LLB LAW NOTES ON CONSTITUTIONAL LAW OF INDIA

JANHIT COLLEGE OF LAW, GREATER NOIDA (JANHIT
GROUP OF INSTITUTIONS)
(Affiliated to CCS University, Meerut & Approved by Bar Council
of India, New Delhi)
(www.janhitlaw.in)
(An e-initiative by JCL)
NOTES ON
Constitutional Law of India –II
(Paper Code: K-2002)
Class: LL.B. 2nd
Yr (Fourth Semester)
By Dr. Girendra Sharma

Chapter-1
Union Parliament: Organization, Procedure regarding Enactment of
Legislation, Parliamentary Privileges.
Union Parliament: Composition and Functions
The law-making powers of the Union are with the Union Parliament. It is a
bi-cameral legislature with the House of the People (Lok Sabha) as the Lower House
and the Council of States (Rajya Sabha) as the Upper House. Legally the law-making
powers are exercised by the President-in-Parliament. All bills are introduced and
passed by the Parliament in the name of the President and these become laws when
signed by him. However, the President is not a member of either House.
Composition of the Union Parliament: Union Parliament is a bi-cameral
legislature with the Rajya Sabha as the upper house and The Lok Sabha as the lower
house follows:
I. The Council of States or the Rajya Sabha: The Council of States, i.e., the Rajya
Sabha is the Upper House of the Union Parliament. Its maximum membership can be
250 involving 238 representatives of the States and Union Territories and 12
members nominated by the President from amongst persons from the fields of
literature, science, art or social service. The seats allotted to each State and Union
Territory has been mentioned in the Fourth Schedule of the Constitution.
Presently, the Rajya Sabha has 245 members (233 elected and 12 nominated
members. The members of the Rajya Sabha are elected by the elected members of
the Legislative Assembly of each State. All the MLAs of a state together elect the
Rajya MPs of their state. Each member of Rajya Sabha holds a term of six years. The
Rajya Sabha as a whole is a quasi-permanent body it is never dissolved as a whole.
Its 1/3rd members retire after every two years.

It is also called the House of Elders because citizens of the age of 30 years or above
alone can become its members. The quorum for its meetings is 1/10th of its total
membership. The Vice-President of India is ex- officio Chairman of the Rajya
Sabha. It also elects one Deputy Chairman from amongst its members, who presides
over its meetings in the absence of the Vice- President.
II. The House of the People—the Lok Sabha:
The House of the People, i.e., the Lok Sabha is the lower, directly elected and
powerful House of the Union Parliament. Its maximum strength can be 552. It has at
present strength of 545 members, out of which 523 are the elected representatives of
the people of the States of the Union, 20 are the elected representatives of the people
of Union Territories, and two are nominated members belonging to the Anglo-Indian
Community.
131 Lok Sabha seats stand reserved for the people belonging to SCs and STs. The
members of the Lok Sabha are directly elected by all the adult citizens (voters) who
are of 18 years or above of age. The seats of Lok Sabha are distributed on the basis
of population. The Lok Sabha has tenure of 5 years. However, it can be dissolved at
any time by the President acting under the advice of the Prime Minister and his
Council of Ministers.
The meetings of the Lok Sabha are presided over by Speaker who is elected by all its
members from amongst themselves. They also elect a Deputy Speaker who presides
over its meetings in the absence of the Speaker.
(B) Powers and Functions of the Union Parliament:
(i) Legislative Powers: The most important power of the Union Parliament is to
make laws for the whole country. It can legislate over the subjects of Union List. It
has concurrent jurisdiction with State Legislatures over the subjects of the
Concurrent List. It has also the power to legislate over all other subjects (Residuary
Subjects) which are not mentioned in any list. In the sphere of ordinary law-making,
i.e., non-financial legislation, the two Houses of Parliament enjoy co-equal powers.

A bill becomes an act only after the two Houses have passed it in identical terms. In
case of a deadlock between the two Houses over any bill, the President can summon
their joint sitting. The matter is then decided by a majority vote in this joint sitting.
Further, an ordinary bill passed by the two Houses becomes an act only after the
signatures of the President. The President has the power to return the bill to the
Parliament for reconsideration. In this case the Parliament has to re-pass it.
Thereafter, the bill again goes to the President who has to sign it. The laws made by
the Union Parliament are called Union Statutes or Union laws.
(ii) Financial Powers:
The Parliament is the custodian of the national purse. The government cannot levy or
collect any tax or make expenditure without the consent of the Parliament. No tax
can be levied or collected or revised by the government without the approval of the
Parliament. The fiscal policies of the government can be enforced only after these
get the approval of the Parliament.
The financial powers of the Parliament are really exercised by the Lok Sabha. The
money bills can be introduced only in the Lok Sabha. After getting passed, a money
bill goes to the Rajya Sabha which can at the most delay its passage for only 14 days.
As such financial legislation is really the handiwork of the Lok Sabha. A cut motion
passed or a rejection of any money bill by the Lok Sabha means a vote of no-
confidence against the Council of Ministers, and it has to resign.
(iii) Power to Control the Executive:
For all its decisions and policies, the Council of Ministers is directly responsible to
the Parliament (in reality to the Lok Sabha) MPs can put questions and
supplementary questions to the ministers for getting information regarding the
forking of administration. They can move adjournment motion, cut motion, call
attention motion, censure motion and no- confidence (only by the members of the
Lok Sabha) motion for keeping the ministry under control and making it responsible

and accountable. The defeat of a government bill or decision in the Lok Sabha is
taken as a loss of confidence by the Council of Ministers, and it resigns.
The Lok Sabha can cause the fall of the government by passing a direct vote of no-
confidence against the Prime Minister or his ministry. The government has to get all
its policies approved by the Parliament before these are implemented.
(iv) Power to amend the Constitution:
The Union Parliament enjoys the power to amend the constitution in accordance with
the provisions of Article 368. A bill for amending the constitution can be introduced
in either house of n Parliament. Most of the constitution can be amended by the
Union Parliament by passing an amendment bill by a 2/3rd majority of members in
each House.
However, when the amendment relates to several specific subjects as mentioned, the
concerned bill after having been passed by the Parliament by a 2/3rd majority in each
House, can become an act only when it gets ratified by at least one-half of all the
State Legislatures.
(v) Electoral Functions:
The elected members of the Lok Sabha and the Rajya Sabha form one part of the
Electoral College which elects the President. The other part is constituted by the
elected members of all the State Legislative Assemblies. Both Houses of Parliament
together elect the Vice- President of India. The members of the Lok Sabha elect two
of their members as the Speaker and Deputy Speaker. The members of the Rajya
Sabha elect their own Deputy Chairman.
(vi) Impeachment Functions:
The Parliament has the power to impeach the President on charges of violation of the
Constitution. For this purpose l/4th members of either House can move an
impeachment resolution. For doing this, they have to give a prior notice of 14 days.
If the House in which the impeachment resolution is moved, passes it with 2/3rd

majority of its total membership, the resolution goes to the other House, which
investigates the charges.
The President is given the opportunity to defend himself. If this House also passes
the impeachment resolution in identical terms and by 2/3rd majority of its total
membership, the President stands impeached. The judges of the Supreme Court and
High Courts and several other high officials of the State can also be impeached by
the Parliament in a similar way.
(vii) Miscellaneous Functions:
The Union Parliament can:
I. Change the boundaries of the States.
II. Establish or abolish the Legislative Council in any State.
III. Approve or disapprove an Emergency proclamation made by the President.
IV. Provide for a common High Court for two or more States.
V. Pass laws required for the enforcement of International Treaties.
VI. Act as board of directors for Public Sector Corporations.
VII. Redress grievances of the people.
VIII. Deliberate upon all matters of national and international importance.
Position of the Union Parliament:
With all these powers, the Union Parliament is a powerful legislature. Its position
can be favourable compared with the national legislatures of other liberal democratic
countries like he USA, Canada, France, Japan and Britain. It is, however, not a
sovereign parliament. It always acts within the scope of powers and functions laid
down by the Constitution of India.
Procedure regarding Enactment of Legislation,

India is a democracy having a quasi-federal structure of government. Laws are made
separately at different levels, by the Union Government/Federal Government for the
whole country and by the State Governments for their respective states as well as by
local municipal councils at district level. The Legislative procedure in India for the
Union Government requires that proposed bills pass through the two legislative
houses of the Parliament of India, i.e. the Lok Sabha and the Rajya Sabha. The
legislative procedure for states with bicameral legislatures requires that proposed
bills be passed, at least in the state's Lower House or the Vidhan Sabha and not
mandatory to be passed in the Upper House or the Vidhan Parishad. For states with
unicameral legislatures, laws and bills need to be passed only in the state's Vidhan
Sabha, for they don't have a Vidhan Parishad.
Difference between a Bill and an Act
Legislative proposals are brought before either house of the Parliament of India in
the form of a bill. A bill is the draft of a legislative proposal, which, when passed by
both houses of Parliament and assented to by the President, becomes an Act of
Parliament. As soon as the bill has been framed, it has to be published in the
newspapers and the general public is asked to comment in a democratic manner. The
bill may then be amended to incorporate the public opinion in a constructive manner
and then may be introduced in the Parliament by ministers or private members. The
former are called government bills and the latter, private members' bills. Bills may
also be classified as public bills and private bills. A public bill is one referring to a
matter applying to the public in general, whereas a private bill relates to a particular
person or corporation or institution. The Orphanages and Charitable Homes Bill or
the Muslim Waqfs Bills are examples of private bills.
How a Bill becomes an Act in Parliament
A Bill is the draft of a legislative proposal. It has to pass through various stages
before it becomes an Act of Parliament. There are three stages through which a bill
has to pass in one House of Parliament. The procedure is similar for the Legislative
Assemblies of States.

