India Polity Notes @Jitendra

7/27/2019 India Polity Notes @Jitendra

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Constituent Assembly - constituted in Nov 1946 as per cabinet mission plan -first parliament of free India

First advocated by Sh. M.N.Roy in 1934, demanded by INC in 1935, principal ly accepted by British Govt in 1940 (August Offer) >> Cripps Proposal (rejected

by Muslim League) >> Cabinet Mission. Dr. BR Ambedkar was chairman of Drafting Committee .

Two functions : Make consti tution & make ordinary laws (both on separate day)

Strength = 389 ((296 British India + 93 Princely states ) - population basis. On withdrawal of members of Pakistan - 229 British India +70 PS

British provinces - Seats to be further allocated betweenall communities in prop to population. Re presentative of each community is to be indirectly

elected by members of that community in the provincial legislative assembly by prop rep by mean of single transf vote. (MLAs were appointed un der

GOI Act, 1935 on basis of limited franchise on basis of tax, prop erty, & education)

Princely states - Nominated by head of states.

Composition :

Objective Resolution : read by JL Nehru on Dec 13, 1946 - Book Pg 2.2 - Its modified version forms the Preamble of the Constitution.

Criticism : One party body, Lawyer-pol itician domination, Hindu domination

26th November 1949 - Constitution was passed . But the constitution come into force on 26th January 1950 (bcz on this day Lahore session of INC adopted

resolution of Purna Swaraj)

Salient features

Articles Parts Schedules

395 22 8

450 24 12

Secular character of Indian Constitution - Read pg 3.5

Imp articles, schedules & parts - pg 3.7 to 3.11

Preamble of India - as amended by 42nd Act - is a part of Constitution - SC IN Kesavananda Bharati case

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST (Democratic socialism and not

communistic socialism i.e. mixed economy)SECULAR (Positive secularism) DEMOCRATIC REPUBLIC (Head of state is elected not monarchy and

all public offices are open to all) and to secure to all i ts citizens:

JUSTICE (taken from Russian revolution), social, economic and political;LIBERTY (taken from French revolution), of thought, expression, belief, faith and worship;

EQUALITY (taken from French revolution)of s tatus and of opportunity;

and to promote among them all

FRATERNITY (taken from French revolution) assuring the dignity of the individual and the unity and integrityof the Nation

Devices of Direct Democracy - Refere ndum, Initi ative, Recall and Plebiscite (Read Pg. 4.6)

Constitution03 July 2013

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Articles and brief provisions Page 1


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They arejusticiable i.e. if these rights are violated by the government or anyone else, the individual has the right to approach the Supreme Court

or High Courts for the protection of his/her Fundamental Rights.

They are not absolute but qualified - balance between individual liberty and social control.

Against State action v/s action of all -state & pvt individual. If rights are available against state only and is violated by pvt individual, there are no

constitutional remedies but only ordinary legal remedies.

Can be suspende d in national emergency except article 21-22. Art 19 onl y in case of EXTERNAL AGGRESSION.

Features

Article 12 defines State for Part- III. e.g. IOC will also fal l within this definition I.E. ALL INSTRUMENTS OF STATE

Art 13 - All inconsistent law (incl ordinances, regulations , customs etc) -V oid by Doctrine ofJudicial review i.e. on SC (Art 32) & HC (Art 226).

Constitutional amendment not a law. Kesavananda Bharati case (1973) - Principle of basi c structure.

Sl. No. Fundamental

Right

Article Diff Remarks

1 Right to Equality 14-18 4 Article Provision Exceptions / Remarks

14 Equal ity before law and equal

protection before laws

Both Immunity to P, G, MP, MLA, Diplomats, Ambassadors,

UN

Article 31-C an e xception

15

Religion, Race, Caste, Sex,

Place of Birth, RESIDENCE

(Against state)

Prohibition of discrimination on

ground ofONLY:

1.

No Citizen shall be subjected to

any disability, liability,

restriction or condition on

grounds ONLY of RRCSP with

regard to :

2.

Access to shops, public

restaurants, hotels and

places of public

entertainment

the use of wells, tanks,

bathing ghats, roads and

places of public resort

maintained wholly or

partly by State funds or

dedicated to the use of

General public. (Against

BOTH pvt individuals and

STATE)

Citizens State can make special provisions for :

Women and children

Advancement of any SOCIALLY AND EDUCATIONALLY

BACKWARD classes of citizens or for SC and ST.

(General)

Specific - for their admission to educational institutions

incl pvt institutions whether or not aided by state

except minority educational institutions. (93rd CA Act,

2005)

(Creamy Layer -of parents - 6 lacs)

16 Equal opp in public e mp (No

discrimination on ground of ONLY

Religion, Race, Caste, Sex, Place of

Birth, Place of Residence)

Citizens Parliament can prescribe residence as a condition for

certain employment

Certain religious office for particular religion only

16(4) : State can provide for reservation of

appointments or posts in favor of any backward classthat is not adequately represented in the state se rvices.

(Non creamy layer only, max 50% in a year - SC in

Mandal case, 1992). National Commission for backwardclasses - statutory body - consider inclusion & exclusion

of castes for reservation.

16(4A) : State is empowered to provide for

reservations in promotion, with consequential seniority

in favor of SC/ ST that are not adequately represented

in the state services.

(117th Amendment Bill, 2012) : Below

16(4B) : State is empowered to consider the unfille d

reserved vacancies of a year as a separate class to be

filled in succeeding years and not to be combined

within ceiling of 50%. It e nds 50% ceiling on backlogvacancies.

17 Abol ition of Untouchabi li ty

(Madras HC- This article refers to

the social disabilities imposed on

Both Protection of Civil Rights Act, 1955 - Civil Rights mean any

right accruing to a person by aboli tion of untouchability

by Article 17. A person convicted of offense i s disqualified

Fundamental Rights Part- III, Article 12-35, Derived from USA (Bill

of Rights) - EF ER CCR24 March 2013

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certain classes of persons by

reason of their birth in certaincastes).

for election as MP / MLA.

18 Abolition of Titles Both SC - A rticle prohibits only heredity titles of nobility. Merit

titles are valid but do not use it as pref ix or suffixes.

2 Right to

Freedom

19-22 3 19 Fre edom of spe ech and expre ssion

To assemble peacefully and without arms

To form associations or unions

To move freely throughout the territory of India

To reside and settle in any part of territory of India

To practice any profession / occupation /trade/

business

Citizens Article 19 can be suspended only in

case of extenal emergency.

Does not include right to strike/

lockout and can be controlled by app

industrial law

20 Protection in Respect of Conviction for An Offence -

only for conviction & not against trials

Both No ex-post-facto law (only for

criminal laws and not for civil or tax

laws)(NA in case of preventive

detention)

No double jeopardy( only in court or

tribunal)

No self incrimination (only for

criminal laws and not for civil laws)

21 Protection of Life and Personal Liberty except

according to procedure established by law - SC in

Menaka case - for both against arbitrary executive

and legislative actions - thus "due process of law" as

contained in American Constitution. Read pg 7.13

Both Cannot be suspended in national

emergency.

21A Right to free and compulsory education betwn 6-14

yrs

22 Prevention against Arbitrary Arrest and Detention -

Pg 7.14

Both Cannot be suspended in national

emergency.

3 Right against

exploitation

23-24 1 23 Prohibition of all forms of forced labour as well as

traffic in human beings

Both

24 Prohibition of employment of children

in any factory etc

Both

4 Right to

freedom of

religion

25-28 3

5 Cultural and

educational

rights

29-30 1 Only available to Citizens

6 Right to

Property

31 Deleted by C.A. 44th in 1978 - made a right under Article 300-A in part XII.

7 Right to

Constitutional

Remedies

32 0

Article 16(4A) :

The Supreme Court judgments in the Nagaraj case, 2006 and subsequent cases that have a bearing on reservation i n promotion for the S.Cs and S.Ts have

held that,

The right to equality under Article 16(1) is the fundamental right of every citizen; but Clauses (4) and (4A) of Article 16 d o not confer a fundamental

right on the classes for whom reservation is provided or is sought to be provided. It is also discretionary and the S.Cs and S.Ts cannot claim

reservation in promotion as a fundamental right as it is a matter of the states discretion.

a.

