Legum Baccalaureus (LLB) - Constitutional Law - 2 2nd Semester Syllabus Short Notes
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SYLLABUS SHORT NOTES
UNIT – 1
Legislature
under Indian Constitution
The Indian Constitution provides for a
bicameral legislature at the federal level, consisting of the Rajya Sabha
(Council of States) and the Lok Sabha (House of the People). The Rajya Sabha is
the upper house, with members who are elected by the members of the state
legislative assemblies, while the Lok Sabha is the lower house, with members
who are directly elected by the people of India.
The Constitution also provides for a unicameral
legislature in the states, consisting of a legislative assembly, which is
elected by the people of the state. Some states have a legislative council as
well, which is the upper house of the state legislature and is indirectly
elected by members of local bodies and by the members of the state legislative
assembly.
The role of the legislature is to make laws and
to oversee the functioning of the government. The Parliament of India has the
power to make laws on subjects listed in the Union List, while the state
legislatures have the power to make laws on subjects listed in the State List.
Concurrent List subjects can be legislated by both the Parliament and state
legislatures.
The legislature has several powers and functions,
including passing laws, discussing and debating issues of national and local
importance, approving government budgets and expenditures, scrutinizing the
performance of the government, and holding it accountable.
Union and
State Legislatures
Under the Indian Constitution, there are two
types of legislatures: Union Legislature and State Legislature.
The Union Legislature, also known as the
Parliament of India, is responsible for making laws on matters that are listed
in the Union List and Concurrent List. The Parliament consists of two houses:
the Rajya Sabha (Council of States) and the Lok Sabha (House of the People).
The Rajya Sabha is the upper house and represents the states and union
territories of India, while the Lok Sabha is the lower house and represents the
people of India. The Union Legislature has the power to make laws on subjects
that are of national importance, such as defense, foreign affairs, banking,
currency, and so on.
The State Legislature, on the other hand, is
responsible for making laws on matters that are listed in the State List and
Concurrent List. Each state in India has its own legislature, which consists of
two houses: the Vidhan Sabha (Legislative Assembly) and the Vidhan Parishad
(Legislative Council). The Vidhan Sabha is the lower house and is directly
elected by the people of the state, while the Vidhan Parishad is the upper
house and is indirectly elected by the members of the Vidhan Sabha and by
members of local bodies, such as municipalities and panchayats. The State
Legislature has the power to make laws on subjects that are of state or local
importance, such as public order, police, health, education, and so on.
UNION AND
STATE LEGISLATURE Composition, Powers, Functions and Privileges
Composition, powers, functions, and privileges
of the Union and State Legislatures in India are as follows:
1.
Composition: The Union Legislature is known as the Parliament and is composed of two
houses, namely the Rajya Sabha (Council of States) and the Lok Sabha (House of
the People). The Rajya Sabha represents the states and territories of the
Union, while the Lok Sabha represents the people of India. The State
Legislature is known as the Vidhan Sabha and is composed of two houses in some
states and a single house in others.
2.
Powers:
The Parliament is empowered to make laws on all subjects listed in the Union
List and Concurrent List, while the State Legislature can make laws on subjects
listed in the State List and Concurrent List. However, in case of a conflict
between a Union law and a State law on a concurrent subject, the Union law
prevails. The Parliament also has the power to make laws on subjects listed in
the State List in certain circumstances, such as during a national emergency.
3.
Functions:
The primary function of the Parliament is to make laws. It also has the power
to amend the Constitution, approve the budget, and control the executive. The
State Legislature also has the power to make laws, approve the budget, and
control the executive at the state level.
4.
Privileges:
Members of the Parliament and State Legislature enjoy certain privileges and
immunities, such as freedom of speech in the house, protection from arrest
during the session, and exemption from attendance in court during the session.
They also receive certain perks, such as salary, allowances, and pensions.
In summary, the Union and State Legislatures
are important pillars of the Indian democracy, and their composition, powers,
functions, and privileges are enshrined in the Constitution of India.
Anti-Defection
Law
Anti-Defection Law is a law in India which was
enacted to prevent elected Members of Parliament (MPs) and Members of
Legislative Assembly (MLAs) from switching political parties after being
elected. This law was enacted to ensure that elected representatives do not
switch parties for personal gain, thereby affecting the stability of the
government.
The Anti-Defection Law was enacted through the
52nd Amendment to the Indian Constitution in 1985. According to this
law, if an elected member of a legislative body voluntarily gives up his/her
membership of a political party or disobeys the directives issued by the party
leadership on a vote, he/she will be disqualified from being a member of the
House.
The law also specifies that if two-thirds of
the members of a political party in a House decide to merge with another
political party, the members who do not want to join the new party will not be
disqualified.
The main purpose of the Anti-Defection Law is
to prevent the horse-trading of elected representatives and to maintain the stability of the
government. This law helps to ensure that the elected representatives remain
loyal to the party on whose ticket they were elected, and it helps to prevent
the formation of unstable governments.
The Anti-Defection Law gives more power to the
political parties to control their members, and it has helped to reduce the
frequency of defections. However, it has also been criticized for being
undemocratic, as it restricts the freedom of elected representatives to act
according to their conscience. It has also been criticized for giving too much
power to the political parties, and for not allowing the elected
representatives to act independently.