First Reading
The legislative process begins with the introduction of a Bill in either House of
Parliament, i.e. the Lok Sabha or the Rajya Sabha. A Bill can be introduced either by
a Minister or by a private member. In the former case it is known as a Government
Bill and in the latter case it is known as a Private Member's Bill. It is necessary for a
member-in-charge of the Bill to ask for the leave of the House to introduce the Bill.
If leave is granted by the House, the Bill is introduced. This stage is known as the
First Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the
Speaker may, in his discretion, allow a brief explanatory statement to be made by the
member who opposes the motion and the member-in-charge who moved the motion.
Where a motion for leave to introduce a Bill is opposed on the ground that the Bill
initiates legislation outside the legislative competence of the House, the Speaker may
permit a full discussion thereon. Thereafter, the question is put to the vote of the
House. However, the motion for leave to introduce a Finance Bill or an
Appropriation Bill is forthwith put to the vote of the House. Money/Appropriation
Bills and financial bills can be introduced only in Lok Sabha per Articles 109, 110
and 117. Speaker of Lok Sabha decides whether a bill is Money Bill or not.
Chairman of Rajya Sabha decides whether a bill is finance bill or not when the bill is
introduced in the Rajya Sabha.
Publication in the official Gazette
After a Bill has been introduced, it is published in The Gazette of India. Even before
introduction, a Bill might, with the permission of the Speaker, be published in the
Gazette. In such cases, leave to introduce the Bill in the House is not asked for and
the Bill is straight away introduced.
Reference of Bill to a Standing Committee
After a Bill has been introduced, the Presiding Officer of the concerned House
(Speaker of the Lok Sabha or the Chairman of the Rajya Sabha or anyone acting on
their behalf) can refer the Bill to the concerned Standing Committee for examination

and to prepare a report thereon. If a Bill is referred to a Standing Committee, the
Committee shall consider the general principles and clauses of the Bill referred to
them and make a report thereon. The Committee can also seek expert opinion or the
public opinion of those interested in the measure. After the Bill has thus been
considered, the Committee submits its report to the House. The report of the
Committee, being of persuasive value, shall be treated as considered advice.
Second Reading
The Second Reading consists of consideration of the Bill which occurs in two stages.
First stage
The first stage consists of general discussion on the Bill as a whole when the
principle underlying the Bill is discussed. At this stage it is open to the House to
refer the Bill to a Select Committee of the House or a Joint Committee of the two
Houses or to circulate it for the purpose of eliciting opinion thereon or to straight
away take it into consideration.
If a Bill is referred to a Select/Joint Committee, the Committee considers the Bill
clause-by-clause just as the House does. Amendments can be moved to the various
clauses by members of the Committee. The Committee can also take evidence of
associations, public bodies or experts who are interested in the measure. After the
Bill has thus been considered, the Committee submits its report to the House which
considers the Bill again as reported by the Committee. If a Bill is circulated for the
purpose of eliciting public opinion thereon, such opinions are obtained through the
Governments of the States and Union Territories. Opinions so received are laid on
the Table of the House and the next motion in regard to the Bill must be for its
reference to a Select/Joint Committee. It is not ordinarily permissible at this stage to
move the motion for consideration of the Bill.
Second Stage

The second stage of the Second Reading consists of clause-by-clause consideration
of the Bill as introduced or as reported by Select/Joint Committee. Discussion takes
place on each clause of the Bill and amendments to clauses can be moved at this
stage. Amendments to a clause have been moved but not withdrawn are put to the
vote of the House before the relevant clause is disposed of by the House. The
amendments become part of the Bill if they are accepted by a majority of members
present and voting. After the clauses, the Schedules if any, clause 1, the Enacting
Formula and the Long Title of the Bill have been adopted by the House, the Second
Reading is deemed to be over.
Third Reading
Thereafter, the member-in-charge can move that the Bill be passed. This stage is
known as the Third Reading of the Bill. At this stage the debate is confined to
arguments either in support or rejection of the Bill without referring to the details
thereof further than that are absolutely necessary. Only formal, verbal or
consequential amendments are allowed to be moved at this stage. In passing an
ordinary Bill, a simple majority of members present and voting is necessary. But in
the case of a Bill to amend the Constitution, a majority of the total membership of
the House and a majority of not less than two-thirds of the members present and
voting is required in each House of Parliament. If the number of votes in favour and
against the bill are tied, then the Presiding officer of the concerned House can cast
his/her vote, referred to as a Casting Vote Right.
Passing a bill
If at any time during a meeting of a House there is no quorum which is minimum
one-tenth of the total members of a House, it shall be the duty of the Chairman or
Speaker, or person acting as such, either to adjourn the House or to suspend the
meeting until there is a quorum. The bills taken up under legislative power of
parliament are treated as passed provided majority of members present at that time
approved the bill either by voting or voice vote. It is also right of a member to
demand voting instead of voice vote. In case of passing a constitutional amendment

bill, two-third of the total members present and voted in favour of the bill with more
than 50% of the total members of a house, is required per Article 368.
Bill in the other House
After the Bill is passed by one House, it is sent to the other House for concurrence
with a message to that effect, and there also it goes through the stages described
above, except the introduction stage. If a Bill passed by one House is amended by the
other House, it is sent back to the originating House for approval. If the originating
House does not agree with the amendments, it shall be that the two houses have
disagreed. The other House may keep a money bill for 14 days and an ordinary Bill
for three months without passing (or rejecting) it. If it fails to return the Bill within
the fixed time, the Bill is deemed to be passed by both the houses and is sent for the
approval of the President.
At state level, it is not mandatory that a bill shall be passed by the legislative council
(if existing) per Articles 196 to 199. There is no provision of conducting joint session
of both Houses to pass a bill.
Joint session of both Houses
In case of a deadlock between the two houses or in a case where more than six
months lapse in the other house, the President may summon, though is not bound to,
a joint session of the two houses which is presided over by the Speaker of the Lok
Sabha and the deadlock is resolved by simple majority. Until now, only three bills:
the Dowry Prohibition Act (1961), the Banking Service Commission Repeal Bill
(1978) and the Prevention of Terrorist Activities Act (2002) have been passed at
joint sessions.
President's approval
When a bill has been passed, it is sent to the President for his approval per Article
111. The President can assent or withhold his assent to a bill or he can return a bill,
other than a money bill which is recommended by president himself to the houses.

However Article 255 says that prior recommendation of president or governor of a
state wherever stipulated is not compulsory for an Act of parliament or of the
legislature of a State but the final consent of president or governor of a state is
mandatory. President may be of view that a particular bill passed under the
legislative powers of parliament is violating the constitution; he can send back the
bill with his recommendation to pass the bill under the constituent powers of
parliament following the Article 368 procedure. The President shall not withhold
constitutional amendment bill duly passed by parliament per Article 368. If the
President gives his assent, the bill is published in The Gazette of India and becomes
an Act from the date of his assent. If he withholds his assent, the bill is dropped,
which is known as absolute veto. The President can exercise absolute veto on aid and
advice of council of ministers per Article 111 and Article 74. The president may also
effectively withhold his assent as per his own discretion, which is known as pocket
veto. The pocket veto has only been exercised once by President Zail Singh in 1986,
over the postal act where the government wanted to open postal letters without
warrant by amending the Indian Post Office Act, 1898. If the president returns it for
reconsideration, the Parliament must do so, but if it is passed again and returned to
him, he must give his assent to it.
In case of a bill passed by the legislative assembly of a state, the consent of that
state's Governor has to be obtained. Sometimes the governor may refer the bill to the
president anticipating clash between other central laws or constitution and decision
of the president is final per Articles 200 and 201.
Money Bills
Bills which exclusively contain provisions for imposition and abolition of taxes, for
appropriation of moneys out of the Consolidated Fund, etc., are certified as Money
Bills by the Speaker of the Lok Sabha. Money Bills can be introduced only in Lok
Sabha on the recommendation of the President per Articles 109, 110 and 117. For
every fiscal year, the annual budget or annual financial statement with demand for
grants on the recommendation of the President per Articles 112 to 116 shall be

passed by the Lok Sabha. The Rajya Sabha cannot make amendments to a Money
Bill passed by the Lok Sabha and sent to it. It can, however, recommend
amendments in a Money Bill, but must return all Money Bills to Lok Sabha within
fourteen days from the date of their receipt. The Lok Sabha can choose to accept or
reject any or all of the recommendations of the Rajya Sabha with regard to a Money
Bill. If Lok Sabha accepts any of the recommendations of Rajya Sabha, the Money
Bill is deemed to have been passed by both Houses with amendments recommended
by Rajya Sabha and accepted by Lok Sabha. If Lok Sabha does not accept any of the
recommendations of Rajya Sabha, the Money Bill is deemed to have been passed by
both Houses in the form in which it was passed by Lok Sabha without any of the
amendments recommended by Rajya Sabha. If a Money Bill passed by Lok Sabha
and transmitted to Rajya Sabha for its recommendations is not returned to Lok Sabha
within the said period of fourteen days, it is deemed to have been passed by both
Houses at the expiration of the said period in the form in which it was passed by Lok
Sabha. When a money bill introduced in the Lok Sabha by the government fails to
get its approval, the ruling party is treated as not commanding the majority support in
the Lok Sabha or shall be dismissed by the president to pave way for new
government / fresh elections or opposition would move no confidence motion.
At state level also money bills shall be introduced in the legislative assembly only
per Articles 198, 199 and 207 on the recommendation of the governor. When a
money bill introduced in the legislative assembly by the state government fails to get
its approval, the ruling party is treated as not commanding the majority support in the
legislative assembly or shall be dismissed by the governor to pave way for new
government / fresh elections or opposition would move no confidence motion.
Jammu & Kashmir state
The state of Jammu and Kashmir was accorded higher degree of federalism under
Article 370 read with Appendix I {The Constitution (Application to Jammu and
Kashmir) Order, 1954} of the Indian constitution. Matters related to Defense,

