Constitution

1.
Position and Powers of the President

India has a Parliamentary form of Government which is based on the British system therefore,
there are two Houses of Parliament in India and the President which together comprise of the
Parliament. In India, the President has the same position as the Queen or King of England
enjoys and therefore he is the nominal or titular Head of the State. As the Head of the State, he
enjoys a wide variety of powers and thus the Constitution of India also provides many
provisions about the position of the President of India.
The President of India
Article 52 of the Indian Constitution provides that there shall be a President of India. Thus, the
position of the President is provided for in the Constitution. Under Article 53, the executive
powers of the Union are vested in the President and therefore, he plays an important role in the
governance of India.
How is the President Elected?
In India, the President is elected by elections. These elections of President are indirect in nature
which means that the people of India do not directly vote for the President but the
representatives of the people vote for him.
What are the Qualifications of a President?
In Order to contest the elections of a president, there are certain qualifications which a person
has to possess in order to be eligible for the position of President of India. Article 58 of the
Constitution provides that for a person to be eligible for the post of President of India should
be a citizen of India, is at least 35 years of age and is qualified to be a member of the Lok Sabha.
Also, if a person holds any office of profit, then he cannot be allowed to be elected as the
President.
A President is conferred with Executive powers of the Union and therefore, he cannot be a
member of any State or Union Legislature and if a person who is elected as the President is a
member of a legislature at the time of his election, he is deemed to have vacated his seat when
he enters the office of President. (Article 59)
What is the manner of Election of the President?
As stated earlier, the election of President is not done by direct votes of the people. Article 54
provides the manner of election of the President. This article provides that there should be an
Electoral college which includes the Elected Members of the Houses of Parliament and the
Elected Members of the State Legislative Assemblies. Thus, in the Electoral College, the
nominated members of the legislature are not allowed to vote for President.
The system of Proportional voting is adopted for this election, in which the number of votes is
provided in proportion to the population of the state in case of State Legislature Members and
the Members of Parliament get their number of votes by dividing the total votes of the State
Legislature with the total number of elected members of Parliament.
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For e.g. to find the number of Votes for the members of Legislature of a State, the total
population of the State will be divided by the number of elected members. The quotient which
will be obtained will be divided by 1000 to find out the multiples of 1000. If the quotient is
10,55,000 then after dividing it by 1000, we get 1055. So each member of the Legislature will
get 1055 votes. Similarly to get the votes for Members of Parliament, the total votes of all the
State legislature will be divided by the total number of members of Parliament who have been
elected.
There is a single transferable vote which is cast by every elected member of the legislature
through a secret ballot. The representatives of the People have to give their votes on the basis
of preference. For e.g., if there are four candidates for the election A, B, C and D then each
member will select his first preference, the second preference and so on. If after the count no
majority is established, then the candidate with the least amount of votes will be removed and
his votes will be transferred to the other candidates. So, if C gets the least number of votes his
votes will be transferred to A, B and d based on preference. This will continue until one
candidate secures majority and he will be elected as the President.
Who administers the Oath of the President?
After being elected, the President has to take an oath before entering his office. This oath is
administered by the Chief Justice of India and if he is not able to administer it by some reason,
then the senior most judge of the Supreme Court administers the Oath. (Article 60)
What is the tenure of the President?
The person after being elected takes charge of the office of President. Article 56 provides the
provision regarding tenure or the term of the President. According to this Article, the President
holds his office for a period of 5 years from the date of entering the office. The President can
continue to hold his office even after the end of five years till the time the next elected person
takes charge of the office.
A person who has been elected President once can also be re-elected and therefore the tenure
of the President can be more than 5 years if he is re-elected.(Article 57)
A President also has the option of resigning from his office even before his term ends. He can
resign by writing his intention to the Vice President.
What is the meaning of Impeachment?
Article 61 provides the provision of impeachment of the President. It means that the President
can be removed from his post even before the expiry of his term and this can be done in cases
where he violates the Constitution.
For impeaching a President, a charge can be brought up in either Houses of Parliament and it
should be presented in the form of a proposal which is to be signed by at least 1/4th of the total
members of the house. After the proposal is made, the House votes on it and if it is passed by a
2/3rd majority the other House starts an investigation regarding the violation. If after the
investigation, the house passes the proposal with a 2/3rd majority then it will lead to the
impeachment of the President which means he/she will have to leave his office.
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What are the Powers of President?
As the Head of the Executive the President is conferred with a wide variety of powers which
are provided to him by the Constitution. The powers of the President can be classified into
several categories and
Executive Powers
As the Executive Head of the State, the President enjoys many executive powers. All the actions
and decisions of the Government are taken in the name of the President.
Head of the Armed Forces
Under Article 53, the supreme command of the armed forces of the country is vested in the
President. Thus, the President has the power to declare war with any other country and also the
power to conclude peace. This is done under the regulation of Parliament.
Power to make appointments
The President has the power to appoint many constitutional officers and the members of the
Union Government. They include:
The Prime Minister
Chief Justice of India
Attorney General of India
Comptroller and Auditor General of India
Governors of States
Chairperson of the National Human Rights Commission
Chief Election Commissioner and other Election Commissioners
Administrators of Union Territories
Powers relating to the Council of Ministers
The President has to exercise his Executive powers on the advice of the Council of Ministers so he is
subjected to some limitations in exercising powers. But he has the power to send back the
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recommendation of the council for reconsideration. The council may or may not accept such a
recommendation. So, the President while being the Executive head in name, the actual power resides
with the Council of Ministers headed by the Prime Minister.
But despite such limitations, the Prime Minister also has certain duties which he has to fulfil towards
the President and it includes, The duty to communicate all the decisions made by the council on the
administration and legislation of the country, the duty to such information as the President may demand
etc.
Legislative Powers
The President despite being the executive head of the State, also possess many legislative powers which
are important for the legislation of the country.
Assent of the President
For any bill to get the sanction of law, it has to receive the assent of the President. Thus only when the
President gives his assent to a bill which has been passed by both the houses of Parliament, the bill can
become a valid law. This means that the President is an integral part of the Parliament in India.
The President also possess the power to veto the bill which is presented to him. The veto means that the
President has the power to send the bill back to the Parliament if the President thinks that some
reconsideration should be made in the bill. But if the Parliament sends the bill again without any changes
then the President has to give his assent to the bill.
In some cases, the Bills presented to the Governor by the State Legislature may be reserved by the
Governor for the consideration of the president if that bill is not money bill of the State legislature. The
President can accept it or tell the Governor to send it back for reconsideration or he may direct him to
not send it back. If the State legislature again sends the bill and the Governor again reserves the bill for
consideration of the President, he is not obliged to accept that bill.
In case of a Money Bill, the previous recommendation of the President is necessary as a result, the
President may either give his assent or withhold it but he cannot send the bill back to the house for
reconsideration.
Power to Summon and Prorogue both the houses
The President has the power to summon either or both the Houses. The President also has the power to
dissolve the House of People in some cases. Prorogue means that the house is discontinued without
dissolving the House. The President also addresses the Houses after the general elections are concluded.
The President also possesses the power to summon a joint sitting of the house in cases of a deadlock in
which both houses sit together and the conflict is resolved.
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Power to Promulgate Ordinance
Under Article 123 of the Constitution, when the Parliament is not in session and there is an urgency,
the President has the power to issue an ordinance and such an ordinance has the force of law. This
ordinance remains valid for six weeks from the date when the Legislature resumes its session. he effect
of the ordinance is the same as the act of Legislature and thus the President is entrusted with great
legislative power.
Nominating Members to Parliament
The President has the power to nominate 2 members of the Anglo-Indian community in the House of
People if he thinks that they are not represented properly. He also the right to nominate 12 members in
the Council of States from the field of Arts, Literature, Science, Social Science etc.
Judicial Powers
The President of India is also provided with some judicial powers which can be exercised by him by
the authority given to him under Article 72 of the Constitution. Under article 72 the President has the
power to give reprieves, pardons, respites, remission and commutation of sentence.
Reprieve means that the sentence of a person can be suspended for a temporary period of time. In
pardons, the person files a mercy petition to the President and it is usually applied for in cases where
the Supreme Court upholds the Capital punishment. If the President grants the pardon, then the person
is relieved of any sentence and becomes free from any punishment. Under Respite, the person who is
held guilty is awarded less punishment while under remission his the amount of sentence awarded to a
person is reduced after it has been awarded by the Court. In Commutation, the punishment of a person
is changed from one to another. For. e.g., if the President approves the commutation of sentence, then
a person who has been awarded Capital Punishment may instead be awarded life imprisonment.
Power to declare Emergency
Under the Provisions of Article 352, 356 and 350 the president has the power to declare emergency
situation either in the whole territory of India or in any State or part of it.
There are 3 types of Emergency which can be declared by the president:
1. National Emergency (Article 352)