Executive
under Indian Constitution
The Executive is one of the three branches of
the government under the Indian Constitution. The President of India is the
head of the Indian Executive, while the Prime Minister of India is the head of
the Council of Ministers, which is the real executive power. The Executive
includes the President, Vice President, Prime Minister, Council of Ministers,
Cabinet Secretary, and other civil servants.
The Executive has been granted with the
following powers and functions under the Indian Constitution:
·
The
power to execute and implement the laws passed by the Legislature.
·
The
power to make rules and regulations for carrying out the laws passed by the
Legislature.
·
The
power to administer the day-to-day affairs of the country.
·
The
power to manage and control the economy of the country.
·
The
power to represent the country in international affairs.
·
The
power to maintain law and order in the country.
·
The
power to provide security and safety to the citizens of the country.
The Executive enjoys certain privileges and
immunities under the Indian Constitution, such as the privilege of immunity
from legal proceedings for any action taken in official capacity, the privilege
of free speech in Parliament, the privilege of not being answerable in any
court for the exercise of power, and the privilege of confidentiality of
official communications.
President
and Union Council of Ministers
The President and the Union Council of
Ministers are two important components of the executive branch of the Indian
government under the Constitution of India.
The President of India is the head of state and the
commander-in-chief of the armed forces. The President is elected by an
Electoral College, which consists of the elected members of both houses of
Parliament and the Legislative Assemblies of the States. The President's role
is mainly ceremonial, but he/she has certain discretionary powers, including
the power to grant pardons and commute death sentences.
The Union Council of Ministers is the executive branch of the
Central government of India. It consists of the Prime Minister, who is the head
of government, and other ministers. The Council of Ministers is responsible for
the administration of the government, and its primary function is to aid and
advise the President in the exercise of his/her functions. The Council of
Ministers is collectively responsible to the Lok Sabha, the lower house of the
Indian Parliament.
The Council of Ministers is appointed by the
President on the advice of the Prime Minister, and its members are generally
chosen from among the members of Parliament. The Prime Minister is the leader
of the majority party in the Lok Sabha or the leader of a coalition of parties
that has the support of the majority of the members of the Lok Sabha. The
Council of Ministers is responsible for the formulation and implementation of
government policies and programmes, and each minister has specific areas of
responsibility known as portfolios.
The Constitution provides for certain
privileges and immunities for the President and the members of the Council of
Ministers. For example, they enjoy immunity from legal proceedings in respect
of their official acts, and they have access to official residences and other
facilities.
Governor and
State Council of Ministers
Under the Indian Constitution, the Governor
is the executive head of each state. The Governor is appointed by the President
of India and holds office during the pleasure of the President. The Governor
performs various functions and exercises powers such as:
1.
Executive Powers: The Governor is the head of the state executive and has the power to
appoint various officials such as the Chief Minister, the Council of Ministers,
Advocate General, and other state officials. The Governor is also responsible
for appointing the members of the State Public Service Commission and the State
Election Commission.
2.
Legislative Powers: The Governor has the power to summon, prorogue and dissolve the state
legislature. He/she also addresses the state legislature at the beginning of
each session and lays down the policy of the government. The Governor can also
recommend the introduction of certain bills in the state legislature.
3.
Financial Powers: The Governor is responsible for the state's finances and has the power
to recommend the state budget. The Governor also assents to the bills passed by
the state legislature and can withhold his/her assent in certain circumstances.
4.
Judicial Powers: The Governor appoints the judges of the High Court and other
subordinate courts. The Governor also has the power to pardon or commute the
sentences of convicts in the state.
The Council of Ministers in each state is headed by the
Chief Minister and is responsible for the day-to-day administration of the
state. The State Council of Ministers performs various functions and exercises
powers such as:
1.
Executive Powers: The Council of Ministers is responsible for implementing the policies
of the state government. Each minister is responsible for a particular
department and oversees its functioning.
2.
Legislative Powers: The Council of Ministers has the power to introduce bills in the state
legislature and is responsible for defending them. The Council of Ministers can
also recommend the introduction of certain bills in the state legislature.
3.
Financial Powers: The Council of Ministers prepares the state budget and is responsible
for the state's finances.
4.
Judicial Powers: The Council of Ministers does not have any judicial powers, but it is
responsible for appointing the members of various tribunals and other bodies.
Powers and
position of President and Governor
The President and Governor are constitutional
heads of the country and states respectively. The powers and position of the
President and Governor are different as per the Indian Constitution.
Powers and position of President:
The President is the head of the Union
Executive, and all executive actions of the Government of India are taken in
the name of the President. The President is also the Commander-in-Chief of the
Indian Armed Forces. Some of the important powers and positions of the
President are:
1.
Appointment
of the Prime Minister and other Ministers
2.
Summoning
and proroguing of the Parliament
3.
Dissolving
the Lok Sabha
4.
Assent
to Bills passed by Parliament
5.
Making
of ordinances when the Parliament is not in session
6.
Appointment
of Judges of the Supreme Court (Article 124(2)) and High Courts (article 217
(1))
7.
Pardoning
powers (article 72), reprieve – temporary suspension of death sentence, respite
– lesser punishment on special grounds, Remission – reducing the period of
sentence without changing nature of punishment, commutation – replaces with
less severe punishment.
Powers and position of Governor:
The Governor is the head of the State
Executive, and all executive actions of the Government of the State are taken
in the name of the Governor. Some of the important powers and positions of the
Governor are:
1.
Appointment
of the Chief Minister and other Ministers
2.
Summoning
and proroguing of the State Legislature
3.
Dissolving
the Legislative Assembly
4.