Foreign relations and Communication of Jammu and Kashmir are under jurisdiction
of union government. The laws enacted by the parliament (including amendments to
the Indian constitution) applicable to rest of India are not valid in J&K state unless
ratified by its state assembly. Government of India can declare emergency in Jammu
and Kashmir and impose Governor's rule in certain conditions. The state has its own
constitution other than applicable Indian constitution. Part XII of the J&K state
constitution makes provision to amend its constitution with two thirds majority by
the state assembly. Part VI (The states) and Part XIV (Services under the union and
the states) of the Indian constitution is not applicable to J&K state per Article 152
and Article 308.
Parliamentary Privileges and Immunities in Indian Constitution
Introduction
Under the constitutional law and in the arena of Indian Parliament, the expression
―privilege and immunity‖ signifies certain special or exceptional rights of Lok Sabha
or Rajya Sabha or its individual members which are generally accepted as necessary
for the exercise of their constitutional functions.
To be stated precisely, parliamentary privilege is the sum of peculiar rights enjoyed
by each House (the Lok Sabha or the Rajya Sabha) collectively as constituent part of
Parliament, and by members of each House individually without which it would be
impossible for either House to maintain its independence of action.
The privileges attached to the Lok Sabha or the Rajya Sabha not because of any
exacted position of the members, but these are considered absolutely essential to
regulate its own proceedings in a disciplined, efficient and undisturbed manner and
in order to indicate its authority and dignity. We are to note that our Parliament has
not yet codified its privileges. In fact, the privileges rest on conventions and they
may be ascertained by the practice and law that is in force In England
Privileges may be classified into two groups:

1. Privileges that are enjoyed by members individually
The Privileges and immunities enjoyed by the members individually are: Freedom of
speech, Freedom from arrest and Exemption from attendance as jurors and witnesses.
Freedom of speech: According to the Indian Constitution, the members of
Parliament enjoy freedom of speech and expression. No member can be taken to task
anywhere outside the four walls of the House (e.g. court of law) or cannot be
discriminated against for expressing his/her views in the House and its Committees.
The basic idea of extending this freedom is that every member would put forward
without fear or favour his/her arguments for or against any matter before the House.
However, the Rules of procedure for the conduct of Business in the Houses of
Parliament put certain restrictions on this freedom. That is, a member‘s freedom of
speech should be in conformity to the rules framed by the House to regulate its
internal procedure.
Furthermore, the privilege of freedom of speech does not mean an unrestricted
license of speech. For example, our Constitution forbids discussion in Parliament on
the conduct of judges except on motion for their removal. In this connection, it may
be pointed out that in India, there have been clashes between freedom of speech as
guaranteed to the members of .parliament and fundamental rights as given to the
people under Article 19 (1) (a) of the constitution.
Freedom from Arrest: The members of Parliament also enjoy freedom from arrest.
From this freedom it is understood that no such member shall be arrested in a civil
case 40 days before and after the adjournment of the House (Lok Sabha or Rajya
Sabha) and also when the House is in session.
It also means that no member can be arrested within the precincts of the Parliament
without the permission of the House to which he/she belongs. When a member of the
House is arrested or detained, the authority concerned should immediately inform the
speaker or the Chairman regarding the reasons for such arrest.

A member can be arrested outside the four walls of the House on criminal cases
under the Preventive Detention, ESMA, NSA, POTA or any other such Act.
Freedom of attendance as witnesses: The members of Parliament also enjoy
freedom from attendance as witnesses.
2. Privileges of the House collectively
There are also some other privileges which the House (Lok Sabha or Rajya Sabha)
collectively enjoys. These are:
The right to publish debates and proceedings: Though by convention, the
Parliament does not prohibit the press to publish its proceedings, yet technically the
House has every such right to forbid such publication.
Again, while a member has the privilege of freedom of speech in Parliament, he has
no right to publish it outside Parliament. Anyone violating this rule can be held
responsible for any libelous matter it may contain under the common law rules.
The right to exclude strangers: Each House of Parliament enjoys the right to
exclude strangers (no-members or visitors) from the galleries at any time and to
resolve to debate with closed doors. The punishment may be in the form of
admonition, reprimand, or imprisonment.
The right to punish members and outsiders for breach of its privileges: In India,
the Parliament has been given punitive powers to punish those who are adjudged
guilty of contempt of the House. Such contempt can be committed by the members
of any House or any outsider.
When a member of the House is involved for parliamentary misbehavior or commits
contempt he can be expelled from the House.
The right to regulate the internal affairs of the House: In Indian Union, each
House is a High court of Parliament. Therefore, the House has the right to regulate

its internal affairs. A member of the House is free to say whatever he likes subject
only to the internal discipline of the House or the Committee concerned.
Conclusion
Parliamentary privileges have become a complex problem, but these days it is being
increasingly realized that privileges are essential for elected representatives of the
people and the members of Parliament and such press as well as outside public must
respect these in true sense and spirit.

Chapter-2
Union Executive: The President, his Powers and Position including
Ordinance Making Power.
The President
As we know that India is a sovereign democratic republic. The President of India,
who is the head of State, is indirectly elected.
Qualifications: The qualifications for the office of President are:
(i) Should be a citizen of India;
(ii) Should have completed the age of 35 years;
(iii) Should be qualified to be elected as a member of Lok Sabha; and
(iv)Should not hold any office of profit i.e. the candidate should not be a government
servant. However the office of the President, the Vice-President, the Governor or the
Minister of the Union or the State is not considered as an office of profit for this
purpose;
The President cannot at the same time be a member of Parliament or of a State
Legislature. If a Member of Parliament or State Legislature is elected as President
his/her seat will be deemed to have been vacated on the date, he/she assumes office
as President of India.
Election Procedure
The President is elected by an Electoral College consisting of the elected members of
both Houses of Parliament i.e. Lok Sabha and Rajya Sabha and of the State
Legislative Assemblies (Vidhan Sabhas). Nominated members of Parliament and
members of State Legislative Councils are not members of the Electoral College.
The election is held by means of single transferable vote system of proportional
representation. The voting is done by secret ballot.

The framers of the Constitution were keen to obtain parity between the votes of the
elected members of Parliament on one side and elected members of Legislative
Assemblies of all the States on the other. They devised a system to determine the
value of vote of each Member of Parliament and Legislative Assembly, so as to
ensure equality. The vote value of an M L As calculated - the total population of the
State is divided by the number of elected members of the State Legislative
Assembly, and the quotient is divided by 1000. The vote value of an MP is
calculated by dividing the total vote values of all the MLAs of all the states by the
total elected members of parliament.
Single Transferable Vote System: The election of the President is held through
single transferable vote system of proportional representation. Under this system
names of all the candidates are listed on the ballot paper and the elector gives them
numbers according to his/her preference. Every voter may mark on the ballot paper
as many preferences as there are candidates. Thus the elector shall place the figure 1
opposite the name of the candidate whom he/she chooses for first preference and
may mark as many preferences as he/she wishes by putting the figures 2, 3, 4 and so
on against the names of other candidates. The ballot becomes invalid if first
preference is marked against more than one candidate or if the first preference is not
marked at all.
Counting of Votes and Declaration of Result
Members of State Legislative Assemblies cast their votes in States Capitals, while
Members of Parliament cast their votes in Delhi in the States Capitals. Counting of
votes is done at New Delhi. First preference votes of all the candidates are sorted out
and counted. To be declared elected a candidate must get more than 50% of the total
valid votes polled. This is known as Quota. The Quota is determined by totalling the
total number of votes polled divided by the number of candidates to be elected plus
one. In this case, since only the President is to be elected, so division is done by 1+1.
One (01) is added to the quotient to make it more than 50%.

At the first count only first preference votes are counted. If any of the candidates
reaches the quota, he/she is declared elected. In case no candidate reaches the quota,
then the 2nd preference votes of the candidate getting the least number of first
preference votes are transferred to other candidates. Thus the candidate getting the
least number of votes is eliminated. If after counting, a candidate reaches quota,
he/she is declared elected as the President. In case no candidate reaches quota, even
at this stage, then the votes of next candidate getting the least number of votes are
transferred to the others. It continues till any one candidate gets the quota of votes.
Removal of the President
The President can only be removed from office through a process called
impeachment. The Constitution lays down a detailed procedure for the impeachment
of the President. He can only be impeached ‗for violation of the Constitution‘. The
following procedure is intentionally kept very difficult so that no President should be
removed on flimsy ground.
The resolution to impeach the President can be moved in either House of Parliament.
Such a resolution can be moved only after a notice has been given by at least one-
fourth of the total number of members of the House. Such a resolution charging the
President for violation of the Constitution must be passed by a majority of not less
than two-third of the total membership of that House before it goes to the other
House for investigation.
The charges leveled against the President are investigated by the second House.
President has the right to be heard or defended when the charges against him are
being investigated. The President may defend himself in person or through his
counsel. If the charges are accepted by a two-third majority of the total membership
of the second House, the impeachment succeeds. The President thus stands removed
from the office from the date on which the resolution is passed.