2. State Emergency (Article 356)
3. Financial Emergency (Article 360)
During Emergency, any rights including Fundamental rights except for Article 20 and 21 can be
suspended by the President and the Parliament can also pass a resolution to impose President’s rule in
any State.
Also, all the Government Contracts made by the Union are made in the name of the President and in
the absence of this requirement being fulfilled, a Government contract cannot be regarded as valid.
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Is the President a Titular head?
From the various positions, t can be seen that the President has been vested with many powers under
the Constitution and all the decisions and actions of the Government are taken in his name. But while
there are many powers which are enjoyed by the president, many of them are in actual practice, residing
with the Council of Ministers which is headed by the Prime Minister.
This position of the President is the same as the King of England and thus the Statement that the
President is the Nominal or Titular Head of the State is true and the Prime Minister is the actual head.
Conclusion
In India, the President is called the Executive head but he is only a titular head. Even though the
President is given many powers, many of them are not very effective for e.g. even if the president sends
a bill back to the Houses of Parliament for some modifications, the Parliament can resend it without
any modifications and the President is bound to give his assent.
Also, the President does not play an active role in the affairs of the State and the real Executive power
is vested in the Council of Ministers headed by the Prime Minister. So, the Prime Minister is the real
head of the state and the President is the head only in name.
2. Pardoning Powers Of President (Article 72)
Pardoning powers of the President is explained under Article 72 of the Constitution. The
president has the right to grant pardons, remit or commute the sentences of anyone convicted
of any crime. The power to pardon is exercised by the president on the advice of the Council
of Ministers. In India, the Governor has pardoning powers under Article 161.
Pardoning Power Of The President: Concept And Purpose
• What is Pardon?: A pardon is an act of mercy, forgiveness, clemency. The power of pardon
exists to avert injustice, whether from severe, unjust laws or from verdicts that result in
injustice; thus, it has always been understood that putting that power in a body other than the
judiciary is necessary.
• Pardon may substantially help in saving an innocent person from being punished due to
miscarriage of justice or in cases of doubtful conviction.
• The object of pardoning power is to correct possible judicial errors, for no human system of
judicial administration can be free from imperfections.
• According to Article 72, the President has the authority to give pardons, reprieves, respites, or
remissions of penalty, as well as to suspend, remit, or commute the sentence of anyone guilty
of a crime.
• The Governor of a state has a similar power under Article 161 of the Indian Constitution.
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Pardoning Powers of President - Article 72
• The President has the authority to give pardons, reprieves, respites, or remissions of
punishment, as well as to suspend, remit, or commute the sentence of anyone who has been
convicted of a crime:
o in all cases where the punishment or sentence is by a Court Martial;
o in all cases where the punishment or sentence is for an offence against any law
relating to a matter to which the executive power of the Union extends;
o in all cases where the sentence is a sentence of death.
• Thus, Article 72 empowers the President to grant pardons, etc. and to suspend, remit or
commute sentences in certain cases.
Pardoning Powers of Governor - Article 161
• The governor of a state also has pardoning power under Article 161 of the Constitution.
• As a result, the governor can award pardons, reprieves, respites, and remissions of
punishment to anyone guilty of breaking a state law, as well as suspend, remit, and commute
their sentence.
Role of the Council of Ministers