Compelling reasons;

Backwardness;

Inadequate representation in the se rvices.

If the state considers it necessary to provide reservation, including reservation in promotion, it must show by data that the followi ng conditions for

exercising the discretion exist:

b.

Exclusion of creamy layer;

Efficiency of administration required by Article 335 should not be compromised;

50 per cent limit shoul d not be breached; and

Reservation should not be extended indefinitely.

The court has also laid down the following conditions:c.

To nullify judgment, Art 16 (4A) is to be amended by CA 117th Amendment Bill, 2012 :

(4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and

article 342, respective ly, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for

reservation in matters of promotions, with consequential seniority, to any class or classe s of posts in the services under the State in favour of the

Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in



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the services of the State..

Article 19 - reasonable restrictions

Freedom of : Sovereignty &

integrity of

India

Security of

the state

Friendly relations

with foreign

states

Public

Order

Decency or

morality

Contempt

of court

Defamati

on

Incitemen

t

to an

offence

Interest of the

General Public

Interest

of ST

Speech &

expression

Y Y Y Y Y Y Y Y

Assembly Y Y

Association Y Y Y

Movement Y Y

Residence Y Y

Profession Y

Preventive Detention -Article 22

Legislative power : Divided between P and SL.

P - exclusive authority on - DEFENSE, FOREIGN AFFAIRS, SECURITY OF INDIA

P & SL - concurrent power - SECURITY OF STATE , MAINTENANCE OF PUBLIC ORDER. MAINTENANCE OF ESSENTIAL SUPPLY/ SERVICES

Protections available to DETENU :

Max 3 months detention , after that only on basis of report of advisory Board which shows sufficient cause for extension. The Board is to

constitute judges of HC.

a.

Ground of detention is to be communicated except when matter is of publ ic interestb.

Opp to make representation against detention order.c.

Parliament is empowered to specify :

the circumstance and the classes of cases in which a person can be de tained for > 3 months without advisory board report.a.

max period of detention in any classes of casesb.

procedure to be followed by advisory Board for enquiryc.



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Legislative Relations

Territorial Extent of legislation -1.

The Parliament can only make EXTRA-TERRITORIAL legis lation. Eg. Laws of parliament are also applicable on the property in nay part of the

world of Indian Citizens.

However, laws of parliament are not applicable in following cases :

4 UT - A & N island, Lakshadweep, D & N haveli , D & Diu - President can make regulation for peace, progress & good governance. This

regulation can repeal or amend any parliament Act.

Assam - Governor may direct an Act of Parliament may not apply or apply with modification to TRIBAL AREAS of Assam

Meghalaya, Tripura & Mizoram - President may direct an Act of Parliament may not apply or apply with modification to TRIBAL AREAS

of these states

Governor may direct an Act of Parliament may not apply or apply with modification to a SCHEDULED AREA in the state.

Legislative Subjects2.

Education

Forests

Protection of wild animals and birds

Weight and measures

Administration of justice; constitution and organisation of al l courts except HC & SC

42nd amendment - 5 subjects t/f from state list to concurrent list -

Union List > Concurrent List > State List

Concurrent List : Union Law > State Law (Exception : If the state law has been reserved for P and has recd his ass ent, then the state law

prevails in that state. However, Union law can override by subsequent legislation)

Any law on concurrent subject is to be executed by states even if law is enacted by parliament except where the constitution or the

parliament directs otherwise.

In case of overlapping :

Parliament legislation in state field3.

RS passes resolution by 2/3rd majority of members present & votingthat it is in national interest. Such resolution validity is 1 yr , renew it

any no of times for 1 yr.

Law become inoperative on expiry of 6 mnths after resolutionceases . State can also frame law but union law will prevail in

case of inconsistency.

National Emergency Law become inoperative on expiry of 6 mnths after emergency

ceases . State can also frame law but union law will prevail in

case of inconsistency.

MLA of 2 or more state make request, then union law will apply to

these states only. Other states may later adopt.

MLA CANNOT make law on that subject (surrender of power)

To implement international agreement

During President Rule Such law remain in force even after P rule. It has to be repealed

or altered or re-enacted by MLAs.

Centre control over State legislation4.

Bil ls on certain matters enumerated in state list can only be introduced in SL only with the previous sanction of P.a.

P can direct the states to reserve money and other financial bil ls passed by SL for his consideration during FINANCIAL emergency.b.

Administrative Relations

The executive power of the state is to be exercised in such a way :

As to ensure compliance with the laws made by the parliamenta.

As not to impede or prejudice the exercis e of executive power of the centre in the state.b.

The centre can give such directions as may be necessary or this purpose.

Article 365 : State fail to comply - P can hold that situation has arisen in which govt of state cannot be carried on in accordance with the

constitution i.e. President Rule. Read Pg 13.5

INTER GOVT DELEGATION OF EXECUTIVE FUNCTIONS -with or without condit ions

1 With Consent Centre >> State By President

Centre-State Relations24 June 2013

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2 With Consent State >> Centre By Governor

3 Without Consent Centre >> State By Parliament

Relations during emergencies

Centre can give executive directions to state on ANY matter.

President Rule : P assume entire functions of state govt and governor

Financial emergency : P can direct reduction in salaries of person serving in the state and HC judges

Financial Relations

State can impose tax in respect of any water or electric ity stored, generated. Consumed, distributed or sold by any authority established by

parliament for regulating or developing any inter-state river or river valley. But such law should be reserved for the P consideration and his

assent.

Levied Collected Sharing

1 Stamp Duty

Ex duty on medicinal & toilet prep

Union State Assigned to that s tate

2 Service tax Union State Appropriated between Union & state as determined by parliament

3 CST Union State Assigned to concerned states as per principle laid down by parliament

4 Other Centre Centre Determined by President on recommendation of Finance commission

5 Surcharge on 3 & 4 above

Centre6 State State State

Grants:

Statutory Grants : To state which are in need of financial ass istance and not to every state . Charged to CFI . There can be specific grants

als o. On recommendation ofFinance Commission.

Discretionary Grants : On recommendation ofPlanning commission.

Effects of emergencies:

National Emergency : P can modify revenue distribution. Effect till end of FY in which emergency ceases.

Financial Emergency : Centre can give direction to states :(i) to observe financial propriety (ii) reduce s alary (iii) reserve all money &

other financial bil l for P.

Protection of state interest

Following bills can be introduced in Parliament only on recommendation of President :

Bill imposing or varying tax in which state are interested (i.e. jis tax ka paisa s tate ko milta hai)a.

Bill which vary the meaning of Agricultural Income for IT purposeb.

Bill which affect principle on which money are distributable to statesc.

Bill imposing surcharge on any specified tax for the purpose of Centre.d.

Borrowing Powers

Taken

by

From whom Limit Security Nature

CG Within & Outside

India

Within limit fixed by parliament ( no

such law framed)

Security : CFI Borrow or give Guarantees

SG Within India ONLY Within limit fixed by SL Security : CF of

state

Borrow or give Guarantees

SG CG Charged to CFI Loan to SG or give gurantee in respect of

loan raised by SG

a.

SG cannot raise loan without consent of centre if there is still o/s any part of loan made to SG by CG or in respect of guarantee.

INTER-STATE WATER DISPUTES (ARTICLE 262)

The River Boards Act : for the regulation and development of inter-state water. RB is established by CG on requests of states. So far, NIL

constituted

The Inter State Water Disputes Act : CG to setup ADHOC tribunal. The decision of tribunal is final & binding. No court to have jurisdiction.



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Draft River Basin Management Bill (26/06/2013) : To amend the Ri ver Boards Act. The draft l egislation seeks to create a mechanism for integrated

planning, development and management of water resources of a river basin. The bill proposes to set up river basin authoritie s for Brahamani-Baitarini

basin, Cauvery basin, Ganga basin, Godavari basin, Indus basin, Krishna basin, Mahanadi basin, Mahi basin, Narmada basin, Pen nar basin, Subarnreakha

basin and Tapi basin .

INTER-STATE WATER DISP UTES COUNCILS (ARTICLE 263)

On recommendation of the Sarkaria Commission. Set up in 1990. Recommendatory Body. Meeting atleast 3 times in a year.

