India Constitution

THECONSTITUTION

OF INDIABy

N.K. ACHARYA Advocate

High Court of Andhra PradeshAuthor of: Supreme Court on Constitution of India,

Landmark Judgments of Supreme Court,Landmark Judgments of A.P. High Court,Protection of Women from Domestic Violence Act, 2005,Guide to CPC, Guide to Criminal Law,Commentary on Right to Information Act,Commentary on A.P. VAT, etc. etc.

3rd Edition

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ASIA LAW HOUSE

1

THE CONSTITUTION OF INDIA

Box No. 1

CONSTITUTIONAL REQUIREMENTS AS TO AGE

(1) Age to be enrolled as a voter and 18 years byexercise right to vote 1st January

of the year ofelection

(2) Age to contest the election as a member of 21 yearsGram Panchayat

(3) Age to contest for election as a member of 21 yearsMunicipality

(4) Age to contest as a member of Legislative 25 yearsAssembly

(5) Age to contest as a member of Lok Sabha 25 years

(6) Age to contest for Legislative Council 30 years

(7) Age to contest as a member for Rajya Sabha 30 years

(8) Age to be appointed as Governor 35 years

(9) Age to be appointed as President 35 years

(10) Age to be appointed as Vice President 35 years

(11) Age of retirement of Supreme Court Judge 65 years

(12) Age for retirement of High Court Judge 62 years

Box No. 2

CONSTITUTIONAL BAR AS TO THE JURISDICTION

OF COURTS

(1) Courts are barred to enquire into what advice the Art. 74Ministry has tendered to the President

(2) Authentication of the order made by President Art. 77cannot be questioned in Court

(3) Validity of any action taking place in the Parliament Art. 122cannot be questioned in any Court and no Officerof the Parliament including marshals is answerableto the Court

CONST-1

The Constitution of India2

(4) No Court can entertain any matter in which the Art. 131Supreme Court is invested with special jurisdictionsuch as inter-State disputes and inter-Statesharing of river waters etc.

(5) Governor’s order for dissolution of Assembly Art. 163cannot be questioned in any Court

(6) Legislators are immune from the Court’s Art. 194 &jurisdiction both in respect of actions done by Art. 361-Athem and the speeches delivered by them withinthe precincts of the Parliament / Legislatures

(7) Bar of jurisdiction of Courts in election matters Art.343(O)& Art. 329

(8) Bar of Court’s jurisdiction as regards claims Art. 359arising out of breaches to fundamental rightsduring emergency

(9) Courts cannot add or delete any community, Art. 341 &Scheduled Castes, Scheduled Tribes, Backward Art. 342Classes from the list published by the President

(10) President and Governors are not answerable Art. 361to the Court for anything done in exercise oftheir powers

(11) Courts are barred from enquiring into the treaties Art. 363entered into with the former Indian States

Box No. 3

DUTIES AND FUNCTIONS OF THE PRESIDENT OF INDIA

(1) Appointment of Prime Minister Art. 74

(2) Appointment of Attorney General Art. 76

(3) Can call for information on any subject from the Art. 78Prime Minister

(4) To decide on disqualification of M.Ps. (other Art. 103than for defection)

(5) Summoning of joint session of the Parliament and Art. 108 &making rules for the joint session Art. 118

(6) Assent to the bills Art. 111

(7) Recommendation to the Parliament on demands Art. 117for grants

Box 3

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(8) Power to promulgate ordinances Art. 123

(9) Appointment of Judges Art. 124

(10) Consent for appointment of ad hoc Judges Art. 127

(11) Approval of the rules made by Supreme Court Art. 145for itself

(12) Presidential reference to Supreme Court Art. 143

(13) Approval to the salaries of the staff of Supreme Art. 146Court

(14) Appointment of Comptroller and Auditor General Art. 148

(15) Appointment of Governors Art. 155

(16) Apportionment of expenditure of States which Art. 158have a common Governor

(17) President’s power to entrust duties to any person Art. 160otherwise not provided for

(18) President’s power to make rules as regards the Art. 190persons who are elected to two or more States

(19) Money bill cannot be introduced in Parliament Art. 117without recommendation of the President

(20) President’s power to transfer Judges of the High Art. 222Courts

(21) President’s power to appoint administrators for Art. 239Union Territories

(22) President’s power to decide disputes between the Art. 239administrator of Union territories and his Ministry

(23) President’s power to make regulations for peace Art. 240and good Government for Andamans, Laksha-dweep, Dadra, Nagar Haveli, Daman & Diu andPondicherry

(24) Assent to the laws made by the States on subjects Art. 254in concurrent list

(25) Appointment of Finance Commission Art. 280

(26) President’s assent to the proposals of the States Art. 288to impose tax on water and electricity

(27) All contracts shall be expressed to have been Art. 299signed by the President

Duties and Functions of the President of IndiaBox 3


(28) Service rules shall be framed by the President Art. 309till the Parliament makes a law

(29) Persons appointed by the President shall hold Art. 310their posts at his pleasure

(30) Power to dispense with the enquiry in the interests Art. 311of security in the case of disciplinary proceedingsagainst employees

(31) Effective Consideration of appeal (memorial)to the President Art. 311

(32) Appointment of Union Public Service Commission Art. 316

(33) Appointment of Election Commission Art. 324

(34) Appointment of National Commissions for Art. 338S.Cs., S.Ts. & B.Cs.

(35) Appointment of Commission for scheduled areas Art. 339

(36) Issue notification containing the list of S.Cs., S.Ts. Art. 341& B.Cs. for purpose of reservation & Art. 342

(37) Appointment of Language Commission Art. 344

(38) Proclamation of emergency in the country Art. 352

(39) Proclamation of emergency in the States Art. 356

(40) Proclamation of financial emergency Art. 360

(41) Administration over major ports and aerodromes Art. 364

(42) President shall get translated the Constitution of Art. 394-AIndia into Hindi

Box No. 4

CONSTITUTIONAL PRESCRIPTIONS AS REGARDS TIME

(1) Those who left for Pakistan earlier to 19th July Arts. 5-111948 and those who left for Pakistan between19th July, 1948 upto the commencement of theConstitution and migrated to India are entitled tothe Indian citizenship on certain terms andconditions

(2) Detention beyond 24 hours in police custody Art.22is illegal

(3) Preventive detention beyond three months without Art.22obtaining the opinion of the Advisory Board isillegal

(4) The term of office of the President is five years Art. 56

Box 4

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(5) Election of President shall be held within six Art. 62months of the date of vacancy

(6) Notice of impeachment of President shall be Art. 6114 days

(7) Notice for the removal of the office of the Art. 67Vice-President is 14 days

(8) If the Minister is not a member of the Parliament/ Art. 75State Assembly for six months, he ceases to bea Minister

(9) Life of Parliament is five years. It can be extended Art. 83during emergency by one year each time and shallend by sixth month after emergency ceases

(10) Not more than six months’ time shall elapse Art. 85between one session and the other of theParliament/State Assembly

(11) The period of notice to be given for the removal Art. 94of Speaker and Deputy Speaker is 14 days

(12) If a member of the Parliament/Assembly is Art. 101absent for sixty days without the permission & Art. 168of the House he shall cease to be a member

(13) Penalty is imposable on every day of sitting on Art. 104the member who is not entitled to participate and 193in the Parliament/Assembly

(14) If more than six months elapse after the Art. 108dispute between the Lok Sabha and RajyaSabha the President shall convene a joint sessionof both Houses

(15) Rajya Sabha must complete the discussion on the Art.109money bill within 14 days from the day it isreceived at the Rajya Sabha from the Parliament.Other than money bill the discussion must becompleted within 6 weeks

(16) Qualification for appointment of Supreme Court Art. 124Judge is 5 years experience as High Court Judgeand 10 years experience as Advocate

(17) Term of office of the Governor is 5 years Art.156

(18) Reduction in the number of Ministers which Art. 164should be 15% of the total members of the Houseshall be effected within six months from the dateof the Presidential notification made in this regard

(19) Ordinance shall expire after six weeks from the Art.123first meeting of the Parliament or Rajya Sabhawhichever is later

Constitutional Prescriptions as Regards TimeBox 4


(20) Duration of State Legislature is five years. There Art. 172is no such restriction on the Rajya Sabha or onthe Legislative Council of the State

(21) If more than three months elapsed after the Art. 197bill is submitted to the Council it may again beconsidered and passed by the Legislature

(22) If the President refuses his assent and Governor Art. 201sends back the bill to the Legislature for re-consideration, the Legislature shall take up thebill within six months

(23) Retirement of High Court Judge is 62 years Art. 207

(24) Qualification of appointment of High Court Judge Art. 207is 10 years experience as Judicial Officer or10 years experience as Advocate

(25) When ex parte order is made by High Court under Art. 226Art. 226, it will expire by end of two weeks unlessthe matter is taken up and disposed of within thatperiod or extended during the continuance of theinterim application

(26) Duration of Panchayat/Municipality is five years Art. 243E& Art. 243U

(27) On dissolution of the Panchayat and Municipality Arts.243E,fresh election shall be held within six months 243U

(28) Term of office of the Public Service Commission Art. 316is six years

(29) During emergency if 1/10th members of the Art. 352Parliament request for a meeting of Parliamentfor condemning emergency, the President shallconvene the Parliament forthwith

(30) Maximum duration of President’s rule overState subject to extensions is 3 years Art. 356

(31) President’s power to adopt laws to bring them Art. 372Ain conformity with the Constitution is 3 yearsfrom the commencement of the Constitution

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Box 4

1. Subs. by the Constitution (Forty-second Amndt.) Act, 1976, Section 2, for the words"Sovereign Democratic Republic", w.e.f. 3-1-1977.

2. Subs. by Ibid, for the words "unity of the Nation", w.e.f. 3-1-1977.

THE CONSTITUTION OF INDIA

Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constituteIndia into a 1[SOVEREIGN SOCIALIST SECULAR DEMOCRATICREPUBLIC] and to secure to all its citizens :

JUSTICE, social, economic and political ;

LIBERTY of thought, expression, belief, faith and worship ;

EQUALITY of status and of opportunity ;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the 2[unity andintegrity of the Nation] ;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day ofNovember, 1949, do HEREBY ADOPT, ENACT AND GIVE TOOURSELVES THIS CONSTITUTION.

Comments

Constitution of India was voted and signed by all 284 Members of theAssembly on 26.11.1949. The Constitution itself declared that it would comeinto effect from 26.1.1950. The Preamble was subsequently voted immediatelyafter the Constitution was adopted. In doing so, the Constitution makers madeit clear that the contents of the Preamble shall govern the understanding andinterpretation of everyone of its Articles. The Preamble proclaimed that Indiashall be sovereign, socialist, secular, democratic republic. Sovereign means, thatthe State has all the powers in itself and is independent, uninfluenced by anyother country or group of countries. The word ‘socialist’ means, that the socialorder in India shall not be exploitative. The expression ‘secular’ means that theState itself has no religion and it respects all faiths. The word ‘democratic’ means,that the polity shall be based on Universal Adult Franchise. It also means thatIndia abhors monarchy and dictatorship. The Preamble calls upon the State toestablish a system of Government where justice, liberty, equality and fraternityshall prevail. It is the Preamble which inspired to the Supreme Court to evolvethe concept of basic structure. Kesavananda Bharati v. State of Kerala, AIR1973 SC 1461; Nakara v. Union of India, AIR 1983 SC 130.

Right to vote is neither fundamental right nor common law right. It isonly a statutory right. Kuldip Nayar v. Union of India & Ors., AIR 2006 SC3127.

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Any statute included in the 9th schedule can be questioned if it offendsthe basic structure. L.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu, AIR2007 SC 861.

Caselaw

When the object of a legislation is to raise revenue, it comes under taxingpower. Calcutta Municipal Corpn. and others v. M/s. Shrey Mercantile Pvt. Ltd.,AIR 2005 SC 1879.

Secularism does not mean atheist society. M.P. Gopalakrishnan Nair andanother v. State of Kerala and others, AIR 2005 SC 3053.

Social justice is the order. Economic justice is the rule. AIR 1999 SC2695.

Separation of powers between executive and judiciary is a basic structure.AIR 2000 SC 1296.

PART-I

The Union and its Territory1. Name and territory of the Union:– (1) India, that is Bharat, shall

be a Union of States.1[(2) The States and the territories thereof shall be as specified in the

First Schedule.](3) The territory of India shall comprise–(a) the territories of the States;

1[(b) the Union territories specified in the First Schedule; and](c) such other territories as may be acquired.

Caselaw

Extent of territories is not frozen can be changed. Ram Badan Rai andothers v. Union of India and others, AIR 1999 SC 166.

2. Admission or establishment of new States:– Parliament may bylaw admit into the Union, or establish, new States on such terms andconditions as it thinks fit.

2[2A. Sikkim to be associated with the Union:– [Rep. by theConstitution (Thirty-sixth Amendment) Act, 1975, Section 5, w.e.f.26.04.1975.]

3. Formation of new States and alteration of areas, boundariesor names of existing States:– Parliament may by law–

(a) form a new State by separation of territory from any State or byuniting two or more States or parts of States or by uniting anyterritory to a part of any State;

1. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 2.2. Ins. by the Constitution (Thirty-fifth Amndt.) Act, 1974, Section 2, w.e.f. 1-3-1975.

Art. 3

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(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State:1[Provided that no Bill for the purpose shall be introduced in either

House of Parliament except on the recommendation of the President andunless, where the proposal contained in the Bill affects the area, boundariesor name of any of the States 2[xxx], the Bill has been referred by the Presidentto the Legislature of that State for expressing its views thereon within suchperiod as may be specified in the reference or within such further periodas the President may allow and the period so specified or allowed hasexpired.]

3[Explanation I:– In this article, in clauses (a) to (e), “State” includesa Union territory, but in the proviso, “State” does not include a Union territory.

Explanation II:– The power conferred on Parliament by clause (a)includes the power to form a new State or Union territory by uniting a partof any State or Union territory to any other State or Union territory.]

Comments

Articles 1, 2 & 3:– India is not federation. It is clearly a union of Stateshistorically and culturally. It is a unitary State. The incorporation of a few federalfeatures such as separation of powers in the Constitution is intended to strengthenthe Union. All the provisions of the Constitution support the view that the Unionis the most supreme authority and it is obliged in equal measure to protect andstrengthen the States. There is only one citizenship and a domicile. Trade andcommerce are free throughout India. All disputes which may arise between andamong the States are arbitrable by the Union only. All the wealth having inter-State bearing belong to the Union. Defence and Foreign affairs are exclusiveto the Union only. So is the case with administration of justice with the SupremeCourt exercising jurisdiction over the entire territory of India. The mere factthat the Constitution provided for separation of powers between Union and Statesdoes not in any manner lead to any inference that the Constitution of India isfederal or is unitary with several federal characteristics. No State has any rightto separate itself from the Union. On the other hand all the States are boundto implement the directions of the Union.

1. Subs. by the Constitution (Fifth Amndt.) Act, 1955, Section 2, w.e.f. 24-12-1955.

2. The words and letters "specified in Part A or Part B of the First Schedule" omitted bythe Constitution (Seventh Amndt.) Act, 1956, Section 29 and Schedule, w.e.f. 1-11-1956.

3. Ins. by the Constitution (Eighteenth Amndt.) Act, 1966, Section 2, w.e.f. 27-8-1966.

The Union and its TerritoryArt. 3


Territory of India means and includes, all the States and Union territories.The Union laws extend to the whole of India. The fact that in case of somelaws the applicability of which does not extend over the State of Jammu andKashmir only means that the expression ‘territory of India’ includes the Jammuand Kashmir. The territory of India includes the disputed areas like Pak occupiedKashmir and the area ceded by Pakistan out of Kashmir to China and the areaswrongfully occupied to China.

The Union Government has the power to form new States, alter theboundaries of the State subject to the condition that the States concerned aregiven an opportunity to express themselves through their respective legislatures.So however, that the opinion expressed by the States is not binding on the Union.Babulal v. State of Bombay, AIR 1960 SC 51. Where new States are formedthe laws applicable to the areas transferred shall continue to be the same lawsuntil the new authority modifies the same. Vinod Kumar v. Gangadhar, AIR1981 SC 1946; State of Punjab v. Balbir, AIR 1977 SC 629.

Union has alone the power to cede any territory to any other country.It has also power to accept merger of any foreign territory into the Union eitheras a State or a Union territory. Where such additions or deletions are madethere is a necessity to amend the Constitution in a manner which includes orexcludes the territories specified in the Schedule. In cases where certain areasare ceded to Bangladesh or certain areas are brought in such as Goa andPondicherry and when Sikkim was merged with India, the Constitution wassuitably amended.

4. Laws made under Articles 2 and 3 to provide for the amendmentof the First and the Fourth Schedules and supplemental, incidentaland consequential matters:– (1) Any law referred to in Article 2 or Article3 shall contain such provisions for the amendment of the First Schedule andthe Fourth Schedule as may be necessary to give effect to the provisionsof the law and may also contain such supplemental, incidental and consequentialprovisions (including provisions as to representation in Parliament and in theLegislature or Legislatures of the State or States affected by such law) asParliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendmentof this Constitution for the purposes of Article 368.

Caselaw

Constitution 84th Amendment Act (Amendment Act of 2001) does not alterbasic structure. AIR 2004 A.P. 381.

Art. 4

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PART-II

Citizenship

5. Citizenship at the commencement of the Constitution:–At the commencement of this Constitution, every person who has his domicilein the territory of India and–

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for notless than five years immediately preceding such commencement,

shall be a citizen of India.

6. Rights of citizenship of certain persons who have migrated toIndia from Pakistan:– Notwithstanding anything in Article 5, a person whohas migrated to the territory of India from the territory now included inPakistan shall be deemed to be a citizen of India at the commencementof this Constitution if–

(a) he or either of his parents or any of his grand-parents was bornin India as defined in the Government of India Act, 1935 (asoriginally enacted); and

(b)(i) in the case where such person has so migrated before the nineteenthday of July, 1948, he has been ordinarily resident in the territoryof India since the date of his migration, or

(ii) in the case where such person has so migrated on or after thenineteenth day of July, 1948, he has been registered as a citizenof India by an officer appointed in that behalf by the Governmentof the Dominion of India on an application made by him thereforto such officer before the commencement of this Constitution inthe form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has beenresident in the territory of India for at least six months immediatelypreceding the date of his application.

7. Rights of citizenship of certain migrants to Pakistan:–Notwithstanding anything in Articles 5 and 6, a person who has after thefirst day of March, 1947, migrated from the territory of India to the territorynow included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, afterhaving so migrated to the territory now included in Pakistan, has returned

CitizenshipArt. 7


to the territory of India under a permit for resettlement or permanent returnissued by or under the authority of any law and every such person shallfor the purposes of clause (b) of Article 6 be deemed to have migratedto the territory of India after the nineteenth day of July, 1948.

8. Rights of citizenship of certain persons of Indian origin residingoutside India:– Notwithstanding anything in Article 5, any person who oreither of whose parents or any of whose grand-parents was born in Indiaas defined in the Government of India Act, 1935 (as originally enacted),and who is ordinarily residing in any country outside India as so definedshall be deemed to be a citizen of India if he has been registered as a citizenof India by the diplomatic or consular representative of India in the countrywhere he is for the time being residing on an application made by him thereforto such diplomatic or consular representative, whether before or after thecommencement of this Constitution, in the form and manner prescribed bythe Government of the Dominion of India or the Government of India.

Caselaw

Minor’s nationality shall be decided by the Central Government. High Courtcannot issue any directions. Miss. Atya Shamim v. Deputy Commissioner/Collector, Delhi (Prescribed Authority under Citizenship Act) and others, AIR1999 J&K 140.

9. Persons voluntarily acquiring citizenship of a foreign State notto be citizens:– No person shall be a citizen of India by virtue of Article5, or be deemed to be a citizen of India by virtue of Article 6 or Article8, if he has voluntarily acquired the citizenship of any foreign State.

10. Continuance of the rights of citizenship:– Every person whois or is deemed to be a citizen of India under any of the foregoing provisionsof this Part shall, subject to the provisions of any law that may be madeby Parliament, continue to be such citizen.

11. Parliament to regulate the right of citizenship by law:– Nothingin the foregoing provisions of this Part shall derogate from the power ofParliament to make any provision with respect to the acquisition and terminationof citizenship and all other matters relating to citizenship.

Comments

Articles 5 to 11:– Citizenship is a natural right of all persons born inIndia and have been ordinarily resident for not less than five years immediatelypreceding the commencement of the Constitution in 1950. Special provisions havebeen made by reason of the partition of the country into India and Pakistanso that those persons who immigrated to Pakistan and those persons who migratedto India from Pakistan. The provisions therefor have been made under Articles6 and 7 which provided for a prior registration at the respective consulates within

Art. 11

13

a particular period and proof of actual residence at the time of application forcitizenship. Article 8 provides for acquisition of citizenship by persons of Indianorigin residing in former British colonies whose parents originally belong to India.The question of conferring citizenship as well as the question of disputedcitizenship Central Government is the only authority as per the provisions ofCitizenship Act of 1955. Where the question of citizenship is disputed, the personconcerned shall not be deported until the question of citizenship is settled. Govt.of A.P. v. Syed Mohd., AIR 1962 SC 1773.

Chakmas who are foreigners are entitled to the rights to life under Article21. When they are prepared to apply for Indian citizenship and pending thisapplications, they are not liable to be forcibly evicted from India. National HumanRights Commission v. State of Arunachal Pradesh, 1996 (1) SCC 742 = AIR1996 SC 1234 = 1996 (1) Supreme 295 = 1996 (2) SCJ 135.

PART-III

Fundamental RightsGeneral

12. Definition:– In this Part, unless the context otherwise requires,“the State” includes the Government and Parliament of India and the Governmentand the Legislature of each of the States and all local or other authoritieswithin the territory of India or under the control of the Government of India.

Caselaw

When a Corporation or an autonomous body can be described as a Statewithin the scope of Article 12. Pradip Kumar Biswa v. Indian Institute ofChemical Technology, 2002 (5) SCC 111.

Where control by the State is regulatory and deeply pervasive suchinstitution becomes State. Virendra Kumar Srivastava v. U.P. Rajya KarmachariKalyan Nigam and another, AIR 2005 SC 411.

Board of control for Cricket in India is not State. M/s. Zee Tele FilmsLtd. and another v. Union of India and others, AIR 2005 SC 2677 = 2005AIR SCW 2985.

Co-operative society is not a State for purpose of Art. 12. 2005 AIR SCW5031.

Art. 12 contains inclusive definition’ “other authorities” need not be undercontrol of the Government. AIR 2005 SC 2677.

Bharat Earth Movers and Indian Telephone Industries despite dis- investmentcontinue to be “other authorities”. M. Kumar and etc. v. Bharath Earth MoversLtd. and others, AIR 1999 Kar. 343.

13. Laws inconsistent with or in derogation of the fundamentalrights:– (1) All laws in force in the territory India immediately before thecommencement of this Constitution, in so far as they are inconsistent withthe provisions of this Part, shall, to the extent of such inconsistency, be void.

Fundamental RightsArt. 13


(2) The State shall not make any law which takes away or abridgesthe rights conferred by this Part and any law made in contravention of thisclause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,–

(a) “law” includes any Ordinance, order, bye-law, rule, regulation,notification, custom or usage having in the territory of India theforce of law;

(b) “laws in force” includes laws passed or made by a Legislatureor other competent authority in the territory of India before thecommencement of this Constitution and not previously repealed,notwithstanding that any such law or any part thereof may not bethen in operation either at all or in particular areas.

1[(4) Nothing in this article shall apply to any amendment of thisConstitution made under Article 368.]

Caselaw

Constitutional amendment is not law within the Article. Hence fundamentalrights cannot be abridged. This is no longer good law. Golaknath v. State ofPunjab, AIR 1967 SC 1643.

Guidelines issued under the Flag Code. Union of India v. Naveen Jindaland another, AIR 2004 SC 1559 = 2004 AIR SCW 705.

Change of religion does not change the status of S.C. as S.T. 2004 AIRSCW 1064.

Right of prisoner to education cannot be restrained. AIR 2004 A.P. 366.

Equity would tilt in favour of law but not in favour of its violation. BhopalSingh and others v. Chatter Singh and others, AIR 2000 P&H 34.

Right to Equality

14. Equality before law:– The State shall not deny to any personequality before the law or the equal protection of the laws within the territoryof India.

Caselaw

Refusal to grant leave to appeal against acquittal shall contain reasons. State

of H.P. v. Paras & others, AIR 2008 SC 930.

1. Ins. by the Constitution (Twenty-fourth Amndt.) Act, 1971, Section 12.

Art. 14

15

Blind employee can offer to retire and request employment to his dependent.Bhagwan Das & Co. v. Punjab State Electricity Board, AIR 2008 SC 190.

Employment of woman in bars cannot be barred. Anuj Garg v. HostelAssociation of India and others, AIR 2008 SC 663.

Termination of service of Air Hostess on ground of pregnancy is held invalid.AIR 1981 SC 1829.

Gender equality – Guidelines. Vishaka v. State of Rajasthan, AIR 1997SC 3011.

Negative equality cannot be pleaded. Kastha Niwarak G.S.S. Maryadit,Indore v. President, Indore Development Authority, AIR 2006 SC 1142.

Nobody can claim equality in illegality. U.P. State Sugar Corpn. Ltd. &Anr. v. Sant Raj Singh & Ors., AIR 2006 SC 2296.

Daily wage employees and permanent employees belong to different classes.No question of any legitimate expectation arises. Secretary, State of Karnataka& Ors. v. Umadevi & Ors., AIR 2006 SC 1806.

Special audit involves civil consequences. Hence principles of natural justiceshall be followed. Rajesh Kumar and others v. DCIT and others, AIR 2007 SC181.

Regulating Ayurveda Medicines and not regulating Unani Medicines is notdiscriminatory. State of Bihar and others v. Shree Baidyanath Ayurved Bhavan(P) Ltd. and others, AIR 2005 SC 932 = 2005 AIR SCW 515.

TADA is not discriminatory enactment. Prakash Kumar @ Prakash Bhuttov. State of Gujarat, AIR 2005 SC 1075 = 2005 AIR SCW 493.

Conditions of tender are general. Reasonable deviations do not invalidatethe acceptance. Kesulal Mehta v. Rajasthan Tribal Areas Development Co-operative Federation Ltd. and others, AIR 2005 Raj. 55.

Members holding office under pleasure of the Governor are not entitledto notice before they are terminated. 2005 AIR SCW 1086.

Chief Justice enquiring into allegations of a Judge on administrative sidedoes not suffer from bias when he is hearing an appeal against the orders ofthe same Judge on judicial side. Sobha Hymavathi Devi v. Sethi GangadharaSwamy and others, AIR 2005 SC 800.

Amendment made applicable to one State only is not valid. 2005AIR SCW 3393.

If the Act prescribes a different period of limitation than the one providedunder Limitation Act, it cannot be said that the provision in the Act is discriminatory.2005 AIR SCW 3285.



Non-mention or wrong mention of a provision of statute does not invalidatethe action if the act is otherwise sustainable. 2004 AIR SCW 504.

Institutional preference upto 50% is permissible. Saurabh Chaudri andothers v. Union of India and others, AIR 2004 SC 361 = 2003 AIR SCW 6392.

Classification on grounds of qualifications is not discriminatory. 2004 AIRSCW 1178.

Cess on milk plant at 10 ps. per litre is arbitrary. Punjab Dairy DevelopmentBoard and another etc. v. Ceppam Milk Specialities Ltd. and others etc., AIR2004 SC 4466 = 2004 AIR SCW 4778.

District-wise election disabling candidates to apply in more than one districtis valid. AIR 2001 SC 2010.

When employees themselves wanted bifurcation of cadre and differentialscales, discrimination cannot be pleaded. Union of India and others v. Anil Kumarand others, etc., etc., AIR 1999 SC 2229.

Choice of date for classification is not always discriminatory, depends uponthe object sought to be achieved. Union of India and others v. M.V. Valliappanand others, AIR 1999 SC 2526.

Plea of promissory estoppel will not prevail over violation of law and naturaljustice. AIR 2000 Mad. 41.

15. Prohibition of discrimination on grounds of religion, race,caste, sex or place of birth:–

(1) The State shall not discriminate against any citizen on grounds onlyof religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, placeof birth or any of them, be subject to any disability, liability, restriction orcondition with regard to–

(a) access to shops, public restaurants, hotels and places of publicentertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of publicresort maintained wholly or partly out of State funds or dedicatedto the use of the general public.

(3) Nothing in this article shall prevent the State from making any specialprovision for women and children.

1[(4) Nothing in this article or in clause (2) of Article 29 shall preventthe State from making any special provision for the advancement of anysocially and educationally backward classes of citizens or for the ScheduledCastes and the Scheduled Tribes.]

1. Added by the Constitution (First Amndt.) Act, 1951, Section 2, w.e.f. 18-6-1951.

Art. 15

17

1[(5) Nothing in this article or in sub-clause (g) of clause (1) of article19 shall prevent the State from making any special provision, by law, forthe advancement of any socially and educationally backward classes of citizensor for the Scheduled Castes or the Scheduled Tribes in so far as such specialprovisions relate to their admission to educational institutions including privateeducational institutions, whether aided or unaided by the State, other thanthe minority educational institutions referred to in clause (1) of article 30.]

Caselaw

Reservation in terms of domicile is permissible under Art. 15(1) or 16(1).2003 AIR SCW 6392.

Reservation of 33-1/3% in favour of women does not violate 50% rule.Md. Abdul Azeez Asad and etc., etc. v. State of Andhra Pradesh and others,AIR 2005 A.P. 389.

Art. 15(4):-- Forward class woman marrying the Scheduled Caste husbandis not entitled to Scheduled Caste status. 2005 AIR SCW 715.

16. Equality of opportunity in matters of public employment:– (1)There shall be equality of opportunity for all citizens in matters relating toemployment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent,place of birth, residence or any of them, be ineligible for, or discriminatedagainst in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any lawprescribing, in regard to a class or classes of employment or appointmentto an office 2[under the Government of, or any local or other authority within,a State or Union territory, any requirement as to residence within that Stateor Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making anyprovision for the reservation of appointments or posts in favour of anybackward class of citizens which, in the opinion of the State, is not adequatelyrepresented in the services under the State.

3[(4A) Nothing in this article shall prevent the State from making anyprovision for reservation 4[in matters of promotion, with consequential seniority,

1. Ins. by the Constitution (Ninety Third Amendment) Act, 2005, w.e.f. 20-1-2006.

2. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 29 and Sch., for “underany State specified in the First Schedule or any local or other authority within its territory,any requirement as to residence within that State.”

3. Ins. by the Constitution (Seventy-seventh Amndt.) Act, 1995, Sec. 2, w.e.f. 17-6-1995.

4. Subs. by the Constitution (Eighty-fifth Amndt.) Act, 2001, Sec. 2, w.r.e.f. 17-6-1995.


CONST-2


to any class] or classes of posts in the services under the State in favourof the Scheduled Castes and the Scheduled Tribes which, in the opinionof the State, are not adequately represented in the services under the State.]

1[(4B) Nothing in this article shall prevent the State from consideringany unfilled vacancies of a year which are reserved for being filled up inthat year in accordance with any provision for reservation made under clause(4) or clause (4A) as a separate class of vacancies to be filled up in anysucceeding year or years and such class of vacancies shall not be consideredtogether with the vacancies of the year in which they are being filled upfor determining the ceiling of fifty per cent reservation on total number ofvacancies of that year.]

(5) Nothing in this article shall affect the operation of any law whichprovides that the incumbent of an office in connection with the affairs ofany religious or denominational institution or any member of the governingbody thereof shall be a person professing a particular religion or belongingto a particular denomination.

Caselaw

Classification of employees into different grades based on educationalqualifications is sustainable. G.M. Mohan & others v. Union of India and others,AIR 2008 SC 305.

Abolishing of posts, when bona fide. State of Haryana v. Navaneeth Varma,AIR 2008 SC 417.

Mere pendency of vigilance case is no ground to refuse promotion. CoalIndia Ltd. v. Saroj Kumar Mishra, AIR 2007 SC 1706.

Long delay in applying for compassionate appointment proves that the familyis otherwise capable of maintaining itself. State of J&K & Ors. v. Sajad AhmedMir, AIR 2006 SC 2743.

Catch-up rule from promoting reserved candidates is permissible. M. Nagarajand others v. Union of India and others, AIR 2007 SC 71.

Regulation of services of some persons only and not all leads to unrest,is not permissible. Ram Singh and others v. Union Territory, Chandigarh andothers, AIR 2004 SC 969 = 2004 SCC (L&S) 774.

Deputationist has no right to claim absorption. U.O.I. through Govt. ofPondicherry and another v. Ramakrishnan and others, AIR 2005 SC 4295 =2005 AIR SCW 5147.

Where the employee has no option but to accept the term, such unjustterm can be invalidated. Central Inland Water Transport Corporation Ltd. andanother v. Brojo Nath Ganguly and another, AIR 1986 SC 1571.

1. Ins. by the Constitution (Eighty-first Amndt.) Act, 2000, Sec. 2, w.e.f. 9-6-2000.

Art. 16

19

There should be a promotional opportunity in every employment. State ofTripura and others v. K.K. Roy, AIR 2004 SC 1249 = 2004 AIR SCW 1.

Transfer on grounds of misbehaviour with director is not punitive. Unionof India and others v. Janardhan Debanath and another, AIR 2004 SC 1632= 2004 AIR SCW 953.

Post falling vacant as successful candidate did not join post cannot befilled up by any other candidate even though qualified when he is not includedin the select panel. Bihar State Electricity Board v. Suresh Prasad and others,AIR 2004 SC 1724.

Compassionate appointment cannot be claimed if the status of the familyis rich. 2004 (4) Scale 155.

Fixing different retirement ages to different classes of persons in the sameestablishment such as Board level employees and non-Board level employees isvalid. Suresh Chandra Singh and others v. Fertilizer Corpn. of India Ltd. andothers, AIR 2004 SC 4536 = 2004 AIR SCW 4266.

Government rules of procedure are binding on procedures to be adoptedby the Government. AIR 2004 SC 3776.

Pension and pensionary benefits of the retired employee cannot be appropriatedto any other dues subsequently arisen. AIR 2001 SC 2433.

Creamy layer concept was introduced for the first time. Indra Sawhney’scase, 1993 AIR SCW 3682.

Single post – When the candidate is selected by panel is appointed thepanel ceases, subsequent vacancy cannot be filled up by another person in thepanel. AIR 2000 SC 2900.

17. Abolition of untouchability:– “Untouchability” is abolished andits practice in any form is forbidden. The enforcement of any disability arisingout of “Untouchability” shall be an offence punishable in accordance withlaw.

18. Abolition of titles:– (1) No title, not being a military or academicdistinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds anyoffice of profit or trust under the State, accept without the consent of thePresident any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall,without the consent of the President, accept any present, emolument, or officeof any kind from or under any foreign State.



Right to Freedom

19. Protection of certain rights regarding freedom of speech,etc.:– (1) All citizens shall have the right–

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; 1[and]

(f) 2[xxx]

(g) to practise any profession, or to carry on any occupation, tradeor business.

3[(2) Nothing in sub-clause (a) of clause (1) shall affect the operationof any existing law, or prevent the State from making any law, in so faras such law imposes reasonable restrictions on the exercise of the rightconferred by the said sub-clause in the interests of 4[the sovereignty andintegrity of India,] the security of the State, friendly relations with foreignStates, public order, decency or morality, or in relation to contempt of court,defamation or incitement to an offence.]

(3) Nothing in sub-clause (b) of the said clause shall affect the operationof any existing law in so far as it imposes, or prevent the State from makingany law imposing, in the interests of 4[the sovereignty and integrity of Indiaor] public order, reasonable restrictions on the exercise of the right conferredby the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operationof any existing law in so far as it imposes, or prevent the State from makingany law imposing, in the interests of 4[the sovereignty and integrity of Indiaor] public order or morality, reasonable restrictions on the exercise of theright conferred by the said sub-clause.

(5) Nothing in 5[sub-clauses (d) and (e)] of the said clause shall affectthe operation of any existing law in so far as it imposes, or prevent theState from making any law imposing, reasonable restrictions on the exercise

1. Ins. by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 2, w.e.f. 20.06.1979.

2. Sub-clause (f) omitted by Ibid.

3. Subs. by the Constitution (First Amndt.) Act, 1951, Sec. 3.

4. Ins. by the Constitution (Sixteenth Amndt.) Act, 1963, Sec. 2, w.e.f. 5.10.1963.

5. Subs. for “sub-clauses (d), (e) and (f)” by the Constitution (Forty-fourth Amndt.) Act,1978, Sec. 2, w.e.f. 20.06.1979.

Art. 19

21Fundamental Rights

of any of the rights conferred by the said sub-clauses either in the interestsof the general public or for the protection of the interests of any ScheduledTribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operationof any existing law in so far as it imposes, or prevent the State from makingany law imposing, in the interests of the general public, reasonable restrictionson the exercise of the right conferred by the said sub-clause, and, in particular,1[nothing in the said sub-clause shall affect the operation of any existing lawin so far as it relates to, or prevent the State from making any law relatingto,–

(i) the professional or technical qualifications necessary for practisingany profession or carrying on any occupation, trade or business,or

(ii) the carrying on by the State, or by a Corporation owned orcontrolled by the State, of any trade, business, industry or service,whether to the exclusion, complete or partial, of citizens or otherwise].

Caselaw

Restriction of selection for national film awards to only those certified byCensor Board is not unreasonable. Directorate of Film Festivals and others v.Gaurav Aswin Jain and others, AIR 2007 SC 1640.

While considering the restrictions it is open to the Court to refer to directiveprinciples of State policy. State of Gujarat v. Mirzapur Moti Kuresh KassabJamat and others, AIR 2006 SC 212.

Unless overt actions are shown on behalf of audience, the Speaker cannotbe prosecuted for exciting the audience. Madhu Limayee v. SDM, (1970) 3 SCC446.

Article 19(1)(d) should be read with Article 21. Maneka Gandhi v. Unionof India, AIR 1978 SC 597.

Tests for obscenity indicated. Director General, Directorate General ofDoordarshan & Ors. v. Anand Patwardhan & Anr., AIR 2006 SC 3346.

When matter was subjudice trial by media is not freedom of Press. RajendraSail v. Madhya Pradesh High Court Bar Association and others, AIR 2005 SC2473 = 2005 AIR SCW 767.

While criticising judgment, the Press shall not indulge in scurrilous languageand impute motives to the Judge. Rajendra Sail v. Madhya Pradesh High CourtBar Association and others, AIR 2005 SC 2473.

Art. 19

1. Subs. by the Constitution (First Amndt.) Act, 1951, Sec. 3, w.e.f. 18.6.1951.


Levy of tax on MSOs (Multi System Operators) is valid. It comes withinentertainment tax. State of West Bengal and others v. Purvi Communication Pvt.Ltd. and others, AIR 2005 SC 1849 = 2005 AIR SCW 1447.

Education is an occupation. It is not the same as business or trade. P.A.Inamdar and others v. State of Maharashtra and others, AIR 2005 SC 3226= 2005 AIR SCW 3923.

Fundamental rights and the nature of restrictions tabulated. 2004 AIR SCW147.

Right to form associations though fundamental, it does not confer anyright to carry out all the functions for which it is formed. Dharam Dutt andothers v. Union of India and others, AIR 2004 SC 1295.

Advocate – Right to practice is not a fundamental right. It is statutory.Bar Council of India v. High Court of Kerala, AIR 2004 SC 2227 = 2004AIR SCW 2684.

Hunger strike permission is refused. Shanmugaraj v. Deputy Superintendentof Police, Tenkasi and another, AIR 2004 Mad. 235.

Prescribing higher qualifications than those fixed by AICTE is permissiblefor it calls for higher excellence. State of Tamil Nadu and another v. S.V.Bratheep (minor) and others, AIR 2004 SC 1861.

Owner of hoardings has no fundamental right. Their removal on groundof traffic hazard is valid. AIR 2001 SC 1736.

Permission granted to the Press to interview the under-trial is subject toprison rules. State, through Supdt., Central Jail, N. Delhi v. Charulata Joshiand another, AIR 1999 SCW 1379.

Freedom to fly National Flag comes under freedom of expression. It canbe regulated. Emblems and Names (Prevention of Improper Use) Act, 1950, ThePrevention of Insults to National Honour Act, 1971 and Flag Code regulate theuse of National Flag. Union of India v. Naveen Jindal, AIR 2004 SC 1559= 2004 (2) SCC 510 = 2004 (1) Supreme 880.

20. Protection in respect of conviction for offences:– (1) No personshall be convicted of any offence except for violation of a law in force atthe time of the commission of the Act charged as an offence, nor be subjectedto a penalty greater than that which might have been inflicted under the lawin force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offencemore than once.

(3) No person accused of any offence shall be compelled to be a witnessagainst himself.

Comments

Accused cannot be compelled to give his hair for identification. Amrit Singhv. State of Punjab, AIR 2007 SC 132.

Art. 20

23

Satisfaction of the Inspecting authority must be recorded before the Inspection.So is the case with the sanctioning authority. R.K. Dalmia v. Delhi Administration,AIR 1962 SC 1808.

Accused was charged under TADA for kidnap. He was also charged incriminal court for kidnap under IPC. He is acquitted by the criminal court.Doctrine of Autrefois acquit applies. Mukhtiar Ahmed Ansari v. State (NCTof Delhi), AIR 2005 SC 2804 = 2005 AIR SCW 2379.

Rape does not include all kinds of penetration. Restricted to penile/vaginalpenetration only. 2004 AIR SCW 3449.

The protection against self-incrimination under Article 20 extends also tothe investigation by the police and their questioning the Sarpanch under Section161, Criminal Procedure Code. The person accused of offence or likely to becharged can exercise the right under Article 20, even if matters which are notunder the consideration of the police, but likely when raised at a further datemay implicate him as accused. Nandini Satpathy v. P.L. Dani, AIR 1978 SC1025 = 1978 (3) SCR 608 = 1978 (2) SCC 424 = 1978 Cri.L.J. 968.

21. Protection of life and personal liberty:– No person shall bedeprived of his life or personal liberty except according to procedureestablished by law.

Caselaw

Sexual harassment violates human rights. Visakha v. State of Rajasthan,AIR 1997 SC 3011.

Heirs of Pakistani national killed in army custody are not entitled to anycompensation. Masooda Praveen v. Union of India, AIR 2007 SC 1840.

Natural and human rights are included in this article. Olga Tellis v. BombayMunicipal Corporation, AIR 1986 SC 180.

Compensation can be awarded to victims of custodial violence. Rudul Shahv. State of Bihar, AIR 1983 SC 1086.

Children of a woman prisoner shall be allowed to be retained with herand they shall be given all facilities for their maintenance. R.D. Upadhyay v.State of A.P. & Ors., AIR 2006 SC 1946.

Child offenders are entitled to special facilities. Sheela Barse v. Union ofIndia, AIR 1986 SC 1773.

Solitary confinement shall not be resorted. Sunil Batra v. Delhi Administration,AIR 1978 SC 1675.

Public hanging prohibited.A.G. India v. Lachma Devi, 1989 Supp. (1) SCC244.

Handcuffing is offensive to human dignity. Charles Sobhraj v. Superintendentof Central Jail, AIR 1978 SC 1514.

Delay in execution may result in converting death sentence into lifeimprisonment. T. Vateeswaran v. State of Tamil Nadu, AIR 1983 SC 361.



Healthy environment is included in right to life. Bandhua Mukti Morchav. Union of India, AIR 1984 SC 802.

Bail to brothers, all but one granted bail keeping one of them as hostage.Srichand P. Hinduja v. State through CBI, New Delhi, AIR 2002 SC 401.

Successive bail applications on the same grounds is not permissible. KalyanChandra Sarkar etc. v. Rajesh Ranjan alias Pappu Yadav and another, AIR2005 SC 921 = 2005 AIR SCW 536.

Delay in execution due to judicial process is no ground for commutationof sentence. Gurmeet Singh v. State of U.P., AIR 2005 SC 3611 = 2005 AIRSCW 4852.

No one can be compelled to undergo DNA test. Haribhai Chanabhai Voraand others v. Keshubhai Haribhai Vora, AIR 2005 Guj. 157.

Under-trial prisoners are entitled to fundamental rights but they are notabsolute. (Pappu Yadav’s case). Kalyan Chandra Sarkar etc. v. Rajesh Ranjanalias Pappu Yadav and another, AIR 2005 SC 921 = 2005 AIR SCW 957.

Uphar Cinema Tragedy case – Compensation granted to successors of heirs.2005 SCC (Crl.) 1256.

Rule of speedy trial applies to civil matters also. Salem Advocates’ BarAssociation, Tamil Nadu v. Union of India, AIR 2005 SC 3353 = 2005 AIRSCW 3827.

Identification of foreigners does not amount to deprivation of life and liberty.Sarbananda Sonowal v. Union of India and another, AIR 2005 SC 2920 = 2005AIR SCW 3393.

Fair trial – Witnesses threatened, material witnesses not examined – Thereis no fair trial. Case was remanded and transferred to another State. ZeheraHabibulla Shaik v. State of Gujarat, 2004 AIR SCW 2324.

Right to marry is not suspended if one of the parties is suffering fromHIV. AIR 2003 SC 664.

Use of CNC fuel by motor vehicles is made mandatory. AIR 2001 SC1948.

Failure to file charge sheet within sixty days does not extinguish the rightfor bail after the charge sheet is subsequently filed. AIR 2001 SC 1910.

Taj Trapezium – Environmental directions issued. M.C. Mehta v. Unionof India and others, AIR 1999 SC 3192.

Art. 21

25

1[21A. Right to education:– The State shall provide free and compulsoryeducation to all children of the age of six to fourteen years in such manneras the State may, by law, determine.]

Caselaw

Differential fees structure between Kendriya Vidhyalaya and Project Schoolsis justified. P. Raveendran v. Union of India and others, AIR 2005 Kar. 232

(NOC).

22. Protection against arrest and detention in certain cases:– (1)No person who is arrested shall be detained in custody without beinginformed, as soon as may be, of the grounds for such arrest nor shall hebe denied the right to consult, and to be defended by, a legal practitionerof his choice.

(2) Every person who is arrested and detained in custody shall beproduced before the nearest magistrate within a period of twenty-four hoursof such arrest excluding the time necessary for the journey from the placeof arrest to the court of the magistrate and no such person shall be detainedin custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providingfor preventive detention.

(4) No law providing for preventive detention shall authorise the detentionof a person for a longer period than three months unless–

(a) an Advisory Board consisting of persons who are, or have been,or are qualified to be appointed as, Judges of a High Court hasreported before the expiration of the said period of three monthsthat there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detentionof any person beyond the maximum period prescribed by any lawmade by Parliament under sub-clause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of anylaw made by Parliament under sub-clauses (a) and (b) ofclause (7).

1. Ins. by Constitution (Eighty-sixth Amendment) Act, 2002, dt. 12-12-2002, w.e.f. 1-4-2010.



(5) When any person is detained in pursuance of an order made underany law providing for preventive detention, the authority making the ordershall, as soon as may be, communicate to such person the grounds on whichthe order has been made and shall afford him the earliest opportunity ofmaking a representation against the order.

(6) Nothing in clause (5) shall require the authority making any suchorder as is referred to in that clause to disclose facts which such authorityconsiders to be against the public interest to disclose.

(7) Parliament may by law prescribe–

(a) the circumstances under which, and the class or classes of casesin which, a person may be detained for a period longer than threemonths under any law providing for preventive detention withoutobtaining the opinion of an Advisory Board in accordance withthe provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class orclasses of cases be detained under any law providing for preventivedetention; and

(c) the procedure to be followed by an Advisory Board in an inquiryunder sub-clause (a) of clause (4).

Caselaw

Civil arrest and deportation are not covered by preventive detention. MadhuLimayee in re, AIR 1969 SC 1014.

Confession made to police is admissible in departmental enquiry. Commr.of Police, Delhi v. Narender Singh, AIR 2006 SC 1800.

Right to defend through legal practitioner and right to be informed aboutthe grounds of detention are mandatory. Gopalan v. State of Madras, AIR 1950SC 29.

Black marketing does not come under public order. Romesh Lal Jain v.Naginder Singh Rana and others, AIR 2006 SC 336.

Detention period cannot be extended for the period covered by parole orby reason of any bail order. Sunil Fulchand Shah v. Union of India and others,AIR 2000 SC 1023.

The fact that some incidents are stale does not make the detention invalidif even one incident is of recent origin. 2005 AIR SCW 159.

Detention by police – Guidelines of Supreme Court. 1994 (4) SCC 26;1997 SCC 417.

Art. 22

27

Seer of Kanchi Mutt case – Transfer from one State to another on groundthat the prosecution is making serious allegations against the defence lawyerand prosecuting the junior lawyers. 2005 AIR SCW 5410.

Glorification of Sati is a distinct offence apart from the offence of violatingprohibitory orders. 2003 AIR SCW 217.

Grounds mean not only facts but also the material on which the factsare based. Sophia Gulam Mohd. Bham v. State of Maharashtra and others,AIR 1999 SC 3051.

Right against Exploitation

23. Prohibition of traffic in human beings and forced labour:– (1)Traffic in human beings and begar and other similar forms of forced labourare prohibited and any contravention of this provision shall be an offencepunishable in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compulsoryservice for public purposes, and in imposing such service the State shall notmake any discrimination on grounds only of religion, race, caste or classor any of them.

24. Prohibition of employment of children in factories, etc.:– Nochild below the age of fourteen years shall be employed to work in anyfactory or mine or engaged in any other hazardous employment.

Caselaw

Salt miners are directed to protect child labour. 2003 (7) Scale 474.

Right to Freedom of Religion25. Freedom of conscience and free profession, practice and

propagation of religion:– (1) Subject to public order, morality and healthand to the other provisions of this Part, all persons are equally entitled tofreedom of conscience and the right freely to profess, practise and propagatereligion.

(2) Nothing in this article shall affect the operation of any existing lawor prevent the State from making any law–

(a) regulating or restricting any economic, financial, political or othersecular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open ofHindu religious institutions of a public character to all classes andsections of Hindus.



Explanation I:– The wearing and carrying of kirpans shall be deemedto be included in the profession of the Sikh religion.

Explanation II:– In sub-clause (b) of clause (2), the reference toHindus shall be construed as including a reference to persons professing theSikh, Jaina or Buddhist religion, and the reference to Hindu religious institutionsshall be construed accordingly.

Caselaw

Measure of administrative control over religious endowment. Commissioner,HRE v. Lakshmindra Thirtha Swamiyar of Sri Shrur Mutt, AIR 1954 SC 282.

Secular matters such as management can be controlled by the State. M.P.Gopalakrishnan Nair and another v. State of Kerala and others, AIR 2005 SC3053 = 2005 AIR SCW 2292.

Right to cure ailments through “faith healing” cannot be claimed asfundamental right. Rajesh Kumar Srivastava v. A.P. Verma and others, AIR 2005All. 175.

Differences between Hinduism and Jainism – Explained. Bal Patil andanother v. Union of India and others, AIR 2005 SC 3173 = 2005 AIR SCW3762.

Burial of the dead by Muslims is a religious practice. Police are directedto protect this right. Mohammad Gani v. The Superintendent of Police, DindigulDistrict, Dindigul and others, AIR 2005 Mad. 359.

Anand Margis Tandava Dance is not a part of religion. Acharya Jagdishwar-anand Avadhuta, etc. v. Commissioner of Police, Calcutta and another, AIR1984 SC 51; 2004 AIR SCW 1887.

Art. 25(2):-- Rejection of application for construction of Church on theground that there are only a few Christians in the locality is not valid. AlbertRaj v. The District Collector, Kanyakumari and others, AIR 2005 Mad. 444.

26. Freedom to manage religious affairs:– Subject to public order,morality and health, every religious denomination or any section thereof shallhave the right–

(a) to establish and maintain institutions for religious and charitablepurposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

Art. 26

29

Caselaw

This Article does not create any new rights. It protects such of thosepractices well established already prior to 1950. M.P. Gopalakrishnan Nair andanother v. State of Kerala and others, AIR 2005 SC 3053 = 2005 AIR SCW2292.

27. Freedom as to payment of taxes for promotion of any particularreligion:– No person shall be compelled to pay any taxes, the proceedsof which are specifically appropriated in payment of expenses for thepromotion or maintenance of any particular religion or religious denomination.

28. Freedom as to attendance at religious instruction or religiousworship in certain educational institutions:– (1) No religious instructionshall be provided in any educational institution wholly maintained out of Statefunds.

(2) Nothing in clause(1) shall apply to an educational institution whichis administered by the State but has been established under any endowmentor trust which requires that religious instruction shall be imparted in suchinstitution.

(3) No person attending any educational institution recognised by theState or receiving aid out of State funds shall be required to take part inany religious instruction that may be imparted in such institution or to attendany religious worship that may be conducted in such institution or in anypremises attached thereto unless such person or, if such person is a minor,his guardian has given his consent thereto.

Cultural and Educational Rights29. Protection of interests of minorities:– (1) Any section of the

citizens residing in the territory of India or any part thereof having a distinctlanguage, script or culture of its own shall have the right to conserve thesame.

(2) No citizen shall be denied admission into any educational institutionmaintained by the State or receiving aid out of State funds on grounds onlyof religion, race, caste, language or any of them.

Comments

Madarasas established by Muslim community are not entitled to be recognisedfor grant-in-aid as religious minority institutions. Committee of Management,Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur and Ors. v. State ofU.P. and Ors., AIR 2007 (NOC) 1989 (All.); Kerala Education Bill in re, AIR1958 SC 1959.



Minority status shall be counted on the State basis – Relevant considerationsindicated. Bal Patil and another v. Union of India and others, AIR 2005 SC3172 = 2005 AIR SCW 3762.

30. Right of minorities to establish and administer educationalinstitutions:– (1) All minorities, whether based on religion or language, shallhave the right to establish and administer educational institutions of theirchoice.

1[(1A) In making any law providing for the compulsory acquisition ofany property of an educational institution established and administered bya minority, referred to in clause (1), the State shall ensure that the amountfixed by or determined under such law for the acquisition of such propertyis such as would not restrict or abrogate the right guaranteed under thatclause.]

(2) The State shall not, in granting aid to educational institutions,discriminate against any educational institution on the ground that it is underthe management of a minority, whether based on religion or language.

Caselaw

Minority means non-dominant group. TMA Pai v. State of Karnataka, AIR2003 SC 355.

Minority institution cannot increase fees during the academic year. L.Nageswaran v. State of Tamil Nadu & Ors., AIR 2009 (NOC) 416. (Mad.).

Courts can interfere with the maladministration of minority institutions. AllSaints High School v. Government of A.P., AIR 1980 SC 1042.

TMA Pai’s case. T.M.A. Pai Foundation v. State of Karnataka, AIR 2003SC 395.

Islamic Academy case. AIR 2003 SC 3724.When equal pay for equal work granted once was subsequently withdrawn,

the Court can direct not to recover the excess payments. 2005 AIR SCW 172.Interference of State in the administration of minority educational institutions

shall be nil upto under-graduate level. P.A. Inamdar and others v. State ofMaharashtra and others, AIR 2005 SC 3226 = 2005 AIR SCW 3923.

Linguistic and religious minority status shall be determined taking State asa unit. AIR 2003 SC 355.

The linguistic and religious minorities are entitled to establish their owneducational institutions. They have a right (1) to create a machinery for itsmanagement; (2) to appoint teaching and non-teaching staff and take suitabledisciplinary action against them; (3) to admit eligible students of their choice;and (4) to use properties for the benefit of the institution but the Governmenthas a right to prescribe qualifications for staff and prescribe the service conditionsfor the staff. The Government has a right to create a mechanism for redressalof the grievances. The Government has a right, if the institution is aided, tosupervise the proper utilization of funds. Malankara Syrian Catholic College v.T. Jose, AIR 2007 SC 570.

2[xxx]1. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 4, w.e.f. 20-6-1979.2. Sub-heading “Right to Property” omitted by the Constitution, (forty-fourth Amendment)

Act, 1978, S.5, w.e.f. 20-6-1979.

Art. 30

31

31. Compulsory acquisition of property:– 1[xxx]

Caselaw

Minority institution receiving aid will not lose its right of self-management.Secretary, Malankara Syrian Catholic College v. T. Jose & Ors., AIR 2007 SC570.

Respect to National Anthem by standing while the song is sung will notoffend religious sentiment. Bijoe Emmanual v. State of Kerala, AIR 1987 SC748.

2[Saving of Certain Laws]3[31A. Saving of laws providing for acquisition of estates, etc.:–

4[(1) Notwithstanding anything contained in Article 13, no law providing for–

(a) the acquisition by the State of any estate or of any rights thereinor the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the Statefor a limited period either in the public interest or in order to securethe proper management of the property, or

(c) the amalgamation of two or more corporations either in the publicinterest or in order to secure the proper management of any ofthe corporations, or

(d) the extinguishment or modification of any rights of managing agents,secretaries and treasurers, managing directors, directors or managersof corporations, or of any voting rights of shareholders thereof,or

(e) the extinguishment or modification of any rights accruing by virtueof any agreement, lease or licence for the purpose of searchingfor, or winning, any mineral or mineral oil, or the prematuretermination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistentwith, or takes away or abridges any of the rights conferred by5[Article 14 or Article 19]:

1. Repealed by the Constitution, (forty-fourth Amendment) Act, 1978, S.5,w.e.f. 20-6-1979. S.6.

2. Ins. by the Constitution (Forty-second Amendment) Act, 1976, Sec.3 (w.e.f. 3-1-1977)

3. Ins. by the Constitution (First Amendment) Act, 1951, Sec. 4 (with retrospective effect).

4. Subs. by the Constitution (Fourth Amendment) Act, 1955, S.3.

5. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec.7, for “Article 14,Article 19 or Article 31” (w.e.f. 20-6-1979).

Fundamental RightsArt. 31A


Provided that where such law is a law made by the Legislature of aState, the provisions of this article shall not apply thereto unless such law,having been reserved for the consideration of the President, has receivedhis assent:]

1[Provided further that where any law makes any provision for theacquisition by the State of any estate and where any land comprised thereinis held by a person under his personal cultivation, it shall not be lawful forthe State to acquire any portion of such land as is within the ceiling limitapplicable to him under any law for the time being in force or any buildingor structure standing thereon or appurtenant thereto, unless the law relatingto the acquisition of such land, building or structure, provides for paymentof compensation at a rate which shall not be less than the market valuethereof.]

(2) In this article,–2[(a) the expression “estate” shall, in relation to any local area, have

the same meaning as that expression or its local equivalent has inthe existing law relating to land tenures in force in that area andshall also include–

(i) any jagir, inam or muafi or other similar grant and in the Statesof 3[Tamil Nadu] and Kerala, any janmam right;

(ii) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposesancillary thereto, including waste land, forest land, land for pastureor sites of buildings and other structures occupied by cultivatorsof land, agricultural labourers and village artisans;]

(b) the expression “rights”, in relation to an estate, shall include anyrights vesting in a proprietor, sub-proprietor, under-proprietor,tenure-holder, 4[raiyat, under-raiyat] or other intermediary and anyrights or privileges in respect of land revenue.

1. Ins. by the Constitution (Seventeenth Amendment) Act, 1964, Sec. 2. w.e.f. 20-6-1964.

2. Subs. by the Constitution (Seventeenth Amendment) Act, 1964, sec. 2, for sub-clause(a)(with retrospective effect).

3. Subs. by the Madras State (Alteration of Name) Act, 1968 (53 of 1968), sec. 4, for“Madras” (w.e.f. 14-1-1969)

4. Ins. by the Constitution (Fourth Amendment) Act, 1955, Sec.3 (with retrospective effect).

Art. 31A

33

Comments

The question whether the inclusion of invalid enactments in 9th Schedulesaves them from invalidity is still open. Minerva Mills Ltd. v. Union of India,AIR 1986 SC 2030.

1[31B. Validation of certain Acts and Regulations:– Withoutprejudice to the generality of the provisions contained in Article 31A, noneof the Acts and Regulations specified in the Ninth Schedule nor any of theprovisions thereof shall be deemed to be void, or ever to have becomevoid, on the ground that such Act, Regulation or provision is inconsistentwith, or takes away or abridges any of the rights conferred by, any provisionsof this Part, and notwithstanding any judgment, decree or order of any courtor tribunal to the contrary, each of the said Acts and Regulations shall, subjectto the power of any competent Legislature to repeal or amend it, continuein force.]

2[31C. Saving of laws giving effect to certain directive principles:–Notwithstanding anything contained in Article 13, no law giving effect to thepolicy of the State towards securing 3[all or any of the principles laid downin Part IV] shall be deemed to be void on the ground that it is inconsistentwith, or takes away or abridges any of the rights conferred by 4[Article14 or Article 19]; and no law containing a declaration that it is for givingeffect to such policy shall be called in question in any court on the groundthat it does not give effect to such policy:

Provided that where such law is made by the Legislature of a State,the provisions of this article shall not apply thereto unless such law, havingbeen reserved for the consideration of the President, has received his assent.]

31D. Saving of laws in respect of anti-national activities:– 5[xxx].

Right to Constitutional Remedies32. Remedies for enforcement of rights conferred by this Part:–

(1) The right to move the Supreme Court by appropriate proceedings forthe enforcement of the rights conferred by this Part is guaranteed.

1. Ins. by the Constitution (First Amendment) Act, 1951, Sec.5, w.e.f. 18-6-1951.

2. Ins. by the Constitution (Twenty-fifth Amendment) Act, 1971, Sec. 3 (w.e.f. 20-4-1972).

3. Subs. by the Constitution (Forty-second Amendment) Act, 1976 Sec.4, for “the principlesspecified in clause(b) or clause(c) of Article 39” (w.e.f. 3-1-1977).

4. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 8, for “Article 14,Article 19 or article 31” (w.e.f. 20-6-1979).

5. Omitted by the Constitution (Forty-third Amendment) Act, 1977, Section 2, w.e.f.13-4-1978.


CONST-3


(2) The Supreme Court shall have power to issue directions or ordersor writs, including writs in the nature of habeas corpus, mandamus, prohibition,quo warranto and certiorari, whichever may be appropriate, for theenforcement of any of the rights conferred by this part.

(3) Without prejudice to the powers conferred on the Supreme Courtby clauses (1) and (2), Parliament may by law empower any other courtto exercise within the local limits of its jurisdiction all or any of the powersexercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this Article shall not be suspended exceptas otherwise provided for by this Constitution.

Caselaw

Guidelines for obtaining patient’s consent indicated. Sumitra Kohli v. PrabhaManchanda and Another, AIR 2008 SC 1355.

Supreme Court approved OBC reservations, creamy layer and 50% as themaximum reservation. Indira Shawney v. Union of India, AIR 1993 SC 477.

Cow slaughter is valid provided it is not total. State of Gujart v. MirzapurMoti Kuresh Kassab Jamat and others, AIR 2006 SC 212.

Water dispute does not include maintenance of common reservoirs. SupremeCourt has no jurisdiction to entertain disputes in such matters. Mulla PeriyarDam case, AIR 2006 SC 1428.

The authority cannot plead lack of funds for laying the essential road. RatlamMunicipality v. Vardichand, AIR 1980 SC 1422.

Merely because the victim happens to be Scheduled Caste or ScheduledTribe, the offence cannot be treated as an atrocity against S.Cs. and S.Ts.Ramadas and others v. State of Maharashtra, AIR 2007 SC 155.

Judicial review is permissible on the order of the President removing aJudge. Sarojini Ramaswamy v. Union of India, AIR 1992 SC 2219.

Deletion of “Sindh” from National Anthem is not necessary. SanjeevBhatnagar v. Union of India and others, AIR 2005 SC 2841.

Persons interned in jails are also entitled to Swatantrata Sainik SammanPension. West Bengal Freedom Fighters’ Organization v. Union of India andothers, AIR 2004 SC 5143.

Art. 32

35

1[33. Power of Parliament to modify the rights conferred by thisPart in their application to Forces, etc.:– Parliament may, by law,determine to what extent any of the rights conferred by this Part shall, intheir application to,–

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of publicorder; or

(c) persons employed in any bureau or other organisation establishedby the State for purposes of intelligence or counter intelligence;or

(d) persons employed in, or in connection with, the telecommunicationsystems set up for the purposes of any Force, Bureau or Organisationreferred to in clauses (a) to (c).

be restricted or abrogated so as to ensure the proper discharge of theirduties and the maintenance of discipline among them.]

34. Restriction on rights conferred by this Part while martial lawis in force in any area:– Notwithstanding anything in the foregoing provisionsof this Part, Parliament may by law indemnify any person in the service ofthe Union or of a State or any other person in respect of any act doneby him in connection with the maintenance or restoration of order in anyarea within the territory of India where martial law was in force or validateany sentence passed, punishment inflicted, forfeiture ordered or other actdone under martial law in such area.

35. Legislation to give effect to the provisions of this Part:–Notwithstanding anything in this Constitution,–

(a) Parliament shall have, and the Legislature of a State shall not have,power to make laws–

(i) with respect to any of the matters which under clause (3) of Article16, clause (3) of Article 32, Article 33 and Article 34 may beprovided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared tobe offences under this Part;

1. Subs. by the Constitution (Fiftieth Amendment) Act, 1984, Sec.2, for article 33

(w.e.f. 11-9-1984)



and Parliament shall, as soon as may be after the commencementof this Constitution, make laws for prescribing punishment for theacts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of thisConstitution in the territory of India with respect to any of thematters referred to in sub-clause (i) of clause (a) or providing forpunishment for any act referred to in sub-clause (ii) of that clauseshall, subject to the terms thereof and to any adaptations andmodifications that may be made therein under Article 372, continuein force until altered or repealed or amended by Parliament.

Explanation:– In this article, the expression “law in force” has thesame meaning as in Article 372.

Comments

Articles 12 to 35:– The fundamental rights guaranteed are equality beforelaw [Art. 14]; Prohibition of discrimination on grounds of religion, race, caste,sex or place of birth [Art. 15]; equality of opportunity in matters of publicemployment [Art. 16]; abolition of untouchability [Art. 17]; abolition of titles [Art.18]; freedom of speech etc.; freedom to assemble; freedom to form associations;freedom to move freely throughout India [Art. 19]; protection against doublejeopardy [Art. 20]; protection to life and personal liberty [Art. 21]; right toeducation [Art. 21-A]; protection against detention [Art. 22]; prohibition of trafficin human beings and forced labour [Art. 23]; prohibition of employment of children[Art. 24]; right to conscience and right to profess religion [Art. 25]; freedomto carry on religious affairs [Art. 26]; freedom from paying taxes for promotionof any particular religion [Art. 27]; freedom as to attendance at religiousinstructions or religious worship in educational institutions [Art. 28]; protectionof interest of minorities [Art. 29]; right of minorities to establish and administereducational institutions [Art. 30]; compulsory acquisition of property [Art. 31];(since repealed under 44th Amendment Act of 1978); Arts. 31-A, 31-B and 31-C are all additional clauses relating to the acquisition of properties; remedies forenforcement of fundamental rights [Art. 32]; exemption of armed forces fromthe application of fundamental rights [Art. 33]; restriction on fundamental rightsduring martial law [Art. 34]. Legislative competence to give effect to fundamentalrights is conferred on the Parliament and not on State legislatures.

For enforcement or protection or implementation of the fundamental rightsthe Union Government may issue executive orders or legislate enactments.Judiciary has the power to interdict any order or legislation which affects the

Art. 35

37

fundamental rights. Mala fide, unreasonable orders and orders which do notcontain any reasons are hit by Art. 14. Classification of persons for conferringbenefits into distinct groups is permissible if such classifications achieve thepurposes for which classification is made. Reservation of post for socially andeconomically backward classes in public employment and in seats in educationalinstitutions is valid, provided the backward classes are identified properly by thecommissions specially constituted for those purposes. The classification ofreserved categories into creamy layer and others and the classification ofScheduled Tribes, Scheduled Castes and Backward Classes into A, B, C andD does not offend Art. 14. Freedom of Press is included in the freedom ofspeech. No man can be punished twice for the same offence will not applyto different punishments under different enactments which follow differentprocedures. A person prosecuted for excise offence can be punished underdisciplinary proceedings relating to his employment. Freedom of conscience isprotected if the person at the prayer meetings stands up showing respect forNational Anthem without singing or participating in chorus at religious congregations.Right to religious and linguistic minorities to establish their own institutions issubject to the general rules of supervision and control when such institution receivegrants or recognition. Labour laws will apply to all institutions irrespective whetherthey belong to religious or linguistic minorities or otherwise.

Repeal of Art. 31 and its reincorporation in Art. 300-A does not reallyeffect the basic right to compensation for property acquired by State exceptfor the fact that the amount of compensation now payable after Amendmentdepends more on the discretion of the Government by “fixing” the amount ofcompensation in some particular cases involving land reforms. Since, suchdiscretion cannot be arbitrary and fanciful, determination of compensation canstill be questioned as arbitrary. According to old law, a citizen can be deprivedof his property if there a law and if such law describes the method of calculatingcompensation. After the change, the Estate Abolition Acts which prescribed theprocedure for arriving the amount of compensation and the Land Ceiling Actsand the Bank Nationalisation Act which “fixed” the compensation have becomevalid.

The effect of Arts. 31-A and 31-B that no law providing for acquisitionof estates shall be declared invalid on the ground that it offends any of thefundamental rights and that all such laws when they are included in the 9thSchedule should not be treated as having become invalid for the reason thatany of the provisions offend the Constitution. The effect of Art. 31-C is thatno law which purports to have been made in pursuance of the directive principlesof State policy shall be declared as invalid on the ground that the said Act does



not achieve the purpose intended. It is however open to the Court to decidewhether the impugned enactment encroaches upon any of the basic features ofthe Constitution and whether the impugned enactment does not achieve the objectsof State policy. This is so because, the latter part of Art. 31-C that “and nolaw containing declaration that it is giving effect to such policy shall be calledin question in any court on the ground that it does not give effect to suchpolicy” was struck down by the Supreme Court in Kesavananda Bharati v. Stateof Kerala, AIR 1973 SC 1461; Assam Sillimenite v. Union of India, AIR 1992SC 938.

By including Art. 32 within the part dealing with fundamental rights, theright to approach the Supreme Court for enforcement of fundamental rights itselfis made a fundamental right and the right to approach the Supreme Court beingthe basic feature this right cannot be restricted by any law including by anAmendment to the Constitution. Under this power the Supreme Court cannotlegislate any enactment giving effect to any of the fundamental rights. It candirect their enforcement or interdict any act which infringes on any of thefundamental rights. For instance, where preventive detention is ordered the courtcan prevent the arrest in very exceptional circumstances. [Additional Secretaryto the Govt. of India v. Alka Subhash, 1992 Supp. (1) SCC 496]. Therefore,it is advised that a writ to be filed in such circumstances have to be a writof certiorari and not a writ of mandamus. [Deepak Bajaj v. State of Maharashtra,AIR 2009 SC 628]. However, in recent times, the Supreme Court has been issuingwhat are called guidelines judgments with a direction that the said guidelinesmay be enforced by all authorities. The guidelines issued by the Supreme Courton foreign adoptions, on opening of blood banks and for protection of womenin public places are all being enforced in toto by all the authorities concerned.

The power of the Supreme Court to enforce fundamental rights couplewith a right conferred in this regard on the citizen means in substance that thecourt can not only interdict the orders which may infringe upon the citizen’sfundamental rights but also issue orders to the executive to make appropriaterules in this regard which enable the citizens to enjoy the fundamental rights.The series of judgments rendered by the Supreme Court on environment mayalso be referred. Moreover, the court had made it clear that in so far as theapplicability of such of the fundamental rights which are also human rights canbe applied to foreigners also. The court for instance directed that Chakmas cannotbe deported by force without following lawful procedure and that foreign womenare entitled to the rights under Protection of Women from Domestic ViolenceAct.

Art. 35

39

Fundamental Rights are rights conferred on citizens by the Constitution andfundamental duties are the obligations the Constitution has cast upon the Statesin relation to its citizens styled as directive principles of State policy. By nature,the orders which may be given by the Courts in relation to the objectives ofState policy can be only recommendations as no effective writ can be issuedin this regard. That is how guidelines jurisprudence has come into vogue. Forinstance, in the case of foreign adoptions, blood banks and protection of womenat work places, the guidelines themselves are being followed and acted upon.In the case of irretrievable breakdown of marriage as a ground for divorce,the Supreme Court itself has directed that the High Courts may adopt this groundwhile granting divorce and it is now a matter of time that the lower judiciaryalso may adopt it as a rule treating that they are bound by the law laid downby the Supreme Court.

All the fundamental rights or human rights the fact that they are grantedonly to the citizens does not deprive the foreigner to claim protection of suchof those fundamental rights such as right to life. That is why, citizens are entitledto the enforcement of all constitutional rights. The foreigners are entitled to theprotection of some of those which come under human rights.

PART-IV

Directive Principles of State Policy36. Definition:– In this Part, unless the context otherwise requires,

“the State” has the same meaning as in Part III.

37. Application of the principles contained in this Part:– Theprovisions contained in this Part shall not be enforceable by any Court, butthe principles therein laid down are nevertheless fundamental in the governanceof the country and it shall be the duty of the State to apply these principlesin making laws.

38. State to secure a social order for the promotion of welfareof the people:– 1[(1)] The State shall strive to promote the welfare of thepeople by securing and protecting as effectively as it may a social orderin which justice, social, economic and political, shall inform all the institutionsof the national life.

2[(2) The State shall, in particular, strive to minimise the inequalitiesin income, and endeavour to eliminate inequalities in status, facilities andopportunities, not only amongst individuals but also amongst groups of peopleresiding in different areas or engaged in different vocations.]

Directive Principles of State PolicyArt. 38

1. Article 38 renumbered as clause (1) by the Constitution (Forty-fourth Amendment) Act,1978, Sec. 9, w.e.f. 20-6-1979.

2. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 9, w.e.f. 20-6-1979.


Caselaw

Where occupants are not encroachers, they are entitled to rehabilitation.Nature Lovers Movement v. State of Kerala and others, AIR 2000 Ker. 131.

Court cannot direct the State to construct sports stadium which is anexecutive function. Retired Official Association, Namakkal and others v. SportsDevelopment Authority of Tamil Nadu, Chennai and others, AIR 2005Mad. 365.

39. Certain principles of policy to be followed by the State:– TheState shall, in particular, direct its policy towards securing–

(a) that the citizens, men and women equally, have the right to anadequate means of livelihood;

(b) that the ownership and control of the material resources of thecommunity are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in theconcentration of wealth and means of production to the commondetriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and thetender age of children are not abused and that citizens are notforced by economic necessity to enter avocations unsuited to theirage or strength;

1[(f) that children are given opportunities and facilities to develop in ahealthy manner and in conditions of freedom and dignity and thatchildhood and youth are protected against exploitation and againstmoral and material abandonment.]

Caselaw

The object of this Article is creation of welfare State. Kesavananda Bhartiv. State of Kerala, AIR 1973 SC 1461.

Foreign adoptions are recommended by the Supreme Court. Primeconsideration is the welfare of the child. Lakshmikant Pandey v. Union of India,AIR 1984 SC 469. See also Basant v. Narayanaiha, 1938 Mad. 807.

Compensation for the death of a child who died in motor accident outsidethe school while she was proceeding to quench a thirst due to non-availabilityof water in the school is maintainable. All India Lawyers Union (Delhi-Unit)v. Union of India and others, AIR 1999 Del. 120.

1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 7, w.e.f. 3-1-1977.

Art. 39

41

1[39A. Equal justice and free legal aid:– The State shall secure thatthe operation of the legal system promotes justice, on a basis of equalopportunity, and shall, in particular, provide free legal aid, by suitablelegislation or schemes or in any other way, to ensure that opportunities forsecuring justice are not denied to any citizen by reason of economic or otherdisabilities.]

Caselaw

This Article may be read with Art. 21. Hussainara Khatoon v. State ofBihar, AIR 1979 SC 1369.

40. Organisation of village panchayats:– The State shall take stepsto organise village panchayats and endow them with such powers andauthority as may be necessary to enable them to function as units of self-government.

41. Right to work, to education and to public assistance in certaincases:– The State shall, within the limits of its economic capacity anddevelopment, make effective provision for securing the right to work, toeducation and to public assistance in cases of unemployment, old age,sickness and disablement, and in other cases of undeserved want.

Caselaw

Each institution can have its own scheme of examinations. Miss. DebopriyaGanguly v. State of West Bengal and others, AIR 2005 Cal. 76.

Sanction of medical expenses cannot be withdrawn on the expiry of theapplicant. Chatrubhuja Behera v. State of Orissa, AIR 2005 Ori. 63.

42. Provision for just and humane conditions of work and maternityrelief:– The State shall make provision for securing just and humane conditionsof work and for maternity relief.

Caselaw

Maternity benefit shall be made available to casual employees also. AIR2000 SC 1274.

43. Living wage, etc., for workers:– The State shall endeavour tosecure, by suitable legislation or economic organisation or in any other way,to all workers, agricultural, industrial or otherwise, work, a living wage,conditions of work ensuring a decent standard of life and full enjoyment of

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 8, w.e.f. 3-1-1977.



leisure and social and cultural opportunities and, in particular, the State shallendeavour to promote cottage industries on an individual or co-operativebasis in rural areas.

Caselaw

Increase in the number of holidays is not unreasonable. M.R.F. Ltd. v.Inspector, Kerala Govt. and others, AIR 1999 SC 188.

1[43A. Participation of workers in management of industries:– TheState shall take steps, by suitable legislation or in any other way, to securethe participation of workers in the management of undertakings, establishmentsor other organisations engaged in any industry.]

44. Uniform civil code for the citizens:– The State shall endeavourto secure for the citizens a uniform civil code throughout the territory ofIndia.

Comments

Article 44:-- In order to clear the doubt about the liability of a Muslim

husband to pay maintenance to the divorced wife, the Supreme Court recommended

enactment of Uniform Civil Code.

Notwithstanding the recommendation the Parliament passed an Act whereby

the responsibility of paying maintenance shall be shared by the husband’s relative

and the Wakf Board. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC

945.

2[45. Provision for early childhood care and education to childrenbelow the age of six years:– The State shall endeavour to provide earlychildhood care and education for all children until they complete the ageof six years.]

46. Promotion of educational and economic interests of ScheduledCastes, Scheduled Tribes and other weaker sections:– The State shallpromote with special care the educational and economic interests of theweaker sections of the people, and, in particular, of the Scheduled Castesand the Scheduled Tribes, and shall protect them from social injustice andall forms of exploitation.


2. Subs. by Constitution (Eighty-sixth Amendment) Act, 2002, dt. 12-12-2002, w.e.f. 1.4.2010.

Art. 46

43

47. Duty of the State to raise the level of nutrition and thestandard of living and to improve public health:– The State shall regardthe raising of the level of nutrition and the standard of living of its peopleand the improvement of public health as among its primary duties and, inparticular, the State shall endeavour to bring about prohibition of theconsumption except for medicinal purposes of intoxicating drinks and of drugswhich are injurious to health.

Caselaw

Corporate Hospitals charging very high fees – Government is directed tocreate a grievance redressal in addition to consumer protection. P.R. SubhashChandran v. Govt. of A.P. and others, AIR 2000 A.P. 272.

48. Organisation of agriculture and animal husbandry:– The Stateshall endeavour to organise agriculture and animal husbandry on modern andscientific lines and shall, in particular, take steps for preserving and improvingthe breeds, and prohibiting the slaughter, of cows and calves and other milchand draught cattle.

1[48A. Protection and improvement of environment andsafeguarding of forests and wild life:– The State shall endeavour to protectand improve the environment and to safeguard the forests and wild life ofthe country.]

Caselaw

Large scale mining undertaken contrary to rules is stayed. Ashwani Chobisav. Union of India and others, AIR 2005 Raj. 58 (NOC).

Liberal construction must conform with the object of the statute. Stateof West Bengal and others v. Surjit Kumar Rana, AIR 2004 SC 1851 = 2004AIR SCW 597.

Supreme Court had an occasion in which it gave comprehensive directionto Public Ecology particularly in cases of (1) shipbuilding; (2) relocation ofpollution causing industries. The directions include the time frame within whichthe orders of the Government should be implemented. The principle that pollutershould pay and shall pay himself was reaffirmed. Research Foundation forScience, Technology & National Resource Policy v. Union of India, 2005 (10)SCC 510.

49. Protection of monuments and places and objects of nationalimportance:– It shall be the obligation of the State to protect every monumentor place or object of artistic or historic interest, 2[declared by or under lawmade by Parliament] to be of national importance, from spoilation, disfigurement,destruction, removal, disposal or export, as the case may be.

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 10, w.e.f. 3-1-1977.2. Subs. by the Constitution (Seventh Amendment) Act, 1956, Sec.27, for “declared by

Parliament by law”.



50. Separation of judiciary from executive:– The State shall takesteps to separate the judiciary from the executive in the public services ofthe State.

Caselaw

Separation of judiciary from criminal side – Report called for fromArunachal Pradesh. 2005 AIR SCW 5172.

51. Promotion of international peace and security:– The State shallendeavour to–

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in thedealings of organised people with one another; and

(d) encourage settlement of international disputes by arbitration.Comments

Articles 36 to 51:– While enacting the chapter on directive principles ofState policy, the Constitution has made it clear that the State in India is a welfareState, its economy is inclusive of all sections of the people particularly the lowestof the law and is expressly non-exploitative in character. Though the SupremeCourt cannot issue any directives in the nature of mandamus to the State tolegislate a law in conformity with the principles stated in this chapter, the Courtscan take into consideration the objectives of the principles while making anyorders in which the said principles are involved. Though the court cannot directany State to make any law on full employment, the Court will certainly sustainany law in the direction of creating employment such as Rural EmploymentGuarantee Act notwithstanding the fact that it will not cover all the ruralunemployed. Any law made by the State to control the industry by means ofregulation will be upheld by the Court on the ground that it discourages monopoly.Similarly, when any legislation is made to take over excess properties above theceiling fixed, such law will surely get a nod from the judiciary applying theprinciples contained in the directive principles of State policy and such law cannotbe treated as a law authorising total expropriation of property. The fact thata legislation satisfies the declaration contained therein that it is designed to achievethe directives of State policy does not preclude the Supreme Court to examinewhether such law satisfies the declaration contained therein.

Treaties cannot form a cause in Supreme Court. Berubari Union in re,AIR 1960 SC 845.

Art. 51

45

1[PART IVA

Fundamental Duties

51A. Fundamental Duties:– It shall be the duty of every citizen ofIndia.

(a) to abide by the Constitution and respect its ideals and institutions,the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our nationalstruggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called uponto do so;

(e) to promote harmony and the spirit of common brotherhood amongstall the people of India transcending religious, linguistic and regionalor sectional diversities; to renounce practices derogatory to thedignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests,lakes, rivers and wild life, and to have compassion for livingcreatures;

(h) to develop the scientific temper, humanism and the spirit of inquiryand reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collectiveactivity so that the nation constantly rises to higher levels ofendeavour and achievement.]

2[(k) who is a parent or guardian to provide opportunities for educationto his child or, as the case may be, ward between the age ofsix and fourteen years.]

Caselaw

Supreme Court laid down as a rule of law that the pollutor shall pay andhe shall also pay himself. Indian Council of Enviro-legal Action v. Union ofIndia, AIR 1996 SC 1446.


2. Added by the Constitution (Eighty-sixth Amendment) Act, 2002, dt. 12-12-2002,

w.e.f. 1-4-2010.

Fundamental DutiesArt. 51A


Court directed preservation of Visva Bharti Ambience. Sushanta Tagore andothers v. Union of India and others, AIR 2005 SC 1975 = 2005 AIR SCW1299.

National flag guidelines. Union of India v. Naveen Jindal and another, AIR2004 SC 1559 = 2004 AIR SCW 705.

Early retirement age for Air hostesses from flying duties is a valid conditionof service. 2003 AIR SCW 5891.

PART-V

THE UNION

CHAPTER I – THE EXECUTIVE

The President and Vice-President

52. The President of India:– There shall be a President of India.

53. Executive power of the Union:– (1) The executive power ofthe Union shall be vested in the President and shall be exercised by himeither directly or through officers subordinate to him in accordance with thisConstitution.

(2) Without prejudice to the generality of the foregoing provision, thesupreme command of the Defence Forces of the Union shall be vested inthe President and the exercise thereof shall be regulated by law.

(3) Nothing in this Article shall–

(a) be deemed to transfer to the President any functions conferred byany existing law on the Government of any State or other authority;or

(b) prevent Parliament from conferring by law functions on authoritiesother than the President.

54. Election of President:– The President shall be elected by themembers of an electoral college consisting of–

(a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States.1[Explanation:– In this Article and in Article 55, State includes the

National Capital Territory of Delhi and the Union territory of Pondicherry.]

1. Ins. by the Constitution (Seventieth Amendment) Act, 1992 S. 2, w.e.f. 1-6-1995.

Art. 54

47

55. Manner of election of President:– (1) As far as practicable,there shall be uniformity in the scale of representation of the different Statesat the election of the President.

(2) For the purpose of securing such uniformity among the States interse as well as parity between the States as a whole and the Union, the numberof votes which each elected member of Parliament and of the LegislativeAssembly of each State is entitled to cast at such election shall be determinedin the following manner:–

(a) every elected member of the Legislative Assembly of a State shallhave as many votes as there are multiples of one thousand in thequotient obtained by dividing the population of the State by thetotal number of the elected members of the Assembly;

(b) if, after taking the said multiples of one thousand, the remainderis not less than five hundred, then the vote of each member referredto in sub-clause (a) shall be further increased by one;

(c) each elected member of either House of Parliament shall have suchnumber of votes as may be obtained by dividing the total numberof votes assigned to the members of the Legislative Assembliesof the States under sub-clauses (a) and (b) by the total numberof the elected members of both Houses of Parliament, fractionsexceeding one-half being counted as one and other fractions beingdisregarded.

(3) The election of the President shall be held in accordance with thesystem of proportional representation by means of the single transferable voteand the voting at such election shall be by secret ballot.

1[Explanation:– In this Article, the expression “population” means thepopulation as ascertained at the last preceding census of which the relevantfigures have been published:

Provided that the reference in this Explanation to the last precedingcensus of which the relevant figures have been published shall, until therelevant figures for the first census taken after the year 2[2026] have beenpublished, be construed as a reference to the 1971 census.]

1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 12, for theExplanation w.e.f. 3-1-1977.

2. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, Sec. 2, for the figures“2000”, w.e.f. 21-2-2002.

The UnionArt. 55


56. Term of office of President:– (1) The President shall hold officefor a term of five years from the date on which he enters upon his office:

Provided that–

(a) the President may, by writing under his hand addressed to the Vice-President, resign his office;

(b) the President may, for violation of the Constitution, be removedfrom office by impeachment in the manner provided in Article 61;

(c) the President shall, notwithstanding the expiration of his term,continue to hold office until his successor enters upon his office.

(2) Any resignation addressed to the Vice-President under clause (a)of the proviso to clause (1) shall forthwith be communicated by him to theSpeaker of the House of the People.

57. Eligibility for re-election:– A person who holds, or who has held,office as President shall, subject to the other provisions of this Constitution,be eligible for re-election to that office.

58. Qualifications for election as President:– (1) No person shallbe eligible for election as President unless he–

(a) is a citizen of India,

(b) has completed the age of thirty-five years, and

(c) is qualified for election as a member of the House of the People.

(2) A person shall not be eligible for election as President if he holdsany office of profit under the Government of India or the Government ofany State or under any local or other authority subject to the control ofany of the said Governments.

Explanation:– For the purposes of this Article, a person shall not bedeemed to hold any office of profit by reason only that he is the Presidentor Vice-President of the Union or the Governor 1[xxx] of any State or isa Minister either for the Union or for any State.

59. Conditions of President’s office:– (1) The President shall notbe a member of either House of Parliament or of a House of the Legislatureof any State, and if a member of either House of Parliament or of a House

1. The words “or Rajpramukh or Uparajpramukh” omitted by the Constitution (SeventhAmendment) Act, 1956, Sec. 29 and Sch.

Art. 59

49

of the Legislature of any State be elected President, he shall be deemedto have vacated his seat in that House on the date on which he enters uponhis office as President.

(2) The President shall not hold any other office of profit.

(3) The President shall be entitled without payment of rent to the useof his official residences and shall be also entitled to such emoluments,allowances and privileges as may be determined by Parliament by law and,until provision in that behalf is so made, such emoluments, allowances andprivileges as are specified in the Second Schedule.

(4) The emoluments and allowances of the President shall not bediminished during his term of office.

60. Oath or affirmation by the President:– Every President and everyperson acting as President or discharging the functions of the President shall,before entering upon his office, make and subscribe in the presence of theChief Justice of India or, in his absence, the senior-most Judge of the SupremeCourt available, an oath or affirmation in the following form, that is to say–

“I, A.B., do —————————— that I will faithfully execute

the office of President (or discharge the functions of the President) ofIndia and will to the best of my ability preserve, protect and defend theConstitution and the law and that I will devote myself to the service andwell-being of the people of India.”.

61. Procedure for impeachment of the President:– (1) When aPresident is to be impeached for violation of the Constitution, the chargeshall be preferred by either House of Parliament.

(2) No such charge shall be preferred unless–

(a) the proposal to prefer such charge is contained in a resolution whichhas been moved after at least fourteen days’ notice in writing signedby not less than one-fourth of the total number of members ofthe House has been given of their intention to move the resolution,and

(b) such resolution has been passed by a majority of not less thantwo-thirds of the total membership of the House.

swear in the name of God

solemnly affirm

The UnionArt. 61

CONST-4


(3) When a charge has been so preferred by either House of Parliament,the other House shall investigate the charge or cause the charge to beinvestigated and the President shall have the right to appear and to berepresented at such investigation.

(4) If as a result of the investigation a resolution is passed by a majorityof not less than two-thirds of the total membership of the House by whichthe charge was investigated or caused to be investigated, declaring that thecharge preferred against the President has been sustained, such resolutionshall have the effect of removing the President from his office as from thedate on which the resoultion is so passed.

62. Time of holding election to fill vacancy in the office ofPresident and the term of office of person elected to fill casualvacancy:– (1) An election to fill a vacancy caused by the expiration ofthe term of office of President shall be completed before the expiration ofthe term.

(2) An election to fill a vacancy in the office of President occurringby reason of his death, resignation or removal, or otherwise shall be heldas soon as possible after, and in no case later than six months from, thedate of occurrence of the vacancy; and the person elected to fill the vacancyshall, subject to the provisions of Article 56, be entitled to hold officefor the full term of five years from the date on which he enters upon hisoffice.

63. The Vice-President of India:– There shall be a Vice-Presidentof India.

64. The Vice-President to be ex officio Chairman of the Councilof States:– The Vice-President shall be ex officio Chairman of the Councilof States and shall not hold any other office of profit:

Provided that during any period when the Vice-President acts asPresident or discharges the functions of the President under Article65, he shall not perform the duties of the office of Chairman of the Councilof States and shall not be entitled to any salary or allowance payable tothe Chairman of the Council of States under Article 97.

Comments

Article 64:-- Vice-President holds two posts. He shall be the ex officioChairman of Rajya Sabha also. If he is removed from office as Vice-President

Art. 64

51

by a simple majority of both Houses separately voting, he shall cease to be theChairman of Rajya Sabha as well. While acting as President, he shall not functionas Chairman of Rajya Sabha during which period, the Dy. Chairman takes theplace of Chairman, but it does not mean that Dy. Chairman can function asVice-President.

65. The Vice-President to act as President or to discharge hisfunctions during casual vacancies in the office, or during the absence,of President:– (1) In the event of the occurrence of any vacancy in theoffice of the President by reason of his death, resignation or removal, orotherwise, the Vice-President shall act as President until the date on whicha new President elected in accordance with the provisions of this Chapterto fill such vacancy enters upon his office.

(2) When the President is unable to discharge his functions owing toabsence, illness or any other cause, the Vice-President shall discharge hisfunctions until the date on which the President resumes his duties.

(3) The Vice-President shall, during, and in respect of, the period whilehe is so acting as, or discharging the functions of, President, have all thepowers and immunities of the President and be entitled to such emoluments,allowances and privileges as may be determined by Parliament by law and,until provision in that behalf is so made, such emoluments, allowances andprivileges as are specified in the Second Schedule.

Caselaw

When there is prospective overruling, the Government can retain the taxalready collected. AIR 2001 SC 1723.

66. Election of Vice-President:– (1) The Vice-President shall beelected by the 1[members of an electoral college consisting of the membersof both Houses of Parliament] in accordance with the system of proportionalrepresentation by means of the single transferable vote and the voting at suchelection shall be by secret ballot.

(2) The Vice-President shall not be a member of either House ofParliament or of a House of the Legislature of any State, and if a memberof either House of Parliament or of a House of the Legislature of any Statebe elected Vice-President, he shall be deemed to have vacated his seat inthat House on the date on which he enters upon his office as Vice-President.

1. Subs. for “members of both Houses of Parliament assembled at a joint meeting” by theConstitution (Eleventh Amendment) Act, 1961, Sec. 2.

The UnionArt. 66


(3) No person shall be eligible for election as Vice-President unlesshe–

(a) is a citizen of India;

(b) has completed the age of thirty-five years; and

(c) is qualified for election as a member of the Council of States.

(4) A person shall not be eligible for election as Vice-President if heholds any office of profit under the Government of India or the Governmentof any State or under any local or other authority subject to the controlof any of the said Governments.

Explanation:– For the purposes of this Article, a person shall not bedeemed to hold any office of profit by reason only that he is the Presidentor Vice-President of the Union or the Governor 1[xxx] of any State or isa Minister either for the Union or for any State.

67. Term of office of Vice-President:– The Vice-President shall holdoffice for a term of five years from the date on which he enters upon hisoffice:

Provided that–

(a) a Vice-President may, by writing under his hand addressed to thePresident, resign his office;

(b) a Vice-President may be removed from his office by a resolutionof the Council of States passed by a majority of all the thenmembers of the Council and agreed to by the House of the People;but no resolution for the purpose of this clause shall be movedunless at least fourteen days’ notice has been given of the intentionto move the resolution;

(c) a Vice-President shall, notwithstanding the expiration of his term,continue to hold office until his successor enters upon his office.

68. Time of holding election to fill vacancy in the office of Vice-President and the term of office of person elected to fill casualvacancy:– (1) An election to fill a vacancy caused by the expiration ofthe term of office of Vice-President shall be completed before the expirationof the term.

Art. 68

1. The words “or Rajpramukh or uparajpramukh” omitted by the Constitution (SeventhAmendment) Act, 1956, Sec. 29 and Sch.

53

(2) An election to fill a vacancy in the office of Vice-President occurringby reason of his death, resignation or removal, or otherwise shall be heldas soon as possible after the occurrence of the vacancy, and the personelected to fill the vacancy shall, subject to the provisions of Article 67, beentitled to hold office for the full term of five years from the date on whichhe enters upon his office.

69. Oath or affirmation by the Vice-President:– Every Vice-Presidentshall, before entering upon his office, make and subscribe before the President,or some person appointed in that behalf by him, an oath or affirmation inthe following form, that is to say–

“I, A.B., do —————————— that I will bear true faith and

allegiance to the Constitution of India as by law established and that I willfaithfully discharge the duty upon which I am about to enter.”.

70. Discharge of President’s functions in other contingencies:–Parliament may make such provision as it thinks fit for the discharge of thefunctions of the President in any contingency not provided for in this Chapter.