Role of the Council of Ministers
• In India, Article 72 of the Constitution of India empowers the President of India to grant
pardon,
• However, the President cannot act as per his own discretion and in this process he is to be
guided by the Home Minister and the council of ministers.
• The power to pardon rests on the advice tendered by the executive to the President, who
subject to the provisions of Article 74(1) must act in accordance with such advice.
Process of granting pardon in India

Process of granting pardon in India
• The process starts with filing a mercy petition with the President under Article 72 of the
Constitution.
• Such a petition is then sent to the Ministry of Home Affairs in the Central Government for
consideration.
• The abovementioned petition is discussed by the Home Ministry in consultation with the
concerned State Government.
• After the consultation, recommendations are made by the Home Minister and then, the
petition is sent back to the President.
Terms related to pardoning powers

Terms related to pardoning powers
Terms Details
• It removes both the sentence and the conviction and completely absolves the convict from all
Pardon sentences, punishments and Disqualifications.
• It implies a stay of the execution of a sentence (especially that of death) for a temporary period.
• Its purpose is to enable the convict to have time to seek pardon or commutation from the
Reprieve
President.
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• It denotes awarding a lesser sentence in place of one originally awarded due to some special fact
Respite such as the physical disability of a convict or the pregnancy of a woman offender.
• It implies reducing the period of a sentence without changing its character.

• For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous
Remission
imprisonment for one year.
• It denotes the substitution of one form of punishment for a lighter form.

• For example, a death sentence may be commuted to rigorous imprisonment, which in turn may
Commutation
be commuted to a simple imprisonment.
Comparison of Pardoning Powers of President and Governor

Comparison of Pardoning Powers of President and Governor
Details Powers of President Powers of Governor
• Article 72 • Article 161
Constitutional Provisions
• The power of the President to grant
pardon extends in cases where the • Article 161 does not provide any
Court martial punishment or sentence is by a Court such power to the Governor.
Martial
• The President can grant pardon in all • The pardoning power of the
cases where the sentence given is the Governor does not extend to
Death sentence
sentence of death death sentence cases.
• When it comes to the suspension, remission, and commute of death sentences, both
Concurrent authority the Governor and the President have concurrent authority.
• Pardon can be granted at any stage after commission of the offence, that is,
When can the President before or after conviction.
and Governor exercise • Pardon can be granted during pendency of an appeal to a higher court.
their Power? • A sentence cannot be suspended during pendency of appeal to the Supreme Court
Important judgements
Important judgements
Kehar Singh v. Union of India
• It was decided that the President has the authority under the Constitution to examine the
evidence on the criminal case record and reach a different result than the Court, but that this
does not amend, modify, or supplant the court record.
Kuljeet Singh v. Lt. Governor (famous Ranga-Billa Case)
• The Court held that, In appropriate cases, the President has the authority to commute any
sentence issued by a court to a shorter sentence.
• The courts have generally upheld the idea that keeping a man in prison for longer than is
necessary is not only terrible for him, but also a waste of money and a loss to the community.
• Epuru Sudhakar case
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• It is a well-set principle that a limited judicial review of exercise of clemency powers is
available to the Supreme Court and High Courts. Granting of clemency by the President or
Governor can be challenged on the following grounds:
o The order has been passed without application of mind.
o The order is mala fide.
o The order has been passed on extraneous or wholly irrelevant considerations.
o Relevant material has been kept out of consideration.
Pardoning power of the President - Legislative Background
• The power of pardon was historically vested in the British monarch during their rule.
• A pardon was an act of mercy by which the King absolve someone of any crime, offence,
punishment, execution, right, title, debt, or duty under common law.
• From 1935 onwards, the law of pardon was contained in Section 295 of the Government of
India Act, 1935 which did not limit the power of the Sovereign.
• There was no provision in the Government of India Act, 1935 corresponding to Article 161 of
the Constitution.
Conclusion
The roots of the pardoning authority in India may also be traced in the family. The contemporary
practise of pardoning has its roots in the British system, when forgiveness was a Royal Prerogative of
the King. The Indian Constitution not only grants the ability to give pardon, but also the power to
grant reprieves, respite, remission, and commuting of a punishment. The President of India and the
Governors of the respective states have all of these authorities. Although the nature, manner, and
other aspects of this pardoning authority to be used by each of them are identical, there is no conflict
of power conferred upon these two different entities.
3. Vice-President of India – Article 63-73 of Indian constitution
INTRODUCTION:
Vice- President of India has the second highest office in the country Article 63-73 of Indian
Constitution tells us about the Vice-President of India, qualification, election process, powers,
removal process and many more. He serves or the 5 years in his office, Part V of Indian
Constitution under Chapter I tells us about the office of the Vice-President. The Vice-
President is also the Chairperson of the Rajya Sabha.
Article 63 tells us that There shall be a Vice-President of India.

