions only:
  • Imposition, abolition, alteration of any tax
  • Regulation of borrowing of money by Govt of India
  • Consolidated Fund of India: custody, payment in, withdrawal from
  • Appropriation of money out of CFI
  • Declaration of expenditure as charged upon CFI

• A Bill is not a Money Bill
• if it provides for
  • Imposition or abolition of tax by any local authority
  • Imposition of fines
  • Payment of fees for licenses
  • Payment of fees for services

Speaker’s powers in respect of Money Bills

• Speaker Lok Sabha shall decide whether a Bill is a Money Bill or not
• Speaker’s decision shall be final
• Certificate of Speaker shall be endorsed on every Money Bill before sending it to Rajya Sabha or President

Assent to Bills [Article 111]

• Bill passed by both Houses shall be sent to the President
• President shall declare that he either gives his assents or withholds his assent

• President may also return a Bill for reconsideration, if it is not a Money Bill
• President shall not withhold his assent, if the Bill is passed again

Other Financial Bills [Article 117]

• President’s recommendation is required
  • for introducing a bill containing any matter specified in Article 110 [Definition of Money Bill]

DLA Note:

Difference between a Money Bill and an Other Financial Bill:

• A Money Bill contains ONLY those matters which are specified in Article 110 and no other matter
• An Other Financial Bill contains some matter specified in Article 110 and also some other matter not specified in Article 110

Rules of Procedure  [Article 118]

• Each House to make its own rules for regulating its procedure
• Rules of procedure for joint sittings shall be made by the President

• A joint sitting of the two Houses shall be presided by the Speaker
• In his absence, by a person determined by the rules of procedure

Language in Parliament  [Article  120]

• Business in Parliament shall be transacted in Hindi or in English

• Presiding officer may permit a member
  • to address House in his mother tongue
  • if he cannot adequately express in Hindi or English

• “English” shall be omitted after expiration of 15 years
  • unless Parliament otherwise provides by law

DLA Note:

• Parliament passed the Official Languages Act 1963 under this article which provides as under:
• the English language may, from the 26th day of Januray 1965, continue to be used in addition to Hindi, for the transaction of business in Parliament:

Restriction on discussion  [Article 121]

• There shall be no discussion in Parliament
  • on conduct of any SC judge or HC judge on discharge of his duties
  • except upon a motion for his removal

Bar on Courts  [Article 122]

• Validity of any proceedings in Parliament shall not to be called in question
  • on the ground of any irregularity of procedure

• An officer or member of Parliament empowered to regulate procedure or conduct of business
  • is not to be subject to jurisdiction of any court in exercise of these powers

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