1[71. Matters relating to, or connected with, the election of aPresident or Vice-President:– (1) All doubts and disputes arising out ofor in connection with the election of a President or Vice-President shall beinquired into and decided by the Supreme Court whose decision shall befinal.

(2) If the election of a person as President or Vice-President is declaredvoid by the Supreme Court, acts done by him in the exercise and performanceof the powers and duties of the office of President or Vice-President, asthe case may be, on or before the date of the decision of the SupremeCourt shall not be invalidated by reason of that declaration.

(3) Subject to the provisions of this Constitution, Parliament may bylaw regulate any matter relating to or connected with the election of aPresident or Vice-President.

(4) The election of a person as President or Vice-President shall notbe called in question on the ground of the existence of any vacancy forwhatever reason among the members of the electoral college electing him.]

swear in the name of God

solemnly affirm

1. Subs. by the (Forty-fourth Amendment) Act, 1978, w.e.f. 20-6-1979.

The UnionArt. 71


72. Power of President to grant pardons, etc., and to suspend,remit or commute sentences in certain cases:– (1) The President shallhave the power to grant pardons, reprieves, respites or remissions ofpunishment or to suspend, remit or commute the sentence of any personconvicted of any offence–

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offenceagainst any law relating to a matter to which the executive powerof the Union extends;

(c) in all cases where the sentence is a sentence of death.

(2) Nothing in sub-clause (a) of clause (1) shall affect the powerconferred by law on any officer of the Armed Forces of the Union to suspend,remit or commute a sentence passed by a Court Martial.

(3) Nothing in sub-clause (c) of clause (1) shall affect the power tosuspend, remit or commute a sentence of death exercisable by the Governor1[xxx] of a State under any law for the time being in force.

Caselaw

President’s powers are independent of judiciary. Godse v. State ofMaharashtra, AIR 1961 SC 600.

Power of pardon is an essential attribute of sovereign power. EpuruSudhakar & Anr. v. Govt. of A.P. & Ors., AIR 2006 SC 3385.

Remission of sentence does not mean acquittal. AIR 2001 SC 2231.

73. Extent of executive power of the Union:– (1) Subject to theprovisions of this Constitution, the executive power of the Union shall extend–

(a) to the matters with respect to which Parliament has power to makelaws; and

(b) to the exercise of such rights, authority and jurisdiction as areexercisable by the Government of India by virtue of any treaty oragreement:

Provided that the executive power referred to in sub-clause (a)shall not, save as expressly provided in this Constitution or in anylaw made by Parliament, extend in any State 2[xxx] to matters with

1. The words “or Rajpramukh” omitted by the Constitution (Seventh Amendment) Act, 1956,Section 29 and Schedule.

2. The words and letters “specified in Part A or Part B of the First Schedule” omitted bythe Constitution (Seventh Amendment) Act, 1956, Section 29 and Schedule.

Art. 73

55

respect to which the Legislature of the State has also power tomake laws.

(2) Until otherwise provided by Parliament, a State and any officer orauthority of a State may, notwithstanding anything in this Article, continueto exercise in matters with respect to which Parliament has power to makelaws for that State such executive power or functions as the State or officeror authority thereof could exercise immediately before the commencementof this Constitution.

Council of Ministers

74. Council of Ministers to aid and advise President:– 1[(1) Thereshall be a Council of Ministers with the Prime Minister at the head to aidand advise the President who shall, in the exercise of his functions, act inaccordance with such advice:]

2[Provided that the President may require the Council of Ministers toreconsider such advice, either generally or otherwise, and the President shallact in accordance with the advice tendered after such reconsideration.]

(2) The question whether any, and if so what, advice was tenderedby Ministers to the President shall not be inquired into in any court.

75. Other provisions as to Ministers:– (1) The Prime Minister shallbe appointed by the President and the other Ministers shall be appointedby the President on the advice of the Prime Minister.

3[(1-A) The total number of Ministers, including the Prime Minister,in the Council of Ministers shall not exceed fifteen per cent, of the totalnumber of members of the House of the People.

(1-B) A member of either House of Parliament belonging to any politicalparty who is disqualified for being a member of that House under paragraph2 of the Tenth Schedule shall also be disqualified to be appointed as a Ministerunder clause (1) for duration of the period commencing from the date ofhis disqualification till the date on which the term of his office as such memberwould expire or where he contests any election to either House of Parliamentbefore the expiry of such period, till the date on which he is declared elected,whichever is earlier.]

1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, Section 13,w.e.f. 3-1-1977.

2. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 11,w.e.f. 20-6-1979.

3. Clauses (1A) and (1B) inserted by the Constitution (Ninety-first Amendment) Act, 2003,w.e.f. 2-1-2004.

The UnionArt. 75


(2) The Ministers shall hold office during the pleasure of the President.

(3) The Council of Ministers shall be collectively responsible to theHouse of the People.

(4) Before a Minister enters upon his office, the President shall administerto him the oaths of office and of secrecy according to the forms set outfor the purpose in the Third Schedule.

(5) A Minister who for any period of six consecutive months is nota member of either House of Parliament shall at the expiration of that periodcease to be a Minister.

(6) The salaries and allowances of Ministers shall be such as Parliamentmay from time to time by law determine and, until Parliament so determines,shall be as specified in the Second Schedule.

Comments

Articles 52 to 75:– President is the Head of the Union and its executive.The executive power of the Union extends over all subjects other than thosecovered by legislature and judiciary. He is elected under a system of proportionalrepresentation by single transferable vote. The electoral college of Presidentialelection consists of all the elected members of Lok Sabha and all the electedMembers of Legislative Assemblies of the States and Union Territories (exceptthose nominated).

The election can be questioned in the Supreme Court only which sits aselection tribunal and in no other Court.

The President acts on the advice of the Prime Minister and shall not deviatefrom his advice. If for any reason he dissents, he can send back the file tothe Cabinet for reconsideration. If the Cabinet resubmits its recommendationsas originally framed or modified in accordance with the suggestions of thePresident either fully or partly, the President shall accept the reconsideredrecommendations of the Cabinet. There are a few instances where Presidentialinterference changed the course of action proposed by the Cabinet. PresidentDr. Babu Rajendra Prasad did not agree to the Hindu Code Bill unless it is dividedinto different parts such as Hindu Marriage Act of 1955, Hindu Succession Act,1956, Hindu Minority and Guardianship Act of 1956, Hindu Adoption andMaintenance Act, 1956 and the subject of coparcenary is omitted. Hence, theHindu Law reforms took the form of four enactments instead of a single Code.President Zail Singh did not agree with Mr. Rajiv Gandhi on the proposed postalBill. The Bill died a natural death on the ground that it failed to secure thePresidential assent. There is also one instance where the President A.P.J. AbdulKalam recommended a passing off a comprehensive enactment on the subject

Art. 75

57

of “office of profit” instead of making exemption enactments every time suchproblem arose. The Prime Minister did not agree to the suggestion and got passedthe enactment granting exemption to a particular office of profit. Therefore, inorder to provide for Cabinet supremacy, the Constitution has made it obligatoryfor the President to grant the assent when the Cabinet resubmits its opinionon the Presidential objection.

The President has certain discretionary power unconnected with Cabinetrecommendations. He is not bound by the advice of the outgoing Prime Ministerwho lost the confidence of the House. He follows, however, the recommendationsof outgoing Prime Minister if for any reason he desires to go for early pollsand for that purpose seeks dissolution of the House. The President is, however,bound to seek bona fide the alternatives for the formation of the new Ministry,in cases of crisis. Where the President is required to follow the recommendationof any particular Minister holding a special charge of a specified portfolio, itis open to him to avoid the Cabinet but where the President dissents with theopinion of the Minister, he can refer the subject to Cabinet for its approval.

The President has power to grant pardon, convert the sentence of deathto life imprisonment. The President has power to grant reprieves, and reducesentence for life to any lower punishment. The President is not entitled to convertthe conviction to acquittal. The President has power to grant pardon in respectof cases arising from Court martial and also power to grant pardon in casesof death sentence when the Governor of the State has chosen not to grant thepardon.

The President has power to refer any question of law of constitutionalimportance to the Supreme Court for opinion. The opinion rendered by theSupreme Court is not binding on the Government. The Supreme Court is boundto take up such reference and is bound to consider the questions submitted toit for its opinion. The Supreme Court can re-frame the questions if the factsof the dispute so warrant. [State of Karnataka v. Union of India, AIR 1978SC 68]. The Supreme Court cannot refuse to consider the matter submitted toit. The Supreme Court should consider the matter but may refuse to recordthe opinion. There was one instance when the Supreme Court after hearing onthe Presidential reference omitted to render its opinion. That was a case arisingout of Babri Masjid. When the Supreme Court asked the Attorney General whetherthe Government would follow the opinion of the Supreme Court, the AttorneyGeneral failed to give any such assurance. While hearing the Presidential reference,the Supreme Court must hear all the persons interested and also all those whoapply for an opportunity of hearing. Since Presidential reference cannot be calleda lis, it is styled as “In re: Presidential reference”. Even after the Supreme Courtrenders its opinion, it is still open to the Court to consider the issues coveredby Presidential reference in any other duly instituted case when such issues areraised.

The UnionArt. 75


Vice President is elected by the Members of Rajya Sabha and the Membersof the Lok Sabha. He is the ex officio Chairman of Rajya Sabha and conductsits proceedings in the same way as the Speaker conducts the proceedings ofthe Lok Sabha. While acting as President he shall have all the privileges andthe salary payable to the President. He can reside in the Presidential Palace. Thefact that he is acting only temporarily as a President does not make any differencein the status, powers and immunities he should enjoy as a President.

The term of the office of the President and Vice President is five years.But, he may continue in the post till the next elected President and Vice Presidenttakes charge. Therefore, the election of the President and Vice President shalltake place before the period of the expiry of their term. If any vacancy occurson account of the death of incumbent or otherwise the election must be heldas early as possible. Just as the election of the President can be questionedonly in the Supreme Court, the election of the Vice President also can bequestioned in the Supreme Court only.

The business of the Union shall be carried on in the name of the Presidentand all orders issued shall be duly authenticated. When once a document is dulyauthenticated it is not open for any Court to enquire whether such order is infact made by the President personally. The rules of business contained in thenotification of the Government of India S.O.No.2297 dt. 3.11.1958, governs themanner of authentication. [Sarma v. Union of India, AIR 1970 Del. 250]. Thebusiness rules also provides that the President should allot the subjects to severalMinistries. In case where the Minister concerned is the final authority and thePresident dissents with his view, the President may direct the matter to beconsidered by the Cabinet. In such a case, the Cabinet decision may be treatedas reconsidered recommendation and the same shall be accepted by the President.

The question as to what advice the Cabinet has tendered to the Presidentbeing confidential is protected under the Official Secrets Act. The Cabinet cannotbe compelled to disclose such advice. However, the Commission of Informationunder the Right to Information Act held that the recommendation of the Cabinetcan be disclosed after the decision is made on the subject matter underconsideration.

The President appoint in his discretion, the Prime Minister whom heconsiders as the Leader of the House. The Leader of the majority party or groupof parties is called the Leader of the House. The President appoints the Ministersas recommended by the Prime Minister. The number of Ministers to be appointedshall not exceed 15% of the Members of Lok Sabha. There is nothing like aMinister losing the confidence of the House. If the no confidence motion hasto be moved, it shall be against the Prime Minister and his entire Cabinet since,the Cabinet functions as a unit and is jointly responsible to the Parliament. Ifthe Minister loses the confidence of the Prime Minister, such Member may be

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59

removed by the President, if the Prime Minister recommends his removal.Whatever be the magnitude of the criticism in the Parliament against the Minister,he cannot be removed unless Prime Minister recommends his removal. The PrimeMinister may in certain embarrassing circumstances require the Minister to resignvoluntarily. The resignation of T.T. Krishnamachary, the then Finance Ministerinvolved in Mundra’s scandal was directed to resign, so also the case of V.K.Krishna Menon who happened to be involved in what was called Zeep scandal.

The President also appoints all the Constitutional functionaries such as theJudges of the Supreme Court and the Judges of the High Court, the AttorneyGeneral, the Comptroller & Auditor General, the Election Commission, FinanceCommission and also such other Commissions as the Constitution and the lawrequires to be appointed by the President. Unless the law otherwise providesthey all hold their office at the pleasure of President. The expression “pleasureof President” means, that the persons can be removed by the President if theylose the President’s confidence. The removal of constitutional functionaries isgoverned by some special procedures. Judges and the Chief Election Commissionercan be removed only through a procedure called impeachment. The AttorneyGeneral, the Comptroller and Auditor General may be removed if the Governmentloses its confidence and recommends to the President their removal. ElectionCommissioners other than Chief Election Commissioner can be removed onlyon the recommendation by the Chief Election Commissioner who is required tomake his recommendation of the President. The other Constitutional functionariescan be removed on the recommendation of the Cabinet. Sometimes, a personis removed from his position by abolishing of the post he occupies. Commissionsappointed for some special purposes are removed by not renewing their termor by abolishing the commission itself.

The President shall convene the sessions of the Parliament. He addressesthe first session of the Parliament after General Elections and the first sessionof the Parliament at the beginning of each year. His address notwithstandingthe interruptions is treated as read and the same is followed by motion of thankswhich is also treated as passed inspite of no voting is taken by reason ofdisturbances. The President has power to send messages to the Parliament fordiscussion of any question of importance under Art. 87. He can send messagesin respect of any pending bill. If the Parliamentarians are following dilatory tacticsor otherwise delaying consideration the Parliament is bound to take up the matterand conclude the business.

The Attorney-General for India

76. Attorney-General for India:– (1) The President shall appoint aperson who is qualified to be appointed a Judge of the Supreme Court tobe Attorney-General for India.

The UnionArt. 76


(2) It shall be the duty of the Attorney-General to give advice to theGovernment of India upon such legal matters, and to perform such otherduties of a legal character, as may from time to time be referred or assignedto him by the President, and to discharge the functions conferred on himby or under this Constitution or any other law for the time being in force.

(3) In the performance of his duties the Attorney-General shall haveright of audience in all Courts in the territory of India.

(4) The Attorney-General shall hold office during the pleasure of thePresident, and shall receive such remuneration as the President may determine.

Comments

Article 76:-- Attorney General of India occupies a dual post. He is theadvisor to the Union on all legal matters. He is also the advocate for the Union.Nobody else can carry out these functions or can anybody else be appointedeven temporarily to carry out his functions. The Attorney General can concedethe points which he considers as reasonable and correct according to hisconscience, though the same are opposed to the opinion of the Government.If he does not agree with the views of the Government he should better resignand not to continue to assert his positions. That is the reason why the AttorneyGeneral offers to resign from his post whenever the Government changes aftereach election. The Attorney General has to carry out and discharge such otherfunctions as the President may assign. He should appear before the Commissionsand Tribunals such as inter-State river water tribunals on behalf of the Union;He may appear for any State Government on its behalf in which the Union isnot a party. Even though, the Attorney General is entitled to private practicehe shall not argue against the Union Government when appointed by the StateGovernment. He may while appearing for private parties oppose the StateGovernment. Attorney General is the authority to sanction applications of privateparties in contempt matters. It is only in the case where he himself does notprefer to file the contempt application; he shall permit private parties to filecontempt applications. The Attorney General if so requested may address theParliament and participate in discussions. He is not entitled to vote on any issue.He can also participate if so requested in the discussions of ParliamentaryCommittees.

Conduct of Government Business

77. Conduct of business of the Government of India:– (1) Allexecutive action of the Government of India shall be expressed to be takenin the name of the President.

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(2) Orders and other instruments made and executed in the name ofthe President shall be authenticated in such manner as may be specified inRules to be made by the President, and the validity of an order or instrumentwhich is so authenticated shall not be called in question on the ground thatit is not an order or instrument made or executed by the President.

(3) The President shall make rules for the more convenient transactionof the business of the Government of India, and for the allocation amongMinisters of the said business.

1[xxx]

Comments

Article 77:-- The business of Government of India should be expressedto be stated in the name of the President. The business rules contain in S.O.2292dated 3.11.1958 as subsequently amended from time to time govern the mannerof authentication of the instruments. When once they are duly authenticated itis not open to anybody to question that particular order has not been made bythe President under his direct authorisation. In suits by or against the Governmentof India, the party named shall be the Union of India represented by the Secretaryto the Government. If it is not so styled the suit is liable to be dismissed asagainst the Union.

Minister taking decision involving financial implications without consultingFinance Department would be acting contrary to the business rules. State ofManipur v. All Manipur Petroleum Products Transporters Association & Ors.,AIR 2007 (NOC) 1791 (Gau.).

Caselaw

Delegation of financial powers does not include the power to transfermembers of the Income Tax Appellate Tribunal by the President. Ajay Gandhiand another v. B. Singh and others, AIR 2004 SC 1391 = 2004 AIR SCW298.

When the Court gives successive guidelines, revised guidelines will apply.Union of India and others v. C. Krishna Reddy, AIR 2004 SC 1194 = 2004AIR SCW 89.

78. Duties of Prime Minister as respects the furnishing ofinformation to the President, etc.:– It shall be the duty of the PrimeMinister–

1. Clause (4) omitted by the Constitution (44th Amndt.) Act, 1978, Sec. 12, w.e.f. 20.6.1979.

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(a) to communicate to the President all decisions of the Council ofMinisters relating to the administration of the affairs of the Unionand proposals for legislation;

(b) to furnish such information relating to the administration of the affairsof the Union and proposals for legislation as the President maycall for; and

(c) if the President so requires, to submit for the consideration of theCouncil of Ministers any matter on which a decision has been takenby a Minister but which has not been considered by the Council.

Comments

Article 78:-- It is the duty of the Prime Minister to inform the Presidentabout all the affairs of the State and particularly about the proposed legislations.This practice was in accordance with the British tradition where Prime Ministermeets the monarch periodically. The President, if he is not satisfied with anydecision of the Minister, he may direct the matter to be considered by the Cabinet.

Readjustment of the number of seats for Parliament and State Assemblieson the basis of changes in population can take place only after its publicationof the final census figures in 2026. Till then the number of Constituencies forthe Parliament and State Assemblies shall remain those fixed as above. Theboundaries of the constituencies can be so altered as to make the populationcovered by the constituencies shall be as far as possible equal and shall be asnearly as possible equal to the total population of the State divided by the numberof constituencies. It is possible under this scheme that the Parliamentary constituencyin U.P. may have more number of voters because of the higher density ofpopulation than the Parliamentary constituency of Jammu and Kashmir wheredensity of population is lower. As of the present the population for each Assemblyconstituency and accordingly the Parliamentary constituency is calculated on thebasis of census figures published in 2001. This situation will continue up tothe year 2026. The time lag between the last meeting of one session of LokSabha and the first meeting of the next session shall not exceed six months.It means that Lok Sabha can have any number of sessions in a year and thatthe minimum shall be three as per the present practice. Lok Sabha meets in3 sessions a year – Budget session, Monsoon session and Winter session. ThePresident may prorogue the Lok Sabha at any time including while it is in session.Prorogation means that the Lok Sabha is not in session. Otherwise, when LokSabha adjourns from time to time, it is deemed to be in session during the periodwhen the Parliament is adjourned. The practice of proroguing the session to

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enable the President to issue Ordinance and repeated prorogations to reissue thesame ordinance without legislating an enactment is deprecated both in the caseof Lok Sabha and particularly in the case of State Assemblies [Rao v. Indira,AIR 1971 SC 1002]. Lok Sabha is presided by Speaker while it is the Chairmanwho presides over Rajya Sabha. They conduct the meetings of the Houses whichshall be in accordance with the rules. The quorum for meeting shall be 1/10thof the strength of the House. Whenever it is discovered that the attendance atthe House is less than 1/10th the meeting shall be adjourned to meet again afterthe quorum is achieved. All matters which required to be voted may be treatedas approved by the House when they are voted by the majority of the memberspresent. When there is equality of votes the Speaker or Chairman shall havethe right to exercise his casting vote. The Speaker or the Chairman does notvote unless he finds that the votes are equally divided. One of the controversialsituations in the history of the Lok Sabha was the continuance of SomanathChatterjee as Speaker at the confidence vote moved by the Prime Minister ManMohan Singh. The Government favoured 125 agreements with U.S. and the CPI(M) to which the Speaker belongs opposed it tooth and nail. CPI (M) threatenedto take disciplinary action against the Speaker and did also took the step ofexpelling him from the party. This is the illustration to establish the conventionthat the Speaker elected to the post is independent of the party to which hebelongs. In case, the House wants that the voting must be physically counted,the House then divides and cast their votes in boxes kept on the corridors ofthe Parliament. The names of the Members as to how they voted are publishedin the official records of the Parliament.

The Supreme Court is often found exercising jurisdiction over the Speakerand Speakers are found to be resisting the court’s interference. In the case ofthe issue where the Speaker issued a warrant of arrest against the contemner,the court’s interference is upheld under Presidential reference. [AIR 1965 SC745].

Supreme Court’s interference with the orders of the Speaker in the caseof corruption of M.Ps. occurring within the premises, notwithstanding the protestof the Speaker against making him a party, the order of the Speaker was upheld.

On the contrary, Speaker’s orders were set aside in the case of briberyof M.Ps. who voted on the confidence resolution receiving heavy bribes, onthe ground that the alleged bribery took place outside the Parliament. There areinstances where the Supreme Court insisted on the presence of the Speaker inthe Court but there is yet no case where the Speaker is brought before theCourt. It is suggested that the Court may not insist on claiming jurisdiction over

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the Speaker but only calls for the records and act accordingly. The independenceand dignity of the Speaker shall not be impaired.

While, the existence of any vacancies or any defect in the conduct ofthe business of the House shall not invalidate the proceedings, the participationof a person who is unqualified is made punishable with penalty of Rs.500/- foreach day of his presence and the same may be recovered from him as a debtdue to the Government. There is one instance when a Member of the TamilNadu Legislative Assembly when found ultimately to be unqualified being under-aged at the time of election is required to pay back all the salary and allowanceshe had drawn.

There may be instances where a person gets disqualified after the electionby reason of insolvency, insanity or some other reason as the Parliament mayprovide, or, by reason of defection or by reason of holding an office of profit[Jaya Bachan v. Union of India, AIR 2006 SC 2119]. The question ofdisqualification has to be decided by the Speaker and not by any other authorityand till such disqualification is decided the member continues to function asMember. Similarly where a person resigns, then also the Speaker has to necessarilyhold an enquiry and decide upon the genuineness of the resignation. A Memberof Parliament may cease to be a Member if he gets himself elected to the StateLegislature, if within a period prescribed he does not resign his seat in theAssembly. It means, if he does not resign his seat in the Assembly, he continuesto be a Member of the State Assembly and ceases to be a Member of theParliament and if he resigns his membership in the Parliament thereafter his seatin the Assembly shall be treated as confirmed. If after his resignation fromParliament he subsequently resigns from the State Assembly within the timeprescribed he shall not regain his parliamentary seat.

Powers and Privileges:-- Powers and privileges of the Parliament shallbe those which are being enjoyed by the Parliament eversince the commencementof the Constitution and also such of the unamended powers and privileges theBritish Parliament had prior to 1950. It means the old British Parliamentary powersand privileges are not absolute and they must be read in the context of thepowers and privileges exercised by the Indian Parliament from 1950 upto date.It may be noted here that the Indian Parliament, though it is charged by theConstitution with power to enact a law on the parliamentary privileges it hasnot made yet any law on the subject.

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CHAPTER-II

PARLIAMENT

General

79. Constitution of Parliament:– There shall be a Parliament for theUnion which shall consist of the President and two Houses to be knownrespectively as the Council of States and the House of the People.

80. Composition of the Council of States:– (1) 1[2[x x x] The Councilof States] shall consist of–

(a) twelve members to be nominated by the President in accordancewith the provisions of clause (3); and

(b) not more than two hundred and thirty-eight representatives of theStates 3[and of the Union Territories].

(2) The allocation of seats in the Council of States to be filled byrepresentatives of the States 3[and of the Union Territories] shall be inaccordance with the provisions in that behalf contained in the Fourth Schedule.

(3) The members to be nominated by the President under sub-clause(a) of clause (1) shall consist of persons having special knowledge or practicalexperience in respect of such matters as the following, namely:–

Literature, science, art and social service.

(4) The representatives of each State 4[xxx] in the Council of Statesshall be elected by the elected members of the Legislative Assembly of theState in accordance with the system of proportional representation by meansof the single transferable vote.

(5) The representatives of the 5[Union Territories] in the Council ofStates shall be chosen in such manner as Parliament may by law prescribe.

CONST-5

1. Subs. by the Constitution (Thirty-fifth Amndt.) Act, 1974, Sec. 3, for “The Council ofStates”, w.e.f. 1-3-1975.

2. The words “Subject to the provisions of paragraph 4 of the Tenth Schedule” omittedby the Constitution (Thirty-sixth Amndt.) Act, 1975, Sec. 5, w.e.f. 26-4-1975.

3. Added by the Constitution (Seventh Amndt.) Act, 1956, Section 3.

4. The words and letters “specified in Part A or Part B of the first Schedule” omitted bythe Constitution (Seventh Amndt.) Act, 1956, Section 3.

5. Subs. for “States specified in Part C of the First Schedule” by Constitution (SeventhAmndt.) Act, 1956, Sec. 3.

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Caselaw

To be elected to the Council of States residence and domicile are notmaterial. Kuldip Nayar v. Union of India & Ors., AIR 2006 SC 3127.

1[81. Composition of the House of the People:– (1) 2[Subject tothe provisions of Article 331, 3[xxx], the House of the People shall consistof–

(a) not more than 4[five hundred and thirty members] chosen by directelection from territorial constituencies in the States, and

(b) not more than 5[twenty members] to represent the Union Territories,chosen in such manner as Parliament may by law provide.

(2) For the purposes of sub-clause (a) of clause (1)–

(a) there shall be allotted to each State a number of seats in the Houseof the People in such manner that the ratio between that numberand the population of the State is, so far as practicable, the samefor all States; and

(b) each State shall be divided into territorial constituencies in suchmanner that the ratio between the population of each constituencyand the number of seats allotted to it is, so far as practicable,the same throughout the State:

6[Provided that the provisions of sub-clause (a) of this clause shall notbe applicable for the purpose of allotment of seats in the House of the Peopleto any State so long as the population of that State does not exceed sixmillions.]

(3) In this Article, the expression “population” means the populationas ascertained at the last preceding census of which the relevant figures havebeen published:

1. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Sec. 4, for Articles 81 & 82.2. Subs. by the Constitution (Thirty-fifth Amndt.) Act, 1974, Sec. 4, for “Subject to the

provisions of Article 331”, w.e.f. 1.3.1975.3. The words and figures “and paragraph 4 of the Tenth Schedule” omitted by the Constitution

(Thirty-sixth Amndt.) Act, 1975, Sec. 5, w.e.f. 26.4.1975.4. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), Sec. 63, for

“five hundred and twenty-five members”, w.e.f. 30.5.1987.5. Subs. by the Constitution (Thirty-first Amndt.) Act, 1973, Sec. 2, for “twenty-five

members”.6. Inserted by the Constitution (Thirty-first Amndt.) Act, 1973, Sec. 2.

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1[Provided that the reference in this clause to the last preceding censusof which the relevant figures have been published shall, until the relevantfigures for the first census taken after the year 2[2026] have been published,3[be construed,–

(i) for the purposes of sub-clause (a) of clause (2) and the provisoto that clause, as a reference to the 1971 census ; and

(ii) for the purposes of sub-clause (b) of clause (2) as a referenceto the 4[2001] census.]

82. Readjustment after each census:– Upon the completion of eachcensus, the allocation of seats in the House of the People to the States andthe division of each State into territorial constituencies shall be readjustedby such authority and in such manner as Parliament may by law determine:

Provided that such readjustment shall not affect representation in theHouse of the People until the dissolution of the then existing House:]

5[Provided further that such readjustment shall take effect from suchdate as the President may, by order, specify and until such readjustmenttakes effect, any election to the House may be held on the basis of theterritorial constituencies existing before such readjustment:

Provided also that until the relevant figures for the first census takenafter the year 6[2026] have been published, it shall not be necessary to7[readjust–

(i) the allocation of seats in the House of the People to the Statesas readjusted on the basis of the 1971 census ; and

(ii) the division of each State into territorial constituencies as may bereadjusted on the basis of the 8[2001] census,

under this Article.]Caselaw

Till a new election, is notified, elections shall be held on the basis of previousdelimitation. Ajay Pratap Singh v. Election Commission of India and others,AIR 2005 MP 252 (NOC).

1. Inserted by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 15, w.e.f. 3.1.1977.2. Subs. for the figure “2000” by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f.

21.2.2002.3. Subs. for the words “be construed as a reference to the 1971 census” by Ibid.4. Subs. for “1991” by the Constitution (Eighty-seventh Amndt.) Act, 2003, w.e.f. 22.6.2003.5. Inserted by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 16, w.e.f. 3.1.1977.6. Subs. for the figure “2000” by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f.

21.2.2002.7. Subs. by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f. 21.2.2002.8. Subs. for “1991” by the Constitution (Eighty-seventh Amndt.) Act, 2003, w.e.f. 22.6.2003.

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83. Duration of Houses of Parliament:– (1) The Council of Statesshall not be subject to dissolution, but as nearly as possible one-third ofthe members thereof shall retire as soon as may be on the expiration ofevery second year in accordance with the provisions made in that behalfby Parliament by law.

(2) The House of the People, unless sooner dissolved, shall continuefor 1[five years] from the date appointed for its first meeting and no longerand the expiration of the said period of 1[five years] shall operate as adissolution of the House:

Provided that the said period may, while a Proclamation of Emergencyis in operation, be extended by Parliament by law for a period not exceedingone year at a time and not extending in any case beyond a period of sixmonths after the Proclamation has ceased to operate.

84. Qualification for membership of Parliament:– A person shallnot be qualified to be chosen to fill a seat in Parliament unless he–

2[(a) is a citizen of India, and makes and subscribes before some personauthorized in that behalf by the Election Commission an oath oraffirmation according to the form set out for the purpose in theThird Schedule;]

(b) is, in the case of a seat in the Council of States, not less thanthirty years of age and, in the case of a seat in the House of thePeople, not less than twenty-five years of age; and

(c) possesses such other qualifications as may be prescribed in thatbehalf by or under any law made by Parliament.

3[85. Sessions of Parliament, prorogation and dissolution:– (1) ThePresident shall from time to time summon each House of Parliament to meetat such time and place as he thinks fit, but six months shall not intervenebetween its last sitting in one session and the date appointed for its firstsitting in the next session.

(2) The President may from time to time–

(a) prorogue the Houses or either House;

(b) dissolve the House of the People.]

1. Subs. for “six years”, by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 13, w.e.f.20.6.1979.

2. Subs. by the Constitution (Sixteenth Amndt.) Act, 1963, Sec. 3.

3. Subs. by the Constitution (First Amndt.) Act, 1951, Sec. 6, w.e.f. 18-6-1951.

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Caselaw

Where interpretation of Article in the Constitution is required, the mattershall be posted for a larger or Constitution Bench. 2005 AIR SCW 3131.

There is no limitation for constituting fresh Legislative Assembly on itspremature dissolution. AIR 2003 SC 87.

86. Right of President to address and send messages to Houses:–(1) The President may address either House of Parliament or both Housesassembled together, and for that purpose require the attendance of members.

(2) The President may send messages to either House of Parliament,whether with respect to a Bill then pending in Parliament or otherwise, anda House to which any message is so sent shall with all convenient despatch,consider any matter required by the message to be taken into consideration.

87. Special address by the President:– (1) At the commencementof 1[the first session after each general election to the House of the Peopleand at the commencement of the first session of each year] the Presidentshall address both Houses of Parliament assembled together and informParliament of the causes of its summons.

(2) Provision shall be made by the rules regulating the procedure ofeither House for the allotment of time for discussion of the matters referredto in such address 2[xxx].

88. Rights of Ministers and Attorney-General as respects Houses:–Every Minister and the Attorney-General of India shall have the right to speakin, and otherwise to take part in the proceedings of, either House, any jointsitting of the Houses, and any committee of Parliament of which he maybe named a member, but shall not by virtue of this Article be entitled tovote.

Officers of Parliament89. The Chairman and Deputy Chairman of the Council of States:–

(1) The Vice-President of India shall be ex-officio Chairman of the Councilof States.

(2) The Council of States shall, as soon as may be, choose a memberof the Council to be Deputy Chairman thereof and, so often as the officeof Deputy Chairman becomes vacant, the Council shall choose anothermember to be Deputy Chairman thereof.

1. Subs. by the Constitution (First Amndt.) Act, 1951, Sec. 7, for “every session”.

2. The words “and for the precedence of such discussion over other business of the House”omitted by the Constitution (First Amndt.) Act, 1951, Sec. 7.

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90. Vacation and resignation of, and removal from, the office ofDeputy Chairman:– A member holding office as Deputy Chairman of theCouncil of States–

(a) shall vacate his office if he ceases to be a member of the Council;

(b) may at any time, by writing under his hand addressed to theChairman, resign his office; and

(c) may be removed from his office by a resolution of the Councilpassed by a majority of all the then members of the Council:

Provided that no resolution for the purpose of clause (c) shall be movedunless at least fourteen days’ notice has been given of the intention to movethe resolution.

91. Power of the Deputy Chairman or other person to performthe duties of the office of, or to act as, Chairman:– (1) While the officeof Chairman is vacant, or during any period when the Vice-President is actingas, or discharging the functions of, President, the duties of the office shallbe performed by the Deputy Chairman, or, if the office of Deputy Chairmanis also vacant, by such member of the Council of States as the Presidentmay appoint for the purpose.

(2) During the absence of the Chairman from any sitting of the Councilof States the Deputy Chairman, or, if he is also absent, such person asmay be determined by the rules of procedure of the Council, or, if no suchperson is present, such other person as may be determined by the Council,shall act as Chairman.

92. The Chairman or the Deputy Chairman not to preside whilea resolution for his removal from office is under consideration:– (1)At any sitting of the Council of States, while any resolution for the removalof the Vice-President from his office is under consideration, the Chairman,or while any resolution for the removal of the Deputy Chairman from hisoffice is under consideration, the Deputy Chairman, shall not, though he ispresent, preside, and the provisions of clause (2) of Article 91 shall applyin relation to every such sitting as they apply in relation to a sitting fromwhich the Chairman, or, as the case may be, the Deputy Chairman, is absent.

(2) The Chairman shall have the right to speak in, and otherwise totake part in the proceedings of, the Council of States while any resolutionfor the removal of the Vice-President from his office is under considerationin the Council, but, notwithstanding anything in Article 100, shall not beentitled to vote at all on such resolution or on any other matter during suchproceedings.

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71

93. The Speaker and Deputy Speaker of the House of thePeople:– The House of the People shall, as soon as may be, choose twomembers of the House to be respectively Speaker and Deputy Speakerthereof and, so often as the office of Speaker or Deputy Speaker becomesvacant, the House shall choose another member to be Speaker or DeputySpeaker, as the case may be.

94. Vacation and resignation of, and removal from, the officesof Speaker and Deputy Speaker:– A member holding office as Speakeror Deputy Speaker of the House of the People–

(a) shall vacate his office if he ceases to be a member of the Houseof the People;

(b) may at any time, by writing under his hand addressed, if suchmember is the Speaker, to the Deputy Speaker, and if such memberis the Deputy Speaker, to the Speaker, resign his office; and

(c) may be removed from his office by a resolution of the House ofthe People passed by a majority of all the then members of theHouse:

Provided that no resolution for the purpose of clause (c) shall be movedunless at least fourteen days’ notice has been given of the intention to movethe resolution:

Provided further that, whenever the House of the People is dissolved,the Speaker shall not vacate his office until immediately before the first meetingof the House of the People after the dissolution.

95. Power of the Deputy Speaker or other person to performthe duties of the office of, or to act as, Speaker:– (1) While the officeof Speaker is vacant, the duties of the office shall be performed by theDeputy Speaker or, if the office of Deputy Speaker is also vacant, by suchmember of the House of the People as the President may appoint for thepurpose.

(2) During the absence of the Speaker from any sitting of the Houseof the People the Deputy Speaker or, if he is also absent, such person asmay be determined by the rules of procedure of the House, or, if no suchperson is present, such other person as may be determined by the House,shall act as Speaker.

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96. The Speaker or the Deputy Speaker not to preside while aresolution for his removal from office is under consideration:– (1) Atany sitting of the House of the People, while any resolution for the removalof the Speaker from his office is under consideration, the Speaker, or whileany resolution for the removal of the Deputy Speaker from his office is underconsideration, the Deputy Speaker, shall not, though he is present, preside,and the provisions of clause (2) of Article 95 shall apply in relation to everysuch sitting as they apply in relation to a sitting from which the Speaker,or, as the case may be, the Deputy Speaker, is absent.

(2) The Speaker shall have the right to speak in, and otherwise totake part in the proceedings of, the House of the People while any resolutionfor his removal from office is under consideration in the House and shall,notwithstanding anything in Article 100, be entitled to vote only in the firstinstance on such resolution or on any other matter during such proceedingsbut not in the case of an equality of votes.

97. Salaries and allowances of the Chairman and Deputy Chairmanand the Speaker and Deputy Speaker:– There shall be paid to theChairman and the Deputy Chairman of the Council of States, and to theSpeaker and the Deputy Speaker of the House of the People, such salariesand allowances as may be respectively fixed by Parliament by law and, untilprovision in that behalf is so made, such salaries and allowances as arespecified in the Second Schedule.

98. Secretariat of Parliament:– (1) Each House of Parliament shallhave a separate secretarial staff:

Provided that nothing in this clause shall be construed as preventingthe creation of posts common to both Houses of Parliament.

(2) Parliament may by law regulate the recruitment, and the conditionsof service of persons appointed, to the secretarial staff of either House ofParliament.

(3) Until provision is made by Parliament under clause (2), the Presidentmay, after consultation with the Speaker of the House of the People or theChairman of the Council of States, as the case may be, make rules regulatingthe recruitment, and the conditions of service of persons appointed, to thesecretarial staff of the House of the People or the Council of States, andany rules so made shall have effect subject to the provisions of any lawmade under the said clause.

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Conduct of Business

99. Oath or affirmation by members:– Every member of either Houseof Parliament shall, before taking his seat, make and subscribe before thePresident, or some person appointed in that behalf by him, an oath oraffirmation according to the form set out for the purpose in the Third Schedule.

100. Voting in Houses, power of Houses to act notwithstandingvacancies and quorum:– (1) Save as otherwise provided in this Constitution,all questions at any sitting of either House or joint sitting of the Houses shallbe determined by a majority of votes of the members present and voting,other than the Speaker or person acting as Chairman or Speaker.

The Chairman or Speaker, or person acting as such, shall not votein the first instance, but shall have and exercise a casting vote in the caseof an equality of votes.

(2) Either House of Parliament shall have power to act notwithstandingany vacancy in the membership thereof, and any proceedings in Parliamentshall be valid notwithstanding that it is discovered subsequently that someperson who was not entitled so to do sat or voted or otherwise took partin the proceedings.

(3) Until Parliament by law otherwise provides, the quorum to constitutea meeting of either House of Parliament shall be one-tenth of the total numberof members of the House.

(4) If at any time during a meeting of a House there is no quorum,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.

Disqualifications of members

101. Vacation of seats:– (1) No person shall be a member of bothHouses of Parliament and provision shall be made by Parliament by lawfor the vacation of a person who is chosen a member of both Houses ofhis seat in one House or the other.

(2) No person shall be a member both of Parliament and of a Houseof the Legislature of a State 1[xxx], and if a person is chosen a memberboth of Parliament and of a House of the Legislature of 2[a State], then,

1. The words and letters “specified in Part A or Part B of the First Schedule” omitted bythe Constitution (Seventh Amndt.) Act, 1956, Sec. 29 and Sch.

2. Subs. for “such a State” by the Constitution (Seventh Amndt.) Act, 1956, Section 29and Schedule.

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at the expiration of such period as may be specified in rules made by thePresident, that person’s seat in Parliament shall become vacant, unless hehas previously resigned his seat in the Legislature of the State.

(3) If a member of either House of Parliament–

(a) becomes subject to any of the disqualifications mentioned in 1[clause(1) or clause (2) of Article 102], or

2[(b) resigns his seat by writing under his hand addressed to the Chairmanor the Speaker, as the case may be, and his resignation is acceptedby the Chairman or the Speaker, as the case may be,]

his seat shall thereupon become vacant :3[Provided that in the case of any resignation referred to in sub-clause

(b), if from information received or otherwise and after making such inquiryas he thinks fit, the Chairman or the Speaker, as the case may be, is satisfiedthat such resignation is not voluntary or genuine, he shall not accept suchresignation.]

(4) If for a period of sixty days a member of either House of Parliamentis without permission of the House absent from all meetings thereof, the Housemay declare his seat vacant:

Provided that in computing the said period of sixty days no accountshall be taken of any period during which the House is prorogued or isadjourned for more than four consecutive days.

102. Disqualifications for membership:– (1) A person shall bedisqualified for being chosen as, and for being, a member of either Houseof Parliament–

(a) if he holds any office of profit under the Government of India orthe Government of any State, other than an office declared byParliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competentcourt;

(c) if he is an undischarged insolvent;

1. Subs. “clause (l) of Article 102”, by the Constitution (Fifty-second Amndt.) Act, 1985,Sec. 2, w.e.f. 1.3.1985.

2. Subs. by the Constitution (Thirty-third Amndt.) Act, 1974, Sec. 2.

3. Inserted by the Constitution (Thirty-third Amndt.) Act, 1974, Sec. 2.

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75

(d) if he is not a citizen of India or has voluntarily acquired thecitizenship of a foreign State, or is under any acknowledgment ofallegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.1[Explanation:– For the purposes of this clause] a person shall not

be deemed to hold an office of profit under the Government of India orthe Government of any State by reason only that he is a Minister eitherfor the Union or for such State.

2[(2) A person shall be disqualified for being a member of either Houseof Parliament if he is so disqualified under the Tenth Schedule.]

Caselaw

Parliament’s right to expel members upheld. Raja Ram Pal v. Speaker ofLok Sabha, 2007 (3) SCC 184.

Office of profit criteria indicated. Jaya Bachan v. Union of India, JayaBachan v. Union of India & Ors., AIR 2006 SC 2119; Code of Conduct isnot statutory. C.M. can act in cinema. V.H. Patra v. N.T. Rama Rao, AIR1990 AP 20.

NRI can contest elections. AIR 2004 Kar. 177.

3[103. Decision on questions as to disqualifications of members:–(1) If any question arises as to whether a member of either House ofParliament has become subject to any of the disqualifications mentioned inclause (1) of Article 102, the question shall be referred for the decisionof the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shallobtain the opinion of the Election Commission and shall act according tosuch opinion.]

104. Penalty for sitting and voting before making oath or affirmationunder Article 99 or when not qualified or when disqualified:– If a personsits or votes as a member of either House of Parliament before he hascomplied with the requirements of Article 99, or when he knows that heis not qualified or that he is disqualified for membership thereof, or that he

1. Subs. for “(2) for the purposes of this Article” by the Constitution (Fifty-second Amndt.)Act, 1985, Sec. 3, w.e.f. 1-3-1985.

2. Inserted by the Constitution (Fifty-second Amndt.) Act, 1985, Sec. 3, w.e.f. 1-3-1985.

3. Subs. by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 14, w.e.f. 20.6.1979.

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is prohibited from so doing by the provisions of any law made by Parliament,he shall be liable in respect of each day on which he so sits or votes toa penalty of five hundred rupees to be recovered as a debt due to the Union.

Powers, Privileges and Immunities of Parliamentand its Members

105. Powers, Privileges, etc., of the Houses of Parliament andof the members and committees thereof:– (1) Subject to the provisionsof this Constitution and to the rules and standing orders regulating theprocedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in anycourt in respect of anything said or any vote given by him in Parliamentor any committee thereof, and no person shall be so liable in respect ofthe publication by or under the authority of either House of Parliament ofany report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of eachHouse of Parliament, and of the members and the committees of each House,shall be such as may from time to time be defined by Parliament by law,and, until so defined, 1[shall be those of that House and of its membersand committees immediately before the coming into force of Section 15 ofthe Constitution (Forty-fourth Amendment) Act, 1978.]

(4) The provisions of clauses (1), (2) and (3) shall apply in relationto persons who by virtue of this Constitution have the right to speak in,and otherwise to take part in the proceedings of, a House of Parliamentor any committee thereof as they apply in relation to members of Parliament.

Caselaw

Freedom of speech vs. Parliamentary privileges. Freedom of speech overridesthe Parliamentary privilege. MSM Sharma v. Sri Krishna Sharma, AIR 1959 SC395.

A Member of Parliament cannot be prosecuted under Prevention of CorruptionAct, 1988 as the said Act does not prescribe any authority to grant permissionto prosecute the M.P. However it is open for the prosecution to approach theSpeaker/Chairman for permission before a proper provision is made by Parliamentin this regard. P.V. Narasimha Rao v. State, AIR 1998 SC 2120 = 1998 (4)SCC 626 = 1998 (4) Supreme 1 = 1998 Cri.L.J. 2930.

106. Salaries and allowances of members:– Members of eitherHouse of Parliament shall be entitled to receive such salaries and allowancesas may from time to time be determined by Parliament by law and, untilprovision in that respect is so made, allowances at such rates and upon

1. Subs. by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 15, for certain words,w.e.f. 20-6-1979.

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such conditions as were immediately before the commencement of thisConstitution applicable in the case of members of the Constituent Assemblyof the Dominion of India.

Comments

Articles 79 to 106:– The number of members of Lok Sabha is fixed at550. The number of Members of Rajya Sabha is 238 elected plus 12 nominatedMembers. The Members of Lok Sabha are directly elected under the schemecalled Universal Adult Franchise in which all citizens both men and women abovethe age of 18 years are voters. Tamil Nadu Government has classified personsof unisex as males. The country is divided into 543 territorial constituencies andeach constituency elects one Member. Of them, 79 are reserved for ScheduledCastes and 49 are reserved for Scheduled Tribes. It may be noted here thatsix constituencies are located in Pakistan occupied Kashmir and one seat reservedfor Anglo Indians lapsed. Reservation here means only persons belonging to S.Csand S.Ts. only can stand for election and the whole electorate votes for suchcandidate. Reserved constituency does not mean that only those who belong toreserved classes only vote their own representative. It is the delimitation commissionwhich physically defines the constituencies and their reservation. There is nojudicial review over the orders of the delimitation commission. Mohd. Abdul Ghory& Others v. Election Commission, 1995 (6) SCC 721. The proposal to reservingseats for Muslims as a Community and for women is under consideration. TheBackward Castes among Muslims are already enjoying reservation.

Legislative Procedure

107. Provisions as to introduction and passing of Bills:– (1) Subjectto the provisions of Articles 109 and 117 with respect to Money Bills andother financial Bills, a Bill may originate in either House of Parliament.

(2) Subject to the provisions of Articles 108 and 109, a Bill shall notbe deemed to have been passed by the Houses of Parliament unless it hasbeen agreed to by both Houses, either without amendment or with suchamendments only as are agreed to by both Houses.

(3) A Bill pending in Parliament shall not lapse by reason of theprorogation of the Houses.

(4) A Bill pending in the Council of States which has not been passedby the House of the People shall not lapse on a dissolution of the Houseof the People.

The UnionArt. 107


(5) A Bill which is pending in the House of the People, or which havingbeen passed by the House of the People is pending in the Council of States,shall, subject to the provisions of Article 108, lapse on a dissolution of theHouse of the People.

108. Joint sitting of both Houses in certain cases:– (1) If aftera Bill has been passed by one House and transmitted to the other House–

(a) the Bill is rejected by the other House; or

(b) the Houses have finally disagreed as to the amendments to be madein the Bill; or

(c) more than six months elapse from the date of the reception of theBill by the other House without the Bill being passed by it,

the President may, unless the Bill has elapsed by reason of a dissolutionof the House of the People, notify to the Houses by message if they aresitting or by public notification if they are not sitting, his intention to summonthem to meet in a joint sitting for the purpose of deliberating and votingon the Bill:

Provided that nothing in this clause shall apply to a Money Bill.

(2) In reckoning any such period of six months as is referred to inclause (1), no account shall be taken of any period during which the Housereferred to in sub-clause (c) of that clause is prorogued or adjourned formore than four consecutive days.

(3) Where the President has under clause (1) notified his intention ofsummoning the Houses to meet in a joint sitting, neither House shall proceedfurther with the Bill, but the President may at any time after the date ofhis notification summon the Houses to meet in a joint sitting for the purposespecified in the notification and, if he does so, the Houses shall meetaccordingly.

(4) If at the joint sitting of the two Houses the Bill, with such amendments,if any, as are agreed to in joint sitting, is passed by a majority of the totalnumber of members of both Houses present and voting, it shall be deemedfor the purposes of this Constitution to have been passed by both Houses:

Provided that at a joint sitting–

(a) if the Bill, having been passed by one House, has not been passedby the other House with amendments and returned to the House

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in which it originated, no amendment shall be proposed to the Billother than such amendments (if any) as are made necessary bythe delay in the passage of the Bill;

(b) if the Bill has been so passed and returned, only such amendmentsas aforesaid shall be proposed to the Bill and such other amendmentsas are relevant to the matters with respect to which the Houseshave not agreed,

and the decision of the person presiding as to the amendments whichare admissible under this clause shall be final.

(5) A joint sitting may be held under this Article and a Bill passedthereat, notwithstanding that a dissolution of the House of the People hasintervened since the President notified his intention to summon the Housesto meet therein.

109. Special procedure in respect of Money Bills:– (1) A MoneyBill shall not be introduced in the Council of States.

(2) After a Money Bill has been passed by the House of the Peopleit shall be transmitted to the Council of States for its recommendations andthe Council of States shall within a period of fourteen days from the dateof its receipt of the Bill return the Bill to the House of the People withits recommendations and the House of the People may thereupon eitheraccept or reject all or any of the recommendations of the Council of States.

(3) If the House of the People accepts any of the recommendationsof the Council of States, the Money Bill shall be deemed to have been passedby both Houses with the amendments recommended by the Council of Statesand accepted by the House of the People.

(4) If the House of the People does not accept any of the recommendationsof the Council of States, the Money Bill shall be deemed to have been passedby both Houses in the form in which it was passed by the House of thePeople without any of the amendments recommended by the Council ofStates.

(5) If a Money Bill passed by the House of the People and transmittedto the Council of States for its recommendations is not returned to the Houseof the People within the said period of fourteen days, it shall be deemedto have been passed by both Houses at the expiration of the said periodin the form in which it was passed by the House of the People.

The UnionArt. 109


110. Definition of “Money Bills”:– (1) For the purposes of thisChapter, a Bill shall be deemed to be a Money Bill if it contains onlyprovisions dealing with all or any of the following matters, namely:–

(a) the imposition, abolition, remission, alteration or regulation of anytax;

(b) the regulation of the borrowing of money or the giving of anyguarantee by the Government of India, or the amendment of thelaw with respect to any financial obligations undertaken or to beundertaken by the Government of India;

(c) the custody of the Consolidated Fund or the Contingency Fundof India, the payment of moneys into or the withdrawal of moneysfrom any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on theConsolidated Fund of India or the increasing of the amount of anysuch expenditure;

(f) the receipt of money on account of the Consolidated Fund of Indiaor the public account of India or the custody or issue of such moneyor the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub-clauses(a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason onlythat it provides for the imposition of fines or other pecuniary penalties, orfor the demand or payment of fees for licences or fees for services rendered,or by reason that it provides for the imposition, abolition, remission, alterationor regulation of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill is a Money Bill or not, thedecision of the Speaker of the House of the People thereon shall be final.

(4) There shall be endorsed on every Money Bill when it is transmittedto the Council of States under Article 109, and when it is presented tothe President for assent under Article 111, the certificate of the Speakerof the House of the People signed by him that it is a Money Bill.

Caselaw

Compensatory Afforestation Fund is created out of Consolidated Fund ofIndia. T.N. Godavarman Thirumulpad v. Union of India and others, AIR 2005SC 4256 = 2005 AIR SCW 5110.

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111. Assent to Bills:– When a Bill has been passed by the Housesof Parliament, it shall be presented to the President, and the President shalldeclare either that he assents to the Bill, or that he withholds assent therefrom:

Provided that the President may, as soon as possible after the presentationto him of a Bill for assent, return the Bill if it is not a Money Bill to theHouses with a message requesting that they will reconsider the Bill or anyspecified provisions thereof and, in particular, will consider the desirabilityof introducing any such amendments as he may recommend in his message,and when a Bill is so returned, the Houses shall reconsider the Bill accordingly,and if the Bill is passed again by the Houses with or without amendmentand presented to the President for assent, the President shall not withholdassent therefrom.

Procedure in Financial Matters112. Annual financial statement:– (1) The President shall in respect

of every financial year cause to be laid before both the Houses of Parliamenta statement of the estimated receipts and expenditure of the Governmentof India for that year, in this Part referred to as the “annual financialstatement”.

(2) The estimates of expenditure embodied in the annual financialstatement shall show separately–

(a) the sums required to meet expenditure described by the Constitutionas expenditure charged upon the Consolidated Fund of India; and

(b) the sums required to meet other expenditure proposed to be madefrom the Consolidated Fund of India,

and shall distinguish expenditure on revenue account from otherexpenditure.

(3) The following expenditure shall be expenditure charged on theConsolidated Fund of India–

(a) the emoluments and allowances of the President and other expenditurerelating to his office;

(b) the salaries and allowances of the Chairman and the DeputyChairman of the Council of States and the Speaker and the DeputySpeaker of the House of the People;

(c) debt charges for which the Government of India is liable includinginterest, sinking fund charges and redemption charges, and otherexpenditure relating to the raising of loans and the service andredemption of debt;

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CONST-6


(d)(i) the salaries, allowances and pensions payable to or in respect ofJudges of the Supreme Court,

(ii) the pensions payable to or in respect of Judges of the FederalCourt,

(iii) the pensions payable to or in respect of Judges of any High Courtwhich exercises jurisdiction in relation to any area included in theterritory of India or which at any time before the commencementof this Constitution exercised jurisdiction in relation to any areaincluded in 1[a Governor’s Province of the Dominion of India];

(e) the salary, allowances and pension payable to or in respect of theComptroller and Auditor-General of India;

(f) any sums required to satisfy any judgment, decree or award ofany court or arbitral tribunal;

(g) any other expenditure declared by this Constitution or by Parliamentby law to be so charged.

113. Procedure in Parliament with respect to estimates:– (1) Somuch of the estimates as relates to expenditure charged upon the ConsolidatedFund of India shall not be submitted to the vote of Parliament, but nothingin this clause shall be construed as preventing the discussion in either Houseof Parliament of any of those estimates.

(2) So much of the said estimates as relates to other expenditure shallbe submitted in the form of demands for grants to the House of the People,and the House of the People shall have power to assent, or to refuse toassent, to any demand, or to assent to any demand subject to a reductionof the amount specified therein.

(3) No demand for a grant shall be made except on the recommendationof the President.

114. Appropriation Bills:– (1) As soon as may be after the grantsunder Article 113 have been made by the House of the People, there shallbe introduced a Bill to provide for the appropriation out of the ConsolidatedFund of India of all moneys required to meet–

1. Subs. for the words “a Province corresponding to a State specified in Part A of the FirstSchedule” by the Constitution (Seventh Amndt.) Act, 1956, Sec. 29 and Sch., w.e.f.19-10-1956.

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83

(a) the grants so made by the House of the People; and

(b) the expenditure charged on the Consolidated Fund of India butnot exceeding in any case the amount shown in the statementpreviously laid before Parliament.

(2) No amendment shall be proposed to any such Bill in either Houseof Parliament which will have the effect of varying the amount or alteringthe destination of any grant so made or of varying the amount of anyexpenditure charged on the Consolidated Fund of India, and the decisionof the person presiding as to whether an amendment is inadmissible underthis clause shall be final.

(3) Subject to the provisions of Articles 115 and 116, no money shallbe withdrawn from the Consolidated Fund of India except under appropriationmade by law passed in accordance with the provisions of this Article.

115. Supplementary, additional or excess grants:– (1) The Presidentshall–

(a) if the amount authorised by any law made in accordance with theprovisions of Article 114 to be expended for a particular servicefor the current financial year is found to be insufficient for thepurposes of that year or when a need has arisen during the currentfinancial year for supplementary or additional expenditure uponsome new service not contemplated in the annual financial statementfor that year, or

(b) if any money has been spent on any service during a financial yearin excess of the amount granted for that service and for that year,

cause to be laid before both the Houses of Parliament another statementshowing the estimated amount of that expenditure or cause to be presentedto the House of the People a demand for such excess, as the case maybe.

(2) The provisions of Articles 112, 113 and 114 shall have effect inrelation to any such statement and expenditure or demand and also to anylaw to be made authorising the appropriation of moneys out of the ConsolidatedFund of India to meet such expenditure or the grant in respect of such demandas they have effect in relation to the annual financial statement and theexpenditure mentioned therein or to a demand for a grant and the law tobe made for the authorisation of appropriation of moneys out of theConsolidated Fund of India to meet such expenditure or grant.

The UnionArt. 115


116. Votes on account, votes of credit and exceptional grants:–(1) Notwithstanding anything in the foregoing provisions of this Chapter, theHouse of the People shall have power–

(a) to make any grant in advance in respect of the estimated expenditurefor a part of any financial year pending the completion of theprocedure prescribed in Article 113 for the voting of such grantand the passing of the law in accordance with the provisions ofArticle 114 in relation to that expenditure;

(b) to make a grant for meeting an unexpected demand upon theresources of India when on account of the magnitude or theindefinite character of the service the demand cannot be stated withthe details ordinarily given in an annual financial statement;

(c) to make an exceptional grant which forms no part of the currentservice of any financial year;

and Parliament shall have power to authorise by law the withdrawalof moneys from the Consolidated Fund of India for the purposesfor which the said grants are made.

(2) The provisions of Articles 113 and 114 shall have effect in relationto the making of any grant under clause (1) and to any law to be madeunder that clause as they have effect in relation to the making of a grantwith regard to any expenditure mentioned in the annual financial statementand the law to be made for the authorisation of appropriation of moneysout of the Consolidated Fund of India to meet such expenditure.

117. Speical provisions as to financial Bills:– (1) A Bill or amendmentmaking provision for any of the matters specified in sub-clauses (a) to (f)of clause (1) of Article 110 shall not be introduced or moved except onthe recommendation of the President and a Bill making such provision shallnot be introduced in the Council of States:

Provided that no recommendation shall be required under this clausefor the moving of an amendment making provision for the reduction orabolition of any tax.

(2) A Bill or amendment shall not be deemed to make provision forany of the matters aforesaid by reason only that it provides for the impositionof fines or other pecuniary penalties, or for the demand or payment of fees

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for licences or fees for services rendered, or by reason that it provides forthe imposition, abolition, remission, alteration or regulation of any tax by anylocal authority or body for local purposes.

(3) A Bill which, if enacted and brought into operation, would involveexpenditure from the Consolidated Fund of India shall not be passed byeither House of Parliament unless the President has recommended to thatHouse the consideration of the Bill.

Procedure Generally

118. Rules of procedure:– (1) Each House of Parliament may makerules for regulating, subject to the provisions of this Constitution, its procedureand the conduct of its business.

(2) Until rules are made under clause (1), the rules of procedure andstanding orders in force immediately before the commencement of thisConstitution with respect to the Legislature of the Dominion of India shallhave effect in relation to Parliament subject to such modifications andadaptations as may be made therein by the Chairman of the Council of Statesor the Speaker of the House of the People, as the case may be.

(3) The President, after consultation with the Chairman of the Councilof States and the Speaker of the House of the People, may make rulesas to the procedure with respect to joint sittings of, and communicationsbetween, the two Houses.

(4) At a joint sitting of the two Houses the Speaker of the Houseof the People, or in his absence such person as may be determied by rulesof procedure made under clause (3), shall preside.

119. Regulation by law of procedure in Parliament in relation tofinancial business:– Parliament may, for the purpose of the timely completionof financial business, regulate by law the procedure of, and the conduct ofbusiness in, each House of Parliament in relation to any financial matter orto any Bill for the appropriation of moneys out of the Consolidated Fundof India, and, if and so far as any provision of any law so made is inconsistentwith any rule made by a House of Parliament under clause (1) of Article118 or with any rule or standing order having effect in relation to Parliamentunder clause (2) of that Article, such provision shall prevail.

The UnionArt. 119


120. Language to be used in Parliament:– (1) Notwithstandinganything in Part XVII, but subject to the provisions of Article 348, businessin Parliament shall be transacted in Hindi or in English: Provided that theChairman of the Council of States or Speaker of the House of the People,or person acting as such, as the case may be, may permit any memberwho cannot adequately express himself in Hindi or in English to addressthe House in his mother-tongue.

(2) Unless Parliament by law otherwise provides, this Article shall, afterthe expiration of a period of fifteen years from the commencement of thisConstitution, have effect as if the words “or in English” were omittedtherefrom.

121. Restriction on discussion in Parliament:– No discussion shalltake place in Parliament with respect to the conduct of any Judge of theSupreme Court or of a High Court in the discharge of his duties exceptupon a motion for presenting an address to the President praying for theremoval of the Judge as hereinafter provided.

122. Courts not to inquire into proceedings of Parliament:– (1)The validity of any proceedings in Parliament shall not be called in questionon the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vestedby or under this Constitution for regulating procedure or the conduct ofbusiness, or for maintaining order, in Parliament shall be subject to thejurisdiction of any court in respect of the exercise by him of those powers.

Comments

Articles 107 to 122:-- Parliament shall meet in such a way that betweenthe last date of one session and the first day of the next session shall not exceedsix months. So it is mandatory that there shall be three sessions in a year. Thesesessions are called Budget Session, Monsoon Session and Winter Session. Themeetings in the session may be adjourned but the session continues till it ends.The session ends when it is prorogued. The recess between the session whichis prorogued and the next session is the time when the Parliament is said tobe not in session. The President’s right to issue Ordinances can be exercisedonly when the Parliament is not in session. Repeated prorogations to enable thePresident to promulgate or repromulgate Ordinance are deprecated by the SupremeCourt. [D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579]. Except the moneybills all the bills will be moved either in the Lok Sabha or in the Rajya Sabha.A money bill is the bill the purpose of which is the imposition and collection

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of tax for the purpose of the general revenue and relating to such subjects aspublic debt, consolidated fund and audit of accounts. Bills dealing with levy ofany fees or those relating to tax or fees of local bodies are not money bills.It is the duty of the Speaker to certify the bill as money bill or general bill.The Speaker’s decision in this regard is final. His certificate to the effect thatthe bill is passed accompanying all the bills presented to the President is necessary.The procedure followed by the Parliament is as laid down in the business rules.The Constitution itself provides that a bill is declared as passed only after itis adopted by both the Houses. If Lok Sabha is dissolved, the bill introducedand pending before it lapses. If the bill which is introduced in Rajya Sabha afterit is passed, is sent to Lok Sabha and while the said bill is pending the LokSabha is dissolved, such bill will not lapse and can be taken up by the succeedingLok Sabha. If the bill introduced in Lok Sabha after it is passed, is sent toRajya Sabha and the Lok Sabha is dissolved, the bill pending in Rajya Sabhawill lapse subject to the condition that if Rajya Sabha dissents with the bill aspassed by Lok Sabha, the President may call for joint session (of course theLok Sabha naturally will then be a body constituted after the election).

Annual financial statements which are called the Budget are presented tothe Parliament every year. The date of budget presentation is the last day ofFebruary. It was used to be presented at 5 p.m. which happens to coincidewith the time at which the British Parliament meets in London. That was onlya tradition set up during the British Rule. It was given up. The budget is nowpresented at the morning hour of the opening of Lok Sabha. The budget hastwo parts – one dealing with income and expenditure already incurred upto theend of the previous financial year and the estimates of the income and expenditurefor the coming financial year. The budget is divided into two sections – onedealing with capital revenue and capital expenditure and the other dealing withcurrent revenue and expenditure. Capital revenue means all such revenue whichdoes not recur and the capital expenditure is all that which is spent once andfor all. Capital income is that which is derived from grants, loans, and debtinstruments and the capital expenditure is all those spent for creating permanentand durable assets. Revenue receipts are recurring receipts such as from taxesand revenue expenditure means all that expenditure which is incurred foradministration and for welfare of the people. Unless the budget is passed by31st March of a financial year, there will not be any authorisation to draw fromthe consolidated fund of India. Hence is the procedure by which Parliamentapproves what is called vote on account. Vote-on-account may cover sanctionof all additional expenditure incurred on items of the previous year and to sanctionexpenditure of items proposed for the coming year till the passing of the fullbudget. Presentation of budget, discussion thereon and its passing by approvingall the demands are the three stages in the budget discussions. When the Parliamenthas no time enough to discuss all items by the last day of the budget session,

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the Parliament adopts the budget in full without discussion. The procedure adoptedto declare such undiscussed items as passed is called guillotine. Under thisprocedure the Speaker declares all the undiscussed items are guillotined andaccordingly are deemed to have been discussed and voted upon. If any membermoves what is called cut motion there is discussion on that item of expenditureeither fully or partly. All such motions will be rejected by the House and thefull budget is treated as passed. Guillotine part of the budget or adoption ofany budget cannot be questioned in any Court including the Supreme Court.Apart from passing the budget the Parliament may also approve what is calledsupplementary, additional and excess grants at any time during the course ofthe year whenever such supplementary expenditure is called for or ratificationof such additional expenditure is required.

CHAPTER-III

Legislative Powers of the President

123. Power of President to promulgate Ordinances during recessof Parliament:– (1) If at any time, except when both Houses of Parliamentare in session, the President is satisfied that circumstances exist which renderit necessary for him to take immediate action, he may promulgate suchOrdinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this Article shall have the sameforce and effect as an Act of Parliament, but every such Ordinance–

(a) shall be laid before both Houses of Parliament and shall cease tooperate at the expiration of six weeks from the reassembly ofParliament, or, if before the expiration of that period resolutionsdisapproving it are passed by both Houses, upon the passing ofthe second of those resolutions; and

(b) may be withdrawn at any time by the President.

Explanation:– Where the Houses of Parliament are summoned toreassemble on different dates, the period of six weeks shall be reckonedfrom the latter of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this Article makes any provisionwhich Parliament would not under this Constitution be competent to enact,it shall be void.

(4) 1[xxx]

1. Clause (4) omitted by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 16, w.e.f.20.6.1979.

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Comments

Article 123:-- When the Parliament is not in session, the President maypromulgate an Ordinance which is same as the legislation passed by the Parliament.This is called the legislative power of the President. The Ordinance will be inforce till the expiry of six weeks from the date of a next meeting of the nextsession of the Parliament or earlier before that date the Ordinance is substitutedby a bill and Parliament. If Parliament does not ratify the Ordinance within sixweeks, the Ordinance lapses. If the Parliament disapproves the Ordinance, it shallcease to be in force. Actions taken under the Ordinance will however be validduring the period when it is in force there may be cases that Ordinance fulfilsitself before it is disapproved. In such cases the Parliament has to make a lawinvalidating the action taken under the Ordinance. There may be cases whereOrdinance is promulgated with a view to achieve a particular purpose, in suchcases even when the Ordinance lapses the action taken will continue to be valid.If the provisions of the Ordinance are incorporated in the Act subsequently passedsuch Act will be retrospective as and from when the Ordinance is passed.Arbitration and Conciliation Ordinance has to be issued twice. When the sameis subsequently enacted into the Act it was brought into force as and from thedate of the Ordinance first issued.

Existence of circumstances necessitating the urgency is necessary beforethe President promulgates Ordinance. Cooper v. Union of India, AIR 1970SC 564.

CHAPTER IV

The Union Judiciary

124. Establishment and constitution of Supreme Court:– (1) Thereshall be a Supreme Court of India consisting of a Chief Justice of Indiaand, until Parliament by law prescribes a larger number, of not more thanseven1 other Judges.

(2) Every Judge of the Supreme Court shall be appointed by thePresident by warrant under his hand and seal after consultation with suchof the Judges of the Supreme Court and of the High Courts in the Statesas the President may deem necessary for the purpose and shall hold officeuntil he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than theChief Justice, the Chief Justice of India shall always be consulted:

1. Now “twenty-five”, vide The Supreme Court (Number of Judges) Amendment Act, 1986,Act No. 22 of 1986, Section 2.

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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 providedin clause (4).

1[(2A) The age of a Judge of the Supreme Court shall be determinedby 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 theSupreme Court unless he is a citizen of India and–

(a) has been for at least five years a Judge of a High Court or oftwo or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court orof 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 whichexercises, or which at any time before the commencement of this Constitutionexercised, jurisdiction in any part of the territory of India.

Explanation II:– In computing for the purpose of this clause the periodduring which a person has been an advocate, any period during which aperson has held judicial office not inferior to that of a district judge afterhe became an advocate shall be included.

(4) A Judge of the Supreme Court shall not be removed from his officeexcept by an order of the President passed after an address by each Houseof Parliament supported by a majority of the total membership of that Houseand by a majority of not less than two-thirds of the members of that Housepresent and voting has been presented to the President in the same sessionfor such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentationof an address and for the investigation and proof of the misbehaviour orincapacity 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,

1. Ins. by the Constitution (Fifteenth Amndt.) Act, 1963, Sec. 2.

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or some person appointed in that behalf by him, an oath or affirmationaccording 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 Courtshall plead or act in any court or before any authority within the territoryof India.

Caselaw

No writ lies for determining the age of the Judge. Madras High CourtAdvocates’ Association v. Dr. A.S. Anand, Hon’ble Chief Justice of India, AIR2001 SC 970.

High Court is not a subordinate court to the Supreme Court. The SupremeCourt has a superior place in the hierarchy of Courts. Tirupati Balaji DevelopersPvt. Ltd. and others v. State of Bihar and others, AIR 2004 SC 2351 = 2004AIR SCW 2522.

Salary of the Supreme Court Judge is taxable under Income Tax Act. Mr.Justice Deoki Nandan Agarwala v. Union of India and another, AIR 1999 SC1951.

125. Salaries, etc., of Judges:– 1[(1) There shall be paid to the Judgesof the Supreme Court such salaries as may be determined by Parliamentby law and, until provision in that behalf is so made, such salaries as arespecified in the Second Schedule.]

(2) Every Judge shall be entitled to such privileges and allowances andto such rights in respect of leave of absence and pension as may from timeto time be determined by or under law made by Parliament and, until sodetermined, to such privileges, allowances and rights as are specified in theSecond Schedule:

Provided that neither the privileges nor the allowances of a Judge norhis rights in respect of leave of absence or pension shall be varied to hisdisadvantage after his appointment.

126. Appointment of acting Chief Justice:– When the office of ChiefJustice of India is vacant or when the Chief Justice is, by reason of absenceor otherwise, unable to perform the duties of his office, the duties of theoffice shall be performed by such one of the other Judges of the Courtas the President may appoint for the purpose.

1. Subs. by the Constitution (Fifty-fourth Amndt.) Act, 1986, Sec. 2, w.e.f. 1.4.1986.

The UnionArt. 126


127. Appointment of ad hoc, Judges:– (1) If at any time there shouldnot be a quorum of the Judges of the Supreme Court available to hold orcontinue any session of the Court, the Chief Justice of India may, with theprevious consent of the President and after consultation with the Chief Justiceof the High Court concerned, request in writing the attendance at the sittingsof the Court, as an ad hoc Judge, for such period as may be necessary,of a Judge of a High Court duly qualified for appointment as a Judge ofthe Supreme Court to be designated by the Chief Justice of India.

(2) It shall be the duty of the Judge who has been so designated, inpriority to other duties of his office, to attend the sittings of the SupremeCourt at the time and for the period for which his attendance is required,and while so attending he shall have all the jurisdiction, powers and privileges,and shall discharge the duties, of a Judge of the Supreme Court.

128. Attendance of retired Judges at sittings of the SupremeCourt:– Notwithstanding anything in this Chapter, the Chief Justice of Indiamay at any time, with the previous consent of the President, request anyperson who has held the office of a Judge of the Supreme Court or ofthe Federal Court 1[or who has held the office of a Judge of a High Courtand is duly qualified for appointment as a Judge of the Supreme Court] tosit and act as a Judge of the Supreme Court, and every such person sorequested shall, while so sitting and acting, be entitled to such allowancesas the President may by order determine and have all the jurisdiction, powersand privileges of, but shall not otherwise be deemed to be, a Judge of thatCourt:

Provided that nothing in this Article shall be deemed to require anysuch person as aforesaid to sit and act as a Judge of that Court unlesshe consents so to do.

129. Supreme Court to be a Court of Record:– The Supreme Courtshall be a Court of Record and shall have all the powers of such a courtincluding the power to punish for contempt of itself.

Caselaw

Contempt of Court is committed by demonstrating before Court. Contemner:in re Arundhathi Roy, AIR 2002 SC 1375.

Correctness of earlier decision cannot be questioned in contempt proceedings.State of Bihar and others v. Rajendra Singh and another, AIR 2004 SC 4419= 2004 AIR SCW 4812.

1. Ins. by the Constitution (Fifteenth Amndt.) Act, 1963, Sec. 3.

Art. 129

93

High Court staff helping forgery of the orders commit contempt of court.In re Bineet Kumar Singh, AIR 2001 SC 2018 = 2001 (5) SCC 501 = 2001Cr.LJ 2575.

Limitation for action for contempt does not limit the constitutional powersof the High Court or Supreme Court. Pallav Sheth v. Custodian & Others,AIR 2001 SC 2763 = 2001 (7) SCC 549 = 2001 Cr.LJ 4175.

The Supreme Court entertains what is called curative petition. This applicationbecomes entertainable after the rejection of review petition. This petition isentertained in exercise of inherent power which is in addition to power to entertainthe appeal and review. This power is traceable to Article 129 and Article 142.This additional inherent power is exercised (1) to prevent abuse of process; (2)violation of the principles of natural justice; (3) failure of the Judge to disclosehis interest in the subject matter of litigation. The curative petition is entertainedonly when a Senior Advocate certifies the above grounds. Rupa Ashok Hurrav. Ashok Hurra, AIR 2002 SC 1771 = 2002 (2) SCR 1006 = 2002 (4) SCC388 = 2002 (3) SCJ 45.

130. Seat of Supreme Court:– The Supreme Court shall sit in Delhior in such other place or places, as the Chief Justice of India may, withthe approval of the President, from time to time, appoint.

131. Original jurisdiction of the Supreme Court:– Subject to theprovisions of this Constitution, the Supreme Court shall, to the exclusion ofany other court, have original jurisdiction in any dispute–

(a) between the Government of India and one or more States; or(b) between the Government of India and any State or States on one

side and one or more other States on the other; or(c) between two or more States,

if and in so far as the dispute involves any question (whether of law orfact) on which the existence or extent of a legal right depends:

1[Provided that the said jurisdiction shall not extend to a dispute arisingout of any treaty, agreement, covenant, engagement, sanad or other similarinstrument which, having been entered into or executed before thecommencement of this Constitution, continues in operation after suchcommencement, or which provides that the said jurisdiction shall not extendto such a dispute.]

Caselaw

Dispute between the people of one State and the people of another Stateis not an inter-State dispute. M/s. Tashi Delek Gaming Solutions Ltd. & Anr.v. State of Karnataka & Ors., AIR 2006 SC 661.

Disputes between the States as regards the sale of lottery tickets of oneState in another comes within the original jurisdiction of the Supreme Court.M/s. Tashi Delek Gaming Solutions Ltd. & Anr. v. State of Karnataka & Ors.,AIR 2006 SC 661.

Disputes between the Centre and States and the disputes between Governmentdepartments and the disputes between the State and State owned undertakings

The UnionArt. 131

1. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 5.


shall be settled by negotiations and are not entertainable by any Court. It isagainst the public policy. Mahanagar Telephone Nigam Ltd. v. Chairman, CentralBoard, Direct Taxes and another, AIR 2004 SC 2434 = 2004 AIR SCW 2934.

1[131A. Exclusive jurisdiction of the Supreme Court in regard toquestions as to constitutional validity of Central Laws:– [Rep. by theConstitution (Forty-third Amendment) Act, 1977, Sec. 4 (w.e.f.13.4.1978).]]

132. Appellate jurisdiction of Supreme Court in appeals from HighCourts in certain cases:– (1) An appeal shall lie to the Supreme Courtfrom any judgment, decree or final order of a High Court in the territoryof India, whether in a civil, criminal or other proceeding, 2[if the High Courtcertifies under Article 134A] that the case involves a substantial questionof law as to the interpretation of this Constitution.

3[xxx]

(3) Where such a certificate is given, 4[xxx] any party in the case mayappeal to the Supreme Court on the ground that any such question asaforesaid has been wrongly decided 4[xxx].

Explanation:– For the purposes of this Article, the expression “finalorder” includes an order deciding an issue which, if decided in favour ofthe appellant, would be sufficient for the final disposal of the case.

Caselaw

Supreme Court and High Court must have mutual respect. Tirupati BalajiDevelopers Pvt. Ltd. and others v. State of Bihar and others, AIR 2004 SC2351 = 2004 AIR SCW 2522.

133. Appellate jurisdiction of Supreme Court in appeals from HighCourts in regard to civil matters:– 5[(1) An appeal shall lie to the SupremeCourt from any judgment, decree or final order in a civil proceeding of aHigh Court in the territory of India 6[if the High Court certifies under Article134A]

(a) that the case involves a substantial question of law of generalimportance; and

(b) that in the opinion of the High Court the said question needs tobe decided by the Supreme Court.]

1. Ins. by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 23, w.e.f. 1.2.1977.2. Subs. for “if the High Court certifies” by the Constitution (Forty-fourth Amndt.) Act,

1978, Sec. 17, w.e.f. 1.8.1979.3. Cl. (2) omitted by the Constitution (44th Amndt.) Act, 1978, Sec. 17, w.e.f. 1.8.1979.4. Omitted by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 17, w.e.f. 1.8.1979.5. Subs. by the Constitution (Thirtieth Amndt.) Act, 1972, Section 2, w.e.f. 27-2-1973.6. Subs. for “if the High Court certifies” by the Constitution (Forty-fourth Amendment)

Act, 1978, Sec. 18, w.e.f. 1-8-1979.

Art. 133

95

(2) Notwithstanding anything in Article 132, any party appealing to theSupreme Court under Clause (1) may urge as one of the grounds in suchappeal that a substantial question of law as to the interpretation of thisConstitution has been wrongly decided.

(3) Notwithstanding anything in this Article, no appeal shall, unlessParliament by law otherwise provides, lie to the Supreme Court from thejudgment, decree or final order of one Judge of a High Court.

Caselaw

When certain rules are held to be valid by the Supreme Court, it is notopen to argue that there is a different approach which renders them invalid.Vineet Agarwal v. Union of India, AIR 2008 SC 351.

Plea of employer of his inability due to financial distress entertained. M/s. S.V. Tank & Vessel Pvt. Ltd. v. Engineering Workers Association, AIR 2005SC 2459.

If the land reserved for certain purposes is not used by corporation, thereservation lapses. 2005 AIR SCW 1409.

Enhancing of sentence refused after 14 years and also when the sentenceof two years was already undergone. Bala Seetharamaiah v. Perika S. Raoand others, AIR 2004 SC 2172 = 2004 AIR SCW 2130.

134. Appellate jurisdiction of Supreme Court in regard to criminalmatters:– (1) An appeal shall lie to the Supreme Court from any judgment,final order or sentence in a criminal proceeding of a High Court in the territoryof India if the High Court–

(a) has on appeal reversed an order of acquittal of an accused personand sentenced him to death; or

(b) has withdrawn for trial before itself any case from any courtsubordinate to its authority and has in such trial convicted theaccused person and sentenced him to death; or

(c) 1[certifies under Article 134A] that the case is a fit one for appealto the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to suchprovisions as may be made in that behalf under Clause (1) of Article 145and to such conditions as the High Court may establish or require.

(2) Parliament may by law confer on the Supreme Court any furtherpowers to entertain and hear appeals from any judgment, final order or

1. Subs. for “certifies”, by the Constitution (Forty-fourth Amndt.) Act, 1979, Section 19,w.e.f. 1.8.1979.

The UnionArt. 134


sentence in a criminal proceeding of a High Court in the territory of Indiasubject to such conditions and limitations as may be specified in such law.

Caselaw

New plea is not permitted. Anwarul Haq v. State of Uttar Pradesh, AIR2005 SC 2382.

Complainant has locus standi to file SLP in Supreme Court. Balkar Singhv. Jagdish Kumar and others, etc., AIR 2005 SC 1567 = 2005 AIR SCW 1034.

Supreme Court directed the High Court to restrain from entertainingenvironmental questions. T.N. Godavarman Thirumulpad v. Union of India andothers, AIR 1997 SC 1233.

The circumstances under which the Supreme Court cannot interfere incriminal matters are stated in Ganga Kumar Srivastava v. State of Bihar, AIR2005 SC 3123 = 2005 Crl.L.J. 3454 = 2005 (6) SCC 211 = 2005 (7) SRJ47. They are: (1) if the findings of Court below on facts are concurrent; (2)if the question of law is not of general importance; (3) if the evidence adducedfalls that of the tests of reliability; and (4) when errors of law vitiates theapreciation of evidence.

1[134A. Certificate for appeal to the Supreme Court:– Every HighCourt, passing or making a judgment, decree, final order, or sentence,referred to in clause (1) of Article 132 or clause (1) of Article 133, orClause (1) of Article 134,–

(a) may, if it deems fit so to do, on its own motion; and(b) shall, if an oral application is made, by or on behalf of the party

aggrieved, immediately after the passing or making of such judgment,decree, final order or sentence,determine, as soon as may be after such passing or making, the questionwhether a certificate of the nature referred to in clause (1) of Article132, or clause (1) of Article 133 or, as the case may be, sub-clause(c) of clause (1) of Article 134, may be given in respect of that case.]

Caselaw

The question whether the Supreme Court can suspend power of the HighCourt on any subject is a question to be decided by the Special Bench is ordered.AIR 1999 Raj. 154.

135. Jurisdiction and powers of the Federal Court under existinglaw to be exercisable by the Supreme Court:– Until Parliament by lawotherwise provides, the Supreme Court shall also have jurisdiction and powerswith respect to any matter to which the provisions of Article 133 or Article134 do not apply if jurisdiction and powers in relation to that matter wereexercisable by the Federal Court immediately before the commencement ofthis Constitution under any existing law.

1. Ins. by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 20, w.e.f. 1.8.1979.

Art. 135

97

136. Special leave to appeal by the Supreme Court:– (1)Notwithstanding anything in this Chapter, the Supreme Court may, in itsdiscretion, grant special leave to appeal from any judgment, decree,determination, sentence or order in any cause or matter passed or madeby any Court or Tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination,sentence or order passed or made by any Court or Tribunal constitutedby or under any law relating to the Armed Forces.

Caselaw

Supreme Court recommended to the Government to provide for anticipatorybail by legislation. Som Mittal v. Govt. of Karnataka, AIR 2008 SC 1126.

Order of Chief Justice for the appointment of Arbitrator is not administrativeorder. It is judicial. Appeal can be entertained. Rameshwar Das Aggarwal andanother v. Kiran Aggarwal & others, AIR 2008 SC 953.

Judicial review on the proportionality of the punishment shall be rare. P.D.Agrawal v. State Bank of India & Ors., AIR 2006 SC 2064.

SLP can be moved by private complainant in criminal matters. Suga Ram@ Chhuga Ram v. State of Rajasthan & Ors., AIR 2006 SC 3258.

Question of fact cannot be a ground for interference. Employers, Managementof Central P&D Inst. Ltd. v. Union of India and another, AIR 2005 SC 633= 2005 AIR SCW 268.

When during the pendency of appeal the judgment on which the case wasdecided by the lower court treating it as valid is set aside, the proper ordershall be to remand the appeal. 2005 AIR SCW 552.

Direction to refund deposits – Skipper Construction case, 2005 (119) DLT331 (Crl.).

Notice in SLP is notice in appeal as well. U.P. State Road TransportCorporation through its Chairman v. Omaditya Verma and others, AIR 2005SC 2959 = 2005 AIR SCW 3475.

In SLP there is no provision for filing cross objections. Jamshed HormusjiWadia v. Board of Trustees, Port of Mumbai and another, AIR 2004 SC 1815= 2004 AIR SCW 537.

When the High Court has not complied with the direction to dispose ofthe matter expeditiously, High Court is not a party in such application. TirupatiBalaji Developers Pvt. Ltd. and others v. State of Bihar and others, AIR 2004SC 2351 = 2004 AIR SCW 2522.

The UnionArt. 136

CONST-7


Court cannot direct that the conviction awarded shall not affect the serviceprospects. AIR 2001 SC 2058.

Criminal Court has no jurisdiction to review its own judgment. AIR 2001SC 2145.

Misrepresentation about caste does not amount to fraud in marriagesettlement. AIR 1999 SC 2474.

137. Review of judgments or orders by the Supreme Court:–Subject to the provisions of any law made by Parliament or any rules madeunder Article 145, the Supreme Court shall have power to review anyjudgment pronounced or order made by it.

Caselaw

Best Bakery case. 2004 AIR SCW 2325.

138. Enlargement of the jurisdiction of the Supreme Court:– (1)The Supreme Court shall have such further jurisdiction and powers withrespect to any of the matters in the Union List as Parliament may by lawconfer.

(2) The Supreme Court shall have such further jurisdiction and powerswith respect to any matter as the Government of India and the Governmentof any State may by special agreement confer, if Parliament by law providesfor the exercise of such jurisdiction and powers by the Supreme Court.

139. Conferment on the Supreme Court of powers to issue certainwrits:– Parliament may by law confer on the Supreme Court power to issuedirections, orders or writs, including writs in the nature of habeas corpus,mandamus, prohibition, quo warranto and certiorari, or any of them, forany purposes other than those mentioned in Clause (2) of Article 32.

1[139A. Transfer of certain cases:– 2[(1) Where cases involving thesame or substantially the same questions of law are pending before theSupreme Court and one or more High Courts or before two or more HighCourts and the Supreme Court is satisfied on its own motion or on anapplication made by the Attorney-General of India or by a party to anysuch case that such questions are substantial questions of general importance,the Supreme Court may withdraw the case or cases pending before the HighCourt or the High Courts and dispose of all the cases itself :

1. Ins. by the Constitution (Forty-second Amndt.) Act, 1976, Section 24, w.e.f. 1.2.1977.

2. Subs. by the Constitution (Forty-fourth Amndt.) Act, 1978, Section 21, w.e.f. 1.8.1979.

Art. 139A

99

Provided that the Supreme Court may after determining the said questionsof law return any case so withdrawn together with a copy of its judgmenton such questions to the High Court from which the case has been withdrawn,and the High Court shall on receipt thereof, proceed to dispose of the casein conformity with such judgment.]

(2) The Supreme Court may, if it deems it expedient so to do forthe ends of justice, transfer any case, appeal or other proceedings pendingbefore any High Court to any other High Court.]

Caselaw

Transfer of case after the State assured security to witnesses refused.2004 AIR SCW 446.

Transfer of case – Apprehension of the person is the primary condition.AIR 1999 SC 2779.

140. Ancillary powers of Supreme Court:– Parliament may by lawmake provision for conferring upon the Supreme Court such supplementalpowers not inconsistent with any of the provisions of this Constitution asmay appear to be necessary or desirable for the purpose of enabling theCourt more effectively to exercise the jurisdiction conferred upon it by orunder this Constitution.

141. Law declared by Supreme Court to be binding on all Courts:–The law declared by the Supreme Court shall be binding on all Courts withinthe territory of India.

Caselaw

When the law in India is clear, there is no need to rely on foreign precedents.M/s. BSES Ltd. (now Reliance Energy Ltd.) v. M/s. Fenner India Ltd. & Anr.,AIR 2006 SC 1148.

Decision given in one assessment year does not operate as res judicatain another year. They may however to be followed on grounds of propriety.Overruling can be done by the superior authority or Court only. Bharat SancharNigam Ltd. & Anr. v. Union of India & Ors., AIR 2006 SC 1383.

Low gross profit does not by itself be ground to reject the account books.Yakuvali Gopal Singh and party v. Deputy C.I.T., 2007 (295) ITR 129 (Raj.).

High Court has no jurisdiction to order prospective overruling. However,it can mould relief properly in individual cases. State of Bihar & Ors. v. BiharState + 2 Lecturers Association & Ors., AIR 2007 SC 1948.

The UnionArt. 141


Smaller Bench disagreeing with Larger Bench cannot refer the matterstraight away to the still Larger Bench. 2005 AIR SCW 349.

Observations made and directions given by Supreme Court in a wellconsidered case amount to law declared. State of West Bengal v. Ashish KumarRoy and others, AIR 2005 SC 254.

Observations made by Court on issue which the Court considers as non-issue cannot be treated even as obiter dictum. Shin-Etsu Chemical Co. Ltd.v. M/s. Aksh Optifibre Ltd. and another, AIR 2005 SC 3766 = 2005 AIR SCW4384.

Inter-State river disputes can only be brought by the States concerned.2003 (9) SCC 356.

Judgement should be given prospective effect at the time of rendering thejudgment and not later. Dr. Saurabh Choudhary and others v. Union of Indiaand others, AIR 2004 SC 2212 = 2004 AIR SCW 2844.

Law declared by the Supreme Court is not made prospective. High Courtcannot declare it to be prospective only. 2003 AIR SCW 819.

Dismissal of SLP does not amount to confirmation of High Court order.Board of Trustees for the Visakhapatnam Port Trust, etc. v. State of AndhraPradesh and others, AIR 1999 SC 2552.

142. Enforcement of decrees and orders of Supreme Court andorders as to discovery, etc.:– (1) The Supreme Court in the exercise ofits jurisdiction may pass such decree or make such order as is necessaryfor doing complete justice in any cause or matter pending before it, andany decree so passed or order so made shall be enforceable throughoutthe territory of India in such manner as may be prescribed by or underany law made by Parliament and, until provision in that behalf is so made,in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf byParliament, the Supreme Court shall, as respects the whole of the territoryof India, have all and every power to make any order for the purpose ofsecuring the attendance of any person, the discovery or production of anydocuments, or the investigation or punishment of any contempt of itself.

Caselaw

Directions given as a special benefit in one case cannot be extended bythe High Court in another case. State of Jharkand and Others v. Bijoy Kumar& Others, AIR 2008 SC 1446.

Art. 142

101

Extent of jurisdiction of the Supreme Court is limitless but subject to thecondition that the Court shall not make an order what is prohibited by law.E.S.P. Rajaram and others v. Union of India and others, AIR 2001 SC 581.

Curative petition is sustainable under Art. 32 r/w. Art. 142. NTPC Ltd.v. Karri Pothuraju and others, AIR 2005 SC 4288; 2005 (2) SCC 385.

Supreme Court has power to transfer undertrial prisoners from one Statejail to another State jail. Kalyan Chandra Sarkar v. Rajesh Ranjan alias PappuYadav and another, AIR 2005 SC 972.

Dues to workmen have a prior charge subject to S. 529-A of the CompaniesAct. Textile Labour Association and another v. The Official Liquidator andanother, AIR 2004 SC 2336 = 2004 AIR SCW 2422.

High Court’s writ jurisdiction is not equal to the powers of Supreme Courtunder Art. 142. State of U.P. and another v. Johri Mal, AIR 2004 SC 3800= 2004 AIR SCW 3888.

While exercising power under Art. 142 the Court cannot assume criminaljurisdiction and punish a person for fabricating records. M.S. Ahlawat v. Stateof Haryana and another, AIR 2000 SC 168.

Most of the Guidelines Judgments were rendered by the Supreme Courtunder Article 142. The first important case in the series and which wasimplemented fully, was the one which related to Blood Banks. Common Causev. Union of India, AIR 1996 SC 929 = 1996 (1) SCC 753 = 1996 (1) Supreme190 = 1996 (1) SCJ 422.

143. Power of President to consult Supreme Court:– (1) If at anytime it appears to the President that a question of law or fact has arisen,or is likely to arise, which is of such a nature and of such public importancethat it is expedient to obtain the opinion of the Supreme Court upon it, hemay refer the question to that Court for consideration and the Court may,after such hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in 1[xxx] the provisoto Article 131, refer a dispute of the kind mentioned in the 2[said proviso]to the Supreme Court for opinion and the Supreme Court shall, after suchhearing as it thinks fit, report to the President its opinion thereon.

Caselaw

Presidential reference can be made on questions which may arise in future.AIR 2003 SC 87.

There is only one case so far, when the Supreme Court refused to answerthe Presidential Reference. In this case the Supreme Court asked the AttorneyGeneral whether the Government of India would act according to the adviceof the Supreme Court. When Attorney General replied that he cannot assure,the Supreme Court in a huff recorded its refusal to answer the Presidential

1. The words, brackets and figure “clause (i) of” omitted by the Constitution (Seventh Amndt.)Act, 1956, Section 29 and Schedule.

2. Subs. for the words “said clause” by the Constitution (Seventh Amndt.) Act, 1956, Section29 and Schedule.

The UnionArt. 143


Reference. Special Reference No. 1, Dr. Ismail Faruqui v. Union of India, AIR1995 SC 605 = 1994 (6) SCC 360 = 1994 Supp. (2) Scale 100.

144. Civil and judicial authorities to act in aid of the SupremeCourt:– All authorities, civil and judicial, in the territory of India shall actin aid of the Supreme Court.

1[144A. Special provisions as to disposal of questions relating toconstitutional validity of laws:– [Rep. by the Constitution (Forty-thirdAmendment) Act, 1977, Sec. 5 (w.e.f. 13.4.1978).]]

145. Rules of Court, etc.:– (1) Subject to the provisions of any lawmade by Parliament, the Supreme Court may from time to time, with theapproval of the President, make rules for regulating generally the practiceand procedure of the Court including–

(a) rules as to the persons practising before the Court;(b) rules as to the procedure for hearing appeals and other mattters

pertaining to appeals including the time within which appeals to theCourt are to be entered;

(c) rules as to the proceedings in the Court for the enforcement ofany of the rights conferred by Part III;

2[(cc) rules as to the proceedings in the Court under 3[Article 139A];](d) rules as to the entertainment of appeals under sub-clause (c) of

clause (1) of Article 134;(e) rules as to the conditions subject to which any judgment pronounced

or order made by the Court may be reviewed and the procedurefor such review including the time within which applications to theCourt for such review are to be entered;

(f) rules as to the costs of and incidental to any proceedings in theCourt and as to the fees to be charged in respect of proceedingstherein;

(g) rules as to the granting of bail;(h) rules as to stay of proceedings;(i) rules providing for the summary determination of any appeal which

appears to the Court to be frivolous or vexatious or brought forthe purpose of delay;

(j) rules as to the procedure for inquiries referred to in clause (1)of Article 317.

1. Ins. by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 25, w.e.f. 1.2.1977.

2. Inserted by the Constituion (Forty-second Amndt.) Act, 1976, Sec. 26, w.e.f. 1.2.1977.

3. Subs. for “Arts. 131A and 139A” by the Constitution (Forty-third Amndt.) Act, 1977,Sec. 6, w.e.f. 13.4.1978.

Art. 145

103

(2) Subject to the 1[provisions of 2[xxx] clause (3)], rules made underthis Article may fix the minimum number of Judges who are to sit for anypurpose, and may provide for the powers of single Judges and DivisionCourts.