Assent
to Bills passed by the State Legislature
5.
Making
of ordinances when the State Legislature is not in session
6.
Appointment
of Judges of the High Court
7.
Pardoning
powers (subject to the advice of the Council of Ministers)
However, it is important to note that the
powers and positions of the President and Governor are limited by the Indian
Constitution, and they are expected to act on the advice of their Council of
Ministers.
UNIT – 2
Judiciary
under Constitution
The judiciary is an essential part of the
Indian Constitution and plays a crucial role in maintaining the rule of law,
protecting the rights of citizens, and upholding the Constitution. The
Constitution of India establishes an integrated judicial system with a
hierarchy of courts, which includes the Supreme Court, High Courts, and
subordinate courts.
The judiciary in India has the following
characteristics:
1.
Independent: The judiciary in India is independent of the legislature and the
executive. Judges are appointed through a process that involves the Chief
Justice of India and other senior judges of the Supreme Court, and they can
only be removed through a process of impeachment.
2.
Integrated: The judiciary in India is integrated, which means that there is a
hierarchy of courts with the Supreme Court at the top, followed by the High
Courts and the subordinate courts.
3.
Judicial Review: The Indian judiciary has the power of judicial review, which means that
it can review and strike down any law or executive action that is found to be
unconstitutional.
4.
Constitutional Interpretation: The judiciary is responsible for interpreting
the Constitution and ensuring that all laws and executive actions conform to
its provisions.
5.
Public Interest Litigation: The Indian judiciary has played a significant
role in protecting the rights of citizens through Public Interest Litigation
(PIL). PIL is a legal action taken by a person or a group of persons in the
interest of the public.
6.
Protecting Fundamental Rights: The Indian judiciary is responsible for protecting
the fundamental rights of citizens guaranteed by the Constitution, including
the right to life, liberty, equality, and freedom of speech and expression.
7.
Writ Jurisdiction: The Indian judiciary has the power to issue writs, which are orders
issued by the court to enforce fundamental rights.
Overall, the judiciary in India is an important
pillar of the Constitution and plays a critical role in ensuring the rule of
law and protecting the rights of citizens.
Supreme
Court
The Supreme Court is the highest judicial forum
and final court of appeal in India, established by Part V, Chapter IV of the
Constitution of India.
Some of the important articles and sections
related to the Supreme Court are:
1.
Article 124: It deals with the establishment and constitution of the Supreme Court.
2.
Article 125: It deals with the salaries and allowances of judges of the Supreme
Court.
3.
Article 126: It deals with the appointment of acting Chief Justice when the office
of Chief Justice of India is vacant or when the Chief Justice is absent or
unable to perform the duties of his office.
4.
Article 127: It deals with the appointment of ad hoc judges in the Supreme Court.
5.
Article 128: It empowers the Supreme Court to sit in Delhi or any other place, as
the Chief Justice of India may decide.
6.
Article 129: It declares the Supreme Court to be a court of record and vests it with
the power to punish for contempt of itself.
7.
Article 130: It provides for the seat of the Supreme Court, which shall be in Delhi.
8.
Article 131: original jurisdiction of the Supreme Court.
9.
Article 132: It provides for the appellate jurisdiction of the Supreme Court in
constitutional matters.
10.
Article 133: It provides for the appellate jurisdiction of the Supreme Court in
civil matters.
11.
Article 134: It provides for the appellate jurisdiction of the Supreme Court in
criminal matters.
12.
Article 137: It provides for the review power of the Supreme Court.
13.
Article 142: It empowers the Supreme Court to pass any order necessary for doing
complete justice in any case or matter pending before it.
14.
Article 144: It provides that all authorities, civil and judicial, shall act in aid
of the Supreme Court.
15.
Article 145: It empowers the Supreme Court to make rules for regulating the practice
and procedure of the court, subject to the law made by the Parliament.
Apart from these, various other articles and
sections of the Constitution deal with the powers and functions of the Supreme
Court in relation to the protection and enforcement of fundamental rights, writ
jurisdiction, advisory jurisdiction, etc.
Appointment
of Judges, Powers and Jurisdiction
The appointment of Judges in the Supreme Court
is made by the President of India in consultation with the Chief Justice of
India and other judges of the Supreme Court, as per Article 124 of the Indian
Constitution. The appointment process also involves consultation with the Chief
Justice of High Court and the Governor of the concerned state, as per Article
217 of the Indian Constitution.
The Supreme Court has the power of judicial
review, which means that it can examine the constitutionality of any law or
executive order passed by the legislature or the executive. It also has the
power to interpret the Constitution and give its opinion on any question of law
referred to it by the President.
The jurisdiction of the Supreme Court is
mentioned in Article 131 of the Indian Constitution. The Supreme Court has
original jurisdiction in any dispute between the Government of India and one or
more states or between the Government of India and any state or states on one
side and one or more states on the other, or between two or more states. It
also has appellate jurisdiction in civil, criminal and constitutional cases,
and advisory jurisdiction in giving its opinion on any question of law referred
to it by the President.
The powers and functions of the Supreme Court
are further elaborated in various provisions of the Constitution, such as
Article 32 (which grants the right to constitutional remedies), Article 137
(which provides for the review of its own judgments), and Article 142 (which
gives the Supreme Court the power to pass any order necessary for doing
complete justice in any cause or matter).