Members :

PM

CMs of all states

CM of UT having LA

Administrators of UT not having LA

6 Union cabinet minis ters incl Union Minister to be nominated by PM.

INTER-STATE TRADE & COMMERCE

Trade can be restricted as follows :

Parliament can in Public inte rest but no discrimination between states except in case of scarcity of goods

SL can impose reasonable restriction with previous sanction of P. No preference or discrimination.

SL can impose tax on goods imported from other state to which similar goods in that state are subjected. But no discriminatory taxing.

Subject to Nationali sation laws i.e. law by parl or SL to carry business by govt to exclusion of citizens, partial or complete.

ZONAL COUNCILS

Statutory Body - States Reorganisation Act, 1956 - 5 zones

Members -

Union Home Minister (Common chairman of all 5 councils)

CM of all states in zone (Vice chairman by rotation -1 yr each)

Two other minister of such states

Admini strator of UT

Advisors without right to vote :

Person nominated by the Planning Commission

Chief secretary of the govt of each state in the zone

Development commissioner of each state in the zone

North Eastern Council is also a statutory body.



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Part Title Article

XI & XII

Legislative - XI

Administrative

- XI

Financial - XII

Relationship

between the Union

and the States

Legislative

Function

(245-255)

If President passes regulation for 4 UT - And & Nic, Lakshwdeep, D & N Haveli, Damn & Diu or it repeal / amend any Act of

parlianment for these 4 UT.

Governor direct -f or Scheduled Area in his state

Governor of Assam direct- Tribal AreaPresident direct - Tribal areas of Meghalaya, Tripura and Mizoram

Territorial Extent : - Centre-whole of India exception :

Union List > Concurrent List > State List

Exception : If state law has received president assent.

Concurrent List : Central Law > State Law

Distribution of Subjects:-

Rajya Sabha resolves by 2/3rd majority of members present & voting - resolution eff ective for 1 yr - Law made to cease to be

enforceable after 6 month the resolution cease to be in force - State can also make law but in case of inconsistency, parlainment

law prevail.

National Emergency - Law made to cease to be enforceable after 6 month the emergency cease to be in force - State can also

make law but in case of inconsi stency, parlainment law prevail.

Surrender of power by MLAs on any subje ct : When 2 or more states make request. Law apply to their states.MLAs can no longer

make law on that subject.

International Agreements

During President Rule - Law remains in force even after P. Rule. Such law has to be repeal ed or altered by MLAs.

Parliament legislation on state field :- In 5 e xtraordinary circumstances :

Governor can reserve certain bill for preside nt assent.

Certain bill to be in troduced only with previous sanction of the presi dent.

President can direct to re serve money bi lls aand other financial bi lls for his consideration during financial emergency.

Centre's control on State legislation:

Administra

tive

function

(256-263)

A law on the concurrent subject enacted by the parlianment, i s executed by the states e xcept when the constitution / Parliament directs

otherwise.

The state has to exercise i ts excecutive power so as not to impede or preji dice the exe rcise of executive power of the centre in the state.

Centre can give direction for this purpose and 4 other matters.Sec 365 : If state fail to comply --> situation for president rule.

By President with consent of state govt --> entrust executive f unction of centre to such state govt

Similarly governor with consent of centre --> entrust exe cutive function of state govt to central govt

Mutual delegation :

Delegation by Parlianment -law on uni on subject to be administerd by state - no consent of state required.. Si milar power NOT available

to MLAs.

Financial

functions

(268-293)

Tax revenues : Normally it is distribute d between centre and states in manner prescribed by president on recommendation of the

Finance Commission.

Non Tax revenues :

Sl.No. Statutory Grants Discretionary Grants

1 Article 275 Article 282

2

Which are in need of f inancial assistance (General)a.

For promoting the welfare o f scheduled tribes in a stateb.

For raising the level of administration of the scheduled

area in a state i ncl Assam.

c.

To states : To help states to achieve their plan targets1.

To influence state action to ef fectuate the national plan.2.

3 Charged to Consol idated Fund of India every year

4 May be general / specific

5 On recommendation of Finance Commission Planning Commission

Borrowing

powers

Centre : Obtain loan from within / outside India on security of CFI or can give guarantee within limit fixed by MPs.

State : Obtain loan from within India on security of CFS or can give guarantee within limit fixed by MLAs.

Giving of

loan or

guaranteesto state

Centre : Yes

State : With consent of centre, if there is o/s any l oan/ guarantee made to the state by the centre

Effect of

emergency

National emergency : President can modify pattern of di stribution of revenue between centre and states1.

Financial emergency : Centre can instruct : a. to rese rve all money and other financial bil l of consideration of president.2.

XX Amendment of the

Constitution368 Amendment of the Constitution ( Certain other provisions also provides

for amendment but they are not covered u/a 368 - thus only simple

majority is reqd in those cases)

Introduce Bill in e ither house of Parliament by a Minister / Pvt.

Member.

1.

Prior permission of President is not required2.

Special Majority required i .e. >50% of total member ( irrespective

of vacancies or absentees) AND >2/3 of members prese nt and

voting.

3.

Must be passed in BOTH house separately. No provision of joint

sitting.

4.

President assent -P resident MUST give assent (only option for

him).

5.

If bill seek to amend federal structure - to be ratified by

state legislatures of half of the states by SIMPLE majority

(>50% present and voting)

a.

Articles26 March 2013

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President

Electoral College - Elected MP, MLA (states + UT of Delhi & Puducherry)

Quali fication - Citizen + 35 yrs + Qualified to be MP of Lok Sabha + No office of Profit -OOP (Post of President, VP, Governor, Union or state

minister not deemed to be OOP) + 50 proposers & 50 seconders + 15000 Rs.

President enjoys personal immunity from legal liability for his official acts.

Immune from CRIMINAL proceedings. Cannot be arrested or imprisoned

CIVIL proceedings : give advance 2 months notice

Personal Acts :(Same for Governor)

Impeachment : Impeachment Bill to be passed by 2/3rd majority in both houses or parliament

Conduct election in 6 months

Acting President : VP --> CJI --> Seniormost judge of SC

Office VACANT due to death, resign, impeachment, election void etc :

Can make regulation for the peace, progress and good government of A & N islands, Lakshadweep , Dadra and nagar Haveli , Daman and diu.

Also for Puducheery when ass embly is suspended or dissolved. Not for Delhi & Chandigarh.

Appointment of PM when no party has clear majority

When PM in office dies suddenly and there is no obvious successor

Dismissal of council of minister (COM) when it cannot prove confidence of Lok SabhaDissolution of Lok Sabha if the COM has lost its majority

The president is bound by the advise of the ministers. He can do nothing contrary to their advise nor he can do anything without their advise.

However after 44th const amendment , the president can require the council of ministers to reconsider the advise. However he SHALL act in

accordance with the advice tendered after such reconsideration. He can act in his own discretion only in following situations :

The Governor is bound to reserve the bill for the consideration of president when the bill endangers the position of the state high court.

The SC has held that wherever the constitution require the satisfaction of the president, it is the satisfaction of the council of ministers and not

the personal satisfaction of the President.

He summon the joint sitting of both houses of the Parliament.

The Budget is to be pass ed within 75 days.

Powers of President

VETO POWER (No VETO power in respect of Constitution Amendment Bills)1.

Absolute VETO : w/h his assent to a bill passed by the parliament (i.e. reject)

Cannot return a money bil l (can give or w/h assent only)

If passed again, will have to give his assent. Parliament can override VETO power of president.

Suspensive VETO : Return a bill for re-consideration.

Pocket VETO : DO nothing - keep it pending for an indefinite period

Qualified VETO : Bil l re-passed by higher majority by parliament - not required in Indian context.

The power can be exercised for bills of state legis lature also. However, State legislature CANNOT override the VETO power of president.

The president cannot return a money bill for the reconsideration of MP or MLA (when bill is reserved by governor).

Ordinance making power - Conditions :2.

Only on the advise of council of ministers

Cannot be issued to amend the constitution

Any 1 house of parliament is not in sess ion

Existence of circumstance as to render necess ary to take immediate action. President's satisfaction can be justiciable on ground of

malafide

Co-extensive with power of parliament i .e. issue ordinance on matter in which parliament can legislate and within constitutional limit

Approve by parliament within of its re-assembly

Pardoning power :3.

Pardon : Remove sentence and the conviction - In case of death sentence under Union or court martial law. Only president can pardon

death sentence even under state law. The power is to be exercised on the advise of the union cabinet.

a.