Article 69 tells us about the oath of the Vice-President of India.
Election of Vice-President (Article 66)
In India there is no direct election for the post of Vice-President. The candidate is elected through
Electoral College. The election process of the President and the Vice-President of India is quite
similar but the Electoral College that elects the President is different from the Electoral College.
According to Article 66 of Indian Constitution tells us the process of election and votes, Value of vote
of MLA, that is the Member of Legislative Assembly is counted as total population of a state is
divided by total number of elected members in the state legislative assembly is multiplied by 1 by
1000.
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The Election of Vice-President shall be held in accordance of proportional representation by means of
the single transferable vote and the voting at such election shall be done by secret ballot.
The only difference between the election process of the President and the Vice-President is
1. Both the elected and nominated members of both the houses of parliament takes part
in the electoral college of Vice-President, whereas the nominated members does not
take part in the President election.
2. State has no role in Vice-President election, whereas the President’s election state
legislative assemblies elected members are part of Electoral College.
Term of Vice-President of India (Article 67)
• Once the Vice-President elected, he holds the office for 5 years.
• He can resign before 5 years by handover the resignation letter to the President.
• Article 67 of Indian Constitution gives us an insight of the term of the Vice-President
of India
Removal process of the Vice-President of India
There is no impeachment process for the Vice-President of India likely as President of India Rajya
Sabha can simply pass a resolution with the majority and the Lok Sabha can pass it. There is no
grounds mentioned in the Constitution for the removal of the Vice-President.
Article 64 of Indian Constitution

Article 64 Indian Constitution says that the Vice-President of India is to be the Ex Officio Chairman
of the Council State. The Article says that Vice-President should be the Ex Officio Chairman of the
Council State and shall not hold any office of profit. Under Article 65 of Indian Constitution when the
Vice-President act as the President or discharges the function of the President, the Vice-President
shall not perform the duties of the office of the Chairman of the Council State and he is not entitled to
the salary or the allowances payable to the Chairman of the Council State under Article 97 of Indian
Constitution.

Article 65 of Indian Constitution states The Vice-President o act as President or Discharge to
Functions During Casual Vacancies in the Office During the Absence of the President. In the
following events the Vice-President can act as President.
1. Article 65 clause (1) states that when the President office is vacant in the reasons may
be as the death of the President, the resignation or removal of the President, the Vice-
President will be act as the President till the new President gets elected.
2. Clause (2) says that when the President is unable to discharge his function because of
the absence, illness or any other reason the Vice-President will act as the President
until the date the President resumes to his duties.
3. Clause (3) says that During the acting or discharging the function of the President has
all the powers and immunities that the President and to be entitled to such
emoluments, allowances privileges that may be determined by the Parliament and by
Law until the provision was made until in the behalf (this is mentioned in the Second
Schedule).
Article 68 of Indian Constitution.
Article 68 of Indian Constitution says that Time Of Holding Election To Fill Vacancy In The
Office Of Vice-President And The Term Of Office Of Person Elected To Fill Casual Vacancy.
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1. Article 68 Clause (1) says that An Election must held to fill a vacancy caused by the
expiration of the term office of Vice-President, election shall be completed before the
expiration of the term.
2. An election must held to fill the vacancy of the Vice-President as soon as possible the
reason of the vacancy must be death, resignation or removal, under Article 67 the new
Vice-President will hold the full term office for 5 years from the date on which he
enters in the office.
Article 70 of Indian Constitution states The Discharge of President Function in Other Contingencies.
Discharge of the function of the President is not provided in this chapter but the Parliament may make
such provision.

Article 71 of Indian Constitution states the “Matter Relating To, Or Connected With the Election Of
The President Or Vice-President”. This Article states the disputes that arise in the election of the
President and The Vice-President of India is solved by the Supreme Court and the matter relating to
the election is resolved by the Parliamentary law.

1. The President shall have power to grant Pardon, reprieves, respites or remission of
punishment or to suspend remit or commute the sentence of any person convicted the
offence
2. all the cases where the punishment of sentence by is by a Court Marital
3. any Law relating matter to which the executive power of the Union Extends which
are in their against.
4. In the sentence to death cases .
5. Nothing shall affect the power of suspend, remit or commute the sentence to death
exercised by the Governor of the state under any law for the time being in force as
given in sub clause (a) of clause (1).
Article 73 of Indian Constitution states Th States That Extent Of Executive Power Of The Union.
This article states
1. The union shall extend its power

2. The matter related to the law making power of Parliament.
3. The Union shall exercise such rights, authority and jurisdiction that are exercisable by
the Government of India.
4.GOVERNORpointment - UPSC Indian Polity Notes

The state executive is made up of the Governor, Chief Minister, Council of Ministers, and
Advocate-General of State. Governor, as President, heads the state government. Article 153-
167 in the Indian Constitution deal with the provisions related to the state governments of the
country.
Governor is a titular head or constitutional head and at the same time, he is the agent of the
centre as the union government nominates Governor in each state.
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Who is a Governor?
Governor is a nominal executive head of the state. He forms an important part of the state executive
where he acts as the chief executive head. Central Government nominates the governor for each state
How is a Governor Appointed?
The Indian President appoints Governor for each state by warrant under his hand and seal. Central
Government is responsible to nominate the governor for each state.
Note:
• Unlike elections of the President, there is no direct or indirect election for the post of
Governor.
• The office of a governor is not a part of the union executive and is an independent
constitutional office. The governor doesn’t serve the union government and neither is
subordinate to it.
• The nomination of a governor by the Union and his appointment by the President in India is
based on the Canadian model of government.
What is the term of the Governor’s office?
Since the Governor holds the office under the pleasure of the President, his office has no fixed term.
President can remove the Governor and the grounds upon which he may be removed are not laid
down in the constitution.
Governor may also get transferred from one state to another by the President. He also can be
reappointed.
Note:
• An interregnum is not allowed; following which a Governor may sit in the office beyond 5
years (expiry of the term) till the new governor assumes the charge of the office.
• At President’s discretion, the Chief Justice of the High Court of the concerned state can also
be appointed as the Governor on a temporary basis when and how the President thinks fit.
(Example – On the governor’s death, Chief Justice of HC can be appointed as the governor.)
Who is qualified to become a Governor?
Unlike Lok Sabha or Rajya Sabha members or even in the case of Prime Minister or President who
have a set of qualifications to meet to hold the office; Governor has to meet only two qualifications:
1. He should be an Indian Citizen