(3) 3[4[xxx] The minimum number] of Judges who are to sit for thepurpose of deciding any case involving a substantial question of law as tothe interpretation of this Constitution or for the purpose of hearing anyreference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of theprovisions of this Chapter other than Article 132 consists of less than fiveJudges and in the course of the hearing of the appeal the Court is satisfiedthat the appeal involves a substantial question of law as to the interpretationof this Constitution the determination of which is necessary for the disposalof the appeal, such Court shall refer the question for opinion to a Courtconstituted as required by this clause for the purpose of deciding any caseinvolving such a question and shall on receipt of the opinion dispose of theappeal in conformity with such opinion.

(4) No judgment shall be delivered by the Supreme Court save in openCourt, and no report shall be made under Article 143 save in accordancewith an opinion also delivered in open Court.

(5) No judgment and no such opinion shall be delivered by the SupremeCourt save with the concurrence of a majority of the Judges present at thehearing of the case, but nothing in this clause shall be deemed to preventa Judge who does not concur from delivering a dissenting judgment or opinion.

Caselaw

Criminal appeal cannot be posted for hearing without obtaining the surrenderof the convicted accused. Mayuram Subramanian Srinivasan v. C.B.I., AIR 2006SC 2449.

1. Subs. for “provisions of clause (3)” by the Constitution (Forty-second Amndt.) Act, 1976,Sec. 26, w.e.f. 1.2.1977.

2. Omitted by the Constitution (Forty-third Amndt.) Act, 1977, Sec. 6, w.e.f. 13.4.1978.

3. Subs. for “The minimum number” by the Constitution (Forty-second Amndt.) Act, 1976,Sec. 26, w.e.f. 1.2.1977.

4. Omitted by the Constitution (Forty-third Amndt.) Act, 1977, Sec. 6, w.e.f. 13.4.1978.

The UnionArt. 145


146. Officers and servants and the expenses of the SupremeCourt:– (1) Appointments of officers and servants of the Supreme Courtshall be made by the Chief Justice of India or such other Judge or officerof the Court as he may direct:

Provided that the President may by rule require that in such cases asmay be specified in the rule, no person, not already attached to the Courtshall be appointed to any office connected with the Court, save afterconsultation with the Union Public Service Commission.

(2) Subject to the provisions of any law made by Parliament, theconditions of service of officers and servants of the Supreme Court shallbe such as may be prescribed by rules made by the Chief Justice of Indiaor by some other Judge or officer of the Court authorised by the ChiefJustice of India to make rules for the purpose:

Provided that the rules made under this clause shall, so far as theyrelate to salaries, allowances, leave or pensions, require the approval of thePresident.

(3) The administrative expenses of the Supreme Court, including allsalaries, allowances and pensions payable to or in respect of the officersand servants of the Court, shall be charged upon the Consolidated Fundof India, and any fees or other moneys taken by the Court shall form partof that Fund.

147. Interpretation:– In this Chapter and in Chapter V of Part VI,references to any substantial question of law as to the interpretation of thisConstitution shall be construed as including references to any substantialquestion of law as to the interpretation of the Government of India Act,1935 (including any enactment amending or supplementing that Act), or ofany Order in Council or order made thereunder, or of the Indian IndependenceAct, 1947, or of any order made thereunder.

Comments

Articles 124 to 147:– Supreme Court in India is the highest Court in thiscountry since the commencement of the Constitution. Earlier it was the FederalCourt which was the highest. Still earlier the House of Lords in London calledPrivy Council was the highest court.

Supreme Court has original jurisdiction with the matters relating to thedisputes between Union and the States and the disputes between and amongStates and has the appellate jurisdiction in civil and criminal matters and also

Art. 147

105

such jurisdiction under what is called Special Leave Procedure. Supreme Courtis the appellate court over Central Industrial Tribunal and National ConsumerCourt. The jurisdiction exercisable by the Supreme Court under Article 32 readwith Article 142 and the High Courts under Article 226 is called Judicial Review.Under this jurisdiction any person interested in any matter involving fundamentalrights and who is bona fide and who has no other expeditious, efficacious oralternative remedy may approach the Supreme Court and the High Courts eitherfor redressal of the infringement of the fundamental rights or to prevent theirinvasion. Public interest litigation (i.e. direct approach to the Supreme Courtand the High Courts without the observance of the formalities and proceduresin filing a petition) has opened up flood gates to every citizen to approach directlyby sending a mere letter to the Chief Justice or any other Judge. If directedby the Judge the office will number it as a regular petition and post the matterfor hearing before the Court. There are a few instances in which Judicial Reviewis barred. Art. 136(2) (bar of interference in matters arising out of any Courtor Tribunal relating to armed forces); and Art. 227(4) (bar of interference inmatters arising out of any court or tribunal relating to armed forces); Art. 242(2)(disputes relating to waters of inter-State rivers); Art. 243(o) (bar of interferencein elections); Art. 253(2) (bar of interference in the elections to Panchayats andMunicipalities); Art. 329(a) (bar of interference in election matters of Parliamentand Assemblies) are all held to be valid on the ground that they are relevantto achieve some specified purposes.

The Special Leave procedure has two dimensions. Firstly the High Court,if it is satisfied that it is a fit case for appeal to Supreme Court, it may directlypermit the party to approach the Supreme Court in appeal. If the High Courtdoes not grant such leave, the Supreme Court itself can grant leave to appealnotwithstanding the refusal of the High Court to certify the case as fit for appealto Supreme Court. The second dimension is that the Supreme Court may directlygrant leave to appeal against any final order of the High Court or any Courtor Tribunal.

The judgments and orders of the Supreme Court are binding on all theCourts and authorities throughout India as well as citizens and the law laid downby the Supreme Court shall be treated as the law of the land.

The appointment, transfer of Judges of the High Courts and the appointmentof the Judges of the Supreme Court has been a vexed question. The severalprocedures suggested such as the Constitution of a collegium of Judges andthe consultation with the Chief Justice of Supreme Court and the Chief Judgeof the High Court have not proved to be foolproof. Till a special independentCommission is constituted to recommend selection and transfer of Judges thedoubts about the propriety of their appointment and the transfer are likely to

The UnionArt. 147


persist. The concept of supremacy of the recommendation of Chief Justice whichis at times treated as binding on the executive needs also a relook [In the matterof Presidential Reference, AIR 1999 SC 1; S.V. Gupta v. Union of India, AIR1982 SC 149; Union of India v. Sankar Chand Seth, AIR 1977 SC 2328.]

The Supreme Court is the Court of Records. It means it stores and preservesthe essential records in each case. The suit / petition / appeal and the countersand the text of judgment are preserved. High Courts are also Courts of Record.So also the District Courts. The Court of Record means and indicates that itis a Central Court and a permanent institution symbolic of its jurisdiction andpowers . Hence every Court of Record has a power to punish any person forcontempt. The Court of Record can be moved and can also take up suo motuthe issue of contempt occurring within its jurisdiction or in its presence or ofany act done in violation of the orders of the Court. The punishment for contemptis six months imprisonment and or imposition of fine which is limitless or warning.Recently the Supreme Court punished an Advocate by removing him from therolls of Bar Council. To punish a person for contempt in any manner otherthan imprisonment, fine or warning is not permissible but the Supreme Courtclaims such power for debarring an Advocate from practice under its jurisdictionavailable to it under Article 142.

The Supreme Court can review its own orders but in one case it reviewedthe orders made in another case by another Bench while disposing of the casewhich is different from the case under review. [A.R. Antulay v. S.R. Naik,AIR 1988 SC 1531.]

CHAPTER-V

Comptroller and Auditor-General of India

148. Comptroller and Auditor-Genral of India:– (1) There shall bea Comptroller and Auditor-General of India who shall be appointed by thePresident by warrant under his hand and seal and shall only be removedfrom office in like manner and on the like grounds as a Judge of the SupremeCourt.

(2) Every person appointed to be the Comptroller and Auditor-Generalof India shall, before he enters upon his office, make and subscribe beforethe President, or some person appointed in that behalf by him, an oath oraffirmation according to the form set out for the purpose in the Third Schedule.

(3) The salary and other conditions of service of the Comptroller andAuditor-General shall be such as may be determined by Parliament by lawand, until they are so determined, shall be as specified in the Second Schedule:

Art. 148

107

Provided that neither the salary of a Comptroller and Auditor-Generalnor his rights in respect of leave of absence, pension or age of retirementshall be varied to his disadvantage after his appointment.

(4) The Comptroller and Auditor-General shall not be eligible for furtheroffice either under the Government of India or under the Government ofany State after he has ceased to hold his office.

(5) Subject to the provisions of this Constitution and of any law madeby Parliament, the conditions of service of persons serving in the Indian Auditand Accounts Department and the administrative powers of the Comptrollerand Auditor-General shall be such as may be prescribed by rules made bythe President after consultation with the Comptroller and Auditor-General.

(6) The administrative expenses of the office of the Comptroller andAuditor-General, including all salaries, allowances and pensions payable toor in respect of persons serving in that office, shall be charged upon theConsolidated Fund of India.

149. Duties and powers of the Comptroller and Auditor-General:–The Comptroller and Auditor-General shall perform such duties and exercisesuch powers in relation to the accounts of the Union and of the States andof any other authority or body as may be prescribed by or under any lawmade by Parliament and, until provision in that behalf is so made, shall performsuch duties and exercise such powers in relation to the accounts of the Unionand of the States as were conferred on or exercisable by the Auditor-Generalof India immediately before the commencement of this Constitution in relationto the accounts of the Dominion of India and of the Provinces respectively.

Caselaw

Auditor General can question the propriety of the expenditure only afterit is incurred. He cannot question the policy of the Government to supply tothe people free colour T.Vs. S. Subramaniam Balaji v. Govt. of Tamil Nadu& Ors., AIR 2007 (NOC) 2001 (Mad.).

1[150. Form of accounts of the Union and of the States:– Theaccounts of the Union and of the States shall be kept in such form as thePresident may, 2[on the advice of] the Comptroller and Auditor-General ofIndia, prescribe.]

1. Subs. by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 27, w.e.f. 1.4.1977.

2. Subs. for “after consultation with”, by the Constitution (Forty-fourth Amndt.) Act, 1978,Sec. 22, w.e.f. 20.6.1979.

The UnionArt. 150


151. Audit reports:– (1) The reports of the Comptroller and Auditor-General of India relating to the accounts of the Union shall be submittedto the President, who shall cause them to be laid before each House ofParliament.

(2) The reports of the Comptroller and Auditor-General of India relatingto the accounts of a State shall be submitted to the Governor 1[xxx] ofthe State, who shall cause them to be laid before the Legislature of theState.

Comments

Articles 148 to 151:— The word ‘comptroller’ means the person whocomputes and calculates accounts such as income and expenditure and theexpression ‘auditor general’ means, the principal person who inspects and checksthe accounts.

Here two capacities are invested in one person. Therefore the Comptrollerand Auditor General has jurisdiction to go into the nature of expenses and itsapplications and reasonableness with the provision made in the budget and alsoas to the truth and correctness of the entries made in the account. Reportsof the Comptroller and the Auditor General are submitted to the President andthrough him to the Parliament. In the case of the accounts of the State, theyare submitted to the Governor and through him before the State Legislature.His appointment is the Constitutional appointment directly made by the President.He can be removed only by impeachment. While submitting reports of theComptroller and Auditor General to the Parliament, the President shall enclosethe report of the Government called Action Taken Report. The Action TakenReport shall deal with all objections and recommendations made by the Comptroller.Parliament may issue directions to the Government on the manner in which therecommendations and objections should be complied. Though the appointmentis made by the President, the pay and allowance of the Comptroller and AuditorGeneral may be fixed by the Parliament. While doing so the Parliament mayfix the pay and allowances of the staff of the Comptroller and Auditor General.[K. Vasudevan Nair v. Union of India, AIR 1990 SC 2295.]

1. The word “or Rajpramukh” omitted by the Constitution (Seventh Amndt.) Act, 1956,Section 29 and Sch.

Art. 151

109

PART-VI

THE STATES 1[xxx]

CHAPTER I – GENERAL

152. Definition:– In this Part, unless the context otherwise requires,the expression “State” 2[does not include the State of Jammu and Kashmir].

Comments

Article 152:-- Just as expression occurring in several enactments to theeffect that the “Act applies to whole of India except Jammu and Kashmir” meansthat Jammu and Kashmir is very much a part of the whole of India exceptfor the exception created by the Act, the expression ‘State’ occurring in thisArticle does not include the State of Jammu and Kashmir also means that theJammu and Kashmir is as much a State within India as any other State butfor the exceptions created in this chapter on the States.

CHAPTER II – THE EXECUTIVE

The Governor

153. Governors of States:– There shall be a Governor for each State:3[Provided that nothing in this Article shall prevent the appointment of

the same person as Governor for two or more States.]

154. Executive power of State:– (1) The executive power of theState shall be vested in the Governor and shall be exercised by him eitherdirectly or through officers subordinate to him in accordance with thisConstitution.

(2) Nothing in this Article shall–

(a) be deemed to transfer to the Governor any functions conferredby any existing law on any other authority; or

(b) prevent Parliament or the Legislature of the State from conferringby law functions on any authority subordinate to the Governor.

1. The words “In Part A of the First Schedule” omitted by the Constitution (Seventh Amndt.)Act, 1956, Section 29 and Sch.

2. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 29 and Sch., for “meansa State specified in Part A of the First Schedule”.

3. Added by the Constitution (Seventh Amndt.) Act, 1956, Section 6.

The StatesArt. 154


155. Appointment of Governor:– The Governor of a State shall beappointed by the President by warrant under his hand and seal.

156. Term of office of Governor:– (1) The Governor shall hold officeduring the pleasure of the President.

(2) The Governor may, by writing under his hand addressed to thePresident, resign his office.

(3) Subject to the foregoing provisions of this Article, a Governor shallhold office for a term of five years from the date on which he enters uponhis office :

Provided that a Governor shall, notwithstanding the expiration of histerm, continue to hold office until his successor enters upon his office.

157. Qualifications for appointment as Governor:– No person shallbe eligible for appointment as Governor unless he is a citizen of India andhas completed the age of thirty-five years.

158. Conditions of Governor’s office:– (1) The Governor shall notbe a member of either House of Parliament or of a House of the Legislatureof any State specified in the First Schedule, and if a member of either Houseof Parliament or of a House of the Legislature of any such State be appointedGovernor, he shall be deemed to have vacated his seat in that House onthe date on which he enters upon his office as Governor.

(2) The Governor shall not hold any other office of profit.

(3) The Governor shall be entitled without payment of rent to the useof his official residences and shall be also entitled to such emoluments,allowances and privileges as may be determined by Parliament by law and,until provision in that behalf is so made, such emoluments, allowances andprivileges as are specified in the Second Schedule.

1[(3A) Where the same person is appointed as Governor of two ormore States, the emoluments and allowances payable to the Governor shallbe allocated among the States in such proportion as the President may byorder determine.]

(4) The emoluments and allowances of the Governor shall not bediminished during his term of office.

1. Ins. by the Constitution (Seventh Amndt.) Act, 1956, Section 7.

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111

159. Oath or affirmation by the Governor:– Every Governor andevery person discharging the functions of the Governor shall, before enteringupon his office, make and subscribe in the presence of the Chief Justiceof the High Court exercising jurisdiction in relation to the State, or, in hisabsence, the senior-most Judge of that Court available, an oath or affirmationin the following form, that is to say–

swear in the name of God“I, A. B., do ———————————— that I will

solemnly affirm

faithfully execute the office of Governor (or discharge the functions of theGovernor) of ............. (name of the State) and will to the best of my abilitypreserve, protect and defend the Constitution and the law and that I willdevote myself to the service and well-being of the people of .....(name ofthe State).”

160. Discharge of the functions of the Governor in certaincontingencies:– The President may make such provision as he thinks fitfor the discharge of the functions of the Governor of a State in any contingencynot provided for in this Chapter.

161. Power of Governor to grant pardons, etc., and to suspend,remit or commute sentences in certain cases:– The Governor of a Stateshall have the power to grant pardons, reprieves, respites or remissions ofpunishment or to suspend, remit or commute the sentence of any personconvicted of any offence against any law relating to a matter to which theexecutive power of the State extends.

Caselaw

Power of pardon is subject to judicial review. Epuru Sudhakar & Anr.v. Govt. of A.P. & Ors., AIR 2006 SC 3385.

Rules framed by the Government for release of life convicts shall be treatedas guidelines. State of Haryana and others v. Balwan, AIR 1999 SC 3333.

162. Extent of executive power of State:– Subject to the provisionsof this Constitution, the executive power of a State shall extend to the matterswith respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature ofa State and Parliament have power to make laws, the executive power ofthe State shall be subject to, and limited by, the executive power expresslyconferred by this Constitution or by any law made by Parliament upon theUnion or authorities thereof.

The StatesArt. 162


Caselaw

Documents duly authenticated need not be proved. State v. K. Narasimhachary,AIR 2006 SC 628.

Permission given for installation of statue is a permission granted underexecutive power. Where the executive followed a recommendation of a statuecommittee, no writ lies for the interference of the High Court. Vema ChinaKoteswara Rao v. District Collector & Ors., AIR 2007 SC 2368.

Rehabilitation Scheme introduced on land acquisition shall be made availableto all the members of the family when the land held is joint. 2005 AIR SCW134.

Code of Conduct by Ministers should be observed for maintaining standardof probity. R. Sai Bharati v. J. Jayalalitha, 2003 AIR SCW 6349.

Where there is no service rules made under Art. 309, the State can issueexecutive instructions. AIR 2003 SC 43.

Order of the Minister directing Secretary to hear representations under M.V.Act is valid. Socorro N. Gracias and etc. v. State of Goa and others, AIR 1999Bom. 436.

Order directing that purchases shall be made from PSU only does notviolate equality clause. Indian Drugs & Pharm. Ltd. and others, etc. v. PunjabDrugs Manufacturers Association and others, AIR 1999 SC 1626.

Where Circular is not authenticated, it is not valid. AIR 2000 Cal. 73.

Council of Ministers

163. Council of Ministers to aid and advise Governor:– (1) Thereshall be a Council of Ministers with the Chief Minister at the head to aidand advise the Governor in the exercise of his functions, except in so faras he is by or under this Constitution required to exercise his functions orany of them in his discretion.

(2) If any question arises whether any matter is or is not a matter asrespects which the Governor is by or under this Constitution required toact in his discretion, the decision of the Governor in his discretion shall befinal, and the validity of anything done by the Governor shall not be calledin question on the ground that he ought or ought not to have acted in hisdiscretion.

(3) The question whether any, and if so what, advise was tenderedby Ministers to the Governor shall not be inquired into in any Court.

Art. 163

113

Caselaw

Sanction to prosecute MLA under S. 197 Cr.P.C. is discretionary with theGovernor. He need not seek or follow the Cabinet decision. Madhya PradeshSpecial Police Establishment v. State of Madhya Pradesh and others, AIR 2005SC 325.

No mandamus can be issued to the Chief Minister not to tender adviceor to the Governor not to accept the advice of Chief Minister. AIR 1999 Ori.214.

Council of Ministers comes into existence on the appointment of the ChiefMinister. There is no need for appointment of other Ministers. Dattaji Chirandasv. State of Gujarat and another, AIR 1999 Guj. 48.

164. Other provisions as to Ministers:– (1) The Chief Minister shallbe appointed by the Governor and the other Ministers shall be appointedby the Governor on the advice of the Chief Minster, and the Ministers shallhold office during the pleasure of the Governor:

Provided that in the States of Bihar, Madhya Pradesh and Orissa, thereshall be a Minister in charge of tribal welfare who may in addition be incharge of the welfare of the Scheduled Castes and Backward Classes orany other work.

1[(1-A) The total number of Ministers, including the Chief Minister, inthe Council of Ministers in a State shall not exceed fifteen per cent of thetotal number of members of the Legislative Assembly of that State:

Provided that the number of Ministers, including Chief Minister, in aState shall not be less than twelve:

Provided further that where the total number of Ministers, including theChief Minister, in the Council of Ministers in any State at the commencementof the Constitution (Ninety-first Amendment) Act, 2003 exceeds the saidfifteen per cent, or the number specified in the first proviso, as the casemay be, then, the total number of Ministers in that State shall be broughtin conformity with the provisions of this clause within six months from suchdate as the President may by public notification appoint.

(1-B) A member of the Legislative Assembly of a State or either Houseof the Legislature of a State having Legislative Council belonging to any

1. Clauses (1A) and (1B) inserted by the Constitution (Ninety-first Amendment) Act, 2003,w.e.f. 2-1-2004.

The StatesArt. 164

CONST-8


political party who is disqualified for being a member of that House underparagraph 2 of the Tenth Schedule shall also be disqualified to be appointedas a Minister under clause (1) for duration of the period commencing fromthe date of his disqualification till the date on which the term of his officeas such member would expire or where he contests any election to theLegislative Assembly of a State or either House of the Legislature of a Statehaving Legislative Council, as the case may be, before the expiry of suchperiod, till the date on which he is declared elected, whichever is earlier.]

(2) The Council of Ministers shall be collectively responsible to theLegislative Assembly of the State.

(3) Before a Minister enters upon his office, the Governor shall administerto him the oaths of office and of secrecy according to the forms set outfor the purpose in the Third Schedule.

(4) A Minister who for any period of six consecutive months is nota member of the Legislature of the State shall at the expiration of that periodcease to be a Minister.

(5) The salaries and allowances of Ministers shall be such as theLegislature of the State may from time to time by law determine and, untilthe Legislature of the State so determines, shall be as specified in the SecondSchedule.

Comments

Articles 153 to 164:-- The executive powers of the State extend to allsubjects reserved for the State in the State List under Schedule VII and oversubjects covered by Concurrent List with the concurrence of the Union. TheGovernor is the repository of all executive powers. He can act only on the adviceof the Chief Minister on all matters except those for which he is conferredwith discretion to act. The subjects on which he acts on his own discretionis the appointment of Chief Minister. The Governor of Assam and the Governorwho is appointed as administrator of Union territories have certain specialresponsibilities. As Governor of Assam he has independent discretionary powersin the matters arising out of tribal areas. As administrator of Union territories,he has to function under the Union Government. In the matter of specialresponsibilities entrusted to him under some of the provisions of Articles 371,371-A(1)(vi), 37A(c)(i) and 37A(f) and (g) Governor is conferred with severaldiscretionary powers which he should discharge as directed by the President.

Art. 164

115

The Governor is appointed by the President and he holds the post duringthe pleasure of the President. It means the Governor may be removed at anytime at the pleasure of the President without any notice. Since the Presidentcan act on the advice of the Prime Minister, it is possible to assume that theGovernor holds the post at the pleasure of the Prime Minister. The classic caseof removal of the Governors occurred during emergency and after emergencyand after the re-emergence of the Congress rule on the fall of Janata coilationGovernments. There is no case of removal of Governors in other normal times.The resignation of Ram Lal as Andhra Pradesh Governor at the instance of theCentre and the resignation of Bhuta Singh as Governor of Bihar when he wascensured by the Supreme Court are instances where the Governors resigned.The term of office of the Governor is five years. He continues to hold officeafter the expiry of the term till his successor takes charge. Governor may beappointed for two or more States in which case the salary etc. of the Governorsare apportioned between and among the States concerned by the Union Government.The minimum age of the Governor shall be 35 years at the time he assumesappointment. He has power to grant pardons, reprieves and remission and tosuspend, remit or commute sentences. However, his power is exercisable onlybona fide and not to serve any personal or political interest. [SanaboyinaSatyanarayana v. Govt. of A.P., AIR 2003 SC 3074; Satpal v. State of Haryana,AIR 2000 SC 1702.]

Since the Governor is repository of all executive power, all actions of theGovernor shall be expressed to have been taken in his name and under his seal.When any document is duly authenticated it is not open to any Court to enquireinto any allegation that the order as not been made by the Governor. The executivepower of the State is co-extensive with the legislative power of the legislature.Therefore the Governor has power to issue executive instructions. Such instructionsshall not contradict any law made by the legislature. Further the executive cannotissue any instructions in the field in which the State Government has to necessarilymake a law, i.e. no tax can be imposed by executive instruction for, there cannotbe any imposition of tax without a law made by a legislature. No executiveinstruction can be issued by the State Government in the field which by lawreserved to the Union. The State Government cannot issue any executiveinstructions in any matter relating to tax on inter-State transactions or relatingto any matter covered by inter-State dealings. When once any law is made bythe State legislature, the executive instructions issued in relation thereto ceaseto operate. The orders of the Board of Revenue of the former Madras Governmentare subsequently found to be mere executive instructions. When it is found thatthe land revenue is levied on the basis of such executive instructions, the Andhra

The StatesArt. 164


Pradesh High Court struck down the levy of land revenue and its enhancementwhich necessitated the Government of Andhra Pradesh to make a law on thelevy and collection of land revenue in Andhra area of Andhra Pradesh.

Minister not being a member of either House – If a person appointed asa Minister in the State by the Governor, happens to be a member of RajyaSabha, he can resign his Rajya Sabha membership and get elected to the StateAssembly or the Council within six months. If the Central Minister is a memberof State Legislature, he can within a period of six months resign his membershipof the State Legislature and get himself elected to Lok Sabha or Rajya Sabha.Ashok Pandey v. Kumari Mayavati and others, AIR 2007 SC 2259. See also:Janakraj v. H.D. Dave Gowda, (1997) 10 SCC 462.

Caselaw

Delegation of non-essential matters by the Chief Minister is valid. T. Asafaliv. E.K. Nayanar and others, AIR 1999 Ker. 160.

Non-legislator can be appointed as Chief Minister. A person disqualifiedto be a legislator shall not be appointed. A person cannot be appointed as ChiefMinister repeatedly every six months. AIR 2001 SC 2707.

The Advocate-General for the State

165. Advocate-General for the State:– (1) The Governor of eachState shall appoint a person who is qualified to be appointed a Judge ofa High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to theGovernment of the State upon such legal matters, and to perform such otherduties of a legal character, as may from time to time be referred or assignedto him by the Governor, and to discharge the functions conferred on himby or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of theGovernor, and shall receive such remuneration as the Governor may determine.

Caselaw

No vigilance enquiry can be started by the Government against AdvocateGeneral. Rafeek V.K. v. State of Kerala, AIR 2005 Ker. 185.

While appointing Advocate General, Government need not consult the ChiefJustice. AIR 2004 All. 133.

Art. 165

117

Conduct of Government Business166. Conduct of business of the Government of a State:– (1) All

executive action of the Government of a State shall be expressed to be takenin the name of the Governor.

(2) Orders and other instruments made and executed in the name ofthe Governor shall be authenticated in such manner as may be specified inrules to be made by the Governor, and the validity of an order or instrumentwhich is so authenticated shall not be called in question on the ground thatit is not an order or instrument made or executed by the Governor.

(3) The Governor shall make rules for the more convenient transactionof the business of the Government of the State, and for the allocation amongMinisters of the said business in so far as it is not business with respectto which the Governor is by or under this Constitution required to act inhis discretion.

1[xxx]Caselaw

Minister disposing of the case under revision cannot be treated as havingexercised his executive power. K.P. Mohamad Ali Haji v. S. Rasitha & Ors.,AIR 2007 (NOC) 1580 (Ker.).

Decision of the Minister becomes Government decision when once theorder is issued in the name of the Governor. State of J. and K. and othersv. M/s. Trehan Industries Pvt. Ltd. and another, AIR 2005 J&K 13.

Authentication by director of transport of the order of the Governmentis valid. AIR 1999 Bom. 436.

Order of State Government issued in the name of the Governor and notby Governor is valid and correct. Murlidhar v. State of Rajasthan and others,AIR 2000 Raj. 170.

Provisions of manuals are not law under Art. 13. 2004 AIR SCW 3388.

167. Duties of Chief Minister as respects the furnishing ofinformation to Governor, etc.:– It shall be the duty of the Chief Ministerof each State–

(a) to communicate to the Governor of the State all decisions of theCouncil of Ministers relating to the administration of the affairs ofthe State and proposals for legislation;

1. Clause (4) omitted by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 23, w.e.f.20.6.1979.

The StatesArt. 167


(b) to furnish such information relating to the administration of the affairsof the State and proposals for legislation as the Governor may callfor; and

(c) if the Governor so requires, to submit for the consideration of theCouncil of Ministers any matter on which a decision has been takenby a Minister but which has not been considered by the Council.

Comments

Articles 165 to 167:-- It is the Governor who appoints the AdvocateGeneral. Such appointment is made on the advice of the Chief Minister. TheAdvocate General holds the office at the pleasure of the Governor. It is obviousthat he holds office at the pleasure of the political authority. The functions ofthe Advocate General are independent. He being the advisor is not expected tosubordinate himself in his opinions to the Government. That is why the AdvocateGeneral normally resigns from his post every time the political authority changes.The Advocate General has a duty not only to tender his advice but also to arguefor the Government in all matters before the Court. Therefore he shall not onlybe competent to advice the Government on any point of law and facts but heshall also be competent to substantiate the case of the Government before theCourt. The Advocate General is bound to carry out such other functions oflegal nature such as the advice on the proposed legislation, appearance beforeany commission which may be set up by the Government. The Advocate General,if so requested may appear before the legislature or before any Committee setup by the legislature, he can speak and participate in discussion and shall notbe entitled to vote. The Advocate General is the authority for permitting thefiling of contempt applications by private parties. If he himself chooses to filesuch applications, he can prevent the private parties to file the applications byrefusing to grant them the permission. The Advocate General can withdrawprosecution against any parties in public interest. The Advocate General can makeconcessions in the Court on behalf of the Government without there being anyspecial authorisation to do so from the Government for, he is an independentadvisor and no servant of the Government. The Advocate General shall not appearagainst the State on behalf of any private parties but he can appear as Advocatein private litigation between parties in which the Government has no interest.The Advocate General is entitled to primacy of audience in the Court. It meansthat the case in which he appears shall have precedence over the others in theday’s cause list.

Caselaw

State can appoint only one Advocate General. Additional Advocate Generalis not equivalent to Advocate General. 2004 AIR SCW 504.

Art. 167

119

CHAPTER III—THE STATE LEGISLATURE

General

168. Constitution of Legislatures in States:– (1) For every Statethere shall be a Legislature which shall consist of the Governor, and–

(a) in the States of 1[Andhra Pradesh] Bihar, 2[xxx], 3[4[xxx]],5[Maharashtra], 6[Karnataka, 6a[Tamil Nadu], 7[xxx] 8[and UttarPradesh], two Houses;

(b) in other States, one House.(2) Where there are two Houses of the Legislature of a State, one

shall be known as the Legislative Council and the other as the LegislativeAssembly, and where there is only one House, it shall be known as theLegislative Assembly.

169. Abolition or creation of Legislative Councils in States:– (1)Notwithstanding anything in Article 168, Parliament may by law provide forthe abolition of the Legislative Council of a State having such a Councilor for the creation of such a Council in a State having no such Council,if the Legislative Assembly of the State passes a resolution to that effectby a majority of the total membership of the Assembly and by a majorityof not less than two-thirds of the members of the Assembly present andvoting.

(2) Any law referred to in clause (1) shall contain such provisions forthe amendment of this Constitution as may be necessary to give effect tothe provisions of the law and may also contain such supplemental, incidentaland consequential provisions as Parliament may deem necessary.

1. The word “Andhra Pradesh “, Ins. by Andhra Pradesh Legislative Council Act, 2005 (1of 2006), Section 3(1), w.e.f. 30-3-2007.

2. The word “Bombay” omitted by the Bombay Reorganisation Act, 1960 (11 of 1960),Section 20, w.e.f. 1.5.1960.

3. The word “Madhya Pradesh” inserted by the Constitution (Seventh Amndt.) Act, 1956,Sec. 8(2) (the date of enforcement has not been appointed).

4. The word “Tamil Nadu”, omitted by the Tamil Nadu Legislative Council (Abolition) Act,1986 (40 of 1986) Section 4, w.e.f. 1.11.1986.

5. Ins. by the Bombay Reorganisation Act, 1960 (11 of 1960), Section 20, w.e.f. 1.5.1960.6. Subs. by the Mysore State (Alteration of Name) Act, 1973 (31 of 1973), Section 4, for

“Mysore”, w.e.f. 1.11.1973.6a. Ins. by Tamil Nadu Legislature Council Act, 2010 (16 of 2010).7. The word “Punjab”, omitted by the Punjab Legislative Council (Abolition) Act, 1969 (46

of 1969), Section 4, w.e.f. 7.1.1970.8. Subs. for “Uttar Pradesh and West Bengal” by the West Bengal Legislative Council

(Abolition) Act, 1969 (20 of 1969), Section 4, w.e.f. 1.8.1969.

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(3) No such law as aforesaid shall be deemed to be an amendmentof this Constitution for the purposes of Article 368.

1[170. Composition of the Legislative Assemblies:– (1) Subject tothe provisions of Article 333, the Legislative Assembly of each State shallconsist of not more than five hundred, and not less than sixty, members chosenby direct election from territorial constituencies in the State.

(2) For the purposes of clause (1), each State shall be divided intoterritorial constituencies in such manner that the ratio between the populationof each constituency and the number of seats allotted to it shall, so far aspracticable, be the same throughout the State.

2[Explanation:– In this clause, the expression “population” means thepopulation as ascertained at the last preceding census of which the relevantfigures have been published:

Provided that the reference in this Explanation to the last precedingcensus of which the relevant figures have been published shall, until the relevantfigures for the first census taken after the year 3[2026] have been published,be construed as a reference to the 4[2001] census.]

(3) Upon the completion of each census, the total number of seats inthe Legislative Assembly of each State and the division of each State intoterritorial constituencies shall be readjusted by such authority and in suchmanner as Parliament may by law determine :

Provided that such readjustment shall not affect representation in theLegislative Assembly until the dissolution of the then existing Assembly:

5[Provided further that such readjustment shall take effect from suchdate as the President may, by order, specify and until such readjustmenttakes effect, any election to the Legislative Assembly may be held on thebasis of the territorial constituencies existing before such readjustment:

Provided also that until the relevant figures for the first census takenafter the year 6[2026] have been published, it shall not be necessary to7[readjust–

1. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Sec. 9.


3. Subs. for “2000” by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f. 21.2.2002.

4. Subs. for “1991” by the Constitution (Eighty-seventh Amndt.) Act, 2003, w.e.f. 22.6.2003.

5. Ins. by the Constitution (Forty-second Amndt.) Act, 1976, Sec. 29, w.e.f. 3.1.1977.

6. Subs. for “2000” by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f. 21.2.2002.

7. Subs. by the Constitution (Eighty-fourth Amndt.) Act, 2001, w.e.f. 21.2.2002.

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(i) the total number of seats in the Legislative Assembly of each Stateas readjusted on the basis of the 1971 census ; and

(ii) the division of such State into territorial constituencies as may bereadjusted on the basis of the 1[2001] census,

under this clause.]

171. Composition of the Legislative Councils:– (1) The total numberof members in the Legislative Council of a State having such a Council shallnot exceed 2[one-third] of the total number of members in the LegislativeAssembly of that State:

Provided that the total number of members in the Legislative Councilof a State shall in no case be less than forty.

(2) Until Parliament by law otherwise provides, the composition of theLegislative Council of a State shall be as provided in clause (3).

(3) Of the total number of members of the Legislative Council of aState–

(a) as nearly as may be, one-third shall be elected by electoratesconsisting of members of municipalities, district boards and suchother local authorities in the State as Parliament may by law specify;

(b) as nearly as may be, one-twelfth shall be elected by electoratesconsisting of persons residing in the State who have been for atleast three years graduates of any university in the territory of Indiaor have been for at least three years in possession of qualificationsprescribed by or under any law made by Parliament as equivalentto that of a graduate of any such university;

(c) as nearly as may be, one-twelfth shall be elected by electoratesconsisting of persons who have been for at least three years engagedin teaching in such educational institutions within the State, not lowerin standard than that of a secondary school, as may be prescribedby or under any law made by Parliament;

(d) as nearly as may be, one-third shall be elected by the membersof the Legislative Assembly of the State from amongst persons whoare not members of the Assembly;


2. Subs. for “one-fourth” by the Constitution (Seventh Amndt.) Act, 1956, Sec. 10.

The StatesArt. 171


(e) the remainder shall be nominated by the Governor in accordancewith the provisions of clause (5).

(4) The members to be elected under sub-clauses (a), (b) and (c) ofclause (3) shall be chosen in such territorial constituencies as may beprescribed by or under any law made by Parliament, and the elections underthe said sub-clauses and under sub-clause (d) of the said clause shall beheld in accordance with the system of proportional representation by meansof the single transferable vote.

(5) The members to be nominated by the Governor under sub-clause(e) of clause (3) shall consist of persons having special knowledge or practicalexperience in respect of such matters as the following, namely:–

Literature, science, art, co-operative movement and social service.

172. Duration of State Legislatures:– (1) Every Legislative Assemblyof every State, unless sooner dissolved, shall continue for 1[five years] fromthe date appointed for its first meeting and no longer and the expiration ofthe said period of 1[five years] shall operate as a dissolution of the Assembly:

Provided that the said period may, while a Proclamation of Emergencyis in operation, be extended by Parliament by law for a period not exceedingone year at a time and not extending in any case beyond a period of sixmonths after the Proclamation has ceased to operate.

(2) The Legislative Council of a State shall not be subject to dissolution,but as nearly as possible one-third of the members thereof shall retire assoon as may be on the expiration of every second year in accordance withthe provisions made in that behalf by Parliament by law.

Caselaw

No dissolution of Assembly even before the first meeting is held. RameshwarPrasad & Ors. v. Union of India & Anr., AIR 2006 SC 980.

173. Qualification for membership of the State Legislature:– Aperson shall not be qualified to be chosen to fill a seat in the Legislatureof a State unless he–

2[(a) is a citizen of India, and makes and subscribes before some personauthorised in that behalf by the Election Commission an oath or

1. Subs. for “six years”, by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 24,w.e.f. 6.9.1979.

2. Subs. by the Constitution (Sixteenth Amndt.) Act, 1963, Section 4.

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123

affirmation according to the form set out for the purpose in theThird Schedule;]

(b) is, in the case of a seat in the Legislative Assembly, not less thantwenty-five years of age and, in the case of a seat in the LegislativeCouncil, not less than thirty years of age; and

(c) possesses such other qualifications as may be prescribed in thatbehalf by or under any law made by Parliament.

Caselaw

Under-aged by date of nomination, election set aside. 2003 AIR SCW 6005.

1[174. Sessions of the State Legislature, prorogation anddissolution:– (1) The Governor shall from time to time summon the Houseor each House of the Legislature of the State to meet at such time andplace as he thinks fit, but six months shall not intervene between its lastsitting in one session and the date appointed for its first sitting in the nextsession.

(2) The Governor may from time to time–

(a) prorogue the House or either House;

(b) dissolve the Legislative Assembly.]

Caselaw

The rule that the period between sessions shall not exceed six monthswill not apply when the legislature is prematurely dissolved. AIR 2003 SC 87.

175. Right of Governor to address and send messages to theHouse or Houses:– (1) The Governor may address the Legislative Assemblyor, in the case of a State having a Legislative Council, either House of theLegislature of the State, or both Houses assembled together, and may forthat purpose require the attendance of members.

(2) The Governor may send messages to the House or Houses of theLegislature of the State, whether with respect to a Bill then pending in theLegislature or otherwise, and a House to which any message is so sent shallwith all convenient despatch consider any matter required by the messageto be taken into consideration.

1. Subs. by the Constitution (First Amndt.) Act, 1951, Section 8.

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176. Special address by the Governor:– (1) At the commencementof 1[the first session after each general election to the Legislative Assemblyand at the commencement of the first session of each year], the Governorshall address the Legislative Assembly or, in the case of a State having aLegislative Council, both Houses assembled together and inform the Legislatureof the causes of its summons.

(2) Provision shall be made by the rules regulating the procedure ofthe House or either House for the allotment of time for discussion of thematters referred to in such address 2[xxx].

177. Rights of Ministers and Advocate-General as respects theHouses:– Every Minister and the Advocate-General for a State shall havethe right to speak in, and otherwise to take part in the proceedings of, theLegislative Assembly of the State or, in the case of a State having a LegislativeCouncil, both Houses, and to speak in, and otherwise to take part in theproceedings of, any Committee of the Legislature of which he may be nameda member, but shall not, by virtue of this Article, be entitled to vote.

Officers of the State Legislature

178. The Speaker and Deputy Speaker of the LegislativeAssembly:– Every Legislative Assembly of a State shall, as soon as maybe, choose two members of the Assembly to be respectively Speaker andDeputy Speaker thereof and, so often as the office of Speaker or DeputySpeaker becomes vacant, the Assembly shall choose another member tobe Speaker or Deputy Speaker, as the case may be.

179. Vacation and resignation of, and removal from, the officesof Speaker and Deputy Speaker:– A member holding office as Speakeror Deputy Speaker of an Assembly–

(a) shall vacate his office if he ceases to be a member of the Assembly;

(b) may at any time by writing under his hand addressed, if suchmember is the Speaker, to the Deputy Speaker, and if such memberis the Deputy Speaker, to the Speaker, resign his office; and

(c) may be removed from his office by a resolution of the Assemblypassed by a majority of all the then members of the Assembly:

Art. 179

1. Subs. for “every session” by the Constitution (First Amndt.) Act, 1951, Section 9.

2. The words “and for the precedence of such discussion over other business of the House”omitted by the Constitution (First Amndt.) Act, 1951 Section 9.

125

Provided that no resolution for the purpose of clause (c) shall be movedunless at least fourteen days’ notice has been given of the intention to movethe resolution:

Provided further that, whenever the Assembly is dissolved, the Speakershall not vacate his office until immediately before the first meeting of theAssembly after the dissolution.

180. Power of the Deputy Speaker or other person to performthe duties of the office of, or to act as, Speaker:– (1) While the officeof Speaker is vacant, the duties of the office shall be performed by theDeputy Speaker or, if the office of Deputy Speaker is also vacant, by suchmember of the Assembly as the Governor may appoint for the purpose.

(2) During the absence of the Speaker from any sitting of the Assemblythe Deputy Speaker or, if he is also absent, such person as may be determinedby the rules of procedure of the Assembly, or, if no such person is present,such other person as may be determined by the Assembly, shall act asSpeaker.

181. The Speaker or the Deputy Speaker not to preside whilea resolution for his removal from office is under consideration:– (1)At any sitting of the Legislative Assembly, while any resolution for the removalof the Speaker from his office is under consideration, the Speaker, or whileany resolution for the removal of the Deputy Speaker from his office is underconsideration, the Deputy Speaker, shall not, though he is present, preside,and the provisions of clause (2) of Article 180 shall apply in relation toevery such sitting as they apply in relation to a sitting from which the Speakeror, as the case may be, the Deputy Speaker, is absent.

(2) The Speaker shall have the right to speak in, and otherwise totake part in the proceedings of, the Legislative Assembly while any resolutionfor his removal from office is under consideration in the Assembly and shall,notwithstanding anything in Article 189, be entitled to vote only in the firstinstance on such resolution or on any other matter during such proceedingsbut not in the case of an equality of votes.

182. The Chairman and Deputy Chairman of the LegislativeCouncil:– The Legislative Council of every State having such Council shall,as soon as may be, choose two members of the Council to be respectivelyChairman and Deputy Chairman thereof and, so often as the office ofChairman or Deputy Chairman becomes vacant, the Council shall chooseanother member to be Chairman or Deputy Chairman, as the case may be.

The StatesArt. 182


183. Vacation and resignation of, and removal from, the officesof Chairman and Deputy Chairman:– A member holding office as Chairmanor Deputy Chairman of a Legislative Council–

(a) shall vacate his office if he ceases to be a member of the Council;

(b) may at any time by writing under his hand addressed, if suchmember is the Chairman, to the Deputy Chairman, and if suchmember is the Deputy Chairman, to the Chairman, resign his office;and

(c) may be removed from his office by a resolution of the Councilpassed by a majority of all the then members of the Council:

Provided that no resolution for the purpose of clause (c) shall be movedunless at least fourteen days’ notice has been given of the intention to movethe resolution.

Caselaw

Appointment of a Governor – Need for national policy indicated. RameshwarPrasad & Ors. v. Union of India & Anr., AIR 2006 SC 980.

184. Power of the Deputy Chairman or other person to performthe duties of the office of, or to act as, Chairman:– (1) While the officeof Chairman is vacant, the duties of the office shall be performed by theDeputy Chairman or, if the office of Deputy Chairman is also vacant, bysuch member of the Council as the Governor may appoint for the purpose.

(2) During the absence of the Chairman from any sitting of the Councilthe Deputy Chairman or, if he is also absent, such person as may bedetermined by the rules of procedure of the Council, or, if no such personis present, such other person as may be determined by the Council, shallact as Chairman.

185. The Chairman or the Deputy Chairman not to preside whilea resolution for his removal from office is under consideration:– (1)At any sitting of the Legislative Council, while any resolution for the removalof the Chairman from his office is under consideration, the Chairman, orwhile any resolution for the removal of the Deputy Chairman from his officeis under consideration, the Deputy Chairman, shall not, though he is present,preside, and the provisions of clause (2) of Article 184 shall apply in relationto every such sitting as they apply in relation to a sitting from which theChairman or, as the case may be, the Deputy Chairman is absent.

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(2) The Chairman shall have the right to speak in, and otherwise totake part in the proceedings of, the Legislative Council while any resolutionfor his removal from office is under consideration in the Council and shall,notwithstanding anything in Article 189, be entitled to vote only in the firstinstance on such resolution or on any other matter during such proceedingsbut not in the case of an equality of votes.

186. Salaries and allowances of the Speaker and Deputy Speakerand the Chairman and Deputy Chairman:– There shall be paid to theSpeaker and the Deputy Speaker of the Legislative Assembly, and to theChairman and the Deputy Chairman of the Legislative Council, such salariesand allowances as may be respectively fixed by the Legislature of the Stateby law and, until provision in that behalf is so made, such salaries andallowances as are specified in the Second Schedule.

187. Secretariat of State Legislature:– (1) The House or each Houseof the Legislature of a State shall have a separate secretarial staff:

Provided that nothing in this clause shall, in the case of the Legislatureof a State having a Legislative Council, be construed as preventing the creationof posts common to both Houses of such Legislature.

(2) The Legislature of a State may by law regulate the recruitment,and the conditions of service of persons appointed, to the secretarial staffof the House or Houses of the Legislature of the State.

(3) Until provision is made by the Legislature of the State under clause(2), the Governor may, after consultation with the Speaker of the LegislativeAssembly or the Chairman of the Legislative Council, as the case may be,make rules regulating the recruitment, and the conditions of service of personsappointed, to the secretarial staff of the Assembly or the Council, and anyrules so made shall have effect subject to the provisions of any law madeunder the said clause.

Conduct of Business

188. Oath or affirmation by members:– Every member of theLegislative Assembly or the Legislative Council of a State shall, before takinghis seat, make and subscribe before the Governor, or some person appointedin that behalf by him, an oath or affirmation according to the form set outfor the purpose in the Third Schedule.

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189. Voting in Houses, power of Houses to act notwithstandingvacancies and quorum:– (1) Save as otherwise provided in this Constitution,all questions at any sitting of a House of the Legislature of a State shallbe determined by a majority of votes of the members present and voting,other than the Speaker or Chairman, or person acting as such.

The Speaker or Chairman, or person acting as such, shall not votein the first instance, but shall have and exercise a casting vote in the caseof an equality of votes.

(2) A House of the Legislature of a State shall have power to actnotwithstanding any vacancy in the membership thereof, and any proceedingsin the Legislature of a State shall be valid notwithstanding that it is discoveredsubsequently that some person who was not entitled so to do sat or votedor otherwise took part in the proceedings.

(3) Until the Legislature of the State by law otherwise provides, thequorum to constitute a meeting of a House of the Legislature of a Stateshall be ten members or one-tenth of the total number of members of theHouse, whichever is greater.

(4) If at any time during a meeting of the Legislative Assembly or theLegislative Council of a State there is no quorum, it shall be the duty ofthe Speaker or Chairman, or person acting as such, either to adjourn theHouse or to suspend the meeting until there is a quorum.

Disqualifications of Members

190. Vacation of seats:– (1) No person shall be a member of bothHouses of the Legislature of a State and provision shall be made by theLegislature of the State by law for the vacation by a person who is chosena member of both Houses of his seat in one House or the other.

(2) No person shall be a member of the Legislatures of two or moreStates specified in the First Schedule and if a person is chosen a memberof the Legislatures of two or more such States, then, at the expiration ofsuch period as may be specified in rules made by the President, that person’sseat in the Legislatures of all such States shall become vacant, unless hehas previously resigned his seat in the Legislatures of all but one of the States.

Art. 190

129

(3) If a member of a House of the Legislature of a State:–

(a) becomes a subject to any of the disqualifications mentioned in1[clause (1) or clause (2) of Article 191]; or

2[(b) resigns his seat by writing under his hand addressed to the speakeror the Chairman, as the case may be, and his resignation is acceptedby the Speaker or the Chairman, as the case may be,]

his seat shall thereupon become vacant:3[Provided that in the case of any resignation referred to in sub-clause

(b), if from information received or otherwise and after making such inquiryas he thinks fit, the Speaker or the Chairman, as the case may be, is satisfiedthat such resignation is not voluntary or genuine, he shall not accept suchresignation.]

(4) If for a period of sixty days a member of a House of the Legislatureof a State is without permission of the House absent from all meetings thereof,the House may declare his seat vacant:

Provided that in computing the said period of sixty days no accountshall be taken of any period during which the House is prorogued or isadjourned for more than four consecutive days.

191. Disqualifications for membership:– (1) A person shall bedisqualifed for being chosen as, and for being, a member of the LegislativeAssembly or Legislative Council of a State–

(a) if he holds any office of profit under the Government of India orthe Government of any State specified in the First Schedule, otherthan an office declared by the Legislature of the State by law notto disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competentCourt;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired thecitizenship of a foreign State, or is under any acknowledgment ofallegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parilament.

1. Subs. for “clause (1) of Article 191” by the Constitution (Fifty-second Amndt.) Act, 1985,Section 4, w.e.f. 1.3.1985.

2. Subs. by the Constitution (Thirty-third Amndt.) Act, 1974, Section 3.

3. Inserted by the Constitution (Thirty-third Amndt.) Act, 1974, Section 3.

The StatesArt. 191

CONST-9


1[Explanation:– For the purposes of this clause], a person shall notbe deemed to hold an office of profit under the Government of India orthe Government of any State specified in the First Schedule by reason onlythat he is a Minister either for the Union or for such State.

2[(2) A person shall be disqualified for being a member of the LegislativeAssembly or Legislative Council of a State if he is so disqualified underthe Tenth Schedule.]

Caselaw

While considering the question of disqualification the Court cannot go intothe validity or otherwise of the order of release of the Government employee.AIR 2004 SC 1377.

Workers like khalashi or meter readers who hold non-executive posts inBokaro Steel Plant do not hold office-of-profit. They are eligible to contestelections. Aklu Ram Mahto v. Rajendra Mahto, AIR 1999 SC 1259.

Physical education teacher in municipality is not holding any office-of-profit.Patil Panduranga Venkanagouda v. Horatti Basavaraj Shivalingappa and another,AIR 2000 Kar. 78.

3[192. Decision on questions as to disqualifications of members:–(1) If any question arises as to whether a member of a House of theLegislature of a State has become subject to any of the disqualificationsmentioned in clause (1) of Article 191, the question shall be referred forthe decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shallobtain the opinion of the Election Commission and shall act according tosuch opinion.]

193. Penalty for sitting and voting before making oath or affirmationunder Article 188 or when not qualified or when disqualified:– If aperson sits or votes as a member of the Legislative Assembly or theLegislative Council of a State before he has complied with the requirementsof Article 188, or when he knows that he is not qualified or that he isdisqualified for membership thereof, or that he is prohibited from so doing

1. Subs. for “(2) for the purposes of this Article”, by the Constitution (Fifty-second Amndt.)Act, 1985, Section 5, w.e.f. 1.3.1985.

2. Ins. by the Constitution (Fifty-second Amndt.) Act, 1985, Section 5, w.e.f. 1.3.1985.


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131

by the provisions of any law made by Parliament or the Legislature of theState, he shall be liable in respect of each day on which he so sits or votesto a penalty of five hundred rupees to be recovered as a debt due to theState.

Powers, Privileges and Immunities of StateLegislatures and their Members

194. Powers, privileges, etc., of the Houses of Legislatures andof the members and Committees thereof:– (1) Subject to the provisionsof this Constitution and to the rules and standing orders regulating theprocedure of the Legislature, there shall be freedom of speech in theLegislature of every State.

(2) No member of the Legislature of a State shall be liable to anyproceedings in any Court in respect of anything said or any vote given byhim in the Legislature or any Committee thereof, and no person shall beso liable in respect of the publication by or under the authority of a Houseof such a Legislature of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a Houseof the Legislature of a State, and of the members and the Committees ofa House of such Legislature, shall be such as may from time to time bedefined by the Legislature by law, and, until so defined, 1[shall be thoseof that House and of its members and Committees immediately before thecoming into force of Section 26 of the Constitution (Forty-fourth Amendment)Act, 1978].

(4) The provisions of clauses (1), (2) and (3) shall apply in relationto persons who by virtue of this Constitution have the right to speak in,and otherwise to take part in the proceedings of a House of the Legislatureof a State or any Committee thereof as they apply in relation to membersof that Legislature.

Caselaw

Open ballot system in Council elections cannot be objected to. Kuldip Nayarv. Union of India & Ors., AIR 2006 SC 3127.

195. Salaries and allowances of members:– Members of the LegislativeAssembly and the Legislative Council of a State shall be entitled to receivesuch salaries and allowances as may from time to time be determined, by

1. Subs. by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 26, w.e.f. 20-6-1979.

The StatesArt. 195


the Legislature of the State by law and, until provision in that respect isso made, salaries and allowances at such rates and upon such conditionsas were immediately before the commencement of the Constitution applicablein the case of members of the Legislative Assembly of the correspondingProvince.

Legislative Procedure

196. Provisions as to introduction and passing of Bills:– (1) Subjectto the provisions of Articles 198 and 207 with respect to Money Bills andother financial Bills, a Bill may originate in either House of the Legislatureof a State which has a Legislative Council.

(2) Subject to the provisions of Articles 197 and 198, a Bill shall notbe deemed to have been passed by the Houses of the Legislature of a Statehaving a Legislative Council unless it has been agreed to by both Houses,either without amemdment or with such amendments only as are agreed toby both Houses.

(3) A Bill pending in the Legislature of a State shall not lapse by reasonof the prorogation of the House or Houses thereof.

(4) A Bill pending in the Legislative Council of a State which has notbeen passed by the Legislative Assembly shall not lapse on a dissolutionof the Assembly.

(5) A Bill which is pending in the Legislative Assembly of a State, orwhich having been passed by the Legislative Assembly is pending in theLegislative Council, shall lapse on a dissolution of the Assembly.

197. Restriction on powers of Legislative Council as to Bills otherthan Money Bills:– (1) If after a Bill has been passed by the LegislativeAssembly of a State having a Legislative Council and transmitted to theLegislative Council–

(a) the Bill is rejected by the Council; or

(b) more than three months elapse from the date on which the Billis laid before the Council without the Bill being passed by it; or

(c) the Bill is passed by the Council with amendments to which theLegislative Assembly does not agree;

the Legislative Assembly may, subject to the rules regulating its procedure,pass the Bill again in the same or in any subsequent session with or without

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133

such amendments, if any, as have been made, suggested or agreed to bythe Legislative Council and then transmit the Bill as so passed to the LegislativeCouncil.

(2) If after a Bill has been so passed for the second time by theLegislative Assembly and transmitted to the Legislative Council–

(a) the Bill is rejected by the Council; or

(b) more than one month elapses from the date on which the Bill islaid before the Council without the Bill being passed by it; or

(c) the Bill is passed by the Council with amendments to which theLegislative Assembly does not agree;

the Bill shall be deemed to have been passed by the Houses of the Legislatureof the State in the form in which it was passed by the Legislative Assemblyfor the second time with such amendments, if any, as have been made orsuggested by the Legislative Council and agreed to by the LegislativeAssembly.

(3) Nothing in this Article shall apply to a Money Bill.

198. Special procedure in respect of Money Bills:– (1) A MoneyBill shall not be introduced in a Legislative Council.

(2) After a Money Bill has been passed by the Legislative Assemblyof a State having a Legislative Council, it shall be transmitted to the LegislativeCouncil for its recommendations, and the Legislative Council shall within aperiod of fourteen days from the date of its receipt of the Bill return theBill to the Legislative Assembly with its recommendations, and the LegislativeAssembly may thereupon either accept or reject all or any of therecommendations of the Legislative Council.

(3) If the Legislative Assembly accepts any of the recommendationsof the Legislative Council, the Money Bill shall be deemed to have beenpassed by both Houses with the amendments recommended by the LegislativeCouncil and accepted by the Legislative Assembly.

(4) If the Legislative Assembly does not accept any of therecommendations of the Legislative Council, the Money Bill shall be deemedto have been passed by both Houses in the form in which it was passedby the Legislative Assembly without any of the amendments recommendedby the Legislative Council.

The StatesArt. 198


(5) If a Money Bill passed by the Legislative Assembly and transmittedto the Legislative Council for its recommendations is not returned to theLegislative Assembly within the said period of fourteen days, it shall bedeemed to have been passed by both Houses at the expiration of the saidperiod in the form in which it was passed by the Legislative Assembly.

199. Definition of “Money Bills”:– (1) For the purposes of thisChapter, a Bill shall be deemed to be a Money Bill if it contains onlyprovisions dealing with all or any of the following matters, namely:–

(a) the imposition, abolition, remission, alteration or regulation of anytax;

(b) the regulation of the borrowing of money or the giving of anygurantee by the State, or the amendment of the law with respectto any financial obligations undertaken or to be undertaken by theState;

(c) the custody of the Consolidated Fund or the Contingency Fundof the State, the payment of moneys into or the withdrawal ofmoneys from any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of theState;

(e) the declaring of any expenditure to be expenditure charged on theConsolidated Fund of the State, or the increasing of the amountof any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of theState or the public account of the State or the custody or issueof such money; or

(g) any matter incidental to any of the matters specified in sub-clauses(a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason onlythat it provides for the imposition of fines or other pecuniary penalties, orfor the demand or payment of fees for licences or fees for services rendered,or by reason that it provides for the imposition, abolition, remission, alterationor regulation of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill introduced in the Legislatureof a State which has a Legislative Council is a Money Bill or not, the decisionof the Speaker of the Legislative Assembly of such State thereon shall befinal.

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135

(4) There shall be endorsed on every Money Bill when it is transmittedto the Legislative Council under Article 198, and when it is presented tothe Governor for assent under Article 200, the certificate of the Speakerof the Legislative Assembly signed by him that it is a Money Bill.

200. Assent to Bills:– When a Bill has been passed by the LegislativeAssembly of a State or, in the case of a State having a Legislative Council,has been passed by both Houses of the Legislature of the State, it shallbe presented to the Governor and the Governor shall declare either thathe assents to the Bill or that he withholds assent therefrom or that he reservesthe Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentationto him of the Bill for assent, return the Bill if it is not a Money Bill togetherwith a message requesting that the House or Houses will reconsider the Billor any specified provisions thereof and, in particular, will consider thedesirability of introducing any such amendments as he may recommend inhis message and, when a Bill is so returned, the House or Houses shallreconsider the Bill accordingly, and if the Bill is passed again by the Houseor Houses with or without amendment and presented to the Governor forassent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reservefor the consideration of the President, any Bill which in the opinion of theGovernor would, if it became law, so derogate from the powers of the HighCourt as to endanger the position which that Court is by this Constitutiondesigned to fill.

201. Bills reserved for consideration:– When a Bill is reserved bya Governor for the consideration of the President, the President shall declareeither that he assents to the Bill or that he withholds assent therefrom:

Provided that, where the Bill is not a Money Bill, the President maydirect the Governor to return the Bill to the House or, as the case maybe, the Houses of the Legislature of the State together with such a messageas is mentioned in the first proviso to Article 200 and, when a Bill is soreturned, the House or Houses shall reconsider it accordingly within a periodof six months from the date of receipt of such message and, if it is againpassed by the House or Houses with or without amendment, it shall bepresented again to the President for his consideration.

The StatesArt. 201


Procedure in Financial Matters

202. Annual financial statement:– (1) The Governor shall in respectof every financial year cause to be laid before the House or Houses of theLegislature of the State a statement of the estimated receipts and expenditureof the State for that year, in this Part referred to as the “annual financialstatement”.

(2) The estimates of expenditure embodied in the annual financialstatement shall show separately–

(a) the sums required to meet expenditure described by this Constitutionas expenditure charged upon the Consolidated Fund of the State;and

(b) the sums required to meet other expenditure proposed to be madefrom the Consolidated Fund of the State,

and shall distinguish expenditure on revenue account from other expenditure.

(3) The following expenditure shall be expenditure charged on theConsolidated Fund of each State–

(a) the emoluments and allowances of the Governor and other expenditurerelating to his office;

(b) the salaries and allowances of the Speaker and the Deputy Speakerof the Legislative Assembly and, in the case of State having aLegislative Council, also of the Chairman and the Deputy Chairmanof the Legislative Council;

(c) debt charges for which the State is liable including interest, sinkingfund charges and redemption charges, and other expenditure relatingto the raising of loans and the service and redemption of debt;

(d) expenditure in respect of the salaries and allowances of Judges ofany High Court;

(e) any sums required to satisfy any judgment, decree or award ofany Court or arbitral Tribunal;

(f) any other expenditure declared by this Constitution, or by theLegislature of the State by law, to be so charged.

203. Procedure in Legislature with respect to estimates:– (1) Somuch of the estimates as relates to expenditure charged upon the ConsolidatedFund of a State shall not be submitted to the vote of the Legislative Assembly,

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but nothing in this clause shall be construed as preventing the discussion inthe Legislature of any of those estimates.

(2) So much of the said estimates as relates to other expenditure shallbe submitted in the form of demands for grants to the Legislative Assembly,and the Legislative Assembly shall have power to assent, or to refuse toassent, to any demand, or to assent to any demand subject to a reductionof the amount specified therein.

(3) No demand for a grant shall be made except on the recommendationof the Governor.

204. Appropriation Bills:– (1) As soon as may be after the grantsunder Article 203 have been made by the Assembly, there shall be introduceda Bill to provide for the appropriation out of the Consolidated Fund of theState of all moneys required to meet–

(a) the grants so made by the Assembly; and

(b) the expenditure charged on the Consolidated Fund of the Statebut not exceeding in any case the amount shown in the statementpreviously laid before the House or Houses.

(2) No amendment shall be proposed to any such Bill in the Houseor either House of the Legislature of the State which will have the effectof varying the amount or altering the destination of any grant so made orof varying the amount of any expenditure charged on the Consolidated Fundof the State, and the decision of the person presiding as to whether anamendment is inadmissible under this clause shall be final.

(3) Subject to the provisions of Articles 205 and 206, no money shallbe withdrawn from the Consolidated Fund of the State except underappropriation made by law passed in accordance with the provisions of thisArticle.

205. Supplementary additional or excess grants:– (1) The Governorshall–

(a) if the amount authorised by any law made in accordance with theprovisions of Article 204 to be expended for a particular servicefor the current financial year is found to be insufficient for thepurposes of that year or when a need has arisen during the currentfinancial year for supplementary or additional expenditure uponsome new service not contemplated in the annual financial statementfor that year, or

The StatesArt. 205


(b) if any money has been spent on any service during a financial yearin excess of the amount granted for that service and for that year,

cause to be laid before the House or the Houses of the Legislature of theState another statement showing the estimated amount of that expenditureor cause to be presented to the Legislative Assembly of the State a demandfor such excess, as the case may be.

(2) The provisions of Articles 202, 203 and 204 shall have effect inrelation to any such statement and expenditure or demand and also to anylaw to be made authorising the appropriation of moneys out of the ConsolidatedFund of the State to meet such expenditure or the grant in respect of suchdemand as they have effect in relation to the annual financial statement andthe expenditure mentioned therein or to a demand for a grant and the lawto be made for the authorisation of appropriation of moneys out of theConsolidated Fund of the State to meet such expenditure or grant.

206. Votes on account, votes of credit and exceptional grants:–(1) Notwithstanding anything in the foregoing provisions of this Chapter, theLegislative Assembly of a State shall have power–

(a) to make any grant in advance in respect of the estimated expenditurefor a part of any financial year pending the completion of theprocedure prescribed in Article 203 for the voting of such grantand the passing of the law in accordance with the provisions ofArticle 204 in relation to that expenditure;

(b) to make a grant for meeting an unexpected demand upon theresources of the State when on account of the magnitude or theindefinite character of the service the demand cannot be stated withthe details ordinarily given in an annual financial statement;

(c) to make an exceptional grant which forms no part of the currentservice of any financial year,

and the Legislature of the State shall have power to authorise by law thewithdrawal of moneys from the Consolidated Fund of the State for thepurposes for which the said grants are made.

(2) The provisions of Articles 203 and 204 shall have effect in relationto the making of any grant under clause (1) and to any law to be madeunder that clause as they have effect in relation to the making of a grantwith regard to any expenditure mentioned in the annual financial statement

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139

and the law to be made for the authorisation of appropriation of moneysout of the Consolidated Fund of the State to meet such expenditure.

207. Special provisions as to Financial Bills:– (1) A Bill or amendmentmaking provision for any of the matters specified in sub-clauses (a) to (f)of clause (1) of Article 199 shall not be introduced or moved except onthe recommendation of the Governor, and a Bill making such provision shallnot be introduced in a Legislative Council:

Provided that no recommendation shall be required under this clausefor the moving of an amendment making provision for the reduction orabolition of any tax.

(2) A Bill or amendment shall not be deemed to make provision forany of the matters aforesaid by reason only that it provides for the impositionof fines or other pecuniary penalties, or for the demand or payment of feesfor licences or fees for services rendered, or by reason that it provides forthe imposition, abolition, remission, alteration or regulation of any tax by anylocal authority or body for local purposes.

(3) A Bill which, if enacted and brought into operation, would involveexpenditure from the Consolidated Fund of a State shall not be passed bya House of the Legislature of the State unless the Governor has recommendedto that House the consideration of the Bill.

Procedure Generally

208. Rules of procedure:– (1) A House of the Legislature of a Statemay make rules for regulating, subject to the provisions of this Constitution,its procedure and the conduct of its business.

(2) Until rules are made under clause (1), the rules of procedure andstanding orders in force immediately before the commencement of thisConstitution with respect to the Legislature for the corresponding Provinceshall have effect in relation to the Legislature of the State subject to suchmodifications and adaptations as may be made therein by the Speaker ofthe Legislative Assembly, or the Chairman of the Legislative Council, as thecase may be.

(3) In a State having a Legislative Council the Governor, after consultationwith the Speaker of the Legislative Assembly and the Chairman of theLegislative Council, may make rules as to the procedure with respect tocommunications between the two Houses.

The StatesArt. 208


209. Regulation by law of procedure in the Legislature of theState in relation to financial business:– The Legislature of a State may,for the purpose of the timely completion of financial business, regulate bylaw the procedure of, and the conduct of business in, the House or Housesof the Legislature of the State in relation to any financial matter or to anyBill for the appropriation of moneys out of the Consolidated Fund of theState, and, if and so far as any provision of any law so made is inconsistentwith any rule made by the House or either House of the Legislature of theState under clause (1) of Article 208 or with any rule or standing orderhaving effect in relation to the Legislature of the State under clause (2) ofthat Article, such provision shall prevail.

210. Language to be used in the Legislature:– (1) Notwithstandinganything in Part XVII, but subject to the provisions of Article 348, businessin the Legislature of a State shall be transacted in the official language orlanguages of the State or in Hindi or in English:

Provided that the Speaker of the Legislative Assembly or Chairmanof the Legislative Council, or person acting as such, as the case may be,may permit any member who cannot adequately express himself in any ofthe languages aforesaid to address the House in his mother-tongue.

(2) Unless the Legislature of the State by law otherwise provides, thisArticle shall, after the expiration of a period of fifteen years from thecommencement of this Constitution, have effect as if the words “or in English”were omitted therefrom:

1[Provided that in relation to the 2[Legislatures of the States of HimachalPradesh, Manipur, Meghalaya and Tripura] this clause shall have effect asif for the words “fifteen years” occurring therein, the words “twenty-five years”were substituted:]

3[Provided further that in relation to the 4[Legislature of the States of5[Arunachal Pradesh, Goa and Mizoram]], this clause shall have effect asif for the words “fifteen years” occurring therein, the words “forty years”were substituted.]

1. Ins. by the State of Himachal Pradesh Act, 1970 (53 of 1970), Sec. 46, w.e.f. 25.1.1971.

2. Subs. for “Legislature of the State of Himachal Pradesh”, by the North-Eastern Areas(Reorganisation) Act, 1971 (81 of 1971), Sec. 71, w.e.f. 21.1.1972.

3. Ins. by the State of Mizoram Act, 1986 (34 of 1986), Sec. 39, w.e.f. 20.2.1987.

4. Subs. for “Legislature of the State of Mizoram”, by the State of Arunachal Pradesh Act,1986 (69 of 1986), Sec. 42, w.e.f. 20.2.1987.

5. Subs. for “Arunachal Pradesh and Mizoram”, by the Goa, Daman and Diu ReorganisationAct, 1987 (18 of 1987), Sec. 63, w.e.f. 30.5.1987.

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211. Restriction on discussion in the Legislature:– No discussionshall take place in the Legislature of a State with respect to the conductof any Judge of the Supreme Court or of a High Court in the dischargeof his duties.

212. Courts not to inquire into proceedings of the Legislature:–(1) The validity of any proceedings in the Legislature of a State shall notbe called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powersare vested by or under this Constitution for regulating procedure or theconduct of business, or for maintaining order, in the Legislature shall besubject to the jurisdiction of any Court in respect of the exercise by himof those powers.

Comments

Articles 168 to 212:-- The legislature of the State can be unicameral orbicameral. It is left to the State to have two Chambers or one Chamber. Ifthe State Legislature passes a resolution on the creation or abolition of the secondChamber, it can do so by a resolution adopted by a majority of members ofLegislative Assembly or by 2/3rd majority of the members present. On suchresolution forwarded to the Union, the Parliament enacts a law creating the secondChamber. There is no time limit within which the Parliament should act on theresolution of the Assembly. The Legislative Assembly is elected by the peopleof the State at the general elections from constituencies the demarcation of whichis determined by the Delimitation Commission in such a way that the populationof each constituency is as nearly as possible the same. The population figurestaken into consideration for delimiting constituencies are the population figuresof the year 2001 and it continues to be so till the population figures are publishedin 2026. The Legislative Council is elected by special constituencies created suchas teachers’ constituency, graduates’ constituency, local bodies constituency andthe Assembly constituency. In teachers’ constituency all persons who are teachersby profession for over three years and residing in the State are enrolled as votersand they elect 1/12th of the total number of the council. Similarly all graduatesof any university residing in the State for over three years and enrolled as votersmay elect 1/12th of the members of the council. Elected members of local bodiesconstitute local bodies constituency and they elect 1/3rd of the total numberof members of the council. Another 1/3rd members of the council are electedby the elected members of the Legislative Assembly. The total number of membersof the Legislative Council shall be 1/3rd of the total members of the LegislativeAssembly. It means, if the elected number of members of the Legislative Assemblyis 324, the members of the Legislative Council shall be 108 and 1/3rd of that,i.e. 36 are elected by the members of the Legislative Assembly, 36 are elected

The StatesArt. 212


by the local bodies, 9 are elected by the graduates and 9 others are electedby teachers. Balance 18 are nominated. Those members who are elected at thefirst time after the constitution of the Council will hold their membership forsix years, four years and two years as may be determined by the lottery andthereafter every member then elected will hold membership for six years.Subsequent election to the council are held every two years for 1/3rd of themembers for each class.

The Speaker of the Assembly and the Deputy Speaker of the Assembly,the Chairman and Deputy Chairman of the Council are elected by respectiveHouses by a simple majority of the members present and voting but in the caseof their removal, the Assembly and the Council as the case may be has to voteby a majority of the members of the respective Houses. The Speaker and theDeputy Speaker when he acts as a Speaker presiding over the Assembly, theChairman and the Deputy Chairman when he acts as Chairman presiding overthe Council, they are not competent to vote on any matter under discussionbut he can exercise his casting vote only when the House is equally divided.In case of a motion for their removal, the Speaker and Deputy Speaker andthe Chairman and the Deputy Chairman are competent to participate in thediscussion. They are entitled to vote on any matter which is ancillary to themain motion as well as on the motion itself but not entitled to the casting votewhen the House is equally divided. Though Article 181(2) and Article 185(2)does not specifically refer to the Deputy Speaker in the case of the Assemblyand the Deputy Chairman in the case of Council, the omission can be suppliedby the theory of inclusive interpretation.

As a matter of clarification it may be mentioned here that the personpresiding over any meeting shall not vote on any motion in the first instance.It means he shall not exercise his personal vote. Such person who has whatis called casting vote can exercise his right to vote only when the House isdivided equally. Thus he cannot by casting his personal vote create equality andthen casting his vote to secure the verdict in his favour. In any view of thematter a person has only one vote. If the law permits him to exercise his personalvote, he cannot exercise his casting vote for a second time. Where the personis entitled to exercise casting the vote, he shall not exercise his personal vote.

As regards the passing of the bills other than money bills there is a differencein the procedures adopted by the Lok Sabha vis-a-vis Rajya Sabha. If the billis passed in Lok Sabha and is sent to Rajya Sabha for its approval, and theRajya Sabha dissents and returns the bill with the comments and if the LokSabha does not agree with the amendment proposed by the Rajya Sabha, thePresident will convene a meeting of the joint session of both the Houses andthe bill as adopted by the joint session is deemed to have been passed by boththe Houses but in the case of State Legislative Assembly vis-a-vis the Council,

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the bill returned by the Council is adopted by the Assembly with or withoutamendment suggested by the Council will be treated as passed by both the Houses.There is no question of joint session. The second adoption of the Assemblyis treated as final. As regards the passing of money bills also there is variationin the procedure between Lok Sabha vis-a-vis Rajya Sabha and the State Assemblyvis-a-vis Legislative Council. In the matter of money bills passed by the Assemblysent to the Council, if the Council proposes any amendments, the Assemblyconsiders the same for the second time and pass the bill with or withoutamendments suggested by the Council. The money bill passed by the Assemblyin the first instance as passed by the second time becomes final. It will betreated as approved by both the Houses.

The procedure for introducing and disposal of money bill and the otherbills in Lok Sabha and Rajya Sabha and the procedure for introducing and disposalof money bills and other bills in the State Assembly and Council are summarisedin the following Table.

Money Bill Other than Money Bills

Lok Sabha Rajya Sabha

(1) Can be introduced in Lok Sabha Other than money bills canonly and cannot be introduced be introduced in both Houses.in Rajya Sabha

(2) Can be introduced on Can be introduced withoutrecommendation any previous recommendationby the President of the President

(3) After it is passed by the Lok If the Rajya Sabha also passesSabha, it shall be sent to Rajya the bill, the bill is treated asSabha for its recommendations. having been passed by bothIf Rajya Sabha does not pass Houses. If the Rajya Sabhathe money bill or does not take prefers any amendments andup the bill or passes the bill if the Lok Sabha does not agreewith its own recommendations, to the amendments, the Presidentthe bill subsequently passed by will convene a joint session ofthe Lok Sabha shall be treated both the Houses. The bill asas approved by both the Houses. passed by the joint session

by a simple majority of themembers present the bill istreated as having been passedby both the Houses.

The StatesArt. 212


State Legislative Assembly Legislative Council

Money Bill Bill other than Money Bill

(1) Can be introduced in the Can be introduced in AssemblyLegislative Assembly only as well as in Council.and cannot be introducedin the Legislative Council.

(2) There is no need of prior No prior recommendation ofGovernor’s recommendation. the Governor is necessary.

(3) After the bill is passed by the If the Council fails to considerAssembly, it shall be transmitted or rejects the Bill, the originalto the Council for its recommen- Bill passed by the Assembly willdations. The time granted to be treated as passed by both thethe Council to make recommen- Houses. If the Council proposesdations is 14 days from the any amendments, the Assemblydate of receipt of the Money will consider the Bill for theBill from the Assembly. If the second time and if the amendmentsrecommendations of the Council are not approved by the Assembly,are accepted by the Assembly, it will retransmit the Bill to thethe Bill as finalised will be Council for its consideration fortreated as passed by both the a second time. If the CouncilHouses. If the recommendations approves the Bill on its secondof the Council are rejected, consideration or rejects the Billthe Bill as originally passed by in any of its form, the Bill will bethe Assembly will be treated as treated as passed in the formpassed by both the Houses. it was passed by the Assembly.

Assent to the Bill:– It is normally granted by the Governor. If for anyreason the Governor is of the opinion that the Bill transgresses any field reservedfor the Union or subject to any field covered by the Concurrent List, the Billmay be reserved by the Governor for the President’s assent. It is only afterPresidential assent is received, the Governor is deemed to have granted the assent.If the President grants the assent, the Act even though it transgresses into thefield occupied by the Union Law, the State Law only shall prevail. [P. JayanathaAvva v. K.J. Naga Kumar, AIR 2001 Ker. 38].

There is one case in Andhra Pradesh where Governor refused assent onthe ground that it contained self-contradictory provision. That is a case in whichGovernment is granted under the Act the power of revision to correct the casesin which holdings are stated to have been wrongly computed by excluding sales

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made under mere agreements of sale with a proviso that if the transferees oflands themselves are holding land within the ceiling revision is barred. As a matterof fact nobody transfers the excess land in favour of a person who is likelyto become excess land holder. Instead of granting assent the Governor has gotpower to send back any bill for the reconsideration by the Legislature and onreconsideration if the bill is resubmitted to the Governor for his assent, theGovernor then shall grant the assent. The Governor has no power to repeathis exercise and send back the bill to the legislature for a second time. Hispower gets exhausted after it is exercised once. If the bill returned by the Governorand it is not taken up by the Assembly, it results in the bill getting lapsed.

There are two restrictions which need a reference in this context. Thefirst one is that it is not open to any legislature to discuss the conduct of aJudge in relation to his functions as a Judge. Similarly it is not open to theCourt to question the proceedings taking place in the legislature or the mannerin which the legislatures work. Further it is not open to any Court to enquireinto the conduct of any officer or servant of the legislature regulating theprocedure or in the conduct of business or for maintaining law and order withinthe legislatures. The Court therefore cannot interfere with the conduct of themarshals within the precincts of the Assembly or within the halls. If a Judgeis involved in any civil or criminal matters outside the scope of his professionthat is in his personal capacity, the Assembly is not prevented to make a referenceor discuss about such conduct of the Judge. The conduct of an MLA outsidehis character as MLA and his functioning can be subject matter of considerationin any Court, i.e. how the M.Ps. who are alleged to have received bribes outsidethe Parliament House were not dealt with by the Court, while those M.Ps. whoreceived cash for question within the corridors of the Parliament, the Court refusedto interfere with the action taken against them by the Speaker.

The Governor has power to legislate by issuing Ordinance on subjects inwhich the State Legislative Assembly has jurisdiction. This power is restrictedto the period when the Legislative Assembly and the Legislative Council are notin session and prorogued. Moreover the Ordinance issued will not be in forceafter six weeks counted from the date of the first meeting of the Assemblyor the Council during which it must either be approved or disproved by bothHouses. The Governor shall not promulgate the Ordinance without the assentof the President when the subject-matter requires the prior assent of the President.Though the Constitution specifically provides that the Governor can issue Ordinance,he can do so only if he is satisfied about the urgency and the necessity inpromulgating the Ordinance. There are cases where with a view to issueOrdinances the Governor is prorogating the Legislatures. This practice is severelydeprecated. [D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.]

The StatesArt. 212

CONST-10


CHAPTER-IV

Legislative Power of the Governor

213. Power of Governor to promulgate Ordinances during recessof Legislature:– (1) If at any time, except when the Legislative Assemblyof a State is in session, or where there is a Legislative Council in a State,except when both Houses of the Legislature are in session, the Governoris satisfied that circumstances exist which render it necessary for him to takeimmediate action, he may promulgate such Ordinances as the circumstancesappear to him to require:

Provided that the Governor shall not, without instructions from thePresident, promulgate any such Ordinance if–

(a) a Bill containing the same provisions would under this Constitutionhave required the previous sanction of the President for theintroduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containingthe same provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisionswould under this Constitution have been invalid unless, having beenreserved for the consideration of the President, it had received theassent of the President.

(2) An Ordinance promulgated under this Article shall have the sameforce and effect as an Act of the Legislature of the State assented to bythe Governor, but every such Ordinance–

(a) shall be laid before the Legislative Assembly of the State, or wherethere is a Legislative Council in the State, before both the Houses, and shallcease to operate at the expiration of six weeks from the reassembly of theLegislature, or if before the expiration of that period a resolution disapprovingit is passed by the Legislative Assembly and agreed to by the LegislativeCouncil, if any, upon the passing of the resolution or, as the case may be,on the resolution being agreed to by the Council;and

(b) may be withdrawn at any time by the Governor.

Explanation:– Where the Houses of the Legislature of a State havinga Legislative Council are summoned to reassemble on different dates, theperiod of six weeks shall be reckoned from the latter of those dates forthe purposes of this clause.

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(3) If and so far as an Ordinance under this Article makes any provisionwhich would not be valid if enacted in an Act of the Legislature of the Stateassented to by the Governor, it shall be void:

Provided that, for the purposes of the provisions of this Constitutionrelating to the effect of an Act of the Legislature of a State which is repugnantto an Act of Parliament or an existing law with respect to a matter enumeratedin the Concurrent List, an Ordinance promulgated under this Article inpursuance of instructions from the President shall be deemed to be an Actof the Legislature of the State which has been reserved for the considerationof the President and assented to by him.

1[xxx]Caselaw

Power of the Governor about his satisfaction of the existence ofcircumstances to promulgate ordinances cannot be questioned. AIR 2005 Raj.144.

Existence of a recitation about emergency condition in the Ordinance isenough. AIR 2001 SC 1980.

CHAPTER-V

The High Courts in the States

214. High Courts for States:– 2[xxx] There shall be a High Courtfor each State.

3[xxx]

Caselaw

Nobody can claim it as fundamental right that High Court shall be locatedat a proximate place. K.S. Satyanarayana v. V.R. Narayana Rao, AIR 1999 SC2544.

215. High Courts to be Courts of Record:– Every High Court shallbe a Court of Record and shall have all the powers of such a Court includingthe power to punish for contempt of itself.

1. Omitted by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 27, w.e.f. 20.6.1979.

2. The brackets and figure “(1)” omitted by the Constitution (Seventh Amndt.) Act, 1956,Section 29 and Schedule.

3. Clauses (2) and (3) omitted by the Constitution (Seventh Amndt.) Act, 1956, Section29 and Schedule.

The StatesArt. 215


Caselaw

Suo motu action for contempt by Supreme Court directly does not curtailthe jurisdiction of the High Court. Bal Thackrey v. Harish Pimpalkhute andanother, AIR 2005 SC 396.

Expunction of remark – The Lower Court can directly approach the HighCourt invoking its inherent jurisdiction against remarks of the High Court. Theconcerned Judicial Officer can approach Supreme Court under Art. 136. AIR2001 SC 972.

High Court’s power under Art. 215 are available to the Special Court underSpecial Courts Act. AIR 2001 SC 2763.

High Court, as a Court of Records has inherent power to correct therecords. M.M. Thomas v. State of Kerala and another, AIR 2000 SC 540.

216. Constitution of High Courts:– Every High Court shall consistof a Chief Justice and such other Judges as the President may from timeto time deem it necessary to appoint.

1[xxx]

217. Appointment and conditions of the office of a Judge of aHigh Court:– (1) Every Judge of a High Court shall be appointed by thePresident by warrant under his hand and seal after consultation with the ChiefJustice of India, the Governor of the State, and, in the case of appointmentof a Judge other than the Chief Justice, the Chief Justice of the High Court,and 2[shall hold office, in the case of an additional or acting Judge, as providedin Article 224, and in any other case, until he attains the age of 3[sixty-two years]]:

Provided 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 by the President in themanner provided in clause (4) of Article 124 for the removal ofa Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed bythe President to be a Judge of the Supreme Court or by his being

1. Proviso omitted by the Constitution (Seventh Amndt.) Act, 1956, Section 11.

2. Subs. for “shall hold office until he attains the age of sixty years” by the Constitution(Seventh Amndt.) Act, 1956, Section 12.

3. Subs. for “sixty years” by the Constitution (Fifteen Amndt.) Act, 1963, Section 4.

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transferred by the President to any other High Court within theterritory of India.

(2) A person shall not be qualified for appointment as a Judge of aHigh Court unless he is a citizen of India and–

(a) has for at least ten years held a judicial office in the territory ofIndia; or

(b) has for at least ten years been an advocate of a High Court 1[xxx]or of two or more such Courts in succession; 2[xxx].

Explanation:– For the purposes of this clause–3[(a) in computing the period during which a person has held judicial

office in the territory of India, there shall be included any period,after he has held any judicial office, during which the person hasbeen an advocate of a High Court or has held the office of amember of a tribunal or any post, under the Union or a State,requiring special knowledge of law;]

4[(aa)] in computing the period during which a person has been an advocateof a High Court, there shall be included any period during whichthe person 5[has held judicial office or the office of a member ofa tribunal or any post, under the Union or a State, requiring specialknowledge of law] after he became an advocate;

(b) in computing the period during which a person has held judicialoffice in the territory of India or been an advocate of a High Court,there shall be included any period before the commencement ofthis Constitution during which he has held judicial office in any areawhich was comprised before the fifteenth day of August, 1947,within India as defined by the Government of India Act, 1935,or has been an advocate of any High Court in any such area, asthe case may be.

1. The words “in any State specified in the First Schedule” omitted by the Constitution(Seventh Amndt.) Act, 1956, Section 29 and Schedule.

2. The word “or” and sub-clause (c) ins. by the Constitution (Forty-second Amndt.) Act,1976, Section 36, w.e.f. 3.1.1977 and omitted by the Constitution (Forty-fourth Amndt.)Act, 1978, Section 28, w.e.f. 20.6.1979.

3. Ins. by the Constitution (Forty-fourth Amndt.) Act, 1978, Section 28, w.e.f. 20.6.1979.

4. Re-lettered as clause (aa) by the Constitution (Forty-fourth Amndt.) Act, 1978, Sec. 28,w.e.f. 20.6.1979.

5. Subs. for “has held judicial office”, by the Constitution (Forty-second Amndt.) Act, 1976,Section 36, w.e.f. 3.1.1977.

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1[(3) If any question arises as to the age of a Judge of a High Court,the question shall be decided by the President after consultation with theChief Justice of India and the decision of the President shall be final.]

Caselaw

Writ petition by advocates against age of Chief Justice of India dismissed,action against petitioners proposed for making false allegations. AIR 2001SC 970.

Art. 217(1):-- High standard of probity is expected of judicial officers.AIR 2005 Raj. 171.

218. Application of certain provisions relating to Supreme Courtto High Courts:– The provisions of clauses (4) and (5) of Article 124shall apply in relation to a High Court as they apply in relation to the SupremeCourt with the substitution of references to the High Court for referencesto the Supreme Court.

219. Oath or affirmation by Judges of High Courts:– Every personappointed to be a Judge of a High Court 2[xxx] shall, before he enters uponhis office, make and subscribe before the Governor of the State, or someperson appointed in that behalf by him, an oath or affirmation accordingto the form set out for the purpose in the Third Schedule.

3[220. Restriction on practice after being a permanent Judge:–No person who, after the commencement of this Constitution, has held officeas a permanent Judge of a High Court shall plead or act in any Court orbefore any authority in India except the Supreme Court and the other HighCourts.

Explanation:– In this Article, the expression “High Court” does notinclude a High Court for a State specified in Part B of the First Scheduleas it existed before the commencement4 of the Constitution (SeventhAmendment) Act, 1956.]

221. Salaries, etc., of Judges:– 5[(1) There shall be paid to the Judgesof each High Court such salaries as may be determined by Parliament by

1. Ins. by the Constitution (Fifteenth Amndt.) Act, 1963, Section 4.

2. The words “in a State” omitted by the Constitution (Seventh Amndt.) Act, 1956, Section 29and Schedule.

3. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 13, for Article 220.

4. 1-11-1956.

5. Subs. by the Constitution (Fifty-fourth Amndt.) Act, 1986, Section 3, w.e.f. 1.4.1986.

Art. 221

151

law and, until provision in that behalf is so made, such salaries as are specifiedin the Second Schedule.]

(2) Every Judge shall be entitled to such allowances and to such rightsin respect of leave of absence and pension as may from time to time bedetermined by or under law made by Parliament and, until so determined,to such allowances and rights as are specified in the Second Schedule:

Provided that neither the allowances of a Judge nor his rights in respectof leave of absence or pension shall be varied to his disadvantage after hisappointment.

222. Transfer of a Judge from one High Court to another:– (1)The President may, after consultation with the Chief Justice of India, transfera Judge from one High Court to any other High Court 1[xxx].

2[(2) When a Judge has been or is so transferred, he shall, during theperiod he serves, after the commencement of the Constitution (FifteenthAmendment) Act, 1963, as a Judge of the other High Court, be entitledto receive in addition to his salary such compensatory allowance as maybe determined by Parliament by law and, until so determined, such compensatoryallowance as the President may by order fix.]

223. Appointment of acting Chief Justice:– When the office of ChiefJustice of a High Court is vacant or when any such Chief Justice is, byreason 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 Judgesof the Court as the President may appoint for the purpose.

Caselaw

All India Judges case. All India Judges’ Association v. Union of Indiaand others, 1992 (1) SCC 119 = 1993 AIR SCW 3195.

Government has power to make service laws for judicial services. AIR2000 SC 1296.

3[224. Appointment of additional and acting Judges:– (1) If byreason of any temporary increase in the business of a High Court or byreason of arrears of work therein, it appears to the President that the number

1. The words “within the territory of India” omitted by the Constitution (Seventh Amndt.)Act, 1956, Section 14.


3. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Section 15.

The StatesArt. 224


of the Judges of that Court should be for the time being increased, thePresident may appoint duly qualified persons to be additional Judges of theCourt for such period not exceeding two years as he may specify.

(2) When any Judge of a High Court other than the Chief Justice isby reason of absence or for any other reason unable to perform the dutiesof his office or is appointed to act temporarily as Chief Justice, the Presidentmay appoint a duly qualified person to act as a Judge of that Court untilthe permanent Judge has resumed his duties.

(3) No person appointed as an additional or acting Judge of a HighCourt shall hold office after attaining the age of 1[sixty-two years].]

2[224A. Appointment of retired Judges at sittings of High Courts:–Notwithstanding anything in this Chapter, the Chief Justice of a High Courtfor any State may at any time, with the previous consent of the President,request any person who has held the office of a Judge of that Court orof any other High Court to sit and act as a Judge of the High Court forthat State, and every such person so requested shall, while so sitting andacting, be entitled to such allowances as the President may by order determineand have all the jurisdiction, powers and privileges of, but shall not otherwisebe deemed to be, a Judge of that High Court:

Provided that nothing in this Article shall be deemed to require anysuch person as aforesaid to sit and act as a Judge of that High Court unlesshe consents so to do.]

225. Jurisdiction of existing High Courts:– Subject to the provisionsof this Constitution and to the provisions of any law of the appropriateLegislature made by virtue of powers conferred on that Legislature by thisConstitution, the jurisdiction of, and the law administered in, any existing HighCourt, and the respective powers of the Judges thereof in relation to theadministration of justice in the Court, including any power to make rulesof Court and to regulate the sittings of the Court and of members thereofsitting alone or in Division Courts, shall be the same as immediately beforethe commencement of this Constitution:

3[Provided that any restriction to which the exercise of original jurisdictionby any of the High Courts with respect to any matter concerning the revenue

1. Subs. for “sixty years” by the Constitution (Fifteenth Amndt.) Act, 1963, Section 6.


3. Ins. by the Constitution (Forty-fourth Amndt.) Act, 1978, Section 29, w.e.f. 20.6.1979.

Art. 225

153

or concerning any act ordered or done in the collection thereof was subjectimmediately before the commencement of this Constitution shall no longerapply to the exercise of such jurisdiction.]

Caselaw

Where there is a conflict between two judgments, it is not open to mellowdown its impact. The case should be referred to a larger Bench. Rustom KhusroSapurji Gandhi and Ors. v. Amrit Abhijat and Ors., AIR 2007 All. 149.

In case of conflict between the rule framed by the High Court in exerciseof its powers under CPC and the election law, the latter only will prevail. Kailashv. Nanhku and others, AIR 2005 SC 2441.

Admiralty jurisdiction – Terms of CPC will apply. AIR 1999 SC 2826.

High Court does not have administrative control over special court. AIR2001 SC 2456.

1[226. Power of High Courts to issue certain writs:– (1)Notwithstanding anything in Article 32 2[xxx] every High Court shall havepowers, throughout the territories in relation to which it exercises jurisdiction,to issue to any person or authority, including in appropriate cases, anyGovernment, within those territories directions, orders or writs, including3[writs in the nature of habeas corpus, mandamus, prohibition, quo warrantoand certiorari, or any of them, for the enforcement of any of the rightsconferred by Part III and for any other purpose.]

(2) The power conferred by clause (1) to issue directions, orders orwrits to any Government, authority or person may also be exercised by anyHigh Court exercising jurisdiction in relation to the territories within whichthe cause of action, wholly or in part, arises for the exercise of such power,notwithstanding that the seat of such Government or authority or the residenceof such person is not within those territories.

4[(3) Where any party against whom an interim order, whether by wayof injunction or stay or in any other manner, is made on, or in any proceedingsrelating to, a petition under clause (1), without–

1. Subs. by the Constitution (Forty-second Amndt.) Act, 1976, Section 38, w.e.f. 1.2.1977.

2. The words figures and letters “but subject to the provisions of Article 131A and Article226A” omitted by the Constitution (Forty-third Amndt.) Act, 1977, Section 7, w.e.f.13.4.1978.

3. Subs. for clauses (3), (4), (5) and (6) by the Constitution (Forty-fourth Amndt.) Act,1978, Section 30, w.e.f. 1-8-1979.

4. Subs. for clauses (3), (4), (5) and (6) by the Constitution (Forty-fourth Amndt.) Act,1978, Section 30, w.e.f. 1-8-1979.

The StatesArt. 226


(a) furnishing to such party copies of such petition and all documentsin support of the plea for such interim order; and

(b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order andfurnishes a copy of such application to the party in whose favour such orderhas been made or the counsel of such party, the High Court shall disposeof the application within a period of two weeks from the date on whichit is received or from the date on which the copy of such application isso furnished, whichever is later, or where the High Court is closed on thelast day of that period, before the expiry of the next day afterwards onwhich the High Court is open; and if the application is not so disposed of,the interim order shall, on the expiry of that period, or, as the case maybe, the expiry of the said next day, stand vacated.]

1[(4)] The power conferred on a High Court by this Article shall notbe in derogation of the power conferred on the Supreme Court by clause(2) of Article 32.

Caselaw

Anonymous letters cannot be entertained under PIL. Divine Retreat Centrev. State of Kerala, AIR 2008 SC 1614.

Contractual disputes involving public law element can be entertained by HighCourt. Food Corporation of India v. M/s. Siel Ltd., AIR 2008 SC 1101.

Compounding cheque bouncing case is permissible and the accused isentitled to acquittal. Vinay Devanna Naik v. Ryot Seva Sahakari Bank Ltd.,AIR 2008 SC 716.