Commutation : Substitution of one form with a lighter formb.

Remiss ion : reducing the period of sentence without changing its characterc.

Respite : awarding a less er sentence due to some special fact e.g. physical disabili tyd.

Reprieve : stay on execution for a temporary periode.

Nomination power :4.

Rajya Sabha : 12 MP from person having special knowledge ; Lok Sabha : 2 MP- form anglo Indian community

Governor : LA : 1 MLA- form anglo Indian community ; LC : 1/6th members having special knowledge

Executives

15 June 2013

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Governor

Reserving a bill for president

Recommending for imposing president rule

Exercising power as administrator of adjoining UT.

Seeking info from CM regarding administrative ad legislative matters of the state

Determining the royalty payable by Govt of Assam, Meghalaya, Tripura and mizoram to Tribal district council for mineral explo raiton

He can at time act in his own discretion while a president CANNOT. The decision of the Governor regarding whether a matter fa lls within

his discretion is final and validity of it cannot be challenged. In following cases he has discretion (apart from situational discretion same as

president) :

Ministerial advise are not binding on the governor but are binding on the President.

The Governor can :

Vice President

Electoral College - Elected & Nominated MP,MLA

Qualification - Citizen + 35 yrs + Qualified to be MP ofRajya Sabha + No office of Profit -OOP (Post of President, VP, Governor, Union or state

minister not deemed to be OOP) + 20 proposers & 20 seconders + 15000 Rs

Doubt / dispute in election of VP / President - Inquiry by SC

When he acts as president, his function in Rajya Sabha is performed by Deputy Chairman of Rajya Sabha.

Prime Minister

The resignation / death of an incumbent PM automatically diss olves the council of ministers .

He is the principal channel of communication between the President and the council of ministers.

Union Council of Ministers

A minister has the right to speak and to take part in the proceedings of BOTH houses but he has right to vote in the house in which he is a

member.

When the Lok Sabha passes the no confidence motion, all minister incl those in Rajya Sabha has to resign. The resignation of the PM amounts to

resignation of the entire COM.

All ministers has collective responsibil ity i.e. they should stand by cabinet decis ions and support them both within and outs ide the Parliament

otherwise he must resign.

State Council of Ministers

There shall be a Minister in charge of Tribal welfare who may in addition be in charge of the welfare of the SC and BC or any other work in the

states of JHARKHAND, MP, CHHATTISGARH & ORISSA.

Satisfaction of Governor = Satisfaction of Council of Ministers

Individual privileges of MP

Cannot be arrested when house is in session and also 40 days before the beginning and 40 days after the end of ses sion IN CIVIL CASES. And not

in case of criminal cases and preventive detention.

Freedom of speech in Parliament

Exempted from jury service when parliament is in session.

Oath of Affirmation

Sl. No. Appointee Administered by

1 President Chief Justice of India

2 Governor Chief Justice of concerned high court or senior most judge

3 VP President

4 PM President

5 CM Governor



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6 Council of Ministers President

7 MP President

8 Speaker/ Deputy Speaker of Lok

Sabha

Does not subscribe to any oath

9 SC judge President

10 HC Judge Governor

11 State Council of Ministers Governor

12 MLA Governor

Mode of Appointment

Sl. No. Person Who appoints ? Qualification Condition of service & tenure of office

1 President Electoral College Citizen + 35 yrs + Qualified to be MP

of Lok Sabha + No office of Profit -

OOP (Post of President, VP, Governor,

Union minister not deemed to be

OOP)

Emoluments decided by Parliament

For 5 years. No condition of max age.

Beyond 5 years, till success or takes

charge - VP doesnot takes charge

(normally election to be held before

expiry of term)

Also eligible for re-election

Resignation letter to VP.

2 Governor President (to enable thecentre to maintain its

control over the states)

35 yrs + Citizen of India + should notbe MP/ MLA (automatically vacate

post)

Emoluments decided by Parliament

For 5 years (subject to pleasure of the

president - non justiciable) . No

condition of max age. Beyond 5 years,

till success or takes charge.


Resignation letter to President.

3 Vice President Electoral College Citizen + 35 yrs + Qualified to be MP

of Rajya Sabha + No office of Profit -

OOP (Post of President, VP, Governor,

Union minister not deemed to be

OOP)

For 5 years. No condition of max age.

Beyond 5 years, till success or takes

charge


Resignation letter to President.

4 Prime Minister President Leader of the majority party in Lok

Sabha. When no clear majority,president use its discretion and ask

PM and ask him to seek a vote of

confidence within 1 month.

Majority is to be proved after

appointment within a reasonable

period

Has to be a member of either house

of parliament

5 Chief Minister Governor Same Same

6 Council of Ministers President On the advise of PM

Total no = max 15% of the total

strength of Lok Sabha

Shall not be disquali fied on ground

of defection

Shall become MP of either house

within 6 months

Salary / allowances determined by

parliament

7 State Council of

Ministers

Governor On advise of CM

Total no = 15% incl CM. Min no = 12

Shall not be disquali fied on ground

of defection

Shall become MLA of either house

within 6 months

Salary / allowances determined by MLA

Procedure of Removal

Sl. No. Person Who can remove ? Condition

1 President

(process

known as

1. Impeachment bill pass ed with 2/3rd majority of total membership in both

houses of the Parliament

Violation of the constitution



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impeachment) Process :

Initiation of impeachment proceeding by either house of parliament by

1/4th members of the house

14 days notice to the president

2/3rd majority (of the total membership of the house) bill pas sed in one

house then sent to other which will investigate charge and pass bill with

2/3rd majority

President stands removed from office from the date on which bill was

passed.

2 VP Resolution in Rajya Sabha by ABSOLUTE majority and agreed to by the Lok

Sabha by a SIMPLE majority. 14 days advance notice is reqd

No grounds s pecified

3 PM President when he loses the confidence of the Lok sabha - he must resign or

the president can dismiss him

4 Any Minister President on advise of PM Generally, in case of diff of opinion

or dissatisfaction with performance

5 Lok Sabha

Speaker / Deputy

Speaker of LS/ RS

/ LA / LC

MP - by resolution passed by a ABSOLUTE majority of all the members of LS -

advance 14 days notice. During this process, he cannot preside the house.

Motion to be supported by at least 50 members.

6 Chairman of RS Remove him as VP



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Particulars Supreme Court High Court

Organization 1 CJ + 30 Judges 1 CJ and other judges as president may determine

Appointment By President after consultation with such judges of the SC & HC

as he deems necessary. Consultation with CJ is also obli gatory

CJ : appointed by presi dent after consultation with the CJI and

governor.

Other : President + CJI + Governor + CJ of that HC

Chief Justice (THIRD JUDGE CASE : CJI should consult four seniormost judgesof the SC)

(THIRD JUDGE CASE : CJI should consult two very senior judges ofthe SC)

Qualification of Judge Citizen + HC judge for 5 yr or HC advocate for 10 yr or an

eminent jurist in opinion of president

Citizen + Judicial off ice for 10 yrs OR HC advocate for 10 years

Tenure of Judges Upto 65 yrs (any question on age to be decided by such

authority as specified by Parliament)

Upto 62 years (question on age is to be decided by president

after consultation with CJI and decision of P is final)

Removal of Judge By president on recommendation of Parliament on ground of

proved misbe haviour or incapacity

Process as per The Judges Enquiry Act, 1968 :

Removal motion signed by 100 MP of LS or 50 MP of RS to

chairman / speaker who may admit / refuse it

He constitute 3 member committee - (a) CJ or j udge of SC,

(b) CJ of HC ( c) a distinguished jurist

Committee find judge guilty of misbehavior or suffering

from incapacity, then house can take up motion

Passing of motion by each house by SPECIALmajority

Address is presented to president for removal who then

passes the order

SAME procedure

Sal ari es e tc De te rmi ned by parl iament which cannot be vari ed ex cept i n

case of financial emergency

SAME

Adhoc / Additional / Acting

Judge

ADHOC JUDGE : When there is lack of quorum of the Judges of

the Supreme court available to hold or continue any session of

the Court, the CJI may appoint judge of HC as judge of SC for

temporary period.

Condition

After consultation wi th CJ of concerned HC and previous

consent of president

a.