This procedure of impeachment is even more difficult than the one adopted in
America where only simple majority is required in the House of Representatives to
initiate the proceedings.
Executive Powers
The President is head of State and executive powers of the Union have been vested
in him. The President is empowered to exercise these powers either directly or
through officers subordinate to him who means through the Prime Minister and
Council of Ministers also. His executive powers are given below:-
The President appoints the Prime Minister and he appoints other ministers on the
advice of the Prime Minister. He allocates portfolios among the ministers on the
advice of the Prime Minister. He may remove any Minister on the advice of the
Prime Minister.
The President appoints the Chief Justice and other judges of the Supreme Court and
High Courts. However, in all judicial appointments, the Chief Justice of India is
consulted. Besides the President may also consult such other judges of the Supreme
Court as the President may be deemed necessary. While appointing Chief Justice and
justices of High Courts the President has to consult the State Governor also. In the
appointment of High Court judges, the President also consults the Chief Justice of
the State. But now in accordance with the 1993 decision of the Supreme Court as re-
interpreted in 1999, the President is bound by the recommendations of a panel of
senior most judges of the Supreme Court in matters of all judicial appointments. This
panel headed by the Chief Justice is known as the collegium of the Supreme Court.
The President appoints the Attorney General, the Comptroller and Auditor General
of India, the Chief Election Commissioner and other Election Commissioners, the
Chairman and Members of Union Public Service Commission (U.P.S.C.). He/she
also appoints the Governors of States and Lt. Governors of Union Territories. All
such appointments are made on the advice of the Union Cabinet headed by the Prime
Minister.

The President is the Supreme Commander of the armed forces. As such, the
President makes appointments of Chiefs of Army, Navy, and Air Force. The
President can declare war and make peace. In his/her capacity as head of state, the
President conducts the country‘s foreign affairs. The President appoints India‘s
ambassadors and high commissioners in other countries; and the President receives
foreign ambassadors and high commissioners. All diplomatic work is conducted in
his/her name (by the foreign office and Indian envoys abroad), and all international
treaties are negotiated and concluded in his/her name.
All laws enacted by the Union Parliament are enforced by him/her. All officials
appointed by him/her (such as Governors and Ambassadors) may be removed or
recalled by him/ her, on the advice of the Union Council of Ministers.
All the functions are performed by the President on the advice of the Prime Minister.
All decisions of the Union Government are communicated to him/her by the Prime
Minister. The President can ask the Prime Minister only once to have a
recommendation of the executive reconsidered by the Cabinet. The President can
also refer a minister‘s decision to the Cabinet for its consideration. The President
cannot seek a second reconsideration.
Legislative Powers
The President being an integral part of Parliament enjoys many legislative powers.
These powers are given below:
The President summons, and prorogues the Houses of Parliament. He may summon
the Parliament at least twice a year, and the gap between two sessions cannot be
more than six months. The President has the power to dissolve the Lok Sabha even
before the expiry of its term on the recommendation of the Prime Minister. In normal
course he/she dissolves Lok Sabha after five years. The President nominates twelve
members to Rajya Sabha from amongst persons having special knowledge in the
field of literature, science, art and social service. The President may also nominate
two members of Anglo-Indian community to the Lok Sabha in case that community

is not adequately represented in the House. The President can call a joint sitting of
the two Houses of Parliament in case of a disagreement between Lok Sabha and
Rajya Sabha on a non-money bill. So far thrice such joint sittings have been
summoned. The President has the right to address and send messages to Parliament.
The President addresses both Houses of Parliament jointly at the first session after
every general election as well as commencement of the first session every year.
These addresses contain policies of the government of the day.
Every bill passed by Parliament is sent to the President for his/her assent. The
President may give his/her assent, or return it once for the reconsideration of the
Parliament. If passed again the President has to give her assent. Without his/her
assent no bill can become a law.
Financial Powers
All money bills are introduced in the Lok Sabha only with the prior approval of the
President. The President has the control over Contingency Fund of India. It enables
her to advance money for the purpose of meeting unforeseen expenses. Annual
budget and railway budget are introduced in the Lok Sabha on the recommendation
of the President. If the Government in the middle of the financial year feels that more
money is required than estimated in the annual budget, it can present supplementary
demands. Money bills are never returned for reconsiderations. The President
appoints the Finance Commission after every five years. It makes recommendations
to the President on some specific financial matters, especially the distribution of
Central taxes between the Union and the States. The President also receives the
reports of the Comptroller and Auditor-General of India, and has it laid in the
Parliament.
Contingency Fund of India: It is a fund kept by the Union Government to meet any
unforeseen expenditure for which money is immediately needed. The President has
full control over this Fund. The President permits withdrawals from this Fund.
Judicial Powers

You have seen above that the President appoints Chief Justice and other judges of
the Supreme Court. The President also appoints Chief Justices and other judges of
the High Courts. The President appoints law officers of the Union Government
including the Attorney-General of India.
The President, as head of state, can pardon a criminal or reduce the punishment or
suspend commute or remit the sentence of a criminal convicted by the Supreme
Court or High Courts for an offence against the federal laws. The President can
pardon a person convicted by a Court Martial. His/her power of pardon includes
granting of pardon even to a person awarded death sentence. But, the President
performs this function on the advice of Law Ministry.
The President enjoys certain immunities. He is above the law and no criminal
proceedings can be initiated against him/her.
Ordinances Making Power of the President of India
Under article 123 The President can also promulgate ordinances during the recess of
the Parliament. Ordinance is an emergent legislation. If legislation is warranted at a
time when the legislature is not in session, the President on the request of the
executive can issue an ordinance having the force and effect of an Act.
However every such ordinance must be laid before both the Houses of Parliament
and shall cease to operate, on the expiry of six weeks from the date of is reassembly,
unless approved by the Parliament. The ordinance also becomes in operative if
before the expiry of six weeks a resolution is passed by Parliament against it. The
ordinance may be withdrawn by the President at any time. Over and above the
President of India have the powers to constitute the Parliament partially by virtue of
his powers to nominate members to both the Houses of the Parliament.
The ordinance making power of the President is co-extensive with the legislative
power of the Parliament. The validity of the ordinance making power of the
President had been challenged in a number of cases and the court has upheld is
constitutionally in its decisions. In a case of S.K.Garg v/s Union of India-1981,

Ordinance making power is to enable the executive or deal with the unforeseen or
urgent matters which might well include a situation created by a law being declared
void by a court of Law. In a case of A. K. Roy v/s Union of India-1982, it was held
that the ordinance was valid and not violate of Article14.
Position of the President
The office of the President is of high dignity and eminence, not of real powers. The
powers formally vested in him/her are actually exercised not by his/her, but by the
Union Council of Ministers, in his/her name. If the President tries to act against the
wishes of the ministers, the President may create a constitutional crisis. The
President may even face impeachment and may have to quit. Thus, the President has
no alternative but to act in accordance with the advice of the Prime Minister, who
after all is head of the real executive. The Prime Minister is in regular touch with the
President.
His/her powers are formal. It is the Council of Ministers headed by the Prime
Minister which is the real executive. In accordance with the 44th Amendment Act of
the Constitution, the President can send back a bill passed by the Parliament for
reconsideration only once. If the bill is again passed by the Parliament, the President
has to give his assent to the bill. In the Constituent Assembly, Dr. B.R. Ambedkar
had rightly said, ―The President occupies the same position as the King in the British
Constitution‖. But in reality the President of India is not a mere rubber stamp. The
Constitution lays down that the President has to preserve, protect and defend the
Constitution. The President can ask a newly appointed Prime Minister to seek a vote
of confidence in the Lok Sabha within a stipulated period of time. All the
administration of the country is carried on in her name. The President can ask for any
information from any minister. All the decisions of the Cabinet are communicated to
the President. The President is furnished with all the information relating to
administration. It is in this context that the utility of the office of the President comes
to be fully realized when the President gives suggestions, encourages and even warns

the government. It is in this context, the President emerges as an advisor, a friend
and even a critic.
By way of conclusion, we may describe the position of the President in the words of
Dr. B.R. Ambedkar. According to him/her, the President is the Head of State but not
the executive. The President represents the nation but does not rule over the nation.
The President is the symbol of nation. His/her place in the administration is that of a
ceremonial head.

Chapter-3
Prime Minister and the Cabinet, Is the Prime Minister Real Head?
Prime Minister of India: Power and Position of the Prime Minister
The office of the Prime Minister is the most powerful office in India. If Cabinet is
the strongest institution, the Prime Minister is the strongest person in the cabinet
under the Constitution of India, the real centre of power is the office of the Prime
Minister. He is the Head of the Government of India. He is the real custodian of all
executive authority.
1. Appointment of the Prime Minister: The Constitution simply lies down that the
Prime Minister is to be appointed by the President. In doing so the President follows
the rules of the parliamentary system. He appoints the leader of the majority in the
Lok Sabha as the Prime Minister. Whenever a party gets a clear majority in Lok
Sabha elections, the President plays a little role and he appoints the leader of such a
party or a coalition group as the Prime Minister. However, in case no party gets a
majority and some parties are even unable to elect a common candidate as their
leader, the President can play a real role in the appointment of the Prime Minister.
(a) Prime Minister need not be always from Lok Sabha: During 1950-96 the
Prime Ministers always belonged to the Lok Sabha. But it was a convention and not
a law. This convention was broken in June 1996, April 1997, May 2004 and May
2009. From May 2004 (for the second consecutive time since May 2009) to May
2014, Dr Manmohan Singh was the Prime Minster and he was a member of the
Rajya Sabha. Thus the convention that Prime Minister always belongs to Lok Sabha
now stands broken. The Prime Minister can be from either House of the Parliament.
The only essential condition is that he must be the adopted or elected leader of
majority in the Lok Sabha.
(b) Prime Minister need not be a sitting member of the Parliament:

Further, that any person who is not a member of either House of the Parliament can
also be a minister or the Prime Minister and he can remain so for six months, within
this period he has to essentially get the membership of either House. In case he fails
to do so, he loses his office of Minister/Prime Minister.
(c) No Formal Qualifications:
The Constitution lays down no formal qualifications for the office of the Prime
Minister. Since no person who is not a member or cannot become a member of the
Parliament can be appointed as the Prime Minister, it can be said that the
qualifications essential for the membership of the Parliament are also the essential
qualifications for the office of the Prime Minister.
(d) Tenure: Theoretically, the Prime Minister holds office during the pleasure of the
President. It really means, so long as he enjoys the confidence of majority in Lok
Sabha. Lok Sabha can pass a vote of no-confidence against him and in this case the
Prime Minister either submits his resignation to the President or gets dismissed by
the President.
Whenever it may appear that the Prime Minister‘s party has lost its majority in the
Lok Sabha, the President can ask him to prove his majority in House. A failure to do
so compels the Prime Minister to either resign forthwith or face dismissal at the
hands of the President.
Powers and Functions of the Prime Minister:
1. Formation of the Council of Ministers: The task of formation of the ministry
begins with the appointment of the Prime Minister by the President. After the
appointment of Prime Minister, the President appoints all other ministers on the
advice of the Prime Minister. The PM determines the strength of his ministry and
selects his team of ministers. However this number cannot be more than 15% of the
total membership of the Lok Sabha.

Normally, most of the ministers are drawn from Lok Sabha. Prime Minister decides
who amongst them shall be the Cabinet Minister and who will be Minister of State or
a Deputy Minister. He can, if he so desires, even have one or two Deputy Prime
Ministers in his Council of Ministers.
2. Allocation of Portfolios:
It is an undisputed privilege of the Prime Minister to allocate portfolios to his
ministers. Which particular department is to be given to which minister, is
determined by him. Any minister objecting to such an allotment invites the wrath of
the Prime Minister and can get completely ignored from the ministry.
3. Change of Portfolios:
The Prime Minister has the power to change the departments (portfolios) of the
ministers at any time. It is his privilege to shuffle and re-shuffle his ministry any
time and as many times as he may like.
4. Chairman of the Cabinet:
The Prime Minister is the leader of the Cabinet. He presides over its meetings. He
decides the agenda of its meetings. In fact all matters in the Cabinet are decided with
the approval and consent of the Prime Minister. It is up to him to accept or reject
proposals for discussions in the Cabinet. All ministers conform to his views and
policies. There is scope for deliberations and discussions but not for opposition.
5. Removal of Ministers:
The Prime Minister can demand resignation from any minister at any time, and the
latter has to accept the wishes of the former. However, if any minister may fail to
resign, the Prime Minister can get him dismissed from the President. In April 2010
Mr. Shashi Throor had to submit his resignation because PM Manmohan Singh had
asked him to do so.
6. Chief Link between the President and the Cabinet:

The Prime Minister is the main channel of communication between the President and
the Cabinet. He communicates to the President all decisions of the Cabinet, and puts
before the Cabinet the views of the President. This is the sole privilege of the Prime
Minister and no other minister can, of his own convey the decisions or reveal to the
President the nature or summary of the issues discussed in the Cabinet.
7. Chief Coordinator:
The Prime Minister acts as the general manager of the state and the chief
coordinator. It is his responsibility to co-ordinate the activities of all the departments
and to secure co-operation amongst all government departments. He resolves all
differences, among the ministers.
8. Leader of the Parliament:
As the leader of the majority in the Lok Sabha, the Prime Minister is also the leader
of the Parliament. In this capacity, it is the PM who, in consultation with the Speaker
of this Lok Sabha, decides the agenda of the House. The summoning and the
proroguing of Parliament are in fact decided by him and the President only acts upon
his advice.
9. Power to get the Parliament dissolved:
The Prime Minister has the power to advise the President in favour of dissolution of
the Lok Sabha. This power of dissolution really means that the members hold their
seats in the House at the mercy of the Prime Minister.
No member likes to contest frequent elections as these involve huge expenditures
and uncertainties. It has been rightly remarked that this is such an important weapon
in the hands of the Prime Minister that it binds his party men, and even the members
of opposition.
10. Director of Foreign Affairs:

As the powerful and real head of the government, the Prime Minister always plays a
key role in determining Indian foreign policy and relations with other countries. He
may or may not hold the portfolio of foreign affairs but he always influences all
foreign policy decisions.
11. Role as the Leader of the Nation:
Besides being the leader of his party and the Lok Sabha, Prime Minister is also the
leader of the nation. General elections are fought in his name. We know that it was
the charismatic and charming personality of Pt. Nehru that used to sweep popular
votes in favour of the Congress party. The personality of the Prime Minister and the
respect and love, that he commands act as a source of strength for his party as well as
the nation. He leads the nation both in times of peace and war.
12. Power of Patronage:
All important appointments are really made by the Prime Minister. These
appointments include Governors, Attorney-General, Auditor General, Members and
Chairman of Public Service Commission, Ambassadors, Consular etc. All high
ranking appointments and promotions are made by the President with the advice of
the Prime Minister.
13. Role of Prime Minister during an Emergency:
The emergency powers of the President are in reality the powers of the Prime
Minister. The President declares an emergency only under the advice of the Cabinet,
which in reality means the advice of the Prime Minister. All decisions taken to meet
an emergency are really the decisions of the Prime Minister.
The Prime Minister can get the imposition of President‘s rule in a State. The
Presidential decision in favour of imposing an emergency in a state is always
governed by the decision of the Prime Minister and his Cabinet.
Position of the Prime Minister:

(a) The office of PM is very powerful:
A study of the powers and functions of the Prime Minister clearly brings out the fact
that he holds the most powerful office in the Indian. He exercises real and formidable
powers in all spheres of governmental activity—executive, legislative and financial.
The Prime Minister is the captain of the ship of state, the key stone of cabinet arch,
the steering wheel of government, and the moon amongst lesser stars.
The whole organisation and working of the Council of Ministers depend upon the
Prime Minister. The President always acts in accordance with the advice of the
Prime Minister. The ministry-making is the sole right of the Prime Minister. The
resignation or removal of the Prime Minister always means the resignation of the
Council of Ministers. Hence, Prime Minister is the centre of gravity and the
foundation stone of the Council of Ministers.
(b) The President of India always acts upon the advice of the PM:
The President always acts upon the advice of the Prime Minister. The constitution
assigns to the latter the role of being the chief advisor to the President. All the
powers of the President, both the normal powers and the emergency powers, are
really the powers of the Prime Minister.
As the head of the government, leader of the Cabinet, leader of the majority, leader
of the Parliament and the leader of the nation, the Prime Minister plays an important
an powerful role in the Indian Political System. Indeed the Prime Minister occupies a
very powerful rather the most powerful position in India.
(c) The PM cannot become a dictator:
Undoubtedly, the Prime Minister of India enjoys a very strong position, yet he can
neither be a dictator nor even behave like a dictator. His office is a democratic office
to which he rises only through an effective participation in the democratic process.
The party to which the Prime Minister belongs, his own ministerial colleagues who
are also his competitors, the leaders of the opposition parties, the President of India,

the Parliament, the Press, the Constitution, and the public in general, all act as
limitations upon him. These prevent him from becoming a dictator and from acting
in an arbitrary way. His personality and skills are continuously on test. Any failure or
lapse can cause his exit.
The office of the Prime Minister of India is a powerful democratic office. Its actual
working depends upon the personal qualities and political status of the person who
holds this office. However no one can convert his office into an authoritarian or
dictatorial office. A person can remain Prime Minister only so long as he follows
democratic norms and values.

Chapter-4
Distribution of Legislative Powers between Union and the States,
Territorial and Topical Distribution of Powers, Power of Parliament
to Legislate on State Matters, Doctrine of Territorial Nexus,
Doctrine of Pith and Substance, Doctrine of Colorable Legislation
Distribution of Legislative Powers between the Centre and States
Our Constitution is one of the very few that has gone into details regarding the
relationship between the Union and the States. A total of 56 Articles from Article
245 to 300 in Part XI and XII are devoted to the State-Centre relations. Part XI
(Articles 245-263) contains the legislative and administrative relations and Part XII
(Articles 246-300) the financial relations.
By going into great details of the relations, the Constitution framers hope to
minimize the conflicts between the centre and the states. By and large, the
confrontations between the two have been minimal.
Legislative Relations (Articles 245-255):
From point of view of the territory over which the legislation can have effect, the
jurisdiction of a State Legislature is limited to the territory of that State. But in the
case of Parliament, it has power to legislate for the whole or any part of the territory
of India i.e. States, Union Territories or any other areas included for the time being
in the territory of India. Parliament has the power of ‗extraterritorial legislation‘
which means that laws made by the Union Parliament will govern not only persons
and property within the territory of India, but also Indian subjects resident and their
property situated anywhere in the world. Only some provisions for scheduled areas,
to some extent, limit the territorial jurisdiction of Parliament.
Legislative Methods of the Union to Control over States:
(i) Previous sanction to introduce legislation in the State Legislature (Article 304).