Newspaper industry is not a public utility service. K.K. Bhalla v. Stateof M.P., AIR 2006 SC 898.

Violation of consent decree amounts to contempt of Court. Rama Narangv. Ramesh Narang & Anr., AIR 2006 SC 1883.

Direction to reconsider means effective reconsideration. A.P.S.R.T.C. &Ors. v. G. Srinivasa Reddy & Ors., AIR 2006 SC 1465.

Advocates indulging in PIL is deprecated. Also deprecated is the PIL inservice matters. 2005 AIR SCW 46.

Non-production of records by the Government can be treated as admissionof the matters contained in the petition. 2005 AIR SCW 4796.

1. Clause (7) renumbered as clause (4) by the Constitution (Forty-fourth Amndt.) Act, 1978,Section 30, w.e.f. 1-8-1979.

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155

Jurisdiction of the High Court over Central Government offices can beassumed only if some cause of action takes place within the jurisdiction ofthe High Court in Visa cases. Natasha Sondur and others v. Union of Indiaand others, AIR 2005 Kar. 253.

Final order on writ petition cannot be reopened on the ground that thelaw is changed subsequently. Sri Nepal Chandra Paul v. State of Tripura andothers, AIR 2004 Gau. 160.

Evidence can be recorded with the help of electronic media and audioor audio visual instruments. AIR 2003 SC 189.

Lotteries conducted by one State within another State, the Court exercisingjurisdiction in the other States can entertain writ petition. AIR 2003 (58-B) Gau.(NOC).

Questions like inaction and omission on the part of the Government canbe raised in writ petition instead of Service Tribunal. 2003 AIR SCW 653.

The distinction between jurisdiction under Arts. 226 and 227 is explained.2003 AIR SCW 930.

When education is the subject, father or guardian of minor can approachHigh Court. Debasish Kar Gupta and another v. State of West Bengal and others,AIR 1999 Cal. 300.

Exhibition of obscene paintings – Notice issued. Jagdishchandra L. Ozaand another v. State of Gujarat and others, AIR 1999 Guj. 314.

Arbitrator is the person to whom writ could be issued. AIR 1999 Bom.219.

Freedom fighter’s name appears in the directory published by the Government– Court directed the Government to reconsider the case. AIR 2000 Mad. 199.

1[226A. Constitutional validity of Central laws not to be consideredin proceedings under Article 226:– [Rep. by the Constitutional (Forty- third Amendment) Act, 1977, Section 8 (w.e.f. 13.4.1978).]

227. Power of superintendence over all courts by the High Court:–2[(1) Every High Court shall have superintendence over all courts and tribunalsthroughout the territories in relation to which it exercises jurisdiction.]

(2) Without prejudice to the generality of the foregoing provisions, theHigh Court may–

(a) call for returns from such courts;

1. Ins. by the Constitutional (Forty-second Amendment) Act, 1976, Sec. 39, w.e.f. 1.2.1977.

2. Clause (1) Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, w.e.f. 20.6.1979.

The StatesArt. 227


(b) make and issue general rules and prescribe forms for regulatingthe practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be keptby the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed tothe sheriff and all clerks and officers of such courts and to attorneys,advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled underclause (2) or clause (3) shall not be inconsistent with the provision of anylaw for the time being in force, and shall require the previous approval ofthe Governor.

(4) Nothing in this Article shall be deemed to confer on a High Courtpowers of superintendence over any court or tribunal constituted by or underany law relating to the Armed Forces.

1[xxx]

Caselaw

Failure to render necessary findings amounts to jurisdictional error. KishoreKumar Khaitan & Anr. v. Praveen Kumar Singh, AIR 2006 SC 1474.

The power exercisable by the High Court under Section 115 of the CPCis not the same as that exercisable by the High Court under Art. 227 of theConstitution. Pentook Lepcha v. Sonam Lepcha & Ors.,AIR 2007 (NOC) 1777(Sik.).

Where a Court issues injunction against a party without impleading him,Art. 227 is appropriate remedy. Suguna Poultry Farm Ltd. and others v. ArulMariamman Textiles Ltd. and others, AIR 2005 Mad. 72.

When a matter is heard and reserved for judgment, the Court cannot takeinto consideration the subsequent events. AIR 2005 Raj. 62.

Arbitrator is not a Court for purposes of Art. 226. H.P.S.E.B. v. M/s. Ansal Properties and another, 2005 AIR 520 HP (NOC).

228. Transfer of certain cases to High Court:– If the High Courtis satisfied that a case pending in a court subordinate to it involves a substantialquestion of law as to the interpretation of this Constitution the determination

1. Clause (5) omitted by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 31(w.e.f. 20-6-1979).

Art. 228

157

of which is necessary for the disposal of the case, 1[it shall withdraw thecase and 2[xxx] may–]

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the courtfrom which the case has been so withdrawn togetherwith a copyof its judgment on such question, and the said court shall on receiptthereof proceed to dispose of the case in conformity with suchjudgment.

228A. Special provisions as to disposal of questions relating toconstitutional validity of State Laws:– [Rep. by the Constitution (Forty-third Amendment) Act, 1977, S. 10 (w.e.f. 13.4.1978)].

229. Officers and servants and the expenses of High Courts:–(1) Appointments of officers and servants of a High Court shall be madeby the Chief Justice of the Court or such other Judge or officer of the Courtas he may direct:

Provided that the Governor of the State 3[xxx] may by rule requirethat in such cases as may be specified in the rule no person not alreadyattached to the Court shall be appointed to any office connected with theCourt save after consultation with the State Public Service Commission.

(2) Subject to the provisions of any law made by the Legislature ofthe State, the conditions of service of officers and servants of a High Courtshall be such as may be prescribed by rules made by the Chief Justice ofthe Court or by some other Judge or officer of the Court authorised bythe Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as theyrelate to salaries, allowances, leave or pensions, require the approval of theGovernor of the State.

(3) The administrative expenses of a High Court, including all salaries,allowances and pensions payable to or in respect of the officers and servantsof the Court, shall be charged upon the Consolidated Fund of the State,and any fees or other moneys taken by the Court shall form part of thatFund.

1. Subs. for “it shall withdraw the case and may–” by the Constitution (Forty-secondAmendment) Act, 1976, Sec. 41, w.e.f. 1-2-1977.

2. The words, figure and letter, “subject to the Provisions of Article 131A” omitted by theConstitution (Forty-third Amendment) Act, 1977, Section 9, w.e.f. 13-4-1978.

3. The words “in which the High Court has its principal seat” omitted by the Constitution(Seventh Amendment) Act, 1956, Section 29 and Schedule.

The StatesArt. 229


Caselaw

When there is no promotional post as Private Secretary to Chief Justice,promoting a steno to that post with special grade is not permissible. Ram ShankarBhattacharjee v. Gauhati High Colurt and others, AIR 2005 SC 245.

Pay revision of High Court staff and the question of merger of posts madeby the High Court shall not be interfered with by the Government. Union ofIndia and another v. S.B. Vohra and others, AIR 2004 SC 1402.

Chief Justice should fix the scales of pay of the staff of the High Courtand forward his recommendations to the Government. 2004 AIR SCW 5441.

1[230. Extension of jurisdiction of High Courts to Union territories:–(1) Parliament may by law extend the jurisdiction of a High Court to, orexclude the jurisdiction of a High Court from, any Union territory.

(2) Where the High Court of a State exercises jurisdiction in relationto a Union territory,–

(a) nothing in this Constitution shall be construed as empowering theLegislature of the State to increase, restrict or abolish that jurisdiction;and

(b) the reference in Article 227 to the Governor shall, in relation toany rules, forms or tables for subordinate courts in that territory,be construed as a reference to the President.

Caselaw

Union Territory is different from State. Migrant S.Cs. can be givenreservation. 2005 AIR SCW 977.

231. Establishment of a common High Court for two or moreStates:– (1) Notwithstanding anything contained in the preceding provisionsof this Chapter, Parliament may by law establish a common High Court fortwo or more States or for two or more States and a Union territory.

(2) In relation to any such High Court,–

(a) the reference in Article 217 to the Governor of the State shall beconstrued as a reference to the Governors of all the States in relationto which the High Court exercises jurisdiction;

(b) the reference in Article 227 to the Governor shall, in relation toany rules, forms or tables for subordinate courts, be construed as

1. Subs. by the Constitution (Seventh Amendment) Act, 1956, Section 16, for Articles 230,231 and 232.

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159

a reference to the Governor of the State in which the subordinatecourts are situate; and

(c) the reference in Articles 219 and 229 to the State shall be construedas a reference to the State in which the High Court has its principalseat:

Provided that if such principal seat is in a Union territory, the referencesin Articles 219 and 229 to the Governor, Public Service Commission,Legislature and Consolidated Fund of the State shall be construed, respectively,as references to the President, Union Public Service Commission, Parliamentand Consolidated Fund of India.]

232. Omitted by Constitution (Seventh Amendment) Act, 1956. w.e.f.1-11-1956.

Comments

Articles 214 to 232:-- Just as there can be one Governor for two ormore States, there can be a High Court for more than one State and there canalso be different High Court Benches in different areas of the State; Punjab andHaryana High Court is for the State of Punjab and also for the State of Haryana;Nagpur and Goa Benches of the Bombay High Court; so also the Bench of theMadras High Court at Madurai are the Benches of the High Court functioningwithin one State. While the common High Court for two States function asindependent functioning for each State High Courts the Benches within the Stateare mere branches of the same High Court.

The Chief Justice of the High Court is the administrative head of the workperformed by the High Court. He only constitutes Benches and allots the work.Any other Judge or Bench of Judges is not competent to direct the Registrarto post a particular case before him/them. Neither he is competent to transferthe case pending before him to another Judge, nor he is competent to transferany case pending before any Judge to himself or to any other Judge. The ChiefJustice can stay further hearing or transfer the case pending before any Judgeto himself or to any other Judge. Unless the work is allotted Judge suo motucannot take up and dispose of any case. That is why PILs through lettersaddressed to the Judge are processed through office with the sanction of theChief Justice. State of Rajasthan v. Prakash Chand, AIR 1998 SC 1344 = 1998(1) SCC 1 = 1998 Crl.L.J. 2012 = 1998 (1) CCR 88 (SC).

The Chief Justice and other Judges of the High Court are appointed bythe President. While appointing the Chief Justice of the High Court the Presidentshall consult the Chief Justice of Supreme Court and while appointing the otherJudges of the High Court the President shall consult the Chief Justice and someother Judges of the concerned States also. The President can transfer Judgesfrom one High Court to be a Judge of another High Court. In such cases oftransfer the President shall consult the Chief Justice of all the High Courtsconcerned, i.e. the Court from which the Judge is supposed to be transferredand the Chief Justice of the High Court to which the Judge is supposed tobe transferred. If the Chief Justice of a High Court is for any reason not ableto function as Chief Justice for any reason, say, of his being appointed as

The StatesArt. 232


Governor, the President may appoint any other Judge of the High Court to functionas Chief Justice. Similarly, if any Judge is not able to function for any reason,say, that of his being appointed as incharge Chief Justice, the President mayappoint any person qualified to be a High Court Judge. The President can appointadditional Judges when necessary for a period of two years by increasingtemporarily the strength of the High Court. But in the case where services ofany adhoc Judge becomes necessary, the Chief Justice of High Court can appointwith the consent of the President a person who is a Judge retired from thesame High Court or any other High Court to enable him to clear the arrearsof pending cases. No private individual or any other person, even the one whois qualified to be appointed as a Judge can be appointed as adhoc Judge. Aretired District Judge or the Judge Advocate of the Court Marshal cannot beappointed as adhoc Judges. When the scheme of the transfer of Judges wasfirst introduced, some Judges had many complaints to make. When a questionof transfer of Judge from one High Court to another was raised by an Advocatein a writ petition, it was held that as the transferred Judge is capable of protectinghimself, the Advocate has no locus standi to question the transfer. [K. AshokReddy v. Govt. of India, AIR 1984 SC 1207]. This problem has since beensolved by making the transferability of the post as a service condition andappropriate safeguards have been created to prevent arbitrary transfers.

The permanent High Court Judge after retirement is debarred from practisingas an Advocate within the State in which he is a permanent Judge or beforeany Court or authority within the jurisdiction of that High Court but he canpractise in the Supreme Court or in any other High Courts or authoritiessubordinate to them. A person who remitted his office before he was madepermanent Judge can practise in such Court or in any other Court or tribunalin India including the Supreme Court.

The jurisdiction of the High Court under Articles 226 and 227 is calledjudicial review just as a jurisdiction of Supreme Court under Art. 32 read withArt. 142 is called Judicial Review of the Supreme Court. There is, however,one restriction in the case of the orders of injunction which may be made priorto the service of notice on the other side when required to be made by theHigh Court under Art. 226. Any interim order made by the High Court withoutthe notice being served on the other side will lapse, if such application is notdisposed of within two weeks from the date of the order.

The jurisdiction under judicial review is unlimited. Apart from interferingwith the orders of administrative, executive and judicial, judicial review encompassesinterfering in any and every matter which affects the rights of citizens. In thecase of human rights, the power of judicial review cover the protection of therights of the foreigners also. In particular, the judicial review enables the HighCourt to issue writ of certiorari (i.e. invalidating the orders) the issue of mandamus(i.e. the issue of injunctions both mandatory and prohibitory); writ of quo warranto(i.e. an order to the respondent to prove the authority under which he isperforming his duties); and the writ of habeas corpus (i.e. production of theperson whose whereabouts are not known). Since everyone of the reliefs claimedoccupies different fields, an application for relief shall be so framed as to suitits requirements. In case of certiorari it has to be explained as to how theimpugned order is ultra vires. In the case of mandamus it has to be explained

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161

as to how the applicant is entitled to injunction; in the case of quo warrantoit has to be explained as to how the authority alleged to occupy a public officeis not entitled to hold that post. In the case of habeas corpus it has to be explainedas to how the detention is illegal. It may be noted in this context that the contentsof the application must conform with the prayers. It is necessary to state inall cases that the applicant has exhausted all the remedies and that the remedysought for is the only alternative and efficacious remedy and that he is notsimultaneously seeking relief in any other forum also. The applicant in all caseshas to be bona fide. Where an applicant seeks remedy against the private person,the applicant shall include the concerned authority or the Government also asthe necessary party. For example, in an application for habeas corpus againstthe abduction by private party, the police must necessarily be made a party eitherin person who failed to render assistance to the applicant in such cases or asa person to execute the orders which the Court may issue. While writs andorders can be issued in exercise of the powers under Art. 226 against authoritiesand persons, the High Court under its special jurisdiction can also issue ordersin matters decided by the Court under Art. 227. The latter jurisdiction is alsocalled the power of superintendence.

If there is any delay on the part of the Judge to deliver judgment afterit is reserved, and such delay exceeds 6 months, the parties are entitled to filean application before the Chief Justice of the High Court who may makeappropriate orders including an order to put the case for fresh hearing beforeanother Judge. Anil Rai v. State of Bihar, AIR 2001 SC 3173 = 2001 (7) SCC318 = 2001 (5) Supreme 617 = 2001 (3) SCJ 334 = 2001 (8) SRJ 84.

CHAPTER-VI

Subordinate Courts

233. Appointment of District Judges:– (1) Appointments of personsto be, and the posting and promotion of, district judges in any State shallbe made by the Governor of the State in consultation with the High Courtexercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the Stateshall only be eligible to be appointed a district judge if he has been fornot less than seven years an advocate or a pleader and is recommendedby the High Court for appointment.

Caselaw

Where selection is by a written test and oral test, there could be a minimummarks for written test to enable the candidate to appear for oral test. It is notpermissible to prescribe any minimum marks for oral test so as to disqualifythe candidates for selection on the mere ground that he failed to obtain minimumin oral test. What is required is the clubbing of the marks obtained in writtentest with the marks obtained in the oral test and fix the position in the list ofcandidates to be selected. K. Manjusree v. State of A.P., AIR 2008 SC 1470.

CONST-11

The StatesArt. 233


1[233A. Validation of appointments of, and judgments, etc.,delivered by, certain district judges:– Notwithstanding any judgment,decree or order of any court,–

(a)(i) no appointment of any person already in the judicial service of aState or of any person who has been for not less than seven yearsan advocate or a pleader, to be a district judge in that State, and

(ii) no posting, promotion or transfer of any such person as a districtjudge,

made at any time before the commencement of the Constitution (TwentiethAmendment) Act, 1966, otherwise than in accordance with the provisionsof Article 233 or Article 235 shall be deemed to be illegal or void or everto have become illegal or void by reason only of the fact that such appointment,posting, promotion or transfer was not made in accordance with the saidprovisions;

(b) no jurisdiction exercised, no judgment, decree, sentence or orderpassed or made, and no other act or proceeding done or taken,before the commencement of the Constitution (Twentieth Amendment)Act, 1966 by, or before, any person appointed, posted, promotedor transferred as a district judge in any State otherwise than inaccordance with the provisions of Article 233 or Article 235 shallbe deemed to be illegal or invalid or ever to have become illegalor invalid by reason only of the fact that such appointment, posting,promotion or transfer was not made in accordance with the saidprovisions.]

234. Recruitment of persons other than district judges to thejudicial service:– Appointments of persons other than district judges to thejudicial service of a State shall be made by the Governor of the State inaccordance with rules made by him in that behalf after consultation with theState Public Service Commission and with the High Court exercising jurisdictionin relation to such State.

Caselaw

Scaled scores and scaled marks can be utilised for the purpose of selection.Sanjay Singh & Anr. v. U.P. Public Service Com., Allahabad & Anr., AIR2007 SC 950.

1. Inserted by the Constitution (Twentieth Amendment) Act, 1966, Section 2, w.e.f.23.12.1966.

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163

Gradation between the civil and criminal wings of judiciary – Proprietyand procedure explained. AIR 2001 SC 1075.

Consultation with High Court in all High Court appointments is mandatory.Madan Mohan Choudhary v. State of Bihar and others, AIR 1999 SC 1018.

Where two candidates, one belonging to reserved class and another belongingto general category, are equal in merit are competing the general seat, the reservedclass candidate shall be preferred. Further reservation rule does not apply tosubordinate judiciary. State of Bihar v. Balmukund Sah, AIR 2000 SC 1296= 2000 (4) SCC 640 = 2000 (2) Supreme 490 = 2000 (4) SRJ 224.

235. Control over subordinate courts:– The control over districtcourts and courts subordinate thereto including the posting and promotionof, and the grant of leave to, persons belonging to the judicial service ofa State and holding any post inferior to the post of district judge shall bevested in the High Court, but nothing in this Article shall be construed astaking away from any such person any right of appeal which he may haveunder the law regulating the conditions of his service or as authorising theHigh Court to deal with him otherwise than in accordance with the conditionsof his service prescribed under such law.

Caselaw

Where the order of termination during probation is simpliciter, there is noneed to adopt procedure under Art. 311. Registrar, High Court of Gujarat andanother v. C.G. Sharma, AIR 2005 SC 344.

Advocate seeking repeated adjournments is guilty of professional misconduct.AIR 2001 SC 2028.

Manner of assessment and attitude of judicial officer by the inspectingHigh Court Judge indicated. AIR 2004 SC 2150.

236. Interpretation:– In this Chapter–(a) the expression “district judge” includes judge of a city civil court,

additional district judge, joint district judge, assistant district judge,chief judge of a small cause court, chief presidency magistrate,additional chief presidency magistrate, sessions judge, additionalsessions judge and assistant sessions Judge;

(b) the expression “judicial service” means a service consisting exclusivelyof persons intended to fill the post of district judge and other civiljudicial posts inferior to the post of district judge.

237. Application of the provisions of this Chapter to certain classor classes of magistrates:– The Governor may by public notification directthat the foregoing provisions of this Chapter and any rules made thereundershall with effect from such date as may be fixed by him in that behalf applyin relation to any class or classes of magistrates in the State as they applyin relation to persons appointed to the judicial service of the State subjectto such exceptions and modifications as may be specified in the notification.

The StatesArt. 237


Comments

Articles 233 to 237:-- Subordinate Courts include two classes of Courts.The District Courts presided by District Judges which expression shall includeAdditional as well as Assistant District Judges and Session Judges. The personsoccupying these posts are selected and appointed directly by the High Court.The other class of Courts are lower than the District Judge, i.e. the Court ofSubordinate Judge, Civil Judge and the Court of Magistrate. The personsoccupying these posts are appointed by the Government with the concurrenceof the High Court. The disciplinary jurisdiction for all these officers vests withthe High Court. It is only after the High Court concludes enquiry and awardspunishment the Government makes appropriate orders. In respect of all otherstaff of the Subordinate Courts, it is the District Judge who is both the appointingauthority as well as the disciplinary authority. This scheme is evolved to protectthe independence of judiciary. [High Court of Judicature in Bombay v. ShirishRanga Rao Patel, AIR 1997 SC 339]. It may be of interest here to note thatseparation of Magistrates from the control of the District Collector and makingthem subordinate to the District Court and the High Court, is achieved for thepurpose of preserving independence of Magistrates from the control of the DistrictCollector and Police.

As soon as Judicial Officer is arrested, the fact should be notified to theDistrict Judge concerned and the High Court. The police shall not keep himin police station. The police shall not record any statements from him or anypanchanama is held except before another Judicial Officer of equal rank. Thearrested Judicial Officer shall not be handcuffed nor he shall be produced beforethe public. Delhi Judicial Service Association, Tis Hazari Court, Delhi v. Stateof Gujarat, AIR 1991 SC 2176 = 1989 (2) Scale 748.

PART-VII

THE STATES IN PART B OF THE FIRST SCHEDULE238. Rep. by the Constitution (Seventh Amendment) Act, 1956, S.29

and Sch. w.e.f. 1-11-1956.PART-VIII

1[THE UNION TERRITORIES]2[239. Administration of Union territories:– (1) Save as otherwise

provided by Parliament by law, every Union territory shall be administeredby the President acting, to such extent as he thinks fit, through an administratorto be appointed by him with such designation as he may specify.

(2) Notwithstanding anything contained in Part VI, the President mayappoint the Governor of a State as the administrator of an adjoining Unionterritory, and where a Governor is so appointed, he shall exercise his functionsas such administrator independently of his Council of Ministers.

1. Subs. “THE STATES IN PART C OF THE FIRST SCHEDULE” by the Constitution(Seventh Amendment) Act, 1956 Section 17

2. Subs. by Constitution (Seventh Amendment) Act, 1956, Section 17.

Art. 239

165

1[239A. Creation of local Legislatures or Council of Ministersor both for certain Union territories:– (1) Parliament may by law createfor the Union territory of Puducherry–

(a) a body, whether elected or partly nominated and partly elected,to function as a Legislature for the Union territory, or

(b) a Council of Ministers,

or both with such constitution, powers and functions, in each case, as maybe specified in the law.

(2) Any such law as is referred to in clause (1) shall not be deemedto be an amendment of this Constitution for the purposes of Article 368notwithstanding that it contains any provision which amends or has the effectof amending this Constitution.]

2[239AA. Special provisions with respect to Delhi:– (1) As fromthe date of commencement of the Constitution (Sixty-ninth Amendment) Act,1991, the Union territory of Delhi shall be called the National Capital Territoryof Delhi (hereafter in this Part referred to as the National Capital Territory)and the administrator thereof appointed under Article 239 shall be designatedas the Lieutenant Governor.

(2)(a) There shall be a Legislative Assembly for the National CapitalTerritory and the seats in such Assembly shall be filled by memberschosen by direct election from territorial constituencies in the NationalCapital Territory.

(b) The total number of seats in the Legislative Assembly, the numberof seats reserved for Scheduled Castes, the division of the NationalCapital Territory into territorial constituencies (including the basisfor such division) and all other matters relating to the functioningof the Legislative Assembly shall be regulated by law made byParliament.

(c) The provisions of Articles 324 to 327 and 329 shall apply in relationto the National Capital Territory, Legislative Assembly of theNational Capital Territory and the members thereof as they apply,in relation to a State, the Legislative Assembly of a State and themembers thereof respectively; and any reference in Articles 326

1. Ins. by the Constitution (Fourteenth Amendment) Act, 1962, Section 4, w.e.f. 28-12-1962.

2. Ins. by the Constitution (Sixty-ninth Amendment) Act, 1991, Section 2, w.e.f. 1-2-1992.

The Union TerritoriesArt. 239AA


and 329 to “appropriate Legislature” shall be deemed to be areference to Parliament.

(3)(a) Subject to the provisions of this Constitution, the Legislative Assemblyshall have power to make laws for the whole or any part of theNational Capital Territory with respect to any of the mattersenumerated in the State List or in the Concurrent List in so faras any such matter is applicable to Union territories except matterswith respect to Entries 1, 2 and 18 of the State List and Entries64, 65 and 66 of that List in so far as they relate to the saidEntries 1, 2, and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers of Parliamentunder this Constitution to make laws with respect to any matterfor a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly withrespect to any matter is repugnant to any provision of a law madeby Parliament with respect to that matter, whether passed beforeor after the law made by the Legislative Assembly, or of an earlierlaw, other than a law made by the Legislative Assembly, then, ineither case, the law made by Parliament, or, as the case may be,such earlier law, shall prevail and the law made by the LegislativeAssembly shall, to the extent of the repugnancy, be void:

Provided that if any such law made by the Legislative Assembly hasbeen reserved for the consideration of the President and has received hisassent, such law shall prevail in the National Capital Territory:

Provided further that nothing in this sub-clause shall prevent Parliamentfrom enacting at any time any law with respect to the same matter includinga law adding to, amending, varying or repealing the law so made by theLegislative Assembly.

(4) There shall be a Council of Ministers consisting of not more thanten per cent of the total number of members in the Legislative Assembly,with the Chief Minister at the head to aid and advise the Lieutenant Governorin the exercise of his functions in relation to matters with respect to whichthe Legislative Assembly has power to make laws, except in so far as heis, by or under any law, required to act in his discretion:

Provided that in the case of difference of opinion between the LieutenantGovernor and his Ministers on any matter, the Lieutenant Governor shallrefer it to the President for decision and act according to the decision given

Art. 239AA

167

thereon by the President and pending such decision it shall be competentfor the Lieutenant Governor in any case where the matter, in his opinion,is so urgent that it is necessary for him to take immediate action, to takesuch action or to give such direction in the matter as he deems necessary.

(5) The Chief Minister shall be appointed by the President and theother Ministers shall be appointed by the President on the advice of theChief Minister and the Ministers shall hold office during the pleasure of thePresident.

(6) The Council of Ministers shall be collectively responsible to theLegislative Assembly.

(7)(a) Parliament may, by law, make provisions for giving effect to, orsupplementing the provisions contained in the foregoing clauses andfor all matters incidental or consequential thereto.

1[(b) Any such law as is referred to in sub-clause (a) shall not be deemedto be an amendment of this Constitution for the purposes of Article368 notwithstanding that it contains any provision which amendsor has the effect of amending, this Constitution.]

(8) The provisions of Article 239B shall, so far as may be, apply inrelation to the National Capital Territory, the Lieutenant Governor and theLegislative Assembly, as they apply in relation to the Union territory ofPondicherry, the administrator and its Legislature, respectively; and anyreference in that article to “clause (1) of Article 239A” shall be deemedto be a reference to this Article or Article 239AB, as the case may be.

239AB. Provision in case of failure of constitutional machinery:–If the President, on receipt of a report from the Lieutenant Governor orotherwise, is satisfied–

(a) that a situation has arisen in which the administration of the NationalCapital Territory cannot be carried on in accordance with theprovisions of Article 239AA or of any law made in pursuance ofthat Article; or

(b) that for the proper administration of the National Capital Territoryit is necessary or expedient so to do,

the President may by order suspend the operation of any provision ofArticle 239AA or of all or any of the provisions of any law made in pursuanceof that Article for such period and subject to such conditions as may be

1. Inserted by the Constitution (Seventieth Amendment) Act, 1992, Section 3, w.e.f.21-12-1991.

The Union TerritoriesArt. 239AB


specified in such law and make such incidental and consequential provisionsas may appear to him to be necessary or expedient for administering theNational Capital Territory in accordance with the provisions of Article 239and Article 239AA.]

1[239B. Power of administrator to promulgate Ordinances duringrecess of Legislature:– (1) If at any time, except when the Legislatureof the Union territory of Pondicherry is in session, the administrator thereofis satisfied that circumstances exist which render it necessary for him to takeimmediate action, he may promulgate such Ordinances as the circumstancesappear to him to require :

Provided that no such Ordinance shall be promulgated by the administratorexcept after obtaining instructions from the President in that behalf:

Provided further that whenever the said Legislature is dissolved, or itsfunctioning remains suspended on account of any action taken under anysuch law as is referred to in clause (1) of Article 239A, the administratorshall not promulgate any Ordinance during the period of such dissolutionor suspension.

(2) An Ordinance promulgated under this Article in pursuance ofinstructions from the President shall be deemed to be an Act of the Legislatureof the Union territory which has been duly enacted after complying with theprovisions in that behalf contained in any such law as is referred to in clause(1) of Article 239A, but every such Ordinance–

(a) shall be laid before the Legislature of the Union territory and shallcease to operate at the expiration of six weeks from the reassemblyof the Legislature or if, before the expiration of that period, aresolution disapproving it is passed by the Legislature, upon thepassing of the resolution; and

(b) may be withdrawn at any time by the administrator after obtaininginstructions from the President in that behalf.

(3) If and so far as an Ordinance under this Article makes any provisionwhich would not be valid if enacted in an Act of the Legislature of the Unionterritory made after complying with the provisions in that behalf containedin any such law as is referred to in clause (1) of article 239A, it shall bevoid.]

1. Inserted by the Constitution (Twenty-seventh Amendment) Act, 1971, Section 3, w.e.f.30-12-1971.

Art. 239B

169

240. Power of President to make regulations for certain Unionterritories:– (1) The President may make regulations for the peace, progressand good government of the Union territory of–

(a) the Andaman and Nicobar Islands;1[(b) Lakshadweep;]2[(c) Dadra and Nagar Haveli;]3[(d) Daman and Diu;]4[(e) Pondicherry:]5[xxx]6[xxx]7[Provided that when any body is created under Article 239A to function

as a Legislature for the 8[Union territory of 9[Pondicherry]], the Presidentshall not make any regulation for the peace, progress and good governmentof that Union territory with effect from the date appointed for the first meetingof the Legislature:]

10[Provided further that whenever the body functioning as a Legislaturefor the Union territory of 9[Pondicherry] is dissolved, or the functioning ofthat body as such Legislature remains suspended on account of any actiontaken under any such law as is referred to in clause (1) of Article 239A,the President may, during the period of such dissolution or suspension, makeregulations for the peace, progress and good government of that Unionterritory.]

1. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of name) Act, 1973),Section 4, w.e.f. 1-11-1973.

2. Ins. by the Constitution (Tenth Amendment) Act, 1961, Section 3.3. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), Section 63,

for entry (d), w.e.f. 30-5-1987.4. Ins. by the Constitution (Fourteenth Amendment) Act, 1962.5. The Entry(f) Omitted by the State of Mizoram Act, 1986 (34 of 1986), Section 39, w.e.f.

20-2-1987.6. The entry(g) omitted by the State of Arunachal Pradesh Act, 1986 (69 of 1986), Section

42, w.e.f. 20-2-1987.7. Ins. by the Constitution (Fourtheenth Amendment) Act, 1962 Section 5.8. Subs. by the Constitution (Twenth-seventh Amendment) Act, 1971, Section 4 for “Union

territory of Goa, Daman and Diu or Pondicherry” (w.e.f. 15-2-1972).9. Subs. by Goa, Damana and Diu Reorganisation Act, 1987 (18 of 1987), Section 63 for

“Goa, Daman and Diu or Pondicherry”, w.e.f. 30-5-1987.10. Ins. by the Constitution (Twenty-seventh Amendment) Act, 1971, Section 4, w.e.f.

15-2-1972.

The Union TerritoriesArt. 240


(2) Any regulation so made may repeal or amend any Act made byParliament or 1[any other law] which is for the time being applicable to theUnion territory and, when promulgated by the President, shall have the sameforce and effect as an Act of Parliament which applies to that territory.]

241. High Courts for Union territories:– (1) Parliament may by lawconstitute a High Court for a 2[Union territory] or declare any court in any2[such territory] to be a High Court for all or any of the purposes of thisConstitution.

(2) The provisions of Chapter V of Part VI shall apply in relation toevery High Court referred to in clause (1) as they apply in relation to aHigh Court referred to in Article 214 subject to such modifications orexceptions as Parliament may by law provide.

2[(3) Subject to the provisions of this Constitution and to the provisionsof any law of the appropriate Legislature made by virtue of powers conferredon that Legislature by or under this Constitution, every High Court exercisingjurisdiction immediately before the commencement of the Constitution (SeventhAmendment) Act, 1956, in relation to any Union territory shall continue toexercise such jurisdiction in relation to that territory after such commencement.

(4) Nothing in this Article derogates from the power of Parliament toextend or exclude the jurisdiction of a High Court for a State to, or from,any Union territory or part thereof.]

Caselaw

Caste Certificate remains valid until it is cancelled as per procedure. AIR2004 Mad. 256.

242. [Omitted]:– Rep. by the Constitution (Seventh Amendment)Act, 1956, Section 29 and Schedule.

Comments

Articles 239, 239-A, and 239-B, 240, 241 and 242:-- Union Territoriesare: (1) Delhi; (2) Andaman and Nicobar Islands; (3) Lakshadweep; (4) Dadraand Nagar Haveli; (5) Daman and Diu; (6) Pondicherry; and (7) Chandigarh.Administration of Union Territory is different from that of the States. They aredirectly administered by the President who may appoint Ministers. If the Parliament

1. Subs. “any existing law” by the Constitution (Twenty-seventh Amendment) Act, 1971,Section 4, w.e.f. 15-2-1972.

2. Subs. by the Constitution (Seventh Amendment) Act, 1956, Section 29.

Art. 242

171

so provides for creating a Legislative Assembly, then the Union Territory willhave an Assembly and Cabinet. The President administers the Union Territorythrough administrator instead of Governor. In the case of Pondicherry and Delhi(Delhi – since renamed as National Capital Territory) they have legislatures andadministrator called Lt. Governors. The powers of legislature cover all subjectsin the State List and Concurrent List except those which cover the subjectsof law and order. In the case of difference of opinion between the Cabinet andthe Lt. Governor, the matter is referred to the President and the decision ofthe President is final. Notwithstanding the reference, the Lt. Governor is competentto take all steps as may be necessary pending decision of the President exceptin the case of Pondicherry and Delhi. The administration in all other UnionTerritories is carried through regulations made by the President for peace, progressand good Government. The expression ‘peace, progress and good government’means and covers all Governmental functions including positive steps for economicand social welfare, as well as their protection and safety. Parliament may createa High Court for each Union Territory or extend the jurisdiction of the neighbouringHigh Court to the Union Territory. For example, the Union Territory of Delhihas an independent High Court for itself. The High Court of Calcutta holdsjurisdiction over Andamans. The status of the High Court of the Union Territoryis the same as that of any other High Court and the Judge of the High Courtof Union Territory can be elevated to the Supreme Court. [AIR 1991 AP 307].

1[PART-IX

THE PANCHAYATS

243. Definitions:– In this Part, unless the context otherwise requires,–

(a) “district” means a district in a State;

(b) “Gram Sabha” means a body consisting of persons registered inthe electoral rolls relating to a village comprised within the areaof Panchayat at the village level;

(c) “intermediate level” means a level between the village and districtlevels specified by the Governor of a State by public notificationto be the intermediate level for the purposes of this Part;

(d) “Panchayat” means an institution (by whatever name called) of self-government constituted under Article 243B, for the rural areas;

(e) “Panchayat area” means the territorial area of a Panchayat;

1. Part IX – Ins. by the Constitution (Seventy-third Amendment) Act, 1992, Section 2, w.e.f.1-6-1993.

The PanchayatsArt. 243


(f) “population” means the population as ascertained at the last precedingcensus of which the relevant figures have been published;

(g) “village” means a village specified by the Governor by publicnotification to be a village for the purposes of this Part and includesa group of villages so specified.

Caselaw

Contractors with local or statutory authorities are not barred from contestingelections. Srikant v. Vasantrao & Ors., AIR 2006 SC 918.

Voter can be summoned as witness in election petition. Privilege of a voternot to disclose to whom he had voted is not breached. He can refuse to answersuch question. Nayini Narasimha Reddy v. Dr. K. Laxman & Ors., AIR 2006SC 2050.

Dispute arising out of treaties with native States – Court’s interferenceis barred absolutely. Government’s decision is final. AIR 2004 SC 5270.

243A. Gram Sabha:– A Gram Sabha may exercise such powers andperform such functions at the village level as the Legislature of a State may,by law, provide.

243B. Constitution of Panchayats:– (1) There shall be constitutedin every State, Panchayats at the village, intermediate and district levels inaccordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediatelevel may not be constituted in a State having a population not exceedingtwenty lakhs.

243C. Composition of Panchayats:– (1) Subject to the provisionsof this Part, the Legislature of a State may, by law, make provisions withrespect to the composition of Panchayats:

Provided that the ratio between the population of the territorial areaof a Panchayat at any level and the number of seats in such Panchayat tobe filled by election shall, so far as practicable, be the same throughout theState.

(2) All the seats in a Panchayat shall be filled by persons chosen bydirect election from territorial constituencies in the Panchayat area and, forthis purpose, each Panchayat area shall be divided into territorial constituenciesin such manner that the ratio between the population of each constituencyand the number of seats allotted to it shall, so far as practicable, be thesame throughout the Panchayat area.

Art. 243C

173

(3) The Legislature of a State may, by law, provide for the representation–

(a) of the Chairpersons of the Panchayats at the village level, in thePanchayats at the intermediate level or, in the case of a State nothaving Panchayats at the intermediate level, in the Panchayats atthe district level;

(b) of the Chairpersons of the Panchayats at the intermediate level,in the Panchayats at the district level;

(c) of the members of the House of the People and the members ofthe Legislative Assembly of the State representing constituencieswhich comprise wholly or partly a Panchayat area at a level otherthan the village level, in such Panchayat;

(d) of the members of the Council of States and the members of theLegislative Council of the State, where they are registered aselectors within–

(i) a Panchayat area at the intermediate level, in Panchayat at theintermediate level;

(ii) a Panchayat area at the district level, in Panchayat at the districtlevel.

(4) The Chairperson of a Panchayat and other members of a Panchayatwhether or not chosen by direct election from territorial constituencies inthe Panchayat area shall have the right to vote in the meetings of thePanchayats.

(5) The Chairperson of–

(a) a Panchayat at the village level shall be elected in such manneras the Legislature of a State may, by law, provide; and

(b) a Panchayat at the intermediate level or district level shall be electedby, and from amongst, the elected members thereof.

243D. Reservation of seats:– (1) Seats shall be reserved for–

(a) the Scheduled Castes; and

(b) the Scheduled Tribes,

in every Panchayat and the number of seats so reserved shall bear,as nearly as may be, the same proportion to the total number of seats to

The PanchayatsArt. 243D


be filled by direct election in that Panchayat as the population of the ScheduledCastes in that Panchayat area or of the Scheduled Tribes in that Panchayatarea bears to the total population of that area and such seats may be allottedby rotation to different constituencies in a Panchayat.

(2) Not less than one-third of the total number of seats reserved underclause (1) shall be reserved for women belonging to the Scheduled Castesor, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved forwomen belonging to the Scheduled Castes and the Scheduled Tribes) ofthe total number of seats to be filled by direct election in every Panchayatshall be reserved for women and such seats may be allotted by rotationto different constituencies in a Panchayat.

(4) The offices of the Chairpersons in the Panchayats at the villageor any other level shall be reserved for the Scheduled Castes, the ScheduledTribes and women in such manner as the Legislature of a State may, bylaw, provide:

Provided that the number of offices of Chairpersons reserved for theScheduled Castes and the Scheduled Tribes in the Panchayats at each levelin any State shall bear, as nearly as may be, the same proportion to thetotal number of such offices in the Panchayats at each level as the populationof the Scheduled Castes in the State or of the Scheduled Tribes in the Statebears to the total population of the State:

Provided further that not less than one-third of the total number of officesof Chairpersons in the Panchayats at each level shall be reserved for women:

Provided also that the number of offices reserved under this clause shallbe allotted by rotation to different Panchayats at each level.

(5) The reservation of seats under clauses (1) and (2) and the reservationof offices of Chairpersons (other than the reservation for women) under clause(4) shall cease to have effect on the expiration of the period specified inArticle 334.

(6) Nothing in this Part shall prevent the Legislature of a State frommaking any provision for reservation of seats in any Panchayat or officesof Chairpersons in the Panchayats at any level in favour of backward classof citizens.

Art. 243D

175

243E. Duration of Panchayats, etc.:– (1) Every Panchayat, unlesssooner dissolved under any law for the time being in force, shall continuefor five years from the date appointed for its first meeting and no longer.

(2) No amendment of any law for the time being in force shall havethe effect of causing dissolution of a Panchayat at any level, which isfunctioning immediately before such amendment, till the expiration of itsduration specified in clause (1).

(3) An election to constitute a Panchayat shall be completed–

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date ofits dissolution:

Provided that where the remainder of the period for which the dissolvedPanchayat would have continued is less than six months, it shall not benecessary to hold any election under this clause for constituting the Panchayatfor such period.

(4) A Panchayat constituted upon the dissolution of a Panchayat beforethe expiration of its duration shall continue only for the remainder of theperiod for which the dissolved Panchayat would have continued under clause(1) had it not been so dissolved.

243F. Disqualifications for membership:– (1) A person shall bedisqualified for being chosen as, and for being, a member of a Panchayat–

(a) if he is so disqualified by or under any law for the time being inforce for the purposes of elections to the Legislature of the Stateconcerned:

Provided that no person shall be disqualified on the ground thathe is less than twenty-five years of age, if he has attained the ageof twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislatureof the State.

(2) If any question arises as to whether a member of a Panchayat hasbecome subject to any of the disqualifications mentioned in clause (1), thequestion shall be referred for the decision of such authority and in such manneras the Legislature of a State may, by law, provide.

The PanchayatsArt. 243F


Caselaw

An employee of the Government controlled company cannot be said to

be holding an office of profit since he is neither appointed nor directly paid

his salary, nor is he bound by any disciplinary jurisdiction of the Central

Government. Jai Singh Yadav v. Additional District Judge, Allahabad & Ors.,AIR 2007 All 165.

243G. Powers, authority and responsibilities of Panchayats:– Subjectto the provisions of this Constitution, the Legislature of a State may, bylaw, endow the Panchayats with such powers and authority as may benecessary to enable them to function as institutions of self-government andsuch law may contain provisions for the devolution of powers and responsibilitiesupon Panchayats, at the appropriate level, subject to such conditions as maybe specified therein, with respect to–

(a) the preparation of plans for economic development and socialjustice;

(b) the implementation of schemes for economic development and socialjustice as may be entrusted to them including those in relation tothe matters listed in the Eleventh Schedule.

243H. Powers to impose taxes by, and Funds of, the Panchayats:–The Legislature of a State may, by law,–

(a) authorise a Panchayat to levy, collect and appropriate such taxes,duties, tolls and fees in accordance with such procedure and subjectto such limits;

(b) assign to a Panchayat such taxes, duties, tolls and fees levied andcollected by the State Government for such purposes and subjectto such conditions and limits;

(c) provide for making such grants-in-aid to the Panchayats from theConsolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneysreceived, respectively, by or on behalf of the Panchayats and alsofor the withdrawal of such moneys therefrom,

as may be specified in the law.

Art. 243H

177

243-I. Constitution of Finance Commission to review financialposition:– (1) The Governor of a State shall, as soon as may be withinone year from the commencement of the Constitution (Seventy-thirdAmendment) Act, 1992*, and thereafter at the expiration of every fifth year,constitute a Finance Commission to review the financial position of thePanchayats and to make recommendations to the Governor as to–

(a) the principles which should govern–

(i) the distribution between the State and the Panchayats of the netproceeds of the taxes, duties, tolls and fees leviable by the State,which may be divided between them under this Part and theallocation between the Panchayats at all levels of their respectiveshares of such proceeds;

(ii) the determination of the taxes, duties, tolls and fees which maybe assigned to, or appropriated by, the Panchayats;

(iii) the grants-in-aid to the Panchayats from the Consolidated Fundof the State;

(b) the measures needed to improve the financial position of thePanchayats;

(c) any other matter referred to the Finance Commission by theGovernor in the interests of sound finance of the Panchayats.

(2) The Legislature of a State may, by law, provide for the compositionof the Commission, the qualifications which shall be requisite for appointmentas members thereof and the manner in which they shall be selected.

(3) The Commission shall determine their procedure and shall have suchpowers in the performance of their functions as the Legislature of the Statemay, by law, confer on them.

(4) The Governor shall cause every recommendation made by theCommission under this Article togetherwith an explanatory memorandum asto the action taken thereon to be laid before the Legislature of the State.

243J. Audit of accounts of Panchayats:– The Legislature of a Statemay, by law, make provisions with respect to the maintenance of accountsby the Panchayats and the auditing of such accounts.

243K. Elections to the Panchayats:– (1) The superintendence, directionand control of the preparation of electoral rolls for, and the conduct of,

The PanchayatsArt. 243K

CONST-12

1. 24-4-1993.


all elections to the Panchayats shall be vested in a State Election Commissionconsisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature ofa State, the conditions of service and tenure of office of the State ElectionCommissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removedfrom his office except in like manner and on the like grounds as a Judgeof a High Court and the conditions of service of the State Election Commissionershall not be varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the StateElection Commission, make available to the State Election Commission suchstaff as may be necessary for the discharge of the functions conferred onthe State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of aState may, by law, make provision with respect to all matters relating to,or in connection with, elections to the Panchayats.

243L. Application to Union territories:– The provisions of this Partshall apply to the Union territories and shall, in their application to a Unionterritory, have effect as if the references to the Governor of a State werereferences to the Administrator of the Union territory appointed under Article239 and references to the Legislature or the Legislative Assembly of a Statewere references, in relation to a Union territory having a Legislative Assembly,to that Legislative Assembly:

Provided that the President may, by public notification, direct that theprovisions of this Part shall apply to any Union territory or part thereof subjectto such exceptions and modifications as he may specify in the notification.

243M. Part not to apply to certain areas:– (1) Nothing in this Partshall apply to the Scheduled Areas referred to in clause (1), and the tribalareas referred to in clause (2), of Article 244.

(2) Nothing in this Part shall apply to–

(a) the States of Nagaland, Meghalaya and Mizoram;

(b) the Hill areas in the State of Manipur for which District Councilsexist under any law for the time being in force.

(3) Nothing in this Part–

Art. 243M

179

(a) relating to Panchayats at the district level shall apply to the Hillareas of the District of Darjeeling in the State of West Bengal forwhich Darjeeling Gorkha Hill Council exists under any law for thetime being in force;

(b) shall be construed to affect the functions and powers of theDarjeeling Gorkha Hill Council constituted under such law.

1[(3A) Nothing in Article 243D, relating to reservation of seats for theScheduled Castes, shall apply to the State of Arunachal Pradesh].

(4) Notwithstanding anything in this Constitution,–

(a) the Legislature of a State referred to in sub-clause (a) of clause(2) may, by law, extend this Part to that State, except the areas,if any, referred to in clause (1), if the Legislative Assembly of thatState passes a resolution to that effect by a majority of the totalmembership of that House and by a majority of not less than two-thirds of the members of that House present and voting;

(b) Parliament may, by law, extend the provisions of this Part to theScheduled Areas and the tribal areas referred to in clause (1)subject to such exceptions and modifications as may be specifiedin such law, and no such law shall be deemed to be an amendmentof this Constitution for the purposes of Article 368.

243N. Continuance of existing laws and Panchayats:–Notwithstanding anything in this Part, any provision of any law relating toPanchayats in force in a State immediately before the commencement of theConstitution (Seventy-third Amendment) Act, 1992*, which is inconsistentwith the provisions of this Part, shall continue to be in force until amendedor repealed by a competent Legislature or other competent authority or untilthe expiration of one year from such commencement, whichever is earlier:

Provided that all the Panchayats existing immediately before suchcommencement shall continue till the expiration of their duration, unless soonerdissolved by a resolution passed to that effect by the Legislative Assemblyof that State or, in the case of a State having a Legislative Council, byeach House of the Legislature of that State.

1. Ins. by the Constitution (Eighty-third Amendment) Act, 2000, Sec. 2, w.e.f. 8-9-2000.

*. 24-3-1993.

The PanchayatsArt. 243N


243-O. Bar to interference by courts in electoral matters:–Notwithstanding anything in this Constitution,–

(a) the validity of any law relating to the delimitation of constituenciesor the allotment of seats to such constituencies, made or purportingto be made under article 243K, shall not be called in questionin any court;

(b) no election to any Panchayat shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any law made by theLegislature of a State.]

Caselaw

Bar of jurisdiction of Civil Courts means jurisdictional bar against lowerjudiciary including District Court. Smt. Erlapati Veera Lakshmi v. Guda HaritaRani, AIR 2009 (NOC) 528 (A.P.)

Where objection to election are filed before the election is conducted andif the person objecting to is elected uncontested, objections do not survive. PandyaMahendrakumar Ambalal v. Election Officer Ambaji Gram Panchayat & Ors.,AIR 2007 Guj. 171.

Election for Panchayat cannot be questioned after the election processstarted. Vinod Natha Bhagat v. Returning Officer, Nimdari, AIR 2005Bom. 402.

1[PART-IXA

THE MUNICIPALITIES

243P. Definitions:– In this Part, unless the context otherwise requires,–

(a) “Committee” means a Committee constituted under Article 243S;

(b) “district” means a district in a State;

(c) “Metropolitan area” means an area having a population of ten lakhsor more, comprised in one or more districts and consisting of twoor more Municipalities or Panchayats or other contiguous areas,specified by the Governor by public notification to be a Metropolitanarea for the purposes of this Part;

(d) “Municipal area” means the territorial area of a Municipality as isnotified by the Governor;

1. Ins. by the Constitution (Seventy-fourth Amendment) Act, 1992, w.e.f. 1-6-1993.

Art. 243P

181

(e) “Municipality” means an institution of self-government constitutedunder Article 243Q;

(f) “Panchayat” means a Panchayat constituted under Article 243B;

(g) “population” means the population as ascertained at the last precedingcensus of which the relevant figures have been published.

243Q. Constitution of Municipalities:– (1) There shall be constitutedin every State,–

(a) a Nagar Panchayat (by whatever name callled) for a transitionalarea, that is to say, an area in transition from a rural area to anurban area;

(b) a Municipal Council for a smaller urban area; and

(c) a Municipal Corporation for a larger urban area,

in accordance with the provisions of this Part:

Provided that a Municipality under this clause may not be constitutedin such urban area or part thereof as the Governor may, having regard tothe size of the area and the municipal services being provided or proposedto be provided by an industrial establishment in that area and such otherfactors as he may deem fit, by public notification, specify to be an industrialtownship.

(2) In this Article, “a transitional area”, “a smaller urban area” or “alarger urban area” means such area as the Governor may, having regardto the population of the area, the density of the population therein, the revenuegenerated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as hemay deem fit, specify by public notification for the purposes of this Part.

Caselaw

Delinking of urban areas to treat them as rural areas is not valid underKerala Municipalities Act. K.P. Raveendran and another v. State of Kerala andothers, AIR 2005 Ker. 319.

Conversion of Municipality into Municipal Corporation and MunicipalCorporation into Metro depends on the population in urban areas. 2003 AIRSCW 1061.

Exclusion of industrial area from Panchayat is valid. Saij Gram Panchayatv. State of Gujarat and others, AIR 1999 SC 826.

The MunicipalitiesArt. 243Q


243R. Composition of Municipalities:– (1) Save as provided inclause (2), all the seats in a Municipality shall be filled by persons chosenby direct election from the territorial constituencies in the Municipal area andfor this purpose each Municipal area shall be divided into territorial constituenciesto be known as wards.

(2) The Legislature of a State may, by law, provide–

(a) for the representation in a Municipality of–

(i) persons having special knowledge or experience in Municipaladministration;

(ii) the members of the House of the People and the members of theLegislative Assembly of the State representing constituencies whichcomprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of theLegislative Council of the State registered as electors within theMunicipal area;

(iv) the Chairpersons of the Committees constituted under clause (5)of Article 243S:

Provided that the persons referred to in paragraph (i) shall not havethe right to vote in the meetings of the Municipality;

(b) the manner of election of the Chairperson of a Municipality.

243S. Constitution and composition of Wards Committees, etc.:–(1) There shall be constituted Wards Committees, consisting of one or morewards, within the territorial area of a Municipality having a population ofthree lakhs or more.

(2) The Legislature of a State may, by law, make provision with respectto–

(a) the composition and the territorial area of a Wards Committee;

(b) the manner in which the seats in a Wards Committee shall be filled.

(3) A member of a Municipality representing a ward within the territorialarea of the Wards Committee shall be a member of that Committee.

Art. 243S

183

(4) Where a Wards Committee consists of–

(a) one ward, the member representing that ward in the Municipality;or

(b) two or more wards, one of the members representing such wardsin the Municipality elected by the members of the Wards Committee,

shall be the Chairperson of that Committee.

(5) Nothing in this Article shall be deemed to prevent the Legislatureof a State from making any provision for the constitution of Committeesin addition to the Wards Committees.

243T. Reservation of seats:– (1) Seats shall be reserved for theScheduled Castes and the Scheduled Tribes in every Municipality and thenumber of seats so reserved shall bear, as nearly as may be, the sameproportion to the total number of seats to be filled by direct election in thatMunicipality as the population of the Scheduled Castes in the Municipal areaor of the Scheduled Tribes in the Municipal area bears to the total populationof that area and such seats may be allotted by rotation to different constituenciesin a Municipality.

(2) Not less than one-third of the total number of seats reserved underclause (1) shall be reserved for women belonging to the Scheduled Castesor, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved forwomen belonging to the Scheduled Castes and the Scheduled Tribes) ofthe total number of seats to be filled by direct election in every Municipalityshall be reserved for women and such seats may be allotted by rotationto different constituencies in a Municipality.

(4) The offices of Chairpersons in the Municipalities shall be reservedfor the Scheduled Castes, the Scheduled Tribes and women in such manneras the Legislature of a State may, by law, provide.

(5) The reservation of seats under clauses (1) and (2) and the reservationof offices of Chairpersons (other than the reservation for women) under clause(4) shall cease to have effect on the expiration of the period specified inArticle 334.

The MunicipalitiesArt. 243T


(6) Nothing in this Part shall prevent the Legislature of a State frommaking any provision for reservation of seats in any Municipality or officesof Chairpersons in the Municipalities in favour of backward class of citizens.

243U. Duration of Municipalities, etc.:– (1) Every Municipality,unless sooner dissolved under any law for the time being in force, shallcontinue for five years from the date appointed for its first meeting and nolonger:

Provided that a Municipality, shall be given a reasonable opportunityof being heard before its dissolution.

(2) No amendment of any law for the time being in force shall havethe effect of causing dissolution of a Municipality at any level, which isfunctioning immediately before such amendment, till the expiration of itsduration specified in clause (1).

(3) An election to constitute a Municipality shall be completed,–

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date ofits dissolution:

Provided that where the remainder of the period for which the dissolvedMunicipality would have continued is less than six months, it shall not benecessary to hold any election under this clause for constituting the Municipalityfor such period.

(4) A Municipality constituted upon the dissolution of a Municipalitybefore the expiration of its duration shall continue only for the remainderof the period for which the dissolved Municipality would have continued underclause (1) had it not been so dissolved.

Caselaw

The powers of State Election Commission are same as the Election Commissionof India. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad& Ors., AIR 2007 SC 269.

Opportunity to show cause and opportunity of hearing both should be givenbefore action is taken for dissolution of municipality. AIR 2000 Ori. 190.

Art. 243U

185

243V. Disqualifications for membership:– (1) A person shall bedisqualified for being chosen as, and for being, a member of a Municipality–

(a) if he is so disqualified by or under any law for the time being inforce for the purposes of elections to the Legislature of the Stateconcerned:

Provided that no person shall be disqualified on the ground thathe is less than twenty-five years of age, if he has attained the ageof twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislatureof the State.

(2) If any question arises as to whether a member of a Municipalityhas become subject to any of the disqualifications mentioned in clause (1),the question shall be referred for the decision of such authority and in suchmanner as the Legislature of a State may, by law, provide.

243W. Powers, authority and responsibilities of Municipalities,etc.:– Subject to the provisions of this Constitution, the Legislature of aState may, by law, endow–

(a) the Municipalities with such powers and authority as may benecessary to enable them to function as institutions of self-governmentand such law may contain provisions for the devolution of powersand responsibilities upon Municipalities, subject to such conditionsas may be specified therein, with respect to–

(i) the preparation of plans for economic development and socialjustice;

(ii) the performance of functions and the implementation of schemesas may be entrusted to them including those in relation to the matterslisted in the Twelfth Schedule;

(b) the Committees with such powers and authority as may be necessaryto enable them to carry out the responsibilities conferred upon themincluding those in relation to the matters listed in the TwelfthSchedule.

The MunicipalitiesArt. 243W


Caselaw

It enables the State to make appropriate laws or the existing laws up-to-date. Shanti G. Patel & Ors. v. State of Maharashtra & Ors., AIR 2006 SC1104.

243X. Power to impose taxes by, and Funds of, the Municipilities:–The Legislature of a State may, by law,–

(a) authorise a Municipality to levy, collect and appropriate such taxes,duties, tolls and fees in accordance with such procedure and subjectto such limits;

(b) assign to a Municipality such taxes, duties, tolls and fees leviedand collected by the State Government for such purposes andsubject to such conditions and limits;

(c) provide for making such grants-in-aid to the Municipalities fromthe Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneysreceived, respectively, by or on behalf of the Municipalities andalso for the withdrawal of such moneys therefrom,

as may be specified in the Law.

Caselaw

Municipalities can be authorised to levy and collect tax as provided andnot on their discretion. Anil Kumar Gulati and others etc. v. State of M.P.and others etc., AIR 2004 MP 182.

243Y. Finance Commission:– (1) The Finance Commission constitutedunder Article 243-I shall also review the financial position of the Municipalitiesand make recommendations to the Governor as to–

(a) the principles which should govern–

(i) the distribution between the State and the Municipalities of the netproceeds of the taxes, duties, tolls and fees leviable by the State,which may be divided between them under this Part and theallocation between the Municipalities at all levels of their respectiveshares of such proceeds;

(ii) the determination of the taxes, duties, tolls and fees which maybe assigned to, or appropriated by, the Municipalities;

Art. 243Y

187

(iii) the grants-in-aid to the Municipalities from the Consolidated Fundof the State;

(b) the measures needed to improve the financial position of theMunicipalities;

(c) any other matter referred to the Finance Commission by theGovernor in the interests of sound finance of the Municipalities.

(2) The Governor shall cause every recommendation made by theCommission under this Article togetherwith an explanatory memorandum asto the action taken theron to be laid before the Legislature of the State.

243Z. Audit of accounts of Municipalities:– The Legislature of aState may, by law, make provisions with respect to the maintenance ofaccounts by the Municipalities and the auditing of such accounts.

Caselaw

“No longer” means to cease to survive. AIR 2001 Pat. 112.

243ZA. Elections to the Municipalities:– (1) The superintendence,direction and control of the preparation of electoral rolls for, and the conductof, all elections to the Municipalities shall be vested in the State ElectionCommission referred to in Article 243K.

(2) Subject to the provisions of this Constitution, the Legislature of aState may, by law, make provision with respect to all matters relating to,or in connection with, elections to the Municipalities.

Caselaw

Power to direct re-polling shall not be exercised arbitrarily or without anymaterial brought on record. All India Anna Dravida Munnetra Kazhagam v. StateElection Commissioner & Ors., AIR 2007 (NOC) 1801 (Mad.).

243ZB. Application to Union territories:– The provisions of this Partshall apply to the Union territories and shall, in their application to a Unionterritory, have effect as if the references to the Governor of a State werereferences to the Administrator of the Union territory appointed under Article239 and references to the Legislature or the Legislative Assembly of a Statewere references in relation to a Union territory having a Legislative Assembly,to that Legislative Assembly:

Provided that the President may, by public notification, direct that theprovisions of this Part shall apply to any Union territory or part thereof subjectto such exceptions and modifications as he may specify in the notification.

The MunicipalitiesArt. 243ZB


243ZC. Part not to apply to certain areas:– (1) Nothing in this Partshall apply to the Scheduled Areas referred to in clause (1), and the tribalareas referred to in clause (2), of Article 244.

(2) Nothing in this Part shall be construed to affect the functions andpowers of the Darjeeling Gorkha Hill Council constituted under any law forthe time being in force for the Hill areas of the district of Darjeeling in theState of West Bengal.

(3) Notwithstanding anything in this Constitution, Parliament may, bylaw, extend the provisions of this Part to the Scheduled Areas and the TribalAreas referred to in clause (1) subject to such exceptions and modificationsas may be specified in such law, and no such law shall be deemed to bean amendment of this Constitution for the purposes of Article 368.

243ZD. Committee for district planning:– (1) There shall be constitutedin every State at the district level a District Planning Committee to consolidatethe plans prepared by the Panchayats and the Municipalities in the districtand to prepare a draft development plan for the district as a whole.


(a) the composition of the District Planning Committees;

(b) the manner in which the seats in such Committees shall be filled:

Provided that not less than four-fifths of the total number of membersof such Committee shall be elected by, and from amongst, the electedmembers of the Panchayat at the district level and of the Municipalities inthe district in proportion to the ratio between the population of the ruralareas and of the urban areas in the district;

(c) the functions relating to district planning which may be assignedto such Committees;

(d) the manner in which the Chairpersons of such Committees shallbe chosen.

(3) Every District Planning Committee shall, in preparing the draftdevelopment plan,–

(a) have regard to–

(i) matters of common interest between the Panchayats and theMunicipalities including spatial planning, sharing of water and other

Art. 243ZD

189

physical and natural resources, the integrated development ofinfrastructure and environmental conservation;

(ii) the extent and type of available resources whether financial orotherwise;

(b) consult such institutions and organisations as the Governor may,by order, specify.

(4) The Chairperson of every District Planning Committee shall forwardthe development plan, as recommended by such Committee, to the Governmentof the State.

243ZE. Committee for Metropolitan planning:– (1) There shall beconstituted in every Metropolitan area a Metropolitan Planning Committeeto prepare a draft development plan for the Metropolitan area as a whole.


(a) the composition of the Metropolitan Planning Committees;

(b) the manner in which the seats in such Committees shall be filled:

Provided that not less than two-thirds of the members of suchCommittee shall be elected by, and from amongst, the electedmembers of the Municipalities and Chairpersons of the Panchayatsin the Metropolitan area in proportion to the ratio between thepopulation of the Municipalities and of the Panchayats in that area;

(c) the representation, in such Committees of the Government of Indiaand the Government of the State and of such organisations andinstitutions as may be deemed necessary for carrying out thefunctions assigned to such Committees;

(d) the functions relating to planning and coordination for the Metropolitanarea which may be assigned to such Committees;

(e) the manner in which the Chairpersons of such Committees shallbe chosen.

(3) Every Metropolitan Planning Committee shall, in preparing the draftdevelopment plan,–

(a) have regard to–

(i) the plans prepared by the Municipalities and the Panchayats in theMetropolitan area;

The MunicipalitiesArt. 243ZE


(ii) matters of common interest between the Municipalities and thePanchayats, including coordinated spatial planning of the area,sharing of water and other physical and natural resources, theintegrated development of infrastructure and environmentalconservation;

(iii) the overall objectives and priorities set by the Government of Indiaand the Government of the State;

(iv) the extent and nature of investments likely to be made in theMetropolitan area by agencies of the Government of India and ofthe Government of the State and other available resources whetherfinancial or otherwise;

(b) consult such institutions and organisations as the Governor may,by order, specify.

(4) The Chairperson of every Metropolitan Planning Committee shallforward the development plan, as recommended by such Committee, to theGovernment of the State.

Comments

Articles 243, 243-A to 243Z(E) – Gram Panchayats and Municipalities:-Panchayat Raj is the term used to denote a political system applicable to villagepanchayats and municipalities to govern themselves. Since it has to be essentiallydemocratic, the entire village is declared as the Parliament of the Village in whichall voters are members. It is something like a general body of the village. Thevillagers vote for their executive committee which is called Gram Panchayat.The minimum age to be a member of the Panchayat is 21 years. In the electionsto be held for gram panchayat seats are reserved for Scheduled Tribes andScheduled Castes and also for women. There is a sub-classification for womento be reserved for S.Ts. and S.T. women. There is similar reservation for MandalPanchayats and Zilla Panchayats for S.Cs. and S.Ts. and also for women. Whena seat for Mandal Panchayat is reserved for S.C., it is only the S.C. womanwho is elected to the reserved seat in the Gram Panchayat can compete. Itmeans when Zilla Panchayat President seat is reserved for S.C. woman, it isonly that S.C. woman who was elected to the Gram Panchayat and MandalPanchayat in the reserved quota who can compete and not any S.C. womanwho is not so selected in the reserved quota. The powers and functions ofthe Gram Panchayat are those allotted by the State Legislatures. Gram Panchayatcan have power to levy taxes. It has power to prepare and approve plans forthe development of the village and incur the expenditure required therefor. The

Art. 243ZE

191

State Government appoints a Finance Commission every five years to studythe financial condition of the Panchayats and recommends measure in regardto their finances and for improving their condition. Gram Panchayat shall meetat least once in a year and can meet as often as possible. In the context ofthe Rural Employment Guarantee Scheme the Gram Panchayats are now meetingvery frequently.

The members of the Gram Panchayat who are directly elected, elect themembers of the Mandal Panchayat and the members of the Mandal Panchayatelect the members of Zilla Panchayat. Schemes framed by the Village Panchayats– if they cover more than one village are implemented by the village panchayatsand mandal panchayats. Schemes prepared by the Mandal Panchayats – if theycover more than one Mandal Panchayat are implemented by the Village Panchayatsconcerned, Mandal Panchayats and Zilla Panchayats. The scheme made by theZilla Panchayats are implemented by the Zilla Panchayats with the cooperationof the Mandal and Village Panchayats. As per the Constitution the subjects whichshall be allotted by the State Government to Village Panchayats are specifiedand the States are slowly making the subjects devolve on the Panchayats. Thereis now a controversy raising in all the States that the State Governments arevery lethargic in devolving powers on the Gram Panchayats.

Electoral rolls of the Gram Panchayats shall be updated as on 1st Januaryof the year of election. The reservation of seats for S.Cs. and S.Ts. shall beby constituency-wise where S.C., S.T. population have the maximum numberof voters. Seats shall be reserved on the basis of population only and it cannotbe made by lottery. Superintendence, direction and control of the election shallvest with the State Election Commission. The delimitation of constituency withinthe Panchayats or the election of any candidate cannot be questioned in anyCourt except by Election Petition. [B. Krishnaiah v. State Election Commissionof A.P., AIR 1996 AP 1595]. The life of the Gram Panchayat is five years.If for any reason the Panchayat is dissolved, the re-election shall take placewithin six months and if such six months period falls within the period whenthe general elections fall due, there is no need to conduct any election. Panchayatsat village level, panchayats at intermediate level and panchayats at district levelare different from the municipalities, town area committees and cantonments inurban areas. The law applicable to municipalities is set out in Part IX-A, Articles243-P to 243-Z(F).

All over India and in almost all the States there exist laws governing theconstitution of Panchayats and Municipalities detailing their duties and responsibilities.What the provisions contain in Articles 243 and 243-A to 243-Z(F) require is

The MunicipalitiesArt. 243ZE


that those laws must be updated to accord with the principles laid down inthe Constitution with direction to the State Government to transfer them thesubjects specified in XIth and XIIth Schedule.

243ZF. Continuance of existing laws and Municipalities:–Notwithstanding anything in this Part, any provision of any law relating toMunicipalities in force in a State immediately before the commencement ofthe Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistentwith the provisions of this Part, shall continue to be in force until amendedor repealed by a competent Legislature or other competent authority or untilthe expiration of one year from such commencement, whichever is earlier:

Provided that all the Municipalities existing immediately before suchcommencement shall continue till the expiration of their duration, unless soonerdissolved by a resolution passed to that effect by the Legislative Assemblyof that State or, in the case of a State having a Legislative Council, byeach House of the Legislature of that State.

243ZG. Bar to interference by courts in electoral matters:–Notwithstanding anything in this Constitution,–

(a) the validity of any law relating to the delimitation of constituenciesor the allotment of seats to such constituencies, made or purportingto be made under Article 243ZA shall not be called in questionin any court;

(b) no election to any Municipality shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any law made by theLegislature of a State.]

Caselaw

Fixing of number of members, allocation of wards reserved and their rotationcannot be questioned in Court. Baldev Raj v. State of Punjab & Ors., AIR2009 (NOC) 426 (P&H).

If Caste Certificate is found to be invalid subsequent to election, the electionmust be set aside. Sujit Vasant Patil v. State of Maharashtra and others, AIR2005 Bom. 1.

Improper allotment of election symbol – No writ lies. Krishna Vishnu v.State Election Commissioner, Secunderabad and others, AIR 2000 A.P. 274.

Art. 243ZG

193The Scheduled and Tribal Areas

PART-X

THE SCHEDULED AND TRIBAL AREAS

244. Administration of Scheduled Areas and Tribal Areas:–(1) The provisions of the Fifth Schedule shall apply to the administrationand control of the Scheduled Areas and Scheduled Tribes in any State otherthan the States of Assam Meghalaya, Tripura and Mizoram.

(2) The provisions of the Sixth Schedule shall apply to the administrationof the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.1

2[244A. Formation of an autonomous State comprising certaintribal areas in Assam and creation of local Legislature or Council ofMinisters or both therefor:– (1) Notwithstanding anything in this Constitution,Parliament may, by law, form within the State of Assam an autonomousState comprising (whether wholly or in part) all or any of the tribal areasspecified in 3[Part I] of the table appended to paragraph 20 of the SixthSchedule and create therefor–

(a) a body, whether elected or partly nominated and partly elected,to function as a Legislature for the autonomous State, or

(b) a Council of Ministers,

or both with such constitution, powers and functions, in each case,as may be specified in the law.

(2) Any such law as is referred to in clause (1) may, in particular,–

(a) specify the matters enumerated in the State List or the ConcurrentList with respect to which the Legislature of the autonomous Stateshall have power to make laws for the whole or any part thereof,whether to the exclusion of the Legislature of the State of Assamor otherwise;

(b) define the matters with respect to which the executive power ofthe autonomous State shall extend;

1. Subs. by the State of Mizoram Act, 1986 (34 of 1986), Sec.39, for “Meghalaya andTripura”, w.e.f. 20-2-1987.

2. Inserted by the Constitution (Twenty-second Amendment) Act, 1969, Section 2, w.e.f.25-9-1969.

3. Subs. by the North Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), Section 71,w.e.f. 21-1-1972.

Art. 244A

CONST-13


(c) provide that any tax levied by the State of Assam shall be assignedto the autonomous State in so far as the proceeds thereof areattributable to the autonomous State;

(d) provide that any reference to a State in any Article of this Constitutionshall be construed as including a reference to the autonomous State;and

(e) make such supplemental, incidental and consequential provisions asmay be deemed necessary.

(3) An amendment of any such law as aforesaid in so far as suchamendment relates to any of the matters specified in sub-clause (a) or sub-clause (b) of clause (2) shall have no effect unless the amendment is passedin each House of Parliament by not less than two-thirds of the memberspresent and voting.

(4) Any such law as is referred to in this Article shall not be deemedto be an amendment of this Constitution for the purposes of Article 368notwithstanding that it contains any provision which amends or has the effectof amending this Constitution.]

Comments

Articles 244 to 244A:-- The administration in the areas which are declaredby the President as scheduled areas and areas which are called tribal areas, isdifferent from that which prevail in the States. Scheduled areas are forest andhill areas where tribal communities live and tribal areas are places where tribalspredominate. Protection of tribals is a special responsibility of the President.President declares certain areas within the States as scheduled areas and declarescertain areas as tribal areas within the States such as Assam, Meghalaya, Tripuraand Mizoram where tribal population predominates. The administration of thescheduled areas within the State is carried on by the Governor on behalf ofthe President by issuing regulations in consultation with the Advisory Committeesset up for the scheduled areas. The Governor in his turn promulgates regulationsafter obtaining the consent of the President. The regulations of the Governormay cover in general the provisions for peace and good government and inparticular the subjects relating to transfers of land and money lending so as toavoid exploitation of tribals by non-tribals. The Governor may, by regulationspecify the applicability of any State or Central legislations to the tribals andspecify also such matters which do not apply to them. That is why all thelaws made by the Parliament and State legislations will in the first instance apply

Art. 244A

195

to scheduled areas within the State and it is only when the Governor excludestheir applicability the same to the extent of exclusion will not apply to scheduledareas.

In the case of tribal areas declared as such and located within the Assam,Meghalaya, Tripura and Mizoram, some special administrative machinery is devisedto make them autonomous and self-governing by creating District Councils andRegional Councils which are partly elected and partly nominated. The Chairmanof the Regional Council is equated to the Minister and he directly deals withthe Governor holding independent charge.

PART-XI

RELATIONS BETWEEN THE UNION AND THE STATES

CHAPTER I – LEGISLATIVE RELATIONS

Distribution of Legislative Powers

245. Extent of laws made by Parliament and by the Legislaturesof States:– (1) Subject to the provisions of this Constitution, Parliamentmay make laws for the whole or any part of the territory of India, andthe Legislature of a State may make laws for the whole or any part of theState.

(2) No law made by Parliament shall be deemed to be invalid on theground that it would have extra-territorial operation.

Caselaw

Guidelines issued to Government are not statutory. They are advisory innature. Poonam Varma Bai & others v. Delhi Development Authority, AIR 2008SC 870.

No authority can dictate the Parliament to enact a law. Union of Indiav. Prakash Hinduja.

Legislature can alter law retrospectively only by removing the very premiseon which the earlier judgment is based. State of Bihar & Ors. v. Bihar PensionersSamaj, AIR 2006 SC 2100.

Bar on interference by Courts in electoral matters cannot be treated asan absolute. Interference however is permissible in exceptional circumstances evenbefore completion of election process. All India Anna Dravida Munnetra Kazhagamv. State Election Commissioner & Ors., AIR 2007 (NOC) 1801 (Mad.).

Relations Between the Union and the StatesArt. 245


Disqualification shall be as on the scrutiny of the nomination paper.Subsequent acquittal will not alter the disqualification. 2005 AIR SCW 393.

Banning payment of bonus to the employees of banks other than thosecovered by the Payment of Wages Act is valid. State Bank’s Staff Union (MadrasCircle) v. Union of India and others, AIR 2005 SC 3446 = 2005 AIR SCW4622.

Power to impound document by the Inspector suffers from excessivedelegation. Distt. Registrar and Collector, Hyderabad and another v. Canara BankEtc., AIR 2005 SC 186.

Where law is changed consequent on a judgment, it cannot be said thatthe judgment is legislatively overruled. Jamshed N. Guzdar v. State of Maharashtraand others, AIR 2005 SC 862 = 2005 AIR SCW 2051.

Establishment of a University to provide consultations is not contemplatedunder the constitutional scheme. Prof. Yashpal and another v. State of Chattisgarhand others, AIR 2005 SC 2026.

Repeal of an Act which was in force since long is held unjustified.Karnataka State Road Transport Corporation, Bangalore and etc. etc. v. KarnatakaState Transport Authority and others, AIR 2005 Kar. 205.

Theory of legislative exhaustion is unknown in India. M.P. High CourtBar Association v. Union of India and others, AIR 2005 SC 4114 = 2005 AIRSCW 3208.

Lists indicates the fields of legislation and not the powers to legislate. 2004AIR SCW 2035.

Chain of fictions/presumptions can be created. 2004 AIR SCW 3527.

Placing rules before legislature is not mere formality. It is a check. RupaAshok Hurra v. Ashok Hurra and another, AIR 1999 SC 2870.

Section 21-A of the Banking Regulation Act is not ultra vires. State Bankof India v. Yasangi Venkateswara Rao, AIR 1999 SC 896.

Conditional legislation and delegated legislation – Difference explained. AIR2001 Guj. 234.

246. Subject-matter of laws made by Parliament and by theLegislatures of States:– (1) Notwithstanding anything in clauses (2) and(3), Parliament has exclusive power to make laws with respect to any ofthe matters enumerated in List I in the Seventh Schedule (in this Constitutionreferred to as the “Union List”).

Art. 246

197

(2) Notwithstanding anything in clause (3), Parliament, and, subject toclause (1), the Legislature of any State also, have power to make laws withrespect to any of the matters enumerated in List III in the Seventh Schedule(in this Constitution referred to as the “Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any State hasexclusive power to make laws for such State or any part thereof with respectto any of the matters enumerated in List II in the Seventh Schedule (in thisConstitution referred to as the “State List”).

(4) Parliament has power to make laws with respect to any matterfor any part of the territory of India not included in a State notwithstandingthat such matter is a matter enumerated in the State List.

Caselaw

Banning of registration of power of attorney as a matter of public policyis invalid. 2005 AIR SCW 4456.

Natural gas is a Union subject. 2004 (3) JT 529.

Consumer Protection Act is valid and comes within the legislative competenceof the Parliament. 2003 AIR SCW 558.

247. Power of Parliament to provide for the establishment ofcertain additional courts:– Notwithstanding anything in this Chapter,Parliament may by law provide for the establishment of any additional courtsfor the better administration of laws made by Parliament or of any existinglaws with respect to a matter enumerated in the Union List.

248. Residuary powers of legislation:– (1) Parliament has exclusivepower to make any law with respect to any matter not enumerated in theConcurrent List or State List.

(2) Such power shall include the power of making any law imposinga tax not mentioned in either of those Lists.

249. Power of Parliament to legislate with respect to a matterin the State List in the national interest:– (1) Notwithstanding anythingin the foregoing provisions of this Chapter, if the Council of States hasdeclared by resolution supported by not less than two-thirds of the memberspresent and voting that it is necessary or expedient in national interest thatParliament should make laws with respect to any matter enumerated in theState List specified in the resolution, it shall be lawful for Parliament to make



laws for the whole or any part of the territory of India with respect to thatmatter while the resolution remains in force.

(2) A resolution passed under clause (1) shall remain in force for suchperiod not exceeding one year as may be specified therein:

Provided that, if and so often as a resolution approving the continuancein force of any such resolution is passed in the manner provided in clause(1), such resolution shall continue in force for a further period of one yearfrom the date on which under this clause it would otherwise have ceasedto be in force.

(3) A law made by Parliament which Parliament would not but for thepassing of a resolution under clause (1) have been competent to make shall,to the extent of the incompetency, cease to have effect on the expirationof a period of six months after the resolution has ceased to be in force,except as respects things done or omitted to be done before the expirationof the said period.

250. Power of Parliament to legislate with respect to any matterin the State List if a Proclamation of Emergency is in operation:–(1) Notwithstanding anything in this Chapter, Parliament shall, while aProclamation of Emergency is in operation, have power to make laws forthe whole or any part of the territory of India with respect to any of thematters enumerated in the State List.

(2) A law made by Parliament which Parliament would not but for theissue of a Proclamation of Emergency have been competent to make shall,to the extent of the incompetency, cease to have effect on the expirationof a period of six months after the Proclamation has ceased to operate,except as respects things done or omitted to be done before the expirationof the said period.

251. Inconsistency between laws made by Parliament under Articles249 and 250 and laws made by the Legislatures of States:– Nothingin Articles 249 and 250 shall restrict the power of the Legislature of a Stateto make any law which under this Constitution it has power to make, butif any provision of a law made by the Legislature of a State is repugnantto any provision of a law made by Parliament which Parliament has undereither of the said articles power to make, the law made by Parliament, whetherpassed before or after the law made by the Legislature of the State, shall

Art. 251

199

prevail, and the law made by the Legislature of the State shall to the extentof the repugnancy, but so long only as the law made by Parliament continuesto have effect, be inoperative.

252. Power of Parliament to legislate for two or more States byconsent and adoption of such legislation by any other State:– (1) Ifit appears to the Legislatures of two or more States to be desirable thatany of the matters with respect to which Parliament has no power to makelaws for the States except as provided in Articles 249 and 250 should beregulated in such States by Parliament by law, and if resolutions to that effectare passed by all the Houses of the Legislatures of those States, it shallbe lawful for Parliament to pass an Act for regulating that matter accordingly,and any Act so passed shall apply to such States and to any other Stateby which it is adopted afterwards by resolution passed in that behalf bythe House or, where there are two Houses, by each of the Houses of theLegislature of that State.

(2) Any Act so passed by Parliament may be amended or repealedby an Act of Parliament passed or adopted in like manner but shall not,as respects any State to which it applies, be amended or repealed by anAct of the Legislature of that State.

Caselaw

While interpreting entries bias towards strong centre may be assumed. 2004AIR SCW 5998.

253. Legislation for giving effect to international agreements:–Notwithstanding anything in the foregoing provisions of this Chapter, Parliamenthas power to make any law for the whole or any part of the territory ofIndia for implementing any treaty, agreement or convention with any othercountry or countries or any decision made at any international conference,association or other body.

Caselaw

Treaty is not law unless Parliament enacts a law in accordance with theterms of the treaty. 2004 AIR SCW 5998.

254. Inconsistency between laws made by Parliament and lawsmade by the Legislatures of States:– (1) If any provision of a law madeby the Legislature of a State is repugnant to any provision of a law madeby Parliament which Parliament is competent to enact, or to any provisionof an existing law with respect to one of the matters enumerated in the



Concurrent List, then, subject to the provisions of clause (2), the law madeby Parliament, whether passed before or after the law made by the Legislatureof such State, or, as the case may be, the existing law, shall prevail andthe law made by the Legislature of the State shall, to the extent of therepugnancy, be void.

(2) Where a law made by the Legisalture of a State with respect toone of the matters enumerated in the Concurrent List contains any provisionrepugnant to the provisions of an earlier law made by Parliament or an existinglaw with respect to that matter, then, the law so made by the Legislatureof such State shall, if it has been reserved for the consideration of the Presidentand has received his assent, prevail in that State :

Provided that nothing in this clause shall prevent Parliament from enactingat any time any law with respect to the same matter including a law addingto, amending, varying or repealing the law so made by the Legislature ofthe State.

Caselaw

Presidential assent is not an idle formality. Minor S. Aswin Kumar v. Stateof Tamil Nadu, AIR 2007 (NOC) 1812 (Mad.).

Delegate shall not travel wider than the objective of legislation. Dr. MahaChandra Prasad Singh v. Chairman, Bihar Legislative Council and others, AIR2005 SC 69.

State Government providing additional punishment of confiscation underM.B. Act without Presidential assent is invalid. 2003 AIR SCW 6600.

Delegation of powers must be authorised by statute. 2003 AIR SCW 5935.

When power to fix prices is concurrent, State can fix a price which ishigher than that fixed by the centre. AIR 2004 SC 3997.

Delegated legislation is meant to supplement or supplant the statute andis limited to its scope. 2003 AIR SCW 894.

State Government cannot prohibit lotteries of other States. Only Parliamentcan do it. M/s. B.R. Enterprises v. State of U.P. and others, AIR 1999 SC1867.

University is not required to take permission to start new technical coursesfrom AICTE. AIR 2001 SC 2861.

State Act and Central Act – It is the State Act which has become invalidto the extent of repugnancy. AIR 2001 A.P. 7A (NOC).

Art. 254

201

255. Requirements as to recommendations and previous sanctionsto be regarded as matters of procedure only:– No Act of Parliamentor of the Legislature of a State and no provision in any such Act, shallbe invalid by reason only that some recommendation or previous sanctionrequired by this Constitution was not given, if assent to that Act was given–

(a) where the recommendation required was that of the Governor,either by the Governor or by the President;

(b) where the recommendation required was that of the Rajpramukh,either by the Rajpramukh or by the President;

(c) where the recommendation or previous sanction required was thatof the President, by the President.

Comments

Articles 245 to 255:-- This part is crucial part of the Constitution. It definesthe legislative competence of the Parliament to make laws applicable to all theterritories constituting Indian Union, and the competence of State legislatures toenact laws applicable to all territories within the State. List I of the VIIth Scheduleenumerates all the subjects over which Parliament has exclusive right to makelaws. List II of the VIIth Schedule enumerates all the subjects over which theState Legislatures have only the power to make the laws. It means that anylaw made by Parliament on the subject mentioned in List II will be ultra vires.Similarly if the State Legislature makes any law on the subject specified in ListI, the same will be ultra vires of the Constitution. There is however a ThirdList which specifies the subjects on which Parliament and State Legislature canmake laws. This List is called Concurrent List. In the case of matters specifiedin the Concurrent List Parliament can make law without the consent of the StateLegislature and even if there be any law made by the State legislature on thatsubject the law already made by the Parliament only prevails as far as the Stateis concerned. State legislature cannot make a law on the subject covered bythe Concurrent List without obtaining prior permission from President of India.This rule applies to all the laws made by the State legislature and Parliamentin which case such parts of the State legislation which contradict the Centrallaw shall not prevail unless Presidential assent is obtained. That is how severalCentral enactments made on the subjects in Concurrent List contain severaladditional State amendments having obtained concurrence of the President.

There are three situations in which the Parliament makes laws on the subjectsmentioned in the State List. If Rajya Sabha passes a resolution requesting theParliament to make a law applicable to all States in national interest and when



such resolution is passed by a majority of 2/3rd members present and votingin Rajya Sabha, the Parliament may make a law which can be made applicableto all the States. If the Parliament makes a law on the subject reserved forthe State legislature by virtue of such resolution made by Rajya Sabha, it shallbe enforced in all the States for a period of one year unless the said resolutionis renewed for another year after which the law made by the Parliament lapses.However the law so made by the Parliament continues to be effective whenthe resolution is in force and all actions taken thereunder continue to be validnotwithstanding that Act itself has lapsed. Rajya Sabha may renew its resolutionsuccessively for as many of years as it deems fit.

The other situation is where two or more State legislatures request theParliament to make a law on a subject reserved for the States, applicable toall of them, the Parliament may make a law as requested. Such law in the firstinstance applies to all sponsoring States and it subsequently applies to such otherStates as and from the day when they adopt parliamentary legislation. In casethe Parliament repeals the Central enactment then the repeal becomes operativeonly after each of the States individually repeal the Central enactment. This iswhat happened in the case of Urban Land Ceiling Act which having been enactedat the instance of few States and subsequently adopted by several other Stateshas come to be repealed by the Centre all the States implementing the UrbanLand Ceiling Act had to repeal the Central Act one after the other. Tamil Naduwas one of the States which did not adopt the Central Act and it made a UrbanLand Ceiling Act separately for itself. That State did not have the necessity ofrepealing the Central law. Andhra Pradesh which adopted the Central Law hadrepealed the Central enactment in the same terms as the Centre. The third situationis when a national emergency is enforced the Parliament can make any lawcovering the subjects under the State legislature. Such law will continue to bein force for a period of six months after emergency ceases.

Parliament has power to make any law by which it may require any Stateto implement international obligations. When such law is passed by the Parliament,the State shall implement the same without any protest.

Enumeration of subjects under the Union List, State List and ConcurrentList gives rise to a problem. The problem is whether a particular legislation fallswithin the scope of the entry under which it is purported to have been madeand whether the subject-matter of the legislation falls within the scope of theentry or whether it falls under a different entry in another list. In deciding theissue under the first situation the pith and substance doctrine shall be appliedto ascertain what is substance the Act is purported to cover. If the enactment

Art. 255

203

is held to cover one item of the list also covers another claim of a differentlist the legislation is declared ultra vires. In such cases the law to the extentof its repugnancy will only be declared invalid.

The conflict between the State law and the Central is not limited to theterms of legislation. It includes the conflict in rules and procedures made underthe respective Acts. State of Tamil Nadu v. Adhiyaman Educational and ResearchInstitute, 1995 (4) SCC 104 = 1994 (2) JT 140 = 1994 (1) Scale 715. Herehigher marks than those prescribed by the Central enactment are prescribed forappointment to posts and the Court held that the conflict is substantial and hencethe Tamil Nadu law is invalid.

In the matters arising under Concurrent List the reference to the priorPresidential assent should be treated as mandatory. Presidential assent if obtainedlater in time after the enactment is enforced, it cannot validate actions takenunder the Act. There is nothing like post Presidential assent.

CHAPTER-II

ADMINISTRATIVE RELATIONSGeneral

256. Obligation of States and the Union:– The executive power ofevery State shall be so exercised as to ensure compliance with the lawsmade by Parliament and any existing laws which apply in that State, andthe executive power of the Union shall extend to the giving of such directionsto a State as may, appear to the Government of India to be necessary forthat purpose.

257. Control of the Union over States in certain cases:– (1) Theexecutive power of every State shall be so exercised as not to impede orprejudice the exercise of the executive power of the Union, and the executivepower of the Union shall extend to the giving of such directions to a Stateas may appear to the Government of India to be necessary for that purpose.

(2) The executive power of the Union shall also extend to the givingof directions to a State as to the construction and maintenance of meansof communication declared in the direction to be of national or militaryimportance :

Provided that nothing in this clause shall be taken as restricting the powerof Parliament to declare highways or waterways to be national highways ornational waterways or the power of the Union with respect to the highwaysor waterways so declared or the power of the Union to construct and maintainmeans of communication as part of its functions with respect to naval, militaryand air force works.

(3) The executive power of the Union shall also extend to the givingof directions to a State as to the measures to be taken for the protectionof the railways within the State.



(4) Where in carrying out any direction given to a State under clause(2) as to the construction or maintenance of any means of communicationor under clause (3) as to the measures to be taken for the protection ofany railway, costs have been incurred in excess of those which would havebeen incurred in the discharge of the normal duties of the State if suchdirection had not been given, there shall be paid by the Government of Indiato the State such sum as may be agreed, or, in default of agreement, asmay be determined by an arbitrator appointed by the Chief Justice of India,in respect of the extra costs so incurred by the State.

257A. 1[Assistance to States by deployment of armed forces orother forces of the Union]:– Rep. by the Constitution (Forty-fourthAmendment) Act, 1978, S. 33, w.e.f. 20-6-1979.

258. Power of the Union to confer powers, etc., on States incertain cases:– (1) Notwithstanding anything in this Constitution, the Presidentmay, with the consent of the Government of a State, entrust either conditionallyor unconditionally to that Government or to its officers functions in relationto any matter to which the executive power of the Union extends.

(2) A law made by Parliament which applies in any State may,notwithstanding that it relates to a matter with respect to which the Legislatureof the State has no power to make laws, confer powers and impose duties,or authorise the conferring of powers and the imposition of duties, upon theState or officers and authorities thereof.

(3) Where by virtue of this Article powers and duties have beenconferred or imposed upon a State or officers or authorities thereof, thereshall be paid by the Government of India to the State such sum as maybe agreed, or, in default of agreement, as may be determined by an arbitratorappointed by the Chief Justice of India, in respect of any extra costs ofadministration incurred by the State in connection with the exercise of thosepowers and duties.

2[258A. Power of the States to entrust functions to the Union:–Notwithstanding anything in this Constitution, the Governor of a State may,with the consent of the Government of India, entrust either conditionally orunconditionally to that Government or to its officers functions in relation toany matter to which the executive power of the State extends.]


2. Ins. by the Constitution (Seventh Amendment) Act, 1956, Sec. 18, w.e.f. 1.11.1956.

Art. 258A

205

259. [Armed Forces in States in Part B of the First Schedule]:–Rep. by the Constitution (Seventh Amendment) Act, 1956, Section 29and Schedule, w.e.f. 1-11-1956.

260. Jurisdiction of the Union in relation to territories outsideIndia:– The Government of India may by agreement with the Governmentof any territory not being part of the territory of India undertake any executive,legislative or judicial functions vested in the Government of such territory,but every such agreement shall be subject to, and governed by, any lawrelating to the exercise of foreign jurisdiction for the time being in force.

261. Public acts, records and judicial proceedings:– (1) Full faithand credit shall be given throughout the territory of India to public acts,records and judicial proceedings of the Union and of every State.

(2) The manner in which and the conditions under which the acts,records and proceedings referred to in clause (1) shall be proved and theeffect thereof determined shall be as provided by law made by Parliament.

(3) Final judgments or orders delivered or passed by civil Courts inany part of the territory of India shall be capable of execution anywherewithin that territory according to law.

Disputes relating to Waters

262. Adjudication of disputes relating to waters of inter-Staterivers or river valleys:– (1) Parliament may by law provide for theadjudication of any dispute or complaint with respect to the use, distributionor control of the waters of, or in, any inter-State river or river valley.

(2) Notwithstanding anything in this Constitution, Parliament may by lawprovide that neither the Supreme Court nor any other Court shall exercisejurisdiction in respect of any such dispute or complaint as is referred to inclause (1).

Caselaw

Interlinking of rivers – Government directed to file progress report. 2005AIR SCW 3178.

Co-ordination between States

263. Provisions with respect to an inter-State Council:– If at anytime it appears to the President that the public interests would be servedby the establishment of a Council charged with the duty of–



(a) inquiring into and advising upon disputes which may have arisenbetween States;

(b) investigating and discussing subjects in which some or all of theStates, or the Union and one or more of the States, have a commoninterest; or

(c) making recommendations upon any such subject and, in particular,recommendations for the better co-ordination of policy and actionwith respect to that subject,

it shall be lawful for the President by order to establish such a Council,and to define the nature of the duties to be performed by it and its organisationand procedure.

Comments

Articles 256 to 263:-- The expression ‘executive power’ is wider than‘administrative power’. All the powers which laws confer on the State and impliedin the sovereign rights and obligations is executive power and entering intointernational agreements comes within the scope of executive power. The powerto implement the laws and the power to execute them is also the executive power.The power to enforce the law and order and the obligations to promote peaceand good government are included in the executive power. The obligation topromote good environment and the obligation to protect people from hazardsof nature also cover the field of executive power. It is within the scope ofexecutive power to protect persons and groups against discrimination and preventtheir degradation. To be brief to strive for an all inclusive society comes withinthe scope of executive power whether there exists any legislation on the subjector not. Wherever there is law it is the obligations of the Government to administerit and the power so vested for this purpose is called the administrative power.Land laws require administration to survey the lands, determine the ownershipof every plot surveyed and also assess the tax payable. It is under the executivepower, the Government creates facilities to carry out administrative functionsby the administrative authorities. It is again under its executive power all theorders made by the administrative authorities are duly executed. The processof levy and assessment of tax is done by tax administrators and the recoveryof tax is done by the executive created therefor. Union Government as underthe Constitution may require the State Governments under its executive powerto take and fulfil all such administrative and executive actions as it could havedone through its officers. Similarly as and when the State Government needsassistance of the Union Government it can require the Union to undertake such

Art. 263

207

tasks which it could have done otherwise by itself. The Constitution of Indiacreated a machinery for the settlement of inter-State disputes. Such disputes mayarise out of sharing water of inter-State rivers and in other connected disputes.In the case of disputes of this nature Parliament enacted the law called Inter-State Water Disputes Act, 1956. In the case of other disputes the UnionGovernment may appoint Councils as and when necessary to investigate intosuch disputes and make recommendations. While Inter-State Commission on RiverWaters can make an award, the inter-State Councils may make onlyrecommendations. The jurisdiction of the Courts including Supreme Court toentertain any complaints in both the cases is barred. The Supreme Court mayhowever entertain any applications to enforce any claim arising out of the awardor recommendations. [Tamil Nadu Kaveri Sangham v. Union of India, AIR 1990SC 1316; State of Tamil Nadu v. State of Karnataka, 1991 Supp. (1) SCC240].