High Courts
High Courts are the second-highest courts in
India's judicial system, below the Supreme Court of India. Each state in India
has a High Court, and some Union Territories also have High Courts. The High
Courts were established under the Indian Constitution, and their powers and
jurisdictions are defined in the Constitution itself.
The appointment and conditions of service of
High Court judges are regulated by the Constitution of India. The judges of a
High Court are appointed by the President of India, on the advice of the Chief
Justice of India, the Governor of the State, and the Chief Justice of the
concerned High Court.
The High Courts have original jurisdiction,
appellate jurisdiction, and revisional jurisdiction. The High Courts have the
power to hear and decide both civil and criminal cases. The High Courts have
the power of judicial review, which allows them to review the decisions of
lower courts and tribunals, as well as the decisions of executive and
legislative authorities.
The High Courts also have the power to issue
writs, including writs of habeas corpus, mandamus, prohibition, quo warranto,
and certiorari. These writs are used to protect the fundamental rights of
citizens, to ensure that the government and other authorities act within the
limits of their powers, and to remedy any injustice done to citizens.
Appointment
and Transfer of Judges
The appointment and transfer of judges of High
Courts are governed by Articles 217 to 222 of the Indian
Constitution.
According to Article 217, the appointment of a
High Court judge is done by the President of India after consultation with the
Chief Justice of India, the Governor of the concerned State, and, in some
cases, with other judges of the same High Court. The consultation process is
carried out by the Chief Justice of the concerned High Court, who consults with
senior judges of the High Court as well as the Advocate General of the State.
The transfer of High Court judges is done by
the President of India after consultation with the Chief Justice of India. The
transfer of judges is generally done in consultation with the concerned High
Court Chief Justice as well. However, the power to transfer a judge from one
High Court to another lies solely with the President of India.
High Courts have original, appellate, and writ
jurisdictions. Under the original jurisdiction, the High Court hears cases that
are first presented to it. Under the appellate jurisdiction, the High Court
hears appeals from lower courts within its jurisdiction. Under the writ
jurisdiction, the High Court can issue writs of habeas corpus, mandamus,
prohibition, quo warranto, and certiorari. These writs are used to protect the
fundamental rights of the citizens.
The High Court has the power to interpret the
Constitution and to declare any law or executive action unconstitutional if it
violates the Constitution. Additionally, the High Court has the power of
judicial review, which allows it to review the actions of the government and
strike down any action that is found to be illegal, arbitrary, or violative of
fundamental rights.
Powers and
Jurisdiction of high courts
The powers and jurisdiction of High Courts in
India are primarily governed by the Constitution of India, which provides for
the establishment of High Courts in every state. Some of the key powers and
jurisdiction of High Courts are as follows:
1.
Writ Jurisdiction: High Courts have the power to issue writs such as habeas corpus,
mandamus, prohibition, quo warranto, and certiorari for the enforcement of
fundamental rights and other legal rights of citizens.
2.
Appellate Jurisdiction: High Courts have the power to hear and dispose of appeals, revisions,
and references against the decisions of subordinate courts within their
respective state.
3.
Supervisory Jurisdiction: High Courts have the power to exercise
supervisory jurisdiction over all subordinate courts within their respective
state, including the power to call for records, review their judgments, and
issue orders and directions.
4.
Original Jurisdiction: High Courts have the power to hear and decide original civil and
criminal cases under certain circumstances, such as disputes between the state
and citizens or disputes between two or more states.
5.
Contempt of Court Jurisdiction: High Courts have the power to punish for
contempt of court, including civil and criminal contempt.
6.
Advisory Jurisdiction: High Courts have the power to provide advisory opinions to the state
government on legal matters, if so requested by the governor of the state.
The appointment and transfer of judges of High
Courts are governed by Article 217 and 222 of the Constitution of India,
respectively. The President of India appoints the judges of High Courts in
consultation with the Chief Justice of India, the governor of the state, and
the chief justice of the High Court concerned. The transfer of judges of High
Courts is also done by the President of India in consultation with the Chief
Justice of India.
Subordinate
Judiciary
The subordinate judiciary in India refers to
the lower courts that operate at the district, sub-district and local levels.
The subordinate judiciary includes the District Courts, Sessions Courts,
Magistrates Courts, and various other types of courts that are established by
the state governments. The judges of these courts are appointed by the
respective state governments, and they have jurisdiction over criminal and
civil matters within their territorial jurisdiction.
The powers and jurisdiction of the subordinate
judiciary are specified under various provisions of the Indian Constitution,
the Code of Criminal Procedure, the Code of Civil Procedure, and other relevant
statutes. Some of the important powers and jurisdiction of the subordinate
judiciary include:
1.
Hearing
and deciding civil and criminal cases within their territorial jurisdiction
2.
Issuing
arrest warrants, summons, and other orders for the production of witnesses and
documents
3.
Conducting
trials and hearing appeals against judgments passed by lower courts
4.
Enforcing
the orders of the higher courts
5.
Administering
oaths and affirmations to witnesses
6.
Regulating
the conduct of the proceedings in the court
7.
Imposing
punishments and fines on those found guilty of offences
The subordinate judiciary is an essential part
of the Indian legal system, and plays a crucial role in ensuring access to
justice for all citizens.
Independence
of judiciary
The independence of the judiciary is a
cornerstone of the Indian Constitution. The Constitution of India has several
provisions to ensure the independence of the judiciary. Some of these
provisions include:
1.
Security of Tenure: Judges of the Supreme Court and High Courts have security of tenure.