Judge appointed shall be qualified to be a SC judgeb.

Addl Judge : Appointed by PRESIDENT for max 2 yrs (or 62 yrs)

when there is temporary increase in business or arrear of work

Acting Judge : in pl ace of Other judge (Not for CJ) when :(max 62

yrs) :

(a) he is unable to perform his duties due to absence or otherwise

(b) he is appointed to act as CJ

Reti red Judge CJ I can request to reti red SC judge or re ti red HC judge (who is

qualifi ed to be SC judge) to act for temporary period

Condition

Previous consent of president and consent of person

concerned

a.

He will have all juri sdiction power ,privilege but he will not

be deemed to be judge of SC

b.

CJ of that HC can request to retired HC judge of any state to act

for temporary period

Condition

Previous consent of president and consent of person

concerned

a.

He will have all jurisdiction power ,privilege but he wi ll not

be deemed to be judge of HC.

b.

Expenses charged Salary etc are charged on the CFI Charged to CF of that state. Pension are charged to CFI.

Conduct of judges Cannot be discussed in parliament or state legislature except on

impeachment motion

SAME

Ban on practice after

retirement

Yes YES

Writ jurisdiction Only for enforcement of fundamental rights . Parliament can

confer addl power to SC

For any purpose even for enforcement of ordinary legal rights.

CAN issue writ to any person, authority of govt not only within i ts

territorial Jurisdiction(TJ) but also outside its TJ if the cause of

action arises within its TJ.

Civi l matters Only on Substantial Question of law & if HC certi fies on appeal

against judgment of HC

First appeal :

Order or judgment of Di strict courts, addl district courts and

other subordinate court lie directly to HC on both ques of law &

fact, of the amount exceed a specified limit

Second appeal :

Only on ques of law

Intra Court appeal : between Calcutta, Bombay & Madras HC

Jurisdiction on criminal

matters Has on appeal REVERSED the ACQUITTAL (non guilty ) of

accused and sentenced him to death or life i mp or for 10

yrs

Has taken before itself any case from any subordinate

court and convicted the accused and sentenced him to

death or life imp or for 10 yrs

If the HC :

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Certifies it for SC

Contempt of Court

Simple jail upto 6 mnths

Fine upto Rs 2000

Or both

It has power to punish by :

For contempt of any court in INDIA.

Othe r powe r Origi nal ex cl usi ve juri sdiction for dispute in el ection of P/ VP

It is a se lf correcting agency i.e. it can review its own

judgement or order.

HC can also review its own decision . Howeve r there is no such

provision in constitution

Advocates Senior Advocates : Designated by SC or any HC. They have to

appear along with ADVOCATE ON RECORD in SC or any otherjunior in any other court or tribunal in India. CANNOT draw

pleadings or affidavit, advise on evidence or any drafting work

etc.

Advocates-on-record : Only these advocates CAN FILE

DOCUMENTS before the SC. They can also appe ar & argue.

Other Advocates : They are registered on the roll of any state

bar council and can appear and argue matters in SC on behalf

of any party BUT CANNOT FILE ANY DOCUMENT OR MATTER

before the Court.

Transfer of Judges From one HC to another by President after consultation with CJI.

Third Judge case : CJI should consult 4 seniormost judges of SC

and CJ of both HC.

Jurisdiction Parliament cannot curtail but can extend As far it is specified in constitution, it cannot be curtailed. If not

mentioned, can be change by both Parliament & state legislature.

Special Powers It can authorize the Parliament to make a law on state subject.1.

It can authorize to create new All India Services common to

both the state and centre.

2.

The collegium controversy

What is the collegium system? It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of

India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe? Article 124 deals with the appointment of Supreme Court judges. It says the appointment should

be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may de em necessary.

The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI

and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?The collegium system has its genesis in a series of three judgments that is now clubbed together as

the "Three Judges Cases".

First Judge case : The S P Gupta case (December 30, 1981) is cal led the "First Judges Case". It declared that the "primacy" of the CJI's

recommendation to the President can be refused for "cogent reasons". This brought a paradigm shift in favour of the executive having primacyover the judiciary in judicial appointments for the next 12 years.

Second Judge case : In 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case

the "Second Judges Case". This was what ushered in the collegium system. The majority verdict written by Justice J S Verma sa id "justiciability"

and "primacy" required that the CJI be given the "primal" role in such appointments. It overturned the S P Gupta judgment, sa ying "the role of the

CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word

'consultation' would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline

would grow in the judiciary."

Presidential reference : In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term "consultation"

really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term "consultation" requires

consultation with a number of judges in forming the CJI' s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In

reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form

of the collegium (see box).

Third Judge case : Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the

opportunity to strongly reinforce the concept of "primacy" of the highest judiciary over the executive. This was the "Third Judges Case".

SC guidelines on appointments

The term "consultation" with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the



16/29

formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court

in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be

made in consultation with the two senior-most judges of the Supreme Court.

The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

Recommendations by the CJI without [s uch compliance] are not binding upon the government.

The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme

Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials

and information conveyed by the Government for non-appointment of a judge recommended for appointment.

The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation

need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .

What moves were taken to correct these?

The Law Commission in its 214th Report on 'Proposal for Reconsideration of Judges cases I, II and III' recommended two solutions:

* To seek a reconsideration of the three judgments before the Supreme Court.

* A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A Judicial Appointment Commission - the Commission is likely to consist of seven members the Chief Justice of India and two senior-most

judges of the Supreme Court, the Law Minister, two eminent jurists nominated by the President, and the Leader of the Oppositi on. The

commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest

judiciary.

The present proposal will require a constitutional amendment.

Presidential Reference u/A 143

In 2 cases :

On ques of law or fact of PUBLIC IMPORTANCE SC may tender or REFUSE to give opinion

On any PRE-CONSTITUTION treaty, agreement etc SC MUST tender its opinion

Opinion given by SC is advisory in nature and not a judicial pronouncement and hence not binding on president



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Particulars Rajya Sabha Lok Sabha

Composition Max 250 members = 238 Elected + 12 Nominated Max 552 members = 530 states + 20 UT + 2 Anglo Indian

(nominated)

Allocation On basis of population from each state & UT. However, on ly

Delhi & Puducherry have represe ntation. Other UT population i s

negligible to have UT

By Deli mitation Commission

Election By proportional representation by mean of single transferab le

vote

Electorate : Elected MLA

By direct election

Duration Permanent Body not subject to disso lution -1/3rd member

retire in every 2 years - members are eligible for re-election &

re-nomination

Normal = 5 years from the date of its first meeting after the

ele ction. Period can extended during national emergency by a

law of parliament for 1 yr at a time for any length of time. But

upto max 6 mnths after emergency ceases.

Term of office 6 years

Qualification Citizen + Min 30 years + Elector Citizen + Min 25 years + Elector

Quorum 1/10th of the total strength of the house incl presiding officer 1/10th of the total strength of the house incl presiding officer

Leader of the House

(under rules of the

house)

Minister who is MP and nominated by PM Prime Minister or minister who i s MP and nominated by PM

Demand for grants RS has no power to vote on demand of grants

Territorial Constituencies

2 principles :

For every state : Ratio of ( No of seat in e ach state / Population of state ) = equal for each state

Within state : Ratio of (population of each constituency / No of seats allotted) = same throughout the state

Seats are also reserved for SC / ST on the basis of population ratio.

Disqualifications : Pg 22.5 Book - Under Constitution & the represe ntation of People Act, 1951 - Any question on disqualif ication is decided byPreside nt on the opinion of election commissioner and his decision his final.

Defection law (Tenth schedule)

Left political party

Contrary voting

Indepe ndent MP join any party

Nominated MP join any party after 6 months

Decision by Lok Sabha speaker / Rajya Sabha Chairman - subject to judicial review

Vacation of office

If elected to both house simultaneously, choose 1 in 10 days. If not - vacate rajya sabha seata)

MP elected to another house --> seat in fi rst house vacantb)

If elected to 2 seat in a house, exercise option --> else both seat will get vacant.c)

Double membership :

Disqualification


1 MP President acting on the opinion of the Election

commissioner

Non -Justiciable Disquali fication under constitution or the representationof People Act, 1951.