When once the dispute is raised by States, the Union shall constitute aTribunal. T.N. Cauvery Sangham v. Union of India, AIR 1990 SC 1316.

PART XII

FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER I – FINANCE

General1[264. Interpretation:– In this Part, “Finance Commission” means a

Finance Commission constituted under Article 280.]

265. Taxes not to be imposed save by authority of law:– No taxshall be levied or collected except by authority of law.

Caselaw

Compensatory tax concept explained. Jindal Stainless Ltd. & Anr. v. Stateof Haryana & Ors., AIR 2006 SC 2550.

Power to impose tax is deduced from tax entry only. Such power cannotbe claimed from general power relating to the same subject. State of Bihar &Ors. v. Bihar State + 2 Lecturers Association & Ors., AIR 2007 SC 1984.

Sovereign power and police power are both subject to Constitution. Syntheticsand Chemicals Ltd. v. State of U.P. and others, AIR 1990 SC 1927.

1. Subs. by the Constitution (Seventh Amndt.) Act, 1956, Sec. 29 and Sch., w.e.f. 1.11.1956.

Finance, Property, Contracts and SuitsArt. 265


Income tax does not include the surcharge added to it. The Commissionerof Income Tax, Kerala v. K. Srinivasan, AIR 1972 SC 491.

Where the levy of tax is held to be invalid, the tax collected from theassessee shall not be refunded to him unless he proves that the burden of taxhas not been transferred to others (to his purchasers). The assessee shall notbe permitted to enrich himself unjustly. The rule of unjust enrichment will notapply to the Government when it retains the tax illegally collected. Where taxis already refunded to such assessee, the Government is not entitled to orderhim to refund it. Mafatlal Industries Ltd. v. Union of India, 1997 (5) SCC536 = 1996 (9) Scale 457 = 1997 (1) Supreme 684.

Tax on professional tourist photographers is illegal. B.R. Jagadish and othersv. State of Karnataka and others, AIR 2005 Kar. 418.

Illegal collection by Banks if they cannot be refunded shall be depositedwith the Government. Devkala Consultancy Services v. Union of India andothers, AIR 1999 Kar. 319.

266. Consolidated Funds and public accounts of India and of theStates:– (1) Subject to the provisions of Article 267 and to the provisionsof this Chapter with respect to the assignment of the whole or part of thenet proceeds of certain taxes and duties to States, all revenues received bythe Government of India, all loans raised by that Government by the issueof treasury bills, loans or ways and means advances and all moneys receivedby that Government in repayment of loans shall form one consolidated fundto be entitled “the Consolidated Fund of India”, and all revenues receivedby the Government of a State, all loans raised by that Government by theissue of treasury bills, loans or ways and means advances and all moneysreceived by that Government in repayment of loans shall form one consolidatedfund to be entitled “the Consolidated Fund of the State”.

(2) All other public moneys received by or on behalf of the Governmentof India or the Government of a State shall be credited to the public accountof India or the public account of the State, as the case may be.

(3) No moneys out of the Consolidated Fund of India or the ConsolidatedFund of a State shall be appropriated except in accordance with law andfor the purposes and in the manner provided in this Constitution.

Caselaw

Refusal to vacate the premises granted to him by Supreme Court orderafter retirement violates the Court’s order. AIR 1999 Ker. 746.

267. Contingency Fund:– (1) Parliament may by law establish aContingency Fund in the nature of an imprest to be entitled “the ContingencyFund of India” into which shall be paid from time to time such sums asmay be determined by such law, and the said Fund shall be placed at thedisposal of the President to enable advances to be made by him out of

Art. 267

209

such Fund for the purposes of meeting unforeseen expenditure pendingauthorisation of such expenditure by Parliament by law under Article 115or Article 116.

(2) The Legislature of a State may by law establish a Contingency Fundin the nature of an imprest to be entitled “the Contingency Fund of the State”into which shall be paid from time to time such sums as may be determinedby such law, and the said Fund shall be placed at the disposal of the Governorof the State to enable advances to be made by him out of such Fund forthe purposes of meeting unforeseen expenditure pending authorisation of suchexpenditure by the Legislature of the State by law under Article 205 orArticle 206.

Distribution of Revenues between theUnion and the States

268. Duties levied by the Union but collected and appropriatedby the States:– (1) Such stamp duties and such duties of excise on medicinaland toilet preparations as are mentioned in the Union List shall be leviedby the Government of India but shall be collected–

(a) in the case where such duties are leviable within any Union territory,by the Government of India, and

(b) in other cases, by the States within which such duties are respectivelyleviable.

(2) The proceeds in any financial year of any such duty leviable withinany State shall not form part of the Consolidated Fund of India, but shallbe assigned to that State.

1[268A. Service tax levied by Union and collected and appropriatedby the Union and the States:– (1) Taxes on services shall be levied bythe Government of India and such tax shall be collected and appropriatedby the Government of India and the States in the manner provided in clause(2).

(2) The proceeds in any financial year of any such tax levied inaccordance with the provisions of clause (1) shall be–

(a) collected by the Government of India and the States;

(b) appropriated by the Government of India and the States,

1. Ins. by Constitution (Eighty-eighth Amendment) Act, 2003, dt. 15-1-2004.

CONST-14

Finance, Property, Contracts and SuitsArt. 268A


in accordance with such principles of collection and appropriation as maybe formulated by Parliament by law.]

269. Taxes levied and collected by the Union but assigned tothe States:– 1[(1) Taxes on the sales or purchase of goods and taxes onthe consignment of goods shall be levied and collected by the Governmentof India but shall be assigned and shall be deemed to have been assignedto the States on or after the 1st day of April, 1996 in the manner providedin clause (2).

Explanation:– For the purposes of this clause,–

(a) the expression “taxes on the sale or purchase of goods” shall meantaxes on sale or purchase of goods other than newspapers, wheresuch sale or purchase takes place in the course of inter-State tradeor commerce;

(b) the expression “taxes on the consignment of goods” shall mean taxeson the consignment of goods (whether the consignment is to theperson making it or to any other person), where such consignmenttakes place in the course of inter-State trade or commerce;

(2) The net proceeds in any financial year of any such tax, except inso far as those proceeds represent proceeds attributable to Union territories,shall not form part of the Consolidated Fund of India, but shall be assignedto the States within which that tax is leviable in that year, and shall bedistributed among those States in accordance with such principles of distributionas may be formulated by Parliament by law.]

2[(3) Parliament may by law formulate principles for determining whena 3[sale or purchase of, or consignment of, goods] takes place in the courseof inter-State trade or commerce.]

270. Taxes levied and distributed between the Union and theStates:– 4[(1) All taxes and duties referred to in the Union List, exceptthe duties and taxes referred to in 5[Articles 268, 268A and 269], respectively,

1. Clauses (1) & (2) subs. by the Constitution (Eightieth Amndt.) Act, 2000, Section 2,w.e.f. 9-6-2000.

2. Ins. by the Constitution (Sixth Amendment) Act, 1956, Section 3.

3. Subs. for “sale or purchase of goods” by the Constitution (Forty-sixth Amendment) Act,1982, Section 2.

4. Subs. by the Constitution (Eightieth Amendment) Act, 2000 Sec. 3, w.e.f. 1.4.1996.

5. Subs. for “Articles 268 and 269” by the Constitution (Eighty-eighth Amendment) Act,2003, dt. 15-1-2004.

Art. 270

211

surcharge on taxes and duties referred to in Article 271 and any cess leviedfor specific purposes under any law made by Parliament shall be levied andcollected by the Government of India and shall be distributed between theUnion and the States in the manner provided in clause (2).

(2) Such percentage, as may be prescribed, of the net proceeds ofany such tax or duty in any financial year shall not form part of theConsolidated Fund of India, but shall be assigned to the States within whichthat tax or duty is leviable in that year, and shall be distributed among thoseStates in such manner and from such time as may be prescribed in the mannerprovided in clause (3).

(3) In this Article, “prescribed” means – (i) until a Finance Commissionhas been constituted, prescribed by the President by order, and (ii)after aFinance Commission has been constituted, prescribed by the President byorder after considering the recommendations of the Finance Commission.]

271. Surcharge on certain duties and taxes for purposes of theUnion:– Notwithstanding anything in Articles 269 and 270, Parliament mayat any time increase any of the duties or taxes referred to in those articlesby a surcharge for purposes of the Union and the whole proceeds of anysuch surcharge shall form part of the Consolidated Fund of India.

272. 1[xxx]

273. Grants in lieu of export duty on jute and jute products:–(1) There shall be charged on the Consolidated Fund of India in each yearas grants-in-aid of the revenues of the States of Assam, Bihar, Orissa andWest Bengal, in lieu of assignment of any share of the net proceeds in eachyear of export duty on jute and jute products to those States, such sumsas may be prescribed.

(2) The sums so prescribed shall continue to be charged on theConsolidated Fund of India so long as any export duty on jute or jute productscontinues to be levied by the Government of India or until the expirationof ten years from the commencement of this Constitution whichever is earlier.

(3) In this article, the expression “prescribed” has the same meaningas in Article 270.

1. Omitted by the Constitution (Eightieth Amendment) Act, 2000, Section 4, w.e.f. 9-6-2000.



274. Prior recommendation of President required to Bills affectingtaxation in which States are interested:– (1) No Bill or amendment whichimposes or varies any tax or duty in which States are interested, or whichvaries the meaning of the expression “agricultural income” as defined for thepurposes of the enactments relating to Indian income-tax, or which affectsthe principles on which under any of the foregoing provisions of this Chaptermoneys are or may be distributable to States, or which imposes any suchsurcharge for the purposes of the Union as is mentioned in the foregoingprovisions of this Chapter, shall be introduced or moved in either Houseof Parliament except on the recommendation of the President.

(2) In this article, the expression “tax or duty in which States areinterested” means–

(a) a tax or duty the whole or part of the net proceeds whereof areassigned to any State; or

(b) a tax or duty by reference to the net proceeds whereof sums arefor the time being payable out of the Consolidated Fund of Indiato any State.

275. Grants from the Union to certain States:– (1) Such sums asParliament may by law provide shall be charged on the Consolidated Fundof India in each year as grants-in-aid of the revenues of such States asParliament may determine to be in need of assistance, and different sumsmay be fixed for different States:

Provided that there shall be paid out of the Consolidated Fund of Indiaas grants-in-aid of the revenues of a State such capital and recurring sumsas may be necessary to enable that State to meet the costs of such schemesof development as may be undertaken by the State with the approval ofthe Government of India for the purpose of promoting the welfare of theScheduled Tribes in that State or raising the level of administration of theScheduled Areas therein to that of the administration of the rest of the areasof that State :

Provided further that there shall be paid out of the Consolidated Fundof India as grants-in-aid of the revenues of the State of Assam sums, capitaland recurring, equivalent to–

(a) the average excess of expenditure over the revenues during thetwo years immediately preceding the commencement of thisConstitution in respect of the administration of the tribal areas

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213

specified in 1[Part I] of the Table appended to paragraph 20 ofthe Sixth Schedule; and

(b) the costs of such schemes of development as may be undertakenby that State with the approval of the Government of India forthe purpose of raising the level of administration of the said areasto that of the administration of the rest of the areas of that State.

2[(1A) On and from the formation of the autonomous State under Article244A,–

(i) any sums payable under clause (a) of the second proviso to clause(1) shall, if the autonomous State comprises all the tribal areasreferred to therein, be paid to the autonomous State, and, if theautonomous State comprises only some of those tribal areas, beapportioned between the State of Assam and the autonomous Stateas the President may, by order, specify;

(ii) there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of the autonomous State sums, capital andrecurring, equivalent to the costs of such schemes of developmentas may be undertaken by the autonomous State with the approvalof the Government of India for the purpose of raising the levelof administration of that State to that of the administration of therest of the State of Assam.]

(2) Until provision is made by Parliament under clause (1), the powersconferred on Parliament under that clause shall be exercisable by the Presidentby order and any order made by the President under this clause shall haveeffect subject to any provision so made by Parliament:

Provided that after a Finance Commission has been constituted no ordershall be made under this clause by the President except after consideringthe recommendations of the Finance Commission.

276. Taxes on professions, trades, callings and employments:–(1) Notwithstanding anything in Article 246, no law of the Legislature ofa State relating to taxes for the benefit of the State or of a municipality,district board, local board or other local authority therein in respect of

1. Subs. for “Part A” by the North Eastern Areas (Reorganisation) Act, 1971 (81 of 1971),Section 71, w.e.f. 21-1-1972.

2. Ins. by the Constitution (Twenty-second Amendment) Act, 1969, Section 3.



professions, trades, callings or employments shall be invalid on the groundthat it relates to a tax on income.

(2) The total amount payable in respect of any one person to the Stateor to any one municipality, district board, local board or other local authorityin the State by way of taxes on professions, trades, callings and employmentsshall not exceed 1[two thousand and five hundred rupees] per annum.

2[xxx]

(3) The power of the Legislature of a State to make laws as aforesaidwith respect to taxes on professions, trades, callings and employments shallnot be construed as limiting in any way the power of Parliament to makelaws with respect to taxes on income accruing from or arising out ofprofessions, trades, callings and employments.

277. Savings:– Any taxes, duties, cesses or fees which, immediatelybefore the commencement of this Constitution, were being lawfully leviedby the Government of any State or by any municipality or other local authorityor body for the purposes of the State, municipality, district or other localarea may, notwithstanding that those taxes, duties, cesses or fees are mentionedin the Union List, continue to be levied and to be applied to the same purposesuntil provision to the contrary is made by Parliament by law.

278. Agreement with States in Part B of the First Schedule withregard to certain financial matters:– 3[xxx].

279. Calculation of “net proceeds”, etc.:– (1) In the foregoingprovisions of this Chapter, “net proceeds” means in relation to any tax orduty the proceeds thereof reduced by the cost of collection, and for thepurposes of those provisions the net proceeds of any tax or duty, or ofany part of any tax or duty, in or attributable to any area shall be ascertainedand certified by the Comptroller and Auditor-General of India, whosecertificate shall be final.

(2) Subject as aforesaid, and to any other express provision of thisChapter, a law made by Parliament or an order of the President may, inany case where under this Part the proceeds of any duty or tax are, or

1. Subs. for “two hundred and fifty rupees” by the Constitution (Sixtieth Amendment) Act,1988, Section 2.

2. Proviso omitted by the Constitution (Sixtieth Amendment) Act, 1988, Section 2.

3. Repealed. by the Constitution (Seventh Amendment) Act, 1956, Section 29 and Schedule.

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may be, assigned to any State, provide for the manner in which the proceedsare to be calculated, for the time from or at which and the manner in whichany payments are to be made, for the making of adjustments between onefinancial year and another, and for any other incidental or ancillary matters.

280. Finance Commission:– (1) The President shall, within two yearsfrom the commencement of this Constitution and thereafter at the expirationof every fifth year or at such earlier time as the President considers necessary,by order constitute a Finance Commission which shall consist of a Chairmanand four other members to be appointed by the President.

(2) Parliament may by law determine the qualifications which shall berequisite for appointment as members of the Commission and the mannerin which they shall be selected.

(3) It shall be the duty of the Commission to make recommendationsto the President as to–

(a) the distribution between the Union and the States of the netproceeds of taxes which are to be, or may be, divided betweenthem under this Chapter and the allocation between the States ofthe respective shares of such proceeds;

(b) the principles which should govern the grants-in-aid of the revenuesof the States out of the Consolidated Fund of India;

1[(bb) the measures needed to augment the Consolidated Fund of a Stateto supplement the resources of the Panchayats in the State on thebasis of the recommendations made by the Finance Commissionof the State;]

2[(c) the measures needed to augment the Consolidated Fund of a Stateto supplement the resources of the Municipalities in the State onthe basis of the recommendations made by the Finance Commissionof the State;]

3[(d)] any other matter referred to the Commission by the President inthe interests of sound finance.

(4) The Commission shall determine their procedure and shall have suchpowers in the performance of their functions as Parliament may by law conferon them.

1. Ins. by the Constitution (Seventy-third Amendment) Act, 1992, Sec. 3, w.e.f. 24.4.1993.

2. Ins. by the Constitution (Seventy-fourth Amndt.) Act, 1992, Sec. 3, w.e.f. 1.6.1993.

3. Sub-clause (c) relettered as sub-clause (d) by Sec. 3, ibid, w.e.f. 1.6.1993.



281. Recommendations of the Finance Commission:– The Presidentshall cause every recommendation made by the Finance Commission underthe provisions of this Constitution together with an explanatory memorandumas to the action taken thereon to be laid before each House of Parliament.

Miscellaneous Financial Provisions

282. Expenditure defrayable by the Union or a State out of itsrevenues:– The Union or a State may make any grants for any publicpurpose, notwithstanding that the purpose is not one with respect to whichParliament or the Legislature of the State, as the case may be, may makelaws.

283. Custody, etc., of Consolidated Funds, Contingency Funds andmoneys credited to the public accounts:– (1) The custody of theConsolidated Fund of India and the Contingency Fund of India, the paymentof moneys into such Funds, the withdrawal of moneys therefrom, the custodyof public moneys other than those credited to such Funds received by oron behalf of the Government of India, their payment into the public accountof India and the withdrawal of moneys from such account and all other mattersconnected with or ancillary to matters aforesaid shall be regulated by lawmade by Parliament, and, until provision in that behalf is so made, shall beregulated by rules made by the President.

(2) The custody of the Consolidated Fund of a State and the ContingencyFund of a State, the payment of moneys into such Funds, the withdrawalof moneys therefrom, the custody of public moneys other than those creditedto such Funds received by or on behalf of the Government of the State,their payment into the public account of the State and withdrawal of moneysfrom such account and all other matters connected with or ancillary to mattersaforesaid shall be regulated by law made by the Legislature of the State,and, until provision in that behalf is so made, shall be regulated by rulesmade by the Governor of the State.

284. Custody of suitors’ deposits and other moneys received bypublic servants and courts:– All moneys received by or deposited with–

(a) any officer employed in connection with the affairs of the Unionor of a State in his capacity as such, other than revenues or publicmoneys raised or received by the Government of India or theGovernment of the State, as the case may be, or

Art. 284

217

(b) any court within the territory of India to the credit of any cause,matter, account or persons,

shall be paid into the public account of India or the public account of State,as the case may be.

285. Exemption of property of the Union from State taxation:–(1) The property of the Union shall, save in so far as Parliament may bylaw otherwise provide, be exempt from all taxes imposed by a State orby any authority within a State.

(2) Nothing in clause (1) shall, until Parliament by law otherwiseprovides, prevent any authority within a State from levying any tax on anyproperty of the Union to which such property was immediately before thecommencement of this Constitution liable or treated as liable, so long asthat tax continues to be levied in that State.

Caselaw

Municipalities cannot impose tax on the union property in the garb of servicecharges. 2004 AIR SCW 466.

Exemption here is limited to direct taxes on property alone. Sales tax canbe levied. 2004 AIR SCW 4665.

Food Corporation is not exempt from property tax or other taxes by theState Government. Food Corporation of India v. The Sub-Collector, Narsapurand others, AIR 1999 SC 2521.

Properties of Port Trust are not exempt from municipal tax. Board ofTrustees for the Visakhapatnam Port Trust, etc. v. State of Andhra Pradeshand others, AIR 1999 SC 2552.

286. Restrictions as to imposition of tax on the sale or purchaseof goods:– (1) No law of a State shall impose, or authorise the impositionof, a tax on the sale or purchase of goods where such sale or purchasetakes place–

(a) outside the State; or

(b) in the course of the import of the goods into, or export of thegoods out of, the territory of India.1[xxx]

1. Explanation omitted by the Constitution (Sixth Amendment) Act, 1956, Sec. 4.



1[(2) Parliament may by law formulate principles for determining whena sale or purchase of goods takes place in any of the ways mentioned inclause (1).

2[(3) Any law of a State shall, in so for as it imposes, or authorisesthe imposition of,–

(a) a tax on the sale or purchase of goods declared by Parliamentby law to be of special importance in inter-State trade or commerce;or

(b) a tax on the sale or purchase of goods, being a tax of the naturereferred to in sub-clause (b), sub-clause (c) or sub-clause (d) ofclause (29A) of Article 366,

be subject to such restrictions and conditions in regard to the system oflevy, rates and other incidents of the tax as Parliament may by law specify.]]

Caselaw

Contract is likely to be awarded is no acceptance. AIR 2009 SC 405.Where State is prohibited to impose any tax, it cannot make any provision

which enables the deduction of such tax-at-source. AIR 2000 SC 946.Transfer of right to use goods is sale. AIR 2000 SC 2436.A sale of goods is deemed to take place in the course of imports (1)

if such sale takes place after the goods cross the customs barrier of the foreigncountry and (2) before they cross the customs barrier of India. It also includesthe transaction which occasion the movement of goods in the foreign countryfor import into India. All transactions between these two occasions resulting intransfer of ownership of goods are treated as sale of goods in the course ofimport. J.V. Gokul and Co. (P) Ltd. v. Asst. Collector of Sales Tax (Inspection),AIR 1960 SC 595 = 1960 (2) SCR 852 = 1960 SCJ 671.

287. Exemption from taxes on electricity:– Save in so far asParliament may by law otherwise provide, no law of a State shall impose,or authorise the imposition of, a tax on the consumption or sale of electricity(whether produced by a Government or other persons) which is–

(a) consumed by the Government of India, or sold to the Governmentof India for consumption by that Government; or

(b) consumed in the construction, maintenance or operation of anyrailway by the Government of India or a railway company operatingthat railway, or sold to that Government or any such railwaycompany for consumption in the construction, maintenance oroperation of any railway,

and any such law imposing, or authorising the imposition of, a tax on thesale of electricity shall secure that the price of electricity sold to the Government

1. Subs. by the Constitution (Sixth Amendment) Act, 1956, Sec. 4.2. Subs. by the Constitution (Forty-sixth Amendment) Act, 1982, Sec. 3.

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219

of India for consumption by that Government, or to any such railway companyas aforesaid for consumption in the construction, maintenance or operationof any railway, shall be less by the amount of the tax than the price chargedto other consumers of a substantial quantity of electricity.

288. Exemption from taxation by States in respect of water orelectricity in certain cases:– (1) Save in so far as the President may byorder otherwise provide, no law of a State in force immediately before thecommencement of this Constitution shall impose, or authorise the impositionof, a tax in respect of any water or electricity stored, generated, consumed,distributed or sold by any authority established by any existing law or anylaw made by Parliament for regulating or developing any inter-State riveror river-valley.

Explanation:– The expression “law of a State in force” in this clauseshall include a law of a State passed or made before the commencementof this Constitution and not previously repealed, notwithstanding that it orparts of it may not be then in operation either at all or in particular areas.

(2) The Legislature of a State may by law impose, or authorise theimposition of, any such tax as is mentioned in clause (1), but no such lawshall have any effect unless it has, after having been reserved for theconsideration of the President, received his assent; and if any such lawprovides for the fixation of the rates and other incidents of such tax by meansof rules or orders to be made under the law by any authority, the law shallprovide for the previous consent of the President being obtained to the makingof any such rule or order.

289. Exemption of property and income of a State from Uniontaxation:– (1) The property and income of a State shall be exempt fromUnion taxation.

(2) Nothing in clause (1) shall prevent the Union from imposing, orauthorising the imposition of, any tax to such extent, if any, as Parliamentmay by law provide in respect of a trade or business of any kind carriedon by, or on behalf of, the Government of a State, or any operationsconnected therewith, or any property used or occupied for the purposesof such trade or business, or any income accruing or arising in connectiontherewith.

(3) Nothing in clause (2) shall apply to any trade or business, or toany class of trade or business, which Parliament may by law declare to beincidental to the ordinary functions of Government.



290. Adjustment in respect of certain expenses and pensions:–Where under the provisions of this Constitution the expenses of any courtor Commission, or the pension payable to or in respect of a person whohas served before the commencement of this Constitution under the Crownin India or after such commencement in connection with the affairs of theUnion or of a State, are charged on the Consolidated Fund of India orthe Consolidated Fund of a State, then, if–

(a) in the case of a charge on the Consolidated Fund of India, thecourt or Commission serves any of the separate needs of a State,or the person has served wholly or in part in connection with theaffairs of a State; or

(b) in the case of a charge on the Consolidated Fund of a State, thecourt or Commission serves any of the separate needs of the Unionor another State, or the person has served wholly or in part inconnection with the affairs of the Union or another State,

there shall be charged on and paid out of the Consolidated Fund of theState or, as the case may be, the Consolidated Fund of India or theConsolidated Fund of the other State, such contribution in respect of theexpenses or pension as may be agreed, or as may in default of agreementbe determined by an arbitrator to be appointed by the Chief Justice of India.

1[290A. Annual payment to certain Devaswom Funds:– A sum offorty-six lakhs and fifty thousand rupees shall be charged on, and paid outof, the Consolidated Fund of the State of Kerala every year to the TravancoreDevaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shallbe charged on, and paid out of the Consolidated Fund of the State of 2[TamilNadu] every year to the Devaswom Fund established in that State for themaintenance of Hindu temples and shrines in the territories transferred tothat State on the 1st day of November, 1956, from the State of Travancore-Cochin].

291. [Privy purse sums of Rulers]:– Repealed by the Constitution(Twenty-sixth Amendment) Act, 197l, Section 2.

1. Ins. by the Constitution (Seventh Amendment) Act, 1956, Section 19.

2. Subs. for “Madras” by the Madras State (Alteration of Name) Act, 1968 (53 of 1968)Section 4, w.e.f. 14-1-1969.

Art. 291

221

Comments

Articles 264 to 291:-- The Union and State Governments maintain threeaccounts: (1) consolidated fund of the Union/State; (2) the public accounts ofthe Union/State ; and (3) the contingency accounts of the Union/State. All theamounts received as revenue taxes collected are deposited into the consolidatedfund of India and all other moneys received by the Union or the State as thecase may be shall be deposited in the public account of the Union/State. Thecontingency fund is the account into which the funds from the consolidatedfunds are transferred. While amounts in the consolidated fund of India and thepublic account are spent in accordance with the sanctions provided in the budget,the amounts of the contingency fund are spent by the orders of the Governorto meet the expenses arising out of unprovided contingencies unexpected expenditureor the excess expenditure pending sanction of the Parliament. Supplementary andadditional grants may be sanctioned by the Parliament.

There are four methods by which the revenues received are apportioned.Firstly stamp duties and duties on the toilet and medical preparations are leviedin the name of the Union and collected by the State. The amount received areappropriated by the respective States. The second method is levy and collectionof service tax. This tax is collected by the Union as well as by the State andis appropriated to the Union and the States in accordance with the principle laiddown by the Parliament. The third method is levy and collection of tax on theinter-State sale and purchase of goods and on consignment sales. Here the taxcollected by the Union is assigned to the State in which the tax is collected.The fourth method is related to all taxes levied and collected by the Union inexercise of its power to levy tax and they shall be appropriated among the Statesin accordance with orders of the President issued following the recommendationsof the Finance Commission.

It may be noted here that surcharges and cesses over and above the taxare levied for the purposes of the Union and such amounts are not divisiblebetween the State and the Union. In addition the Union Government is competentto make special grants to such of those States which might lose their revenueby reason of levy of import and export duties on goods which have specialimportance to States. The States of Assam, Bihar, Orissa and West Bengal receivegrants in lieu of the export duty on jute. Further the Union Government makesspecific grants to certain States which may incur additional expenditure whileexecuting projects of national importance. There are also special grants calledgrants-in-aid. The Parliament may sanction to such of the State which needassistance depending on their need. All these grants are made out of theconsolidated fund of India.



There are a few general provisions in this chapter on finance. The firstone is that there is no tax without there being a law. It means there shall bea law defining the tax and its incidence. Such law should lay down the procedureto make assessment. Unless the tax is duly levied against a person liable to paythe tax, the liability to pay tax does not arise. The law should lay down therules to be observed for recovery of the tax. Tax collected without authorityof law and without observing the provisions of assessment and collection is liableto be refunded. The amount of tax paid whether it is in full settlement of thedemand or for part satisfaction or in protest shall be received and acknowledged.All the monies received otherwise shall be accounted as received under publicaccount. The second rule is all deposits made with the Government includingCourt deposits shall be kept in the public account. The third rule is that allthe properties of the Union are exempt from State taxation. The electricitygenerated and water bodies created by the Union in relation to inter-State riversand development of inter-State river basins shall not be taxed by the State. Thefourth rule is that the State Government is not competent to impose any taxon inter-State sale and purchase of goods.

In secular State no Government can make financial provision for maintenanceof any religious institution. But poignant situation arose when the Cochin PrincelyState was merged into Indian Union. Here some properties, the income fromwhich was being used for purpose of Guruvayur temple came to TravancoreState and some properties have come to Tamil Nadu State. It was in this contextthe Constitution by Article 290-A has come to provide that an amount ofRs.46,50,0000/- shall be paid out of the consolidated fund of Kerala and a sumof Rs.13,50,000/- shall be paid out of the consolidated fund of Tamil Nadu everyyear to Devaswom Fund established by the State of Kerala towards maintenanceof the Hindu Temple.

CHAPTER II – BORROWING

292. Borrowing by the Government of India:– The executive powerof the Union extends to borrowing upon the security of the ConsolidatedFund of India within such limits, if any, as may from time to time be fixedby Parliament by law and to the giving of guarantees within such limits, ifany, as may be so fixed.

293. Borrowing by States:– (1) Subject to the provisions of this article,the executive power of a State extends to borrowing within the territory of

1. Subs. by the Constitution (Fortieth Amendment) Act, 1976, Sec. 2, w.e.f. 27-5-1976.

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India upon the security of the Consolidated Fund of the State within suchlimits, if any, as may from time to time be fixed by the Legislature of suchState by law and to the giving of guarantees within such limits, if any, asmay be so fixed.

(2) The Government of India may, subject to such conditions as maybe laid down by or under any law made by Parliament, make loans to anyState or, so long as any limits fixed under Article 292 are not exceeded,give guarantees in respect of loans raised by any State, and any sums requiredfor the purpose of making such loans shall be charged on the ConsolidatedFund of India.

(3) A State may not without the consent of the Government of Indiaraise any loan if there is still outstanding any part of a loan which has beenmade to the State by the Government of India or by its predecessorGovernment, or in respect of which a guarantee has been given by theGovernment of India or by its predecessor Government.

(4) A consent under clause (3) may be granted subject to suchconditions, if any, as the Government of India may think fit to impose.

Comments

Articles 292 and 293:-- The Government of India and the Governmentof State are invested with power to borrow funds from the public on the securityof their assets or guarantees furnished. While the Government of India can borrowfrom foreign agencies, the State Government can borrow except through theGovernment of India. For the borrowing of the State it is open to the Governmentof India to furnish guarantee but the Government of India will not furnishadditional guarantees for additional State loans unless the State Governments clearthe earlier loans for which the Government of India furnished guarantee.

CHAPTER III – PROPERTY, CONTRACTS, RIGHTS, LIABILITIES,

OBLIGATIONS AND SUITS

294. Succession to property, assets, rights, liabilities and obligationsin certain cases:– As from the commencement of this Constitution–

(a) all property and assets which immediately before such commencementwere vested in His Majesty for the purposes of the Governmentof the Dominion of India and all property and assets which immediatelybefore such commencement were vested in His Majesty for thepurposes of the Government of each Governor’s Province shall vestrespectively in the Union and the corresponding State, and



(b) all rights, liabilities and obligations of the Government of the Dominionof India and of the Government of each Governor’s Province,whether arising out of any contract or otherwise, shall be the rights,liabilities and obligations respectively of the Government of Indiaand the Government of each corresponding State,

subject to any adjustment made or to be made by reason of the creationbefore the commencement of this Constitution of the Dominion of Pakistanor of the Provinces of West Bengal, East Bengal, West Punjab and EastPunjab.

295. Succession to property, assets, rights, liabilities and obligationsin other cases:– (1) As from the commencement of this Constitution–

(a) all property and assets which immediately before such commencementwere vested in any Indian State corresponding to a State specifiedin Part B of the First Schedule shall vest in the Union, if the purposesfor which such property and assets were held immediately beforesuch commencement will thereafter be purposes of the Unionrelating to any of the matters enumerated in the Union List, and

(b) all rights, liabilities and obligations of the Government of any IndianState corresponding to a State specified in Part B of the FirstSchedule, whether arising out of any contract or otherwise, shallbe the rights, liabilities and obligations of the Government of India,if the purposes for which such rights were acquired or liabilitiesor obligations were incurred before such commencement will thereafterbe purposes of the Government of India relating to any of thematters enumerated in the Union List,

subject to any agreement entered into in that behalf by the Government ofIndia with the Government of that State.

(2) Subject as aforesaid, the Government of each State specified inPart B of the First Schedule shall, as from the commencement of thisConstitution, be the successor of the Government of the corresponding IndianState as regards all property and assets and all rights, liabilities and obligations,whether arising out of any contract or otherwise, other than those referredto in clause (1).

296. Property accruing by escheat or lapse or as bona vacantia:–Subject as hereinafter provided, any property in the territory of India which,if this Constitution had not come into operation, would have accrued to His

Art. 296

225

Majesty or, as the case may be, to the Ruler of an Indian State by escheator lapse, or as bona vacantia for want of a rightful owner, shall, if it isproperty situate in a State, vest in such State, and shall, in any other case,vest in the Union:

Provided that any property which at the date when it would have soaccrued to His Majesty or to the Ruler of an Indian State was in thepossession or under the control of the Government of India or the Governmentof a State shall, according as the purposes for which it was then used orheld were purposes of the Union or of a State, vest in the Union or inthat State.

Explanation:– In this Article, the expressions “Ruler” and “Indian State”have the same meanings as in Article 363.

Caselaw

Principle of escheat is not new. It is a part of jurisprudence. Sheo Nandand others v. Deputy Director of Consolidation, Allahabad and others, AIR 2000SC 1141.

1[297. Things of value within territorial waters or continental shelfand resources of the exclusive economic zone to vest in the Union:–(1) All lands, minerals and other things of value underlying the ocean withinthe territorial waters, or the continental shelf, or the exclusive economic zone,of India shall vest in the Union and be held for the purposes of the Union.

(2) All other resources of the exclusive economic zone of India shallalso vest in the Union and be held for the purposes of the Union.

(3) The limits of the territorial waters, the continental shelf, the exclusiveeconomic zone, and other maritime zones, of India shall be such as maybe specified, from time to time, by or under any law made by Parliament.]

2[298. Power to carry on trade, etc.:– The executive power of theUnion and of each State shall extend to the carrying on of any trade orbusiness and to the acquisition, holding and disposal of property and themaking of contracts for any purpose:

Provided that–

(a) the said executive power of the Union shall, in so far as such tradeor business or such purpose is not one with respect to which

CONST-15

1. Subs. by the Constitution (Fortieth Amendment) Act, 1976, Sec. 2, w.e.f. 27-5-1976.

2. Subs. by the Constitution (Seventh Amendment) Act, 1956, Sec. 20.



Parliament may make laws, be subject in each State to legislationby the State; and

(b) the said executive power of each State shall, in so far as suchtrade or business or such purpose is not one with respect to whichthe State Legislature may make laws, be subject to legislation byParliament.]

Caselaw

Scope of authority under Art. 298 is wider than Art. 301. Business includestrade and commerce. M/s. B.R. Enterprises v. State of U.P. and others, AIR1999 SC 1867.

299. Contracts:– (1) All contracts made in the exercise of the executivepower of the Union or of a State shall be expressed to be made by thePresident, or by the Governor of the State, as the case may be, and allsuch contracts and all assurances of property made in the exercise of thatpower shall be executed on behalf of the President or the Governor by suchpersons and in such manner as he may direct or authorise.

(2) Neither the President nor the Governor shall be personally liablein respect of any contract or assurance made or executed for the purposesof this Constitution, or for the purposes of any enactment relating to theGovernment of India heretofore in force, nor shall any person making orexecuting any such contract or assurance on behalf of any of them bepersonally liable in respect thereof.

Caselaw

Contract cannot be rescinded just because of the rise in prices in internationalmarket. Noble Resources Ltd. v. State of Orissa & Anr., AIR 2007 SC 119.

Bids – The opening of which once postponed can be opened only afterdue notice. Kapsch Metro JV v. U.O.I. and Anr., AIR 2007 (NOC) 1950 (Del.).

When the Government increases minimum wages, the contractor is entitledto claim the difference. Suryamani Nayak v. Orissa State Housing Board andothers, AIR 2005 Ori. 26.

300. Suits and proceedings:– (1) The Government of India may sueor be sued by the name of the Union of India and the Government of aState may sue or be sued by the name of the State and may, subject toany provisions which may be made by Act of Parliament or of the Legislatureof such State enacted by virtue of powers conferred by this Constitution,

Art. 300

227

sue or be sued in relation to their respective affairs in the like cases asthe Dominion of India and the corresponding Provinces or the correspondingIndian States might have sued or been sued if this Constitution had not beenenacted.

(2) If at the commencement of this Constitution–

(a) any legal proceedings are pending to which the Dominion of Indiais a party, the Union of India shall be deemed to be substitutedfor the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an IndianState is a party, the corresponding State shall be deemed to besubstituted for the Province or the Indian State in those proceedings.

Comments

Articles 294 to 300:-- After the transfer of power on August 15, 1947all the properties vested in the British Crown had come to be vested with theUnion Government and the State Governments. There had been a long standingcontroversy whether the sovereign was the owner of the land or the peoplewho cultivate the land are owners. According to the Roman Law and Mohammedanjurisprudence all the lands within the domain of the sovereign belong to sovereignand that the holders of the land were only granted such rights as the sovereigndesired. But under the Hindu jurisprudence the finders and occupiers and thecultivators are the owners of the land. This controversy has given rise to theconcept of cultivator owning the ownership rights and the cultivator owningmerely the occupancy rights. That is why during the British regime the ryotwas said to own a permanent rights of occupancy only and the Governmenthad a superior domain over the land whereby it can acquire the lands with,if the Government so chooses or without compensation at the discretion of theGovernment. This controversy has come to an end by the Government makingappropriate revenue laws conferring on the ryots the ownership and issuepassbooks which are equivalent to title deeds. In this context it may be mentionedwherever there is no owner of any property, movable or immovable, it vestswith the Government. The law made in this regard provides elaborate enquiryto trace the owners and it is only after the expiry of thirty years vesting ofthe property with the Government becomes absolute.

All the properties situated within the territorial waters, continental shelf andexclusive economic zone are declared by the Constitution as the property ofthe Union. These areas being located beyond the sea belt, the State Governmentshave no proprietary right in those properties.

It is within the executive power of the Government to carry on trade andalso it is within the scope of the executive power of the Union and State



Governments to enter into contract. They have also a right to sue and be suedin their name. It is wrong to sue the State or the Union without describingthe Union as represented by its Secretary and the State as represented by theSecretary. Any suit described otherwise is liable to be dismissed. Where by reasonof any change in the law any other person or authority is substituted in theplace of the Government, there is no need to add such other party as the plaintiffor the defendant in addition to the Government. The cause title only must beamended by an application made in this behalf. However if the cause of actionfor filing any suit against the Government is deemed to have arisen against thesucceeding authority or person, the suit must be filed within the period of limitationagainst the succeeding authority. The suit filed within the limitation against theGovernment wrongly and subsequent correction of the name by a correct partywill not save limitation. Therefore it is advisable in all such cases where transferof interest occurs the suit should be filed by the succeeding party in the firstinstance within time instead of claiming that since the suit originally filed eventhough wrongly, is within time, it should be treated as not barred by time.

Similarly when a suit which should have been filed by the Governmentonly notwithstanding the change in law is filed by the authority or the personsucceeding will be treated as time barred if the Government as a necessary partyis brought on record after the period of limitation expires.

The contract with the Government shall be expressly executed by thePresident in his name and it must be so stated and signed by the person dulyauthorised. That being a mandatory term any contract otherwise made will notbind the Government. When the contract is expressed as signed on behalf ofthe Government it is not open to anybody to question whether it was or wasnot with the consent of the President. Even though the Government is not boundto carry out the terms of the contract which was made contrary to the aboveposition, it is yet bound to return the advantage the Government has receivedunder the contract. The Government is also bound to all tortious actions of itsemployees if such acts are done in the course of their employment and whensuch acts are in excess of their authority.

Caselaw

Doctrine of sovereign immunity does not apply to the acts committed byofficers during their office. The State of Madhya Pradesh and another v. Smt.Shantibai and another, AIR 2005 MP 66.

Writ petition by department of one State Government and against anotheris improper. 2003 AIR SCW 1251.

Allotment of petrol outlets by the Minister is not a sovereign act. CommonCause, a Registered Society v. Union of India and others, AIR 1999 SC 2979.

Art. 300

229

1[CHAPTER-IV – RIGHT TO PROPERTY

300A. Persons not to be deprived of property save by authorityof law:– No person shall be deprived of his property save by authorityof law.]

Comments

Article 300A:-- This Article is a declaratory Article. The subject-matter

of this Article originally formed part of the Chapter on Fundamental Rights. On

account of several contentions which arose as a consequence of the right to

property being a fundamental (such as that the property or right to property

can be acquired without paying compensation or with compensation which is

adequate or not illusory etc.) it was repealed but it was reintroduced in a different

form in Article 300-A. This Article states that no person shall be deprived of

his property without authority of law. It means the law which provides for

acquisition of properties by the State shall necessarily make a provision for

compensation as well as resettlement wherever necessary. While providing for

compensation the law may state the principles on which compensation may be

calculated or fix compensation which may be in a specified sum taking into

consideration the entire purpose and intendment of the legislation. The present

Article 300-A has to be read in the context of Article 31-A which gives an

indication that the compensation payable may be different if the purposes differ.

When a land acquired happens to be the excess land over the ceiling limit

compensation payable is different from the compensation payable for acquiring

the land within the ceiling limits. Reference may also be made to the State

acquiring the property for an industry. In such case it is mandatory for the

Government to pay the market value for the land acquired and similarly when

the land is acquired happens to be the land belonging to religious endowment,

the compensation payable shall be the market value irrespective of whether such

land is within the ceiling limit or beyond ceiling limit.

Caselaw

Non-payment of compensation for land acquired calls for imposition ofheavy costs. State of U.P. and others v. Manohar, AIR 2005 SC 488.


Finance, Property, Contracts and SuitsArt. 300A


PART XIII

TRADE, COMMERCE AND INTERCOURSE WITHINTHE TERRITORY OF INDIA

301. Freedom of trade, commerce and intercourse:– Subject tothe other provisions of this Part, trade, commerce and intercourse throughoutthe territory of India shall be free.

Caselaw

Power to tax under Part 12 is subject to restrictions contained in Part13. Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232.

302. Power of Parliament to impose restrictions on trade, commerceand intercourse:– Parliament may by law impose such restrictions on thefreedom of trade, commerce or intercourse between one State and anotheror within any part of the territory of India as may be required in the publicinterest.

303. Restrictions on the legislative powers of the Union and ofthe States with regard to trade and commerce:– (1) Notwithstandinganything in Article 302, neither Parliament nor the Legislature of a State shallhave power to make any law giving, or authorising the giving of, anypreference to one State over another, or making, or authorising the makingof, any discrimination between one State and another, by virtue of any entryrelating to trade and commerce in any of the Lists in the Seventh Schedule.

(2) Nothing in clause (1) shall prevent Parliament from making any lawgiving, or authorising the giving of, any preference or making, or authorisingthe making of, any discrimination if it is declared by such law that it isnecessary to do so for the purpose of dealing with a situation arising fromscarcity of goods in any part of the territory of India.

304. Restrictions on trade, commerce and intercourse amongStates:– Notwithstanding anything in Article 301 or Article 303, the Legislatureof a State may by law–

(a) impose on goods imported from other States 1[or the Unionterritories] any tax to which similar goods manufactured or producedin that State are subject, so, however, as not to discriminatebetween goods so imported and goods so manufactured or produced;and

1. Ins. by the Constitution (Seventh Amendment) Act, 1956, Sec. 29 and Schedule.

Art. 304

231

(b) impose such reasonable restrictions on the freedom of trade,commerce or intercourse with or within that State as may berequired in the public interest :

Provided that no Bill or amendment for the purposes of clause (b) shallbe introduced or moved in the Legislature of a State without the previoussanction of the President.

1[305. Saving of existing laws and laws providing for Statemonopolies:– Nothing in Articles 301 and 303 shall affect the provisionsof any existing law except in so far as the President may by order otherwisedirect; and nothing in Article 301 shall affect the operation of any law madebefore the commencement of the Constitution (Fourth Amendment) Act,1955, in so far as it relates to, or prevent Parliament or the Legislatureof a State from making any law relating to, any such matter as is referredto in sub-clause (ii) of clause (6) of Article 19.]

306. [Power of certain States in Part B of the First Schedule toimpose restrictions on trade and commerce]:– Repealed by theConstitution (Seventh Amendment) Act, 1956, Section 29 and Schedule.

307. Appointment of authority for carrying out the purposes ofArticles 301 to 304:– Parliament may by law appoint such authority asit considers appropriate for carrying out the purposes of Articles 301, 302,303 and 304, and confer on the authority so appointed such powers andsuch duties as it thinks necessary.

Comments

Articles 301 to 307:-- Article 301 is a declaratory Article. It states thatthe trade, commerce and intercourse throughout the territory of India shall befree. The word ‘intercourse’ means movement of persons from one State toanother or from one region to other. It enjoins on all the States that they amongthemselves shall not discriminate in any manner the business transactions betweenand across the States. For example, if goods are taxed at a particular rate inone State, the same shall not be taxed at different rate on the ground that theyare produced or manufactured in a different State. Similarly if the goodsmanufactured out of local produce they shall not be taxed with differential ratethan those produced out of the produce imported from different State. Anotherillustration is that if the Government lotteries are permitted in one State, it isnot open to the State to ban the sale of the tickets under the Government lotteries

1. Subs. by the Constitution (Fourth Amendment) Act, 1955, Sec. 4, for Article 305.

Trade, Commerce and intercourse within .....Art. 307


of the other States. The Government of India however has power to imposesuch restrictions on the movement of goods from one State to the other andfrom one place to the other within the Indian Union. The Government of Indiais authorised to appoint a statutory authority for directing any regulatory inter-State trade and commerce. No such authority has yet been appointed.

When the question arose as to how value added tax may be implementedall over India the Government appointed a Committee of all Finance Ministersof all the States to recommend measures which may help to administer the singletax system in different States who are allowed to make laws replacing the thenexisting sales tax system in different States.

Notwithstanding anything contrary in this part it is not open to any authoritiesin India to impose any restrictions on the movement of persons from one placeto the other.

PART-XIV

SERVICES UNDER THE UNION AND THE STATES

CHAPTER I – SERVICES

308. Interpretation:– In this Part, unless the context otherwise requires,the expression “State” 1[does not include the State of Jammu and Kashmir].

309. Recruitment and conditions of service of persons servingthe Union or a State:– Subject to the provisions of this Constitution, Actsof the appropriate Legislature may regulate the recruitment, and conditionsof service of persons appointed, to public services and posts in connectionwith the affairs of the Union or of any State:

Provided that it shall be competent for the President or such personas he may direct in the case of services and posts in connection with theaffairs of the Union, and for the Governor of a State or such person ashe may direct in the case of services and posts in connection with the affairsof the State, to make rules regulating the recruitment, and the conditionsof service of persons appointed, to such services and posts until provisionin that behalf is made by or under an Act of the appropriate Legislatureunder this Article, and any rules so made shall have effect subject to theprovisions of any such Act.

1. Subs. by the Constitution (Seventh Amendment) Act, 1956, Sec. 29 and Sch., for “meansa State specified in part A or part B of the First Schedule”.

Art. 309

233

Caselaw

For persons engaged under contract service rules are not applicable. UnionPublic Service Commission v. Girish Jayanthilal Vaghela and others, AIR 2006SC 1165.

After accepting resignation the employee cannot be re-employed condoningthe period of absence. Chand Mal Chayal v. State of Rajasthan, AIR 2006 SC3340.

When the offer made by employee for voluntary retirement is acceptedafter the period prescribed, therefor it becomes complete. Punjab and Sind Bank& Ors. v. Mohinder Pal Singh & Ors., AIR 2006 SC 533.

Disciplinary action will not offend Art. 21 of the Constitution. MathuraPrasad v. Union of India & Ors., AIR 2007 SC 381.

Transfers of civil servants affected by an executive order is not tenableif the same is not supported by any service rules. Tejshree Ghag etc. etc. v.Prakash Parashuram Patil & Ors. etc., etc., AIR 2007 SC 2141.

Executive instructions and rules – Rules prevail over executive instructions.Virender Singh Hooda and others v. State of Haryana and another, AIR 2005SC 137.

Reservation for women in place of preference to posts of District Munsiffs– Void. 2005 AIR SCW 5388.

Resignation entails forfeiture of service. Hence no pension is payable. 2005AIR SCW 5583.

Scientific pool scheme to check brain drain is valid. Council of Scientificand Industrial Research and others v. Dr. Ajay Kumar Jain, AIR 2000 SC 2710.

Freedom fighters’ pension – In the absence of jail certificate, certificateissued by another freedom fighter is a sufficient proof. Ramniklal B. Shuklav. Union of India and another, AIR 2000 Guj. 234.

310. Tenure of office of persons serving the Union or a State:–(1) Except as expressly provided by this Constitution, every person whois a member of a defence service or of a civil service of the Union or ofan all-India service or holds any post connected with defence or any civilpost under the Union holds office during the pleasure of the President, andevery person who is a member of a civil service of a State or holds anycivil post under a State holds office during the pleasure of the Governorof the State.

Services under the Union and the StatesArt. 310


(2) Notwithstanding that a person holding a civil post under the Unionor a State holds office during the pleasure of the President or, as the casemay be, of the Governor of the State, any contract under which a person,not being a member of a defence service or of an all-India service or ofa civil service of the Union or a State, is appointed under this Constitutionto hold such a post may, if the President or the Governor, as the case maybe, deems it necessary in order to secure the services of a person havingspecial qualifications, provide for the payment to him of compensation, ifbefore the expiration of an agreed period that post is abolished or he is,for reasons not connected with any misconduct on his part, required to vacatethat post.

311. Dismissal, removal or reduction in rank of persons employedin civil capacities under the Union or a State:– (1) No person whois a member of a civil service of the Union or an all-India service or acivil service of a State or holds a civil post under the Union or a Stateshall be dismissed or removed by an authority subordinate to that by whichhe was appointed.

1[(2) No such person as aforesaid shall be dismissed or removed orreduced in rank except after an inquiry in which he has been informed ofthe charges against him and given a reasonable opportunity of being heardin respect of those charges 2[xxx] :

3[Provided that where it is proposed after such inquiry, to impose uponhim any such penalty, such penalty may be imposed on the basis of theevidence adduced during such inquiry and it shall not be necessary to givesuch person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply–]

(a) where a person is dismissed or removed or reduced in rank onthe ground of conduct which has led to his conviction on a criminalcharge; or

(b) where the authority empowered to dismiss or remove a personor to reduce him in rank is satisfied that for some reason, to berecorded by that authority in writing, it is not reasonably practicableto hold such inquiry; or

1. Subs. for clauses (2) and (3) by the Constitution (Fifteenth Amndt.) Act, 1963, Sec. 10.

2. Omitted by the Constitution (Forty-second Amendment) Act, 1976, S. 44, w.e.f. 3.1.1977.

3. Subs. by the Constitution (Forty-second Amendment) Act, 1976, S. 44, w.e.f. 3.1.1977.

Art. 311

235

(c) where the President or the Governor, as the case may be, is satisfiedthat in the interest of the security of the State it is not expedientto hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question ariseswhether it is reasonably practicable to hold such inquiry as is referred toin clause (2), the decision thereon of the authority empowered to dismissor remove such person or to reduce him in rank shall be final.]

Caselaw

Teacher assaulting principal amounts to misconduct deserves removal aspunishment. Kendriya Vidyalaya Sangathan & Anr. v. Satbir Singh Mahla, AIR2008 SC 1612.

Show cause notice served on the last day of the employee’s service isa valid notice and service. U.P. State Sugar Corporation Ltd. and another v.Kamal Swaroop Tandon, AIR 2008 SC 1235.

Power to impose punishment without enquiry – even where the employeeconsents is not always sustainable. State of M.P. v. Hazarilal, AIR 2008 SC1300.

Police Officer standing surety for accused amounts to misconduct.Commissioner, Police v. Syed Hussain, AIR 2006 SC 1246.

Loss of faith is a good ground for punishing an employee even thoughthe infraction seems to be minor. Divisional Controller, N.E.K.R.T.C. v. H.Amaresh, AIR 2006 SC 2730.

Where employees overstays leave, giving him six months’ time to join dutyamounts to premium to indiscipline. Govt. of India & Anr. v. George Philip,AIR 2007 SC 705.

Termination of service on grounds of producing false caste certificate isabsolute and cannot be condoned on the basis of an undertaking of future goodconduct. Additional General Manager, Human Resource, BHEL Ltd. v. SureshRamkrishna Burde, AIR 2007 SC 2048.

Dispensing with enquiry justified. Union of India v. Tulsiram Patel, AIR1985 SC 1416.

Departmental enquiry can be stayed till the criminal case is finalised.Kendriya Vidyalaya Sangathan and others v. T. Srinivas, AIR 2004 SC 4127= 2004 AIR SCW 4587.

Guard found to be sleeping is liable to be punished with dismissal. 2002(8) JT 237.



When the case in departmental proceedings and criminal case are the same,acquittal in criminal case should result in revoking the order of dismissal madeearlier. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, AIR1999 SC 1416.

Judicial officer making an order by erroneously exercising jurisdiction doesnot commit misconduct. AIR 2001 SC 2788.

Adverse entry – Prior opportunity need not be given to the employee. AIR2000 SC 2150.

312. All-India services:– (1) Notwithstanding anything in 1[ChapterVI of Part VI or Part XI], if the Council of States has declared by resolutionsupported by not less than two-thirds of the members present and votingthat it is necessary or expedient in the national interest so to do, Parliamentmay by law provide for the creation of one or more all-India services2[(including an all-India judicial service)] common to the Union and the States,and, subject to the other provisions of this Chapter, regulate the recruitment,and the conditions of service of persons appointed, to any such service.

(2) The services known at the commencement of this Constitution asthe Indian Administrative Service and the Indian Police Service shall bedeemed to be services created by Parliament under this Article.

2[(3) The all-India judicial service referred to in clause (1) shall notinclude any post inferior to that of a district judge as defined in Article 236.

(4) The law providing for the creation of the all-India judicial serviceaforesaid may contain such provisions for the amendment of Chapter VI ofPart VI as may be necessary for giving effect to the provisions of that lawand no such law shall be deemed to be an amendment of this Constitutionfor the purposes of Article 368.]

3[312A. Power of Parliament to vary or revoke conditions ofservice of officers of certain services:– (1) Parliament may by law:–

(a) vary or revoke, whether prospectively or retrospectively, theconditions of service as respects remuneration, leave and pensionand the rights as respects disciplinary matters of persons who,

1. Subs. for “Part XI” by the Constitution (Forty-second Amendment) Act, 1976, Section45, w.e.f. 3-1-1977.


3. Ins. by the Constitution (Twenty-eighth Amndt.) Act, 1972, Section 2, w.e.f. 29-8-1972.

Art. 312A

237

having been appointed by the Secretary of State or Secretary ofState in Council to a civil service of the Crown in India beforethe commencement of this Constitution, continue on and after thecommencement of the Constitution (Twenty-eighth Amendment)Act, 1972, to serve under the Government of India or of a Statein any service or post;

(b) vary or revoke, whether prospectively or retrospectively, theconditions of sevice as respects pension of persons who, havingbeen appointed by the Secretary of State or Secretary of Statein Council to a civil service of the Crown in India before thecommencement of this Constitution, retired or otherwise ceased tobe in service at any time before the commencement of the Constitution(Twenty-eighth Amendment) Act, 1972:

Provided that in the case of any such person who is holding or hasheld the office of the Chief Justice or other Judge of the Supreme Courtor a High Court, the Comptroller and Auditor-General of India, the Chairmanor other member of the Union or a State Public Service Commission orthe Chief Election Commissioner, nothing in sub-clause (a) or sub-clause (b)shall be construed as empowering Parliament to vary or revoke, after hisappointment to such post, the conditions of his service to his disadvantageexcept in so far as such conditions of service are applicable to him by reasonof his being a person appointed by the Secretary of State or Secretary ofState in Council to a civil service of the Crown in India.

(2) Except to the extent provided for by Parliament by law under thisArticle, nothing in this Article shall affect the power of any Legislature orother authority under any other provision of this Constitution to regulate theconditions of service of persons referred to in clause (1).

(3) Neither the Supreme Court nor any other Court shall have jurisdictionin–

(a) any dispute arising out of any provision of, or any endorsementon, any covenant, agreement or other similar instrument which wasentered into or executed by any person referred to in clause (1),or arising out of any letter issued to such person, in relation tohis appointment to any civil service of the Crown in India or hiscontinuance in service under the Government of the Dominion ofIndia or a Province thereof;

Services under the Union and the StatesArt. 312A


(b) any dispute in respect of any right, liability or obligation under Article314 as originally enacted.

(4) The provisions of this Article shall have effect notwithstandinganything in Article 314 as originally enacted or in any other provision ofthis Constitution].

313. Transitional provisions:– Until other provision is made in thisbehalf under this Constitution, all the laws in force immediately before thecommencement of this Constitution and applicable to any public service orany post which continues to exist after the commencement of this Constitution,as an all-India service or as service or post under the Union or a Stateshall continue in force so far as consistent with the provisions of thisConstitution.

314. Provision for protection of existing officers of certain services:–[Rep. by the Constitution (Twenty-eighth Amendment) Act, 1972, S. 3,w.e.f. 29-8-1972].

Comments

Articles 308 to 314:-- The expression ‘recruitment’ and ‘the conditionsof service’ cover the entire field of service jurisprudence. In recruitment areincluded – Name, descriptions about age, qualifications (educational and physical),disqualifications, methods of holding examinations and oral interviews, methodsof selection including reservations and preferences, methods of appointment(temporary training or apprenticeship, ad hoc or permanent). The expression‘conditions of service’ include scales of pay, prospects of promotion, transferability,deputation, lien, rules of conduct and disciplinary proceedings, promotion andretirement. Every employee once appointed is entitled to be continued in the jobtill retirement the age which is fixed at the time of employment. Any actiontaken against the employee for removal from service is not permissible unlessthe post he holds itself is abolished. Even if there be any retrenchment, removalof the employee can be effected in accordance with the rule the ‘last comefirst go’. When new posts are created those who were retrenched shall bereappointed. The doctrine that the servant and employees hold the posts underthe pleasure of the President or the Governor does not apply in India. TheConstitution itself provided the exceptions. In the case of Judges of the SupremeCourt and High Courts their removal cannot be effected except by impeachment.In the case of employees under the Union and the States they can be removedonly by adopting a due procedure. The procedure in this regard envisages: (1)preliminary enquiry; (2) appointment of enquiry officer; (3) submission of a report

Art. 314

239

by the enquiry officer; (4) service of the report along with the charges framedto the employee; (5) receipt of reply from the employee both to the chargesas well as the punishment proposed; (6) the full-fledged enquiry involvingexamination and cross-examination of witnesses and the final order setting outthe reasons for the proposed punishment. Advocates are however not permittedduring the enquiry. The employee however is permitted to be represented byany other person or by any co-employee.

The inclusion of the proposed punishment in the charge-sheet shall notbe interpreted to mean that the punishing authority has already made up his mind.The enquiry may be dispensed with for the present and postponed in exceptionalcircumstances and punishment is imposed straight away. Where appointingauthority feels that there are circumstances which make it impossible to holdany enquiry before punishment is imposed and implemented the enquiry maybe deferred but it is mandatory that the deferred enquiry must be held afterthe impossibility of holding enquiry ceased. The contention that the employeesshall be granted an opportunity at least in such circumstances to make submissionon the quantum of proposed punishment, is negatived by the Courts.

On the question of holding interviews, for selection of candidates it ispermissible to short-list the candidates based on their performance in the examinationand the number of candidates require to be interviewed such number may beupto five times the number of posts proposed to be filled.

There are a few principles in service jurisprudence which may be noticedhere for convenience. No employee shall be punished by an authority inferiorto the appointing authority. The employee shall continue to hold a lien on itspost even though he is sent on deputation to some other establishment. In spiteof his working in the other department, he is entitled to be notionally promotedfrom the post on which he had a lien. The deputationist is also entitled to bepromoted in the other establishment in accordance with his seniority in thatestablishment. When the deputationist returns he should be posted in a post whichhe would have occupied had he not been sent on deputation. He is howevernot entitled to such post in his parent department which is equivalent to thepromoted post he holds in the other establishment by the time his deputationends. Normally it is a right of the deputationist to retain the lien over his originalpost so long as he desires to continue the lien. The Government cannot terminatethe lien arbitrarily without any notice to the deputationist. If any disciplinary actionis required to be taken by the establishment to which he is deputed the casemust be referred to his parent department after holding the necessary preliminaryenquiry.



The punishments which can be awarded to an employee are: (1) removal;(2) dismissal; (3) suspension for a fixed period; (4) withholding of increments;(5) withholding of pension; (6) imposing cuts on pension; (7) recovery of lossesout of future salary and pension; (8) censure.

Where any disciplinary proceedings after framing of charges is pendingor where any prosecution against the employee is pending before a Criminal Court,the question of promoting him to higher post is kept under suspension by adoptinga procedure called sealed cover procedure. Under this procedure the employeeis called for interview before the departmental Selection Committee but the resultis withheld and kept in secret under sealed cover. If the departmental enquiryor the prosecution result in awarding punishment to the employee, then thereis no need to open the sealed cover. If the departmental enquiry or prosecutionresults in favour of the employee the sealed cover is opened and the employeeis promoted retrospectively as and from the date of the promotion by thedepartmental Selection Committee. Though censure is a punishment, it cannotbe counted adverse for his promotion. However all adverse remarks made inthe service book shall be communicated to the employee and his explanationshall be received.

Transfer is no punishment. If it is frequently adopted as a measure ofpunishment or mala fide and when the employee objects the same can bequestioned by him by a complaint to the higher authorities.

There cannot be an employment under the State which does not provideopportunities for improvements in the status and improvement in the salary. Thereshall be upward grades in time scale. The employee shall be given opportunitiesfor getting training and acquiring additional qualifications which help him to bepromoted to the higher post.

Doctrine of pleasure is a concept in Jurisprudence prevalent in Monarchies.When Constitution is the law that governs all the activities of the Government,this concept has become out of date. Indian Constitution does not permitarbitrariness nor does it permit discrimination. All acts done under bias are invalid.Whenever pleasure doctrine is permitted it is qualified and is made subject tothe conditions specified in the Constitution or which may be prescribed by law.Article 311 is one such law which limits the play of the doctrine of pleasure.The other position is that everything the President as the head of the State doesin exercise of the pleasure doctrine is subject to the recommendations and adviceof the Cabinet. This matter was fully discussed in Satyavir Singh v. Union ofIndia, AIR 1986 SC 555 = 1985 (4) SCC 252 = 1986 (1) SLR 255.

CHAPTER II

PUBLIC SERVICE COMMISSIONS

315. Public Service Commissions for the Union and for the States:–(1) Subject to the provisions of this Article, there shall be a Public ServiceCommission for the Union and a Public Service Commission for each State.

(2) Two or more States may agree that there shall be one Public ServiceCommission for that group of States, and if a resolution to that effect ispassed by the House or, where there are two Houses, by each House ofthe Legislature of each of those States, Parliament may by law provide forthe appointment of a Joint State Public Service Commission (referred to inthis Chapter as Joint Commission) to serve the needs of those States.

Art. 315

241

(3) Any such law as aforesaid may contain such incidental andconsequential provisions as may be necessary or desirable for giving effectto the purposes of the law.

(4) The Public Service Commission for the Union, if requested so todo by the Governor of a State, may, with the approval of the President,agree to serve all or any of the needs of the State.

(5) References in this Constitution to the Union Public Service Commissionor a State Public Service Commission shall, unless the context otherwiserequires, be construed as references to the Commission serving the needsof the Union or, as the case may be, the State as respects the particularmatter in question.

316. Appointment and term of office of members:– (1) The Chairmanand other members of a Public Service Commission shall be appointed, inthe case of the Union Commission or a Joint Commission, by the President,and in the case of a State Commission, by the Governor of the State:

Provided that as nearly as may be one-half of the members of everyPublic Service Commission shall be persons who at the dates of theirrespective appointments have held office for at least ten years either underthe Government of India or under the Government of a State, and incomputing the said period of ten years any period before the commencementof this Constitution during which a person has held office under the Crownin India or under the Government of an Indian State shall be included.

1[(1A) If the office of the Chairman of the Commission becomes vacantor if any such Chairman is by reason of absence or for any other reasonunable to perform the duties of his office, those duties shall, until some personappointed under clause (1) to the vacant office has entered on the dutiesthereof or, as the case may be, until the Chairman has resumed his duties,be performed by such one of the other members of the Commission as thePresident, in the case of the Union Commission or a Joint Commission, andthe Governor of the State in the case of a State Commission, may appointfor the purpose.]

(2) A member of a Public Service Commission shall hold office fora term of six years from the date on which he enters upon his office or

1. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, Section 11.


CONST-16


until he attains, in the case of the Union Commission, the age of sixty-fiveyears, and in the case of a State Commission or a Joint Commission, theage of 1[sixty-two years], whichever is earlier:

Provided that–

(a) a member of a Public Service Commission may, by writing underhis hand addressed, in the case of the Union Commission or aJoint Commission, to the President, and in the case of a StateCommission, to the Governor of the State, resign his office;

(b) a member of a Public Service Commission may be removed fromhis office in the manner provided in clause (1) or clause (3) ofArticle 317.

(3) A person who holds office as a member of a Public ServiceCommission shall, on the expiration of his term of office, be ineligible forre-appointment to that office.

317. Removal and suspension of a member of a Public ServiceCommission:– (1) Subject to the provisions of Clause (3), the Chairmanor any other member of a Public Service Commission shall only be removedfrom his office by order of the President on the ground of misbehaviourafter the Supreme Court, on reference being made to it by the President,has, on inquiry held in accordance with the procedure prescribed in thatbehalf under Article 145, reported that the Chairman or such other member,as the case may be, ought on any such ground to be removed.

(2) The President, in the case of the Union Commission or a JointCommission, and the Governor in the case of a State Commission, maysuspend from office the Chairman or any other member of the Commissionin respect of whom a reference has been made to the Supreme Court underClause (1) until the President has passed orders on receipt of the reportof the Supreme Court on such reference.

(3) Notwithstanding anything in Clause (1), the President may by orderremove from office the Chairman or any other member of a Public ServiceCommission if the Chairman or such other member, as the case may be,–

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outsidethe duties of his office; or

1. Subs. by the Constitution (Forty-first Amendment) Act, 1976, Section 2, for “sixty years”.

Art. 317

243

(c) is, in the opinion of the President, unfit to continue in office byreason of infirmity of mind or body.

(4) If the Chairman or any other member of a Public Service Commissionis or becomes in any way concerned or interested in any contract oragreement made by or on behalf of the Government of India or the Governmentof a State or participates in any way in the profit thereof or in any benefitor emolument arising therefrom otherwise than as a member and in commonwith the other members of an incorporated company, he shall, for thepurposes of Clause (1), be deemed to be guilty of misbehaviour.

Caselaw

Removal of member of Public Service Commission – Reference to SupremeCourt. In Re: Smt. Sayalee Sanjeev Jain, AIR 2005 SC 4419 = 2005 AIR SCW5334.

Action taken against removal for misbehaviour becomes futile on the expiryof the tenure of the incumbent. 2003 AIR SCW 213.

318. Power to make regulations as to conditions of service ofmembers and staff of the Commission:– In the case of the UnionCommission or a Joint Commission, the President and, in the case of a StateCommission, the Governor of the State may by regulations–

(a) determine the number of members of the Commission and theirconditions of service; and

(b) make provision with respect to the number of members of the staffof the Commission and their conditions of service:

Provided that the conditions of service of a member of a Public ServiceCommission shall not be varied to his disadvantage after his appointment.

319. Prohibition as to the holding of offices by members ofCommission on ceasing to be such members:– On ceasing to hold office–

(a) the Chairman of the Union Public Service Commission shall beineligible for further employment either under the Government ofIndia or under the Government of a State;

(b) the Chairman of a State Public Service Commission shall be eligiblefor appointment as the Chairman or any other member of the UnionPublic Service Commission or as the Chairman of any other StatePublic Service Commission, but not for any other employment eitherunder the Government of India or under the Government of a State;



(c) a member other than the Chairman of the Union Public ServiceCommission shall be eligible for appointment as the Chairman ofthe Union Public Service Commission or as the Chairman of a StatePublic Service Commission, but not for any other employment eitherunder the Government of India or under the Government of a State;

(d) a member other than the Chairman of a State Public ServiceCommission shall be eligible for appointment as the Chairman orany other member of the Union Public Service Commission or asthe Chairman of that or any other State Public Service Commission,but not for any other employment either under the Government ofIndia or under the Government of a State.

320. Functions of Public Service Commissions:– (1) It shall be theduty of the Union and the State Public Service Commissions to conductexaminations for appointments to the services of the Union and the servicesof the State respectively.

(2) It shall also be the duty of the Union Public Service Commission,if requested by any two or more States so to do, to assist those Statesin framing and operating schemes of joint recruitment for any services forwhich candidates possessing special qualifications are required.

(3) The Union Public Service Commission or the State Public ServiceCommission, as the case may be, shall be consulted–

(a) on all matters relating to methods of recruitment to civil servicesand for civil posts;

(b) on the principles to be followed in making appointments to civilservices and posts and in making promotions and transfers fromone service to another and on the suitability of candidates for suchappointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under theGovernment of India or the Government of a State in a civilcapacity, including memorials or petitions relating to such matters;

(d) on any claim by or in respect of a person who is serving or hasserved under the Government of India or the Government of aState or under the Crown in India or under the Government ofan Indian State, in a civil capacity, that any costs incurred by himin defending legal proceedings instituted against him in respect of

Art. 320

245

acts done or purporting to be done in the execution of his dutyshould be paid out of the Consolidated Fund of India, or, as thecase may be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuriessustained by a person while serving under the Government of Indiaor the Government of a State or under the Crown in India or underthe Government of an Indian State, in a civil capacity, and anyquestion as to the amount of any such award,

and it shall be the duty of a Public Service Commission to advise on anymatter so referred to them and on any other matter which the President,or, as the case may be, the Governor of the State, may refer to them:

Provided that the President as respects the all-India services and alsoas respects other services and posts in connection with the affairs of theUnion, and the Governor, as respects other services and posts in connectionwith the affairs of a State, may make regulations specifying the matters inwhich either generally, or in any particular class of case or in any particularcircumstances, it shall not be necessary for a Public Service Commissionto be consulted.

(4) Nothing in Clause (3) shall require a Public Service Commissionto be consulted as respects the manner in which any provision referred toin Clause (4) of Article 16 may be made or as respects the manner in whicheffect may be given to the provisions of Article 335.

(5) All regulations made under the proviso to Clause (3) by the Presidentor the Governor of a State shall be laid for not less than fourteen daysbefore each House of Parliament or the House or each House of theLegislature of the State, as the case may be, as soon as possible after theyare made, and shall be subject to such modifications, whether by way ofrepeal or amendment, as both Houses of Parliament or the House or bothHouses of the Legislature of the State may make during the session in whichthey are so laid.

Caselaw

Adoption of scaling system in examinations is valid. 2003 AIR SCW 5844.

Vacancies arising after publication of select list can be filled by waitinglist personnel. Secretary, Finance and Planning Department and others v. SaladaS. Rao and another, AIR 1999 SC 1709.



321. Power to extend functions of Public Service Commissions:–An Act made by Parliament or, as the case may be, the Legislature of aState may provide for the exercise of additional functions by the Union PublicService Commission or the State Public Service Commission as respects theservices of the Union or the State and also as respects the services of anylocal authority or other body corporate constituted by law or of any publicinstitution.

322. Expenses of Public Service Commissions:– The expenses ofthe Union or a State Public Service Commission, including any salaries,allowances and pensions payable to or in respect of the members or staffof the Commission, shall be charged on the Consolidated Fund of India or,as the case may be, the Consolidated Fund of the State.

323. Reports of Public Service Commissions:– (1) It shall be theduty of the Union Commission to present annually to the President a reportas to the work done by the Commission and on receipt of such report thePresident shall cause a copy thereof together with a memorandum explaining,as respects the cases, if any, where the advice of the Commission was notaccepted, the reasons for such non-acceptance to be laid before each Houseof Parliament.

(2) It shall be the duty of a State Commission to present annually tothe Governor of the State a report as to the work done by the Commission,and it shall be the duty of a Joint Commission to present annually to theGovernor of each of the States the needs of which are served by the JointCommission a report as to the work done by the Commission in relationto that State, and in either case the Governor, shall, on receipt of such report,cause a copy thereof together with a memorandum explaining, as respectsthe cases, if any, where the advice of the Commission was not accepted,the reasons for such non-acceptance to be laid before the Legislature ofthe State.

Comments

Articles 315 to 323:-- The object of setting up Public Service Commissionis to select public servants who would help the Government to carry on theadministration successfully. Only such persons who are selected: (1) who havethe attitude to receive what all advices to which he is exposed; (2) who arefound to be dedicated to serve the subject to which he is attached, in otherwords he should be all knowing, liberal and might have been educated and trainedin all subjects of human endeavour. For this purpose the Public Service Commission

Art. 323

247

holds two written examinations and an interview. The first test is called preliminariesand the second written test is called main. The Public Service Commission maybe consulted for purpose of recruiting public servants for the Union. A PublicService Commission may be appointed for each State and if so desired by theStates, a common Public Service Commission may be appointed for two or moreStates. Union Public Service Commission can also serve the needs of any Stateor States if they are so requested. Apart from the above the Parliament haspower to appoint a joint Public Service Commission for two or more States.

The Chairman and members of Public Service Commission hold office tillthey reach the age of 65 years in the case of Union Public Service Commission;till they reach the age of 62 in case of State Public Service Commission. Themembers of the Public Service Commission are appointed for a fixed periodof six years and after they retire they may be reappointed to the post whenthey have not reached the age of their retirement. There is a special procedurefor removal of the members of the Public Service Commission. It is only whenthe charge of misbehaviour is held proved by the Supreme Court the Presidentor the Governor may remove the member of the Public Service Commission.The only ground on which a member of the Public Service Commission canbe removed is misbehaviour and no other case. The word ‘misbehaviour’ inthe context means misbehaviour in functioning as Commissioner and suchbehaviour which demeans his status. In one case where a member of PublicService Commission slapped another openly his conduct is held to be a conductbelow his status and so removed. [Presidential reference, AIR 1983 SC 996].

In addition to the selection of candidates for appointments, the Commissionhas responsibility to tender advice to the Government on the following matters:

(1) methods of recruitment;

(2) methods of selection, promotion and transfer of employees from oneplace to another;

(3) on all disciplinary matters effecting the person serving under theGovernment;

(4) on all claims raised by the employees for reimbursement of the costsincurred by them in defending themselves in Court cases filed againstthem;

(5) on claims for pension arising out of any injuries sustained by theemployee during the course of his service;

(6) on any other matter which the President or the Governor may requirethe Commission for advice. The Government, however, is not bound



to act by the advice of the Commission and any decision taken bythe Government on any of the above matters without seeking the adviceof the Commission will not render the action of the Government invalid.

The advertisements published by the Commission should and ought to befollowed by the Commission in all respects but if the Government changes anyrule or the Commission alters any terms of the advertisement, the Commissionmust cancel the earlier advertisement and issue a fresh advertisement. If anyperson who is qualified for being appointed as per the rules but his eligibilityis not included in the advertisement, the advertisement only prevails. On thecontrary, if any qualification mentioned in the advertisement is subsequentlyomitted under the rule, such omission will not render the rights of the candidateto be considered as per the original advertisement. [N.T. Vevin Kalti v. KarnatakaPublic Service Commission, AIR 1990 SC 1233].

1[PART-XIVA

TRIBUNALS

323A. Administative Tribunals:– (1) Parliament may, by law, providefor the adjudication or trial by Administrative Tribunals of disputes andcomplaints with respect to recruitment and conditions of service of personsappointed to public services and posts in connection with the affairs of theUnion or of any State or of any local or other authority within the territoryof India or under the control of the Government of India or of any corporationowned or controlled by the Government.

(2) A law made under Clause (1) may–

(a) provide for the establishment of an Administrative Tribunal for theUnion and a separate Administrative Tribunal for each State orfor two or more States;

(b) specify the jurisdiction, powers (including the power to punish forcontempt) and authority which may be exercised by each of thesaid tribunals;

(c) provide for the procedure (including provisons as to limitation andrules of evidence) to be followed by the said tribunals;

(d) exclude the jurisdiction of all Courts, except the jurisdiction of theSupreme Court under Article 136, with respect to the disputes orcomplaints referred to in Clause (1);

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, Section 46, w.e.f. 3.1.1977.

Art. 323A

249

(e) provide for the transfer to each such Administrative Tribunal ofany cases pending before any Court or other authority immediatelybefore the establishment of such tribunal as would have been withinthe jurisdiction of such tribunal if the cause of action on which suchsuits or proceedings are based had arisen after such establishment;

(f) repeal or amend any order made by the President under Clause(3) of Article 371D;

(g) contain such supplemental, incidental and consequential provisions(including provisions as to fees) as Parliament may deem necessaryfor the effective functioning of, and for the speedy disposal of casesby, and the enforcement of the orders of, such tribunals.

(3) The provisions of this Article shall have effect notwithstandinganything in any other provision of this Constitution or in any other law forthe time being in force.

Caselaw

Disputes about the conditions of service of Public Prosecutors can beentertained by the Service Tribunal. 2004 AIR SCW 488.

Creation of judicial authorities under the Consumer Protection Act is validwithout any suitable amendment to the Constitution. 2003 AIR SCW 558.

Tribunal cannot be constituted for any purpose other than for purposesunder Art. 323-A and 323-B, Sch. VII, List III, Entry 11-A. The word “Court”does not include Tribunal. AIR 2001 Ker. 176.

323B. Tribunals for other matters:– (1) The appropriate Legislaturemay, by law, provide for the adjudication or trial by Tribunals of any disputes,complaints, or offences with respect to all or any of the matters specifiedin Clause (2) with respect to which such Legislature has power to makelaws.

(2) The matters referred to in Clause (1) are the following, namely:–

(a) levy, assessment, collection and enforcement of any tax;

(b) foreign exchange, import and export across customs frontiers;

(c) industrial and labour disputes;

(d) land reforms by way of acquisition by the State of any estate asdefined in Article 31A or of any rights therein or the extinguishmentor modification of any such rights or by way of ceiling on agriculturalland or in any other way;

TribunalsArt. 323B


(e) ceiling on urban property;

(f) elections to either House of Parliament or the House or either Houseof the Legislature of a State, but excluding the matters referredto in Article 329 and Article 329A ;

(g) production, procurement, supply and distribution of foodstuffs(including edible oilseeds and oils) and such other goods as thePresident may, by public notification, declare to be essential goodsfor the purpose of this Article and control of prices of such goods;

1[(h) rent, its regulation and control and tenancy issues including the right,title and interest of landlords and tenants;]

2[(i)] offences against laws with respect to any of the matters specifiedin sub-clauses (a) to (h) and fees in respect of any of those matters;

2[(j)] any matter incidental to any of the matters specified in sub-clauses(a) to 3[(i)].

(3) A law made under Clause (1) may–

(a) provide for the establishment of a hierarchy of Tribunals;

(b) specify the jurisdiction, powers (including the power to punish forcontempt) and authority which may be exercised by each of thesaid Tribunals;

(c) provide for the procedure (including provisions as to limitation andRules of evidence) to be followed by the said Tribunals;

(d) exclude the jurisdiction of all Courts, except the jurisdiction of theSupreme Court under Article 136 with respect to all or any ofthe matters falling within the jurisdiction of the said Tribunals;

(e) provide for the transfer to each such Tribunal of any cases pendingbefore any Court or any other authority immediately before theestablishment of such Tribunal as would have been within thejurisdiction of such Tribunal if the causes of action on which suchsuits or proceedings are based had arisen after such establishment;

1. Ins. by the Constitution (75th Amndt.) Act, 1993, Section 2, w.e.f. 15-5-1994.

2. Sub-clause (h) and (i) relettered as sub-clauses (i) and (j) by the Constitution (Seventy-fifth Amendment) Act, 1993, Section 2, w.e.f. 15-5-1994.

3. Subs. by the Constitution (75th Amndt.) Act, 1993, Section 2, for “(g)”,

w.e.f. 15-5-1994.

Art. 323B

251

(f) contain such supplemental, incidental and consequential provi-sions(including provisions as to fees) as the appropriate Legislature maydeem necessary for the effective functioning of, and for the speedydisposal of cases by, and the enforcement of the orders of, suchTribunals.

(4) The provisions of this Article shall have effect notwithstandinganything in any other provision of this Constitution or in any other law forthe time being in force.

Explanation:– In this Article “appropriate Legislature”, in relation toany matter, means Parliament or, as the case may be, a State Legislaturecompetent to make laws with respect to such matter in accordance withthe provisions of Part XI.]

Comments

Articles 323-A and 323-B:-- A view of the phenomenal rise in the pendencyof cases in the Court and also in view of the non-availability of the Judgesand also in view of the Government being dragged to Court in all service mattersit is felt that separate Tribunals may be constituted to all cases of grievancesto the Government employee. The difference between the trial before the Tribunaland the trial before the Court is very wide. While the Courts follow the detailedprocedure, the Tribunals follow a summary procedure. The Court and the Tribunalare required to follow the principles of natural justice. Therefore while the Courtfollows scrupulously every step in the trial of suits, the Tribunal is requiredto follow the principles of natural justice only. The latter are therefore requiredto adopt such procedure as would satisfy the requirements of natural justice.In order to supplement this power with the power to enforce attendance ofwitnesses and production of documents, the Tribunals are normally invested withpowers in this regard available under CPC. In order to shorten appeals andrevisions, the orders of the Tribunals are subjected to one appeal only to theSupreme Court, that too, under special leave jurisdiction.

The Tribunals are conferred with jurisdiction to punish any person orauthority for violating the orders of the Tribunals or failing to implement theorders of the Tribunal. The powers of the Tribunal to punish persons for contemptis preserved. When once the matter falls within the jurisdiction of the Tribunal,all such matters pending anywhere in India including Supreme Court standstransferred to the Tribunal and no Court in India is competent to entertain anysuit. This however does not prevent the High Court and the Supreme Courtto act under the Articles 226 and 227 and under Article 32 which jurisdiction

TribunalsArt. 323B


is called judicial review. Under Article 323-B the Parliament and State Legislaturescan constitute separate Tribunals to deal with matters specified in that Article.All the rules as to the jurisdiction of the Tribunals will apply to Tribunalsconstituted on those matters. It may not be out of place here to mention aboutthe Industrial Tribunals and Consumer Tribunals where also direct appeals lieto the Supreme Court.

Caselaw

The concept of agrarian reform is not confined to agriculture only or itsreturns. It is wider to include organisation of land system and distribution. Itis intended to realise the social functions of the land. State of West Bengalv. Ashish Kumar Roy and others, AIR 2005 SC 254.

PART-XV

ELECTIONS

324. Superintendence, direction and control of elections to bevested in an Election Commission:– (1) The superintendence, directionand control of the preparation of the electoral rolls for, and the conductof, all elections to Parliament and to the Legislature of every State and ofelections to the offices of President and Vice-President held under thisConstitution 1[xxx] shall be vested in a Commission (referred to in thisConstitution as the Election Commission).

(2) The Election Commission shall consist of the Chief ElectionCommissioner and such number of other Election Commissioners, if any, asthe President may from time to time fix and the appointment of the ChiefElection Commissioner and other Election Commissioners shall, subject tothe provisions of any law made in that behalf by Parliament, be made bythe President.

(3) When any other Election Commissioner is so appointed the ChiefElection Commissioner shall act as the Chairman of the Election Commission.

(4) Before each general election to the House of the People and tothe Legislative Assembly of each State, and before the first general electionand thereafter before each biennial election to the Legislative Council of each

1. The words “including the appointment of election Tribunals for the decision of doubtsand disputes arising out of or in connection with elections to Parliament and to theLegislatures of States” omitted by the Constitution (Nineteenth Amendment) Act, 1966,Section 2.

Art. 324

253

State having such Council, the President may also appoint after consultationwith the Election Commission such Regional Commissioners as he mayconsider necessary to assist the Election Commission in the performance ofthe functions conferred on the Commission by Clause (1).

(5) Subject to the provisions of any law made by Parliament, theconditions of service and tenure of office of the Election Commissioners andthe Regional Commissioners shall be such as the President may by ruledetermine :

Provided that the Chief Election Commissioner shall not be removedfrom his office except in like manner and on the like grounds as a Judgeof the Supreme Court and the conditions of service of the Chief ElectionCommissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a RegionalCommissioner shall not be removed from office except on the recommendationof the Chief Election Commissioner.

(6) The President, or the Governor of a State, shall, when so requestedby the Election Commission, make available to the Election Commission orto a Regional Commissioner such staff as may be necessary for the dischargeof the functions conferred on the Election Commission by Clause (1).

Caselaw

Utilising service of teaching staff for election duty shall be worked outin holidays. Election Commission of India v. St. Mary’s School and others, AIR2008 SC 655.

Awarding election officer who completes first, the counting, is not proper.Talaji Ramachandra Nimhan v. Swathi Vinayak Nimhan, AIR 2006 SC 1216.

Handbook for Returning Officer cannot override the provisions of statute.Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657.

Election Commission has power to issue election symbols order. AIR 2001All. 175.

Election Commission’s direction on pre-election disqualification is valid.Jawahir Singh v. Election Commission of India and another, AIR 1999 All. 18.

Direction of the Election Commissioner to the Minister to move out orthe concerned district is within the power of the Election Commissioner. KunwarRaghuraj Pratap Singh v. Chief Election Commissioner of India, New Delhiand others, AIR 1999 All. 98.

ElectionsArt. 324


325. No person to be ineligible for inclusion in, or to claim tobe included in a special, electoral roll on grounds of religion, race,caste or sex:– There shall be one general electoral roll for every territorialconstituency for election to either House of Parliament or to the House oreither House of the Legislature of a State and no person shall be ineligiblefor inclusion in any such roll or claim to be included in any special electoralroll for any such constituency on grounds only of religion, race, caste, sexor any of them.

326. Elections to the House of the People and to the LegislativeAssemblies of States to be on the basis of adult suffrage:– The electionsto the House of the People and to the Legislative Assembly of every Stateshall be on the basis of adult suffrage; that is to say, every person whois a citizen of India and who is not less than 1[eighteen years] of age onsuch date as may be fixed in that behalf by or under any law made bythe appropriate Legislature and is not otherwise disqualified under thisConstitution or any law made by the appropriate Legislature on the groundof non-residence, unsoundness of mind, crime or corrupt or illegal practice,shall be entitled to be registered as a voter at any such election.

327. Power of Parliament to make provision with respect toelections to Legislatures:– Subject to the provisions of this Constitution,Parliament may from time to time by law make provision with respect toall matters relating to, or in connection with, elections to either House ofParliament or to the House or either House of the Legislature of a Stateincluding the preparation of electoral rolls, the delimitation of constituenciesand all other matters necessary for securing the due Constitution of suchHouse or Houses.

328. Power of Legislature of a State to make provision withrespect to elections to such Legislature:– Subject to the provisions ofthis Constitution and in so far as provision in that behalf is not made byParliament, the Legislature of a State may from time to time by Law makeprovision with respect to all matters relating to, or in connection with, theelections to the House or either House of the Legislature of the State includingthe preparation of electoral rolls and all other matters necessary for securingthe due Constitution of such House or Houses.

1. Subs. for “twenty-one years” by the Constitution (Sixty-first Amndt.) Act, 1988,

Sec. 2.

Art. 328

255

329. Bar to interference by Courts in electoral matters:–1[Notwithstanding anything in this Constitution 2[xxx].

(a) the validity of any law relating to the delimitation of constituenciesor the allotment of seats to such constituencies, made or purportingto be made under Article 327 or Article 328, shall not be calledin question in any Court;

(b) no election to either House of Parliament or to the House or eitherHouse of the Legislature of a State shall be called in question exceptby an election petition presented to such authority and in suchmanner as may be provided for by or under any Law made bythe appropriate Legislature.

Caselaw

Election petition sent by post is not maintainable and liable to be dismissed.Rajeev Gupta v. Union of India & Ors., AIR 2007 Uttaranchal 69.

The object is prompt engineering of elections. K. Venkatachalam v. A.Swamickan and another, AIR 1999 SC 1723.

Writ Court can disqualify the sitting MLA. K. Venkatachalam v. A. Swamickanand another, AIR 1999 SC 1723.

Election process commences with the notification under Section 14 andends with issue of notification under Section 86 of the Representation of People’sAct, 1951. AIR 1999 Ker. 140.

Art. 329(b):-- Undischarged insolvent must be understood as defined inInsolvency Act. It does not mean any person in precarious circumstances.Thanpanoor Ravi v. Charupara Ravi and others, AIR 1999 SC 3309.

3[329A. Special provision as to elections to Parliament in the caseof Prime Minister and Speaker]:– Rep. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 36, w.e.f. 20.6.1979.

Comments

Articles 324 to 329-A:-- Constitution has given prominence to elections.Elections are based on universal adult franchise. The conduct of elections tothe Parliament, the State Legislatures. The conduct of the elections to elect is

1. Subs. by the Constitution (Thirty-ninth Amendment) Act, 1975, Section 3.

2. The words, figures and letter “but subject to the provisions of Article 329A” omittedby the Constitution (Forty-fourth Amendment) Act, 1978, Section 35 (w.e.f. 20-6-1979).

3. Ins. by the Constitution (Thirty-ninth Amendment) Act, 1975, Section 4.

ElectionsArt. 329A


also entrusted to Election Commission which is entrusted with full powers ofsuperintendence, control and direction of elections. The expression ‘superintendence,control and direction of elections’ is given widest meaning and it implies fullfreedom to that authority not only from the executive but also from judiciary.The executive is directed to comply with all requests from the Election Commissionand judiciary is restrained from interfering with the work of the ElectionCommission. The Election Commission is entitled to the services of all suchpersons, it may choose for helping the Commission in the conduct of elections.The Election Commission is not entitled to the services of persons engaged inprivate establishments. The role of the Election Commission in preparation ofelectoral rolls choosing the election stations, organising elections is absolute.Election Commission has power to lay down a Code of Conduct for the candidatesand take action against violators by censuring them on matters which are notoffences and prosecuting candidates in matters which are offences. The ElectionCommission has power to require the Government to transfer any officer engagedin election duties and take also disciplinary action against those officers whoviolate the directions of the Election Commission. The Election Commission haspower to ban pre-polls and exit-polls, surveys, if it is of the opinion that suchpublication may affect the free choice of the voters. It is the Election Commissionwhich announces the programme of elections. While making the announcementit is not incumbent on the Election Commission to hold elections within six monthsof the dissolution of the House if it is premature. In the case where AndhraPradesh Chief Minister Chandra Babu Naidu wanted the Election Commissionto hold election immediately after he got the Assembly dissolved, the ElectionCommission refused his request but held them later after more than six monthsalong with General Elections then impending. For purpose of operation of theCode of Conduct and for the purpose of embargo on the interference of theCourts with the election process the prohibited period comes into operation notwith the date when the Election Commission announces the programme of electionbut with the notification for the election issued by the President calling uponthe electors to choose the legislators.

PART-XVI

SPECIAL PROVISIONS RELATING TOCERTAIN CLASSES

330. Reservation of seats for Scheduled Castes and ScheduledTribes in the House of the People:– (1) Seats shall be reserved in theHouse of the People for–

(a) the Scheduled Castes;

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257

1[(b) the Scheduled Tribes except the Scheduled Tribes in the autonomousDistricts of Assam; and]

(c) the Scheduled Tribes in the autonomous Districts of Assam.

(2) The number of seats reserved in any State 2[or Union Territory]for the Scheduled Castes or the Scheduled Tribes under Clause (1) shallbear, as nearly as may be, the same proportion to the total number of seatsallotted to that State 2[or Union Territory] in the House of the People asthe population of the Scheduled Castes in the State 2[or Union Territory]or of the Scheduled Tribes in the State 2[or Union Territory] or part ofthe State 2[or Union Territory], as the case may be, in respect of whichseats are so reserved, bears to the total population of the State 2[or UnionTerritory].

3[(3) Notwithstanding anything contained in Clause (2), the number ofseats reserved in the House of the People for the Scheduled Tribes in theautonomous Districts of Assam shall bear to the total number of seats allottedto that State a proportion not less than the population of the ScheduledTribes in the said autonomous Districts bears to the total population of theState.]

4[Explanation:– In this Article and in Article 332, the expression“population” means the population as ascertained at the last preceding censusof which the relevant figures have been published:

Provided that the reference in this Explanation to the last precedingcensus of which the relevant figures have been published shall, until therelevant figures for the first census taken after the year 5[2026] have beenpublished, be construed as a reference to the 6[2001] census.]

331. Representation of the Anglo-Indian community in the Houseof the People:– Notwithstanding anything in Article 81, the President may,if he is of opinion that the Anglo-Indian community is not adequatelyrepresented in the House of the People, nominate not more than two membersof that community to the House of the People.

1. Subs. by the Constitution (Fifty-first Amendment) Act, 1984, Section 2 for sub-clause(b), w.e.f. 16-6-1986.

2. Ins. by the Constitution (Seventh Amendment) Act, 1956, Section 29 and Schedule.

3. Ins. by the Constitution (Thirty-first Amendment) Act, 1973, Section 3.

4. Ins. by the Constitution (Forty - second Amendment) Act, 1976, Section 47, w.e.f.3.1.1977.

5. Subs. by the Constitution (Eighty-fourth Amndt.) Act, 2001, Section 6, for the figure“2000”, w.e.f. 21.2.2002.


Art. 331

CONST-17

Special Provisions relating to certain classes


332. Reservation of seats for Scheduled Castes and ScheduledTribes in the Legislative Assemblies of the States:– (1) Seats shallbe reserved for the Scheduled Castes and the Scheduled Tribes, 1[exceptthe Scheduled Tribes in the autonomous Districts of Assam], in the LegislativeAssembly of every State 2[xxx].

(2) Seats shall be reserved also for the autonomous Districts in theLegislative Assembly of the State of Assam.

(3) The number of seats reserved for the Scheduled Castes or theScheduled Tribes in the Legislative Assembly of any State under Clause (1)shall bear, as nearly as may be, the same proportion to the total numberof seats in the Assembly as the population of the Scheduled Castes in theState or of the Scheduled Tribes in the State or part of the State, as thecase may be, in respect of which seats are so reserved, bears to the totalpopulation of the State.

3[(3A) Notwithstanding anything contained in Clause (3), until the takingeffect, under Article 170, of the re-adjustment, on the basis of the first censusafter the year 4[2026], of the number of seats in the Legislative Assembliesof the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland,the seats which shall be reserved for the Scheduled Tribes in the LegislativeAssembly of any such State shall be–

(a) if all the seats in the Legislative Assembly of such State in existenceon the date of coming into force of the Constitution (Fifty-seventhAmendment) Act, 1987 (hereafter in this clause referred to as theexisting Assembly) are held by members of the Scheduled Tribes,all the seats except one;

(b) in any other case, such number of seats as bears to the total numberof seats, a proportion not less than the number (as on the saiddate) of members belonging to the Scheduled Tribes in the existingAssembly bears to the total number of seats in the existing Assembly.]