(ii) Assent to specified legislation which must be reserved for consideration [Article
31 A (1)].
(iii) Instruction of President required for the Governor to make Ordinance relating to
specified matters [Article 213(1)].
(iv)Veto power in respect of other State Bills reserved by the Governor (Article 200).
The Three Lists:
As for the subjects of legislation the Constitution has adopted, as if directly from the
Government of India Act, 1935, a three-fold distribution of legislative powers
between the Union and the States, a procedure which is not very common with
federal constitutions elsewhere.
The Constitutions of the United States and Australia provided a single enumeration
of powers—power of the Federal Legislature— and placed the residuary powers in
the hands of the States.
Canada provides for a double enumeration, dividing the legislative powers between
the Federal and State legislatures. The Indian Constitution introduces a scheme of
three-fold enumeration, namely, Federal, State and Concurrent.
List I includes all those subjects which are in the exclusive jurisdiction of
Parliament.
List II consist of all the subjects which are under exclusive jurisdiction of the State
Legislature, and
List III which is called the Concurrent List, consists of subjects on which both
Parliament and the
State legislatures can pass laws.
(i) Union List:

List I, or the Union List, includes 99 items, including residuary powers, most of them
related to matters which are exclusively within the jurisdiction of the Union. Subjects
of national importance requiring uniform legislation for the country as a whole are
inducted in the Union List.
The more important examples are defense, armed forces, arms and ammunition,
atomic energy, foreign affairs, coinage, banking and insurance. Most of them are
matters in which the State legislatures have no jurisdiction at all.
But, there are also items dealing with inter-state matters like inter-state trade and
commerce regulation and development of inter-state rivers and river valleys, and
inter-state migration, which have been placed under the jurisdiction of the Union
Parliament.
Certain items in the Union List are of such a nature that they enable Parliament to
assume a role in certain spheres in regard to subjects which are normally intended to
be within the jurisdiction of the
States; one such example is that of industries.
While assigned primarily to the State List; industries, the control of which by the
Union is declared by a law of Parliament, to be expedient in the public interest‘ are
to be dealt with by parliamentary legislation alone. Parliament, by a mere
declaration, can take over as many industries as it thinks fit.
It is under this provision that most of the big industries, like iron, steel and coal, have
been taken over by Parliament under its jurisdiction. Similarly, while museums,
public health, and agriculture etc. come under State subject, certain institutions like
the National Library and National Museum at New Delhi and the Victoria Memorial
in Calcutta have been placed under the jurisdiction of Parliament on the basis of a
plea that they are financed by the Government of India wholly or in part and declared
by a law of Parliament to be institutions of national importance.

The university is a State subject but a number of universities have been declared as
Central Universities and placed under the exclusive jurisdiction of Parliament.
Elections and Audit, even at the State level, were considered matters of national
importance. The Extensive nature of the Union List thus places enormous powers of
legislation even over affairs exclusively under the control of the States in the hands
of Parliament.
(ii) State List:
List II or the State List, comprises 61 items or entries over which the State
Legislature has exclusive power of legislation. The subject of local importance,
where variations in law in response to local situations may be necessary, has been
included in the State List.
Some subjects of vital importance in the list are State taxes and duties, police,
administration of justice, local self-government, public health, agriculture, forests,
fisheries, industries and minerals.
But, in spite of the exclusive legislative jurisdiction over these items having been
given to the States, the Constitution, through certain reservations made in the Union
List has given power to Parliament to take some of these items under its control.
Subject to these restrictions, one might say, the States have full jurisdiction over
items included in the State list.
(iii) Concurrent List:
The inclusion of List III or the Concurrent List, in the Constitution gives a particular
significance to the distribution of legislative power in the Indian federal scheme. The
Concurrent List consists of 52 items, such as criminal law and procedure, civil
procedure, marriage, contracts, port trusts, welfare of labour, economic and social
planning.

These subjects are obviously such as may at some time require legislations by
Parliament and at other by a State Legislature. The provision of a Concurrent List
has two distinct advantages.
In certain matters in which Parliament may not find it necessary or expedient to
make laws, a Sate can take the initiative, and if other States follow and the matter
assumes national importance, Parliament can intervene and bring about a uniform
piece of legislation to cover the entire Union Territory.
Similarly, if a State finds it necessary to amplify a law enacted by Parliament on an
item included in the Concurrent List in order to make it of a greater use of its own
people, it can do so by making supplementary laws.
The items included in the Concurrent List can be broadly divided into two groups-
those dealing with general laws and legal procedure, like criminal law, criminal
procedure, marriage, divorce, property law, contracts etc, and those dealing with
social welfare such as trade unions, social security, vocational and technical training
of labour, legal, medical and other professions etc.; while the items coming under the
first group are of primary importance to the Union Government, they have been left,
by convention, to Parliament. In matters of social welfare, it is open to the State
legislatures either to take the initiative in making laws or to enact laws which are
supplementary to the Parliamentary laws.
Predominance of Union Law:
In case of over-lapping of a matter between the three Lists, predominance has been
given to the Union. If however, the State law was reserved for the assent of the
President and has received such assent, the State law may prevail notwithstanding
such repugnance. But it would still be competent for Parliament to override such
State law by subsequent legislation.
Residuary Powers:

The Constitution vests the residuary power, i.e., the power to legislate with respect to
any matter not enumerated in any one of the three Lists in the Union Legislature
(Art. 248). It has been left to the courts to determine finally as to whether a particular
matter falls under the residuary power or not.
It may be noted, however, that since the three lists attempt an exhaustive
enumeration of all possible subjects of legislation, and courts generally have
interpreted the sphere of the powers to be enumerated in a liberal way, the scope for
the application of the residuary powers has remained considerably restricted.
Expansion of the Legislative Powers of the Union under Different
Circumstances:
(a) In the National Interest:
Parliament shall have the power to make laws with respect to any matter included in
the State List for a temporary period, if the Council of States declares by a resolution
of 2/ 3 of its members present and voting, that it is necessary in the national interest
(Article-249).
(b) Under the Proclamation of National or Financial Emergency:
In this circumstance, Parliament shall have similar power to legislate with respect to
State Subjects (Article-250).
(c) By Agreement between States:
If the Legislatures of two or more States resolve that it shall be lawful for Parliament
to make laws with respect to any matters included in the State List relating to those
States, Parliament shall have such power (Article-252).
It shall also be open to any other State to adopt such Union legislation in relation to
itself by a resolution passed on behalf of the State legislature. In short, this is an
extension of the jurisdiction of the Union Parliament by consent of the Legislatures.
(d) To implement treaties:

Parliament shall have the power to legislate with respect to any subject for the
purpose of implementing treaties or international agreements and conventions
(Article-253).
(e) Under a Proclamation of Failure of Constitutional Machinery in the States:
When such a Proclamation is made by the President, the President may declare that
the powers of the legislature of the State shall be exercisable by or under the
authority of Parliament (Article-356).
Doctrine of Pith and Substance and the Constitution of India
Introduction
The basic purpose of this doctrine is to determine under which head of power or field
i.e. under which list (given in the Seventh Schedule) a given piece of legislation falls.
Pith means ‗true nature‘ or ‗essence of something‘ and Substance means ‗the most
important or essential part of something‘.
Definition: - Pith and substance of law i.e. the true object of the legislation or a
statute relates to a matter with the competence of legislature which enacted it. It
should be held to be intra-virus even though it incidentally trench on matter not
within the competence of the legislation. In order to ascertain true character of the
legislation one must have regard to the enactment as a whole to its object and to the
scope and effect of its provisions as held in a case of A.S.Krishna v/s State of
Madras-1957.
Doctrine of Pith and Substance says that where the question arises of determining
whether a particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter. Thus, if the substance falls
within Union List, then the incidental encroachment by the law on the State List does
not make it invalid.

This is essentially a Canadian Doctrine now firmly entrenched in the Indian
Constitutional Jurisprudence. This doctrine found its place first in the case of
Cushing v. Dupey. In this case the Privy Council evolved the doctrine, that for
deciding whether an impugned legislation was intra vires, regard must be had to its
pith and substance.
Need for the Doctrine of Pith and Substance in the Indian Context
The doctrine has been applied in India also to provide a degree of flexibility in the
otherwise rigid scheme of distribution of powers. The reason for adoption of this
doctrine is that if every legislation was to be declared invalid on the grounds that it
encroached powers, the powers of the legislature would be drastically circumscribed.
―It is settled law of interpretation that entries in the Seventh Schedule are not powers
but fields of legislation. The legislature derives its power from Article 246 and other
related articles of the Constitution. Therefore, the power to make the Amendment
Act is derived not from the respective entries but under Article 246 of the
Constitution. The language of the respective entries should be given the widest scope
of their meaning, fairly capable to meet the machinery of the Government settled by
the Constitution. Each general word should extend to all ancillary or subsidiary
matters which can fairly and reasonably be comprehended in it. When the vires of an
enactment is impugned, there is an initial presumption of its constitutionality and if
there is any difficulty in ascertaining the limits of the legislative power, the difficulty
must be resolved, as far as possible in favour of the legislature putting the most
liberal construction upon the legislative entry so that it may have the widest
amplitude.‖
Incidental or Ancillary Encroachment
The case of Prafulla Kumar Mukherjee v. The Bank of Commerce succinctly
explained the situation in which a State Legislature dealing with any matter may
incidentally affect any Item in the Union List. The court held that whatever may be
the ancillary or incidental effects of a Statute enacted by a State Legislature, such a