2 MP Lok Sabha speaker / Rajya Sabha Chairman Justiciable Under Defection law- Schedule X

3 MLA Governor acting on the opinion of the Election

commissioner

Non -Justiciable Disquali fication under constitution or the representationof People Act, 1951.

4 MLA Speaker / Chairman of LA / LC Justiciable Under Defection law- Schedule X

Legislatures16 June 2013

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If MLA become MP, resign as MLA within 14 days --> seat of MP gets vacantd)

Disqualification : incl defection law

Resignation : addressed to speaker / chairman - when accepted

Absence : for 60 days without its permiss ion . Period does not include any period during which house is prorogued or adjourned for

more than 4 consecutive days.

Election void by high court (Representation of People Act enables HC to declare an election void if a disqualified

candidate is elected. Appeal li es to SC)

a)

Expelled from houseb)

Elected as P / VP /governorc)

Other cases :

Lok Sabha speaker

He is the final interpreter of the (i) Constitution, (i i) the rule of procedure and conduct of business of Lok Sabha , (iii ) the parliamentary

precedents within the house.

He cannot vote but can cast only casting vote.

He presides over the joint sitting of the parliament summoned by the PRESIDENT.

He decides whether a bill is money bill or not and his decision is final. Also certifies it to be money bill.

He is the ex officio chairman of the Indian Parliamentary Union.

He appoints the chairman of all parliamentary committees of Lok Sabha and his himself chairman of the Business Advisory , the Rules & the

General purpose committee.

His work cannot be criticized in Lok Sabha except on a Substantive motion

Rank in the order of precedence - 7th along with CJI - higher than all cabinet ministers except PM (3) / DPM (5A)

Deputy Speaker Lok Sabha

Special Privilege : He automatically becomes chairman whenever he is appointed as member of any parliamentary committee.

Panel of chairpersons of Lok Sabha / Vice chairman of Rajya Sabha

Nominated by speaker / chairman from MP --> max 10 chairpersons -- > any of them presides house in ABSENCE (VACANCY) of the speaker /

chairman & deputy speaker / deputy chairman. In case of vacancy, President appoint among members of the house and fresh elect ion are

held.

Speaker Pro Tem

Normally a speaker tenure = before the first sitting of newly elected Lok Sabha. So till appointment of a new speaker, temporary

speaker is appointed.

Appointed by president --> any MP usually senior most MP.

Function : preside first sitting , administer oath to new members, enable to elect new speaker

Chairman of RS = VP of India

He is not the member of the house

Leader of Opposition is of a political party having at least 1/10th seat of the total s trength of the house. He is accorded s tatus equivalent to a

cabinet minister.

Sessions of Parliament

Language - Hindi & English. Mother tongue with the permission of the PO

The max gap between 2 sessions (first sitting to its prorogation / dissolution) of parliament cannot be more than 6 months.

1 SESSIONS --> Many MEETINGS --> 2 SITTINGS (in a meeting) --> a si tting can be terminated by Adjournment or Adjournment sine die

or prorogation or dissolution (of LS).

Adjournment : suspend the work for a specified time from hours to weeks

Power of both is with presiding officer of house. He can als o recall house at any time (even before specified time)

Adjournment sine die : terminating without naming a day for reassembly (i.e. for an indefinite period)

Prorogation :

Adjournment Prorogation

It terminates a SITTING It terminates a SESSION



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By Presiding officer By president

No effect on pending bills No effect on pending bills . However, pending notices (other than those

for introducing bills) lapse.

Dissolution : All pending (before LS or its committee) bills , motions, resolutions, notices, petition and so on lapses

Bill pending in LS lapses

Bill passed by LS pending in RS lapse

President notifies joint sitting before diss olution -> does not lapse

Pending in RS >> does not lapse

Awaiting president ass ent >> does not lapse

Returned by president for reconsideration >> does not lapse

Question Hour

First hour of every parliamentary SITTING >> ministers answer the questions.

A member gives notice in writing addressed to the Secretary-General, Lok Sabha, intimating his intention to ask a question g iving the

text of the question & Minister to whom the question is addressed as also the date on which the question is desired to be placed on

the list of questions for answer as also the order of preference, if any, for its being placed on the list of questions when a member

tables more than one notice of questions for the same day.

The normal period of notice of a question is not more than twenty-one and not les s than ten clear days. A short notice question can be

asked with a notice shorter than ten days, but the member has to state briefly the reasons for asking the question at short notice.

Starred question : for oral answer, marked with * . Supplementary ques follows. Max 20 in a day

Unstarred : requires a written answer. Max 230 in a day. In addition, 25 ques in relation to states under president rule can be

included.

A Short notice question : matter of urgent public importance, notice of les s than 10 days, answered orally.

3 types :

Zero Hour

Time period between end of question hour and the time of agenda (normal business) of day.

Not a part of rules of procedure >> Informal device

Half an hour Discussion Short Duration DiscussionDiscussing a matter of SUFFICIENT public importance URGENT public importance

Speaker can al lot 3 days in a week for such discuss ion Max 2 hours

Max 2 days in a week

No formal motion or voting No formal motion or voting

Legislative procedure in Parliament

Public Bill Private Bill

Its introduction requires 7 DAY notice Its introduction requires 1 month notice

Ordinary Bills Money Bills (matters specified in Article

110) -part of Financial bill

Financial Bills I (Article 117 (1)) Financial Bills II (Article 117 (3))

General It contains ONLY matter specified in

Article 110 i.e. Taxation / Regulation of

borrowing powers / CFI / Contingency

funds

Along with article 110 matter, also

matter of general legisl ation.

Exp from CFI but does not include any

matter of Article 110

Either in LS or RS Only in LS Only in LS Either in LS or RS

By a minister or any private

member

By a minister By a minister By a minister or any private member

President Recommendation -

NO

YES YES NO for introduction.

However, it cannot be passed by

eithe r house unless recommendation

of president is received for

consideration of the bill.

RS can amend or reject Only recommend within 14 days. If not

recommended, deemed passed

RS can amend or reject RS can amend or reject

It can be retained by second

house (after been passed by

house in which it was

introduced) for max 6 months ,

RS - o nly for max 14 days It can be retained by second house

(after been passed by house in

which it was introduced) for max 6

months , it results in deadlock

It can be retained by second house

(after been passed by house in which it

was introduced) for max 6 months , it

results in deadlock



20/29

it results in deadlock

President - Assent / reject/

reconsideration

Only assent or rejection President - Assent / reject/

reconsideration

President - Assent / reject/

reconsideration

Joint sitting - YES NOT required YES YES

Joint sitting

In 3 situations :

Bill is reje cted by other house

Disagreeme nt on amendment

More than 6 mnths elapsed since date of receipt of bill in second house . For calculation ,the pe riod during which the house is prorogues or

adjourned for more than 4 consecutive days is not to be counted.

Then P can summon joint sitting

Order of presiding (Speaker >> Deputy Speaker >> Deputy Chairman >> such other person as decided) Chairman of RS does not pre side as he is not MP.

Quorum >> 1/10th

Governed by rules of LS and not of RS.

Pass bill by majority

No new amendment can be made except : (a) those amendment that caused disagreement (b) the amendment that become necessary due to passage of

time.

Demand for grants

Budget contains demand of grants by various ministries. For evaluating, 24 departmental standing committee examine and discuss in detail the

demand and prepare report and submit the same to both houses.

Only LS can vote on demand for grants. A demand become s a grant after it is duly voted.

Voting is confined only to votable part. Exp charged to CFI can only be discussed.

General Budget -total 109 demands (103 civil & 6 de fence exp) , Railway budget -32 demands.

Policy cut Motion : disapproval of policy underlying demand. Reduce demand to Rs. 1

Economy Cut Motion : Reduce lumpsum amt or certain item of demand

Token Cut Motion : Book Pg 22.27

CUT MOTION : to reduce any de mand for grant :

Appropriation Bill

No money can be withdrawn from CFI except under appropriation made by law. So an appropriation bill is reqd to withdraw money to meet (a)

grants voted by LS (b) exp charged to CFI .

VOTE ON ACCOUNT : to withdraw money till bil l is passed, grant in advance is made - generally granted for 2 months and max upto 1/6th of the

total estimation.

Excess Grant

When money spent is i n excess of the amount granted for that service

Voted by LS after that financial year

Before voting, it must be approved by PUBLIC ACCOUNTS COMMITTEE OF PARLIAMENT.