2. He should be 35 years old or more
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Note: There are two conventions that the government follows before nominating a person as a
Governor:
1. That person is not appointed as the governor who belongs to the state. He shall be an outsider
having no relation with the state he is being appointed to.
2. Consultation of the Chief Minister is taken by the President before appointing a governor
It should also be noted that both the above conventions are not absolute and have been ignored by the
union government in many instances.
What are the conditions of his office?
There are a few conditions for a person to be appointed as a Governor:
1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either of
the house, he should vacate the seat on his first day as Governor in the office.
2. He should not hold any office of profit.
3. For his residence, Raj Bhavan is provided to him without the payment of rent.
4. Parliament decides his emoluments, allowances, and privileges.
5. When a governor is responsible for two or more states, the emoluments and allowances
payable to him are shared by the states in such proportion as the President may determine.
6. Parliament cannot diminish his emoluments and allowances during his term of office.
7. He is given immunity from any criminal proceedings, even in respect of his personal acts
8. Arrest or imprisonment of the Governor cannot take place. Only civil proceedings can be
initiated for his personal acts that too after giving two months’ of prior notice.
What are the powers and functions of the Governor?
Executive Powers of the Governor
The following comes under his executive powers:
1. Every executive action that the state government takes, is to be taken in his name.
2. How an order that has been taken up his name is to be authenticated, the rules for the same
can be specified by the Governor.
3. He may/may not make rules to simplify the transaction of the business of the state
government.
4. Chief Ministers and other ministers of the states are appointed by him.
5. It is his responsibility to appoint Tribal Welfare Minister in the states of:
1. Chattisgarh
2. Jharkhand
3. Madhya Pradesh
4. Odisha
6. He appoints the advocate general of states and determines their remuneration
7. He appoints the following people:
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1. State Election Commissioner
2. Chairman and Members of the State Public Service Commission
3. Vice-Chancellors of the universities in the state
8. He seeks information from the state government
9. A constitutional emergency in the state is recommended to the President by him.
10. The governor enjoys extensive executive powers as an agent of the President during
the President’s rule in the state.
Legislative Powers of the Governor
The following are the legislative powers of the governor:
1. It’s in his power to prorogue the state legislature and dissolve the state legislative assemblies
2. He addresses the state legislature at the first session of every year
3. If any bill is pending in the state legislature, Governor may/may not send a bill to the state
legislature concerning the same
4. If the speaker of the legislative assembly is absent and the same is Deputy Speaker, then
Governor appoints a person to preside over the session
5. As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the total
members of the legislative council from the fields of:
1. Literature
2. Science
3. Art
4. Cooperative Movement
5. Social Service
6. As President nominates 2 members in the Lok Sabha, Governor nominates 1 member in state
legislative assembly from Anglo-Indian Community.
7. He can consult Election Commission for the disqualification of members
8. With respect to the bill introduced in the state legislature, he can:
• Give his assent
• Withhold his assent
• Return the bill
• Reserve the bill for the President’s consideration (In instances where the bill
introduced in the state legislature endangers the position of state High Court.)
Similar Topic: How a bill is passed in the Indian Parliament
Note: Governor can reserve the bill for the President’s consideration in the following cases:
• When provisions mentioned in the bill violates the constitution (Ultra-Vires)

• When provisions mentioned in the bill oppose Directive Principles of State Policy
• When provisions mentioned in the bill hinders the larger interests of the country
• When provisions mentioned in the bill concern the national importance
• When provisions mentioned in the bill mention the acquisition of property that is dealt with
Article 31A in the constitution. (Read more about important articles in the Indian
Constitution in the linked article.)
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Also,
1. An ordinance can be promulgated by him when either the Legislative Assembly or Council
(Unicameral/Bicameral) are not in session. (Read the Ordinance Making Power of President
& Governor in the linked article.)
2. The following reports are laid by him:
1. State Finance Commission
2. State Public Service Commission
3. Comptroller and Auditor General (Concerning the state finance)
Financial Powers of the Governor
The following are the financial powers and functions of the Governor:
1. He looks over the state budget being laid in the state legislature
2. His recommendation is a prerequisite for the introduction of a money bill in the state
legislature
3. He recommends for the demand for grants which otherwise cannot be given
4. Contingency Fund of State is under him and he makes advances out that to meet unforeseen
expenditure. (Download the notes on the types of funds in India from the linked article.)
5. State Finance Commission is constituted every five years by him. (Read about the Finance
Commission of India in the linked article.)
Judicial Powers of the Governor
The following are the judicial powers and functions of the Governor:
1. He has the following pardoning powers against punishment:

1. Pardon
2. Reprieve
3. Respite
4. Remit
5. Commute
2. President consults the Governor while appointing judges of High Court.
3. In consultation with the state High Court, Governor makes appointments, postings, and
promotions of the district judges.
4. In consultation with the state high court and state public service commission, he also appoints
persons to the judicial services.
Read in detail about the pardoning powers of the Governor in the linked article.
What is the Constitutional Position of Governor?
The Constitutional Position of the governor can be understood by the following articles:
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Constitutional Position of the Governor
Article Provision
Article He is the executive head of the state. All the executive functions will be performed by him or by the
154 officers subordinate to him in accordance with the Constitution
Article He will be aided and advised by the Chief Minister and Council of Ministers unless he is performing
163 a function at his discretion
Note:
• The power to act at his own discretion is a power that is not given to the President.
• 42nd Amendment Act made the advice of the Council of Ministers’ binding on the President
but not on the Governor in state
Article The Council of Ministers are collectively responsible to the state legislative assembly
164
Note: This provision is the foundation of the state parliamentary system
The Constitution has mentioned the authority of the governor to decide the validity of his actions
taken at his own discretion in circumstances where his actions are called into action.
Governor’s Discretionary Powers
The Governor of state, unlike the President of India, is conferred with power to act at his own
discretion. There are two categories of discretion for the governor. One is Constitutional Discretion
and the other is Situational Discretion. Read more about the Constitutional Discretion of Governor in
the linked article.
Important Constitutional Articles related to the Governor
IAS aspirants should know the articles in the constitution that are related to the governor:
Articles Provisions
153 Governors of states
155 Appointment of Governor
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156 Term of office of Governor
157 Qualifications for appointment as Governor
158 Conditions of Governor’s office
160 Discharge of the functions of the Governor in certain contingencies
161 Power of the Governor to grant pardons and others
175 Right of the Governor to address and send messages to the house or houses of the state legislature
176 Special address by the Governor
201 Bills reserved by the Governor for consideration of the President
213 Power of Governor to promulgate ordinances
217 Governor is consulted by the President in the matter of the appointments of the judges of the High
Courts
233 Appointment of district judges by the Governor
234 Appointments of persons (other than district judges) to the judicial service of the state by the Governor
5. PARLIAMENT
India has a parliamentary system of government. The Union Parliament is the supreme
legislative body in the country.
he Indian Parliament is a bicameral legislature consisting of two houses – the Lok Sabha and
the Rajya Sabha. The members of the Lok Sabha (House of the People) are directly elected by
the people through the voting process. The members of the Rajya Sabha (Council of States)
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are elected by the members of the states’ legislative assemblies. The Parliament consists of
the two Houses and the President of India.
Functions of Parliament
The functions of the Parliament are mentioned in the Indian Constitution in Chapter II of Part V. The
functions of the Parliament can be classified under several heads. They are discussed below:
Legislative Functions
• The Parliament legislates on all matters mentioned in the Union List and the Concurrent List.
• In the case of the Concurrent List, where the state legislatures and the Parliament have joint
jurisdiction, the union law will prevail over the states unless the state law had received the
earlier presidential assent. However, the Parliament can any time, enact a law adding to,
amending, varying or repealing a law made by a state legislature.
• The Parliament can also pass laws on items in the State List under the following circumstances:
• If Emergency is in operation, or any state is placed under President’s Rule (Article
356), the Parliament can enact laws on items in the State List as well.
• As per Article 249, the Parliament can make laws on items in the State List if the Rajya
Sabha passes a resolution by ⅔ majority of its members present and voting, that it is
necessary for the Parliament to make laws on any item enumerated in the State List, in
the national interest.
• As per Article 253, it can pass laws on the State List items if it is required for the
implementation of international agreements or treaties with foreign powers.
• According to Article 252, if the legislatures of two or more states pass a resolution to
the effect that it is desirable to have a parliamentary law on any item listed in the State
List, the Parliament can make laws for those states.
Executive Functions (Control over the Executive)
In the parliamentary form of government, the executive is responsible to the legislature. Hence, the
Parliament exercises control over the executive by several measures.
• By a vote of no-confidence, the Parliament can remove the Cabinet (executive) out of power.
It can reject a budget proposal or any other bill brought by the Cabinet. A motion of no-
confidence is passed to remove a government from office.
• The MPs (Members of Parliament) can ask questions to the ministers on their ommissions and
commissions. Any lapses on the part of the government can be exposed in the Parliament.
• Adjournment Motion: Allowed only in the Lok Sabha, the chief objective of the adjournment
motion is to draw the attention of the Parliament to any recent issue of urgent public interest. It
is considered an extraordinary tool in Parliament as the normal business is affected.
• The Parliament appoints a Committee on Ministerial Assurances that sees whether the
promises made by the ministers to the Parliament are fulfilled or not.
• Censure Motion: A censure motion is moved by the opposition party members in the House
to strongly disapprove any policy of the government. It can be moved only in the Lok Sabha.
Immediately after a censure motion is passed, the government has to seek the confidence of the
House. Unlike in the case of the no-confidence motion, the Council of Ministers need not resign
if the censure motion is passed.
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• Cut Motion: A cut motion is used to oppose any demand in the financial bill brought by the
government.
Financial Functions
Parliament is the ultimate authority when it comes to finances. The Executive cannot spend a single pie
without parliamentary approval.
• The Union Budget prepared by the Cabinet is submitted for approval by the Parliament. All
proposals to impose taxes should also be approved by the Parliament.
• There are two standing committees (Public Accounts Committee and Estimates Committee) of
the Parliament to keep a check on how the executive spends the money granted to it by the
legislature. You can also read on parliamentary committees.
• Also see: Money Bills.
Amending Powers
The Parliament has the power to amend the Constitution of India. Both Houses of the Parliament have
equal powers as far as amending the Constitution is concerned. Amendments will have to be passed in
both the Lok Sabha and the Rajya Sabha for them to be effective.
Read about the important amendments in the Indian Constitution here.
Electoral Functions
The Parliament takes part in the election of the President and the Vice President. The electoral college
that elects the President comprises of, among others, the elected members of both Houses. The President
can be removed by a resolution passed by the Rajya Sabha agreed to by the Lok Sabha.
Judicial Functions
In case of breach of privilege by members of the House, the Parliament has punitive powers to punish
them. A breach of privilege is when there is an infringement of any of the privileges enjoyed by the
MPs.
• A privilege motion is moved by a member when he feels that a minister or any member has
committed a breach of privilege of the House or one or more of its members by withholding
facts of a case or by giving wrong or distorted facts. Read more on privilege motion.
• In the parliamentary system, legislative privileges are immune to judicial control.
• The power of the Parliament to punish its members is also generally not subject to judicial
review.
• Other judicial functions of the Parliament include the power to impeach the President, the Vice
President, the judges of the Supreme Court, High Courts, Auditor-General, etc.
Other powers/functions of the Parliament
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• Issues of national and international importance are discussed in the Parliament. The opposition
plays an important role in this regard and ensures that the country is aware of alternate
viewpoints.
• A Parliament is sometimes talked of as a ‘nation in miniature’.
• In a democracy, the Parliament plays the vital function of deliberating matters of importance
before laws or resolutions are passed.
• The Parliament has the power to alter, decrease or increase the boundaries of states/UTs.
• The Parliament also functions as an organ of information. The ministers are bound to provide
information in the Houses when demanded by the members.
6. PARLIAMENTARY PRIVILEAGES.
Feature of parliamentary privileges in the Indian Constitution is borrowed from the British
Constitution. The British Constitution is a source of other borrowed features like
parliamentary government, the rule of law, legislative procedure, single citizenship, cabinet
system, prerogative writs, and bicameralism.
The Indian parliament’s privileges among other provisions are contained in Article 79 to
Article 122 of the Indian Constitution.
In the case of Raja Ram Pal vs. The Hon’ble Speaker Lok Sabha[1]. Supreme Court in
their own view defines the word “privilege” that it is immunity or a right provided to the
specific person. In another way around what a person can not do in general, now he/she
eligible to do a certain act.
What is a parliamentary privilege?
Parliamentary privileges, i.e. exceptional right or advantage, are granted to the members of
legislatures worldwide. Thus, in most democratic countries, the legislatures and their members enjoy
certain privileges to function effectively. Privilege though part of the law of the land, is, to a certain
extent an exemption from the ordinary law. It would not be wrong to say that privilege is to
Parliament what prerogative is to the Crown. Just as the Crown can exercise prerogatives without help
or hindrance from Parliament or the judges, the House of the Parliament can exercise privileges
without help or hindrance from the Judges.
India is one of those rare examples in history where representative institutions were made available by
a foreign government by slow degrees and evolved gradually.
In the Indian context, the privileges and immunities enjoyed by Lok Sabha and Rajya Sabha are called
the parliamentary privileges.
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Origin of Parliamentary Privileges in India
• The origin of Parliamentary privileges in India can be traced as far back as 1833 when a
fourth member was added to the governor-general’s council following the Charter Act of
1833. A new type of legislative machinery came into existence. This laid the foundation of an
institution that ultimately grew into a full-fledged law-making body by process of evolution.
• The official aversion to the legislature’s privileges was diluted after the indirect election to the
legislature was provided by the Indian Council’s Act, 1909.
• The Government of India Act, 1935, provided that there should be freedom of speech in the
legislature.
• Today, some of the privileges of Parliament, and its members and committees, are specified in
the Constitution, and there are certain statutes and the rules of procedure of the House; others
continue to be based on the precedents of the House of Commons.
• The main articles of India’s Constitution dealing with the privileges of Parliament are 105 and
122, and the corresponding articles for the states are 194 and 212. Article 105 (1) of India’s
Constitution provides that, subject to the provisions of the Constitution and the rules and
standing orders regulating the procedure of Parliament, there would be freedom of speech in
the Parliament.
Related Articles:
Articles in the Indian Constitution Important Amendments in the Indian Constitution
Article 12 of the Indian Constitution Constitution of India
Use of a parliamentary privilege:
1. The exemptions, rights or immunities provided to the members of each house of the
parliament and the parliament committees secure the independence and effectiveness of the
actions taken by them.
2. The parliamentary privileges help maintain the dignity, authority and honour of the members
of parliament.
3. The parliamentary privileges help secure the members of the houses from any obstruction in
their discharge of actions.
Types of Parliamentary Privileges
There are two categories of Parliament privileges in India, the specified and enumerated, and the
recognized but unremunerated.
The first category includes:
• Freedom of speech in each House of Parliament - The Supreme court case of Tej Kiran Jain
V. Sanjeeva Reddy held that “once it is recognised that the parliament was in session and its
business being transacted, anything said during the clause of that transaction was completely
immune from any proceeding in any court of law”.
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• Immunity from proceedings in any courts regarding anything said or voted given by a
member in parliament or any committee thereof. - In a controversial case involving former
Prime Minister, several union ministers, members of parliament and others, the court held in
the case P.V. Narsimha Rao V. state JMM Bribery[] that the privilege of immunity to exempt
the member from the court proceedings in article 105 (2) should be extended to cover the
scope of bribes considered by the member of parliament for the purpose of voting in the
parliament in a particular form.
• Immunity from liability regarding the publication by or under the authority of either House of
Parliament, of any report, paper, votes or proceeding of either House.-- In Wason v.
Walter C.J. Cockburn, observed that it was of public sovereignty and comes under the subject
to national importance that parliamentary proceedings should be communicated and displayed
to the general public, which has an immense interest in knowing was happening in
parliament. But to provide an incomplete report or a detach report which contain disconnected
part and partial information of proceedings published with the intention to injure individual
character will be disentitled to protection. A similar law is also applicable in India.
In the second category, fall all those privileges which were enjoyed by the House of Commons of the
Parliament of the United Kingdom, and its members and committees, at the commencement of the
Constitution of India and, would continue to be in force unless they are modified and defined by
Parliament by law.
The Indian parliamentary privileges are categorised into two:
1. Collective Privileges – Those privileges which are enjoyed by the Indian Parliament as a
whole.
2. Individual Privileges – Those privileges which are secured to the members of the parliament
on an individual level.
The details of the two are listed in the table below:
Collective Privileges of the Indian Parliament
The reports, debates and proceedings can be published or denied to be published by the Indian parliament.
Note: 44th Amendment Act allowed the media to publish the true reports of the parliamentary proceedings except
the same related to the house’s secret sitting.
The Indian parliament has a right to exclude strangers from its proceedings.
The secret sittings of the houses is also a part of the parliamentary privilege.
The two houses can make rules for:
• the regulation of their procedures