matter must be attributed to the Appropriate List according to its true nature and
character.
Thus, we see that if the encroachment by the State Legislature is only incidental in
nature, it will not affect the Competence of the State Legislature to enact the law in
question. Also, if the substance of the enactment falls within the Union List then the
incidental encroachment by the enactment on the State List would not make it
invalid.
However, the situation relating to Pith and Substance is a bit different with respect to
the Concurrent List. If a Law covered by an entry in the State List made by the State
Legislature contains a provision which directly and substantially relates to a matter
enumerated in the Concurrent List and is repugnant to the provisions of any existing
law with respect to that matter in the Concurrent List, then the repugnant provision in
the State List may be void unless it can coexist and operate without repugnancy to
the provisions of the existing law.
Important Supreme Court Judgments on the Doctrine of Pith and Substance
There are hundreds of judgments that have applied this doctrine to ascertain the true
nature of legislation. We will discuss some of the prominent judgments of the
Supreme Court of India that have resorted to this doctrine.
1. The State of Bombay And Another vs F.N. Balsara - This is the first important
judgment of the Supreme Court that took recourse to the Doctrine of Pith and
Substance. The court upheld the Doctrine of Pith and Substance and said that it is
important to ascertain the true nature and character of legislation for the purpose of
determining the List under which it falls.
2. Mt. Atiqa Begam and Anr. v. Abdul Maghni Khan And Ors. – The court held that
in order to decide whether the impugned Act falls under which entry, one has to
ascertain the true nature and character of the enactment i.e. its ‗pith and substance‘.
The court further said that ―it is the result of this investigation, not the form alone
which the statute may have assumed under the hand of the draughtsman, that will

determine within which of the Legislative Lists the legislation falls and for this
purpose the legislation must be scrutinized in its entirety‖.
3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors – Pith
and Substance has been beautifully explained in this case:
―This doctrine is applied when the legislative competence of the legislature with
regard to a particular enactment is challenged with reference to the entries in various
lists. If there is a challenge to the legislative competence, the courts will try to
ascertain the pith and substance of such enactment on a scrutiny of the Act in
question. In this process, it is necessary for the courts to go into and examine the true
character of the enactment, its object, its scope and effect to find out whether the
enactment in question is genuinely referable to a field of the legislation allotted to
the respective legislature under the constitutional scheme.
This doctrine is an established principle of law in India recognized not only by this
Court, but also by various High Courts. Where a challenge is made to the
constitutional validity of a particular State Act with reference to a subject mentioned
in any entry in List I, the Court has to look to the substance of the State Act and on
such analysis and examination, if it is found that in the pith and substance, it falls
under an entry in the State List but there is only an incidental encroachment on any
of the matters enumerated in the Union List, the State Act would not become invalid
merely because there is incidental encroachment on any of the matters in the Union
List.‖
Doctrine of Territorial Nexus and the Constitution of India
Territorial Nexus and the Parliament
1. Article 245 (2) of the Constitution of India makes it amply clear that ‗No law
made by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation‘. Thus legislation cannot be questioned on the ground that
it has extra-territorial operation.

2. It is well-established that the Courts of our country must enforce the law with the
machinery available to them; and they are not entitled to question the authority of the
Legislature in making a law which is extra-territorial.
3. Extra-territorial operation does not invalidate a law. But some nexus with India
may still be necessary in some of the cases such as those involving taxation statutes.
Territorial Nexus and the State Legislature
The Legislature of a State may make laws for the whole or any part of the State.
Now, this leaves it open to scrutiny whether a particular law is really within the
competence of the State Legislature enacting it. There are plethoras of cases that
have stated that the laws which a state is empowered to make must be for the
purpose of that State.
Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There
are two conditions that have been laid down in this respect:
1. The Connection (nexus) must be real and not illusory.
2. The liability sought to be imposed must be pertinent to that connection.
If the above two conditions are satisfied, any further examination of the sufficiency
of Nexus cannot be a matter of consideration before the courts.
In various cases relating to taxation statutes, the courts have time and again stated
that it is not necessary that the sale or purchase should take place within the
Territorial Limits of the State. Broadly speaking local activities of buying or selling
carried in the State in relation to local goods would be sufficient basis to sustain the
taxing power of the State, provided of course, such activities ultimately result in
concluded sale or purchase to be taxed.

There is also a Presumption of Constitutionality that the Legislature is presumed not
to have exceeded its constitutional powers and a construction consistent with those
powers is to be put upon the laws enacted by the Legislature.
Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws with respect to
aspects or causes that occur, arise or exist, or maybe expected to do so, within the
territory of India and also with respect to extra-territorial aspects or causes that have
an impact or nexus with India.
―Such laws would fall within the meaning, purport and ambit of grant of powers of
Parliament to make laws ‗for the whole or any part of the territory of India‘ and they
may not be invalidated on the ground that they require extra territorial operation.
Any laws enacted by the Parliament with respect to extra territorial aspects or cause
that have no nexus with India would be ultra vires and would be laws made for a
foreign territory.‖
This clearly indicates that as long as the law enacted by the Parliament has a nexus
with India, even if such laws require extra territorial operation, the laws so enacted
cannot be said to constitutionally invalid. It is only when the ‗laws enacted by the
Parliament with respect to extra territorial aspects or causes that have no nexus with
India‘ that such laws ‗would be ultra vires.
In granting the Parliament the powers to legislate ‗for‘ India, and consequently also
with respect to extra-territorial aspects or causes, the framers of our Constitution
certainly intended that there be limits as to the manner in which, and the extent to
which, the organs of the State, including the Parliament, may take cognizance of
extra-territorial aspects or causes, and exert the State powers (which are the powers
of the collective) on such aspects or causes.
Doctrine of Public Trust requires that all legislation by the Parliament with respect to
extra-territorial aspects or causes be imbued with the purpose of protecting the
interests of, the welfare of and the security of India, along with Article 51, a

Directive Principle of State Policy, though not enforceable in a court of law,
nevertheless fundamental to governance, lends unambiguous support to the
conclusion that Parliament may not enact laws with respect to extra-territorial
aspects or causes, wherein such aspects or causes have no nexus whatsoever with
India.
Doctrine of Colorable Legislation
Introduction
Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool
devised and applied by the Supreme Court of India to interpret various Constitutional
Provisions. It is a guiding principle of immense utility while construing provisions
relating to legislative competence. Before knowing what this doctrine is and how it is
applied in India, let us first understand the genesis of Doctrine of Colorable
Legislation.
Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine
of Separation of Power. Separation of Power mandates that a balance of power is to
be struck between the different components of the State i.e. between the Legislature,
the Executive and the Judiciary. The Primary Function of the legislature is to make
laws. Whenever, Legislature tries to shift this balance of power towards itself then
the Doctrine of Colorable Legislation is attracted to take care of Legislative
Accountability.
Definition: Black‘s Law Dictionary defines ‗Colorable‘ as:
1. Appearing to be true, valid or right.
2. Intended to deceive; counterfeit.
3. ‗Color‘ has been defined to mean ‗Appearance, guise or semblance‘.

The literal meaning of Colorable Legislation is that under the ‗color‘ or ‗guise‘ of
power conferred for one particular purpose, the legislature cannot seek to achieve
some other purpose which it is otherwise not competent to legislate on.
This Doctrine also traces its origin to a Latin Maxim:
―Quando aliquid prohibetur ex directo, prohibetur et per obliquum‖
This maxim implies that ―when anything is prohibited directly, it is also prohibited
indirectly‖. In common parlance, it is meant to be understood as ―Whatever
legislature can‘t do directly, it can‘t do indirectly‖.
In our Constitution, this doctrine is usually applied to Article 246 which has
demarcated the Legislative Competence of the Parliament and the State Legislative
Assemblies by outlining the different subjects under List I for the Union, List II for
the States and List III for both, as mentioned in the Seventh Schedule.
This doctrine comes into play when a Legislature does not possess the power to
make law upon a particular subject but nonetheless indirectly makes one. By
applying this principle the fate of the Impugned Legislation is decided.
Supreme Court on Colorable Legislation
One of the most cogent and lucid explanations relating to this doctrine was given in
the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa:
―If the Constitution of a State distributes the legislative powers amongst different
bodies, which have to act within their respective spheres marked out by specific
legislative entries, or if there are limitations on the legislative authority in the shape
of fundamental rights, questions do arise as to whether the legislature in a particular
case has or has not, in respect to the subject-matter of the statute or in the method of
enacting it, transgressed the limits of its constitutional powers.
Such transgression may be patent, manifest or direct, but it may also be disguised,
covert and indirect and it is to this latter class of cases that the expression ‗Colorable

Legislation‘ has been applied in certain judicial pronouncements. The idea conveyed
by the expression is that although apparently a legislature in passing a statute
purported to act within the limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be a mere presence or disguise.‖
This Doctrine is also called as ―Fraud on the Constitution‖. The failure to comply
with a Constitutional condition for the exercise of legislative power may be overt or
it may be covert. When it is overt, we say the law is obviously bad for non-
compliance with the requirements of the Constitution, that is to say, the law is ultra
vires. When, however, the non-compliance is covert, we say that it is a ‗fraud on the
Constitution‘; the fraud complained of being that the Legislature pretends to act
within its power while in fact it is not so doing.
Limitations on the Application of Doctrine of Colorable Legislation
1. The doctrine has no application where the powers of a Legislature are not fettered
by any Constitutional limitation.
2. The doctrine is also not applicable to Subordinate Legislation.
3. The doctrine of colorable legislation does not involve any question of bona fides
or mala fides on the part of the legislature. The whole doctrine resolves itself into
the, question of competency of a particular legislature to enact a particular law.
If the legislature is competent to pass a particular law, the motives which impelled it
to act are really irrelevant. On the other hand, if the legislature lacks competency, the
question of motive does not arise at all. Whether a statute is constitutional or not is
thus always a question of power.
4. A logical corollary of the above-mentioned point is that the Legislature does not
act on Extraneous Considerations. There is always a Presumption of
Constitutionality in favour of the Statute. The principle of Presumption of

Constitutionality was succinctly enunciated by a Constitutional Bench in Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.
―That there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been a
clear transgression of the constitutional principles.‖
There is a very famous rule of interpretation as well that explains why the courts
strongly lean against a construction which reduces the statute to a futility. The Latin
Maxim ―construction ut res magis valeat quam pereat‖ implies that a statute or any
enacting provision therein must be so construed as to make it effective and operative.
The courts prefer construction which keeps the statute within the competence of the
legislature.
5. When a Legislature has the Power to make Law with respect to a particular
subject, it also has all the ancillary and incidental power to make that law an
effective one.
6. As already discussed above that the transgression of Constitutional Power by
Legislature may be patent, manifest or direct, but may also be disguised, covert and
indirect and it is only to this latter class of cases that the expression ―Colorable
Legislation‖ is being applied.