5[(3B) Notwithstanding anything contained in clause (3), until the re-adjustment, under Article 170, takes effect on the basis of the first census

1. Subs. by the Constitution (Fifty-first Amendment) Act, 1984, Section 3, for certain words,w.e.f. 16-6-1986.


3. Ins. by the Constitution (Fifty-seventh Amendment) Act, 1987, Section 2, w.e.f. 21.9.1987.4. Subs. for the figure “2000” by the Constitution (Eighty-fourth Amndt.) Act, 2001,

Section 7, w.e.f. 21.2.2002.5. Ins. by the Constitution (Seventy-second Amendment) Act, 1992, Section 2, w.e.f.

5.12.1992.

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259

after the year 1[2026], of the number of seats in the Legislative Assemblyof the State of Tripura, the seats which shall be reserved for the ScheduledTribes in the Legislative Assembly, shall be, such number of seats as bearsto the total number of seats, a proportion not less than the number, as onthe date of coming into force of the Constitution (Seventy-second Amendment)Act, 1992, of members belonging to the Scheduled Tribes in the LegislativeAssembly in existence on the said date bears to the total number of seatsin that Assembly.]

(4) The number of seats reserved for an autonomous District in theLegislative Assembly of the State of Assam shall bear to the total numberof seats in that Assembly a proportion not less than the population of theDistrict bears to the total population of the State.

(5) The constituencies for the seats reserved for any autonomous Districtof Assam shall not comprise any area outside that District 2[xxx].

(6) No person who is not a member of a Scheduled Tribe of anyautonomous District of the State of Assam shall be eligible for election tothe Legislative Assembly of the State from any constituency of that District3[xxx].

4[Provided that for elections to the Legislative Assembly of the Stateof Assam, the representation of the Scheduled Tribes and non-ScheduledTribes in the constituencies included in the Bodoland Territorial Areas District,so notified, and existing prior to the constitution of the Bodoland TerritorialAreas District, shall be maintained.]

Caselaw

Claim of off-spring of S.C. that she is scheduled caste only because ofher mother’s marriage with forward class man was not performed, was rejected.The Court expressed dismay about the claim. 2005 AIR SCW 716.

333. Representation of the Anglo-Indian community in theLegislative Assemblies of the States:– Notwithstanding anything in Article170, the Governor of a State may, if he is of opinion that the Anglo-Indian

1. Subs. by Constitution (Eighty-fourth Amendment) Act, 2001 for "2000" w.e.f. 21.2.2002.2. Omitted by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971),

Section 71, w.e.f. 21.1.1972.3. Omitted by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971),

Section 71, w.e.f. 21.1.1972.4. Ins. by the Constitution (Ninetieth Amendment) Act, 2003, w.e.f. 28-9-2003.

Art. 333 Special Provisions relating to certain classes


community needs representation in the Legislative Assembly of the State andis not adequately represented therein, 1[nominate one member of that communityto the Assembly.]

Caselaw

Protem speaker need not be the senior most member. Arjun Munda v.Governor of Jharkhand and others, AIR 2005 SC 4255 = 2005 Scale 52.

334. Reservation of seats and special representation to ceaseafter 2[seventy years]:– Notwithstanding anything in the foregoing provisionsof this Part, the provisions of this Constitution relating to–

(a) the reservation of seats for the Scheduled Castes and the ScheduledTribes in the House of the People and in the Legislative Assembliesof the States; and

(b) the representation of the Anglo-Indian community in the House ofthe People and in the Legislative Assemblies of the States bynomination,

shall cease to have effect on the expiration of a period of 2[seventy years]from the commencement of this Constitution:

Provided that nothing in this Article shall affect any representation inthe House of the People or in the Legislative Assembly of a State until thedissolution of the then existing House or Assembly, as the case may be.

335. Claims of Scheduled Castes and Scheduled Tribes to servicesand posts:– The claims of the members of the Scheduled Castes andScheduled Tribes shall be taken into consideration, consistently with themaintenance of efficiency of administration, in the making of appointmentsto services and posts in connection with the affairs of the Union or of aState.

3[Provided that nothing in this Article shall prevent in making of anyprovision in favour of the members of the Scheduled Castes and theScheduled Tribes for relaxation in qualifying marks in any examination orlowering the standards of evaluation, for reservation in matters of promotion

1. Subs. by the Constitution (Twenty-third Amendment) Act, 1969, Section 4, for “nominatesuch number of members of the community to the Assembly as he considers appropriate”,w.e.f. 23.1.1970.

2. Subs. for “sixty years” by the Constitution (Ninety-fifth Amendment) Act, 2009,Section 2, w.e.f. 25-1-2010.

3. Ins. by the Constitution (Eighty-second Amendment) Act, 2000, Section 2, w.e.f. 8.9.2000.

Art. 335

261

to any class or classes of services or posts in connection with the affairsof the Union or of a State.]

Caselaw

High Court shall be consulted on granting reservation in judicial services.AIR 2000 SC 1296.

336. Special provision for Anglo-Indian community in certainservices:– (1) During the first two years after the commencement of thisConstitution, appointments of members of the Anglo-Indian community toposts in the railway, customs, postal and telegraph services of the Unionshall be made on the same basis as immediately before the fifteenth dayof August, 1947.

During every succeeding period of two years, the number of postsreserved for the members of the said community in the said services shall,as nearly as possible, be less by ten per cent. than the numbers so reservedduring the immediately preceding period of two years:

Provided that at the end of ten years from the commencement of thisConstitution all such reservations shall cease.

(2) Nothing in Clause (1) shall bar the appointment of members ofthe Anglo-Indian community to posts other than, or in addition to, thosereserved for the community under that Clause if such members are foundqualified for appointment on merit as compared with the members of othercommunities.

337. Special provision with respect to educational grants for thebenefit of Anglo-Indian community:– During the first three financial yearsafter the commencement of this Constitution, the same grants, if any, shallbe made by the Union and by each State 1[xxx] for the benefit of the Anglo-Indian community in respect of education as were made in the financial yearending on the thirty-first day of March, 1948.

During every succeeding period of three years the grants may be lessby ten per cent than those for the immediately preceding period of threeyears :

Provided that at the end of ten years from the commencement of thisConstitution such grants, to the extent to which they are a special concessionto the Anglo-Indian community, shall cease :




Provided further that no educational institution shall be entitled to receiveany grant under this Article unless at least forty per cent. of the annualadmissions therein are made available to members of communities other thanthe Anglo-Indian community.

1[338. 2[National Commission for Scheduled Castes]]:– 2[(1) Thereshall be a Commission for the Scheduled Castes to be known as the NationalCommission for the Scheduled Castes.

(2) Subject to the provisions of any law made in this behalf byParliament, the Commission shall consist of a Chairperson, Vice-Chairpersonand three other Members and the conditions of service and tenure of officeof the Chairperson, Vice-Chairperson and other Members so appointed shallbe such as the President may by rule determine.]

(3) The Chairperson, Vice-Chairperson and other Members of theCommission shall be appointed by the President by warrant under his handand seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission–

(a) to investigate and monitor all matters relating to the safeguardsprovided for the Scheduled Castes 3[xxx] under this Constitutionor under any other Law for the time being in force or under anyorder of the Government and to evaluate the working of suchsafeguards;

(b) to inquire into specific complaints with respect to the deprivationof rights and safeguards of the Scheduled Castes 3[xxx] ;

(c) to participate and advise on the planning process of socio-economicdevelopment of the Scheduled Castes 3[xxx] and to evaluate theprogress of their development under the Union and any State;

(d) to present to the President, annually and at such other times asthe Commission may deem fit, reports upon the working of thosesafeguards;

1. Subs. by the Constitution (Sixty-fifth Amendment) Act, 1990, Section 2, w.e.f. 7.6.1990.

2. Subs. by the Constitution (Eighty-ninth Amndt.) Act, 2003, w.e.f. 19-2-2004.

3. The words “and Scheduled Tribes” omitted by the Constitution (Eighty-ninth Amndt.)Act, 2003, w.e.f. 19-2-2004.

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263

(e) to make in such reports recommendations as to the measures thatshould be taken by the Union or any State for the effectiveimplementation of those safeguards and other measures for theprotection, welfare and socio-economic development of the ScheduledCastes 1[xxx] ; and

(f) to discharge such other functions in relation to the protection,welfare and development and advancement of the Scheduled Castes1[xxx] as the President may, subject to the provisions of any Lawmade by Parliament, by Rule specify.

(6) The President shall cause all such reports to be laid before eachHouse of Parliament along with a memorandum explaining the action takenor proposed to be taken on the recommendations relating to the Union andthe reasons for the non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to any matterwith which any State Government is concerned, a copy of such report shallbe forwarded to the Governor of the State who shall cause it to be laidbefore the Legislature of the State along with a memorandum explaining theaction taken or proposed to be taken on the recommendations relating tothe State and the reasons for the non-acceptance, if any, of any of suchrecommendations.

(8) The Commission shall, while investigating any matter referred to insub-clause (a) or inquiring into any complaint referred to in sub-clause (b)of Clause (5), have all the powers of a Civil Court trying a suit and inparticular in respect of the following matters, namely:–

(a) summoning and enforcing the attendance of any person from anypart of India and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Courtor office;

(e) issuing commissions for the examination of witnesses and documents;

(f) any other matter which the President may, by Rule, determine.




(9) The Union and every State Government shall consult the Commissionon all major policy matters affecting Scheduled Castes 1[xxx].]

2[(10)] In this Article, references to the Scheduled Castes 1[xxx] shallbe construed as including references to such other backward classes as thePresident may, on receipt of the report of a Commission appointed underClause (1) of Article 340, by order specify and also to the Anglo-Indiancommunity.

3[338A. National Commission for Scheduled Tribes:– (1) Thereshall be a Commission for the Scheduled Tribes to be known as the NationalCommission for the Scheduled Tribes.

(2) Subject to the provisions of any law made in this behalf byParliament, the Commission shall consist of a Chairperson, Vice-Chairpersonand three other Members and the conditions of service and tenure of officeof the Chairperson, Vice-Chairperson and other Members so appointed shallbe such as the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of theCommission shall be appointed by the President by warrant under his handand seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission–

(a) to investigate and monitor all matters relating to the safeguardsprovided for the Scheduled Tribes under this Constitution or underany other law for the time being in force or under any order ofthe Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivationof rights and safeguards of the Scheduled Tribes;

(c) to participate and advise on the planning process of socio-economicdevelopment of the Scheduled Tribes and to evaluate the progressof their development under the Union and any State;


2. Clause (3) renumbered as Clause (10) by the Constitution (Sixty-fifth Amendment) Act,1990, Section 2, w.e.f. 12.3.1992.

3. Ins. by the Constitution (Eighty-ninth Amndt.) Act, 2003, w.e.f. 19-2-2004.

Art. 338A

265

(d) to present to the President, annually and at such other times asthe Commission may deem fit, reports upon the working of thosesafeguards;

(e) to make in such reports recommendations as to the measures thatshould be taken by the Union or any State for the effectiveimplementation of those safeguards and other measures for theprotection, welfare and socio-economic development of the ScheduledTribes; and

(f) to discharge such other functions in relation to the protection,welfare and development and advancement of the Scheduled Tribesas the President may, subject to the provisions of any law madeby Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before eachHouse of Parliament along with a memorandum explaining the action takenor proposed to be taken on the recommendations relating to the Union andthe reasons for the non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to any matterwith which any State Government is concerned, a copy of such report shallbe forwarded to the Governor of the State who shall cause it to be laidbefore the Legislature of the State along with a memorandum explaining theaction taken or proposed to be taken on the recommendations relating tothe State and the reasons for the non-acceptance, if any, of any of suchrecommendations.

(8) The Commission shall, while investigating any matter referred to insub-clause (a) or inquiring into any complaint referred to in sub-clause (b)of clause (5), have all the powers of a civil court trying a suit and in particularin respect of the following matters, namely:–

(a) summoning and enforcing the attendance of any person from anypart of India and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any courtor office;

(e) issuing commissions for the examination of witnesses and documents;

(f) any other matter which the President may, by rule, determine.

Art. 338A Special Provisions relating to certain classes


(9) The Union and every State Government shall consult the Commissionon all major policy matters affecting Scheduled Tribes.]

339. Control of the Union over the administration of ScheduledAreas and the welfare of Scheduled Tribes:– (1) The President mayat any time and shall, at the expiration of ten years from the commencementof this Constitution by order appoint a Commission to report on theadministration of the Scheduled Areas and the welfare of the Scheduled Tribesin the States 1[xxx].

The order may define the composition, powers and procedure of theCommission and may contain such incidental or ancillary provisions as thePresident may consider necessary or desirable.

(2) The executive power of the Union shall extend to the giving ofdirections to 2[a State] as to the drawing up and execution of schemesspecified in the direction to be essential for the welfare of the ScheduledTribes in the State.

340. Appointment of a Commission to investigate the conditionsof backward classes:– (1) The President may by order appoint a Commissionconsisting of such persons as he thinks fit to investigate the conditions ofsocially and educationally backward classes within the Territory of India andthe difficulties under which they labour and to make recommendations asto the steps that should be taken by the Union or any State to removesuch difficulties and to improve their condition and as to the grants that shouldbe made for the purpose by the Union or any State and the conditions subjectto which such grants should be made, and the order appointing suchCommission shall define the procedure to be followed by the Commission.

(2) A Commission so appointed shall investigate the matters referredto them and present to the President a report setting out the facts as foundby them and making such recommendations as they think proper.

(3) The President shall cause a copy of the report so presented togetherwith a memorandum explaining the action taken thereon to be laid beforeeach House of Parliament.


2. Subs. for “any such State” by the Constitution (Seventh Amendment) Act, 1956, Section29 and Schedule.

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267

341. Scheduled Castes:– (1) The President may with respect to anyState 1[or Union Territory], and where it is a State 2[xxx], after consultationwith the Governor thereof, by public notification, specify the castes, racesor tribes or parts of or groups within castes, races or tribes which shallfor the purposes of this Constitution be deemed to be Scheduled Castesin relation to that State 3[or Union Territory, as the case may be].

(2) Parliament may by Law include in or exclude from the list ofScheduled Castes specified in a notification issued under Clause (1) any caste,race or tribe or part of or group within any caste, race or tribe, but saveas aforesaid a notification issued under the said clause shall not be variedby any subsequent notification.

Caselaw

Caste certificate – While enquiring into the caste certificate the scrutinycommittee can receive oral as well as documentary evidence. State of Maharashtra& Ors. v. Ravi Prakash Babulaising Parmar & Anr., AIR 2007 SC 295.

President’s power to notify Scheduled Castes includes notifying the sub-castes. Shree Surat Valsad Jilla K.M.G. Parishad v. Union of India & Ors.,AIR 2007 SC 2056.

Caste certificate remains valid until it is cancelled as per procedure. P.Pathima Mary v. Union of India and others, AIR 2004 Mad. 456.

Tinkering with Presidential list of SCs. is not permissible. E.V. Chinnaiahv. State of Andhra Pradesh and others, AIR 2005 SC 162.

Dispute whether the name of one community is included in another notifiedcommunity cannot be entertained. AIR 2005 Raj. 177.

342. Scheduled Tribes:– (1) The President may with respect to anyState 4[or Union Territory], and where it is a State, after consultation withthe Governor thereof, by public notification specify the tribes or tribalcommunities or parts of or groups within tribes or tribal communities whichshall for the purposes of this Constitution be deemed to be Scheduled Tribesin relation to that State 4[or Union Territory, as the case may be].


2. The words and letters “specified in Part A or Part B of the First Schedule” omitted bythe Constitution (First Amendment) Act, 1951, Section 29 and Schedule.





(2) Parliament may by Law include in or exclude from the list ofScheduled Tribes specified in a notification issued under Clause (1) any tribeor tribal community or part of or group within any tribe or tribal community,but save as aforesaid a notification issued under the said Clause shall notbe varied by any subsequent notification.

Comments

Articles 330 to 342:-- The expression ‘certain classes of persons’ usedin this part relates to S.Cs., S.Ts., Backward Classes and Anglo Indians. Thespecial treatment given to Anglo Indians while nominating two persons to theParliament and one person to the Legislative Assemblies, reserving for them certainpercentage of posts in the Railways and providing the educational institutionsmaintained by the Anglo Indians for their benefit by giving monetary grants,have lapsed and none of those benefits now survive. In the case of S.Cs. andS.Ts. seats are reserved for them in Lok Sabha and State Assemblies in proportionto their population in India and the States as the case may be. Here the reservationis achieved through reserving certain number of constituencies in which themembers of the reserved communities can only contest. This does not meanthat they cannot contest in the general seats. There is reservation for them inGovernment posts and in seats in educational institutions. Here also there is nobar against the candidates of reserved classes to participate in the generalunreserved posts and seats by merit. Reservation is provided in selecting personsfor promotion and the seniority of those promoted earlier by the application ofreservation is protected in the promoted post.

It is the President who notifies the names of Castes and Tribes. No Courtcan add or delete the name of any caste by interpretation, since the Presidentialnotification is made after comprehensive study of their social status and economicbackwardness and the adequacy of their representation in service and education.Parliament has only power to add and delete any community from the PresidentialList. State Legislatures are not competent to do so. If the Parliament declaresany community to be added in the list the President has no power to deleteit from the list. A question often asked whether by reason of marriage or adoptionany person can be treated as falling in the reserved category or any personloses his or her status by marriage or adoption. This question is answered bystating that if such person continues to be treated as one belonging to S.C.or S.T., he or she does not lose the status. If on the contrary a person istreated as enjoying better social status he or she loses the original status. Thereforethe claim made by a person of forward class marrying a tribal to contest the

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269

election as S.T. was upheld when he is found that eversince his marriage hewas living with the tribe as a tribal. On the contrary the claim of forward classcandidate for the backward status on the ground of adoption for selection ofa seat in educational institution reserved for backward class was negatived onthe ground that the alleged adoption is a mere contrivance brought about at thetime of admissions.

The Commissions constituted to study the eligibility of the communitiesto be included or excluded in the list of S.Cs., S.Ts. and backward class beinghigh power Commissions, their recommendations are normally accepted. Thereforeit is suggested that all representation to include or exclude any community shouldfirst be addressed to the Commission. The Government of India and the StateGovernments can only make suitable recommendations based on Commission’sreport. The question of sub-classification of S.Cs. also is a matter on whichthe Commission has to make suitable recommendations and it is for the Presidentor the Parliament to accept or reject the proposals made by the Commission.

Reservation of seats to the Panchayats and Municipalities are provided underPart IX and IX-A of the Constitution. There is a reservation for women in theseats in the Panchayats and Municipalities. The proposal to reserve seats forwomen in Parliament and in Legislatures is pending consideration of the Parliament.The dispute as on today is that one section of the Parliamentarians say thatthe reservation for women by a certain percentage of seats, the other Parliamentarianscontend that there shall be sub-reservation among reservation for women in favourof Muslims.

Caselaw

Caste ‘Bhoriya’ not included in Presidential order. No authority can issuea directive to conduct enquiry for its inclusion. Kantha Prasad and another v.

State of Chhatisgarh & Anr., AIR 2008 Chh. 47.

Son of Scheduled Tribe woman who is married to forward caste gentlemancannot claim S.T. status. Anjan Kumar v. Union of India, AIR 2006 SC 1177.

There is no writ petition whereby a person can seek inclusion of his tribeas sub-tribe of another. AIR 2003 M.P. 93 (NOC).

When a caste certificate is found genuine after enquiry, it cannot bereopened when his son makes application for caste certificate. S. Natarajan

v. District Collector, Tuticorin and others, AIR 1999 Mad. 241.



PART-XVII

OFFICIAL LANGUAGE

CHAPTER I – LANGUAGE OF THE UNION

343. Official language of the Union:– (1) The official language ofthe Union shall be Hindi in Devanagari script.

The form of numerals to be used for the official purposes of the Unionshall be the international form of Indian numerals.

(2) Notwithstanding anything in Clause (1), for a period of fifteen yearsfrom the commencement of this Constitution, the English language shallcontinue to be used for all the official purposes of the Union for which itwas being used immediately before such commencement:

Provided that the President may, during the said period, by orderauthorise the use of the Hindi language in addition to the English languageand of the Devanagari form of numerals in addition to the international formof Indian numerals for any of the official purposes of the Union.

(3) Notwithstanding anything in this Article, Parliament may by lawprovide for the use, after the said period of fifteen years, of–

(a) the English language, or

(b) the Devanagari form of numerals, for such purposes as may bespecified in the law.

344. Commission and Committee of Parliament on officiallanguage:– (1) The President shall, at the expiration of five years from thecommencement of this Constitution and thereafter at the expiration of tenyears from such commencement, by order constitute a Commission whichshall consist of a Chairman and such other members representing the differentlanguages specified in the Eighth Schedule as the President may appoint,and the order shall define the procedure to be followed by the Commission.

(2) It shall be the duty of the Commission to make recommendationsto the President as to–

(a) the progressive use of the Hindi language for the official purposesof the Union;

(b) restrictions on the use of the English language for all or any ofthe official purposes of the Union;

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271

(c) the language to be used for all or any of the purposes mentionedin Article 348;

(d) the form of numerals to be used for any one or more specifiedpurposes of the Union;

(e) any other matter referred to the Commission by the President asregards the official language of the Union and the language forcommunication between the Union and a State or between oneState and another and their use.

(3) In making their recommendations under Clause (2), the Commissionshall have due regard to the industrial, cultural and scientific advancementof India, and the just claims and the interests of persons belonging to thenon-Hindi speaking areas in regard to the public services.

(4) There shall be constituted a Committee consisting of thirty members,of whom twenty shall be members of the House of the People and ten shallbe members of the Council of States to be elected respectively by themembers of the House of the People and the members of the Council ofStates in accordance with the system of proportional representation by meansof the single transferable vote.

(5) It shall be the duty of the Committee to examine the recommendationsof the Commission constituted under Clause (1) and to report to the Presidenttheir opinion thereon.

(6) Notwithstanding anything in Art. 343, the President may, afterconsideration of the report referred to in Clause (5), issue directions inaccordance with the whole or any part of that report.

CHAPTER II – REGIONAL LANGUAGES

345. Official language or languages of a State:– Subject to theprovisions of Arts. 346 and 347, the Legislature of a State may by lawadopt any one or more of the languages in use in the State or Hindi asthe language or languages to be used for all or any of the official purposesof that State:

Provided that, until the Legislature of the State otherwise provides byLaw, the English language shall continue to be used for those official purposeswithin the State for which it was being used immediately before thecommencement of this Constitution.

Official LanguageArt. 345


346. Official language for communication between one State andanother or between a State and the Union:– The language for the timebeing authorised for use in the Union for official purposes shall be the officiallanguage for communication between one State and another State andbetween a State and the Union:

Provided that if two or more States agree that the Hindi language shouldbe the official language for communication between such States, that languagemay be used for such communication.

347. Special provision relating to language spoken by a Sectionof the population of a State:– On a demand being made in that behalfthe President may, if he is satisfied that a substantial proportion of thepopulation of a State desire the use of any language spoken by them tobe recognised by that State, direct that such language shall also be officiallyrecognised throughout that State or any part thereof for such purpose ashe may specify.

CHAPTER III –

LANGUAGE OF THE SUPREME COURT, HIGH COURTS, ETC.

348. Language to be used in the Supreme Court and in the HighCourts and for Acts, Bills, etc.:– (1) Notwithstanding anything in theforegoing provisions of this Part, until Parliament by Law otherwise provides–

(a) all proceedings in the Supreme Court and in every High Court,

(b) the authoritative texts–

(i) of all Bills to be introduced or Amendments thereto to be movedin either House of Parliament or in the House or either House ofthe Legislature of a State,

(ii) of all Acts passed by Parliament or the Legislature of a State andof all Ordinances promulgated by the President or the Governorof a State, and

(iii) of all orders, rules, regulations and bye-laws issued under thisConstitution or under any Law made by Parliament or the Legislatureof a State,

shall be in the English language.

(2) Notwithstanding anything in sub-clause (a) of Clause (1), the Governorof a State may, with the previous consent of the President, authorise the

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273

use of the Hindi language, or any other language used for any official purposesof the State, in proceedings in the High Court having its principal seat inthat State:

Provided that nothing in this Clause shall apply to any judgement, decreeor order passed or made by such High Court.

(3) Notwithstanding anything in sub-clause (b) of Clause (1), wherethe Legislature of a State has prescribed any language other than the Englishlanguage for use in Bills introduced in, or Acts passed by, the Legislatureof the State or in Ordinances promulgated by the Governor of the Stateor in any order, rule, regulation or bye-law referred to in Paragraph (iii)of that sub-clause, a translation of the same in the English language publishedunder the authority of the Governor of the State in the Official Gazette ofthat State shall be deemed to be the authoritative text thereof in the Englishlanguage under this Article.

Caselaw

Publication in the Gazette in English language is mandatory. AIR 2003 Ker.

10 (NOC).

349. Special procedure for enactment of certain Laws relatingto language:– During the period of fifteen years from the commencementof this Constitution, no Bill or Amendment making provision for the languageto be used for any of the purposes mentioned in Clause (1) of Art. 348shall be introduced or moved in either House of Parliament without theprevious sanction of the President, and the President shall not give his sanctionto the introduction of any such Bill or the moving of any such Amendmentexcept after he has taken into consideration the recommendations of theCommission constituted under Clause (1) of Art. 344 and the report of theCommittee constituted under Clause (4) of that Article.

CHAPTER IV – SPECIAL DIRECTIVES

350. Language to be used in representations for redress ofgrievances:– Every person shall be entitled to submit a representation forthe redress of any grievance to any officer or authority of the Union or aState in any of the languages used in the Union or in the State, as the casemay be.

CONST-18



1[350A. Facilities for instruction in mother-tongue at primarystage:– It shall be the endeavour of every State and of every local authoritywithin the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguisticminority groups; and the President may issue such directions to any Stateas he considers necessary or proper for securing the provision of suchfacilities.

350B. Special Officer for linguistic minorities:– (1) There shall bea Special Officer for linguistic minorities to be appointed by the President.

(2) It shall be the duty of the Special Officer to investigate all mattersrelating to the safeguards provided for linguistic minorities under this Constitutionand report to the President upon those matters at such intervals as thePresident may direct, and the President shall cause all such reports to belaid before each House of Parliament, and sent to the Governments of theStates concerned.]

351. Directive for development of the Hindi language:– It shallbe the duty of the Union to promote the spread of the Hindi language, todevelop it so that it may serve as a medium of expression for all the elementsof the composite culture of India and to secure its enrichment by assimilatingwithout interfering with its genius, the forms, style and expressions used inHindustani and in the other languages of India specified in the Eighth Schedule,and by drawing, wherever necessary or desirable, for its vocabulary, primarilyon Sanskrit and secondarily on other languages.

Comments

Articles 343 to 351:-- A declaration contained in Article 343 that the officiallanguage of the Union shall be Hindi in Devanagari script may remain a pioushope only because of its provisos which permit the continuance of Englishlanguage. The Official Languages Act of 1963 allows the use of English languageas the Union language so long as the non-Hindi speaking people do not wantHindi the sole official language. The Constitution itself permits the use of Englishtill Hindi acquires the status of being used as the sole Union language. Furtherthe Official Languages Act, 1963 enjoins that for all purposes of Union, fortransactions of business in Parliament and for drafting the statutes Hindi maybe used as the language provided the true translation of English is enclosed.The Official Languages Act further permits the State Governments to use fordrafting of their statutes the local language but in all such cases where law


Art. 351

275

is made in a local language, the same shall be translated into English and appendedto it. In the case where an Act is passed in Hindi and translation is furnishedin English, the Act may be interpreted as per English translation. [Ram Rativ. Gram Samaj, AIR 1974 All. 106]. In the case of the States where the Statesare permitted to enact laws in local language accompanied by English translation,the Act must be interpreted as contained in the local language.

The Constitutional directive that in matters of elementary education themothertongue shall be promoted does not prohibit the use of English at theelementary stage. That is why it can be stated that the Constitution at no stagepositively intended replacement of English by Hindi. That apart the Constitutionrequires that inter-State correspondence shall continue to be in English unlessany group of States want their correspondence shall be in Hindi.

Since it is however the policy of the Constitution that Hindi shall be thelanguage of the Union, any agitations against Hindi shall be counted as anti-nationaland anti-democratic. [R.R. Dalavai v. State of Tamil Nadu, AIR 1976 SC 1559.]As a matter of fact when the Tamil Nadu Government granted pensions to anti-Hindi agitators, the Supreme Court struck down the scheme as being opposedto public policy.

In the case of representations and memorials to be made by the publicto the Union Government such representations can be addressed in any of thelanguages mentioned in the VIIIth Schedule. It is better and more convenientif they are accompanied by true translations in English. The Union Governmentis now maintaining a special department of translations for the purpose of earlydisposal of such representations and memorials which are made unaccompaniedby English translations. The present position is: (1) English continues to be theofficial language for the purpose of Union and States and also for the purposeof inter-State correspondence; (2) Hindi is being used progressively in the lawsand enactment made by the Parliament and the States are progressively usinglocal language in that field. However, for interpretation of laws made byParliament, the English language which accompanies the Hindi originally is givenprimacy at the Union while in the case of States the local language in whichan enactment is passed, even though it is accompanied by English translationthe interpretation in which the enactment is understood shall be by the locallanguage; (3) The local languages or Hindi are being encouraged at the primarylevel education. The use of English however is not prohibited; (4) All the HighCourts are using English for writing their judgments and decrees though theHindi or the local language is used during the trial and hearing.

While anti-Hindi agitation is declared as anti-national and anti-democratic,movements for promotion of English in official and non-official use receivedpublic acceptance.



Devanagari script, Devanagari numerals and international form of Indiannumerals are the expressions used in the Constitution while speaking about Hindi.The expression of Devanagari script means the Sanskrit type of script. Whiledeclaring Union language shall be Hindi with Devanagari script what is meantby the expression is that Hindi should be written in Sanskrit script. Devanagarinumerals are differently written and they are adopted in the Sanskrit script.International form of Indian numerals means English numerals adopted in theEnglish script. What the Constitution has provided in the matter of numeralsis that while adopting Hindi in Devanagari script it is permissible to continuethe writing of numerals in the form in which the English numerals are written.This however keeps open the question when the country while adopting Hindias Union language in Devanagari script adopts also Devanagari numerals. It isfor the Parliament to legislate whenever it finds convenient for the people tobring about the switch over from the international form to the Devanagarinumerals. International form of Indian numerals continue to be used both in Hindiand local languages.

Caselaw

The subject matter under the Article cannot be a subject for writ. Ashirlalv. Union of India, 2007 (4) SCC 424.

PART XVIII

EMERGENCY PROVISIONS

352. Proclamation of Emergency:– (1) If the President is satisfiedthat a grave emergency exists whereby the security of India or of any partof the territory thereof is threatened, whether by war or external aggressionor 1[armed rebellion], he may, by Proclamation, make a declaration to thateffect 2[in respect of the whole of India or of such part of the territory thereofas may be specified in the Proclamation].

3[Explanation:– A Proclamation of Emergency declaring that the securityof India or any part of the territory thereof is threatened by war or by externalaggression or by armed rebellion may be made before the actual occurrenceof war or of any such aggression or rebellion, if the President is satisfiedthat there is imminent danger thereof.]

1. Subs. for “internal Disturbance” by the Constitution (Forty-fourth Amendment) Act, 1978,Section 37, w.e.f. 20-6-1979.


3. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 37, for Explanation,w.e.f. 20-6-1979.

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1[(2) A Proclamation issued under Clause (1) may be varied or revokedby a subsequent Proclamation.

(3) The President shall not issue a Proclamation under Clause (1) ora Proclamation varying such Proclamation unless the decision of the UnionCabinet (that is to say, the Council consisting of the Prime Minister andother Ministers of Cabinet rank appointed under Art. 75) that such aProclamation may be issued has been communicated to him in writing.

(4) Every Proclamation issued under this Article shall be laid beforeeach House of Parliament and shall, except where it is a Proclamationrevoking a previous Proclamation, cease to operate at the expiration of onemonth unless before the expiration of that period it has been approved byresolutions of both Houses of Parliament:

Provided that if any such Proclamation (not being a Proclamationrevoking a previous Proclamation) is issued at a time when the House ofthe People has been dissolved, or the dissolution of the House of the Peopletakes place during the period of one month referred to in this Clause, andif a resolution approving the Proclamation has been passed by the Councilof States, but no resolution with respect to such Proclamation has been passedby the House of the People before the expiration of that period, theProclamation shall cease to operate at the expiration of thirty days from thedate on which the House of the People first sits after its reconstitution, unlessbefore the expiration of the said period of thirty days a resolution approvingthe Proclamation has been also passed by the House of the People.

(5) A Proclamation so approved shall, unless revoked, cease to operateon the expiration of a period of six months from the date of the passingof the second of the resolutions approving the Proclamation under Clause(4):

Provided that if and so often as a resolution approving the continuancein force of such a Proclamation is passed by both Houses of Parliamentthe Proclamation shall, unless revoked, continue in force for a further periodof six months from the date on which it would otherwise have ceased tooperate under this Clause:

1. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 37, for Clauses(2),(2A) and (3), w.e.f. 20-6-1979.

Emergency ProvisionsArt. 352


Provided further that if the dissolution of the House of the People takesplace during any such period of six months and a resolution approving thecontinuance in force of such Proclamation has been passed by the Councilof States but no resolution with respect to the continuance in force of suchProclamation has been passed by the House of the People during the saidperiod, the Proclamation shall cease to operate at the expiration of thirtydays from the date on which the House of the People first sits after itsreconstituion unless before the expiration of the said period of thirty days,a resolution approving the continuance in force of the Proclamation has beenalso passed by the House of the People.

(6) For the purpose of Clauses (4) and (5), a resolution may be passedby either House of Parliament only by a majority of the total membershipof that House and by a majority of not less than two-thirds of the Membersof that House present and voting.

(7) Notwithstanding anything contained in the foregoing Clauses, thePresident shall revoke a Proclamation issued under Clause (1) or a Proclamationvarying such Proclamation if the House of the People passes a resolutiondisapproving, or, as the case may be, disapproving the continuance in forceof, such Proclamation.

(8) Where a notice in writing signed by not less than one-tenth of thetotal number of members of the House of the People has been given, oftheir intention to move a resolution for disapproving, or, as the case maybe, for disapproving the continuance in force of, a Proclamation issued underClause (1) or a Proclamation varying such Proclamation,–

(a) to the Speaker, if the House is in session; or

(b) to the President, if the House is not in session,

a special sitting of the House shall be held within fourteen daysfrom the date on which such notice is received by the Speaker,or, as the case may be, by the President, for the purpose ofconsidering such resolution.]

1[2[(9)] The power conferred on the President by this article shall includethe power to issue different Proclamations on different grounds, being war

1. Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, Section 5.

2. Clause (4) re-numbered as Clause (9) by the Constitution (Forty-fourth Amndt.) Act, 1978,Section 37, w.e.f. 20-6-1979.

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279

or external aggression or 1[armed rebellion] or imminent danger of war orexternal aggression or 1[armed rebellion], whether or not there is a Proclamationalready issued by the President under clause (1) and such Proclamation isin operation.

2[xxx]

353. Effect of Proclamation of Emergency:– While a Proclamationof Emergency is in operation, then–

(a) notwithstanding anything in this Constitution, the executive powerof the Union shall extend to the giving of directions to any Stateas to the manner in which the executive power thereof is to beexercised;

(b) the power of Parliament to make Laws with respect to any mattershall include power to make Laws conferring powers and imposingduties, or authorising the conferring of powers and the impositionof duties, upon the Union or officers and authorities of the Unionas respects that matter, notwithstanding that it is one which is notenumerated in the Union List:

3[Provided that where a Proclamation of Emergency is in operation onlyin any part of the territory of India,–

(i) the executive power of the Union to give directions under Clause(a), and

(ii) the power of Parliament to make Laws under Clause (b),

shall also extend to any State other than a State in which or inany part of which the Proclamation of Emergency is in operationif and in so far as the security of India or any part of the territorythereof is threatened by activities in or in relation to the part ofthe territory of India in which the Proclamation of Emergency isin operation.]

1. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 37, w.e.f.20.6.1979.

2. Clause(5) omitted by the Constitution (Forty-fourth Amendment) Act, 1978, Section 37,w.e.f. 20-6-1979.




354. Application of provisions relating to distribution of revenueswhile a Proclamation of Emergency is in operation:– (1) The Presidentmay, while a Proclamation of Emergency is in operation, by order directthat all or any of the provisions of Arts. 268 to 279 shall for such period,not extending in any case beyond the expiration of the financial year in whichsuch Proclamation ceases to operate, as may be specified in the order, haveeffect subject to such exceptions or modifications as he thinks fit.

(2) Every order made under Clause (1) shall, as soon as may be afterit is made, be laid before each House of Parliament.

355. Duty of the Union to protect States against external aggressionand internal disturbance:– It shall be the duty of the Union to protectevery State against external aggression and internal disturbance and to ensurethat the Government of every State is carried on in accordance with theprovisions of this Constitution.

Caselaw

Influx of large number of foreigners across boundaries include “war”. Statesare entitled to be protected by the Centre. Sarbananda Sonowal v. Union ofIndia and another, AIR 2005 SC 2920 = 2005 AIR SCW 3393.

356. Provisions in case of failure of constitutional machinery inStates:– (1) If the President, on receipt of a report from the Governorof a State or otherwise, is satisfied that a situation has arisen in which theGovernment of the State cannot be carried on in accordance with theprovisions of this Constitution, the President may by Proclamation–

(a) assume to himself all or any of the functions of the Governmentof the State and all or any of the powers vested in or exercisableby the Governor or any body or authority in the State other thanthe Legislature of the State;

(b) declare that the powers of the Legislature of the State shall beexercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to thePresident to be necessary or desirable for giving effect to the objectsof the Proclamation, including provisions for suspending in wholeor in part the operation of any provisions of this Constitution relatingto any body or authority in the State:

Provided that nothing in this Clause shall authorise the President toassume to himself any of the powers vested in or exercisable by a High

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Court, or to suspend in whole or in part the operation of any provisionof this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or varied by a subsequentProclamation.

(3) Every Proclamation under this Article shall be laid before each Houseof Parliament and shall, except where it is a Proclamation revoking a previousProclamation, cease to operate at the expiration of two months unless beforethe expiration of that period it has been approved by resolutions of bothHouses of Parliament:

Provided that if any such Proclamation (not being a Proclamationrevoking a previous Proclamation) is issued at a time when the House ofthe People is dissolved or the dissolution of the House of the People takesplace during the period of two months referred to in this Clause, and ifa resolution approving the Proclamation has been passed by the Councilof States, but no resolution with respect to such Proclamation has been passedby the House of the People before the expiration of that period, theProclamation shall cease to operate at the expiration of thirty days from thedate on which the House of the People first sits after its reconstitution unlessbefore the expiration of the said period of thirty days a resolution approvingthe Proclamation has been also passed by the House of the People.

(4) A Proclamation so approved shall, unless revoked, cease to operateon the expiration of a period of 1[six months from the date of issue of theProclamation]:

Provided that if and so often as a resolution approving the continuancein force of such a Proclamation is passed by both Houses of Parliament,the Proclamation shall, unless revoked, continue in force for a further periodof 2[six months] from the date on which under this Clause it would otherwisehave ceased to operate, but no such Proclamation shall in any case remainin force for more than three years:

1. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 38, for “one yearfrom the date of the passing of the second of the resolutions approving the Proclamationunder clause(3)”, w.e.f. 20-6-1979.

2. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 38, for “one yearw.e.f. 20-6-1979.



Provided further that if the dissolution of the House of the People takesplace during any such period of 1[six months] and a resolution approvingthe continuance in force of such Proclamation has been passed by the Councilof States, but no resolution with respect to the continuance in force of suchProclamation has been passed by the House of the People during the saidperiod, the Proclamation shall cease to operate at the expiration of thirtydays from the date on which the House of the People first sits after itsreconstitution unless before the expiration of the said period of thirty daysa resolution approving the continuance in force of the Proclamation has beenalso passed by the House of the People:

2[Provided also that in the case of the Proclamation issued under clause(1) on the 11th day of May, 1987 with respect to the State of Punjab,the reference in the first proviso to this Clause to “three years” shall beconstrued as a reference to 3[five years].]

4[(5) Notwithstanding anything contained in Clause (4), a resolution withrespect to the continuance in force of a Proclamation approved under Clause(3) for any period beyond the expiration of one year from the date of issueof such Proclamation shall not be passed by either House of Parliamentunless–

(a) a Proclamation of Emergency is in operation, in the whole of Indiaor, as the case may be, in the whole or any part of the State,at the time of the passing of such resolution, and

(b) the Election Commission certifies that the continuance in force ofthe Proclamation approved under Clause (3) during the periodspecified in such resolution is necessary on account of difficultiesin holding general elections to the Legislative Assembly of the Stateconcerned:]

2[Provided that nothing in this Clause shall apply to the Proclamationissued under Clause (1) on the 11th day of May, 1987 with respect tothe State of Punjab.]

1. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Section 38, for “one yearw.e.f. 20-6-1979.

2. Ins. by the Constitution (Sixty-fourth Amndt.) Act, 1990, Section 2.

3. Subs. by the Constitution (Sixty-eighth Amndt.) Act, 1991, Section 2.

4. Subs. by the Constitution (Forty-fourth Amndt.) Act, 1978, Section 38.

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283

357. Exercise of Legislative powers under Proclamation issuedunder Art. 356:– (1) Where by a Proclamation issued under Clause (1)of Art. 356, it has been declared that the powers of the Legislature of theState shall be exercisable by or under the authority of Parliament, it shallbe competent–

(a) for Parliament to confer on the President the power of the Legislatureof the State to make Laws, and to authorise the President todelegate, subject to such conditions as he may think fit to impose,the power so conferred to any other authority to be specified byhim in that behalf;

(b) for Parliament, or for the President or other authority in whom suchpower to make Laws is vested under sub-clause (a), to make Lawsconferring powers and imposing duties, or authorising the conferringof powers and the imposition of duties, upon the Union or officersand authorities thereof;

(c) for the President to authorise when the House of the People isnot in session expenditure from the Consolidated Fund of the Statepending the sanction of such expenditure by Parliament.

1[(2) Any Law made in exercise of the power of the Legislature ofthe State by Parliament or the President or other authority referred to insub-clause (a) of Clause (1) which Parliament or the President or such otherauthority would not, but for the issue of a Proclamation under Art. 356,have been competent to make shall, after the Proclamation has ceased tooperate, continue in force until altered or repealed or amended by a competentLegislature or other authority.]

358. Suspension of provisions of Article 19 during emergencies:–2[(1)] 3[While a Proclamation of Emergency declaring that the security ofIndia or any part of the territory thereof is threatened by war or by externalaggression is in operation], nothing in Art. 19 shall restrict the power ofthe State as defined in Part III to make any Law or to take any executiveaction which the State would but for the provisions contained in that Part

1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, Section 51,

w.e.f. 3.1.1977.

2. Article 358 re-numbered as Clause (1) thereof by the Constitution (Forty-fourth Amendment)Act, 1978, Sec. 39, w.e.f. 20.6.1979.

3. Subs. for “While a Proclamation of Emergency is in operation” by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 39, w.e.f. 20.6.1979.



be competent to make or to take, but any Law so made shall, to the extentof the incompetency, cease to have effect as soon as the Proclamation ceasesto operate, except as respects things done or omitted to be done beforethe Law so ceases to have effect:

1[Provided that 2[where such Proclamation of Emergency] is in operationonly in any part of the territory of India, any such Law may be made, orany such executive action may be taken, under this article in relation to orin any State or Union territory in which or in any part of which theProclamation of Emergency is not in operation, if and in so far as the securityof India or any part of the territory thereof is threatened by activities inor in relation to the part of the territory of India in which the Proclamationof Emergency is in operation.]

3[(2) Nothing in Clause (1) shall apply–

(a) to any Law which does not contain a recital to the effect that suchLaw is in relation to the Proclamation of Emergency in operationwhen it is made; or

(b) to any executive action taken otherwise than under a Law containingsuch a recital.]

359. Suspension of the enforcement of the rights conferred byPart III during emergencies:– (1) Where a Proclamation of Emergencyis in operation, the President may by order delcare that the right to moveany Court for the enforcement of such of 4[the rights conferred by Part III(except Articles 20 and 21)] as may be mentioned in the order and allproceedings pending in any Court for the enforcement of the rights somentioned shall remain suspended for the period during which the Proclamationis in force or for such shorter period as may be specified in the order.

5[(1A) While an order made under Clause (1) mentioning any of 4[ofthe rights conferred by Part III (except Articles 20 and 21)] is in operation,nothing in that Part conferring those rights shall restrict the power of the

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 52, w.e.f. 3.1.1977.

2. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 39, for “wherea Proclamation of Emergency”, w.e.f. 20.6.1979.

3. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 39, w.e.f. 20.6.1979.

4. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec. 40, for “the rightsconferred by Part III”, w.e.f. 20-6-1979.

5. Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, Sec. 7, (retrospectively).

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285

State as defined in the said Part to make any Law or to take any executiveaction which the State would but for the provisions containing in that Partbe competent to make or to take, but any Law so made shall, to the extentof the incompetency, cease to have effect as soon as the order aforesaidceases to operate, except as respects things done or omitted to be donebefore the Law so ceases to have effect.]

1[Provided that where a Proclamation of Emergency is in operation onlyin any part of the territory of India, any such Law may be made, or anysuch executive action may be taken, under this Article in relation to or inany State or Union Territory in which or in any part of which the Proclamationof Emergency is not in operation, if and in so far as the security of Indiaor any part of the territory thereof is threatened by activities in or in relationto the part of the territory of India in which the Proclamation of Emergencyis in operation.]

2[(1B) Nothing in Clause (1A) shall apply–

(a) to any Law which does not contain a recital to the effect that suchLaw is in relation to the Proclamation of Emergency in operationwhen it is made; or

(b) to any executive action taken otherwise than under a Law containingsuch a recital.]

(2) An order made as aforesaid may extend to the whole or any partof the territory of India:

3[Provided that where a Proclamation of Emergency is in operation onlyin a part of the territory of India, any such order shall not extend to anyother part of the territory of India unless the President, being satisfied thatthe security of India or any part of the territory thereof is threatened byactivities in or in relation to the part of the territory of India in which theProclamation of Emergency is in operation, considers such extension to benecessary.]

(3) Every order made under Clause (1) shall, as soon as may be afterit is made, be laid before each House of Parliament.






1[359A. Application of this Part to the State of Punjab:–Rep. by the Constitution (Sixty - third Amendment) Act, 1989,S. 3, w.e.f. 6-1-1990.]

360. Provisions as to financial emergency:– (1) If the Presidentis satisfied that a situation has arisen whereby the financial stability or creditof India or of any part of the territory thereof is threatened, he may bya Proclamation make a declaration to that effect.

2[(2) A Proclamation issued under Clause (1)–

(a) may be revoked or varied by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two months, unless beforethe expiration of that period it has been approved by resolutionsof both Houses of Parliament :

Provided that if any such Proclamation is issued at a time when theHouse of the People has been dissolved or the dissolution of the Houseof the People takes place during the period of two months referred to insub-clause (c), and if a resolution approving the Proclamation has been passedby the Council of States, but no resolution with respect to such Proclamationhas been passed by the House of the People before the expiration of thatperiod, the Proclamation shall cease to operate at the expiration of thirtydays from the date on which the House of the People first sits after itsreconstitution unless before the expiration of the said period of thirty daysa resolution approving the Proclamation has been also passed by the Houseof the People.]

(3) During the period any such Proclamation as is mentioned in Clause(1) is in operation, the executive authority of the Union shall extend to thegiving of directions to any State to observe such canons of financial proprietyas may be specified in the directions, and to the giving of such other directionsas the President may deem necessary and adequate for the purpose.

(4) Notwithstanding anything in this Constitution–

(a) any such direction may include–

1. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec.40, w.e.f. 20-6-1979.

2. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, Sec.41, for Clause (2)w.e.f. 20-6-1979.

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287

(i) a provision requiring the reduction of salaries and allowances ofall or any class of persons serving in connection with the affairsof a State;

(ii) a provision requiring all Money Bills or other Bills to which theprovisions of Art. 207 apply to be reserved for the considerationof the President after they are passed by the Legislature of theState;

(b) it shall be competent for the President during the period anyProclamation issued under this Article is in operation to issuedirections for the reduction of salaries and allowances of all or anyclass of persons serving in connection with the affairs of the Unionincluding the Judges of the Supreme Court and the High Courts.

1[xxx]

Comments

Articles 352 to 360:-- There are three types of emergencies: (1) Nationalemergency; (2) Emergency in the State; and (3) Financial emergency. Presidentcan impose any of these three emergencies. He can impose national emergencyafter the full Cabinet requests the President to do so in writing. It is thereforeessential that there should be a consideration about the necessity of emergencyby the full Cabinet and secondly the request made to the President to imposeemergency must be in writing. Here the Cabinet means all the members of theCabinet rank excluding such of those members who are not Cabinet members.The national emergency can be invoked only in cases where there exist a stateof war or impending war with foreign countries. It can also be imposed in casewhere there exists internal rebellion. Popular agitations against the Governmentwill amount to mere law and order problem and cannot be treated as internalrebellion. Rebellion means an armed insurrection. A mere extortation to theGovernment servants, to the army personnel, or to police personnel to refuseto accept the orders from the executive does not amount to rebellion. In thecase of imposing emergency in a State, the conditions require for issuance ofPresidential proclamation are that there exist situation when the administrationof State cannot be carried on in accordance with the Constitution and that thereexists widespread internal disturbances. The expression ‘administration cannot becarried on in accordance with the Constitution’ includes defiance by the States

1. Clause (5) omitted by the Constitution (Forty-fourth Amendment) Act, 1978, Section 41,w.e.f. 20.6.1979.



to comply with the directions of the Union Government. If no Ministry whetherby the majority or by a minority or by coalition could be formed, it is alsoa ground for imposition of President’s rule. During the continuance of theemergency the President may suspend the operation of any of the fundamentalrights. This only means that the Courts during the emergency cannot interferein any manner if any breaches in fundamental rights occur. Claims arising outof the breaches can be raised after the ceasure of emergency. That is whyafter the national emergency ceases the Parliament enacts a law called the statuteof indemnity so that no such claim can be raised even after the emergency.If no such act of indemnity is passed all acts which infringe the fundamentalrights during emergency can be questioned in a Court of Law and compensationsclaimed. It is not open to the President to suspend the operation of the fundamentalrights guaranteed under Article 20 and 21 of the Constitution of India.

Financial emergency means a situation where creditworthiness of the UnionGovernment and of the States is doubted. Mere financial difficulty in meetingany expenditure is not a ground for imposing financial emergency. During thefinancial emergency the President may issue directives to the Union and Statesto observe economy in expenditure. He may direct salaries payable to the staffincluding the Judges may be reduced. The cuts in salary so effected may bereturned immediately after the declaration of emergency ceases. Even though theConstitution does not speak of payment of the withheld part of the salary itis reasonably assumed that payment of the arrears can be made when the Unionand the State regain solvency. The President may during the financial emergencysuspend fulfilment of any contractual obligations. If any payments are withheld,the same may be paid after the financial emergency ceases. If withheld obligationsand payments are not satisfied after the financial emergency it shall not be countedas a Constitutional infringement. This chapter gave rise to several disputes. Itwas once held that imposition of emergency can deprive the people of rightto life itself and that the President has power to suspend Articles 20 and 21.This situation is since been changed because of the Constitutional amendmentwhereby the President has no power to suspend the operation of Articles 20and 21 during the emergency. The other dispute is about President’s power topromulgate emergency in the State. In this context whether the Governor whilerecommending the President’s rule has or has not acted bona fide the Courtshave since held that the Governor shall act bona fide without any other motivation.The Supreme Court has in fact held in a Bihar case that since the Governoracted mala fide a declaration of emergency as unconstitutional was set aside.[S.R. Bommai v. Union of India, AIR 1994 SC 1918; Rameswar Prasad v.Union of India, AIR 2006 SC 980].

Art. 360

289

PART-XIX

MISCELLANEOUS

361. Protection of President and Governors and Rajpramukhs:– (1) The President, or the Governor or Rajpramukh of a State, shall notbe answerable to any Court for the exercise and performance of the powersand duties of his office or for any act done or purporting to be done byhim in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under reviewby any Court, tribunal or body appointed or designated by either Houseof Parliament for the investigation of a charge under Art. 61:

Provided further that nothing in this clause shall be construed as restrictingthe right of any person to bring appropriate proceedings against the Governmentof India or the Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continuedagainst the President, or the Governor of a State, in any Court during histerm of office.

(3) No process for the arrest or imprisonment of the President, or theGovernor of a State, shall issue from any Court during his term of office.

(4) No civil proceedings in which relief is claimed against the President,or the Governor of a State, shall be instituted during his term of office inany Court in respect of any act done or purporting to be done by him inhis personal capacity, whether before or after he entered upon his officeas President, or as Governor of such State, until the expiration of two monthsnext after notice in writing has been delivered to the President or theGovernor, as the case may be, or left at his office stating the nature of theproceedings, the cause of action therefor, the name, description and placeof residence of the party by whom such proceedings are to be institutedand the relief which he claims.

Comments

Article 361:-- Article 361 speaks of immunity of the President and theGovernor from the proceedings in Court of Law, civil and criminal. The positionin this regard may be summarised as follows:

MiscellaneousArt. 361

CONST-19


(1) Acts done by the President or Action can be questionedthe Governor in official capacity through proceedings initiatedduring the period of their office. against the Government. The

President or the Governorshall not be made parties.If they are made parties theirnames would be struck off.

(2) Acts done by the President or No civil proceedings can bethe Governor in personal capacity filed except after serving onduring the period of office. them a two months’ notice.

(3) Acts done by President and No civil proceedings can beGovernor in personal capacity filed except after serving onprior to taking office. them a two months’ notice.

(4) Acts done by the President and Proceedings can be takenthe Governor in official capacity against Government only.when bona fides are questioned. Officers may represent

the President or the Governor.

(5) Criminal acts done by the No action can be takenPresident or Governor prior against the President or theto taking office. Governor during the time

they hold office. After theyremit office the proceedingsif already initiated will getrevived and if not alreadyinitiated they can be initiatedafresh after they remit office.

(6) Criminal acts done by the No action can be taken duringPresident and Governor during the period when they holdthe period of office. office. They can be initiated

and proceeded with after theyremit office.

(7) Can contempt proceedings No contempt proceedingstaken against the President can be taken.and the Governor.

Art. 361

291

(8) Can any Court insist on the No. If the President or thepresence of the President Governor so chooses, he canor the Governor in the Court appear before the Court.

There is one instance in whichPresident V.V. Giri appearedin person before the SupremeCourt in his election case.

(9) Acts for which the President Enquiry into the chargescan be impeached. against the President can be

enquired into by a Committeeset up by the Parliament, evenas the President is functioningin his office. There is no caseof impeachment of the Presi-dent. The only case of im-peachment is that of JusticeRamaswamy of the SupremeCourt.

1[361A. Protection of publication of proceedings of Parliament andState Legislatures:– (1) No person shall be liable to any proceedings, civilor criminal, in any Court in respect of the publication in a newspaper ofa substantially true report of any proceedings of either House of Parliamentor the Legislative Assembly, or, as the case may be, either House of theLegislature, of a State, unless the publication is proved to have been madewith malice :

Provided that nothing in this Clause shall apply to the publication ofany report of the proceedings of a secret sitting of either House of Parliamentor the Legislative Assembly, or, as the case may be, either House of theLegislature, of a State.

(2) Clause (1) shall apply in relation to reports or matters broadcastby means of wireless telegraphy as part of any programme or service providedby means of a broadcasting station as it applies in relation to reports ormatters published in a newspaper.

Explanation:– In this Article, “newspaper” includes a news agencyreport containing material for publication in a newspaper.]

1. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, S. 42, w.e.f. 20.6.1979.

MiscellaneousArt. 361A


Comments

Article 361A:-- Article 361-A deals with the publication of proceedingsof the Parliament and legislatures of the States. It states that no civil or criminalaction lies against the publisher for anything published by him so long as thepublication is substantially true and such publication is made without any malice.What all that has been stated and what all that has occurred in the House canbe reported. If what is published is prohibited by the Speaker, it shall not bepublished and what the Speaker deletes from the speeches of the members shallnot also be published. Republication from the authorised publications of theParliament and Assemblies is permissible and the question of any motive or malicedoes not arise in such publications.

1[361B. Disqualification for appointment on remunerative politicalpost:– A member of a House belonging to any political party who isdisqualified for being a member of the House under paragraph 2 of the TenthSchedule shall also be disqualified to hold any remunerative political postfor duration of the period commencing from the date of his disqualificationtill the date on which the term of his office as such member would expireor till the date on which he contests an election to a House and is declaredelected, whichever is earlier.

Explanation:– For the purposes of this article,–

(a) the expression “House” has the meaning assigned to it in clause(a) of paragraph 1 of the Tenth Schedule;

(b) the expression “remunerative political post” means any office:–

(i) under the Government of India or the Government of a State wherethe salary or remuneration for such office is paid out of the publicrevenue of the Government of India or the Government of the State,as the case may be; or

(ii) under a body, whether incorporated or not, which is wholly orpartially owned by the Government of India or the Governmentof a State and the salary or remuneration for such office is paidby such body.

except where such salary or remuneration paid is compensatoryin nature.]

1. Ins. by the Constitution (Ninety-first Amndt.) Act, 2003, w.e.f. 2-1-2004.

Art. 361B

293

Comments

Article 361B:-- Article 361-B states that the member who suffers adisqualification on grounds of defection as provided under Schedule X, is alsodisqualified from holding any remunerative political post under the Union or theState Government. If he is disqualified for being Parliamentarian, he is disqualifiedto hold any remunerative post under the Union as well as under the State asthe case may be.

The expression ‘remunerative political post’ means any political office towhich any remuneration is prescribed whether in cash or in any other form.Political office means any office other than civil post. If Parliament memberis appointed as a temple trustee by the State Government or if an MLA is appointedas a member of language commission set up by the Union Government he willlose his office if he suffers a disqualification under Anti Defection Law.

362. Rights and privileges of Rulers of Indian States:– [Rep. bythe Constitution (Twenty-sixth Amendment) Act, 1971, S. 2.]

363. Bar to interference by Courts in disputes arising out ofcertain treaties, agreements, etc.:– (1) Notwithstanding anything in thisConstitution but subject to the provisions of Art. 143, neither the SupremeCourt nor any other Court shall have jurisdiction in any dispute arising outof any provision of a treaty, agreement, covenant, engagement, sanad orother similar instrument which was entered into or executed before thecommencement of this Constitution by any Ruler of an Indian State and towhich the Government of the Dominion of India or any of its predecessorGoverments was a party and which has or has been continued in operationafter such commencement, or in any dispute in respect of any right accruingunder or any liability or obligation arising out of any of the provisions ofthis Constitution relating to any such treaty, agreement, covenant, engagement,sanad or other similar instrument.

(2) In this Article–

(a) “Indian State” means any territory recognised before thecommencement of this Constitution by His Majesty or the Governmentof the Dominion of India as being such a State; and

(b) “Ruler” includes the Prince, Chief or other person recognised beforesuch commencement by His Majesty or the Government of theDominion of India as the Ruler of any Indian State.

Caselaw

Jewellery of ex-ruler of Jammu & Kashmir belong to the State. Dr. KaranSingh v. State of J&K, 2004 AIR SCW 2973.



1[363A. Recognition granted to Rulers of Indian States to ceaseand privy purses to be abolished:– Notwithstanding anything in thisConstitution or in any Law for the time being in force–

(a) the Prince, Chief or other person who, at any time before thecommencement of the Constitution (Twenty-sixth Amendment) Act,1971, was recognised by the President as the Ruler of an IndianState or any person who, at any time before such commencement,was recognised by the President as the successor of such Rulershall, on and from such commencement, cease to be recognisedas such Ruler or the successor of such Ruler;

(b) on and from the commencement of the Constitution (Twenty-sixthAmendment) Act, 1971, privy purse is abolished and all rights,liabilities and obligations in respect of privy purse are extinguishedand accordingly the Ruler or, as the case may be, the successorof such Ruler, referred to in Clause (a) or any other person shallnot be paid any sum as privy purse.]

Comments

Articles 363 and 363-A:-- Articles 363 and 363-A have since becomeobsolete. Under Article 363 it is provided that no Court including Supreme Courtshall have any jurisdiction to interpret the terms of treaties entered into betweenthe Union, dominion of India or the Government of India with the erstwhilerules of the native States and Article 363-A abolishes the payment of privy pursesto those rulers and the terms of accession entered into by the native Statesnumbering about 565. They all acceded to India in 1947. As a compensationall the Princess were sanctioned payment of certain amounts called privy purses.When the Government of India decided to abolish such payments (they werepaid privy purses from 1947 to 1971) it became necessary that the Constitutionhas to be amended so as to enable the Union Government to deal with thosePrincess and thereby stop payment of privy purses.

364. Special provisions as to major ports and aerodromes:– (1)Notwithstanding anything in this Constitution, the President may by publicnotification direct that as from such date as may be specified in the notification–

(a) any Law made by Parliament or by the Legislature of a State shallnot apply to any major port or aerodrome or shall apply theretosubject to such exceptions or modifications as may be specifiedin the notification, or

1. Ins. by the Constitution (Twenty-sixth Amendment) Act, 1971, Section 3.

Art. 364

295

(b) any existing Law shall cease to have effect in any major port oraerodrome except as respects things done or omitted to be donebefore the said date, or shall in its application to such port oraerodrome have effect subject to such exceptions or modificationsas may be specified in the notification.

(2) In this Article–

(a) “major port” means a port declared to be a major port by orunder any Law made by Parliament or any existing Law andincludes all areas for the time being included within the limits ofsuch port;

(b) “aerodrome” means aerodrome as defined for the purposes of theenactments relating to airways, aircraft and air navigation.

Comments

Article 364:-- This Article deals with conferring power on the UnionGovernment to deal with any and all subjects connected with major ports andaerodromes. This provision is made firstly to see that all the ports and aerodromescan be used by all the States and yet the entire control, ownership andadministration of the airports and aerodromes vests with the Union.

365. Effect of failure to comply with, or to give effect to, directionsgiven by the Union:– Where any State has failed to comply with, or togive effect to, any directions given in the exercise of the executive powerof the Union under any of the provisions of this Constitution, it shall belawful for the President to hold that a situation has arisen in which theGovernment of the State cannot be carried on in accordance with theprovisions of this Constitution.

Comments

Article 365:-- The failure of the State Government to comply with thedirections issued by the Union amounts to a situation in which Government ofthe State cannot be carried on in accordance with the Constitution. It impliesthat the States are bound to comply with all the directions the Union may issue.This Article supports the view that India is a unitary State and that the Unionis supreme and it governs country through Governors. The contention that thepost of the Governor shall be abolished is not tenable. Without the Governoroverlooking the State administration and the laws the Union Government cannoteffectively function and discharge its duties and obligations to the people. Withoutthe power to issue directions to the State and the compelling need for the Stateto observe them Union Government cannot function with success.



366. Definitions:– In this Constitution, unless the context otherwiserequires, the following expressions have the meanings hereby respectivelyassigned to them, that is to say–

(1) “agricultural income” means agricultural income as defined for thepurposes of the enactments relating to Indian income-tax;

(2) “an Anglo-Indian” means a person whose father or any of whoseother male progenitors in the male line is or was of European descent butwho is domiciled within the territory of India and is or was born within suchterritory of parents habitually resident therein and not established there fortemporary purposes only;

(3) “Article” means an Article of this Constitution;

(4) “borrow” includes the raising of money by the grant of annuities,and “loan” shall be construed accordingly;

1[xxx]

(5) “Clause” means a Clause of the Article in which the expressionoccurs;

(6) “corporation tax” means any tax on income, so far as that taxis payable by companies and is a tax in the case of which the followingconditions are fulfilled:–

(a) that it is not chargeable in respect of agricultural income;

(b) that no deduction in respect of the tax paid by companies is, byany enactments which may apply to the tax, authorised to be madefrom dividends payable by the companies to individuals;

(c) that no provision exists for taking the tax so paid into account incomputing for the purposes of Indian income-tax the total incomeof individuals receiving such dividends, or in computing the Indianincome-tax payable by, or refundable to, such individuals;

(7) “corresponding Province”, “corresponding Indian State” or“corresponding State” means in cases of doubt such Province, Indian Stateor State as may be determined by the President to be the correspondingProvince, the corresponding Indian State or the corresponding State, as thecase may be, for the particular purpose in question;

1. Clause (4A) omitted by the Constitution (Forty-third Amendment) Act, 1977, Sec. 11,w.e.f. 13-4-1978.

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297

(8) “debt” includes any liability in respect of any obligation to repaycapital sums by way of annuity and any liability under any guarantee, and“debt charges” shall be construed accordingly;

(9) “estate duty” means a duty to be assessed on or by referenceto the principal value, ascertained in accordance with such Rules as maybe prescribed by or under Laws made by Parliament or the Legislature ofa State relating to the duty, of all property passing upon death or deemed,under the provisions of the said Laws, so to pass;

(10) “existing Law” means any Law, Ordinance, Order, bye-law, Ruleor regulation passed or made before the commencement of this Constitutionby any Legislature, authority or person having power to make such a Law,Ordinance, Order, bye-law, Rule or regulation;

(11) “Federal Court” means the Federal Court constituted under theGovernment of India Act, 1935;

(12) “goods” includes all materials, commodities, and Articles;

(13) “guarantee” includes any obligation undertaken before thecommencement of this Constitution to make payments in the event of theprofits of an undertaking falling short of a specified amount;

(14) “High Court” means any Court which is deemed for the purposesof this Constitution to be a High Court for any State and includes–

(a) any Court in the territory of India constituted or reconstituted underthis Constitution as a High Court, and

(b) any other Court in the territory of India which may be declaredby Parliament by Law to be a High Court for all or any of thepurposes of this Constitution;

(15) “Indian State” means any territory which the Government of theDominion of India recognised as such a State;

(16) “Part” means a Part of this Constitution;

(17) “pension” means a pension, whether contributory or not, of anykind whatsoever payable to or in respect of any person, and includes retiredpay so payable; a gratuity so payable and any sum or sums so payableby way of the return, with or without interest thereon or any other additionthereto, of subscriptions to a provident fund;



(18) “Proclamation of Emergency” means a Proclamation issued underClause (1) of Art. 352;

(19) “public notification” means a notification in the Gazette of India,or, as the case may be, the Official Gazette of a State;

(20) “railway” does not include–

(a) a tramway wholly within a municipal area, or

(b) any other line of communication wholly situated in one State anddeclared by Parliament by Law not to be a railway;1[xxx]

2[(22) “Ruler” means the Prince, Chief or other person who, at anytime before the commencement of the Constitution (Twenty-sixth Amendment)Act, 1971, was recognised by the President as the Ruler of an Indian Stateor any person who, at any time before such commencement, was recognisedby the President as the successor of such Ruler;]

(23) “Schedule” means a Schedule to this Constitution;

(24) “Scheduled Castes” means such castes, races or tribes or partsof or groups within such castes, races or tribes as are deemed under Art.341 to be Scheduled Castes for the purposes of this Constitution;

(25) “Scheduled Tribes” means such tribes or tribal communities orparts of or groups within such tribes or tribal communities as are deemedunder Art. 342 to be Scheduled Tribes for the purposes of this Constitution;

(26) “securities” includes stock;3[xxx]

(27) “sub-clause” means a sub-clause of the Clause in which theexpression occurs;

(28) “taxation” includes the imposition of any tax or impost, whethergeneral or local or special, and “tax” shall be construed accordingly;

1. Clause (21) omitted by the Constitution (Seventh Amendment) Act, 1956, Section 29 andSchedule.

2. Subs. by the Constitution (Twenty-sixth Amendment) Act, 1971, Section 4, forClause (22).

3. Clause (26A) omitted by the Constitution (Forty-third Amendment) Act, 1977, Section11. w.e.f. 13-4-1978.

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299

(29) “tax on income” includes a tax in the nature of an excess profitstax;

1[(29A) “tax on the sale or purchase of goods” includes–

(a) a tax on the transfer, otherwise than in pursuance of a contract,of property in any goods for cash, deferred payment or othervaluable consideration;

(b) a tax on the transfer of property in goods (whether as goods orin some other form) involved in the execution of a works contract;

(c) a tax on the delivery of goods on hire-purchase or any systemof payment by instalments;

(d) a tax on the transfer of the right to use any goods for any purpose(whether or not for a specified period) for cash, deferred paymentor other valuable consideration;

(e) a tax on the supply of goods by any unincorporated associationor body of persons to a member thereof for cash, deferred paymentor other valuable consideration;

(f) a tax on the supply, by way of or as part of any service or inany other manner whatsoever, of goods, being food or any otherArticle for human consumption or any drink (whether or notintoxicating), where such supply or service, is for cash, deferredpayment or other valuable consideration,

and such transfer, delivery or supply of any goods shall be deemed to bea sale of those goods by the person making the transfer, delivery or supplyand a purchase of those goods by the person to whom such transfer, deliveryor supply is made;]

2[(30) “Union Territory” means any Union Territory specified in theFirst Schedule and includes any other territory comprised within the territoryof India but not specified in that Schedule.]

Comments

Article 366:-- This Article furnishes definitions for some terms used inthe Constitution. The meanings given are applicable in so far as those termsoccurring in the Constitution. It is not correct to assume that the definitions

1. Inserted by the Constitution (Forty-sixth Amendment) Act, 1982, Section 4.

2. Subs. by the Constitution (Seventh Amendment) Act, 1956, Section 29 and Schedule, forClause (30).



given in the Constitution shall bear the same meaning when they are used inother laws made by the Union or the States.

Caselaw

Mere agreement to do service is not service agreement. 2005 AIR SCW4073.

Tax on interest imposed on the banks cannot be shifted to the borrowersof loans. 2004 AIR SCW 2491.

Entry tax being compensatory does not offend Art. 301. 2004 AIR SCW3427.

Royalty is not tax. It may be payable to State or to any individual. 2004AIR SCW 5998.

Work of photographers is not a works contract. Sales tax cannot beimposed on photographers. M/s. Rainbow Colour Lab and another v. State ofMadhya Pradesh and others, AIR 2000 SC 808.

Art. 366(12):-- Sale of goods includes sale of computer software. TataConsultancy Services v. State of Andhra Pradesh, AIR 2005 SC 371.

Art. 366(24):-- Election of forward caste woman married to Scheduledcaste husband – Though she would not be entitled to the benefit under Art.15(4) and Art. 16(4), she is entitled to contest for election in reserved constituency.Ms. Sunita v. Krishan Lal and others, AIR 2005 Del. 284.

367. Interpretation:– (1) Unless the context otherwise requires, theGeneral Clauses Act, 1897, shall, subject to any adaptations and modificationsthat may be made therein under Art. 372, apply for the interpretation ofthis Constitution as it applies for the interpretation of an Act of the Legislatureof the Dominion of India.

(2) Any reference in this Constitution to Acts or Laws of, or madeby, Parliament, or to Acts or Laws of, or made by, the Legislature of aState 1[xxx], shall be construed as including a reference to an Ordinancemade by the President or, to an Ordinance made by a Governor, as thecase may be.

(3) For the purposes of this Constitution “foreign State” means anyState other than India:


Art. 367

301

Provided that, subject to the provisions of any Law made by Parliament,the President may by Order declare any State not to be a foreign Statefor such purposes as may be specified in the Order.

Comments

Article 367:-- It is a matter of great significance to note while interpretingthe Constitution it is necessary to apply the rules of interpretation embodied inthe General Clauses Act. The significance for this lies in the fact that theConstitution-makers intend that the rules of jurisprudence prevalent in India priorto the Constitution shall continue even after the Constitution comes into force.

PART-XX

AMENDMENT OF THE CONSTITUTION

368 1[Power of Parliament to amend the Constitution and proceduretherefor]:– 2[(1) Notwithstanding anything in this Constitution, Parliamentmay in exercise of its constituent power amend by way of addition, variationor repeal any provision of this Constitution in accordance with the procedurelaid down in this Article.]

3[(2)] An Amendment of this Constitution may be initiated only by theintroduction of a Bill for the purpose in either House of Parliament, andwhen the Bill is passed in each House by a majority of the total membershipof that House and by a majority of not less than two-thirds of the membersof that House present and voting, 4[it, shall be presented to the Presidentwho shall give his assent to the Bill and thereupon] the Constitution shallstand amended in accordance with the terms of the Bill:

Provided that if such Amendment seeks to make any change in–

(a) Art. 54, Art. 55, Art. 73, Art. 162 or Art. 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I ofPart XI, or

(c) any of the Lists in the Seventh Schedule, or

1. Subs. for “Procedure for Amendment of the Constitution” by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3.

2. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3.

3. Article 368 renumbered as Clause (2) thereof by the Constitution (Twenty-fourth Amendment)Act, 1971, Section 3.

4. Subs. for “it shall be presented to the President for his assent and upon such assent beinggiven to the Bill” by the Constitution (Twenty-fourth Amendment) Act, 1971, Sec. 3.

Amendment of the ConstitutionArt. 368


(d) the representation of States in Parliament, or

(e) the provisions of this Article,

the Amendment shall also require to be ratified by the Legislatures of notless than one-half of the States 1[xxx] by resolution to that effect passedby those Legislatures before the Bill making provision for such Amendmentis presented to the President for assent.

2[(3) Nothing in Art. 13 shall apply to any Amendment made underthis Article.]

3[(4) No Amendment of this Constitution (including the provisions ofPart III) made or purporting to have been made under this Article [whetherbefore or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any Courton any ground.

(5) For the removal of doubts, it is hereby declared that there shallbe no limitation whatever on the constituent power of Parliament to amendby way of addition, variation or repeal the provisions of this Constitutionunder this Article.]

Comments

Article 368:-- Parliament is invested with power to amend the Constitutionin any of its provisions. There is no need to convene any new ConstituentAssembly to amend or re-enact any provision in the Constitution. While dealingwith the amendments to the Constitution, the Parliament sits as ConstituentAssembly. Excepting certain matters, Parliament may approve the amendmentswith simple majority of the members attending. In all other matters the Parliamentshall vote by a majority of the strength of the Parliament or by a majority of2/3rd members present and voting. The expression ‘persons present in voting’means ‘those who actually present in the Parliament at the time of voting’. Thosewho walk out or those who abstain from voting are not taken into account.In respect of certain matters in which the States are interested a ratificationof the amendment by majority of the States is necessary. Here also if any Stateor States do not send their resolutions, their opinion or abstenance is not takeninto consideration. There are a few cases in which the opinion of States is calledfor. In such cases it is only the opinion that is considered by the Union. What

1. The words and letters “specified in Parts A and B of the First Schedule” omitted bythe Constitution (Seventh Amendment) Act, 1956, Section 29 and Schedule.

2. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, Section 3.

3. Clauses (4) and (5) ins. by the Constitution (Forty-second Amendment) Act, 1976, Sec. 55.

Art. 368

303

is required is a mere consideration of the opinion of the State. Union is notobliged to follow the opinion of the State Legislatures. As per the terms of thisArticle, the Parliament is competent to amend any part of the Constitution orany Article. In Golaknath’s case, the Supreme Court held that Parliament is notcompetent to amend the fundamental rights. This view was reversed in KesavanandaBharati’s case where the Supreme Court however put a condition that theParliament even though can amend the fundamental rights, it cannot amend theConstitution in a manner which negatives the basic features of the Constitution.The Supreme Court has spelt the following as basic features: (1) Parliamentarysystem; (2) Principle of equality; (3) Rule of law; and (4) Judicial review.

PART-XXI

1[TEMPORARY, TRANSITIONAL AND SPECIALPROVISIONS]

369. Temporary power to Parliament to make Laws with respectto certain matters in the State List as if they were matters in theConcurrent List:– Notwithstanding anything in this Constitution, Parliamentshall, during a period of five years from the commencement of this Constitution,have power to make Laws with respect to the following matters as if theywere enumerated in the Concurrent List, namely:–

(a) trade and commerce within a State in, and the production, supplyand distribution of, cotton and woollen textiles, raw cotton (includingginned cotton and unginned cotton or kapas), cotton seed, paper(including newsprint), foodstuffs (including edible oilseeds and oil),cattle fodder (including oil-cakes and other concentrates), coal(including coke and derivatives of coal), iron, steel and mica;

(b) offences against Laws with respect to any of the matters mentionedin Clause (a), jurisdiction and powers of all Courts except theSupreme Court with respect to any of those matters, and fees inrespect of any of those matters but not including fees taken in anyCourt;

but any Law made by Parliament, which Parliament would not butfor the provisions of this Article have been competent to make,shall, to the extent of the incompetency, cease to have effect onthe expiration of the said period, except as respects things doneor omitted to be done before the expiration thereof.

1. Subs. for “TEMPORARY AND TRANSITIONAL PROVISIONS” by the Constitution(Thirteenth Amendment) Act, 1962, Sec. 2, w.e.f. 1-12-1963.

Temporary, Transitional and Special ProvisionsArt. 369


Comments

Article 369:-- Article 369 by itself is a formal provision added to manyof the statutes to provide as to what should happen during the period of transitionfrom their previous position to the new position created by the enactment. Priorto the Constitution of India there were several laws which have been in forceand which actually govern several aspects of administration and the life of thepeople. In order to provide continuity the President was given power to makesuch adaptations and changes as may be necessary. The power of adaptation,correction was given to the President for a period of two years only. Anyadaptation, correction and change which is found necessary thereafter to theexisting law can be made only by the Parliament.

1[370. Temporary provisions with respect to the State of Jammu andKashmir:– (1) Notwithstanding anything in this Constitution,–

(a) the provisions of Art. 238 shall not apply in relation to the Stateof Jammu and Kashmir**;

(b) the power of Parliament to make Laws for the said State shallbe limited to–

(i) those matters in the Union List and the Concurrent List which, inconsultation with the Government of the State, are declared by thePresident to correspond to matters specified in the Instrument ofAccession governing the accession of the State to the Dominionof India as the matters with respect to which the Dominion Legislaturemay make Laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence ofthe Government of the State, the President may by Order specify.

1. In exercise of the powers, conferred by this Article the President, on the recommendationof the Constituent Assembly of the State of Jammu and Kashmir, declared that, as fromthe 17th day of November, 1952, the said Article 370 shall be operative with themodification that for the Explanation in Clause (1) thereof, the following Explanation issubstituted namely:–

“Explanation:– For the purposes of this Article, the Government of the State means theperson for the time being recognised by the President on the recommendation of theLegislative Assembly of the State as the “Sadar-e-Rayasat* of Jammu and Kashmir, actingon the advice of the Council of Ministers of the State for the time being in office.”

* Now “Governor” (Ministry of Law Order No. C.O.44, dated the 15th November, 1952).

**. Art. 238 which was included in Pt.VII has been repealed by the Constitution (SeventhAmendment) Act, 1956, (S.29 & Sch.) (w.e.f. 1-11-1956).

Art. 370

305

Explanation:– For the purposes of this Article, the Government ofthe State means the person for the time being recognised by the Presidentas the Maharaja of Jammu and Kashmir acting on the advice of the Councilof Ministers for the time being in office under the Maharaja’s Proclamationdated the fifth day of March, 1948;

(c) the provisions of Art. 1 and of this Article shall apply in relationto that State;

(d) such of the other provisions of this Constitution shall apply in relationto that State, subject to such exceptions and modifications as thePresident may by Order1 specify:

Provided that no such Order which relates to the matters specified inthe Instrument of Accession of the State referred to in Paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of theState:

Provided further that no such Order which relates to matters other thanthose referred to in the last preceding proviso shall be issued except withthe concurrence of that Government.

(2) If the concurrence of the Government of the State referred to inParagraph (ii) of sub-clause (b) of Clause (1) or in the second proviso tosub-clause (d) of that clause be given before the Constituent Assembly forthe purpose of framing the Constitution of the State is convened, it shallbe placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this Article,the President may, by public notification, declare that this Article shall ceaseto be operative or shall be operative only with such exceptions andmodifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of theState referred to in Clause (2) shall be necessary before the President issuessuch a notification.

Comments

Article 370:-- Article 370 deals with special situation in the relations withJammu and Kashmir. The accession of States to India is governed by the termsof accession under which that State acceded to the Union but subject only tothe condition that Union Government shall not exercise any powers beyond thesubjects specified in the terms of accession.

1. See the Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48).


CONST-20


1[371. Special provision with respect to the States of 2[xxx]Maharashtra and Gujarat:– 3[xxx]

(2) Notwithstanding anything in this Constitution, the President may byOrder made with respect to 4[the State of Maharashtra or Gujarat], providefor any special responsibility of the Governor for–

(a) the establishment of separate development boards for Vidarbha,Marathwada, 5[and the rest of Maharashtra or, as the case maybe,] Saurashtra, Kutch and the rest of Gujarat with the provisionthat a report on the working of each of these boards will be placedeach year before the State Legislative Assembly;

(b) the equitable allocation of funds for developmental expenditure overthe said areas, subject to the requirements of the State as a whole;and

(c) an equitable arrangement providing adequate facilities for technicaleducation and vocational training, and adequate opportunities foremployment in services under the control of the State Government,in respect of all the said areas, subject to the requirements of theState as a whole.]

6[371A. Special provision with respect to the State of Nagaland:–(1) Notwithstanding anything in this Constitution,–

(a) no Act of Parliament in respect of–

(i) religious or social practices of the Nagas,

(ii) Naga Customary Law and procedure,

(iii) administration of civil and criminal justice involving decisions accordingto Naga Customary Law,

1. Subs. by the Constitution (Seventh Amendment) Act, 1956, Sec. 22, for Article 371.

2. The words “Andhra Pradesh”, omitted by the Constitution (Thirty-second Amendment)Act, 1973, Sec. 2, w.e.f. 1-7-1974.

3. Clause(1) omitted by the Constitution (Thirty-second Amendment) Act, 1973, Sec. 2, w.e.f.1-7-1974.

4. Subs. for “the State of Bombay” by the Bombay Reorganisation Act, 1960 (11 of 1960),Sec. 85, w.e.f. 1-5-1960.

5. Subs. for “the rest of Maharashtra” by the Bombay Reorganisation Act, 1960 (11 of 1960),Section 85, w.e.f. 1-5-1960.

6. Ins. by the Constitution (Thirteenth Amendment) Act, 1962, Sec. 2, w.e.f. 1-12-1963.

Art. 371A

307

(iv) ownership and transfer of land and its resources,

shall apply to the State of Nagaland unless the Legislative Assemblyof Nagaland by a resolution so decides;

(b) The Governor of Nagaland shall have special responsibility withrespect to Law and Order in the State of Nagaland for so longas in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that Statecontinue therein or in any part thereof and in the discharge of hisfunctions in relation thereto the Governor shall, after consulting theCouncil of Ministers, exercise his individual judgment as to theaction to be taken:

Provided that if any question arises whether any matter is or is nota matter as respect which the Governor is under this sub-clause requiredto act in the exercise of his individual judgment, the decision of the Governorin his discretion shall be final, and the validity of anything done by theGovernor shall not be called in question on the ground that he ought orought not to have acted in the exercise of his individual judgment:

Provided further that if the President on receipt of a report from theGovernor or otherwise is satisfied that it is no longer necessary for theGovernor to have special responsibility with respect to Law and Order inthe State of Nagaland, he may by Order direct that the Governor shall ceaseto have such responsibility with effect from such date as may be specifiedin the Order;

(c) in making his recommendation with respect to any demand for agrant, the Governor of Nagaland shall ensure that any moneyprovided by the Government of India out of the Consolidated Fundof India for any specific service or purpose is included in thedemand for a grant relating to that service or purpose and notin any other demand;

(d) as from such date as the Governor of Nagaland may by publicnotification in this behalf specify, there shall be established a regionalcouncil for the Tuensang District consisting of thirty-five membersand the Governor shall in his discretion make Rules providing for–

(i) the composition of the regional council and the manner in whichthe members of the regional council shall be chosen:

Temporary, Transitional and Special ProvisionsArt. 371A


Provided that the Deputy Commissioner of the Tuensang Districtshall be the Chairman ex officio of the regional council and theVice-Chairman of the regional council shall be elected by themembers thereof from amongst themselves;

(ii) the qualifications for being chosen as, and for being, members ofthe regional council;

(iii) the term of office of, and the salaries and allowances, if any, tobe paid to members of, the regional council;

(iv) the procedure and conduct of business of the regional council;

(v) the appointment of officers and staff of the regional council andtheir conditions of services; and

(vi) any other matter in respect of which it is necessary to make Rulesfor the Constitution and proper functioing of the regional council.

(2) Notwithstanding anything in this Constitution, for a period of tenyears from the date of the formation of the State of Nagaland or for suchfurther period as the Governor may, on the recommendation of the regionalcouncil, by public notification specify in this behalf,–

(a) the administration of the Tuensang District shall be carried on bythe Governor;

(b) where any money is provided by the Government of India to theGovernment of Nagaland to meet the requirements of the Stateof Nagaland as a whole, the Governor shall in his discretion arrangefor an equitable allocation of that money between the TuensangDistrict and the rest of the State;

(c) no Act of the Legislature of Nagaland shall apply to TuensangDistrict unless the Governor, on the recommendation of the regionalcouncil, by public notification so directs and the Governor in givingsuch direction with respect to any such Act may direct that theAct shall in its application to the Tuensang District or any partthereof have effect subject to such exceptions or modifications asthe Governor may specify on the recommendation of the regionalcouncil:

Provided that any direction given under this sub-clause may be givenso as to have retrospective effect;

Art. 371A

309

(d) the Governor may make regulations for the peace, progress andgood Government of the Tuensang District and any regulations somade may repeal or amend with retrospective effect, if necessary,any Act of Parliament or any other Law which is for the time beingapplicable to that District;

(e)(i) one of the members representing the Tuensang District in theLegislative Assembly of Nagaland shall be appointed Minister forTuensang affairs by the Governor on the advice of the Chief Ministerand the Chief Minister in tendering his advice shall act on therecommendation of the majority of the members as aforesaid;

(ii) the Minister for Tuensang affairs shall deal with, and have directaccess to the Governor on, all matters relating to the TuensangDistrict but he shall keep the Chief Minister informed about thesame;

(f) notwithstanding anything in the foregoing provisions of this Clause,the final decision on all matters relating to the Tuensang Districtshall be made by the Governor in his discretion;

(g) in Articles 54 and 55 and Clause (4) of Art. 80, references tothe elected members of the Legislative Assembly of a State or toeach such member shall include references to the members ormember of the Legislative Assembly of Nagaland elected by theregional council established under this Article;

(h) in Art. 170–

(i) Clause (1) shall, in relation to the Legislative Assembly of Nagaland,have effect as if for the word “sixty”, the words “forty-six” hadbeen substituted;

(ii) in the said Clause, the reference to direct election from territorialconstituencies in the State shall include election by the membersof the regional council established under this Article;

(iii) in Clauses (2) and (3), references to territorial constituencies shallmean references to territorial constituencies in the Kohima andMokokchung Districts.

(3) If any difficulty arises in giving effect to any of the foregoingprovisions of this Article, the President may by Order do anything (includingany adoptation or modification of any other Article) which appears to himto be necessary for the purpose of removing that difficulty:

Temporary, Transitional and Special ProvisionsArt. 371A


Provided that no such Order shall be made after the expiration of threeyears from the date of the formation of the State of Nagaland.

Explanation:– In this Article, the Kohima, Mokokchung and TuensangDistricts shall have the same meanings as in the State of Nagaland Act, 1962.]

1[371B. Special provision with respect to the State of Assam:–Notwithstanding anything in this Constitution, the President may, by Ordermade with respect to the State of Assam, provide for the constitution andfunctions of a committee of the Legislative Assembly of the State consistingof members of that Assembly elected from the tribal areas specified in 2[PartI] of the table appended to Paragraph 20 of the Sixth Schedule and suchnumber of other members of that Assembly as may be specified in the Orderand for the modifications to be made in the Rules of procedure of thatAssembly for the Constitution and proper functioning of such committee.]

3[371C. Special provision with respect to the State of Manipur:–(1) Notwithstanding anything in this Constitution, the President may, by Ordermade with respect to the State of Manipur, provide for the Constitution andfunctions of a Committee of the Legislative Assembly of the State consistingof members of that Assembly elected from the Hill Areas of that State, forthe modifications to be made in the Rules of business of the Governmentand in the Rules of procedure of the Legislative Assembly of the State andfor any special responsibility of the Governor in Order to secure the properfunctioning of such committee.

(2) The Governor shall annually, or whenever so required by thePresident, make a report to the President regarding the administration ofthe Hill Areas in the State of Manipur and the executive power of the Unionshall extend to the giving of directions to the State as to the administrationof the said areas.

Explanation:– In this Article, the expression “Hill Areas” means suchareas as the President may, by Order, declare to be Hill Areas.

4[371D. Special provisions with respect to the State of AndhraPradesh:– (1) The President may, by Order made with respect to the State

1. Ins. by the Constitution (Twenty-second Amendment) Act, 1969, Section 4.

2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), Section 71,for “Part A”, w.e.f. 21-1-1972.

3. Ins. by the Constitution (Twenty-seventh Amendment) Act, 1971, Section 5, w.e.f.15.2.1972.

4. Ins. by the Constitution (Thirty-second Amendment) Act, 1973, Sec. 3, w.e.f. 1-7-1974.

Art. 371D

311

of Andhra Pradesh provide, having regard to the requirements of the Stateas a whole, for equitable opportunities and facilities for the people belongingto different parts of the State, in the matter of public employment and inthe matter of education, and different provisions may be made for variousparts of the State.

(2) An Order made under Clause (1) may, in particular,–

(a) require the State Government to organise any class or classes ofposts in a civil service of, or any class or classes of civil postsunder, the State into different local cadres for different parts ofthe State and allot in accordance with such principles and procedureas may be specified in the Order the persons holding such poststo the local cadres so organised;

(b) specify any part or parts of the State which shall be regarded asthe local area–

(i) for direct recruitment to posts in any local cadre (whether organisedin pursuance of an Order under this Article or constituted otherwise)under the State Government;

(ii) for direct recruitment to posts in any cadre under any local authoritywithin the State; and

(iii) for the purposes of admission to any University within the Stateor to any other educational institution which is subject to the controlof the State Government;

(c) specify the extent to which, the manner in which and the conditionssubject to which, preference or reservation shall be given or made–

(i) in the matter of direct recruitment to posts in any such cadre referredto in sub-clause (b) as may be specified in this behalf in the Order;

(ii) in the matter of admission to any such University or other educationalinstitution referred to in sub-clause (b) as may be specified in thisbehalf in the Order,

to or in favour of candidates who have resided or studied for any periodspecified in the Order in the local area in respect of such cadre, Universityor other educational institution, as the case may be.

(3) The President may, by Order, provide for the constitution of anAdministrative Tribunal for the State of Andhra Pradesh to exercise such

Temporary, Transitional and Special ProvisionsArt. 371D


jurisdiction, powers and authority [including any jurisdiction, power andauthority which immediately before the commencement of the Constitution(Thirty-second Amendment) Act, 1973, was exercisable by any Court (otherthan the Supreme Court) or by any Tribunal or other authority] as may bespecified in the Order with respect to the following matters, namely:–

(a) appointment, allotment or promotion to such class or classes ofposts in any civil service of the State, or to such class or classesof civil posts under the State, or to such class or classes of postsunder the control of any local authority within the State, as maybe specified in the Order;

(b) Seniority of persons appointed, allotted or promoted to such classor classes of posts in any civil service of the State, or to suchclass or classes of civil posts under the State, or to such classor classes of posts under the control of any local authority withinthe State, as may be specified in the Order;

(c) such other conditions of service of persons appointed, allotted orpromoted to such class or classes of civil posts in any civil serviceof the State or to such class or classes of civil posts under theState or to such class or classes of posts under the control ofany local authority within the State, as may be specified in theOrder.

(4) An Order made under Clause (3) may–

(a) authorise the Administrative Tribunal to receive representations forthe redress of grievances relating to any matter within its jurisdictionas the President may specify in the Order and to make such Ordersthereon as the Administrative Tribunal deems fit;

(b) contain such provisions with respect to the powers and authoritiesand procedure of the Administrative Tribunal (including provisionswith respect to the powers of the Administrative Tribunal to punishfor contempt of itself) as the President may deem necessary;

(c) provide for the transfer to the Administrative Tribunal of suchclasses of proceedings, being proceedings relating to matters withinits jurisdiction and pending before any Court (other than the SupremeCourt) or Tribunal or other authority immediately before thecommencement of such Order, as may be specified in the Order;

Art. 371D

313

(d) contain such supplemental, incidental and consequential provisions(including provisions as to fees and as to limitation, evidence orfor the application of any Law for the time being in force subjectto any exceptions or modifications) as the President may deemnecessary.

(5) The Order of the Administrative Tribunal finally disposing of anycase shall become effective upon its confirmation by the State Governmentor on the expiry of three months from the date on which the Order is made,whichever is earlier:

Provided that the State Government may, by special Order made inwriting and for reasons to be specified therein, modify or annul any Orderof the Administrative Tribunal before it becomes effective and in such a case,the Order of the Administrative Tribunal shall have effect only in such modifiedform or be of no effect, as the case may be.

(6) Every special Order made by the State Government under theproviso to Clause (5) shall be laid, as soon as may be after it is made,before both Houses of the State Legislature.

(7) The High Court for the State shall not have any powers ofsuperintendence over the Administrative Tribunal and no Court (other thanthe Supreme Court) or Tribunal shall exercise any jurisdiction, power orauthority in respect of any matter subject to the jurisdiction, power or authorityof, or in relation to, the Administrative Tribunal.

(8) If the President is satisfied that the continued existence of theAdministrative Tribunal is not necessary, the President may by Order abolishthe Administrative Tribunal and make such provisions in such Order as hemay deem fit for the transfer and disposal of cases pending before the Tribunalimmediately before such abolition.

(9) Notwithstanding any judgment, decree or Order of any Court,tribunal or other authority,–

(a) no appointment, posting, promotion or transfer of any person–

(i) made before the 1st day of November, 1956, to any post underthe Government of, or any local authority within, the State ofHyderabad as it existed before that date; or

(ii) made before the commencement of the Constitution (Thirty-secondAmendment) Act, 1973, to any post under the Government of,or any local or other authority within, the State of Andhra Pradesh;and

Temporary, Transitional and Special ProvisionsArt. 371D


(b) no action taken or thing done by or before any person referredto in sub-clause (a),

shall be deemed to be illegal or void or ever to have become illegal orvoid merely on the ground that the appointment, posting, promotion or transferof such person was not made in accordance with any Law, then in force,providing for any requirement as to residence within the State of Hyderabador, as the case may be, within any part of the State of Andhra Pradesh,in respect of such appointment, posting, promotion or transfer.

(10) The provisions of this Article and of any Order made by thePresident thereunder shall have effect notwithstanding anything in any otherprovision of this Constitution or in any other Law for the time being in force.]

Caselaw

Reservation in favour of local candidates in the matrix of 100 point roasteris not valid. It shall be applied for each subject. Registrar, NTR University ofHealth Sciences, Vijayawada v. Dr. G. Babu Rajendra Prasad and another, AIR2000 A.P. 389.