They cannot be removed from office except by impeachment, which requires a
two-thirds majority in both Houses of Parliament.
2.
Fixed Salaries: Judges of the Supreme Court and High Courts are paid salaries that are
fixed by law and cannot be varied to their disadvantage during their tenure.
3.
Administrative Control: The administrative control of the Supreme Court and High Courts vests
with the Chief Justice of India and the Chief Justice of the respective High
Court, respectively.
4.
Financial Autonomy: The budget of the judiciary is provided by the government, but it is
not subject to the vote of the legislature. This ensures financial autonomy for
the judiciary.
5.
Separation of Powers: The Constitution of India provides for a clear separation of powers
between the executive, legislature, and judiciary, which ensures that the
judiciary is free from any external influences.
6.
Appointment Process: The appointment of judges of the Supreme Court and High Courts is done
by a collegium system, which ensures that the executive does not have complete
control over the appointment process.
All these provisions ensure that the judiciary
is independent and free from any external influences.
Judicial
Accountability
Judicial accountability refers to the principle
that judges should be held responsible for their actions, decisions, and
conduct in carrying out their duties. This accountability is important to
ensure that judges uphold the rule of law, act in accordance with the
Constitution and laws, and remain impartial and free from bias or corruption.
The Indian Constitution provides for judicial
accountability through various mechanisms. One of the primary mechanisms is the
procedure for impeachment of judges of the Supreme Court and High Courts. Under
Article 124(4) of the Constitution, a judge of the Supreme Court can be removed
from office by an order of the President on the basis of a motion passed by
two-thirds of the members present and voting in each House of Parliament.
Similarly, Article 218(1) provides for the removal of a High Court judge
through a motion passed by the relevant State Legislative Assembly.
Apart from impeachment, the judiciary is also
subject to various forms of accountability through internal and external
mechanisms. The internal mechanisms include the system of judicial review,
whereby the higher courts can review the decisions of lower courts to ensure
that they are in accordance with the Constitution and laws. The external mechanisms
include the power of the Executive to appoint judges, and the power of the
Legislature to amend laws and to impeach judges. Additionally, the judiciary is
also accountable to the public, who have the right to access information about
judicial proceedings, and to criticize and question judicial decisions.
The judiciary also has its own mechanisms for
ensuring judicial accountability, such as the in-house procedure for dealing
with complaints of misconduct against judges. The Supreme Court has also laid
down guidelines for the conduct of judges, and established a mechanism for
investigating complaints of sexual harassment in the workplace.
Overall, judicial accountability is an
important aspect of the functioning of the judiciary, as it helps to ensure
that judges act in accordance with the Constitution and laws, and remain
impartial and free from bias or corruption.
UNIT - 3
Centre State
Relations
Centre-State relations refer to the
relationship between the central government and state governments in a federal
country like India. The Indian Constitution provides for a federal system of
government in which powers and functions are divided between the Centre and the
states.
The Constitution contains several provisions
that define the Centre-State relationship and establish the distribution of
powers between them. Some of the key provisions are:
1. Legislative Powers: The Constitution divides the
legislative powers between the Centre and the states. The Union List contains
subjects on which the Parliament can make laws, the State List contains
subjects on which the state legislatures can make laws, and the Concurrent List
contains subjects on which both the Parliament and the state legislatures can
make laws.
2. Administrative Powers: The Centre has the power to
administer matters listed in the Union List, while the states have the power to
administer matters listed in the State List. Matters listed in the Concurrent
List are administered jointly by the Centre and the states.
3. Financial Powers: The Constitution provides for a
system of fiscal federalism in which both the Centre and the states have the
power to levy and collect taxes. However, some taxes, such as customs duties,
are levied exclusively by the Centre, while others, such as sales tax, are
levied exclusively by the states. The Constitution also provides for the
distribution of financial resources between the Centre and the states through
the Finance Commission.
4. Emergency Provisions: The Constitution provides for three
types of emergencies: national emergency, state emergency, and financial
emergency. During an emergency, the Centre can assume greater control over the
states and their functioning.
5. Inter-State Relations: The Constitution also contains
provisions for the settlement of disputes between the Centre and the states,
and between the states themselves. The Centre has the power to intervene in
matters that affect the interests of more than one state.
Overall, the Constitution seeks to maintain a
delicate balance between the powers of the Centre and the states, while
ensuring that both levels of government work together for the welfare of the
people. The Centre-State relationship in India has evolved over time, and has
been the subject of numerous debates and controversies.
Cooperative
and Competitive Federalism
Cooperative federalism and competitive
federalism are two concepts related to the distribution of power and resources
between the central and state governments in a federal system of government.
Cooperative federalism is a system of federalism where the
central and state governments work together to achieve common goals. It
involves a high degree of cooperation and coordination between the two levels
of government, with the central government providing resources and guidance to
the states to achieve common objectives. In this system, the central government
may also provide financial assistance to the states in order to help them
achieve their goals.
On the other hand, competitive federalism is a
system of federalism where the states compete with each other to attract
investments, industries, and other resources. This system encourages the states
to work on their own development, without much assistance from the central
government. The competition between the states is intended to create a
conducive environment for the growth of industries, which in turn can help in
the development of the country.
Both cooperative and competitive federalism
have their own advantages and disadvantages, and are often used in combination
to achieve the desired outcomes in a federal system of government.