Chapter-5
Emergency Provisions with Special References to Proclamation of
Emergency and President's Rule
Emergency is a unique feature of Indian Constitution that allows the center to
assume wide powers so as to handle special situations. In emergency, the center can
take full legislative and executive control of any state. It also allows the center to
curtail or suspend freedom of the citizens. Existence of emergency is a big reason
why academicians are hesitant to call Indian constitution as fully federal. Emergency
can be of three types - Due to war, external aggression or armed rebellion, failure of
constitutional machinery in a state, or financial emergency. However, technically,
Proclamation of Emergency is only done upon external aggression or armed
rebellion. In the second case, it is called Presidential Rule, and in the third case it is
called "Proclamation of Financial Emergency:
Proclamation of Emergency
Article 352 says that if the President is satisfied that a grave emergency exists
whereby the security of India or any part of India is threatened due to outside
aggression or armed rebellion, he may make a proclamation to that effect regarding
whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon
the written advise of the Union Cabinet. Such a proclamation must be placed before
each house of the parliament and must be approved by each house with in one month
otherwise the proclamation will expire.
An explanation to article 352 says that it is not necessary that external aggression or
armed rebellion has actually happened to proclaim emergency. It can be proclaimed
even if there is a possibility of such thing happening.
• In the case of Minerva Mills vs Union of India AIR 1980, SC held that there
is no bar to judicial review of the validity of the proclamation of emergency issued

by the president under 352(1). However, court's power is limited only to examining
whether the limitations conferred by the constitution have been observed or not. It
can check if the satisfaction of the president is valid or not. If the satisfaction is
based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
• Prior to 44th amendment, duration of emergency was two months initially
and then after approval by the houses, it would continue indefinitely until ended by
another proclamation. However after 44th amendment, the period is reduced to 1
month and then 6 months after approval.
Effects of Proclamation of emergency
The following are the effects arising out of proclamation of emergency in article 352.
Article 353
1. Executive power of the Union shall extend to giving directions to any state.
2. Parliament will get power to make laws on subjects that are not in Union list.
3. If the emergency is declared only a part of the count, the powers in 1 and 2 shall
extend to any other part if that is also threatened.
Article 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to
exceptions as deem fit by the president. Every law such made shall be laid before
each house of the parliament.
Article 355 says that it is the duty of the Union to protect States against external
aggression.
Article 358
While proclamation of emergency declaring that security of India or any part of the
territory of India is threatened due to war or external aggression, is in operation, the
state shall not be limited by article 19. In other words, government may make laws

that transgress upon the freedoms given under article 19 during such emergency.
However, such a law will cease to have effect as soon as emergency ends. Further,
every such law or very executive action that transgresses upon freedoms granted by
article 19 must recite that it is in relation to the emergency otherwise, it cannot be
immune from article 19.
It also says that any acts done or omitted to be done under this provision cannot be
challenged in the courts after the end of emergency.
In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights
granted by 14 to 19 are not suspended during emergency but only their operation is
suspended. This means that as soon as emergency is over, rights transgressed by a
law will revive and can be enforced. In this case, a settlement that was reached
before emergency between LIC and its employees was rendered ineffective by a law
during emergency. After emergency was over, SC held that the previous settlement
will revive. This is because the emergency law only suspended the operation of the
existing laws. It cannot completely wash away the liabilities that pre-existed the
emergency.
Article 359
This article provides additional power to the president while proclamation of
emergency is in operation, using which the president can, by an order, declare that
the right to move any court for the enforcement of rights conferred by part III except
article 20 and 21, shall be suspended for the period the proclamation is in operation
of a shorter period as mentioned in the order. Further, every such law or every
executive action recite that it is in relation to the emergency.
Provisions in case of failure of Constitutional machinery is States (i.e. State
Emergency)
Article 356 says that if, upon the report of the Governor of a state, the president is
satisfied that the government. of the state is cannot function according to the
provisions of the constitution, he may, by proclamation, assume to himself all or any

of the functions of the government, or all or any of the powers vested in the
governor, or anybody or any authority in the state except the legislature of the state.
The power of the legislature of the state shall be exercised by the authority of the
parliament.
Under this article, president can also make such incidental and consequential
provisions which are necessary to give effect to the objectives of the proclamation.
This includes suspension of any provision of this constitution relating to anybody or
authority in the state.
However, this article does not authorize the president to assume the powers vested in
the High Courts.
Art 357 provides that in the case of proclamation under art 356
• Parliament can confer upon the president the power of legislature of the state
to make laws or the power to delegate the power to make laws to anybody else.
• The parliament or the president can confer power or impose duties on the
Union or Union officers or Union authorities.
• President can authorize the expenditure from the consolidated fund of the
state pending sanction of such expenditure by the parliament.
Important instances of invocation of Art 356
This article has been invoked over a hundred times.
1. Dissolution of 9 state assemblies in 1977 by Janata Party government.
This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In
this case, SC held that the decision of the president is not only dependent on the
report of the governor but also on other information. The decision is entirely political

and rests with the executive. So it is not unconstitutional per se. However, courts can
validate the satisfaction of the president that it is no mala fide.
2. Dissolution of 9 state assemblies in 1980 by Congress party govt.
3. Dissolution of BJP government in MP, HP, and Rajasthan in 1992.
This was challenged in the case of SR Bommai vs Union of India AIR 1994. In this
case SC held that secularism is a basic feature of the constitution and a state
government. can be dismissed on this ground. It further observed that no party can
simultaneously be a religious party as well as a political party.
Financial Emergency
Article 360 provides that if the president is satisfied that a situation has arisen
whereby the financial security of India or the credit of India or of any part of India is
threatened, he may make a declaration to that effect. Under such situation, the
executive and legislative powers will go to the center. This article has never been
invoked.

Chapter-6
Union Judiciary: Supreme Court of India. Composition and
Jurisdiction
The Union Judiciary, i. e. The Supreme Court (Articles 124-147)
Chapter IV under Part V of the constitution (Union) deals with the Union Judiciary.
The constitution and jurisdiction of Supreme Court is stated in detail from articles
124-147. Unlike the other two branches, executive and legislature, in India Judiciary
is integrated. This means that even though there may be High Courts in states, the
law declared by the Supreme Court shall be binding on all courts within the territory
of India (Article 141). Now let‘s look into the details of each article dealing with the
Union Judiciary.
Supreme Court of India
Article 124: Establishment and Constitution of Supreme Court
(1) There shall be a Supreme Court of India consisting of a Chief Justice of India
and, until Parliament by law prescribes a larger number, of not more than seven other
Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant
under his hand and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem necessary for
the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India shall always be consulted:
Provided further that –
(a) a Judge may, by writing under his hand addressed to the President, resign his
office;

(b) a judge may be removed from his office in the manner provide in clause (4).
(2A) The age of a Judge of the Supreme Court shall be determined by such authority
and in such manner as Parliament may by law provide.
(3) A person shall not be qualified for appointment as a Judge of the Supreme Court
unless he is a citizen of India and –
(a) has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such
Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I: In this clause ―High Court‖ means a High Court which exercises, or
which at any time before the commencement of this Constitution exercised,
jurisdiction in any part of the territory of India.
Explanation II: In computing for the purpose of this clause the period during which a
person has been an advocate, any period during which a person has held judicial
office not inferior to that of a district judge after he became an advocate shall be
included.
(4) A Judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament supported
by a majority of the total membership of that House and by a majority of not less
than two-thirds of the members of that House present and voting has been presented
to the President in the same session for such removal on the ground of proved
misbehavior or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address
and for the investigation and proof of the misbehavior or incapacity of a Judge under
clause (4).

(6) Every person appointed to be a Judge of the Supreme Court shall, before he
enters upon his office, make and subscribe before the President, or some person
appointed in that behalf by him, an oath or affirmation according to the form set out
for the purpose in the Third Schedule.
(7) No person who has held office as a Judge of the Supreme Court shall plead or act
in any court of before any authority within the territory of India.
Article 125: Salaries, etc., of Judges
(1) There shall be paid to the Judges of the Supreme Court such salaries as may be
determined by Parliament by law and, until provision in that behalf is so made, such
salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such privileges and allowances and to such rights
in respect of leave of absence and pension as may from time to time be determined
by or under law made by Parliament and, until so determined, to such privileges,
allowances and rights as are specified in the Second Schedule:
Provided that neither the privileges not the allowances of a Judge nor his rights in
respect of leave of absence or pension shall be varied to his disadvantage after his
appointment.
Article 126: Appointment of acting Chief Justice
When the office of Chief Justice of India is vacant or when the Chief Justice is, by
reason of absence or otherwise, unable to perform the duties of his office, the duties
of the office shall be performed by such one of the other Judges of the Court as the
President may appoint for the purpose.
Article 127: Appointment of ad hoc Judges
(1) If at any time there should not be a quorum of the Judges of the Supreme Court
available to hold or continue any session of the Court, the Chief Justice of India may,
with the previous consent of the President and after consultation with the Chief

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