1[371E. Establishment of Central University in Andhra Pradesh:–Parliament may by Law provide for the establishment of a University in theState of Andhra Pradesh.]

2[371F. Special provisions with respect to the State of Sikkim:–Notwithstanding anything in this Constitution,–

(a) the Legislative Assembly of the State of Sikkim shall consist ofnot less than thirty members;

(b) as from the date of commencement of the Constitution (Thirty-sixthAmendment) Act, 1975 (hereafter in this Article referred to as theappointed day)–

(i) the Assembly for Sikkim formed as a result of the elections heldin Sikkim in April, 1974 with thirty-two members elected in thesaid elections (hereinafter referred to as the sitting members) shallbe deemed to be the Legislative Assembly of the State of Sikkimduly constituted under this Constitution;

(ii) the sitting members shall be deemed to be the members of theLegislative Assembly of the State of Sikkim duly elected under thisConstitution; and

1. Inserted by the Constitution (32nd Amendment) Act, 1973, Section 3, w.e.f. 1.7.1974.

2. Inserted by the Constitution (36th Amendment) Act, 1975, Section 3, w.e.f. 26-4-1975.

Art. 371F

315

(iii) the said Legislative Assembly of the State of Sikkim shall exercisethe powers and perform the functions of the Legislative Assemblyof a State under this Constitution;

(c) in the case of the Assembly deemed to be the Legislative Assemblyof the State of Sikkim under Clause (b), the references to the periodof 1[five years], in Clause (1) of Art. 172 shall be construed asreferences to a period of 2[four years] and the said period of 2[fouryears] shall be deemed to commence from the appointed day;

(d) until other provisions are made by Parliament by Law, there shallbe allotted to the State of Sikkim one seat in the House of thePeople and the State of Sikkim shall form one Parliamentaryconstituency to be called the Parliamentary constituency for Sikkim;

(e) the representative of the State of Sikkim in the House of the Peoplein existence on the appointed day shall be elected by the membersof the Legislative Assembly of the State of Sikkim;

(f) Parliament may, for the purpose of protecting the rights and interestsof the different sections of the population of Sikkim make provisionfor the number of seats in the Legislative Assembly of the Stateof Sikkim which may be filled by candidates belonging to suchsections and for the delimitation of the assembly constituencies fromwhich candidates belonging to such sections alone may stand forelection to the Legislative Assembly of the State of Sikkim;

(g) the Governor of Sikkim shall have special responsibility for peaceand for an equitable arrangement for ensuring the social and economicadvancement of different sections of the population of Sikkim andin the discharge of his special responsibility under this Clause, theGovernor of Sikkim shall, subject to such directions as the Presidentmay, from time to time, deem fit to issue, act in his discretion;

(h) all property and assets (whether within or outside the territoriescomprised in the State of Sikkim) which immediately before theappointed day were vested in the Government of Sikkim or in anyother authority or in any person for the purposes of the Governmentof Sikkim shall, as from the appointed day, vest in the Governmentof the State of Sikkim;

1. Subs. for “six years”, by the Constitution (44th Amndt.) Act, 1978, Section 43, w.e.f.6-9-1979.

2. Subs. for “five years”, by Ibid.

Temporary, Transitional and Special ProvisionsArt. 371F


(i) the High Court functioning as such immediately before the appointedday in the territories comprised in the State of Sikkim shall, onand from the appointed day, be deemed to be the High Courtfor the State of Sikkim;

(j) all Courts of Civil, Criminal and Revenue jurisdiction, all authoritiesand all officers, judicial, executive and Ministerial, throughout theterritory of the State of Sikkim shall continue on and from theappointed day to exercise their respective functions subject to theprovisions of this Constitution;

(k) all laws in force immediately before the appointed day in theterritories comprised in the State of Sikkim or any part thereofshall continue to be in force therein until amended or repealed bya competent Legislature or other competent authority;

(l) for the purpose of facilitating the application of any such Law asis referred to in Clause (k) in relation to the administration of theState of Sikkim and for the purpose of bringing the provisions ofany such Law into accord with the provisions of this Constitution,the President may, within two years from the appointed day, byOrder, make such adaptations and modifications of the law, whetherby way of repeal or Amendment, as may be necessary or expedient,and thereupon, every such Law shall have effect subject to theadaptations and modifications so made, and any such adaptationor modification shall not be questioned in any Court of Law;

(m) neither the Supreme Court nor any other Court shall have jurisdictionin respect of any dispute or other matter arising out of any treaty,agreement, engagement or other similar instrument relating to Sikkimwhich was entered into or executed before the appointed day andto which the Government of India or any of its predecessorGovernment was a party, but nothing in this Clause shall beconstrued to derogate from the provisions of Art. 143;

(n) the President may, by public notification, extend with such restrictionsor modifications as he thinks fit to the State of Sikkim any enactmentwhich is in force in a State in India at the date of the notification;

(o) if any difficulty arises in giving effect to any of the foregoingprovisions of this Article, the President may, by Order1, do anything

Art. 371F

1. See the Constitution (Removal of Difficulties) Order XI (C.O. 99).

317

(including any adaptation or modification of any other Article) whichappears to him to be necessary for the purpose of removing thatdifficulty:

Provided that no such Order shall be made after the expiry oftwo years from the appointed day;

(p) all things done and all actions taken in or in relation to the Stateof Sikkim or the territories comprised therein during the periodcommencing on the appointed day and ending immediately beforethe date on which the Constitution (Thirty-sixth Amendment) Act,1975, receives the assent of the President shall, in so far as theyare in conformity with the provisions of this Constitution as amendedby the Constitution (Thirty-sixth Amendment) Act, 1975, be deemedfor all purposes to have been validly done or taken under thisConstitution as so amended].

Caselaw

Art. 371-F(n):-- President has power to extend both the Central laws aswell as the State laws to other areas. Extension of Banking Regulation Act toSikkim is valid. North East Finance Corporation Ltd. and another v. Unionof India and others, AIR 2000 Sikkim 1.

1[371G. Special provision with respect to the State of Mizoram:–Notwithstanding anything in this Constitution,–

(a) no Act of Parliament in respect of–

(i) religious or social practices of the Mizos,

(ii) Mizo customary law and procedure,

(iii) administration of civil and criminal justice involving decisions accordingto Mizo customary law,

(iv) ownership and transfer of land,

shall apply to the State of Mizoram unless the Legislative Assemblyof the State of Mizoram by a resolution so decides:

Provided that nothing in this clause shall apply to any Central Act inforce in the Union territory of Mizoram immediately before the commencementof the Constitution (Fifty-third Amendment) Act, 1986;

(b) the Legislative Assembly of the State of Mizoram shall consist ofnot less than forty members.]

1. Ins. by the Constitution (Fifty-third Amendment) Act, 1986, Sec. 2, w.e.f. 20-2-1987.

Temporary, Transitional and Special ProvisionsArt. 371G


1[371H. Special provision with respect to the State of ArunachalPradesh:– Notwithstanding anything in this Constitution,–

(a) the Governor of Arunachal Pradesh shall have special responsibilitywith respect to law and order in the State of Arunachal Pradeshand in the discharge of his functions in relation thereto, the Governorshall, after consulting the Council of Ministers, exercise his individualjudgment as to the action to be taken:

Provided that if any question arises whether any matter is or isnot a matter as respects which the Governor is under this clauserequired to act in the exercise of his individual judgment, the decisionof the Governor in his discretion shall be final, and the validity ofanything done by the Governor shall not be called in question onthe ground that he ought or ought not to have acted in the exerciseof his individual judgment:

Provided further that if the President on receipt of a report fromthe Governor or otherwise is satisfied that it is no longer necessaryfor the Governor to have special responsibility with respect to lawand order in the State of Arunachal Pradesh, he may by orderdirect that the Governor shall cease to have such responsibility witheffect from such date as may be specified in the order;

(b) the Legislative Assembly of the State of Arunachal Pradesh shallconsist of not less than thirty members.]

2[371-I. Special provision with respect to the State of Goa:–Notwithstanding anything in this Constitution, the Legislative Assembly of theState of Goa shall consist of not less than thirty members.]

Comments

Articles 371, 371-A to 371-I:-- Taking advantage of the exceptions createdin favour of Jammu and Kashmir under Article 370, some other States also claimedsome exceptions and creation of some special provisions to meet certain localproblems. Such situation arose when the State of Bombay was bifurcated intoState of Maharashtra and Gujarat and also when division of Nizam State intothree different areas, some added to Maharashtra, some added to Karnataka andsome added to Andhra. In the last case a new State of Andhra Pradesh was

1. Ins. by the Constitution (Fifty-fifth Amendment) Act, 1986, Sec. 2, w.e.f. 20-2-1987.

2. Ins. by the Constitution (Fifty-sixth Amendment) Act, 1987, Section 2, w.e.f. 30-5-1987.

Art. 371-I

319

formed merging the Andhra State with the Telangana districts of the Nizam State.In the case where Bombay was bifurcated, Maharashtra had certain undevelopedareas such as Vidharbha and Maratwada and Gujarat had certain backward areassuch as Saurashtra and Kutch. In the case of Andhra Pradesh, Telangana areawas deemed to be backward. Creation of Development Boards was consideredto be a measure to accelerate the progress of undeveloped areas. Special financialprovisions have been made and the Boards were entrusted with the task ofoverseeing the execution of development works. In the case of Telangana specialreservations in Government jobs and seats in educational institutions had to bedevised to enable the unemployed in Telangana to have their quota of representationin services and education. Similar problems arose in the case of special demandsraised for autonomous status by tribal communities in Assam, Mizoram andManipur. The demand for autonomous status for tribals in Assam, Manipur andMizoram, autonomous regions were created in which tribal areas are given powerto administer themselves. Their demand to have their tribal laws in respect oftheir marriage, divorce and family and property laws was considered.

372. Continuance in force of existing laws and their adaptation:–(1) Notwithstanding the repeal by this Constitution of the enactments referredto in Article 395 but subject to the other provisions of this Constitution,all the law in force in the territory of India immediately before the commencementof this Constitution shall continue in force therein until altered or repealedor amended by a competent Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any law in force inthe territory of India into accord with the provisions of this Constitution,the President may by order make such adaptations and modifications of suchlaw, whether by way of repeal or amendment, as may be necessary orexpedient, and provide that the law shall, as from such date as may bespecified in the order, have effect subject to the adaptations and modificationsso made, and any such adaptation or modification shall not be questionedin any Court of law.

(3) Nothing in clause (2) shall be deemed–

(a) to empower the President to make any adaptation or modificationof any law after the expiration of 1[three years] from thecommencement of this Constitution; or

1. Subs. for “two years” by the Constitution (First Amendment) Act, 1951, Section 12.



(b) to prevent any competent Legislature or other competent authorityfrom repealing or amending any law adapted or modified by thePresident under the said clause.

Explanation I:– The expression “law in force” in this Article shallinclude a law passed or made by a Legislature or other competent authorityin the territory of India before the commencement of this Constitution andnot previously repealed, notwithstanding that it or parts of it may not bethen in operation either at all or in particular areas.

Explanation II:– Any law passed or made by a Legislature or othercompetent authority in the territory of India which immediately before thecommencement of this Constitution had extra-territorial effect as well as effectin the territory of India shall, subject to any such adaptations and modificationsas aforesaid, continue to have such extra-territorial effect.

Explanation III:– Nothing in this Article shall be construed as continuingany temporary law in force beyond the date fixed for its expiration or thedate on which it would have expired if this Constitution had not come intoforce.

Explanation IV:– An Ordinance promulgated by the Governor of aProvince under Section 88 of the Government of India Act, 1935, and inforce immediately before the commencement of this Constitution shall, unlesswithdrawn by the Governor of the corresponding State earlier, cease tooperate at the expiration of six weeks from the first meeting after suchcommencement of the Legislative Assembly of that State functioning underclause (1) of Article 382, and nothing in this Article shall be construed ascontinuing any such Ordinance in force beyond the said period.

Comments

Article 372:-- This Article gives the legal system in India a continuity.It affirms that all the laws existing as on the date and all the Courts functioningas on the date will continue to be in force and function without any change.The expression ‘laws in force’ means and includes not only all the statutes,regulations and rules but also all that common law including the personal lawsof the different communities as well as all the accepted jurisprudential principles.What the President can do during the period of three years from the commencementof the Constitution is a mere adaptation or modifications in the laws. Theadaptation and modification means the President can change the names of thestatutes and their application to the new situations. If any substantial mattersother than these formal modification which are merely consequential, are requiredto be made, it is only the Parliament which can do so.

Art. 372

321

1[372A. Power of the President to adapt laws:– (1) For the purposesof bringing the provisions of any law in force in India or in any part thereof,immediately before the commencement of the Constitution (Seventh Amendment)Act, 1956, into accord with the provisions of this Constitution as amendedby that Act, the President may by order2 made before the first day ofNovember, 1957, make such adaptations and modifications of the law,whether by way of repeal or amendment, as may be necessary or expedient,and provide that the law shall, as from such date as may be specified inthe order, have effect subject to the adaptations and modifications so made,and any such adaptation or modification shall not be questioned in any Courtof law.

(2) Nothing in clause (1) shall be deemed to prevent a competentLegislature or other competent authority from repealing or amending any lawadapted or modified by the President under the said clause.]

373. Power of President to make order in respect of persons underpreventive detention in certain cases:– Until provision is made by Parliamentunder clause (7) of Article 22, or until the expiration of one year from thecommencement of this Constitution, whichever is earlier, the said Article shallhave effect as if for any reference to Parliament in clauses (4) and (7) thereofthere were substituted a reference to the President and for any referenceto any law made by Parliament in those clauses there were substituted areference to an order made by the President.

374. Provisions as to Judges of the Federal Court and proceedingspending in the Federal Court or before His Majesty in Council:– (1)The Judges of the Federal Court holding office immediately before thecommencement of this Constitution shall, unless they have elected otherwise,become on such commencement the Judges of the Supreme Court and shallthereupon be entitled to such salaries and allowances and to such rights inrespect of leave of absence and pension as are provided for under Art.125 in respect of the Judges of the Supreme Court.

(2) All suits, appeals and proceedings, civil or criminal, pending in theFederal Court at the commencement of this Constitution shall stand removedto the Supreme Court, and the Supreme Court shall have jurisdiction to hearand determine the same, and the judgments and orders of the Federal Court

1. Inserted by the Constitution (Seventh Amendment) Act, 1956, Section 23.

2. See the Adaptation of Laws Orders of 1956 & 1957.


CONST-21


delivered or made before the commencement of this Constitution shall havethe same force and effect as if they had been delivered or made by theSupreme Court.

(3) Nothing in this Constitution shall operate to invalidate the exerciseof jurisdiction by His Majesty in Council to dispose of appeals and petitionsfrom, or in respect of, any judgment, decree or order of any Court withinthe territory of India in so far as the exercise of such jurisdiction is authorisedby law, and any order of His Majesty in Council made on any such appealor petition after the commencement of this Constitution shall for all purposeshave effect as if it were an order or decree made by the Supreme Courtin the exercise of the jurisdiction conferred on such Court by this Constitution.

(4) On and from the commencement of this Constitution the jurisdictionof the authority functioning as the Privy Council in a State specified in PartB of the First Schedule to entertain and dispose of appeals and petitionsfrom or in respect of any judgment, decree or order of any Court withinthat State shall cease, and all appeals and other proceedings pending beforethe said authority at such commencement shall be transferred to, and disposedof by, the Supreme Court.

(5) Further provision may be made by Parliament by law to give effectto the provisions of this Article.

375. Courts, authorities and officers to continue to function subjectto the provisions of the Constitution:– All Courts of civil, criminal andrevenue jurisdiction, all authorities and all officers, judicial, executive andministerial, throughout the territory of India, shall continue to exercise theirrespective functions subject to the provisions of this Constitution.

376. Provisions as to Judges of High Courts:– (1) Notwithstandinganything in clause (2) of Article 217, the Judges of a High Court in anyProvince holding office immediately before the commencement of thisConstitution shall, unless they have elected otherwise, become on suchcommencement the Judges of the High Court in the corresponding State,and shall thereupon be entitled to such salaries and allowances and to suchrights in respect of leave of absence and pension as are provided for underArticle 221 in respect of the Judges of such High Court. 1[Any such Judgeshall, notwithstanding that he is not a citizen of India, be eligible for appointment

1. Added by the Constitution (First Amendment) Act, 1951, Section 13.

Art. 376

323

as Chief Justice of such High Court, or as Chief Justice or other Judge ofany other High Court.]

(2) The Judges of a High Court in any Indian State corresponding toany State specified in Part B of the First Schedule holding office immediatelybefore the commencement of this Constitution shall, unless they have electedotherwise, become on such commencement the Judges of the High Courtin the State so specified and shall, notwithstanding anything in clauses (1)and (2) of Article 217 but subject to the proviso to clause (1) of that Article,continue to hold office until the expiration of such period as the Presidentmay by order determine.

(3) In this Article, the expression “Judge” does not include an actingJudge or an additional Judge.

377. Provisions as to Comptroller and Auditor-General of India:–The Auditor-General of India holding office immediately before thecommencement of this Constitution shall, unless he has elected otherwise,become on such commencement the Comptroller and Auditor-General ofIndia and shall thereupon be entitled to such salaries and to such rights inrespect of leave of absence and pension as are provided for under clause(3) of Article 148 in respect of the Comptroller and Auditor-General ofIndia and be entitled to continue to hold office until the expiration of histerm of office as determined under the provisions which were applicable tohim immediately before such commencement.

378. Provisions as to Public Service Commissions:– (1) The membersof the Public Service Commission for the Dominion of India holding officeimmediately before the commencement of this Constitution shall, unless theyhave elected otherwise, become on such commencement the members ofthe Public Service Commission for the Union and shall, notwithstandinganything in clauses (1) and (2) of Article 316 but subject to the provisoto clause (2) of that Article, continue to hold office until the expiration oftheir term of office as determined under the rules which were applicableimmediately before such commencement to such members.

(2) The Members of a Public Service Commission of a Province orof a Public Service Commission serving the needs of a group of Provincesholding office immediately before the commencement of this Constitution shall,unless they have elected otherwise, become on such commencement the



members of the Public Service Commission for the corresponding State orthe members of the Joint State Public Service Commission serving the needsof the corresponding States, as the case may be, and shall, notwithstandinganything in clauses (1) and (2) of Article 316 but subject to the provisoto clause (2) of that Article, continue to hold office until the expiration oftheir term of office as determined under the rules which were applicableimmediately before such commencement to such members.

1[378A. Special provisions as to duration of Andhra PradeshLegislative Assembly:– Notwithstanding anything contained in Article 172,the Legislative Assembly of the State of Andhra Pradesh as constituted underthe provisions of Sections 28 and 29 of the States Reorganisation Act, 1956,shall, unless sooner dissolved, continue for a period of five years from thedate referred to in the said Section 29 and no longer and the expirationof the said period shall operate as a dissolution of that Legislative Assembly.]

379-391. [Rep. by the Constitution (Seventh Amendment) Act, 1956,Sec. 29 and Sch., w.e.f. 1.11.1956.]

392. Power of the President to remove difficulties:– (1) ThePresident may, for the purpose of removing any difficulties, particularly inrelation to the transition from the provisions of the Government of India Act,1935, to the provisions of this Constitution, by order direct that this Constitutionshall, during such period as may be specified in the order, have effect subjectto such adaptations, whether by way of modification, addition or omission,as he may deem to be necessary or expedient:

Provided that no such order shall be made after the first meeting ofParliament duly constituted under Chapter II of Part V.

(2) Every order made under clause (1) shall be laid before Parliament.

(3) The powers conferred on the President by this Article, by Article324, by clause (3) of Article 367 and by Article 391 shall, before thecommencement of this Constitution, be exercisable by the Governor-Generalof the Dominion of India.


Art. 392

325

PART-XXII

SHORT TITLE, COMMENCEMENT 1[AUTHORITATIVETEXT IN HINDI] AND REPEALS

393. Short title:– This Constitution may be called the Constitution ofIndia.

394. Commencement:– This Article and Articles 5, 6, 7, 8, 9, 60,324, 366, 367, 379, 380, 388, 391, 392 and 393 shall come into forceat once, and the remaining provisions of this Constitution shall come intoforce on the twenty-sixth day of January, 1950, which day is referred toin this Constitution as the commencement of this Constitution.

2[394A. Authoritative text in the Hindi language:– (1) The Presidentshall cause to be published under his authority,–

(a) the translation of this Constitution in the Hindi Language, signedby the members of the Constituent Assembly, with such modificationsas may be necessary to bring it in conformity with the language,style and terminology adopted in the authoritative texts of CentralActs in the Hindi language, and incorporating therein all theamendments of this Constitution made before such publication; and

(b) the translation in the Hindi language of every amendment of thisConstitution made in the English language.

(2) The translation of this Constitution and of every amendment thereofpublished under clause (1) shall be construed to have the same meaningas the original thereof and if any difficulty arises in so construing any partof such translation, the President shall cause the same to be revised suitably.

(3) The translation of this Constitution and of every amendment thereofpublished under this Article shall be deemed to be, for all purposes, theauthoritative text thereof in the Hindi language.]

395. Repeals:– The Indian Independence Act, 1947, and the Governmentof India Act, 1935, together with all enactments amending or supplementingthe latter Act, but not including the Abolition of Privy Council JurisdictionAct, 1949, are hereby repealed.

------

1. Ins. by the Constitution (Fifty-eighth Amendment) Act, 1987, Sec. 2, w.e.f. 9-12-1987.

2. Ins. by the Constitution (Fifty-eighth Amendment) Act, 1987, Sec. 3, w.e.f. 9-12-1987.

Short Title, Commencement [.....] and RepealsArt. 395

1[FIRST SCHEDULE

[Articles 1 and 4]

I. THE STATES

Name Territories

1. Andhra Pradesh 2[The territories specified in sub-section (1) of Sec. 3of the Andhra State Act, 1953, sub-section (1) ofSection 3 of the States Reorganisation Act, 1956,the First Schedule to the Andhra Pradesh and Madras(Alteration of Boundaries) Act, 1959, and the Scheduleto the Andhra Pradesh and Mysore (Transfer ofTerritory) Act, 1968, but excluding the territoriesspecified in the Second Schedule to the AndhraPradesh and Madras (Alteration of Boundaries) Act,1959.]

2. Assam The territories which immediately before thecommencement of this Constitution were comprisedin the Province of Assam, the Khasi States and theAssam Tribal Areas, but excluding the territoriesspecified in the Schedule to the Assam (Alterationof Boundaries) Act, 1951 3[and the territories specifiedin sub-section (1) of Section 3 of the State ofNagaland Act, 1962] 4[and the territories specifiedin Sections 5, 6 and 7 of the North-Eastern Areas(Reorganisation) Act, 1971].

3. Bihar 5[The territories which immediately before thecommencement of this Constitution were eithercomprised in the Province of Bihar or were beingadministered as if they formed part of that Provinceand the territories specified in clause (a) of sub-section (1) of Section 3 of the Bihar and UttarPradesh (Alteration of Boundaries) Act, 1968 butexcluding the territories specified in sub-section (1)of Section 3 of the Bihar and West Bengal (Transferof Territories) Act, 1956, and the territories specified

1. Subs. by the Constitution (Seventh Amendment) Act, 1956.2. Subs. by the Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968, w.e.f.

1.10.1968.3. Added by the State of Nagaland Act, 1962, w.e.f. 1-12-1963.4. Added by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.5. Subs. by the Bihar and Uttar Pradesh (Alternation of Boundaries) Act, 1968, w.e.f.

10.6.1970.

326

327

Name Territories

in clause (b) of sub-section (1) of Section 3 of thefirst mentioned Act 1[and the territories specified inSection 3 of the Bihar Reorganisation Act, 2000].

2[4. Gujarat The territories referred to in sub-section (1) ofSection 3 of the Bombay Reorganisation Act, 1960.]

5. Kerala The territories specified in sub-section (1) of Section5 of the States Reorganisation Act, 1956.

6. Madhya Pradesh The territories specified in sub-section (1) of Section9 of the States Reorganisation Act, 1956 3[and theFirst Schedule to the Rajasthan and Madhya Pradesh(Transfer of Territories) Act, 1959.] 4[but excludingthe territories specified in Section 3 of the MadhyaPradesh Reorganisation Act, 2000].

5[7. Tamil Nadu The territories which immediately before thecommencement of this Constitution were eithercomprised in the Province of Madras or were beingadministered as if they formed part of that Provinceand the territories specified in Section 4 of the StatesReorganisation Act, 1956, 6[and the Second Scheduleto the Andhra Pradesh and Madras (Alteration ofBoundaries) Act, 1959], but excluding the territoriesspecified in sub-section (1) of Section 3 and sub-section (1) of Section 4 of the Andhra State Act,1953 and 7[the territories specified in clause (b) ofsub-section (1) of Section 5, Section 6 and clause(d) of sub-section (1) of Section 7 of the StatesReorganisation Act, 1956 and the territories specifiedin the First Schedule to the Andhra Pradesh andMadras (Alteration of Boundaries) Act, 1959].

1. Added by the Bihar Reorganisation Act, 2000, w.e.f. 15.11.2000.2. Subs. by the Bombay Reorganisation Act, 1960, w.e.f. 1-5-1960.3. Ins. by the Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959, w.e.f.

1.10.1959.4. Added by the Madhya Pradesh Reorganisation Act, 2000, w.e.f. 1.11.2000.5. Subs. by the Madras State (Alteration of Name) Act, 1968, w.e.f. 14-1-1969.6. Ins. by the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, w.e.f.

14.1.1960.7. Subs. by the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, w.e.f.

1.4.1960.

The StatesSch. I


Name Territories

1[8. Maharashtra The territories specified in sub-section (1) of Section8 of the States Reorganisation Act, 1956, but excludingthe territories referred to in sub-section (1) of Section3 of the Bombay Reorganisation Act, 1960.]

2[3[9. Karnataka] The territories specified in sub-section (1) of Section7 of the States Reorganisation Act, 1956 4[butexcluding the territory specified in the Schedule tothe Andhra Pradesh and Mysore (Transfer of Territory)Act, 1968].

5[10.] Orissa The territories which immediately before thecommencement of this Constitution were eithercomprised in the Province of Orissa or were beingadministered as if they formed part of that Province.

5[11.] Punjab The territories specified in Section 11 of the StatesReorganisation Act, 1956 6[and the territories referredto in Part II of the First Schedule to the AcquiredTerritories (Merger) Act, 1960] 7[but excluding theterritories referred to in Part II of the First Scheduleto the Constitution (Ninth Amendment) Act, 1960]8[and the territories specified in sub-section (1) ofSection 3, Section 4 and sub-section (1) of Section5 of the Punjab Reorganisation Act, 1966].

5[12.] Rajasthan The territories specified in Section 10 of the StatesReorganisation Act, 1956 9[but excluding the territoriesspecified in the First Schedule to the Rajasthan andMadhya Pradesh (Transfer of Territories) Act, 1959].

1. Ins. by the Bombay Reorganisation Act, 1960, w.e.f. 1.5.1960.2. Entries 8 to 14 renumbered as entries 9 to 15 by the Bombay Reorganisation Act, 1960,

w.e.f. 1.5.1960.3. Subs. by the Mysore State (Alteration of Name) Act, 1973, w.e.f. 1.11.1973.4. Ins. by the Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968, w.e.f. 1.10.1968.5. Entries 8 to 14 renumbered as entries 9 to 15 by the Bombay Reorganisation Act, 1960,

w.e.f. 1.5.1960.6. Ins. by the Acquired Territories (Merger) Act, 1960, w.e.f. 17.1.1961.7. Added by the Constitution (Ninth Amendment) Act, 1960, w.e.f. 17.1.1961.8. Ins. by the Punjab Reorganisation Act, 1966, w.e.f. 1-11-1966.9. Ins. by the Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959, w.e.f.

1.10.1959.

Sch. I

329

Name Territories

1. Entries 8 to 14 renumbered as entries 9 to 15 by the Bombay Reorganisation Act, 1960,w.e.f. 1.5.1960.

2. Subs. by the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979, w.e.f.15.9.1983.

3. Ins. by the Uttar Pradesh Reorganisation Act, 2000, w.e.f. 9.11.2000.4. Ins. by the State of Nagaland Act, 1962, w.e.f 1-12-1963.

1[13.] Uttar Pradesh The territories which immediately before thecommencement of this Constitution were eithercomprised in the Province known as the UnitedProvinces or were being administered as if theyformed part of that Province, the territories specifiedin clause (b) of sub-section (1) of Section 3 of theBihar and Uttar Pradesh (Alteration of Boundaries)Act, 1968, 2[and the territories specified in clause(b) of sub-section (1) of Section 4 of the Haryanaand Uttar Pradesh (Alteration of Boundaries) Act,1979, but excluding the territories specified in clause(a) of sub-section (1) of Section 3 of the Bihar andUttar Pradesh (Alteration of Boundaries) Act, 1968,3[and the territories specified in Section 3 of the UttarPradesh Reorganisation Act, 2000] and the territoriesspecified in clause (a) of sub-section (1) of Section4 of the Haryana and Uttar Pradesh (Alteration ofBoundaries) Act, 1979.]

1[14.] West Bengal The territories which immediately before thecommencement of this Constitution were eithercomprised in the Province of West Bengal or werebeing administered as if they formed part of thatProvince and the territory of Chandernagore as definedin clause (c) of Section 2 of the Chandernagore(Merger) Act, 1954 and also the territories specifiedin sub-section (1) of Section 3 of the Bihar and WestBengal (Transfer of Territories) Act, 1956.

1[15.] Jammu and Kashmir The territory which immediately before thecommencement of this Constitution was comprisedin the Indian State of Jammu and Kashmir.

4[16. Nagaland The territories specified in sub-section (1) of Section3 of the State of Nagaland Act, 1962.]

The StatesSch. I


Name Territories1[17. Haryana 2[The territories specified in sub-section (1) of Section

3 of the Punjab Reorganisation Act, 1966 and theterritories specified in clause (a) of sub-section (1)of Section 4 of the Haryana and Uttar Pradesh(Alteration of Boundaries) Act, 1979, but excludingthe territories specified in clause (b) of sub-section(1) of Section 4 of that Act.]

3[18. Himachal Pradesh The territories which immediately before thecommencement of this Constitution were beingadministered as if they were Chief Commissioners’Provinces under the names of Himachal Pradesh andBilaspur and the territories specified in sub-section(1) of Sec. 5 of the Punjab Reorganisation Act,1966.]

4[19. Manipur The territory which immediately before thecommencement of this Constitution was beingadministered as if it were a Chief Commissioner’sProvince under the name of Manipur.

20. Tripura The territory which immediately before thecommencement of this Constitution was beingadministered as if it were a Chief Commissioner’sProvince under the name of Tripura.

21. Meghalaya The territories specified in Section 5 of the North-Eastern Areas (Reorganisation) Act, 1971.

5[22. Sikkim The territories which immediately before thecommencement of the Constitution (Thirty-sixthAmendment) Act, 1975, were comprised in Sikkim.]

6[23. Mizoram The territories specified in Section 6 of the North-Eastern Areas (Reorganisation) Act, 1971.]

7[24. Arunachal Pradesh The territories specified in Section 7 of the North-Eastern Areas (Reorganisation) Act, 1971.]

1. Ins. by the Punjab Reorganisation Act, 1966, w.e.f 1-11-1966.2. Subs. by the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979, w.e.f.

15.9.1983.3. Ins. by the State of Himachal Pradesh Act, 1970, w.e.f. 25-1-1971.4. Ins. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.5. Ins. by the Constitution (Thirty-sixth Amendment) Act, 1975, w.e.f. 26-4-1975.6. Ins. by the State of Mizoram Act, 1986, w.e.f. 20-2-1987.7. Ins. by the State of Arunachal Pradesh Act, 1986, w.e.f. 20-2-1987.

Sch. I

331

Name Territories

1[25. Goa The territories specified in Section 3 of the Goa,Daman and Diu Reorganisation Act, 1987.]

2[26. Chhattisgarh The territories specified in Section 3 of the MadhyaPradesh Reorganisation Act, 2000.]

3[27. Uttaranchal The territories specified in Section 3 of the UttarPradesh Reorganisation Act, 2000.]

4[28. Jharkhand The territories specified in Section 3 of the BiharReorganisation Act, 2000.]

II. THE UNION TERRITORIES

1. Delhi The territory which immediately before thecommencement of this Constitution was comprisedin the Chief Commissioner’s Province of Delhi.

5[x x x]

6[x x x]

7[2.] The Andaman and The territory which immediately before the commen- Nicobar Islands cement of this Constitution was comprised in the

Chief Commissioner’s Province of the Andaman andNicobar Islands.

7[3.] 8[Lakshadweep] The territory specified in Section 6 of the StatesReorganisation Act, 1956.

9[7[4.] Dadra and Nagar The territory which immediately before the eleventh Haveli day of August, 1961 was comprised in Free Dadra

and Nagar Haveli.]

1. Ins. by the Goa, Daman and Diu Reorganisation Act 1987, w.e.f. 30-5-1987.2. Ins. by Madhya Pradesh Reorganisation Act, 2000, (28 of 2000) w.e.f. 1-11-2000.3. Ins. by Uttar Pradesh Reorganisation Act, 2000, (29 of 2000) w.e.f. 9-11-2000.4. Ins. by Bihar Reorganisation Act, 2000, (30 of 2000) w.e.f. 15-11-2000.5. Entry 2 relating to "Himachal Pradesh" omitted by the State of Himachal Pradesh Act,

1970, w.e.f. 25-1-1971.6. Entries relating to Manipur and Tripura omitted by the North-Eastern Areas (Reorganisation)

Act, 1971, w.e.f. 21-1-1972.7. Entry 4 to 9 renumbered as entries 2 to 7 by the North-Eastern Areas (Reorganisation)

Act, 1971, w.e.f. 21-1-1972.8. Sub. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Act, 1973,

w.e.f. 1-11-1973.9. Ins. by the Constitution (Tenth Amendment) Act, 1961.

The Union TerritoriesSch. I


Name Territories

1[2[3[5.] Daman and Diu The territories specified in Section 4 of the Goa,Daman and Diu Reorganisation Act, 1987.]]

4[5[6.] *[Puducherry] The territories which immediately before the sixteenthday of August, 1962, were comprised in the FrenchEstablishments in India known as Pondicherry, Karikal,Mahe and Yanam.]

6[5[7.] Chandigarh The territories specified in Section 4 of the PunjabReorganisation Act, 1966.]

7[x x x]

8[x x x]

Comments

The 1st Schedule contains two parts: the first part deals with full-fledgedStates. They are all described in terms of the territories coming within thejurisdiction of the States. Such full-fledged States number 25. They are allgoverned through the Governors. The second part of the 1st Schedule containsthe names of Union Territories. Each territory was defined by the areas it covers.They are governed by the President through Lt. Governors or by administrators.

——

1. Ins. by the Constitution (Twelfth Amendment) Act, 1962.2. Entry 4 to 9 renumbered as entries 2 to 7 by the North-Eastern Areas (Reorganisation)

Act, 1971, w.e.f. 21-1-1972.3. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987, w.e.f. 30-5-1987.4. Ins. by the Constitution (Fourteenth Amendment) Act, 1962, w.e.f. 16-8-1962.5. Entries 4 to 9 renumbered as entries 2 to 7 by the North-Eastern Areas (Reorganisation)

Act, 1971, w.e.f. 21-1-1972.6. Ins. by the Punjab Reorganisation Act, 1966, w.e.f. 1-11-1966.7. Entry 8 relating to Mizoram inserted by Act 81 of 1971 omitted by State of Mizoram

Act, 1986, w.e.f. 20.2.1987, Entry 9 relating to Arunachal Pradesh renumbered as Entry 8.8. Entry 8 relating to Arunachal Pradesh omitted by the State of Arunachal Pradesh Act,

1986, w.e.f. 20-2-1987.*. Subs. by Pondicherry (Alteration of Name) Act, 2006 (44 of 2006) S.4 for Pondicherry

(w.e.f. 1-10-2006).

Sch. I

SECOND SCHEDULE

[Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3),164(5), 186 and 221]

PART AProvisions as to the President and the

Governors of States 1[x x x]

1. There shall be paid to the President and to the Governors of the States1[x x x] the following emoluments per mensem, that is to say:-

The President 2[50,000 rupees.

The Governor of a State 3[36,000 rupees

2. There shall also be paid to the President and to the Governors of theStates 4[x x x] such allowances as were payable respectively to the Governor-General of the Dominion of India and to the Governors of the correspondingProvinces immediately before the commencement of this Constitution.

3. The President and the Governors of 5[the States] throughout theirrespective terms of office shall be entitled to the same privileges to which theGovernor-General and the Governors of the corresponding Provinces wererespectively entitled immediately before the commencement of this Constitution.

4. While the Vice-President or any other person is discharging the functionsof, or is acting as, President, or any person is discharging the functions ofthe Governor, he shall be entitled to the same emoluments, allowances andprivileges as the President or the Governor whose functions he discharges orfor whom he acts, as the case may be.

PART B[Repealed]

6[x x x]

1. The words and letter "specified in Part A of the First Schedule" omitted by the Constitution(Seventh Amendment) Act, 1956.

2. Raised to Rs. 50,000 p.m. by the President's Emoluments and Pension (Amendment) Act,1998, w.e.f. 1-1-1996.

3. Raised to Rs. 36,000 p.m. by the Governors (Emoluments and Privileges) AmendmentAct, 1998, w.e.f. 1-1-1996.

4. The words "so specified" omitted by the Constitution (Seventh Amendment) Act, 1956.5. Subs. by the Constitution (Seventh Amendment) Act, 1956.6. Part B omitted by the Constitution (Seventh Amendment) Act, 1956.

333


PART CProvisions as to the Speaker and the Deputy Speaker of the

House of the People and the Chairman and the Deputy Chairmanof the Council of States and the Speaker and the Deputy Speaker

of the Legislative Assembly 1[x x x] and the Chairman and theDeputy Chairman of the Legislative Council of 2[a State]

7. There shall be paid to the Speaker of the House of the People andthe Chairman of the Council of States such salaries and allowances as werepayable to the Speaker of the Constituent Assembly of the Dominion of Indiaimmediately before the commencement of this Constitution, and there shall bepaid to the Deputy Speaker of the House of the People and to the Deputy Chairmanof the Council of States such salaries and allowances as were payable to theDeputy Speaker of the Constituent Assembly of the Dominion of India immediatelybefore such commencement.

8. There shall be paid to the Speaker and the Deputy Speaker of theLegislative Assembly 3[x x x] and to the Chairman and the Deputy Chairmanof the Legislative Council of 2[a State] such salaries and allowances as werepayable respectively to the Speaker and the Deputy Speaker of the LegislativeAssembly and the President and the Deputy President of the Legislative Councilof the corresponding Province immediately before the commencement of thisConstitution and, where the corresponding Province had no Legislative Councilimmediately before such commencement, there shall be paid to the Chairmanand the Deputy Chairman of the Legislative Council of the State such salariesand allowances as the Governor of the State may determine.

PART DProvisions as to the Judges of the Supreme Court and

of the High Courts 4[x x x]

9. (1) There shall be paid to the Judges of the Supreme Court, in respectof time spent on actual service, salary at the following rates per mensem, thatis to say:—

The Chief Justice 5[33,000 rupees]

Any other Judge 5[30,000 rupees].

1. The words and letter "of a State in Part A of the First Schedule" omitted by the Constitution(Seventh Amendment) Act, 1956.

2. Subs. by the Constitution (Seventh Amendment) Act, 1956.3. The words "of a State specified in Part A of the First Schedule" omitted by Ibid.4. The words and letters "in States in Part A of the First Schedule" omitted by Ibid.5. Substituted by Act No. 18 of 1998, w.e.f. 1-1-1996.

Sch. II

335

Provided that if a Judge of the Supreme Court at the time of his appointmentis in receipt of a pension (other than a disability or wound pension) in respectof any previous service under the Government of India or any of its predecessorGovernments or under the Government of a State or any of its predecessorGovernments, his salary in respect of service in the Supreme Court 1[shall bereduced–

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a portion ofthe pension due to him in respect of such previous service thecommuted value thereof, by the amount of that portion of the pension,and

(c) if he has, before such appointment, received a retirement gratuity inrespect of such previous service, by the pension equivalent of thatgratuity].

(2) Every Judge of the Supreme Court shall be entitled without paymentof rent to the use of an official residence.

(3) Nothing in sub-paragraph (2) of this paragraph shall apply to a Judgewho, immediately before the commencement of this Constitution,—

(a) was holding office as the Chief Justice of the Federal Court and hasbecome on such commencement the Chief Justice of the SupremeCourt under clause (1) of Article 374, or

(b) was holding office as any other Judge of the Federal Court and hason such commencement become a Judge (other than the Chief Justice)of the Supreme Court under the said clause,

during the period he holds office as such Chief Justice or other Judge, andevery Judge who so becomes the Chief Justice or other Judge of the SupremeCourt shall, in respect of time spent on actual service as such Chief Justiceor other Judge, as the case may be, be entitled to receive in addition to thesalary specified in sub-paragraph (1) of this paragraph as special pay an amountequivalent to the difference between the salary so specified and the salary whichhe was drawing immediately before such commencement.

(4) Every Judge of the Supreme Court shall receive such reasonableallowances to reimburse him for expenses incurred in travelling on duty withinthe territory of India and shall be afforded such reasonable facilities in connectionwith travelling as the President may from time to time prescribe.

(5) The rights in respect of leave of absence (including leave allowances)and pension of the Judges of the Supreme Court shall be governed by theprovisions which, immediately before the commencement of this Constitution,were applicable to the Judges of the Federal Court.

10. 2[(1) There shall be paid to the Judges of High Courts, in respectof time spent on actual service, salary at the following rates per mensem, thatis to say, —

1. Subs. by the Constitution (Seventh Amendment) Act, 1956.2. Subs. by the Constitution (Seventh Amendment) Act, 1956.

Provisions as to the Judges of the S.C. and H.Cs.Sch. II


The Chief Justice 1[30,000 rupees]

Any other Judge 1[26,000 rupees]:

Provided that if a Judge of a High Court at the time of his appointmentis in receipt of a pension (other than a disability or wound pension) in respectof any previous service under the Government of India or any of its predecessorGovernments or under the Government of a State or any of its predecessorGovernments, his salary in respect of service in the High Court shall be reduced—

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a portion ofthe pension due to him in respect of such previous service thecommuted value thereof, by the amount of that portion of the pension,and

(c) if he has, before such appointment, received a retirement gratuity inrespect of such previous service, by the pension equivalent of thatgratuity.]

(2) Every person who immediately before the commencement of thisConstitution—

(a) was holding office as the Chief Justice of a High Court in any Provinceand has on such commencement become the Chief Justice of the HighCourt in the corresponding State under clause (1) of Article 376, or

(b) was holding office as any other Judge of a High Court in any Provinceand has on such commencement become a Judge (other than the ChiefJustice) of the High Court in the corresponding State under the saidclause,

shall, if he was immediately before such commencement drawing a salary ata rate higher than that specified in sub-paragraph (1) of this paragraph, be entitledto receive in respect of time spent on actual service as such Chief Justice orother Judge, as the case may be, in addition to the salary specified in the saidsub-paragraph as special pay an amount equivalent to the difference betweenthe salary so specified and the salary which he was drawing immediately beforesuch commencement.

2[(3) Any person who, immediately before the commencement of theConstitution (Seventh Amendment) Act, 1956, was holding office as the ChiefJustice of the High Court of a State specified in Part B of the First Scheduleand has on such commencement become the Chief Justice of the High Courtof a State specified in the said Schedule as amended by the said Act, shall,

1. Subs. by the Act 18 of 1998, w.e.f. 1-1-1996.

2. The Comptroller and Auditor-General of India shall be paid a salary equal to the salaryof the Judges of Supreme Court vide Sec. 3 of the Act. 56 of 1971. The salary of Judgesof the Supreme Court has since been raised to Rs. 30,000 p.m. by the High Court andSupreme Court Judges (Conditions of Service) Amendment Act, 1998 (18 of 1998), Sec.7,w.e.f. 1-1-1996.

Sch. II

337

if he was immediately before such commencement drawing any amount asallowance in addition to his salary, be entitled to receive in respect of time spenton actual service as such Chief Justice, the same amount as allowance in additionto the salary specified in sub-paragraph (1) of this paragraph.]

11. In this Part, unless the context otherwise requires,—

(a) the expression “Chief Justice” includes an acting Chief Justice, anda “Judge” includes an ad hoc Judge;

(b) “actual service” includes—

(i) time spent by a Judge on duty as a Judge or in the performanceof such other functions as he may at the request of the Presidentundertake to discharge;

(ii) vacations, excluding any time during which the Judge is absent onleave; and

(iii) joining time on transfer from a High Court to the Supreme Court orfrom one High Court to another.

PART EProvisions as to the Comptroller and

Auditor-General of India12. (1) There shall be paid to the Comptroller and Auditor-General of India

a salary at the rate of four thousand1 rupees per mensem.

(2) The person who was holding office immediately before the commencementof this Constitution as Auditor-General of India and has become on suchcommencement the Comptroller and Auditor-General of India under Article 377shall in addition to the salary specified in sub-paragraph (1) of this paragraphbe entitled to receive as special pay an amount equivalent to the difference betweenthe salary so specified and the salary which he was drawing as Auditor-Generalof India immediately before such commencement.

(3) The rights in respect of leave of absence and pension and the otherconditions of service of the Comptroller and Auditor-General of India shall begoverned or shall continue to be governed, as the case may be, by the provisionswhich were applicable to the Auditor-General of India immediately before thecommencement of this Constitution and all references in those provisions to theGovernor-General shall be construed as references to the President.

Comments

The 2nd Schedule contains five parts each dealing with the emolumentsand perrequisites payable to President and Governors.

Part-C deals with the emoluments and perrequisites payable to the Speakerand Deputy Speaker of the Lok Sabha and the Chairman and Deputy Chairmanof the Councill of States and of the Speaker and Deputy Speaker of the LegislativeAssembly and the Chairman and Deputy Chairman of the Legislative Council.

Part-D deals with the similar subjects relating to Judges of the SupremeCourt and the High Courts and Part-E refers to the same matters as regardsthe Comptroller and Auditor General. There is now no Part-B since it was repealed.

——

Provisions – Comptroller and Auditor-General of IndiaSch. II

CONST-22

THIRD SCHEDULE[Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]1

Forms of Oaths or Affirmations

I

Form of oath of office for a Minister for the Union:—

“I, A.B., do Swear in the name of God

Solemnly affirm that I will bear true faith and

allegiance to the Constitution of India as by law established, 2[that I will upholdthe sovereignty and integrity of India,] that I will faithfully and conscientiouslydischarge my duties as a Minister for the Union and that I will do right toall manner of people in accordance with the Constitution and the law, withoutfear or favour, affection or ill-will.”

II

Form of oath of secrecy for a Minister for the Union:—


Solemnly affirm that I will not directly or indirectly

communicate or reveal to any person or persons any matter which shall be broughtunder my consideration or shall become known to me as a Minister for theUnion except as may be required for the due discharge of my duties as suchMinister.”

3[IIIA

Form of oath or affirmation to be made by a candidate for election toParliament:—

“I, A.B., having been nominated as a candidate to fill a seat in the council

of States (or the House of the People) do Swear in the name of God

Solemnly affirm that I

will bear true faith and allegiance to the Constitution of India as by law establishedand that I will uphold the sovereignty and integrity of India.”

B

Form of oath or affirmation to be made by a member of Parliament:—

1. See also articles 84(a) and 173(a).2. Ins. by the Constitution (Sixteenth Amendment) Act, 1963.3. Subs. by Ibid.

338

339

1. Ins. by the Constitution (Sixteenth Amendment) Act, 1963.

“I, A.B., having been elected (or nominated) a member of the Council of

States (or the House of the People) doSwear in the name of God

Solemnly affirm that I will

bear true faith and allegiance to the Constitution of India as by law established,that I will uphold the sovereignty and integrity of India and that I will faithfullydischarge the duty upon which I am about to enter.”]

IV

Form of oath or affirmation to be made by the Judges of the SupremeCourt and the Comptroller and Auditor-General of India:-

“I, A.B., having been appointed Chief Justice (or a Judge) of the SupremeCourt of India (or Comptroller and Auditor-General of India) do

Swear in the name of God

Solemnly affirm that I will bear true faith and allegiance to the

Constitution of India as by law established, 1[that I will uphold the sovereigntyand integrity of India,] that I will duly and faithfully and to the best of myability, knowledge and judgment perform the duties of my office without fearor favour, affection or ill-will and that I will uphold the Constitution and thelaws.”

V

Form of oath of office for a Minister for a State:—


Solemnly affirm that I will bear true faith and

allegiance to the Constitution of India as by law established, 1[that I will upholdthe sovereignty and integrity of India,] that I will faithfully and conscientiouslydischarge my duties as a Minister for the State of............ and that I will doright to all manner of people in accordance with the Constitution and the lawwithout fear or favour, affection or ill-will.”

VI

Form of oath of secrecy for a Minister for a State:—


Solemnly affirm that I will not directly or indirectly

communicate or reveal to any person or persons any matter which shall be broughtunder my consideration or shall become known to me as a Minister for theState of ........................................except as may be required for the duedischarge of my duties as such Minister."

Forms of Oaths or AffirmationsSch. III


1[VIIA

Form of oath or affirmation to be made by a candidate for election tothe Legislature of a State:—

"I, A.B., having been nominated as a candidate to fill a seat in the Legis

lative Assembly (or Legislative Council), do Swear in the name of God

Solemnly affirm that I

will bear true faith and allegiance to the Constitution of India as by law establishedand that I will uphold the sovereignty and integrity of India."

B

Form of oath or affirmation to be made by a member of the Legislatureof a State:—

“I, A.B., having been elected (or nominated) a member of the Legislative

Assembly (or Legislative Council), doSwear in the name of God

Solemnly affirm that I will bear

true faith and allegiance to the Constitution of India as by law established, thatI will uphold the sovereignty and integrity of India and that I will faithfullydischarge the duty upon which I am about to enter."]

VIII

Form of oath or affirmation to be made by the Judges of a High Court:—

"I, A.B., having been appointed Chief Justice (or a Judge) of the High

Court at (or of) ........................... do Swear in the name of God

Solemnly affirm that I will

bear true faith and allegiance to the Constitution of India as by law established,2[that I will uphold the sovereignty and integrity of India,] that I will duly andfaithfully and to the best of my ability, knowledge and judgment perform theduties of my office without fear or favour, affection or ill-will and that I willuphold the Constitution and the laws."

Comments

The 3rd Schedule contains the form of oath to be taken by the Ministersof the Union and the Ministers of the State. This form of oath has two sections:the first section deals with his promise to uphold the Constitution of India andthe second part deals with the oath about his obligation to observe the secrecyof the matters coming under his consideration. A person can take oath eitherin the name of God or by mere affirmation. Any other sort of swearing is notpermissible. If by reason of any accident or any other belief if a person swearsotherwise than in the form he is required to swear in the form prescribed orif the text of the oath is changed, the person swearing shall repeat the performancein accordance with text. If the person swears by the name of his constituencyor by the people of the region to which he belongs, such swearing is not correct.

1. Subs. by the Constitution (Sixteenth Amendment) Act, 1963.2. Ins. by the Constitution (Sixteenth Amendment) Act, 1963.

Sch. III

1[FOURTH SCHEDULE

[Articles 4(1) and 80(2)]

Allocation of seats in the Council of States

To each State or Union territory specified in the first column of the followingtable, there shall be allotted the number of seats specified in the second columnthereof opposite to that State or that Union territory, as the case may be.

Table

1. Andhra Pradesh 18

2. Assam 7

3. Bihar 2[16]

3[4. Jharkhand 6]

4[5.] Goa 1]

5[6.] Gujarat 11]

6[[7.] Haryana 5]

8. Kerala 9

7[9.] Madhya Pradesh 8[11]

8[10. Chattisgarh 5]

9[11.] Tamil Nadu] 12[18]

10[12.] Maharashtra 19]

11[13.] Karnataka] 12

14. Orissa 10

1. Subs. by the Constitution (Seventh Amendment) Act, 1956.2. Subs. by the Bihar Reorganisation Act, 2000, w.e.f. 15-11-2000.3. Ins. by the Bihar Reorganisation Act, 2000, w.e.f. 15-11-2000.4. Ins. by Goa, Daman and Diu Reorganisation Act, 1987, w.e.f. 30-5-1987.5. Subs. by the Bombay Reorganisation Act, 1960, w.e.f. 1-5-1960.6. Ins. by the Punjab Reorganisation Act, 1966, w.e.f. 1-11-1966.7. Subs. by the Madhya Pradesh Reorganisation Act, 2000, w.e.f. 1.11.2000.8. Ins. by Madhya Pradesh Reorganisation Act, 2000, w.e.f. 1.11.2000.9. Subs. by the Madras State (Alteration of Name) Act, 1968, w.e.f. 14-1-1969.

10. Ins. by the Bombay Reorganisation Act, 1960, w.e.f. 1.5.1960.11. Subs. by the Mysore State (Alteration of Name) Act, 1973, w.e.f. 1-11-1973.

341


1[15.] Punjab 1[7]

16. Rajasthan 102[17.] Uttar Pradesh 2[31]3[18.] 4[Uttarakhand] 35[19.] West Bengal 16

20. Jammu and Kashmir 46[21.] Nagaland 1]7[22.] Himachal Pradesh 3]8[23.] Manipur 1]

24. Tripura 1

25. Meghalaya 19[26.] Sikkim 1]

27. Mizoram 1]

28. Arunachal Pradesh 1]

29. Delhi 3

30. 10[Puducherry]. 1———

Total 11[233]]———

Comments

This Schedule deals with the number of parliamentary seats allotted to eachof the States and the council of States. The Council in addition will have twelvemembers nominated by the President who shall have been recognised as personshaving special knowledge or practical experience in respect of such matters asliterature, science, arts and social service. In other words, anybody either havingany reputation in any human affairs is entitled to be nominated as a memberof the council. However, no person who is otherwise disqualified to be a membercan be nominated by the President as member of the council of States.

1. Subs. by the Punjab Reorganization Act, 1966, w.e.f. 1.11.1966.2. Subs. by the Uttar Pradesh Reorganisation Act, 2000, w.e.f. 9-11-2000.3. Ins. by the Uttar Pradesh Reorganisation Act, 2000, w.e.f. 9-11-2000.4. Subs. for "Uttaranchal" by the Uttaranchal (Alteration of Name) Act, 2006 (52 of 2006).5. Entry numbers renumbered by Act 29 of 2000, S. 7, w.e.f. 9.11.2000.6. Ins. by the State of Nagaland Act, 1962, w.e.f. 1-12-1963.7. Ins. by the State of Himachal Pradesh Act, 1970, w.e.f. 25-1-1971.8. Subs. by the North Eastern Areas (Re-organisation) Act, 1971.9. Ins. by the Constitution (Thirty-sixth Amendment) Act, 1975 w.e.f. 26-4-1975.

10. Subs. for "Pondicherry" by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006)w.e.f. 1-10-2006.

11. Subs. for "232" by the Goa, Daman and Diu Reorganisation Act, 1987, w.e.f. 30-5-1987.

Sch. IV

FIFTH SCHEDULE[Article 244(1)]

Provisions as to the Administration and Control ofScheduled Areas and Scheduled Tribes

PART AGeneral

1. Interpretation:— In this Schedule, unless the context otherwise requires,the expression “State” 1[xxx] does not include the 2[States of Assam], 3[4[,Meghalaya,Tripura and Mizoram.]]

2. Executive power of a State in Scheduled Areas:— Subject to theprovisions of this Schedule, the executive power of a State extends to theScheduled Areas therein.

3. Report by the Governor 5[xxx] to the President regarding theadministration of Scheduled Areas:— The Governor 5[xxx] of each Statehaving Scheduled Areas therein shall annually, or whenever so required by thePresident, make a report to the President regarding the administration of theScheduled Areas in that State and the executive power of the Union shall extendto the giving of directions to the State as to the administration of the said areas.

PART BAdministration and Control of Scheduled

Areas and Scheduled Tribes4. Tribes Advisory Council:— (1) There shall be established in each State

having Scheduled Areas therein and, if the President so directs, also in any Statehaving Scheduled Tribes but not Scheduled Areas therein, a Tribes AdvisoryCouncil consisting of not more than twenty members of whom, as nearly asmay be, three-fourths shall be the representatives of the Scheduled Tribes inthe Legislative Assembly of the State:

Provided that if the number of representatives of the Scheduled Tribes inthe Legislative Assembly of the State is less than the number of seats in theTribes Advisory Council to be filled by such representatives, the remaining seatsshall be filled by other members of those tribes.

(2) It shall be the duty of the Tribes Advisory Council to advise on suchmatters pertaining to the welfare and advancement of the Scheduled Tribes inthe State as may be referred to them by the Governor.

(3) The Governor may make rules prescribing or regulating, as the casemay be,—

(a) the number of members of the Council, the mode of their appointmentand the appointment of the Chairman of the Council and of the officersand servants thereof;

1. The words and letters "means a State specified in Part A or Part B of the First Schedulebut" omitted by the Constitution (Seventh Amendment) Act, 1956, Sec.29 and Sch.

2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), w.e.f.21.1.1972.

3. Subs. by the State of Mizoram Act, 1986, w.e.f. 20-2-1987.4. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, w.e.f. 1-4-1985.5. The word "or the Rajpramukh" omitted by the Constitution (7th Amendment) Act, 1956.

343


(b) the conduct of its meetings and its procedure in general; and

(c) all other incidental matters.5. Law applicable to Scheduled Areas:— (1) Notwithstanding anything

in this Constitution, the Governor may by public notification direct that anyparticular Act of Parliament or of the Legislature of the State shall not applyto a Scheduled Area or any part thereof in the State or shall apply to a ScheduledArea or any part thereof in the State subject to such exceptions and modificationsas he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.

(2) The Governor may make regulations for the peace and good governmentof any area in a State which is for the time being a Scheduled Area.In particular and without prejudice to the generality of the foregoing power, suchregulations may—

(a) prohibit or restrict the transfer of land by or among members of theScheduled Tribes in such area;

(b) regulate the allotment of land to members of the Scheduled Tribesin such area;

(c) regulate the carrying on of business as money-lender by persons wholend money to members of the Scheduled Tribes in such area.

(3) In making any such regulation as is referred to in sub-paragraph (2)of this paragraph, the Governor may repeal or amend any Act of Parliamentor of the Legislature of the State or any existing law which is for the timebeing applicable to the area in question.

(4) All regulations made under this paragraph shall be submitted forthwithto the President and, until assented to by him, shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governormaking the regulation has, in the case where there is a Tribes Advisory Councilfor the State, consulted such Council.

Caselaw

Sch. V, Para 5(a):-- Leaves of trees are immovable property. AIR 2001A.P. 306.

Sch. V, Para 5(2):-- Non-tribal cannot claim adverse title against tribal.Amarendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC3782.

PART CSCHEDULED AREAS

6. Scheduled Areas:— (1) In this Constitution, the expression “ScheduledAreas” means such areas as the President may by order1 declare to be ScheduledAreas.

1. See the Scheduled Areas (Part A States) Order, 1950 (C.O.9), the Scheduled Areas (PartB States) Order, 1950 (C.O. 26), the Scheduled Areas (Himachal Pradesh) Order, 1975(C.O., 102) and the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa)Order, 1977 C.O. 109).

Sch. V

345

(2) The President may at any time by order1—

(a) direct that the whole or any specified part of a Scheduled Area shallcease to be a Scheduled Area or a part of such an area;

2[(aa) increase the area of any Scheduled Area in a State after consultationwith the Governor of that State;]

(b) alter, but only by way of rectification of boundaries, any ScheduledArea;

(c) on any alteration of the boundaries of a State or on the admissioninto the Union or the establishment of a new State, declare any territorynot previously included in any State to be, or to form part of, aScheduled Area;

2[(d) rescind, in relation to any State or States, any order or orders madeunder this paragraph, and in consultation with the Governor of theState concerned, make fresh orders redefining the areas which areto be Scheduled Areas;]

and any such order may contain such incidental and consequential provisionsas appear to the President to be necessary and proper, but save as aforesaid,the order made under sub-paragraph (1) of this paragraph shall not be variedby any subsequent order.

PART DAMENDMENT OF THE SCHEDULE

7. Amendment of the Schedule:— (1) Parliament may from time to timeby law amend by way of addition, variation or repeal any of the provisionsof this Schedule and, when the Schedule is so amended, any reference to thisSchedule in this Constitution shall be construed as a reference to such Scheduleas so amended.

(2) No such law as is mentioned in sub-paragraph (1) of this paragraphshall be deemed to be an amendment of this Constitution for the purposes ofArticle 368.

Comments

This Schedule contains detailed provisions as to how the Scheduled areashave to be administered.

------

1. See the Madras Scheduled Area (Cesser) Order, 1950 (C.O.30) and the Andhra ScheduledAreas (Cesser) Order, 1955 (C.O. 50).

2. Ins. by the Fifth Scheduled to the Constitution (Amendment) Act, 1976 (101 of 1976),Sec. 2).

Amendment of the ScheduleSch. V

SIXTH SCHEDULEProvisions as to the Administration of Tribal Areas in 1[2[the

States of Assam, 3[Meghalaya, Tripura] and Mizoram]]

[Articles 244(2) and 275(1)]

1. Autonomous districts and autonomous regions:— (1) Subject to theprovisions of this paragraph, the tribal areas in each item of 3[4[Parts I, II andIIA] and in Part III] of the table appended to paragraph 20 of this Scheduleshall be an autonomous district.

(2) If there are different Scheduled Tribes in an autonomous district, theGovernor may, by public notification, divide the area or areas inhabited by theminto autonomous regions.

(3) The Governor may, by public notification,—

(a) include any area in 4[any of the Parts] of the said table,

(b) exclude any area from 4[any of the Parts] of the said table,

(c) create a new autonomous district,

(d) increase the area of any autonomous district,

(e) diminish the area of any autonomous district,

(f) unite two or more autonomous districts or parts thereof so as to formone autonomous district,

5[(ff) alter the name of any autonomous district,]

(g) define the boundaries of any autonomous district:

Provided that no order shall be made by the Governor under clauses (c),(d), (e) and (f) of this sub-paragraph except after consideration of the reportof a Commission appointed under sub-paragraph (1) of paragraph 14 of thisSchedule:

6[Provided further that any order made by the Governor under this sub-paragraph may contain such incidental and consequential provisions (includingany amendment of paragraph 20 and of any item in any of the Parts of thesaid table) as appear to the Governor to be necessary for giving effect to theprovisions of the order.]

1. Subs. by the State of Mizoram Act, 1986 (34 of 1986), w.e.f. 20-2-1987.2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), w.e.f.

21.1.1972.3. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, w.e.f. 1-4-1985.4. Subs. by the North-Eastern (Reorganisation) Act, 1971 (81 of 1971), w.e.f. 21-1-1972.5. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), Sec.74 and Fourth

Sch., w.e.f. 2-4-1970.6. Ins. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.

346

347

2. Constitution of District Councils and Regional Councils:— 1[(1)There shall be a District Council for each autonomous district consisting of notmore than thirty members, of whom not more than four persons shall benominated by the Governor and the rest shall be elected on the basis of adultsuffrage.]

(2) There shall be a separate Regional Council for each area constitutedan autonomous region under sub-paragraph (2) of paragraph 1 of this Schedule.

(3) Each District Council and each Regional Council shall be a bodycorporate by the name respectively of “the District Council of (name of district)”and “the Regional Council of (name of region)”, shall have perpetual successionand a common seal and shall by the said name sue and be sued.

(4) Subject to the provisions of this Schedule, the administration of anautonomous district shall, in so far as it is not vested under this Schedule inany Regional Council within such district, be vested in the District Council forsuch district and the administration of an autonomous region shall be vestedin the Regional Council for such region.

(5) In an autonomous district with Regional Councils, the District Councilshall have only such powers with respect to the areas under the authority ofthe Regional Council as may be delegated to it by the Regional Council in additionto the powers conferred on it by this Schedule with respect to such areas.

(6) The Governor shall make rules for the first constitution of DistrictCouncils and Regional Councils in consultation with the existing tribal Councilsor other representative tribal organisations within the autonomous districts orregions concerned, and such rules shall provide for—

(a) the composition of the District Councils and Regional Councils andthe allocation of seats therein;

(b) the delimitation of territorial constituencies for the purpose of electionsto those Councils;

(c) the qualifications for voting at such elections and the preparation ofelectoral rolls therefor;

(d) the qualifications for being elected at such elections as members ofsuch Councils;

(e) the term of office of members of 1[Regional Councils];

(f) any other matter relating to or connected with elections or nominationsto such Councils;

(g) the procedure and the conduct of business 2[(including the power toact notwithstanding any vacancy)] in the District and Regional Councils;

(h) the appointment of officers and staff of the District and RegionalCouncils.

1. Subs. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.2. Inserted by Ibid.

Provisions as to the Administration of Tribal Areas...Sch. VI


1[(6A) The elected members of the District Council shall hold office fora term of five years from the date appointed for the first meeting of the Councilafter the general elections to the Council, unless the District Council is soonerdissolved under paragraph 16 and a nominated member shall hold office at thepleasure of the Governor:

Provided that the said period of five years may, while a Proclamation ofEmergency is in operation or if circumstances exist which, in the opinion ofthe Governor, render the holding of elections impracticable, be extended by theGovernor for a period not exceeding one year at a time and in any case wherea Proclamation of Emergency is in operation not extending beyond a period ofsix months after the Proclamation has ceased to operate:

Provided further that a member elected to fill a casual vacancy shall holdoffice only for the remainder of the term of office of the member whom hereplaces.]

(7) The District or the Regional Council may after its first constitutionmake rules 1[with the approval of the Governor] with regard to the mattersspecified in sub-paragraph (6) of this paragraph and may also make rules 2[withlike approval] regulating—

(a) the formation of subordinate local Councils or Boards and their procedureand the conduct of their business; and

(b) generally all matters relating to the transaction of business pertainingto the administration of the district or region, as the case may be:

Provided that until rules are made by the District or the Regional Councilunder this sub-paragraph the rules made by the Governor under sub-paragraph(6) of this paragraph shall have effect in respect of elections to the officersand staff of, and the procedure and the conduct of business in, each such Council.

3[x x x]

43. Powers of the District Councils and Regional Councils to makelaws:— (1) The Regional Council for an autonomous region in respect of all

1. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.2. Subs. by Ibid.3. Second proviso omitted by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969),

Sec.74 and Fourth Sch., w.e.f. 2-4-1970.4. State Amendment – Assam

Sixth Schedule to the Constitution (Amendment) Act, 1995 (42 of 1995) substitute thePara 3 as below :

"(3) Save as otherwise provided in sub-paragraph (2) of paragraph 3A, all laws madeunder this paragraph or sub-paragraph (1) of paragraph 3A shall be submitted forthwithto the Governor and, until assented to by him, shall have no effect."After paragraph 3, the following paragraph has been inserted in its application to the Stateof Assam by S.2, abid, namely:— �

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areas within such region and the District Council for an autonomous districtin respect of all areas within the district except those which are under the authorityof Regional Councils, if any, within the district shall have power to make lawswith respect to—

(a) the allotment, occupation or use, or the setting apart, of land, otherthan any land which is a reserved forest for the purposes of agricultureor grazing or for residential or other non-agricultural purposes or forany other purpose likely to promote the interests of the inhabitantsof any village or town:

� 3(A). Additional powers of the North Cachar Hills Autonomous Council and the KarbiAnglong Autonomous Council to make laws. (1) Without prejudice to the provisions ofparagraph 3, the North Cachar Hills Autonomous Council and the Karbi AnglongAutonomous Council within their respective districts, shall have power to make laws withrespect to—(a) industries, subject to the provisions of entries 7 and 52 of List I of the Seventh

Schedule;(b) communications, that is to say, roads, bridges, ferries and other means of communication

not specified in List I of the Seventh Schedule, municipal tramways, ropeways, inlandwaterways and traffic thereon subject to the provisions of List I and List III of theSeventh Schedule with regard to such waterways; vehicles other than mechanicallypropelled vehicles;

(c) preservation, protection and improvement of stock and prevention of animal diseases;veterinary training and practice; cattle pounds;

(d) primary and secondary education;(e) agriculture, including agriculture education and research, protection against pests and

prevention of plant diseases;(f) fisheries;(g) water, that is to say, water supplies, irrigation and canals, drainage and embankments,

water storage and water power subject to the provisions of entry 56 of List I ofthe Seventh Schedule;

(h) social security and social insurance; employment and unemployment;(i) flood control schemes for protection of villages, paddy fields, markets, towns, etc.

(not of technical nature);(j) theatre and dramatic performances, cinemas subject to the provisions of entry 60 of

List I of the Seventh Schedule ; sports entertainments and amusements;(k) public health and sanitation, hospitals and dispensaries;(l) minor irrigation;(m) trade and commerce in, and the production, supply and distribution of food stuffs,

cattle fodder, raw cotton and raw jute;(n) Libraries, Museums and other similar institutions controlled or financed by the State;

ancient and historical monuments and records other than those declared by or underany law made by Parliament to be of national importance; and

(o) alienation of land.(2) All laws made by the North Cachar Hills Autonomous Council and the Karbi Anglong

Autonomous Council under paragraph 3 or under this paragraph shall, in so far asthey relate to matters specified in List III of the Seventh Schedule, to be submittedforthwith to the Governor who shall reserve the same for the consideration of thePresident.



Provided that nothing in such laws shall prevent the compulsoryacquisition of any land, whether occupied or unoccupied, for publicpurposes 1[by the Government of the State concerned] in accordancewith the law for the time being in force authorising such acquisition;

(b) the management of any forest not being a reserved forest;

(c) the use of any canal or water-course for the purpose of agriculture;

(d) the regulation of the practice of jhum or other forms of shiftingcultivation;

(e) the establishment of village or town committees or councils and theirpowers;

(f) any other matter relating to village or town administration, includingvillage or town police and public health and sanitation;

(g) the appointment or succession of Chiefs or Headmen;

(h) the inheritance of property;

2[(i) marriage and divorce;]

(j) social customs.

(2) In this paragraph, a “reserved forest” means any area which is a reservedforest under the Assam Forest Regulation, 1891, or under any other law forthe time being in force in the area in question.

4. Administration of justice in autonomous districts and autonomousregions:— (1) The Regional Council for an autonomous region in respect ofareas within such region and the District Council for an autonomous districtin respect of areas within the district other than those which are under theauthority of the Regional Councils, if any, within the district may constitute villagecouncils or Courts for the trial of suits and cases between the parties all ofwhom belong to Scheduled Tribes within such areas, other than suits and casesto which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule

� (3) When a law is reserved for the consideration of the President, the President shalldeclare either that he assents to the said law or that he withholds assent therefrom:Provided that the President may direct the Governor to return the law to the NorthCachar Hills Autonomous Council or the Karbi Anglong Autonomous Council, as thecase may be, together with a message requesting that the said Council will reconsiderthe law or any specified provisions thereof and, in particular, will, consider thedesirability of introducing any such amendments as he may recommend in his messageand, when the law is so returned, the said Council shall consider the law accordinglywithin a period of six months from the date of receipt of such message and, if thelaw is again passed by the said Council with or without amendment it shall bepresented again to the President for his consideration.

1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.2. Subs. by the Assam Reorganisation (Meghalaya) Act, 1969, w.e.f. 2-4-1970.

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apply, to the exclusion of any Court in the State, and may appoint suitable personsto be members of such village councils or presiding officers of such Courts,and may also appoint such officers as may be necessary for the administrationof the laws made under paragraph 3 of this Schedule.

(2) Notwithstanding anything in this Constitution, the Regional Council foran autonomous region or any Court constituted in that behalf by the RegionalCouncil or, if in respect of any area within an autonomous district there is noRegional Council, the District Council for such district, or any Court constitutedin that behalf by the District Council, shall exercise the powers of a Court ofappeal in respect of all suits and cases triable by a village council or Courtconstituted under sub-paragraph (1) of this paragraph within such region or area,as the case may be, other than those to which the provisions of sub-paragraph(1) of paragraph 5 of this Schedule apply, and no other Court except the HighCourt and the Supreme Court shall have jurisdiction over such suits or cases.

(3) The High Court 1[x x x] shall have and exercise such jurisdiction overthe suits and cases to which the provisions of sub-paragraph (2) of this paragraphapply as the Governor may from time to time by order specify.

(4) A Regional Council or District Council, as the case may be, may withthe previous approval of the Governor make rules regulating—

(a) the constitution of village councils and Courts and the powers to beexercised by them under this paragraph;

(b) the procedure to be followed by village councils or Courts in the trialof suits and cases under sub-paragraph (1) of this paragraph;

(c) the procedure to be followed by the Regional or District Council orany Court constituted by such Council in appeals and other proceedingsunder sub-paragraph (2) of this paragraph;

(d) the enforcement of decisions and orders of such Councils and Courts;

(e) all other ancillary matters for the carrying out of the provisions ofsub-paragraphs (1) and (2) of this paragraph.

2[(5) On and from such date as the President may, 3[after consulting theGovernment of the State concerned], by notification appoint in this behalf, thisparagraph shall have effect in relation to such autonomous district or region asmay be specified in the notification, as if–

1. The words "of Assam" omitted by the North-Eastern Areas (Reorganisation) Act, 1971(81 of 1971), w.e.f. 21-1-1972.

2. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.3. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), w.e.f.

21.1.1972.



(i) in sub-paragraph (1), for the words “between the parties all of whombelong to Scheduled Tribes within such areas, other than suits andcases to which the provisions of sub-paragraph (1) of paragraph 5of this Schedule apply,”, the words “not being suits and cases of thenature referred to in sub-paragraph (1) of paragraph (5) of thisSchedule, which the Governor may specify in this behalf,” had beensubstituted;

(ii) sub-paragraphs (2) and (3) had been omitted;

(iii) in sub-paragraph (4)—

(a) for the words “A Regional Council or District Council, as the casemay be, may with the previous approval of the Governor make rulesregulating”, the words “the Governor may make rules regulating” hadbeen substituted; and

(b) for clause (a), the following clause had been substituted, namely:-

"(a) the constitution of village councils and Courts, the powers to beexercised by them under this paragraph and the Courts to which appealsfrom the decisions of village councils and Courts shall lie;";

(c) for clause (c), the following clause had been substituted, namely:-

"(c) the transfer of appeals and other proceedings pending before theRegional or District Council or any Court constituted by such Councilimmediately before the date appointed by the President under sub-paragraph (5);"; and

(d) in clause (e), for the words, brackets and figures “sub-paragraphs (1)and (2)”, the words, brackets and figure “Sub-paragraph (1)” had beensubstituted.]1

5. Conferment of powers under the Code of Civil Procedure, 1908,and the Code of Criminal Procedure, 18981, on the Regional and DistrictCouncils and on certain Courts and officers for the trial of certain suits,cases and offences:— (1) The Governor may, for the trial of suits or casesarising out of any law in force in any autonomous district or region being alaw specified in that behalf by the Governor, or for the trial of offences punishablewith death, transportation for life, or imprisonment for a term of not less thanfive years under the Indian Penal Code or under any other law for the timebeing applicable to such district or region, confer on the District Council orthe Regional Council having authority over such district or region or on Courtsconstituted by such District Council or on any officer appointed in that behalfby the Governor, such powers under the Code of Civil Procedure, 1908, or,as the case may be, the Code of Criminal Procedure, 18982, as he deems

1. State Amendment: Assam - Insert sub para (6) namely "(6) Nothing in this paragraphshall apply to the Bodoland Territorial Council constituted under the proviso to sub-para(3) of para 2 of this Schedule" vide Act 44 of 2003 w.e.f. 7-9-2003.

2. Now the Code of Criminal Procedure, 1973 (2 of 1974).

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appropriate, and thereupon the said Council, Court or officer shall try the suits,cases or offences in exercise of the powers so conferred.

(2) The Governor may withdraw or modify any of the powers conferredon a District Council, Regional Council, Court or officer under sub-paragraph(1) of this paragraph.

(3) Save as expressly provided in this paragraph, the Code of CivilProcedure, 1908, and the Code of Criminal Procedure, 18981, shall not applyto the trial of any suits, cases or offences in an autonomous district or in anyautonomous region to which the provisions of this paragraph apply.

1[(4) On and from the date appointed by the President under sub-paragraph(5) of paragraph 4 in relation to any autonomous district or autonomous region,nothing contained in this paragraph shall, in its application to that district orregion, be deemed to authorise the Governor to confer on the District Councilor Regional Council or on Courts constituted by the District Council any ofthe powers referred to in sub-paragraph (1) of this paragraph.]

2[6. Powers of the District Council to establish primary schools, etc:—(1) The District Council for an autonomous district may establish, construct,or manage primary schools, dispensaries, markets, 3[cattle pounds], ferries,fisheries, roads, road transport and waterways in the district and may, with theprevious approval of the Governor, make regulations for the regulation and controlthereof and, in particular, may prescribe the language and the manner in whichprimary education shall be imparted in the primary schools in the district.

(2) The Governor may, with the consent of any District Council, entrusteither conditionally or unconditionally to that Council or to its officers functionsin relation to agriculture, animal husbandry, community projects, co-operativesocieties, social welfare, village planning or any other matter to which theexecutive power of the State 4[xxx] extends.]

7. District and Regional Funds:— (1) There shall be constituted for eachautonomous district, a District Fund and for each autonomous region, a RegionalFund to which shall be credited all moneys received respectively by the DistrictCouncil for that district and the Regional Council for that region in the courseof the administration of such district or region, as the case may be, in accordancewith the provisions of this Constitution.

5[(2) The Governor may make rules for the management of the DistrictFund, or, as the case may be, the Regional Fund and for the procedure to be

Provisions as to the Administration of Tribal Areas...

1. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), Sec. 74 and FourthSch., w.e.f. 2-4-1970.

2. Subs. by Ibid.3. Subs. by the Repealing and Amending Act, 1974 (56 of 1974), Sec.4, for "cattle ponds".4. The words "of Assam or Meghalaya, as the case may be", omitted by the North-Eastern

Areas (Reorganisation) Act, 1971 (81 of 1971), w.e.f. 21-1-1972.5. Subs. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.

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followed in respect of payment of money into the said Fund, the withdrawalof moneys therefrom, the custody of moneys therein and any other matterconnected with or ancillary to the matters aforesaid.

(3) The accounts of the District Council or, as the case may be, the RegionalCouncil shall be kept in such form as the Comptroller and Auditor-General ofIndia may, with the approval of the President, prescribe.

(4) The Comptroller and Auditor-General shall cause the accounts of theDistrict and Regional Councils to be audited in such manner as he may thinkfit, and the reports of the Comptroller and Auditor-General relating to suchaccounts shall be submitted to the Governor who shall cause them to be laidbefore the Council.]

8. Powers to assess and collect land revenue and to impose taxes:—(1) The Regional Council for an autonomous region in respect of all lands withinsuch region and the District Council for an autonomous district in respect ofall lands within the district except those which are in the areas under the authorityof Regional Councils, if any, within the district, shall have the power to assessand collect revenue in respect of such lands in accordance with the principlesfor the time being followed 1[by the Government of the State in assessing landsfor the purpose of land revenue in the State generally].

(2) The Regional Council for an autonomous region in respect of areaswithin such region and the District Council for an autonomous district in respectof all areas in the district except those which are under the authority of RegionalCouncils, if any, within the district, shall have power to levy and collect taxeson lands and buildings, and tolls on persons resident within such areas.

(3) The District Council for an autonomous district shall have the powerto levy and collect all or any of the following taxes within such district, thatis to say—

(a) taxes on professions, trades, callings and employments;

(b) taxes on animals, vehicles and boats;

(c) taxes on the entry of goods into a market for sale therein, and tollson passengers and goods carried in ferries; and

(d) taxes for the maintenance of schools, dispensaries or roads.

(4) A Regional Council or District Council, as the case may be, may makeregulations to provide for the levy and collection of any of the taxes specifiedin sub-paragraphs (2) and (3) of this paragraph 2[and every such regulation shallbe submitted forthwith to the Governor and, until assented to by him, shall haveno effect].


2. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969, w.e.f. 2-4-1970.

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1[9. Licences or leases for the purpose of prospecting for, or extractionof, minerals:— (1) Such share of the royalties accruing each year from licencesor leases for the purpose of prospecting for, or the extraction of, minerals grantedby 2[the Government of the State] in respect of any area within an autonomousdistrict as may be agreed upon between 2[the Government of the State] andthe District Council of such district shall be made over to that District Council.

(2) If any dispute arises as to the share of such royalties to be madeover to a District Council, it shall be referred to the Governor for determinationand the amount determined by the Governor in his discretion shall be deemedto be the amount payable under sub-paragraph (1) of this paragraph to the DistrictCouncil and the decision of the Governor shall be final.

310. Power of District Council to make regulations for the Controlof money-lending and trading by non-tribals:— (1) The District Council ofan autonomous district may make regulations for the regulation and control ofmoney-lending or trading within the district by persons other than ScheduledTribes resident in the district.

(2) In particular and without prejudice to the generality of the foregoingpower, such regulations may —

(a) prescribe that no one except the holder of a licence issued in thatbehalf shall carry on the business of money-lending;

(b) prescribe the maximum rate of interest which may be charged or berecovered by a money-lender;

(c) provide for the maintenance of accounts by money-lenders and forthe inspection of such accounts by officers appointed in that behalfby the District Council;

(d) prescribe that no person who is not a member of the Scheduled Tribesresident in the district shall carry on wholesale or retail business inany commodity except under a licence issued in that behalf by theDistrict Council :


1. State Amendments – Tripura & Mizoram — Paragraph 9 has been amended in itsapplication to the States of Tripura and Mizoram by the Sixth Schedule to the Constitution(Amendment) Act, 1988, (67 of 1988), Sec. 2, insert the following sub-paragraph aftersub-paragraph(2), namely:—"(3) The Governor may, by order, direct that the share of royalties to be made over toa District Council under this paragraph shall be made over to that Council within a periodof one year from the date of any agreement under sub-paragraph(1) or, as the case maybe of any determination under sub-paragraph (2)."


3. Paragraph 10 has been amended in its application to the States of Tripura and Mizoramby the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), Sec.2,as under:—(a) in the heading, the words "by non-tribals" shall be omitted;(b) in sub-paragraph(1), the words "other than Scheduled Tribes" shall be omitted;(c) in sub-paragraph(2), for clause(d), the following clause shall be substituted, namely:—

"(d) prescribe that no person resident in the district shall carry on any trade, whetherwholesale or retail, except under a licence issued in that behalf by the District Council".

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Provided that no regulations may be made under this paragraph unless theyare passed by a majority of not less than three-fourths of the total membershipof the District Council :

Provided further that it shall not be competent under any such regulationsto refuse the grant of a licence to a money-lender or a trader who has beencarrying on business within the district since before the time of the making ofsuch regulations.

(3) All regulations made under this paragraph shall be submitted forthwithto the Governor and, until assented to by him, shall have no effect*.

11. Publication of laws, rules and regulations made under theSchedule:— All laws, rules and regulations made under this Schedule by a DistrictCouncil or a Regional Council shall be published forthwith in the Official Gazetteof the State and shall on such publication have the force of law.

**12. 1[Application of Acts of Parliament and of the Legislature ofthe State of Assam to autonomous districts and autonomous regions inthe State of Assam:— (1) Notwithstanding anything in this Constitution—

(a) No Act of the 1[Legislature of the State of Assam] in respect of anyof the 2[matters specified in paragraph 3 or paragraph 3-A of thisSchedule] as matters with respect to which a District Council or aRegional Council may make laws, and no Act of the 1[Legislatureof the State of Assam] prohibiting or restricting the consumption ofany non-distilled alcoholic liquor shall apply to any autonomous districtor autonomous region 3[in that State] unless in either case the DistrictCouncil for such district or having jurisdiction over such region bypublic notification so directs, and the District Council in giving suchdirection with respect to any Act may direct that the Act shall in itsapplication to such district or region or any part thereof have effectsubject to such exceptions or modifications as it thinks fit4;

(b) the Governor may, by public notification, direct that any Act ofParliament or of the 1[Legislature of the State of Assam] to which the provisionsof clause (a) of this sub-paragraph do not apply shall not apply to an autonomousdistrict or an autonomous region 3[in that State] or shall apply to such districtor region or any part thereof subject to such exceptions or modifications ashe may specify in the notification.

1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.2. Subs. by Sixth Schedule to the Constitution (Amendment) Act, 1995, (42 of 1995).3. Ins. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.*. State Amendment: Assam - Insert following sub-para (4) namely: "(4) Nothing in this

paragraph shall apply to the Bodoland Territorial Council constituted under the provisoto sub-paragraph (3) of paragraph 2 of this schedule, vide Act 44 of 2003, w.e.f. 7.9.2003.

**. State Amendment: Assam - In sub-para (1) for "matters specified in para 3 of this schedule",substitute "matters specified in para 3 or para 3A of this schedule" vide Act 42 of 1995,w.e.f. 12-9-1995.

4. State Amendment: Assam - In Clause(a) for "matters specified in para 3 or para 3A ofthis schedule" substitute "matters specified in para 3 or para 3A or para 3B of this schedule"vide Act 44 of 2003, w.e.f. 7-9-2003.

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(2) Any direction given under sub-paragraph (1) of this paragraph maybe given so as to have retrospective effect.

1[12A. Application of Acts of Parliament and of the Legislature ofthe State of Meghalaya to autonomous districts and autonomous regionsin the State of Meghalaya:– Notwithstanding anything in this Constitution,–

(a) if any provision of a law made by a District or Regional Council inthe State of Meghalaya with respect to any matter specified in sub-paragraph (1) of paragraph 3 of this Schedule or if any provision ofany regulation made by a District Council or a Regional Council inthat State under paragraph 8 or paragraph 10 of this Schedule, isrepugnant to any provision of a law made by the Legislature of theState of Meghalaya with respect to that matter, then, the law orregulation made by the District Council or, as the case may be, theRegional Council whether made before or after the law made by theLegislature of the State of Meghalaya, shall, to the extent of repugnancy,be void and the law made by the Legislature of the State of Meghalayashall prevail;

(b) the President may, with respect to any Act of Parliament, by notification,direct that it shall not apply to an autonomous district or an autonomousregion in the State of Meghalaya, or shall apply to such district orregion or any part thereof subject to such exceptions or modificationsas he may specify in the notification and any such direction may begiven so as to have retrospective effect.]

2[12AA. Application of Acts of Parliament and of the Legislature ofthe State of Tripura to the autonomous district and autonomous regionsin the State of Tripura:– Notwithstanding anything in this Constitution,–

(a) no Act of the Legislature of the State of Tripura in respect of anyof the matters specified in paragraph 3 of this Schedule as matterswith respect to which a District Council or a Regional Council maymake laws, and no Act of the Legislature of the State of Tripuraprohibiting or restricting the consumption of any non-distilled alcoholicliquor shall apply to the autonomous district or an autonomous regionin that State unless, in either case, the District Council for that districtor having jurisdiction over such region by public notification so directs,and the District Council in giving such direction with respect to anyAct may direct that the Act shall, in its application to that districtor such region or any part thereof, have effect subject to suchexceptions or modifications as it thinks fit ;


1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.2. Subs. by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988).

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(b) the Governor may, by public notification, direct that any Act of theLegislature of the State of Tripura to which the provisions of clause(a) of this sub-paragraph do not apply, shall not apply to the autonomousdistrict or an autonomous region in that State, or shall apply to thatdistrict or such region, or any part thereof, subject to such exceptionsor modifications, as he may specify in the notification;

(c) the President may, with respect to any Act of Parliament, by notification,direct that it shall not apply to the autonomous district or an autonomousregion in the State of Tripura, or shall apply to such district or regionor any part thereof, subject to such exceptions or modifications ashe may specify in the notification and any such direction may be givenso as to have retrospective effect.

1[12B. Application of Acts of Parliament and of the Legislature ofthe 2[State] of Mizoram to autonomous districts and autonomous regionsin the 2[State] of Mizoram:— Notwithstanding anything in this Constitution,—

(a) no Act of the Legislature of the State of Mizoram in respect of anyof the matters specified in paragraph 3 of this Schedule as matterswith respect to which a District Council or a Regional Council maymake laws, and no Act of the Legislature of the State of Mizoramprohibiting or restricting the consumption of any non-distilled alcoholicliquor shall apply to any autonomous district or autonomous regionin that State unless, in either case, the District Council for such districtor having jurisdiction over such region, by public notification, sodirects, and the District Council, in giving such direction with respectto any Act, may direct that the Act shall, in its application to suchdistrict or region or any part thereof, have effect subject to suchexceptions or modifications as it thinks fit;

(b) the Governor may, by public notification, direct that any Act of theLegislature of the State of Mizoram to which the provisions of clause(a) of this sub-paragraph do not apply, shall not apply to an autonomousdistrict or an autonomous region in that State, or shall apply to suchdistrict or region, or any part thereof, subject to such exceptions ormodifications, as he may specify in the notification;

(c) the President may, with respect to any Act of Parliament, by notification,direct that it shall not apply to an autonomous district or an autonomousregion in the State of Mizoram, or shall apply to such district or regionor any part thereof, subject to such exceptions or modifications ashe may specify in the notification and any such direction may be givenso as to have retrospective effect.]

13. Estimated receipts and expenditure pertaining to autonomousdistricts to be shown separately in the annual financial statement:— Theestimated receipts and expenditure pertaining to an autonomous district which

1. Subs. by the Government of Union Territories (Amendment) Act, 1971, w.e.f. 29-4-1972.2. Subs. by the State of Mizoram Act, 1986 (34 of 1986), w.e.f. 20-2-1987.

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are to be credited to, or is to be made from, the Consolidated Fund of theState 1[xxx] shall be first placed before the District Council for discussion andthen after such discussion be shown separately in the annual financial statementof the State to be laid before the Legislature of the State under Article 202.

14. Appointment of Commission to inquire into and report on theadministration of autonomous districts and autonomous regions:— (1) TheGovernor may at any time appoint a Commission to examine and report on anymatter specified by him relating to the administration of the autonomous districtsand autonomous regions in the State, including matters specified in clauses (c),(d), (e) and (f) of sub-paragraph (3) of paragraph 1 of this Schedule, or mayappoint a Commission to inquire into and report from time to time on theadministration of autonomous districts and autonomous regions in the Stategenerally and in particular on—

(a) the provision of educational and medical facilities and communicationsin such districts and regions;

(b) the need for any new or special legislation in respect of such districtsand regions; and

(c) the administration of the laws, rules and regulations made by the Districtand Regional Councils;

and define the procedure to be followed by such Commission.

(2) The report of every such Commission 2[x x x] shall be laid beforethe Legislature of the State by the Minister concerned together with an explanatorymemorandum regarding the action proposed to be taken thereon by 3[the Governmentof the State]*.

(3) In allocating the business of the Government of the State among hisMinisters the Governor may place one of his Ministers specially in charge ofthe welfare of the autonomous districts and autonomous regions in the State.

4[15. Annulment or suspension of acts and resolutions of District andRegional Councils:— (1) If at any time the Governor is satisfied that an actor resolution of a District or a Regional Council is likely to endanger the safety


1. The words "of Assam" omitted by the North-Eastern Areas (Reorganisation) Act, 1971(81 of 1971), w.e.f. 21-1-1972.

2. The words "with the recommendations of the Governor with respect thereto" omitted bythe Sixth Schedule to the Constitution (Amendment) Act, 1985 (42 of 1995).

3. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.4. Paragraph 15 has been amended in its application to the State of Tripura and Mizoram

by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), Sec.2as under:—(a) in the opening paragraph, for the words "by the Legislature of the State", the words

"by him" shall be substituted.(b) the proviso shall be omitted.

*. State Amendment: Assam - In sub-para (2) omit the words "with the recommendationsof the Governor with respect thereto" by Act 42 of 1995, w.e.f. 12-9-1995.

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of India 1[or is likely to be prejudicial to public order], he may annul or suspendsuch act or resolution and take such steps as he may consider necessary (includingthe suspension of the Council and the assumption to himself of all or any ofthe powers vested in or exercisable by the Council) to prevent the commissionor continuance of such act, or the giving of effect to such resolution.

(2) Any order made by the Governor under sub-paragraph (1) of thisparagraph together with the reasons therefor shall be laid before the Legislatureof the State as soon as possible and the order shall, unless revoked by theLegislature of the State, continue in force for a period of twelve months fromthe date on which it was so made:

Provided that if and so often as a resolution approving the continuancein force of such order is passed by the Legislature of the State, the order shallunless cancelled by the Governor continue in force for a further period of twelvemonths from the date on which under this paragraph it would otherwise haveceased to operate.

2[16. Dissolution of a District or a Regional Council:— 3[(1)] TheGovernor may on the recommendation of a Commission appointed under paragraph14 of this Schedule by public notification order the dissolution of a District ora Regional Council, and—

(a) direct that a fresh general election shall be held immediately for thereconstitution of the Council, or

(b) subject to the previous approval of the Legislature of the State assumethe administration of the area under the authority of such Councilhimself or place the administration of such area under the Commissionappointed under the said paragraph or any other body consideredsuitable by him for a period not exceeding twelve months:

Provided that when an order under clause (a) of this paragraph has beenmade, the Governor may take the action referred to in clause (b) of this paragraphwith regard to the administration of the area in question pending the reconstitutionof the Council on fresh general election:

Provided further that no action shall be taken under clause (b) of thisparagraph without giving the District or the Regional Council, as the case maybe, an opportunity of placing its views before the Legislature of the State.

4[(2) If at any time the Governor is satisfied that a situation has arisenin which the administration of an autonomous district or region cannot be carried

1. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.2. Paragraph 16 has been amended in its application to the States of Tripura and Mizoram

by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), Sec.2as under:—(a) in sub-paragraph(1), the words "subject to the previous approval of the Legislature

of the State" occurring in clause(b), and the second proviso shall be omitted;(b) for sub-paragraph (3), the following sub-paragraph shall be substituted, namely:—

"(3) Every order made under sub-paragraph (1) or sub-paragraph(2) of this paragraph,along with the reasons therefor shall be laid before the Legislature of the State".

3. Paragaph 16 renumbered as sub-paragraph(1) thereof by the Assam Reorganisation(Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.

4. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), w.e.f. 2-4-1970.

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on in accordance with the provisions of this Schedule, he may, by publicnotification, assume to himself all or any of the functions or powers vestedin or exercisable by the District Council or, as the case may be, the RegionalCouncil and declare that such functions or powers shall be exercisable by suchperson or authority as he may specify in this behalf, for a period not exceedingsix months:

Provided that the Governor may by a further order or orders extend theoperation of the initial order by a period not exceeding six months on eachoccasion.

(3) Every order made under sub-paragraph (2) of this paragraph with thereasons therefor shall be laid before the Legislature of the State and shall ceaseto operate at the expiration of thirty days from the date on which the StateLegislature first sits after the issue of the orders, unless, before the expiry ofthat period it has been approved by the State Legislature.]

17. Exclusion of areas from autonomous districts in formingconstituencies in such districts:— For the purposes of elections to 1[theLegislative Assembly of Assam or Meghalaya] 2[or Tripura]] 3[or Mizoram], theGovernor may by order declare that any area within an autonomous district 1[inthe State of Assam or Meghalaya] 2[or Tripura] 3[or Mizoram], as the case maybe,] shall not form part of any constituency to fill a seat or seats in the Assemblyreserved for any such district but shall form part of a constituency to fill aseat or seats in the Assembly not so reserved to be specified in the order*.