Legislative,
Administrative and Financial Relations
The legislative, administrative, and financial
relations between the Centre and the States are defined in the Indian
Constitution. These relations are based on the principles of federalism, where
powers are divided between the Centre and the States.
Legislative Relations:
The Constitution divides the legislative powers
between the Centre and the States. The Union List consists of subjects on which
the Parliament has exclusive power to legislate. The State List consists of
subjects on which the State Legislature has exclusive power to legislate. The
Concurrent List consists of subjects on which both the Centre and the States
can legislate. In case of a conflict between the laws made by the Centre and
the States on a subject in the Concurrent List, the law made by the Parliament
prevails.
Administrative Relations:
The administrative relations between the Centre
and the States are based on the principle of cooperation and coordination. The
Constitution provides for the appointment of a Governor in each State who is
appointed by the President and acts as the representative of the Centre. The
Governor is responsible for the administration of the State and acts as a link
between the Centre and the State.
Financial Relations:
The Constitution provides for the division of
financial powers between the Centre and the States. The Centre has the power to
levy taxes on the subjects listed in the Union List, while the States have the
power to levy taxes on the subjects listed in the State List. The Constitution
also provides for the distribution of resources between the Centre and the
States through the Finance Commission. The Finance Commission is a constitutional
body appointed by the President that recommends the distribution of resources
between the Centre and the States.
Cooperative Federalism:
Cooperative federalism is a principle of
federalism where the Centre and the States work together to achieve common
goals. It involves the sharing of resources and information, and the
development of policies that are mutually beneficial. The Centre and the States
work together in areas such as education, health, and infrastructure
development.
Competitive Federalism:
Competitive federalism is a principle of
federalism where the States compete with each other to attract investment and
resources. This involves the development of policies that are attractive to
investors and the promotion of economic growth. The Centre also plays a role in
promoting competitive federalism by providing incentives to the States for the
development of infrastructure and other initiatives.
Cooperation
and Coordination between the Centre and States
Cooperation and coordination between the Centre
and States are essential for the smooth functioning of the federal structure of
India. The Constitution of India provides for various mechanisms to ensure
cooperation and coordination between the Centre and States.
Some of these mechanisms are:
1.
Inter-State Council: The Inter-State Council is a constitutional body that was set up in
1990 under Article 263 of the Constitution. The Council is responsible for
ensuring coordination between the Centre and States on matters of national
importance.
2.
Zonal Councils: There are five Zonal Councils in India that were established to promote
cooperation and coordination among the States in different regions of the
country. The Zonal Councils are advisory bodies that deal with matters of
common interest and concerns of the States.
3.
National Development Council: The National Development Council was
established in 1952 and is responsible for formulating policies and plans for
economic and social development. The Council is headed by the Prime Minister
and includes Chief Ministers of all States and Union Territories.
4.
Finance Commission: The Finance Commission is a constitutional body that is responsible for
recommending the distribution of taxes between the Centre and States. The
Commission also recommends grants-in-aid to States from the Consolidated Fund
of India.
5.
Joint Conferences: Joint conferences are held between the Centre and States to discuss
matters of mutual interest. These conferences are attended by Ministers and
officials from both the Centre and States.
6.
Consultative Committees: The Centre and States have set up various
consultative committees to discuss and resolve issues related to specific
sectors such as education, health, agriculture, and transport.
These mechanisms help in ensuring cooperation
and coordination between the Centre and States and promote the overall
development of the country.
Judicial
Interpretation of Centre-State Relations
The judicial interpretation of Centre-State
relations in India plays a crucial role in defining the distribution of powers
and functions between the Union and the States. The Constitution of India
provides for a federal system of government where both the Union and the States
have their respective areas of jurisdiction and powers. However, the Constitution
also provides for a mechanism for resolving disputes and ensuring harmony
between the two.
The Supreme Court of India has played a
significant role in interpreting and defining the scope and limits of the
Centre-State relations. Some of the key judicial interpretations in this regard
include:
1.
The Doctrine of Federal Supremacy: The Supreme Court has held that in case of a
conflict between the Union and the States on any matter, the Constitution will
prevail, and the Union's view will prevail over the States. This means that the
Union can override any State law in case of a conflict between the two.
2.
The Doctrine of Territorial Nexus: The Supreme Court has held that the Centre can
only legislate on subjects that have a territorial nexus with the Union. This
means that the Centre cannot legislate on matters that are purely within the
State's jurisdiction.
3.
The Doctrine of Colourable Legislation: The Supreme Court has held that the Centre
cannot use its legislative powers to encroach upon the State's areas of
jurisdiction. Any such attempt would be considered a colourable exercise of
power and would be struck down by the Court.
4.
The Doctrine of Cooperative Federalism: The Supreme Court has emphasized the need for
cooperation and coordination between the Centre and the States in matters of
governance. The Court has held that both the Union and the States should work
together in the spirit of federalism to promote the welfare of the people.
Overall, the judicial interpretation of
Centre-State relations in India seeks to strike a balance between the powers
and responsibilities of the Union and the States, while ensuring harmony and
cooperation between the two.
Local Self
Government under 73rd and 74th Amendments, 1992
The 73rd and 74th Amendments to the Indian
Constitution were passed in 1992, which provided constitutional status to the
Panchayati Raj institutions in rural areas and the urban local bodies in urban
areas, respectively. These amendments aimed to promote local self-government
and empower people at the grassroots level.