Other

There are 3 financial committees : (a) Publ ic Accounts Committee (b) Estimates committee and Committee on PSU.

Rule of lapse : If the granted money is not spent in the FY, the balance expires and is credited back to CFI. So it le ads to March Rush.

State legislature

Only 6 states have bicameral house - J&K, Bihar, UP, Karnataka, Maharashtra, AP.

The very existence of LC depends upon the wi ll of LA. The LC can be abolished by Parliament on the recommendation of LC.

Passing of resolution by the state assembly by a SPECIAL majority

Parliament passes an Act by simple majority . It is not deemed to be an amendment to the constitution under Article 368.

Creation of legislative council :

Particulars LA LC

Composition Max 500 & Min 60.

Indirectly elected.



21/29


22/29

Constitutional Bodies Statutory Body Executive Resolution

Election Commission (324) (Election of MP, MLA ,

President, VP ) -

Multi member body (as on today)

Joint State Public Service Commission

(JSPSC)

Planning Commiss ion

State Election Commission (for election to Panchayats &

Muncipalities) Women

Minorities

Backward classes

Protection of child rights

Human right commission

National Commission for National Development Council

UPSC (315-323) CVC

Finance Commission (280) Central Information Commission

National Commiss ion for SC (338) - also meant for OBC

& Anglo -Indian Community

National Commission for ST (338-A)

Special Officer for linguistic Minorities (350-B) under

Ministry of Minority Affairs

CAG (148)

Attorney General of India (76)

Advocate General of the state (165)

Mode of Appointment

Sl. No. Person Who appoints ? Qualification Condition of service & tenure

of office

1 Chief E lection Commissioner and

other commissioners

President Nil President (6 yrs or 65 age- can

resign/ removed)

2 Regional Commissioner President after consultation

with the Election Commiss ion

Nil President (6 yrs or 65 age- can

resign/ removed)3 UPSC - Chairman & other

members

President Atleast half members should

have hold office for atleast 10

yrs in GOI or GOS

President (6 yrs or 65 age- can

resign/ removed)

4 SPSC - Cha irma n & other members Governor of the state Atleas t ha lf members should

have hold office for atleast 10

yrs in GOI or GOS

Governor (6 yrs or 62 age-can

resign/ removed)

5 JSPSC President For 2 or more states on the

request of the SL concerned.

President (6 yrs or 62 age-can

resign/ removed)

6 Fina nce Commis sion - Chairma n &

4 other members

President every 5th year or

earlier

Specified by parliament.

Chairman - Person having exp in

public affairs

HC judge or 1 qualified

Person with special

knowledge in finance/

accounts of govt

Person with wide exp in

financial matters and in

administration

Person with special

knowledge of economics.

Members - from among follow :

Period specified by President

7 National Commiss ion for SC / ST -

chairman, vice chairman & 3

members

President Period specified by President

8 CAG President President (6 yrs or 65 age- can

resign/ removed)

9 Attorney General of India (76) President

Has been judge of HC for 5

yrs

An advocate of some high

court for 10 yrs

Qualified to be judge of SC i.e.

citizen of india & ..

Specified by president

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Eminent jurist in opinion of

president

10 Advocate General of the state Governor

Must have held a judicial

office for 10 yrs

An advocate of high court

for 10 yrs

Eminent jurist in opinion of

president

Qualified to be judge of HC i.e.

citizen of india & ..

Specified by Governor

11 Chairman & Members -National

Human Right Commission

President Recommendation from the 6

member committee -

Prime Minister (Head)

Speaker of the Lok Sabha

Deputy Chairman of the Rajya

Sabha

Leader of Opp in both houses

Central Home Minister

Further s itting judges of SC /

HC can be app after

consultaion with CJI.

Determined by Central Govt

(5 yrs or 70 age- can resign/

removed)

12 Chairman & Members -State

Human Right Commission

Governor Recommendation from the 6

member committee -

Chief Minister (Head)

Speaker of the Legislative

Assembly

Chairman of the Legislative

Council

Leader of Opp in both houses

State Home Minister

Further s itting judges of HC /

DC can be app after

consultaion with CJ of HC of

that state


removed)

13 CVC - Chairman & Members President Recommendation from the 3

member committee -

Prime Minister (Head)

Union minister of Home affairs

Leader of opp in Lok Sabha


removed)

Same as that of UPSC

14 CIC - C hief informa tioncommiss ioner and max 10 IC

President They should not be MP, MLAThey should not hold any

other office of profit or

connected with any political

party or carrying on any

business or profession.

Recommendation from the 3

member committee -

Prime Minister (Chairperson)

Union cabinet minister

nominated by PM

Leader of opp in Lok Sabha

5 yrs or 65 age-not elig ible forreappointment - can resign/

removed.

Same as that of Election

Commissioner

15 SIC - C hief informa tion

commiss ioner and max 10 IC

Governor They should not be MP, MLA

They should not hold anyother office of profit or

connected with any political

party or carrying on any

business or profession.

Recommendation from the 3

member committee -

Chief Minister (Chairperson)

State cabinet minister

nominated by CM

Leader of opp in LA

5 yrs or 65 age-not elig ible for

reappointment - can resign/removed.

Salary etc

Not a charge -subject to vote in Parlianment Charged on CFI

Admin exp of Election Commission Chairman & Members of UPSC



24/29

Procedure of Removal


1 Chief Election Commiss ioner (CEC) Resolution in both houses of parliament

with special majority

Proved Misbehavior or Inca pacity

2 Other / regional Election Commissioner On recommendation of CEC

3 UPSC & SPSC - chairman or any other

member

President General

Insolvent

Engages in paid employment

In opinion - unfit - due to infirmity (weak) of

mind or body.

Special - SC binding opinion - for misbehaviour

4 CAG Resolution in both houses of parliament

with special majority

Proved Misbehavior or Inca pacity

5 Attorney General of India President

6 Advocate General of State Governor

7 National Human Right Commiss ion -

Chairman & members

President General

Insolvent


unfit - due to infirmity (weak) of mind or body.

Unsound mind declared by a competent court

Convicted and sentenced for an offence

Special - SC opinion - for proved misbehavior

or incapacity, president can remove

8 State Human Right Commission -

Chairman & members

President Same as above

9 CVC - Chairman or members President General

Insolvent


unfit - due to infirmity (weak) of mind or body (in

opinion of president)

Acquired any financial or other interest as is

likely to prejudicially affect his official functions

Convicted of an offence which in the opinion of

CG involve moral turpitude

Special - SC opinion - for proved misbehavior

or incapacity, president can remove

10 CIC President Same as 9

11 SIC Governor Same as 9

Retiring person as below can accept further appointment in GOI

or GOS

Cannot accept

Election Commissioner Chairman of UPSC

Member of UPSC - only as chai rman of UPSC or SPSC

Chairman of SPSC - only as member or chairman of UPSC or

chairman of any other SPSC

Member of SPSC - only as chai rman or member or UPSC or

chairman of any SPSC.

CAG

Chairman or members of National & s tate Human Right Commiss ion

Chairman or members of CVC

CAG

Salary and allowances of Lok sabha speaker or deputy speaker / RS

chairman or deputy chairman

Expenditure / allowances relating to President and his office

Salary / All / PENSION of SC Judges

PENSION of HC judges

Debt charges incl interest, redemption charges etc relating to loan of

GOI

Any other amt declared by parliament

Can take part in Parliament without right to vote



25/29

Attorney General of India ( in both houses)

Composition

National Development Counci l Prime Minister

All Cabinet Ministers

CM of state / UT

Members of Planning Commission

National Human Right Commission Chairman - Retired Chief Justice of India

Serving or retired judge of SC

Serving or retired judge of HC

2 person having know/ exp in human rights

4 Members -

Chairman of National commission for Minorities, SC, ST, Women.

Four ex-officio members -

State Human Right Commission Chairman - Retired Chief Justice of High court

Serving or retired judge of HC or District Judge in the state having 7 yrs exp

1 person having know/ exp in human rights

2 Members -

CVC Chairman & max 2 commissioners



26/29

Importance of Booth level Officer (BLO) - introduced in 2007

Custodian of electoral roll - its preparation - removing the names of dead and shifted voters

To ensure door-to-door dis tribution of voter-identification slips to voters.