4[xxx]

19. Transitional provisions:— (1) As soon as possible after thecommencement of this Constitution the Governor shall take steps for theconstitution of a District Council for each autonomous district in the State underthis Schedule and, until a District Council is so constituted for an autonomousdistrict, the administration of such district shall be vested in the Governor andthe following provisions shall apply to the administration of the areas within suchdistrict instead of the foregoing provisions of this Schedule, namely:—

(a) no Act of Parliament or of the Legislature of the State shall applyto any such area unless the Governor by public notification so directs;


1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.

2. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, Sec.4, w.e.f. 1-4-1985.

3. Ins. by the State of Mizoram Act, 1986 (34 of 1986), Sec. 39, w.e.f. 20-2-1987.

4. Paragraph 18 omitted by the State of Mizoram Act, 1986 (34 of 1986), w.e.f. 21-1-1972.

*. State Amendment: Assam - Insert the following:

"Provided that nothing in this paragraph shall apply to the Bodoland Territorial AreasDistrict." vide Act No. 44 of 2003, w.e.f. 7-9-2003.

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and the Governor in giving such a direction with respect to any Actmay direct that the Act shall, in its application to the area or to anyspecified part thereof, have effect subject to such exceptions ormodifications as he thinks fit;

(b) the Governor may make regulations for the peace and good governmentof any such area and any regulations so made may repeal or amendany Act of Parliament or of the Legislature of the State or any existinglaw which is for the time being applicable to such area.

(2) Any direction given by the Governor under clause (a) of sub-paragraph(1) of this paragraph may be given so as to have retrospective effect.

(3) All regulations made under clause (b) of sub-paragraph (1) of thisparagraph shall be submitted forthwith to the President and, until assented toby him, shall have no effect*.

1[20. Tribal areas:— (1) The areas specified in Parts I, II 2[IIA] andIII of the table below shall respectively be the tribal areas within the State ofAssam, the State of Meghalaya 2[,the State of Tripura] and the 3[State] ofMizoram.

(2) 4[Any reference in Part I, Part II or Part III of the table below] toany district shall be construed as a reference to the territories comprised withinthe autonomous district of that name existing immediately before the day appointedunder clause (b) of Section 2 of the North-Eastern Areas (Reorganisation) Act,1971:

Provided that for the purposes of clauses (e) and (f) of sub-paragraph(1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph (2),clauses (a), (b) and (d) of sub-paragraph (3) and sub-paragraph (4) of paragraph8 and clause (d) of sub-paragraph (2) of paragraph 10 of this Schedule, nopart of the area comprised within the municipality of Shillong shall be deemedto be within the 5[Khasi Hills District].

2[(3) The reference in Part IIA in the table below to the “Tripura TribalAreas District” shall be construed as a reference to the territory comprising thetribal areas specified in the First Schedule to the Tripura Tribal Areas AutonomousDistrict Council Act, 1979.]

1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971, w.e.f. 21-1-1972.2. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, Sec. 4, w.e.f. 1-4-1985.3. Subs. by the State of Mizoram Act, 1986 (34 of 1986), w.e.f. 20-2-1987.4. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, w.e.f. 1-4-1985.5. Subs. by the Government of Meghalaya Notification No. DCA 31/72/11, dt. 14.6.1973.*. State Amendment: Assam - Inserted the sub-para (4) "(4) As soon as possible after the

commencement of this Act, an Interim Executive Council for Bodoland Territorial AreasDistrict in Assam shall be formed by the Governor from amongst leaders of the Bodomovement, including the signatories to the Memorandum of Settlement, and shall provideadequate representation to the non-tribal communities in that area:Provided that the Interim Council shall for a period of six months during which endeavourto hold the election to the Council shall be made."Explanation:-- For the purposes of this sub-paragraph, the expression "Memorandum ofSettlement" means the Memorandum signed on the 10th day of February, 2003 betweenGovernment of India, Government of Assam and Bodo Liberation Tigres." vide Act 44of 2003, w.e.f. 7-9-2003.

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TABLE

Part I

1. The North Cachar Hills District.

2. 1[The Karbi Anglong District.]*

PART II2[1. Khasi Hills District.

2. Jaintia Hills District.]

3. The Garo Hills District.

3[PART IIA

Tripura Tribal Areas District.]

PART III4[x x x]5[1. The Chakma District.6[2. The Mara District.

3. The Lai District.]]7[20A. Dissolution of the Mizo District Council:— (1) Notwithstanding

anything in this Schedule, the District Council of the Mizo District existingimmediately before the prescribed date (hereinafter referred to as the Mizo DistrictCouncil) shall stand dissolved and cease to exist.

(2) The Administrator of the Union territory of Mizoram may, by one ormore orders, provide for all or any of the following matters, namely:—

(a) the transfer, in whole or in part, of the assets, rights and liabilitiesof the Mizo District Council (including the rights and liabilities underany contract made by it) to the Union or to any other authority;

(b) the substitution of the Union or any other authority for the Mizo DistrictCouncil, or the addition of the Union or any other authority, as a partyto any legal proceedings to which the Mizo District Council is a party;


1. Subs. by the Government of Meghalaya Notification No. DCA 31/72/11, dt. 14.6.1973.2. Subs. by the Govenment of Assam Notification T-A D/R/115/74/47, dt. 14.10.1976.3. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, Sec. 4, w.e.f. 1-4-1985.4. The words “The Mizo District” omitted by the Government of Union Territories

(Amendment) Act, 1971 (83 of 1971), w.e.f. 29-4-1972.5. Ins. by the Mizoram District Councils (Miscellaneous Provisions) Order 1972, dt. 5.5.1972,

w.e.f. 29-4-1972.6. Subs. by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988).7. Subs. by the Government of Union Territories (Amendment) Act, 1971 (83 of 1971),

w.e.f. 29-4-1972.*. State Amendment: Assam - Inserted the following : "3. The Bodoland Territorial Areas

District" vide Act 44 of 2003. w.e.f. 7-9-2003.

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(c) the transfer or re-employment of any employees of the Mizo DistrictCouncil to or by the Union or any other authoriy, the terms andconditions of service applicable to such employees after such transferor re-employment;

(d) the continuance of any laws, made by the Mizo District Council andin force immediately before its dissolution, subject to such adaptationsand modifications, whether by way of repeal or amendment, as theAdministrator may make in this behalf, until such laws are altered,repealed or amended by a competent Legislature or other competentauthority;

(e) such incidental, consequential and supplementary matters as theAdministrator considers necessary.

Explanation:— In this paragraph and in paragraph 20B of this Schedule,the expression “prescribed date” means the date on which the Legislative Assemblyof the Union territory of Mizoram is duly constituted under and in accordancewith the provisions of the Government of Union Territories Act, 1963.

120B. Autonomous regions in the Union territory of Mizoram to beautonomous districts and transitory provisions consequent thereto:— (1)Notwithstanding anything in this Schedule,—

1. State Amendment – AssamSchedule to the Constitution (Amendment) Act, 1995 (42 of 1995) S. 2, insert the followingpara:–“20BA. Exercise of discretionary powers by the Governor in the discharge of his functions:—The Governor in the discharge of his functions under sub-paragraphs (2) and (3) ofparagraph 1, sub-paragraphs (1), (6), sub-paragraph (6A) excluding the first proviso andsub-paragraph (7) of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4)of paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph (2) ofparagraph 7, sub-paragraph (4) of paragraph 8, sub-paragraph (3) of paragraph 9, sub-paragraph (3) of paragraph 10, sub-paragraph (1) of paragraph 14, sub-paragraph (1) ofparagraph 15 and sub-paragraphs (1) and (2) of paragraph 16 of this Schedule, shall, afterconsulting the Council of Ministers and the North Cachar Hills Autonomous Council orthe Karbi Anglong Autonomous Council, as the case may be, take such action as heconsiders necessary in his discretion.”1. After paragraph 20B, the following paragraph has been inserted in its application tothe State of Tripura and Mizoram, by the sixth Schedule to the Constitution (Amendment)Act, 1988 (67 of 1988), Sec. 2, namely:—“20BB. Exercise of discretionary powers by the Governor in the discharge of his functions.—The Governor in the discharge of his functions under sub-paragraph (2) and (3) of paragraph1, sub-paragraphs (1) and (7) of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph(2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraphs (1) of paragraph14, sub-paragraph (1) of paragraph 15 and sub-paragraph (1) and (2) of paragraph 16of this Schedule, shall, after consulting the Council of Ministers, and if he thinks itnecessary, the District Council or the Regional Council concerned, take such action ashe considers necessary in his discretion.”

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(a) every autonomous region existing immediately before the prescribeddate in the Union territory of Mizoram shall, on and from that date,be an autonomous district in that Union territory (hereafter referredto as the corresponding new district) and the Administrator thereofmay, by one or more orders, direct that such consequential amendmentsas are necessary to give effect to the provisions of this clause shallbe made in paragraph 20 of this Schedule (including Part III of thetable appended to that paragraph) and thereupon the said paragraphand the said Part III shall be deemed to have been amended accordingly;

(b) every Regional Council of an autonomous region in the Union territoryof Mizoram existing immediately before the prescribed date (hereafterreferred to as the existing Regional Council) shall, on and from thatdate and until a District Council is duly constituted for the correspondingnew district, be deemed to be the District Council of that district(hereafter referred to as the corresponding new District Council).

(2) Every member whether elected or nominated of an existing RegionalCouncil shall be deemed to have been elected or, as the case may be, nominatedto the corresponding new District Council and shall hold office until a DistrictCouncil is duly constituted for the corresponding new district under this Schedule.

(3) Until rules are made under sub-paragraph (7) of paragraph 2 and sub-paragraph (4) of paragraph 4 of this Schedule by the corresponding new DistrictCouncil, the rules made under the said provisions by the existing Regional Counciland in force immediately before the prescribed date shall have effect in relationto the corresponding new District Council subject to such adaptations andmodifications as may be made therein by the Administrator of the Union territoryof Mizoram.

(4) The Administrator of the Union territory of Mizoram may, by one ormore orders, provide for all or any of the following matters, namely:—

(a) the transfer in whole or in part of the assets, rights and liabilities ofthe existing Regional Council (including the rights and liabilities underany contract made by it) to the corresponding new District Council;

(b) the substitution of the corresponding new District Council for theexisting Regional Council as a party to the legal proceedings to whichthe existing Regional Council is a party;

(c) the transfer or re-employment of any employees of the existing RegionalCouncil to or by the corresponding new District Council, the termsand conditions of service applicable to such employees after suchtransfer or re-employment;

(d) the continuance of any laws made by the existing Regional Counciland in force immediately before the prescribed date, subject to such



adaptations and modifications, whether by way of repeal or amendment,as the Administrator may make in this behalf until such laws are altered,repealed or amended by a competent Legislature or other competentauthority;

(e) such incidental, consequential and supplementary matters as theAdministrator considers necessary.

20C. Interpretation:— Subject to any provision made in this behalf, theprovisions of this Schedule shall, in their application to the Union territory ofMizoram, have effect—

(1) as if references to the Governor and Government of the State werereferences to the Administrator of the Union territory appointed under Article239, references to State (except in the expression “Government of the State”)were references to the Union territory of Mizoram and references to the StateLegislature were references to the Legislative Assembly of the Union territoryof Mizoram;

(2) as if—

(a) in sub-paragraph (5) of paragraph 4, the provision for consultationwith the Government of the State concerned had been omitted;

(b) in sub-paragraph (2) of paragraph 6, for the words “to which theexecutive power of the State extends”, the words “with respect towhich the Legislative Assembly of the Union territory of Mizoram haspower to make laws” had been substituted;

(c) in paragraph 13, the words and figures “under Article 202” had beenomitted.]]

21. Amendment of the Schedule:— (1) Parliament may from time totime by law amend by way of addition, variation or repeal any of the provisionsof this Schedule and, when the Schedule is so amended, any reference to thisSchedule in this Constitution shall be construed as a reference to such Scheduleas so amended.

(2) No such law as is mentioned in sub-paragraph (1) of this paragraphshall be deemed to be an amendment of this Constitution for the purposes ofArticle 368.

Comments

Similar as the 5th Schedule, this Schedule contains detailed provisions asregards tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.

------

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SEVENTH SCHEDULE

[Article 246]

List I – Union List

1. Defence of India and every part thereof including preparation for defenceand all such acts as may be conducive in times of war to its prosecution andafter its termination to effective demobilisation.

2. Naval, military and air forces; any other armed forces of the Union.1[2A. Deployment of any armed force of the Union or any other force

subject to the control of the Union or any contingent or unit thereof in anyState in aid of the civil power; powers, jurisdiction, privileges and liabilities ofthe members of such forces while on such deployment.]

3. Delimitation of cantonment areas, local self-government in such areas,the constitution and powers within such areas of cantonment authorities and theregulation of house accommodation (including the control of rents) in such areas.

4. Naval, military and air force works.

5. Arms, firearms, ammunition and explosives.

6. Atomic energy and mineral resources necessary for its production.

7. Industries declared by Parliament by law to be necessary for the purposeof defence or for the prosecution of war.

8. Central Bureau of Intelligence and Investigation.

9. Preventive detention for reasons connected with Defence, Foreign Affairs,or the security of India; persons subjected to such detention.

10. Foreign affairs; all matters which bring the Union into relation withany foreign country.

11. Diplomatic, consular and trade representation.

12. United Nations Organisation.

13. Participation in international conferences, associations and other bodiesand implementing of decisions made thereat.

14. Entering into treaties and agreements with foreign countries andimplementing of treaties, agreements and conventions with foreign countries.

15. War and peace.

16. Foreign jurisdiction.

17. Citizenship, naturalisation and aliens.

18. Extradition.

19. Admission into, and emigration and expulsion from, India; passportsand visas.

367

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.


20. Pilgrimages to places outside India.

21. Piracies and crimes committed on the high seas or in the air; offencesagainst the law of nations committed on land or the high seas or in the air.

22. Railways.

23. Highways declared by or under law made by Parliament to be nationalhighways.

24. Shipping and navigation on inland waterways, declared by Parliamentby law to be national waterways, as regards mechanically propelled vessels; therule of the road on such waterways.

25. Maritime shipping and navigation, including shipping and navigation ontidal waters; provision of education and training for the mercantile marine andregulation of such education and training provided by States and other agencies.

26. Lighthouses, including lightships, beacons and other provision for thesafety of shipping and aircraft.

27. Ports declared by or under law made by Parliament or existing lawto be major ports, including their delimitation, and the constitution and powersof port authorities therein.

28. Port quarantine, including hospitals connected therewith; seamen’s andmarine hospitals.

29. Airways; aircraft and air navigation; provision of aerodromes; regulationand organisation of air traffic and of aerodromes; provision for aeronauticaleducation and training and regulation of such education and training providedby States and other agencies.

30. Carriage of passengers and goods by railway, sea or air, or by nationalwaterways in mechanically propelled vessels.

Caselaw

Inspection fees is not tax. 2005 AIR SCW 256.

31. Posts and telegraphs; telephones, wireless, broadcasting and other likeforms of communication.

32. Property of the Union and the revenue therefrom, but as regards propertysituated in a State 1[xxx] subject to legislation by the State, save in so far asParliament by law otherwise provides.

2[xxx]

34. Courts of wards for the estates of Rulers of Indian States.

35. Public debt of the Union.

36. Currency, coinage and legal tender; foreign exchange.

37. Foreign loans.

1. Omitted by the Constitution (Seventh Amendment) Act, 1956.2. Entry 33 omitted by the Constitution (Seventh Amendment) Act, 1956.

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369

38. Reserve Bank of India.

39. Post Office Savings Bank.

40. Lotteries organised by the Government of India or the Governmentof a State.

41. Trade and commerce with foreign countries; import and export acrosscustoms frontiers; definition of customs frontiers.

Caselaw

A.P. Scheduled Castes (Rationalisation and Reservation) Act, 2000 is beyondcompetence of State Legislature. E.V. Chinnaiah v. State of Andhra Pradeshand others, AIR 2005 SC 162.

42. Inter-State trade and commerce.

43. Incorporation, regulation and winding up of trading corporations, includingbanking, insurance and financial corporations but not including co-operativesocieties.

44. Incorporation, regulation and winding up of corporations, whethertrading or not, with objects not confined to one State, but not includinguniversities.

45. Banking.

46. Bills of exchange, cheques, promissory notes and other like instruments.

47. Insurance.

48. Stock exchanges and future markets.

49. Patents, inventions and designs; copyright; trade-marks and merchandisemarks.

50. Establishment of standards of weight and measure.

51. Establishment of standards of quality for goods to be exported outof India or transported from one State to another.

52. Industries, the control of which by the Union is declared by Parliamentby law to be expedient in the public interest.

53. Regulation and development of oilfields and mineral oil resources;petroleum and petroleum products; other liquids and substances declared byParliament by law to be dangerously inflammable.

54. Regulation of mines and mineral development to the extent to whichsuch regulation and development under the control of the Union is declared byParliament by law to be expedient in the public interest.

55. Regulation of labour and safety in mines and oilfields.

56. Regulation and development of inter-State rivers and river valleys tothe extent to which such regulation and development under the control of theUnion is declared by Parliament by law to be expedient in the public interest.

Caselaw

Networking of rivers – Court directed issue of notice based on speechof the President on Independence Day. 2002 (8) Scale 194.

List I -- Union ListSch. VII

CONST-24


57. Fishing and fisheries beyond territorial waters.58. Manufacture, supply and distribution of salt by Union agencies; regulation

and control of manufacture, supply and distribution of salt by other agencies.59. Cultivation, manufacture, and sale for export, of opium.60. Sanctioning of cinematograph films for exhibition.61. Industrial disputes concerning Union employees.62. The institutions known at the commencement of this Constitution as

the National Library, the Indian Museum, the Imperial War Museum, the VictoriaMemorial and the Indian War Memorial, and any other like institution financedby the Government of India wholly or in a part and declared by Parliamentby law to be an institution of national importance.

63. The institutions known at the commencement of this Constitution asthe Benares Hindu University, the Aligarh Muslim University and the 1[DelhiUniversity; the University established in pursuance of Article 371E;] any otherinstitution declared by Parliament by law to be an institution of national importance.

64. Institutions for scientific or technical education financed by the Governmentof India wholly or in part and declared by Parliament by law to be institutionsof national importance.

65. Union agencies and institutions for–(a) professional, vocational or technical training, including the training of

police officers; or(b) the promotion of special studies or research; or(c) scientific or technical assistance in the investigation or detection of

crime.66. Co-ordination and determination of standards in institutions for higher

education or research and scientific and technical institutions.Caselaw

Terrorism is not the same as law and order. It affects security of State.Hence Centre can legislate POTA. People’s Union for Civil Liberties and anotherv. Union of India, AIR 2004 SC 456.

67. Ancient and historical monuments and records, and archaeological sitesand remains 2[declared by or under law made by Parliament] to be of nationalimportance.

68. The Survey of India, the Geological, Botanical, Zoological andAnthropological Surveys of India; Meteorological organisations.

69. Census.70. Union Public Services; All-India Services; Union Public Service

Commission.71. Union pensions, that is to say, pensions payable by the Government

of India or out of the Consolidated Fund of India.

1. Subs. by the Constitution (Thirty-second Amendment) Act, 1973, w.e.f. 1-7-1974.2. Subs. by the Constitution (Seventh Amendment) Act, 1956.

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371

Caselaw

Grant of pension to ex-members of Parliament is valid. S.P. Anand v. Unionof India and others, AIR 2000 M.P. 137.

72. Elections to Parliament, to the Legislatures of States and to the officesof President and Vice-President; the Election Commission.

73. Salaries and allowances of members of Parliament, the Chairman andDeputy Chairman of the Council of States and the Speaker and Deputy Speakerof the House of the People.

74. Powers, privileges and immunities of each House of Parliament andof the members and the Committees of each House; enforcement of attendanceof persons for giving evidence or producing documents before committees ofParliament or commissions appointed by Parliament.

75. Emoluments, allowances, privileges, and rights in respect of leave ofabsence, of the President and Governors; salaries and allowances of the Ministersfor the Union; the salaries, allowances, and rights in respect of leave of absenceand other conditions of service of the Comptroller and Auditor-General. TOP

76. Audit of the accounts of the Union and of the States.77. Constitution, organisation, jurisdiction and powers of the Supreme Court

(including contempt of such Court), and the fees taken therein; persons entitledto practise before the Supreme Court.

78. Constitution and organisation 1[(including vacations)] of the High Courtsexcept provisions as to officers and servants of High Courts; persons entitledto practise before the High Courts.

Caselaw

Power to invest jurisdiction lies in Entry 11-A of the Concurrent List. 2005AIR SCW 676.

2[79. Extension of the jurisdiction of a High Court to, and exclusion ofthe jurisdiction of a High Court from, any Union territory.]

80. Extension of the powers and jurisdiction of members of a police forcebelonging to any State to any area outside that State, but not so as to enablethe police of one State to exercise powers and jurisdiction in any area outsidethat State without the consent of the Government of the State in which sucharea is situated; extension of the powers and jurisdiction of members of a policeforce belonging to any State to railway areas outside that State.

81. Inter-State migration; inter-State quarantine.

82. Taxes on income other than agricultural income.

Caselaw

Tax on income of property is a tax on income and is not a tax on property.M/s. Chelmsford Club v. Commissioner of Income-tax, Delhi, AIR 2000 SC 1092.

83. Duties of customs including export duties.

1. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, with retrospective effect.2. Subs. by the Constitution (Seventh Amendment) Act, 1956.

List I -- Union ListSch. VII


84. Duties of excise on tobacco and other goods manufactured or producedin India except–

(a) alcoholic liquors for human consumption.(b) opium, Indian hemp and other narcotic drugs and narcotics,but including medicinal and toilet preparations containing alcohol or any

substance included in sub-paragraph (b) of this entry.85. Corporation tax.86. Taxes on the capital value of the assets, exclusive of agricultural land,

of individuals and companies; taxes on the capital of companies.87. Estate duty in respect of property other than agricultural land.88. Duties in respect of succession to property other than agricultural land.89. Terminal taxes on goods or passengers, carried by railway, sea or air;

taxes on railway fares and freights.90. Taxes other than stamp duties on transactions in stock exchanges and

future markets.91. Rates of stamp duty in respect of bills of exchange, cheques, promissory

notes, bills of lading, letters of credit, policies of insurance, transfer of shares,debentures, proxies and receipts.

92. Taxes on the sale or purchase of newspapers and on advertisementspublished therein.

1[92A. Taxes on the sale or purchase of goods other than newspapers,where such sale or purchase takes place in the course of inter-State trade orcommerce.]

2[92B. Taxes on the consignment of goods (whether the consignment isto the person making it or to any other person), where such consignment takesplace in the course of inter-State trade or commerce.]

3[92C. Taxes on services.]93. Offences against laws with respect to any of the matters in this List.94. Inquiries, surveys and statistics for the purpose of any of the matters

in this List.95. Jurisdiction and powers of all Courts, except the Supreme Court, with

respect to any of the matters in this List; admiralty jurisdiction.96. Fees in respect of any of the matters in this List, but not including

fees taken in any Court.97. Any other matter not enumerated in List II or List III including any

tax not mentioned in either of those Lists.

Caselaw

Imposition of service tax on transport services comes under residuarypower. Gujarat Ambuja Cements Ltd. and another v. Union of India and another,AIR 2005 SC 3020 = 2005 AIR SCW 2051.

Levy of service tax on mandaps is not a tax on land. Tamil Nadu KalyanaMandapam Assn. v. Union of India and others, AIR 2004 SC 3757 = 2004AIR SCW 3991.

1. Ins. by the Constitution (Sixth Amendment) Act, 1956, w.e.f. 11-6-1956.2. Ins. by the Constitution (Forty-sixth Amendment) Act, 1982, w.e.f. 2-2-1983.3. Ins. by the Constitution (Eighty-eighth) Amendment) Act, 2003, dt. 15-1-2004.

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List II – State List

1. Public order (but not including 1[the use of any naval, military or airforce or any other armed force of the Union or of any other force subjectto the control of the Union or of any contingent or unit thereof] in aid of thecivil power).

1[2. Police (including railway and village police) subject to the provisionsof entry 2A of List I.]

3. 2[xxx] Officers and servants of the High Court; procedure in rent andrevenue Courts; fees taken in all Courts except the Supreme Court.

4. Prisons, reformatories, Borstal institutions and other institutions of a likenature, and persons detained therein; arrangements with other States for the useof prisons and other institutions.

5. Local government, that is to say, the constitution and powers of municipalcorporations, improvement trusts, district boards, mining settlement authoritiesand other local authorities for the purpose of local self-government or villageadministration.

6. Public health and sanitation; hospitals and dispensaries.

Caselaw

Doctrine of occupied field – Explained. AIR 2001 SC 1937.

7. Pilgrimages, other than pilgrimages to places outside India.

8. Intoxicating liquors, that is to say, the production, manufacture, possession,transport, purchase and sale of intoxicating liquors.

Caselaw

Levy of penalty shall be by a statute and not by mere executive instruction.2003 AIR SCW 5874.

9. Relief of the disabled and unemployable.

10. Burials and burial grounds; cremations and cremation grounds.3[xxx]

12. Libraries, museums and other similar institutions controlled or financedby the State; ancient and historical monuments and records other than those4[declared by or under law made by Parliament] to be of national importance.

13. Communications, that is to say, roads, bridges, ferries, and other meansof communication not specified in List I; municipal tramways; ropeways; inland

1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.2. Omitted by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.3. Omitted by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.4. Subs. by the Constitution (Seventh Amendment) Act, 1956.

List II -- State ListSch. VII


waterways and traffic thereon subject to the provisions of List I and List IIIwith regard to such waterways; vehicles other than mechanically propelledvehicles.

14. Agriculture, including agricultural education and research, protectionagainst pests and prevention of plant diseases.

15. Preservation, protection and improvement of stock and prevention ofanimal diseases; veterinary training and practice.

16. Pounds and the prevention of cattle trespass.

17. Water, that is to say, water supplies, irrigation and canals, drainageand embankments, water storage and water power subject to the provisions ofentry 56 of List I.

18. Land, that is to say, rights in or over land, land tenures including therelation of landlord and tenant, and the collection of rents; transfer and alienationof agricultural land; land improvement and agricultural loans; colonization.

1[xxx]

21. Fisheries.

22. Courts of wards subject to the provisions of entry 34 of List I;encumbered and attached estates.

23. Regulation of mines and mineral development subject to the provisionsof List I with respect to regulation and development under the control of theUnion.

24. Industries subject to the provisions of 2[entries 7 and 52] of List I.

25. Gas and gas-works.

26. Trade and commerce within the State subject to the provisions of entry33 of List III.

27. Production, supply and distribution of goods subject to the provisionsof entry 33 of List III.

28. Markets and fairs.

3[xxx]

30. Money-lending and money-lenders; relief of agricultural indebtedness.

31. Inns and inn-keepers.

1. Entries 19 and 20 omitted by the Constitution (Forty-second Amendment) Act, 1976,w.e.f. 3-1-1977.

2. Subs. by the Constitution (Seventh Amendment) Act, 1956.3. Entry 29 omitted by the Constitution (Forty-second Amendment) Act, 1976, w.e.f.

3.1.1977.

Sch. VII

375

32. Incorporation, regulation and winding up of corporations, other thanthose specified in List I, and universities; unincorporated trading, literary, scientific,religious and other societies and associations; co-operative societies.

Caselaw

Sch. VII, List II, Entry 32 does not contemplate a university for consultations.Prof. Yashpal and another v. State of Chattisgarh and others, AIR 2005 SC2026.

33. Theatres and dramatic performances; cinemas subject to the provisionsof entry 60 of List I; sports, entertainments and amusements.

Caselaw

Encouragement of sports is a State subject. M/s. Zee Tele Films Ltd. andanother v. Union of India and others, AIR 2005 SC 2677 = 2005 AIR SCW2955.

Maintenance of sports is a State function. 2005 AIR SCW 2477.

34. Betting and gambling.

Comments

Without banning its own State’s lotteries the Kerala Government cannotban the sale of lottery tickets in Kerala of the other States. S.T. Krishnamoorthiv. Union of India & Ors., AIR 2007 (NOC) 1575 (Ker.)

35. Works, lands and buildings vested in or in the possession of the State.1[xxx]

37. Elections to the Legislature of the State subject to the provisions ofany law made by Parliament.

38. Salaries and allowances of members of the Legislature of the State,of the Speaker and Deputy Speaker of the Legislative Assembly and, if thereis a Legislative Council, of the Chairman and Deputy Chairman thereof.

39. Powers, privileges and immunities of the Legislative Assembly and ofthe members and the committees thereof, and, if there is a Legislative Council,of that Council and of the members and the committees thereof; enforcementof attendance of persons for giving evidence or producing documents beforecommittees of the Legislature of the State.

40. Salaries and allowances of Ministers for the State.

41. State public services; State Public Service Commission.

42. State pensions, that is to say, pensions payable by the State or outof the Consolidated Fund of the State.

1. Entry 36 omitted by the Constitution (Seventh Amendment) Act, 1956.



43. Public debt of the State.44. Treasure trove.45. Land revenue, including the assessment and collection of revenue, the

maintenance of land records, survey for revenue purposes and records of rights,and alienation of revenues.

46. Taxes on agricultural income.47. Duties in respect of succession to agricultural land.48. Estate duty in respect of agricultural land.49. Taxes on lands and buildings.

Caselaw

State can impose cess on tea. 2004 AIR SCW 5998.

State can impose cess on all minerals. Land does mean all the strata aboveand below the surface. 2004 AIR SCW 5998.

50. Taxes on mineral rights subject to any limitations imposed by Parliamentby law relating to mineral development.

51. Duties of excise on the following goods manufactured or producedin the State and countervailing duties at the same or lower rates on similar goodsmanufactured or produced elsewhere in India:-

(a) alcoholic liquors for human consumption;(b) opium, Indian hemp and other narcotic drugs and narcotics,but not including medicinal and toilet preparations containing alcohol or any

substance included in sub-paragraph (b) of this entry.52. Taxes on the entry of goods into a local area for consumption, use

or sale therein.

Caselaw

Mere entry of goods into local areas does not warrant levy of octroi.AIR 2000 SC 1223.

53. Taxes on the consumption or sale of electricity.

Caselaw

Law calling upon all transporters to register their service and obtain licencescomes within Entry 53 of State List. M/s. A.B.C. (India) Ltd. v. State of Assamand Another, AIR 2005 SC 3215 = 2005 AIR SCW 3789.

1[54. Taxes on the sale or purchase of goods other than newspapers, subjectto the provisions of entry 92A of List I.]

Comments

Electro-magnetic waves, radio frequencies in telecommunications are notgoods. Bharat Sanchar Nigam Ltd. & Anr. v. Union of India & Ors., AIR2006 SC 1383.

1. Subs. by the Constitution (Sixth Amendment) Act, 1956, w.e.f. 11-9-1956.

Sch. VII

377

Caselaw

Power to levy tax includes all the incidental and ancillary powers to preventevasion. 2004 AIR SCW 1122.

Provision for levy of penalty for producing forged documents at check-post is valid. J. Chatterjee v. Mohinder Kaur Uppal and another, AIR 2000SC 3076.

55. Taxes on advertisements other than advertisements published in thenewspapers 1[and advertisements broadcast by radio or television].

56. Taxes on goods and passengers carried by road or on inland waterways.

57. Taxes on vehicles, whether mechanically propelled or not, suitable foruse on roads, including tramcars subject to the provisions of entry 35 of ListIII.

Caselaw

Levy of life time tax on motor vehicles did not fall outside the Entry 57.State of Tamil Nadu v. M. Krishnappan and others, AIR 2005 SC 2168.

58. Taxes on animals and boats.

59. Tolls.

60. Taxes on professions, trades, callings and employments.

61. Capitation taxes.

62. Taxes on luxuries, including taxes on entertainments, amusements,betting and gambling.

Caselaw

Levy of luxury tax on tobacco only and not on its users is invalid. 2005AIR SCW 613.

Luxury tax on tobacconist is not valid. Ghodwat Pan Masala Products(I) Ltd. and another v. State of Maharashtra and others, AIR 2005 SC 2909= 2005 AIR SCW 3366.

63. Rates of stamp duty in respect of documents other than those specifiedin the provisions of List I with regard to rates of stamp duty.

Caselaw

State can impose stamp duty on the order of the Court sanctioningamalgamation of companies. Hindustan Lever and another v. State of Maharashtraand another, AIR 2004 SC 326.

64. Offences against laws with respect to any of the matters in this List.

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976. w.e.f. 3-1-1977.



65. Jurisdiction and powers of all Courts, except the Supreme Court, withrespect to any of the matters in this List.

66. Fees in respect of any of the matters in this List, but not includingfees taken in any Court.

Caselaw

State Government has power to levy fees for supply of river water forindustry. Tata Iron and Steel Co. Ltd., Jamshedpur and another v. State ofBihar and others, AIR 2005 Jharkhand 164 (NOC).

Market fees is not tax. The Belsund Sugar Co. Ltd. v. The State of Biharand others etc., AIR 1999 SC 3125.

List III – Concurrent List

1. Criminal law, including all matters included in the Indian Penal Codeat the commencement of this Constitution but excluding offences against lawswith respect to any of the matters specified in List I or List II and excludingthe use of naval, military or air forces or any other armed forces of the Unionin aid of the civil power.

2. Criminal procedure, including all matters included in the Code of CriminalProcedure at the commencement of this Constitution.

3. Preventive detention for reasons connected with the security of a State,the maintenance of public order, or the maintenance of supplies and servicesessential to the community; persons subjected to such detention.

4. Removal from one State to another State of prisoners, accused personsand persons subjected to preventive detention for reasons specified in entry 3of this List.

5. Marriage and divorce; infants and minors; adoption; wills, intestacy andsuccession; joint family and partition; all matters in respect of which parties injudicial proceedings were immediately before the commencement of this Constitutionsubject to their personal law.

6. Transfer of property other than agricultural land; registration of deedsand documents.

7. Contracts, including partnership, agency, contracts of carriage, and otherspecial forms of contracts, but not including contracts relating to agriculturalland.

8. Actionable wrongs.

9. Bankruptcy and insolvency.

10. Trust and Trustees.

11. Administrators-general and official trustees.

Sch. VII

379

Caselaw

State Government is competent to enhance pecuniary jurisdiction of allCivil Courts. Jamshed N. Guzdar v. State of Maharashtra and others, AIR 2005SC 862.

1[11A. Administration of Justice; constitution and organisation of all Courts,except the Supreme Court and the High Courts.]

12. Evidence and oaths; recognition of laws, public acts and records, andjudicial proceedings.

13. Civil procedure, including all matters included in the Code of CivilProcedure at the commencement of this Constitution, limitation and arbitration.

14. Contempt of Court, but not including contempt of the Supreme Court.

15. Vagrancy; nomadic and migratory tribes.

16. Lunacy and mental deficiency, including places for the reception ortreatment of lunatics and mental deficients.

17. Prevention of cruelty to animals.

2[17A. Forests.

17B. Protection of wild animals and birds.]

18. Adulteration of foodstuffs and other goods.

19. Drugs and poisons, subject to the provisions of entry 59 of List Iwith respect to opium.

20. Economic and social planning.

2[20A. Population control and family planning.]

21. Commercial and industrial monopolies, combines and trusts.

22. Trade unions; industrial and labour disputes.

23. Social security and social insurance; employment and unemployment.

24. Welfare of labour including conditions of work, provident funds,employers’ liability, workmen’s compensation, invalidity and old age pensions andmaternity benefits.

3[25. Education, including technical education, medical education anduniversities, subject to the provisions of entries 63, 64, 65 and 66 of List I;vocational and technical training of labour.]

1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.2. Ins. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.3. Subs. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.

List III -- Concurrent ListSch. VII


Caselaw

Even after education is shifted to Concurrent List, State Government hasits executive power to provide reservations in education. Saurabh Chaudri andothers v. Union of India and others, AIR 2004 SC 361.

26. Legal, medical and other professions.

27. Relief and rehabilitation of persons displaced from their original placeof residence by reason of the setting up of the Dominions of India and Pakistan.

28. Charities and charitable institutions, charitable and religious endowmentsand religious institutions.

29. Prevention of the extension from one State to another of infectiousor contagious diseases or pests affecting men, animals or plants.

30. Vital statistics including registration of births and deaths.

Comments

Registration of marriages come within the expression of vital statistics. Smt.Seema v. Ashwani Kumar, AIR 2006 SC 1158.

31. Ports other than those declared by or under law made by Parliamentor existing law to be major ports.

32. Shipping and navigation on inland waterways as regards mechanicallypropelled vessels, and the rule of the road on such waterways, and the carriageof passengers and goods on inland waterways subject to the provisions of ListI with respect to national waterways.

1[33. Trade and commerce in, and the production, supply and distributionof,—

(a) the products of any industry where the control of such industry bythe Union is declared by Parliament by law to be expedient in thepublic interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(c) cattle fodder, including oilcakes and other concentrates;

(d) raw cotton, whether ginned or unginned, and cotton seed; and

(e) raw jute.]2[33A. Weights and measures except establishment of standards.]

34. Price control.

35. Mechanically propelled vehicles including the principles on which taxeson such vehicles are to be levied.

1. Subs. by the Constitution (Third Amendment) Act, 1954.2. Ins. by the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977.

Sch. VII

381

36. Factories.

37. Boilers.

38. Electricity.

39. Newspapers, books and printing presses.

40. Archaeological sites and remains other than those 1[declared by or underlaw made by Parliament] to be of national importance.

41. Custody, management and disposal of property (including agriculturalland) declared by law to be evacuee property.

1[42. Acquisition and requisitioning of property.]

43. Recovery in a State of claims in respect of taxes and other publicdemands, including arrears of land-revenue and sums recoverable as such arrears,arising outside that State.

44. Stamp duties other than duties or fees collected by means of judicialstamps, but not including rates of stamp duty.

45. Inquiries and statistics for the purposes of any of the matters specifiedin List II or List III.

46. Jurisdiction and powers of all Courts, except the Supreme Court, withrespect to any of the matters in this List.

47. Fees in respect of any of the matters in this List, but not includingfees taken in any Court.

Comments

The 7th Schedule:-- This is a very important Schedule. It limits the powersto legislate by the Parliament and powers to legislate by the State Assembliesand power to legislate by the Union and also the States. Thus there are threelists: the first list is called Union List. The second list is called the State Listand the third list is called Concurrent List. The several items mentioned in thislist read with relative enactments have become controversial. The rule appliedfor interpreting whether a particular enactment falls within the scope of the Entryspecified in the List is called the rule of pith and substance. It means whetherthe core intent of the enactment falls within the wider scope of the Entry. Thesecond rule applied in this regard is called a rule of ultra vires. If an enactmentfails the test of pith and substance it becomes ultra vires of the Constitution.

-----

1. Subs. by the Constitution (Seventh Amendment) Act, 1956.

List III -- Concurrent ListSch. VII

EIGHTH SCHEDULE[Articles 344 (1) and 351]

Languages

382

1. Assamese.

2. Bengali.1[3. Bodo

4. Dogri]2[5.] Gujarati.3[6.] Hindi.3[7.] Kannada.3[8.] Kashmiri.

4[3[9.] Konkani.]1[10. Maithili]

5[11.] Malayalam.

4[6[12.] Manipuri.]6[13.] Marathi.6[14.] Nepali.]6[15.] Oriya.6[16.] Punjabi.6[17.] Sanskrit.

1[18. Santhali]7[19.] Sindhi.]8[20.] Tamil.8[21.] Telugu.8[22.] Urdu.

Comments

The 8th Schedule:-- This Schedule enumerates a different language whichcould be adopted as the official language of the States concerned. Official languagemeans the language which could be used in all official communications as wellas in the laws which may be made by the legislatures. Where any legislationis made in the regional language, it shall be accompanied by an English translation.Where the language in which the law is made in Andhra Pradesh is in English,it must be accompanied by a Telugu translation.

——

1. Ins. by Constitution (Ninety-second Amendment) Act, 2003, w.e.f. 8-1-2004.2. Entry 3 renumbered as Entry 5 by Constitution (Ninety-second Amndt.) Act, 2003, w.e.f.

8.1.2004.3. Entries 4 to 7 renumbered as Entries 6 to 9 by Ibid.4. Entry 8 renumbered as Entry 11 by Constitution (Ninety-second Amndt.) Act, 2003, w.e.f.

8.1.2004.5. Ins. by the Constitution (Seventy-first Amendment) Act, 1992, Section 2(a).6. Entries 9 to 14 renumbered as Entries 12 to 17 by Constitution (Ninety-second Amendment)

Act, 2003, w.e.f. 8-1-2004.7. Entry 15 renumbered as Entry 19 by Constitution (Ninety-second Amendment) Act, 2003,

w.e.f. 8.1.2004.8. Entries 16 to 18 renumbered as Entries 20 to 22 by Constitution (Ninety-second

Amendment) Act, 2003, w.e.f. 8-1-2004.

1. Added by the Constitution (First Amendment) Act, 1951.2. Added by the Constitution (Fourth Amendment) Act, 1955.

1[NINTH SCHEDULE

[Article 31B]

1. The Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950).

2. The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay ActLXVII of 1948).

3. The Bombay Maleki Tenure Abolition Act, 1949 (Bombay Act LXI of 1949).

4. The Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act LXII of1949).

5. The Panch Mahals Mehwassi Tenure Abolition Act, 1949 (Bombay ActLXIII of 1949).

6. The Bombay Khoti Abolition Act, 1950 (Bombay Act VI of 1950).7. The Bombay Paragana and Kulkarni Watan Abolition Act, 1950 (BombayAct LX of 1950).

8. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,Alienated Lands) Act, 1950 (Madhya Pradesh Act I of 1951).

9. The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948(Madras Act XXVI of 1948).

10. The Madras Estates (Abolition and Conversion into Ryotwari) AmendmentAct, 1950 (Madras Act I of 1950).

11. The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (UttarPradesh Act I of 1951).

12. The Hyderabad (Abolition of Jagirs) Regulation, 1358F (No. LXIX of 1358,Fasli).

13. The Hyderabad Jagirs (Commutation) Regulation, 1359F (No. XXV of1359, Fasli).]

2[14. The Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act, 1950(Bihar Act XXXVIII of 1950).

15. The United Provinces Land Acquisition (Rehabilitation of Refugees) Act,1948 (U.P. Act XXVI of 1948).

16. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (ActLX of 1948).

17. Sections 52A to 52G of the Insurance Act, 1938 (Act IV of 1938), asinserted by Section 42 of the Insurance (Amendment) Act, 1950 (ActXLVII of 1950).

383


1. Added by the Constitution (Seventeenth Amendment) Act, 1964.

18. The Railway Companies (Emergency Provisions) Act, 1951 (Act LI of1951).

19. Chapter III-A of the Industries (Development and Regulation) Act, 1951(Act LXV of 1951), as inserted by Section 13 of the Industries (Developmentand Regulation) Amendment Act, 1953 (Act XXVI of 1953).

20. The West Bengal Land Development and Planning Act, 1948 (West BengalAct XXI of 1948), as amended by West Bengal Act XXIX of 1951.]

1[21. The Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961 (AndhraPradesh Act X of 1961).

22. The Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands(Validation) Act, 1961 (Andhra Pradesh Act XXI of 1961).

23. The Andhra Pradesh (Telangana Area) Ijara and Kowli Land Cancellationof Irregular Pattas and Abolition of Concessional Assessment Act, 1961(Andhra Pradesh Act XXXVI of 1961).

24. The Assam State Acquisition of Lands belonging to Religious or CharitableInstitution of Public Nature Act, 1959 (Assam Act IX of 1961).

25. The Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act XX of 1954).

26. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition ofSurplus Land) Act, 1961 (Bihar Act XII of 1962), (except Section 28of this Act.)

27. The Bombay Taluqdari Tenure Abolition (Amendment) Act, 1954 (BombayAct I of 1955).

28. The Bombay Taluqdari Tenure Abolition (Amendment) Act, 1957 (BombayAct XVIII of 1958).

29. The Bombay Inams (Kutch Area) Abolition Act, 1958 (Bombay Act XCVIIIof 1958).

30. The Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act,1960 (Gujarat Act XVI of 1960).

31. The Gujarat Agricultural Lands Ceiling Act, 1960 (Gujarat Act XXVII of1961).

32. The Sagbara and Mehwassi Estates (Proprietary Rights Abolition, etc.)Regulation, 1962 (Gujarat Regulation I of 1962).

33. The Gujarat Surviving Alienations Abolition Act, 1963 (Gujarat Act XXXIIIof 1963), except in so far as this Act relates to an alienation referredto in sub-clause (d) of clause (3) of Section 2 thereof.

Sch. IX

385

34. The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961(Maharashtra Act XXVII of 1961).

35. The Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validationand Further Amendment) Act, 1961 (Maharashtra Act XLV of 1961).

36. The Hyderabad Tenancy and Agricultural Lands Act, 1950 (Hyderabad ActXXI of 1950).

37. The Jenmikaram Payment (Abolition) Act, 1960 (Kerala Act III of 1961).

38. The Kerala Land Tax Act, 1961 (Kerala Act XIII of 1961).

39. The Kerala Land Reforms Act, 1963 (Kerala Act I of 1964).

40. The Madhya Pradesh Land Revenue Code, 1959 (Madhya Pradesh ActXX of 1959).

41. The Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (MadhyaPradesh Act XX of 1960).

42. The Madras Cultivating Tenants Protection Act, 1955 (Madras Act XXVof 1955).

43. The Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956 (MadrasAct XXIV of 1956).

44. The Madras Occupants of Kudiyiruppu (Protection from Eviction) Act,1961 (Madras Act XXXVIII of 1961).

45. The Madras Public Trusts (Regulation of Administration of AgriculturalLands) Act, 1961 (Madras Act LVII of 1961).

46. The Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 (MadrasAct LVIII of 1961).

47. The Mysore Tenancy Act, 1952 (Mysore Act XIII of 1952).

48. The Coorg Tenants Act, 1957 (Mysore Act XIV of 1957).

49. The Mysore Village Offices Abolition Act, 1961 (Mysore Act XIV of 1961).

50. The Hyderabad Tenancy and Agricultural Lands (Validation) Act, 1961(Mysore Act XXXVI of 1961).

51. The Mysore Land Reforms Act, 1961 (Mysore Act X of 1962).

52. The Orissa Land Reforms Act, 1960 (Orissa Act XVI of 1960).

53. The Orissa Merged Territories (Village Offices Abolition) Act, 1963 (OrissaAct X of 1963).

54. The Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953).

55. The Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955).

56. The Rajasthan Zamindari and Biswedari Abolition Act, 1959 (Rajasthan ActVIII of 1959).

Ninth Schedule

CONST-25


1. Ins. by the Constitution (Twenty-ninth Amendment) Act, 1972.2. Ins. by the Constitution (Thirty-fourth Amendment) Act, 1974.

57. The Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act,1960 (Uttar Pradesh Act XVII of 1960).

58. The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (UttarPradesh Act I of 1961).

59. The West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of1954).

60. The West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956).

61. The Delhi Land Reforms Act, 1954 (Delhi Act VIII of 1954).

62. The Delhi Land Holdings (Ceiling) Act, 1960 (Central Act 24 of 1960).

63. The Manipur Land Revenue and Land Reforms Act, 1960 (Central Act33 of 1960).

64. The Tripura Land Revenue and Land Reforms Act, 1960 (Central Act 43of 1960).]

1[65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969).

66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of1971).]

2[67. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act,1973 (Andhra Pradesh Act 1 of 1973).

68. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition ofSurplus Land) (Amendment) Act, 1972 (Bihar Act 1 of 1973).

69. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition ofSurplus Land) (Amendment) Act, 1973 (Bihar Act IX of 1973).

70. The Bihar Land Reforms (Amendment) Act, 1972 (Bihar Act V of 1972).

71. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972 (GujaratAct 2 of 1974).

72. The Haryana Ceiling on Land Holdings Act, 1972 (Haryana Act 26 of 1972).

73. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 (HimachalPradesh Act 19 of 1973).

74. The Kerala Land Reforms (Amendment) Act, 1972 (Kerala Act 17 of 1972).

75. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act,1972 (Madhya Pradesh Act 12 of 1974).

76. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment)Act, 1972 (Madhya Pradesh Act 13 of 1974).

Sch. IX

387

77. The Mysore Land Reforms (Amendment) Act, 1973 (Karnataka Act 1 of1974).

78. The Punjab Land Reforms Act, 1972 (Punjab Act 10 of 1973).

79. The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973(Rajasthan Act 11 of 1973).

80. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari)Act, 1969 (Tamil Nadu Act 24 of 1969).

81. The West Bengal Land Reforms (Amendment) Act, 1972 (West BengalAct XII of 1972).

82. The West Bengal Estates Acquisiton (Amendment) Act, 1964 (West BengalAct XXII of 1964).

83. The West Bengal Estates Acquisition (Second Amendment) Act, 1973 (WestBengal Act XXXIII of 1973).

84. The Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act,1972 (Gujarat Act 5 of 1973).

85. The Orissa Land Reforms (Amendment) Act, 1974 (Orissa Act 9 of 1974).

86. The Tripura Land Revenue and Land Reforms (Second Amendment) Act,1974 (Tripura Act 7 of 1974).]

1[2[x x x]

88. The Industries (Development and Regulation) Act, 1951 (Central Act 65of 1951).

89. The Requisitioning and Acquisition of Immovable Property Act, 1952(Central Act 30 of 1952).

90. The Mines and Minerals (Regulation and Development) Act, 1957 (CentralAct 67 of 1957).

91. The Monopolies and Restrictive Trade Practices Act, 1969 (Central Act54 of 1969).

2[x x x]

93. The Coking Coal Mines (Emergency Provisions) Act, 1971 (Central Act64 of 1971).

94. The Coking Coal Mines (Nationalisation) Act, 1972 (Central Act 36 of1972).

1. Ins. by the Constitution (Thirty-ninth Amendment) Act, 1975.2. Entries 87 and 92 omitted by the Constitution (Forty-fourth Amendment) Act, 1978,

w.e.f. 20-6-1979.

Ninth Schedule


95. The General Insurance Business (Nationalisation) Act, 1972 (Central Act57 of 1972).

96. The Indian Copper Corporation (Acquisition of Undertaking) Act, 1972(Central Act 58 of 1972).

97. The Sick Textile Undertakings (Taking Over of Management) Act, 1972(Central Act 72 of 1972).

98. The Coal Mines (Taking Over of Management) Act, 1973 (Central Act15 of 1973).

99. The Coal Mines (Nationalisation) Act, 1973 (Central Act 26 of 1973).

100. The Foreign Exchange Regulation Act, 1973 (Central Act 46 of 1973).

101. The Alcock Ashdown Company Limited (Acquisition of Undertakings) Act,1973 (Central Act 56 of 1973).

102. The Coal Mines (Conservation and Development) Act, 1974 (Central Act28 of 1974).

103. The Additional Emoluments (Compulsory Deposit) Act, 1974 (Central Act37 of 1974).

104. The Conservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974 (Central Act 52 of 1974).

105. The Sick Textile Undertakings (Nationalisation) Act, 1974 (Central Act 57of 1974).

106. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1964 (Maharashtra Act XVI of 1965).

107. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1965 (Maharashtra Act XXXII of 1965).

108. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1968 (Maharashtra Act XVI of 1968).

109. The Maharashtra Agricultural Lands (Ceiling on Holdings) (SecondAmendment) Act, 1968 (Maharashtra Act XXXIII of 1968).

110. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1969 (Maharashtra Act XXXVII of 1969).

111. The Maharashtra Agricultural Lands (Ceiling on Holdings) (SecondAmendment) Act, 1969 (Maharashtra Act XXXVIII of 1969).

112. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1970 (Maharashtra Act XXVII of 1970).

113. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1972 (Maharashtra Act XIII of 1972).

Sch. IX

389

114. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1973 (Maharashtra Act L of 1973).






120. The Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment)Act, 1972 (Uttar Pradesh Act 18 of 1973).


122. The Tripura Land Revenue and Land Reforms (Third Amendment) Act,1975 (Tripura Act 3 of 1975).

123. The Dadra and Nagar Haveli Land Reforms Regulation, 1971 (3 of 1971).

124. The Dadra and Nagar Haveli Land Reforms (Amendment) Regulation, 1973(5 of 1973).]

1[125. Section 66A and Chapter IVA of the Motor Vehicles Act, 1939 (CentralAct 4 of 1939).

126. The Essential Commodities Act, 1955 (Central Act 10 of 1955).

127. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property)Act, 1976 (Central Act 13 of 1976).

128. The Bonded Labour System (Abolition) Act, 1976 (Central Act 19 of 1976).

129. The Conservation of Foreign Exchange and Prevention of SmugglingActivities (Amendment) Act, 1976 (Central Act 20 of 1976).

2[x x x]

131. The Levy Sugar Price Equalisation Fund Act, 1976 (Central Act 31 of1976).

132. The Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of1976).

133. The Departmentalisation of Union Accounts (Transfer of Personnel) Act,1976 (Central Act 59 of 1976).

Ninth Schedule

1. Ins. by the Constitution (Fortieth Amendment) Act, 1976.2. Entry 130 omitted by the Constitution (Forty-fourth Amendment) Act, 1978, w.e.f.

20.6.1979.


134. The Assam Fixation of Ceiling on Land Holdings Act, 1956 (Assam ActI of 1957).

135. The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958(Bombay Act XCIX of 1958).

136. The Gujarat Private Forests (Acquisition) Act, 1972 (Gujarat Act 14 of1973).

137. The Haryana Ceiling on Land Holdings (Amendment) Act, 1976 (HaryanaAct 17 of 1976).

138. The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (HimachalPradesh Act 8 of 1974).

139. The Himachal Pradesh Village Common Lands Vesting and Utilization Act,1974 (Himachal Pradesh Act 18 of 1974).

140. The Karnataka Land Reforms (Second Amendment and MiscellaneousProvisions) Act, 1974 (Karnataka Act 31 of 1974).

141. The Karnataka Land Reforms (Second Amendment) Act, 1976 (KarnatakaAct 27 of 1976).

142. The Kerala Prevention of Eviction Act, 1966 (Kerala Act 12 of 1966).

143. The Thiruppuvaram Payment (Abolition) Act, 1969 (Kerala Act 19 of 1969).

144. The Sreepadam Lands Enfranchisement Act, 1969 (Kerala Act 20 of 1969).

145. The Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971(Kerala Act 20 of 1971).

146. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (KeralaAct 26 of 1971).

147. The Kerala Agricultural Workers Act, 1974 (Kerala Act 18 of 1974).

148. The Kerala Cashew Factories (Acquisition) Act, 1974 (Kerala Act 29 of1974).

149. The Kerala Chitties Act, 1975 (Kerala Act 23 of 1975).

150. The Kerala Scheduled Tribes (Restriction on Transfer of Lands andRestoration of Alienated Lands) Act, 1975 (Kerala Act 31 of 1975).


152. The Kanam Tenancy Abolition Act, 1976 (Kerala Act 16 of 1976).



Sch. IX

391

155. The West Khandesh Mehwassi Estates (Proprietary Rights Abolition, etc.)Regulation, 1961 (Maharashtra Regulation 1 of 1962).

156. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974(Maharashtra Act XIV of 1975).

157. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and(Amendment) Act, 1972 (Maharashtra Act XXI of 1975).

158. The Maharashtra Private Forests (Acquisition) Act, 1975 (Maharashtra ActXXIX of 1975).

159. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and(Amendment) Act, 1975 (Maharashtra Act XLVII of 1975).

160. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment)Act, 1975 (Maharashtra Act II of 1976).

161. The Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952).

162. The Rajasthan Colonisation Act, 1954 (Rajasthan Act XXVII of 1954).

163. The Rajasthan Land Reforms and Acquisition of Landowners’ Estates Act,1963 (Rajasthan Act 11 of 1964).

164. The Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment)Act, 1976 (Rajasthan Act 8 of 1976).

165. The Rajasthan Tenancy (Amendment) Act, 1976 (Rajasthan Act 12 of1976).

166. The Tamil Nadu Land Reforms (Reduction of Ceiling on Land) Act, 1970(Tamil Nadu Act 17 of 1970).

167. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) AmendmentAct, 1971 (Tamil Nadu Act 41 of 1971).


169. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) SecondAmendment Act, 1972 (Tamil Nadu Act 20 of 1972).

170. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) ThirdAmendment Act, 1972 (Tamil Nadu Act 37 of 1972).

171. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) FourthAmendment Act, 1972 (Tamil Nadu Act 39 of 1972).

172. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) SixthAmendment Act, 1972 (Tamil Nadu Act 7 of 1974).

173. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) FifthAmendment Act, 1972 (Tamil Nadu Act 10 of 1974).

Ninth Schedule



175. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) ThirdAmendment Act, 1974 (Tamil Nadu Act 30 of 1974).




179. Amendments made to the Uttar Pradesh Zamindari Abolition and LandReforms Act, 1950 (Uttar Pradesh Act I of 1951) by the Uttar PradeshLand Laws (Amendment) Act, 1971 (Uttar Pradesh Act 21 of 1971) andthe Uttar Pradesh Land Laws (Amendment) Act, 1974 (Uttar Pradesh Act34 of 1974).


181. The West Bengal Land Reforms (Second Amendment) Act, 1972 (WestBengal Act XXVIII of 1972).

182. The West Bengal Restoration of Alienated Land Act, 1973 (West BengalAct XXIII of 1973).

183. The West Bengal Land Reforms (Amendment) Act, 1974 (West BengalAct XXXIII of 1974).

184. The West Bengal Land Reforms (Amendment) Act, 1975 (West BengalAct XXIII of 1975).

185. The West Bengal Land Reforms (Amendment) Act, 1976 (West BengalAct XII of 1976).

186. The Delhi Land Holdings (Ceiling) Amendment Act, 1976 (Central Act 15of 1976).

187. The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975(Goa, Daman and Diu Act 1 of 1976).

188. The Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, 1973(Pondicherry Act 9 of 1974).]

1[189. The Assam (Temporarily Settled Areas) Tenancy Act, 1971 (Assam ActXXIII of 1971).

1. Ins. by the Constitution (Forty-seventh Amendment) Act, 1984, Sec. 2, w.e.f. 26-8-1984.

Sch. IX

393

190. The Assam (Temporarily Settled Areas) Tenancy (Amendment) Act, 1974(Assam Act XVIII of 1974).

191. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition ofSurplus Land) (Amendment) Amending Act, 1974 (Bihar Act 13 of 1975).


193. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition ofSurplus Land) (Amendmend) Act, 1978 (Bihar Act VII of 1978).

194. The Land Acquisition (Bihar Amendment) Act, 1979 (Bihar Act 2 of 1980).

195. The Haryana Ceiling on Land Holdings (Amendment) Act, 1977 (HaryanaAct 14 of 1977).



198. The Uttar Pradesh Zamindari Abolition Laws (Amendment) Act, 1978 (UttarPradesh Act 15 of 1978).

199. The West Bengal Restoration of Alienated Land (Amendment) Act, 1978(West Bengal Act XXIV of 1978).

200. The West Bengal Restoration of Alienated Land (Amendment) Act, 1980(West Bengal Act LVI of 1980).

201. The Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Goa, Damanand Diu Act 7 of 1964).

202. The Goa, Daman and Diu Agricultural Tenancy (Fifth Amendment) Act,1976 (Goa, Daman and Diu Act 17 of 1976).]

1[203. The Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959(Andhra Pradesh Regulation 1 of 1959).

204. The Andhra Pradesh Scheduled Areas Laws (Extension and Amendment)Regulation, 1963 (Andhra Pradesh Regulation 2 of 1963).

205. The Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation,1970 (Andhra Pradesh Regulation 1 of 1970).



1. Entries 203 to 257 ins. by the Constitution (Sixty-sixth Amendment) Act, 1990, w.e.f.7-6-1990.

Ninth Schedule


208. The Bihar Tenancy Act, 1885 (Bihar Act 8 of 1885).

209. The Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908) (ChapterVIII, Sections 46, 47, 48, 48A and 49; Chapter X, Sections 71, 71A and71B; and Chapter XVIII, Sections 240, 241 and 242).

210. The Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 (BiharAct 14 of 1949) except Section 53.

211. The Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation 1 of 1969).


213. The Gujarat Devasthan Inams Abolition Act, 1969 (Gujarat Act 16 of 1969).

214. The Gujarat Tenancy Laws (Amendment) Act, 1976 (Gujarat Act 37 of1976).

215. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1976 (President’sAct 43 of 1976).

216. The Gujarat Devasthan Inams Abolition (Amendment) Act, 1977 (GujaratAct 27 of 1977).

217. The Gujarat Tenancy Laws (Amendment) Act, 1977 (Gujarat Act 30 of1977).

218. The Bombay Land Revenue (Gujarat Second Amendment) Act, 1980(Gujarat Act 37 of 1980).

219. The Bombay Land Revenue Code and Land Tenure Abolition Laws (GujaratAmendment) Act, 1982 (Gujarat Act 8 of 1982).

220. The Himachal Pradesh Transfer of Land (Regulation) Act, 1968 (HimachalPradesh Act 15 of 1969).

221. The Himachal Pradesh Transfer of Land (Regulation) (Amendment) Act,1986 (Himachal Pradesh Act 16 of 1986).

222. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition ofTransfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979).



225. The Madhya Pradesh Land Revenue Code (Third Amendment) Act, 1976(Madhya Pradesh Act 61 of 1976).

226. The Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (MadhyaPradesh Act 15 of 1980).

227. The Madhya Pradesh Akrishik Jot Uchchatam Seema Adhiniyam, 1981(Madhya Pradesh Act 11 of 1981).

Sch. IX

395

228. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment)Act, 1976 (Madhya Pradesh Act 1 of 1984).



231. The Maharashtra Land Revenue Code, 1966 (Maharashtra Act 41 of 1966),Sections 36, 36A and 36B.

232. The Maharashtra Land Revenue Code and the Maharashtra Restoration ofLands to Scheduled Tribes (Second Amendment) Act, 1976 (MaharashtraAct 30 of 1977).

233. The Maharashtra Abolition of Subsisting Proprietary Rights to Mines andMinerals in certain Lands Act, 1985 (Maharashtra Act 16 of 1985).

234. The Orissa Scheduled Areas Transfer of Immovable Property (by ScheduledTribes) Regulation, 1956 (Orissa Regulation 2 of 1956).

235. The Orissa Land Reforms (Second Amendment) Act, 1975 (Orissa Act29 of 1976).


237. The Orissa Land Reforms (Second Amendment) Act, 1976 (Orissa Act44 of 1976).

238. The Rajasthan Colonisation (Amendment) Act, 1984 (Rajasthan Act 12 of1984).







245. The Uttar Pradesh Land Laws (Amendment) Act, 1982 (Uttar Pradesh Act20 of 1982).

Ninth Schedule


246. The West Bengal Land Reforms (Amendment) Act, 1965 (West BengalAct 18 of 1965).


248. The West Bengal Land Reforms (Second Amendment) Act, 1969 (WestBengal Act 23 of 1969).

249. The West Bengal Estate Acquisition (Amendment) Act, 1977 (West BengalAct 36 of 1977).

250. The West Bengal Land Holding Revenue Act, 1979 (West Bengal Act 44of 1979).


252. The West Bengal Land Holding Revenue (Amendment) Act, 1981 (WestBengal Act 33 of 1981).

253. The Calcutta Thikka Tenancy (Acquisition and Regulation) Act, 1981 (WestBengal Act 37 of 1981).

254. The West Bengal Land Holding Revenue (Amendment) Act, 1982 (WestBengal Act 23 of 1982).

255. The Calcutta Thikka Tenancy (Acquisition and Regulation) (Amendment)Act, 1984 (West Bengal Act 41 of 1984).

256. The Mahe Land Reforms Act, 1968 (Pondicherry Act 1 of 1968).

257. The Mahe Land Reforms (Amendment) Act, 1980 (Pondicherry Act 1 of1981).]

1[257A. The Tamil Nadu Backward Classes, Scheduled Castes and ScheduledTribes (Reservation of Seats in Educational Institutions and of Appointmentsor Posts in the Services under the State) Act, 1993 (Tamil Nadu Act45 of 1994).]

2[258. The Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act4 of 1948).

259. The Bihar Consolidation of Holdings and Prevention of Fragmentation Act,1956 (Bihar Act 22 of 1956).

260. The Bihar Consolidation of Holdings and Prevention of Fragmention(Amendment) Act, 1970 (Bihar Act 7 of 1970).

261. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1970(Bihar Act 9 of 1970).

1. Ins. by the Constitution (Seventy-sixth Amendment) Act, 1994, w.e.f. 31-8-1994.2. Ins. by the Constitution (Seventy-eight Amendment) Act, 1995, w.e.f. 30-8-1995.

Sch. IX

397

262. The Bihar Consolidation of Holdings and Prevention of Fragmentation(Amendment) Act, 1973 (Bihar Act 27 of 1975).

263. The Bihar Consolidation of Holdings and Prevention of Fragmentation(Amendment) Act, 1981 (Bihar Act 35 of 1982).


265. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act, 1989(Bihar Act 11 of 1989).

266. The Bihar Land Reforms (Amendment) Act, 1989 (Bihar Act 11 of 1990).

267. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition ofTransfer of Certain Lands) (Amendment) Act, 1984 (Karnataka Act 3 of1984).


269. The Kerala Land Reforms (Second Amendment) Act, 1989 (Kerala Act2 of 1990).








277. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) (Amendment)Act, 1989 (Tamil Nadu Act 30 of 1989).



280. The West Bengal Land Reforms (Second Amendment) Act, 1986 (WestBengal Act 19 of 1986).

Ninth Schedule


281. The West Bengal Land Reforms (Third Amendment) Act, 1986 (WestBengal Act 35 of 1986).



284. The West Bengal Land Reforms Tribunal Act, 1991 (West Bengal Act12 of 1991).

Explanation:— Any acquisition made under the Rajasthan Tenancy Act, 1955(Rajasthan Act III of 1955), in contravention of the second proviso to clause(1) of Article 31A shall, to the extent of the contravention, be void.]

Comments

The 9th Schedule is a Schedule of necessity. During the time when theParliament has no right to make any law which violates the fundamental rights,the Courts have been declaring the laws made or suspected to have been madein opposition to the fundamental right are declaring invalid. Hence there arosea necessity of protecting them from Courts’ interference under Art. 31-B.Accordingly as required under Art. 31-B the Government has come to includeseveral laws in this 9th Schedule to provide them immunity from the interferenceof the Courts. After the introduction of the concept of basic features suchnecessity has ceased to be of any significance. There are altogether 284enactments which have secured immunity under this Schedule. In recent timesno additional enactments are being added to this list.

——

Sch. IX

1[TENTH SCHEDULE

[Articles 102(2) and 191(2)]

Provisions as to disqualification on ground of defection

1. Interpretation:— In this Schedule, unless the context otherwiserequires,—

(a) “House” means either House of Parliament or the Legislative Assemblyor, as the case may be, either House of the Legislature of a State;

(b) “legislature party”, in relation to a member of a House belonging toany political party in accordance with the provisions of paragraph 2or 2[x x x] paragraph 4, means the group consisting of all the membersof that House for the time being belonging to that political party inaccordance with the said provisions;

(c) “original political party”, in relation to a member of a House, meansthe political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2;

(d) “paragraph” means a paragraph of this Schedule.

2. Disqualification on ground of defection:— (1) Subject to the provisionsof 3[paragraphs 4 and 5], a member of a House belonging to any political partyshall be disqualified for being a member of the House—

(a) if he has voluntarily given up his membership of such political party;or

(b) if he votes or abstains from voting in such House contrary to anydirection issued by the political party to which he belongs or by anyperson or authority authorised by it in this behalf, without obtaining,in either case, the prior permission of such political party, person orauthority and such voting or abstention has not been condoned bysuch political party, person or authority within fifteen days from thedate of such voting or abstention.

Explanation:— For the purposes of this sub-paragraph,—

(a) an elected member of a House shall be deemed to belong to the politicalparty, if any, by which he was set up as a candidate for electionas such member;

(b) a nominated member of a House shall,—

(i) where he is a member of any political party on the date of hisnomination as such member, be deemed to belong to such politicalparty;

1. Added by the Constitution (Fifty-second Amendment) Act, 1985, Sec.6 (w.e.f. 1-3-1985).2. The words "paragraph 3 or, as the case may be" omitted by the Constitution (Ninety-

first Amendment) Act, 2003, w.e.f. 2-1-2004.3. Subs. for "paragraphs 3, 4 and 5" by the Constitution (Ninety-first Amendment) Act,

2003, w.e.f. 2-1-2004.

399


(ii) in any other case, be deemed to belong to the political party of whichhe becomes, or, as the case may be, first becomes, a member beforethe expiry of six months from the date on which he takes his seatafter complying with the requirements of Article 99 or, as the casemay be, Article 188.

(2) An elected member of a House who has been elected as such otherwisethan as a candidate set up by any political party shall be disqualified for beinga member of the House if he joins any political party after such election.

(3) A nominated member of a House shall be disqualified for being a memberof the House if he joins any political party after the expiry of six months fromthe date on which he takes his seat after complying with the requirements ofArticle 99 or, as the case may be, Article 188.

(4) Notwithstanding anything contained in the foregoing provisions of thisparagraph, a person who, on the commencement of the Constitution (Fifty-secondAmendment) Act, 1985, is a member of a House (whether elected or nominatedas such) shall,—

(i) where he was a member of political party immediately before suchcommencement, be deemed, for the purposes of sub-paragraph (1)of this paragraph, to have been elected as a member of such Houseas a candidate set up by such political party;

(ii) in any other case, be deemed to be an elected member of the Housewho has been elected as such otherwise than as a candidate set upby any political party for the purposes of sub-paragraph (2) of thisparagraph or, as the case may be, be deemed to be a nominated memberof the House for the purposes of sub-paragraph (3) of this paragraph.

3. 1[xxx]

4. Disqualification on ground of defection not to apply in case ofmerger:— (1) A member of a House shall not be disqualified under sub-paragraph(1) of paragraph 2 where his original political party merges with another politicalparty and he claims that he and any other members of his original political party—

(a) have become members of such other political party or, as the casemay be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separategroup,

and from the time of such merger, such other political party or newpolitical party or group, as the case may be, shall be deemed to bethe political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party forthe purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the mergerof the original political party of a member of a House shall be deemed to have

1. Paragraph 3 omitted by the Constitution (Ninety-first Amendment) Act, 2003, w.e.f.2-1-2004.

Sch. X

401

taken place if, and only if, not less than two-thirds of the members of thelegislature party concerned have agreed to such merger.

5. Exemption:— Notwithstanding anything contained in this Schedule, aperson who has been elected to the office of the Speaker or the Deputy Speakerof the House of the People or the Deputy Chairman of the Council of Statesor the Chairman or the Deputy Chairman of the Legislative Council of a Stateor the Speaker or the Deputy Speaker of the Legislative Assembly of a State,shall not be disqualified under this Schedule,—

(a) if he, by reason of his election to such office, voluntarily gives upthe membership of the political party to which he belonged immediatelybefore such election and does not, so long as he continues to holdsuch office thereafter, rejoin that political party or become a memberof another political party; or

(b) if he, having given up by reason of his election to such office hismembership of the political party to which he belonged immediatelybefore such election, rejoins such political party after he ceases tohold such office.

6. Decision on questions as to disqualification on ground of defection:—(1) If any question arises as to whether a member of a House has becomesubject to disqualification under this Schedule, the question shall be referred forthe decision of the Chairman or, as the case may be, the Speaker of such Houseand his decision shall be final:

Provided that where the question which has arisen is as to whether theChairman or the Speaker of a House has become subject to such disqualification,the question shall be referred for the decision of such member of the Houseas the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relationto any question as to disqualification of a member of a House under this Scheduleshall be deemed to be proceedings in Parliament within the meaning of Article122 or, as the case may be, proceedings in the Legislature of a State withinthe meaning of Article 212.

7. Bar of jurisdiction of Courts:— Notwithstanding anything in thisConstitution, no Court shall have any jurisdiction in respect of any matterconnected with the disqualification of a member of a House under this Schedule.

8. Rules:— (1) Subject to the provisions of sub-paragraph (2) of thisparagraph, the Chairman or the Speaker of a House may make rules for givingeffect to the provisions of this Schedule, and in particular, and without prejudiceto the generality of the foregoing, such rules may provide for—

(a) the maintenance of registers or other records as to the political parties,if any, to which different members of the House belong;

(b) the report which the leader of a legislature party in relation to a memberof a House shall furnish with regard to any condonation of the naturereferred to in clause (b) of sub-paragraph (1) of paragraph 2 in respectof such member, the time within which and the authority to whomsuch report shall be furnished;

Provisions as to disqualification on ground ...Sch. X

CONST-26


(c) the reports which a political party shall furnish with regard to admissionto such political party of any members of the House and the officerof the House to whom such reports shall be furnished; and

(d) the procedure for deciding any question referred to in sub-paragraph(1) of paragraph 6 including the procedure for any inquiry which maybe made for the purpose of deciding such question.

(2) The rules made by the Chairman or the Speaker of a House undersub-paragraph (1) of this paragraph shall be laid as soon as may be after theyare made before the House for a total period of thirty days which may becomprised in one session or in two or more successive sessions and shall takeeffect upon the expiry of the said period of thirty days unless they are soonerapproved with or without modifications or disapproved by the House and wherethey are so approved, they shall take effect on such approval in the form inwhich they were laid or in such modified form, as the case may be, and wherethey are so disapproved, they shall be of no effect.

(3) The Chairman or the Speaker of a House may, without prejudice tothe provisions of Article 105 or, as the case may be, Article 194, and to anyother power which he may have under this Constitution direct that any wilfulcontravention by any person of the rules made under this paragraph may bedealt with in the same manner as a breach of privilege of the House.]

Comments

The 10th Schedule:– Provision as to disqualification on grounds of defection– Several members of the Parliament and legislators began crossing the floorand thus creating instability in the Governments. This feature has becomewidespread after emergence of fractured Parliament and Legislatures. In orderto prevent floor crossing the law otherwise known as anti-defection legislationinstead of being enacted as an independent enactment is enacted as Constitutionalamendment by including 10th Schedule to the Constitution. A person disqualifiedfor having defected his party not only loses his seat in the Parliament or theLegislature as the case may be but also his position as a holder of office ofprofit.

Speaker’s decision on defection is open to judicial review but on very limitedgrounds such as being offensive to principles of natural justice. Jagjit Singhv. State of Haryana & Ors., AIR 2007 SC 590.

Giving outside support is different from joining political party. Jagjit Singhv. State of Haryana & Ors., AIR 2007 SC 590.

Caselaw

Procedure explained – Congress Member of the Council contesting asindependent in Parliamentary election disqualified. Dr. Mahachandra Prasad Singhv. Chairman, Bihar Legislative Council and others, AIR 2005 SC 69.

------

Sch. X

1[ELEVENTH SCHEDULE

[Article 243G]

1. Agriculture, including agricultural extension.2. Land improvement, implementation of land reforms, land consolidation and

soil conservation.3. Minor irrigation, water management and watershed development.4. Animal husbandry, dairying and poultry.5. Fisheries.6. Social forestry and farm forestry.7. Minor forest produce.8. Small scale industries, including food processing industries.9. Khadi, village and cottage industries.

10. Rural housing.11. Drinking water.12. Fuel and fodder.13. Roads, culverts, bridges, ferries, waterways and other means of communication.14. Rural electrification, including distribution of electricity.15. Non-conventional energy sources.16. Poverty alleviation programme.17. Education, including primary and secondary schools.18. Technical training and vocational education.19. Adult and non-formal education.20. Libraries.21. Cultural activities.22. Markets and fairs.23. Health and sanitation, including hospitals, primary health centres and dispensaries.24. Family welfare.25. Women and child development.26. Social welfare, including welfare of the handicapped and mentally retarded.27. Welfare of the weaker Sections, and in particular, of the Scheduled Castes

and the Scheduled Tribes.28. Public distribution system.29. Maintenance of community assets.]

Comments

The 11th Schedule:-- This Schedule enumerates the several subjects whichhave to be transferred from the jurisdiction of the Government to the jurisdictionof the Panchayat.

——

1. Added by the Constitution (Seventy-third Amendment) Act, 1992, w.e.f. 24-4-1993.

403

1[TWELFTH SCHEDULE

[Article 243W]

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and commercial purposes.

6. Public health, sanitation conservancy and solid waste management.

7. Fire services.

8. Urban forestry, protection of the environment and promotion of ecologicalaspects.

9. Safeguarding the interests of weaker sections of society, including thehandicapped and mentally retarded.

10. Slum improvement and upgradation.

11. Urban poverty alleviation.

12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials and burial grounds; cremations, cremation grounds and electriccrematoriums.

15. Cattle ponds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street lighting, parking lots, bus stops and publicconveniences.

18. Regulation of slaughter houses and tanneries.]

Comments

The 12th Schedule:-- This Schedule enumerates the several subjects whichhave to be transferred from the jurisdiction of Government to the jurisdictionof Municipalities.

——

1. Ins. by the Constitution (Seventy-fourth Amendment) Act, 1992, w.e.f. 1-6-1993.

404

405

9th schedule 8

Abolishing of posts 18

Abolition— of untouchability 19

— titles 19

Acquisition of estates 31

Acquittal 13,54,154

Acting Chief Justice— appointment of —151

Administrative Tribunals 248

Administration— over major ports and

aerodromes 4

Administrative relations 203

Advocate 22

Advocate-General 118— for the State 116

Aerodromes 294,295

Affirmations 338

Age— constitutional requirements 1

Agreements 293

Agricultural income 296

Agriculture 43

Air hostesses 46

Allegations of a Judge 15

All-India services 236

Allocation of seats— in the Council of States 341

Allotment— of petrol outlets 228

Alteration of areas 9

Amendment— of the Constitution 301

Anglo-Indian 296

Anglo-Indian community 257,259,261

Animal husbandry 43

Annual financial statement 81

Anticipatory bail 97

Appeal against acquittal 13

Appellate jurisdiction 94

Application— to Union territories 178

Appointment as Governor— qualifications for— 110

Appointment— as Governor 110

— and term of office ofmembers 241

— of a Commission toinvestigate 266

— of a Governor 126

— of acting Chief Justice 151

— of acting Chief Justice 91

— of ad hoc, Judges 92

— of Arbitrator 97

— of Attorney General 2

— of Commission for scheduledareas 4

— of District Judges 161

— of Governor 110

— of High Court Judge 6

— of Language Commission 3

— of National Commissionsfor S.Cs., S.Ts. & B.Cs. 4

— of Prime Minister 2

Appropriate Legislature 251

Appropriation Bills 82,137

Arrest 25

Art.226 6

Article 296

Assent to Bills 2,81,135,144

Assent— to Bills 2,81,135,144

SUBJECT INDEX


Attorney General 2,69

Attorney-General for India 59

Audit reports 108

Auditor-General of India 106

Autonomous body 13

Backward Classes 2,266

Bail 24

Bar of Court’s jurisdiction 2

Bar of jurisdiction 2

Basic structure 7,9,10

Bills reserved for consideration 135

Bills 77,132— assent to— 2,81,135,144

Black marketing 26

Board of Control for Cricket inIndia 13

Bona vacantia 224

Borrow 296

Borrowing— by States 222

Boundaries 9

Callings 213

Caste certificate 267

Change of religion 14

Cheque bouncing case 154

Chief Justice 15— appointment of acting— 91

Chief Minister 117

Child offenders 23

Citizenship 11— at the commencement of the

Constitution 11

— rights of— 11,12

Civil arrest 26

Clause 296

Code of Civil Procedure, 1908 352

Code of Criminal Procedure, 1898 352

Commerce 180,230

Common law right 7

Community 2

Compassionate appointment 18,19

Compensation 23,40— for land 229

Composition— of Municipalities 182

Comptroller and Auditor-General 337

Comptroller and Auditor-Generalof India 106,323

Compulsory— acquisition of property 31

Concurrent list 378

Conditional legislation 196

Conduct of Business 73,127

Confession 26

Consolidated Funds 216

Constituent Assembly 7

Constitution— amendment of— 301

— citizenship at thecommencement of— 11

— of High Courts 148

— of Municipalities 181

Constitutional 280— bar as to the jurisdiction

of Courts 1

— machinery failure 167

— prescriptions as regards time 4

— remedies 33

— validity 102

Contempt 148

Contempt of Court 154

Continental shelf and resources 225

Contingency Fund 208,216

Contracts 223,226

407Subject Index

Conviction— for offences 22

Co-operative society 13

Co-ordination between States 205

Corporation 13

Corporation tax 296

Corresponding Province 296

Council of Ministers 55,112

Council of States— composition of the — 65

Court(s) of Record 147— Supreme Court to be a—92

Court’s jurisdiction 2

Courts not to inquire into— proceedings of the Legislature 141

Criminal appeal 103

Criminal matters 95

Custody 216— of suitors’ deposits 216

Daily wage employees 15

Death sentence 23

Debt 297

Defection 399

Delegated legislation 196

Delhi 165

Delimitation 67

Demands for grants 2

Democratic 7

Departmental enquiry 26

Deportation 26

Deputy Chairman 337

Deputy Speaker 5,71,125,127,334,337

Detention 4,25,26

Devaswom Funds 220

Directive Principles— of State Policy 39

Disciplinary proceedings 4

Discrimination on groundsof religion 16

Discriminatory enactment 15

Disinvestment 13

Dismissal 234

Disqualification of M.Ps. 2

Disqualification— for appointment 292

— for membership 185

Dissolution 6,68

District 180

District judges— to the judicial service 162

District planning— committee for— 188

DNA test 24

Doctrine— of sovereign immunity 228

Duration of Panchayat/Municipality 6

Duration— of Municipalities 184

Early childhood 42

Education 14,22,41,155

Education to children 42

Educational grants 261

Educational institutions 29,30

Educational qualifications 18

Educational Rights 29

Eighth Schedule 382

Election Commission 252

Election of President 47

Election petition 255

Election(s) 67,253— continuance of existing

laws— 192

— district-wise 16

— elections to— 187


— of President 46

— of President 5

Electoral matters 180,255

Electricity 218

Electronic media 155

Eleventh Schedule 403

Emergency(ies) 2,284

Emergency condition 147

Emergency in the State 287

Emergency provisions 276

Employment of woman 15

Employment(s) 15,213— of children in factories 27

Enrichment tax 208

Environment 24,43

Environmental directions 24

Equal justice 41

Equality before law 13

Equality 7,15— of opportunity 17

Equity 14

Escheat 225

Establishment— of new States 9

Estate duty 297

Estimates 136

Evidence 155

Excess grants 137

Exclusive economic zone 225

Executive 9,44

Executive power 46

Exercise— of Legislative powers 283

Existing Law 297

Exploitation 27

Expunction of remark 148

Fair trial 24

Faith healing 28

Federal Court 96,297

Fifth Schedule 343

Finance Commission 177,186,215,216

Financial Bills 84,139

Financial business 140

Financial emergency 286,287,288

Financial Matters 81,136

Financial Provisions 216

First Schedule 326

Flag Code 14

Forced labour 27

Foreign precedents 99

Foreign State 300

Forests 43

Fourth Schedule 341

Fraternity 7

Free legal aid 41

Free profession 27

Freedom of conscience 27

Freedom of press 21

Freedom of speech 20

Freedom of trade 230

Freedom 20— as to attendance at religious

instruction 29

— as to payment of taxes 29

— to manage religious affairs 28

Fundamental Duties 45

Fundamental Right2,7,13,14,22,24,36,39

Gender equality 15

General Clauses Act, 1897 300

Goods 297

Government Business 60— conduct of— 117

Election(s) (Contd...)

409Subject Index

Governor(s) 2,5,112,117,289— appointment of— 110

— discharge of the functions— 111

— legislative Power of— 146

— oath or affirmation by— 111

— of States 109

— power of— 111

— term of office of— 110

Governor’s office— conditions of— 110

Governor’s order— for dissolution of Assembly 2

Governors of States 333

Gram Panchayats 190

Gram Sabha 171

Guarantee 297

Handcuffing 23

High Court Judge— appointment of— 6

— retirement of— 6

High Courts 297,334— appointment and conditions of

the office of a Judge 148

— appointment of retired Judgesat sittings of High Courts 152

— common 158

— constitution of— 148

— extension of jurisdiction 158

— for two or more States 158

— for Union territories 170

— jurisdiction 152

— language of— 272

— power of superintendenceover all courts 155

— to be Courts of Record 147

— transfer of a Judge 151

— writs 153

Hindi language 274,325

Hindu temples 220

House of the People— composition of the— 66

Houses— joint sitting 78

Human rights 23

Humane conditions 41

Income tax 208

Indian State 297

Institutional preference 16

Intercourse 230

Interlinking of rivers 205

International peace 44

Interpretation 104,163,300

Inter-State council 205

Inter-State dispute 2,93

Inter-State river disputes 100

Inter-State rivers or river valleys 205

Inter-State sharing of river waters 2

Judges— appointment of ad hoc— 92

— salaries 91,150

Judicial review 34,160

Judiciary 9,44

Jurisdiction 96

Jurisdiction of the High Court 155

Justice 7

Language(s) 270,273,382— of a State 271

— to be used in the Legislature 140

Law 14

Laws in force 14

Legislation— residuary powers of— 197

Legislative Assemblies 120

Legislative Councils 119,121


Legislative Powers 195

Legislative Procedure 77,132

Legislative Relations 195

Legislators 2

Legislatures 2,119

Legislatures of States 198

Liabilities 223

Liberty 7

Life of Parliament 5

Limitation 15

Limitation Act 15

Linguistic minorities 274

Living wage 41

Locus standi 96

Lok Sabha 5,62,143,337

Lotteries 155

Lottery tickets 93

M.Ps. 2

Major port 295

Management— of industries 42

Maternity relief 41

Member of the Parliament 5

Members 73— conduct of— 127

— disqualifications of— 128

— disqualifications of— 73

— salaries and allowancesof— 76,131

Metropolitan area 180

Metropolitan planning 189

Minerals 355

Ministers 5,55,69,112— other provisions— 113

Minorities 30

Minority institution 31

Money Bills 5,79,80,132,133,134,143

Money-lending 355

Monuments 43

Mother-tongue 274

Municipal area 180

Municipalities 180,186,190,217,404— audit of accounts of— 187

— duration of— 184

— powers, authority andresponsibilities of— 185

Municipality 6,181

National Anthem 31,45

National Commission— for Scheduled Castes 262

— for Scheduled Tribes 264

National emergency 287

National Flag 45

National flag guidelines 46

National importance 43

Natural justice 15,16

Natural right 12

Net proceeds 214

New States— establishment of— 9

— formation of— 9

Newspaper industry 154

Ninth Schedule 383

Non-tribals 355

Notice for the removal— of Vice-President 5

Notice of impeachment— of President 5

Oaths 338

OBC reservations 34

Obligations 223

Offences 352

Office of profit 64,75

Official language 270,271,272

411Subject Index

Ordinance(s) 5,146

Organisation— of village panchayats 41

Original jurisdiction— of the Supreme Court 93

Panchayat(s) 6,171,181,403— audit of accounts of — 177

— composition of— 172

— continuance of existing laws— 179

— duration of— 175

— elections to— 177

— powers, authority andresponsibilities of— 176

— taxes by— 176

Parliament 2,5,6,65,230,291— Constitution of— 65

— courts not to inquire intoproceedings of— 86

— duration of Houses of— 68

— immunities 76

— joint session of— 2

— language to be used in— 86

— officers of— 69

— power of— 76,236

— Powers and privileges 64

— privileges 76

— procedure in— 82

— qualification for membershipof— 68

— restriction on discussion — 86

— secretariat of— 72

— sessions of— 68

— to regulate the right ofcitizenship 12

Part 297

Participation of workers 42

Passing of Bills 77

Payment of taxes 29

Penalty 5

Pension(s) 220,297

Permanent Judge 150

Personal liberty 23

PIL 154

Plea of promissory estoppel 16

Population 181

Power— of Legislature 254

— of Parliament 35,230

— to carry on trade 225

Preamble 7

President 2,61,289,333— election of — 5,46

— legislative powers of the— 88

— notice of impeachmentof— 5

— oath or affirmation by the — 49

— power of— 169

— power to adapt laws 321

— power to grant pardons 54

— procedure for impeachmentof the— 49

— qualifications for election as— 46

— right of to address 69

— special address by the— 69

— term of office of— 48

— to make regulations for certainUnion territories 169

— to promulgate ordinances 88

— to remove difficulties 324

President’s office— conditions of— 48

President’s rule 6

Presidential notification 5

Presidential reference 101


Presidents Powers 6— administration over major ports

and aerodromes 4

— all contracts shall be expressed tohave been signed 3

— appointment of Commission forscheduled areas 4

— appointment of Comptroller andAuditor General 3

— appointment of ElectionCommission 4

— apportionment of expenditure ofStates which have a commonGovernor 3

— appointment of FinanceCommission 3

— appointment of Governors 3

— appointment of Judges 3

— appointment of LanguageCommission 4

— appointment of National Commi-ssions for S.Cs., S.Ts. & B.Cs. 4

— appointment of Union PublicService Commission 4

— appointments 4

— approval of the rules made bySupreme Court for itself 3

— approval to the salaries of thestaff of Supreme Court 3

— assent to the laws made by theStates on subjects in concurrentlist 3

— assent to the proposals of theStates to impose tax on waterand electricity 3

— consent for appointment of ad hocJudges 3

— effective Consideration of appeal(memorial) 4

— money bill cannot be introduced inParliament withoutrecommendation 3

— proclamation of emergency in thecountry 4

— proclamation of emergency in theStates 4

— proclamation of financialemergency 4

— service rules shall be framed 4

— to appoint administrators forUnion Territories 3

— to decide disputes between theadministrator of Union territoriesand his Ministry 3

— to dispense with the enquiryin the interests of security 4

— to entrust duties to any personotherwise not provided for 3

— to make regulations for peaceand good Government 3

— to make rules as regards thepersons who are elected totwo or more States 3

— to promulgate ordinances 3

— to transfer Judges of theHigh Courts 3

— Presidential reference toSupreme Court 3

Press 21

Preventive detention 4,26,321

Primary schools 353

Prime Minister 2,61

Principle of escheat 225

Prisoner 14

Procedure Generally 85,139

Procedure in Financial Matters 136

Presidents Powers (Contd...)

413Subject Index

Procedure in Legislature 136

Proceedings 226

Proclamation of Emergency 298

Proclamation— of emergency 276,279,298,280

— of emergency in the country 4

— of emergency in the States 4

— of financial emergency 4

Professions 213

Prohibition— of employment of children in

factories 27

— of traffic in human beings 27

Promotion 18

Property tax 217

Property 219,223— accruing by escheat 224

Protection— against arrest and detention 25

— Governors 289

— of interests of minorities 29

— of life 23

— of President 289

— personal liberty 23

— Rajpramukhs 289

Public accounts 216

Public assistance 41

Public employment 17

Public hanging 23

Public health 43

Public law 154

Public notification 298

Public servants 216

Public Service Commissions6,240,242,246,323

— functions of— 244

Publication of laws 356

Qualification for appointment— of Supreme Court Judge 5

Railway 298

Rajpramukhs 289

Rajya Sabha 5,143

Recruitment— of district judges 162

Re-election 48

Regional funds 353

Regional languages 271

Religion 14,27

Religious affairs 28

Religious instruction 29

Religious practice 28

Remunerative political post 292

Republic 7

Res judicata 99

Reservation of seats 183,256

Reservation 4,17— of seats 173,260

Reserved forest 350

Restriction— on discussion in the

Legislature 141

Retired Judges 92

Retirement age 46

Retirement— of High Court Judge 6

Revenue 9

Right(s) 223— against Exploitation 27

— of citizenship 11,12

— of minorities 30

— of prisoner 14

— to Constitutional Remedies 33

— to education 25

— to equality 13


— to Freedom 20

— to Freedom of Religion 27

— to life 24

— to marry 24

— to property 229

— to vote 7

— to work 41

Rivers 205

Ruler 298

Rules of Court 102

Rules of procedure 85

Saving of Certain Laws 31

Saving of laws 33

Savings 214

Schedule 298

Scheduled Areas 193,266,343,34

Scheduled Caste status 17

Scheduled Castes 2,17,42,256,258, 260,267,298

— National Commission for— 262

Scheduled Tribes 2,42,256,258,260, 266,267,298,343

— National Commission for— 264

Second Schedule 333

Secular 7

Secularism 9

Securities 298

Security 44

Service tax 209

Service— recruitment and conditions of— 232

— under the union and the states 232

Seventh Schedule 367

Sexual harassment 23

Single post 19

Sixth Schedule 346

SLP 97

Socialist 7

Sovereign 7

Speaker 5,71,125,127,334

Special Court 148

Special directives 273

Special leave to appeal— by the Supreme Court 97

Speech(es) 2,20

Stamp duties 209

Standard of living 43

State Assembly 5

State Election Commission 184

State Legislature 119,122,127— officers of— 124

— powers, privileges andimmunities of— 131

State Legislatures 291

State list 373

State taxation 217

State(s) 13,203,214,280— Advocate-General for— 116

— borrowing by— 222

— executive power of— 109

— extent of executive power of— 111

— High Courts— 147

States and the Union— obligation of— 203

Statutory right 7

Sub-clause 298

Subordinate courts 161— control over— 163

Succession— assets 223

— liabilities 223

— obligations 223

— rights 223

— to property 223

Suits 223,226,352

Right(s) (Contd...)

415Subject Index

Supreme Court Judge— qualification for appointment

of— 5

Supreme Court 334— ancillary powers of— 99

— appellate jurisdiction of— 95

— conferment 98

— enlargement of the jurisdiction 98

— establishment and constitutionof— 89

— jurisdiction 101

— law declared by— 99

— original jurisdiction of the— 93

— power of President 101

— review of judgments 98

— seat of — 93

— special leave to appeal by the— 97

— to be a Court of Record 92

Suspension 283,284

TADA 15

Tax on income 299

Tax on the sale 299

Taxation 219,298

Taxes 210,211,213,218— for the maintenance of schools 354

— on animals, vehicles and boats 354

— on professions, trades, callingsand employments 354

— on the entry of goods 354

Taxing power 9

Temporary, Transitional and specialProvisions 303

Tenth Schedule 399

Territorial waters 225

Territory of India 10

The Executive 46,109

The Governor 109

The Legislature— Courts not to inquire into— 142

— language to be used— 140

— restriction on discussion— 141

The President 46

The President of India— duties and functions of— 2

The State(s) 39,40,43,109,326

The Supreme Court— language of— 272

The Union Territories 164

Third Schedule 338

Time 4

Titles 19

Trade(s) 213,225,230

Tramway 298

Transfer of certain cases 98

Transitional provisions 238

Treaties 2,293

Trial 352

Tribal Areas 193,346

Tribunals 248— for other matters 249

Twelfth Schedule 404

Under-trial prisoners 24,101

Uniform civil code 42

Union 203

Union Judiciary 89

Union list 367

Union taxation 219

Union territory(ies) 158,299,331— administration of— 164

— application to— 178,187

— High Courts for—170

Untouchability 19

Vacation of seats 128

Validation of certain Acts 33


Vice-President 46,50,51,52,53— notice for the removal of— 5

Vigilance enquiry 116

Village panchayats 41

Votes on account 84,138

Voting in Houses 73

Wards Committees— constitution and composition

of— 182

Waters— disputes relating to— 205

Weaker sections 42

Welfare of the people 39

Wild life 43

Woman prisoner 23

Work 41

Writ jurisdiction 101

——

India Constitution

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Transcript of India Constitution