Under the 73rd Amendment, the Panchayati Raj institutions
have been given powers and responsibilities to prepare plans for economic
development and social justice, and to implement government programs related to
agriculture, rural development, health, and education. They are also empowered
to levy and collect taxes, duties, tolls, and fees.
Under the 74th Amendment, the urban local
bodies, such as Municipal Corporations, Municipalities, and Nagar Panchayats,
have been given powers to plan and implement programs for economic development
and social justice in urban areas. They are also authorized to levy and collect
taxes, duties, tolls, and fees for their functioning.
The 73rd and 74th Amendments also provide for
the reservation of seats for women and scheduled castes and tribes in
Panchayati Raj institutions and urban local bodies.
The Constitution also provides for the
establishment of State Election Commissions to conduct elections to these local
bodies.
The Supreme Court of India has emphasized the
importance of these amendments in strengthening democracy and promoting local
self-government. It has also held that the state governments are duty-bound to
ensure the effective functioning of these institutions and to provide them with
adequate funds and resources for their effective functioning.
UNIT – 4
Liability of
State in Torts and Contracts
The liability of the State in torts and
contracts is an important aspect of administrative law. It refers to the
responsibility of the State for its actions or inactions that result in harm or
injury to individuals or entities.
In the case of torts, the State is held liable
for the wrongful acts of its officials or employees committed during the course
of their duties. The State can also be held liable for its own actions that
result in harm or injury to individuals or entities. The liability of the State
in torts is based on the principle of vicarious liability, which holds the
employer (the State) responsible for the actions of its employees.
In the case of contracts, the State is bound by
the terms of the contract it enters into with individuals or entities. If the
State breaches the terms of the contract, it can be held liable for any damages
or losses suffered by the other party. However, the State is also entitled to
certain privileges and immunities that protect it from liability in certain
circumstances.
The liability of the State in torts and
contracts is determined by the courts based on the specific facts and
circumstances of each case. The State can be held liable for its actions or
inactions only if it is found to have breached its legal obligations.
Freedom of
Interstate Trade, Commerce and Inter course
The Constitution of India provides for freedom
of trade, commerce, and intercourse throughout the territory of India. This
means that citizens and traders have the right to carry on business and trade
with each other in any part of the country without any restrictions or
barriers.
Article 301 of the Constitution guarantees the freedom of
trade, commerce, and intercourse, and prohibits the states from imposing any
restrictions on these activities. However, this freedom is subject to
reasonable restrictions under Article 302, which allows the Parliament
to impose restrictions on trade, commerce, and intercourse in the public
interest.
In addition, the Constitution empowers the
Parliament to create laws for the regulation of interstate trade and commerce
under Article 304. However, such laws should not discriminate
against any state or prevent the free flow of goods across state borders.
The Supreme Court has interpreted the freedom
of interstate trade, commerce, and intercourse as a fundamental right under the
Constitution. The Court has also held that any law or policy that restricts
this freedom should be carefully scrutinized to ensure that it is reasonable
and does not violate the rights of citizens and traders.
Services
under the State
– concurrent list
Services under the State refer to the various
services provided by the government to its citizens. These services can range
from healthcare and education to transportation and public safety.
Under the Indian Constitution, the provision of
services by the State falls under the concurrent list, which means that both
the central and state governments have the power to legislate and make policies
in this area.
The State also employs a large number of people
to provide these services, and these employees are collectively referred to as
the State's services. The recruitment, appointment, and terms of service of
these employees are regulated by various laws and rules made by the government.
Some of the key services provided by the State
in India include healthcare, education, public transportation, law and order,
public utilities, social welfare schemes, and environmental protection. These
services are critical for the development and well-being of the citizens, and
it is the responsibility of the government to ensure their efficient and
effective delivery.
All India
Services
All India Services (AIS) are the group of civil
services of India, which include the Indian Administrative Service (IAS),
Indian Police Service (IPS), and Indian Forest Service (IFS). These services
are constituted under Article 312, Chapter - XIV of the
Constitution of India, and the members of these services serve both the Central
Government and State Governments.
The AIS officers are recruited and trained by
the Union Public Service Commission (UPSC), and once selected, they can be
allotted to any State or Union Territory for their service. These officers work
in key positions in the State and Central Governments, and they are responsible
for policy-making, administration, and implementation of various development
programs.
The AIS officers enjoy special privileges and
powers under the Constitution of India, which includes the power to serve in
any part of the country, irrespective of their place of origin or domicile.
They also have the power to work in the Central Government or any State
Government, and can be transferred or posted to any location as per the needs
of the administration.
The AIS officers are also provided with various
facilities and benefits, including accommodation, medical facilities, travel
allowances, and other perks. They are also provided with various opportunities
for training and development, both within the country and abroad.
Overall, the All-India Services play a crucial
role in the governance and development of India, and they are considered to be
one of the most prestigious and coveted career options in the country.
Public
Service Commissions
Public Service Commissions (PSC) are
independent constitutional bodies responsible for the recruitment and selection
of civil servants in various government departments and organizations. They
were established under Article 315 of the Indian Constitution.
The main functions of the PSCs are:
1.
Conducting recruitment exams: PSCs conduct recruitment examinations for
various posts in the state government and its affiliated organizations.
2.
Advising the state government on matters relating to personnel
management: PSCs
provide advice and guidance to the state government on matters relating to the
recruitment, promotion, and transfer of civil servants.
3.
Conducting interviews: PSCs conduct interviews for selected candidates and make
recommendations for their appointment.
4.
Disciplinary matters: PSCs also deal with disciplinary matters related to civil servants.