• Conduct of their business
• Adjudication of their work
The parliament can suspend or expel members in case of breach of privilege
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The parliament is entitled to punish the outsiders or the members for any breach of privilege by using any of the
following:
• Reprimand
• Admonition
• Imprisonment
The parliament has a right to receive immediate information of the arrest, detention, conviction, imprisonment and
release of a member
Any enquiries can be initiated by the Indian parliament and so can be the right to call upon the witnesses
The proceedings of the houses and committees of the parliament can’t be inquired by the court
No person (either a member or outsider) can be arrested, and no legal process (civil or criminal) can be served
within the precincts of the House without the permission of the presiding officer
Individual Privileges of the Members of the Parliament
No arrest of the member of the parliament can take place during its session. Also, members can’t be arrested 40
days before and after the session’s beginning and end of the session.
The members of parliament are entitled to the freedom of speech in the houses. They are not liable to any court
proceedings for the speech given in the parliament or its committees. However, it is regulated using the rules
guiding such provisions of the house.
They are exempted from jury service. They can refuse to give evidence and appear as a witness in a case pending
in a court when Parliament is in session.
What are the sources of privileges?
The five sources of the privileges are:
1. Constitutional provisions
2. Various laws made by Parliament
3. Rules of both the Houses
4. Parliamentary conventions
5. Judicial interpretations
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Facts
1. The provisions related to the parliamentary privileges of the parliament (members and
committees) can be amended using the simple majority of the parliament.
2. President is not entitled to the parliamentary privileges.
3. Without taking the oath before the Indian President, the privileges and immunities are not
granted to the member of the parliament.
4. The Lok Sabha speaker is the guardian of the Lok Sabha members’ privileges and the
committees of this house of the parliament.
5. The privilege of the deputy speaker of Lok Sabha:
• He automatically is granted the seat of the chairman of the parliamentary committee
he is a member of.
6. There is a motion named ‘Privilege Motion‘ used to censure a minister for the breach of the
parliamentary privilege.
7. Adjournment motion and token cut motion can’t be used to raise the question of privilege.
8. Lok Sabha has the exclusive privilege to vote on the demand for grants.
9. The parliament has the judicial power to punish the members of the houses or the outsider for
any breach of privilege.
10. There is a committee called ‘Committee of Privileges’ which is of semi-judicial nature. It is
responsible for examining the privileges’ breach. There are 15 members in the committee of
privileges for Lok Sabha while there are 10 members for the same committee in Rajya Sabha.
11. The persons who are allowed to speak in the proceedings of either house of the parliament are
also entitled to the privileges of the Parliament. Example – Attorney General of India and
Union Ministers.
Parliamentary privileges and fundamental right