Delimitation Commission of India

Delimitation commission or Boundary commission of India is a Commission established by Government of India under the provisions of the

Delimitation Commission Act. The main task of the commission is to redraw the boundaries of the various assembly and Lok Sabha constituencies

based on a recent census.

The 84th amendment Act froze the re-adjustment of seats in the Lok Sabha to the states and the divis ion of each state into territorial

constituencies till 2026 (to encourage population limiting measures). However, the 87th amendment Act, 2003 provided for deli mitation of

constituencies on basis of 2001 census without altering the number of seats allotted to each state in the Lok Sabha.

The number of SC and ST seats in a state are changed in accordance with the census of 2001. (CEC is member of commission)

Proport ionality jurisprudence

Derived from courts in North America and Europe, proportionality jurisprudence calls on a court to decide whether the government used the

least injurious means available to it while depriving a person of his fundamental rights.

Misinterpreting the proportionality doctrine in the Comedy Central case (TV Programme 10 day ban by govt), the Delhi High Court worryingly held

that it would only find government censorship disproportionate if it shocks the conscience of the court. This is highly problematic after all,

fundamental rights will become exceedingly hard to enforce if every government action must go to the unthinkable extreme ofshocking the

conscience of the court in order for it to be held illegal.

Quasi Judicial Body

A quasi-judicial body is an entity such as an arbitrator or tribunal board, generally of a public administrative agency, which has powers and

procedures resembling those of a court of law orjudge, and which is obligated to objectively determine facts and draw conclusions from them so

as to provide the basis of an official action. Such actions are able to remedy a situation or impose legal penalties, and may affect the legal rights,

duties or privileges of specific parties.

Serious Fraud Investigation Office (SFIO) - so far non-statutory body - CHIT fund ghotala by sharda group in Bengal

The SFIO was established in 2003, as a body of the Ministry of Corporate Affairs, on the basis of the recommendations in the Naresh Chandra

Committee Report on Corporate Audit and Governance.

It is a multi-disciplinary team that not only uncovers the fraud, but is able to direct and supervise prosecutions under various economic legislations

through appropriate agencies.

As per its charter, the SFIO is to investigate those cases that are complex in nature and involve inter-departmental and multi-disciplinary

ramifications. Accordingly, the staff of the SFIO includes experts in varied f ields such as accountancy, forensic auditing, investigation, law, taxation,

information technology, capital markets and financial transactions.

Among the high profile cases investigated by the SFIO, the Satyam scandal is perhaps the most notorious. The SFIO has also probed the alleged

Rs.870 crore fraud in Reebok India. It has also spearheaded the investigation into Sesa Goa s alleged over and under invoicing of exports and

imports worth over Rs.1,000 crore.

Shortcomings Its powers are largely restricted to examination of documents and it does not have the powers of search, seizure and arrest. The

SFIO also operates within an elaborate matrix of investigating bodies with overlapping authority over such cases ; the CBI, the Central Economic

Intelligence Bureau, the Reserve Bank of India and the Securities and Exchange Board of India (SEBI) being some of the other bodies which have

also been granted investigative roles and powers.

Under the Companies Bill

In The Companies Bi ll 2012, SFIO will be a statutory body with the ability to initiate prosecution when directed by the Central government. The

investigation report filed by the SFIO with the criminal court, for framing of charges , will be deemed to be a report filed by the police under the

Code of Criminal Procedure. This measure will avoid duplication of duties and delay. The director of the SFIO will have the power to arrest persons

if he has reason to believe that such persons are guilty of certain offences, including fraud under the Companies Bill.

An investigator of the SFIO will have the powers vested in a civil court under the Code of Civil Procedure with respect to discovery and production

of books of accounts and other documents, the inspection of books, registers and other documents and the summoning of and enforcing of

attendance of persons.

Significantly, the Bill attempts to pre-empt the confusion caused by multiple agencies investigating the same case. Where a case has been

assigned to the SFIO, no other investigating agency of the Central or the State government is to proceed with investigation. Further, any other

investigating agency, State government, police or income tax authority having information or documents with respect to an offence being

investigated by the SFIO is required to make such documents available to the SFIO.

Absolute v/s Ordinary majority v/s Special majority

Ordinary : majority of the members present and voting in the house

Absolute : majority of the total members of the house

Special : majority of the total members of the house & not les s than 2/3rd members present & voting

Other concepts28 May 2013

22:25

http://en.wikipedia.org/wiki/Tribunalhttp://en.wikipedia.org/wiki/Court_of_lawhttp://en.wikipedia.org/wiki/Judgehttp://en.wikipedia.org/wiki/Judgehttp://en.wikipedia.org/wiki/Court_of_lawhttp://en.wikipedia.org/wiki/Tribunal


27/29

Exclusive original jurisdiction of SC

Exclusive : no other court can decide such dispute

On a question of law or FACT on which legal right depend and thus political rights are excluded

Dispute only involving state and centre

Exception : pg 23.6

Original : the power to hear such appeal on first instance and not by way of appeal

Indian order of precedence

The Order of precedence of the Republic of India is the protocol li st (hierarchy of important positions) in which the functionaries and officials arelisted according to their rank and office in the Government of India. The order is es tablished by the President of India, and is maintained by

the Ministry of Home Affairs. It is only used to indicate ceremonial protocol and has no legal standing; it does not reflect the Indian presidential

line of succession or the co-equal status of the separation of powers under the Constitution. It i s also not applicable to day to day functioning of

Government of India.

http://en.wikipedia.org/wiki/Indian_order_of_precedence

table_of_...

Due process of law v/s Procedure established by law

In India there exist a synthesis of American principle of Judicial supremacy and the British principle of parliamentary supremacy.

Due process : American SC can declare law violative of rights VOID not only on substantial grounds of being unlawful but a lso on procedural

grounds of being unreasonable.

Procedure. : Our SC examine only substantive question . .it does not determine its reasonableness , suitability or policy implication.

Major Differences between First Appeal and Second Appeal

First Appeal:

1. The First Appeal can be admitted on the grounds (1) question of fact; and also (2) question of law.

2. The First Appeal can be entertained by subordinate Courts to District Judges Court and to High Courts. Example: An appeal f rom the District Munsiff

Magistrate s Court or Subordinate Judges Court to the District Judge.

Second Appeal (case heard already by 2 subordinate court) :

1. The Second Appeal can be admitted only on the point of substantial question of law.

2. The Second Appeal can only be entertained by the High Court.

http://en.wikipedia.org/wiki/Indian_order_of_precedencehttp://en.wikipedia.org/wiki/Indian_order_of_precedencehttp://en.wikipedia.org/wiki/Indian_order_of_precedence


28/29

Dadra and Nagar Haveli Portuguese

Goa Portuguese

Daman & Diu Portuguese

Puducherry French

Maharashtra

Goa

Gujarat

Andhra Pradesh

NE states i.e. Arunachal Pradesh, Assam , Meghalaya, Manipur, Mizoram, Nagaland, Sikkim

Special provisions are there for :

Parliament Power to reorganize state :

Not an amendment under Article 368

Article 2 or 3 does not provide power to cede part of territory to a foreign country - SC. Pass amendment under Article 368.

Settlement of Boundary Dispute - NO constitution amendment reqd. Do by executive action - SC

Procedure

Prior recommendation of President.

Before recommending, refer same to SL for its view within specified period. Views are non -binding.

Bill introduce in Parliament - pass by ordinary majority.

Union and its territories04 July 2013

21:32



29/29

42nd 1976 Transferred 5 subjects from state list to Concurrent List - (a) Education, (b) Forests, Weights and measures,

(d) Protection of wild animals and birds, (e) Administration of Justice.

1.

Amendment to Preamble2.

61st 1988 Voting Age reduced from 21 yrs to 18 yrs1.

76th 1994 Tamil Nadu Reservation Act in 9th schedule -to protect form judicial review.1.

77th 1995 Reservation in promotion1.

81st 2000 Backl og vacanci es1.

85th 2001 Reservation in promotion -CONSEQUENTIAL SENIORITY1.

86th 2002 Right to education

93rd 2005 State empowered to make provision for reservation of OBC/ SC/ ST in educational inst.1.

Amendments26 March 2013

19:23

Documents

India Polity Notes @Jitendra