There are two types of Public Service
Commissions in India - State Public Service Commissions (SPSC) and Union Public
Service Commission (UPSC). The UPSC is responsible for recruiting civil
servants for the central government, while the SPSCs are responsible for
recruiting civil servants for the state governments.
Election
Commissions
The Election Commission of India is an
independent constitutional authority responsible for administering elections in
India. It was established in accordance with the Constitution of India in 1950
and has its headquarters in New Delhi.
The Election Commission is responsible for
conducting free and fair elections to the Parliament, State Legislative
Assemblies, and offices of the President and Vice-President of India. Its
powers and functions include:
1.
Preparation
of electoral rolls for all elections
2.
Delimitation
of constituencies
3.
Scrutiny
of nomination papers
4.
Conducting
and supervising of elections
5.
Monitoring
election expenditure
6.
Granting
recognition to political parties and allotting election symbols
7.
Imposing
the Model Code of Conduct to ensure free and fair elections
8.
Resolving
disputes related to the conduct of elections
The Election Commission consists of a Chief
Election Commissioner and two Election Commissioners, all appointed by the
President of India. The term of office of the Chief Election Commissioner and other
Election Commissioners is six years, or until they attain the age of 65,
whichever is earlier. The Election Commission has complete financial autonomy,
and its decisions cannot be questioned in any court of law.
UNIT - 5
Emergency
An emergency refers to a situation in which the
normal functioning of a country or region is disrupted by an extraordinary
event, such as war, natural disaster, or political crisis. In the context of
India, there are three types of emergencies that can be declared:
1.
National
Emergency – Article 352
2.
State
Emergency – Article 356
3.
Financial
Emergency – Article 360
During an emergency, the government is granted
certain extraordinary powers, which may include the suspension of certain
fundamental rights. The Constitution provides for the suspension of the right
to freedom of speech and expression, the right to move freely throughout the
territory of India, and the right to form associations or unions. However, the
right to life and personal liberty (Article 21) cannot be suspended. The
Parliament is also empowered to amend the Constitution during an emergency.
Need of
Emergency Powers
Emergency powers are needed to provide a strong
and effective response in situations where the normal functioning of the
government and the administration is severely disrupted. Emergencies such as
natural disasters, armed conflicts, terrorist attacks, and epidemics can cause
widespread damage and instability, and can require a rapid and coordinated
response from the government. Emergency powers can provide the government with
the necessary tools and resources to effectively respond to such situations, and
to protect the safety and security of the citizens. However, emergency powers
also have the potential to be abused, which is why their use must be carefully
regulated and monitored.
Different
kinds of Emergency
Under the Indian Constitution, there are three
types of emergencies that can be imposed by the President of India:
1.
National Emergency: A National Emergency can be
declared when there is a threat to the security of India, either from external
aggression or armed rebellion. This emergency must be approved by the Union
Cabinet, and the President must declare it in writing. It is governed by
Article 352 of the Constitution.
2.
State Emergency: A State Emergency is also known as
President's Rule. It is declared when the President receives a report from
the Governor of a state that the constitutional machinery has broken down in
the state. The President can take direct control of the state's
administration, and the state government is dismissed. It is governed by
Article 356 of the Constitution.
3.
Financial Emergency: A Financial Emergency can be
declared when there is a threat to the financial stability or credit of
India. It gives the President extraordinary powers to regulate the economy of
the country, including the power to reduce salaries, allowances and pensions of
all government officials. It is governed by Article 360 of the Constitution.
Each of these emergencies provides for a
different set of powers and limitations on the government and individuals.
Impact of
Emergency on Federalism and Fundamental Rights
Emergency provisions in the Indian Constitution
allow the government to suspend or override certain fundamental rights during a
state of emergency. This can have significant implications for the balance of
power between the Centre and the States, as well as for individual citizens.
During a national emergency, the President can
assume extra powers and the Centre can issue directions to the States on any
matter. This can result in a significant increase in central control over the
affairs of the States, and can be seen as a threat to the federal structure of
the Constitution.
During an emergency, the government can also
suspend certain fundamental rights guaranteed under the Constitution, including
the right to freedom of speech and expression (Article 19(1)(a)), the right to
life and liberty (Article 21) , and the right to constitutional remedies (
Article 226 and 32) . This can have serious implications for citizens' civil
liberties and can lead to abuse of power.
The impact of an emergency on federalism and
fundamental rights therefore depends on how the emergency provisions are
implemented, and whether they are used judiciously and in accordance with the
Constitution.
Amendment of
Indian Constitution and Basic Structure Theory
The Indian Constitution can be amended in
accordance with the provisions of Article 368. Any amendment must
be passed by both houses of parliament, and if required, ratified by a majority
of state legislatures.
However, the Supreme Court of India has introduced
the doctrine of Basic Structure, which holds that certain fundamental features
of the Constitution cannot be altered by amendment. The Court has held that the
following features are part of the basic structure of the Constitution:
1.
Supremacy
of the Constitution.
2.
Sovereign,
democratic and republican nature of the Indian polity.
3.
Secular
character of the Constitution.
4.
Separation
of powers between the executive, legislature, and judiciary.
5.
Federal
character of the Constitution.
6.
Unity
and integrity of the nation.
7.
Fundamental
rights and directive principles of state policy.
The Basic Structure doctrine ensures that any
amendment that seeks to change these fundamental features is unconstitutional
and cannot be passed.
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