In the case Gunupati Keshavram Reddy V. Nafisul Hasan, the home minister was detained at his
Bombay residence under the warrant directed by the presiding officer of the U.P legislative assembly
for the contempt of the house of the state legislature and was fled to Lucknow and was house arrest in
a hotel under the supervision of the presiding officer. While filling for a writ of habeas corpus on that
very that his detention was infringed and violates the article 22(2), the Apex court quashed the detention
and gave orders for his release as he had not been produced before a magistrate within 24 hours of his
arrest as given under Article 22.
6. WRITS ( Arts.32 & 226)
Introduction
The judiciary in India is vital to democracy because it not only prevents government officials from
misusing their powers but also safeguards the rights of citizens and guards the Indian Constitution. As
a result, India’s Constitution envisions a powerful, independent, and well-organised judiciary.
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Articles 32 and Article 226 provide the Supreme Court and the High Courts the authority to bring a
lawsuit against a government entity if any citizen’s rights and freedoms are violated. The High Court
has broad powers to issue orders and writs to any person or authority under Article 226 of the Indian
Constitution. Before a writ or an order may be issued, the party who is petitioning the court must prove
that he has a right that is being violated or endangered illegally. If the cause of action partly arises within
its jurisdiction, the High Court can issue writs and directives to any Government, authority, or person
even if they are located beyond its jurisdiction
In general, the High Court does not use its power under Article 226 when it comes to problems of fact.
Similarly, when the petitioner has an alternative remedy, the Courts will not hear Article 226 petitions.
In addition, if there is an excessive delay in contacting the court, the court may refuse to provide relief
under this article.
Similar powers are available to the Supreme Court under Article 32 of the Constitution. The underlying
reason for granting the High Court powers under Article 226 is to ensure that the rule of law is upheld
in society. When the executive authorities overstep their authority and infringe on citizens’ rights, they
must be held accountable and article 226 ensures it.
Article 226 of the Indian Constitution

Enshrined under Part V of the Constitution of India, Article 226 provides the High Courts with the
power to issue writs, including writs in the form of habeas corpus, mandamus, prohibition, quo
warranto, certiorari, or any of them, to any person or authority, including the government. Article 226
of the Indian Constitution gives High Courts the power and ability to enforce any of the basic
fundamental rights guaranteed by Part III of the Constitution of India, 1949, or for any other reason.
According to Article 226(1), each High Court within India’s territorial jurisdiction has the ability and
power to issue orders, instructions, and writs, to any individual or authority, including the government,
for the enforcement of Part III of the Indian Constitution or basic fundamental rights and other legal
rights within its own jurisdiction.
Article 226(2) empowers the High Courts with the authority to issue orders, instructions, and writs to
any government authority or any individual, outside their own local jurisdiction in circumstances when
the cause of action is completely or partially within their local jurisdiction despite the fact that such
government or authority’s seat or the individual’s domicile is not within the territory.
According to Article 226(3), when an interim order is issued against the respondent under Article 226
in the form of an injunction or a stay without:
1. providing the respondent with a copy of the petition and any relevant evidence; and
2. providing the respondent with an opportunity to be heard.
The High Court shall decide on the application within two weeks of receiving the application or within
two weeks of the date on which the other party received the application, whichever is later. If the
application is not so disposed of, the interim order shall be vacated on the expiry of that period, or, if
the High Court is closed on the last day of that period, before the expiry of the next day on which the
High Court is open, the interim order shall be vacated.
According to Article 226(4), the jurisdiction granted to the High Courts under Article 226 does not
preclude the Supreme Court from using its powers under Article 32(2).
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Difference between Article 32 and Article 226
• Article 32 is a fundamental right, but Article 226 is a constitutional right.

• Article 32 can be suspended if the President declares an emergency, however, Article 226
cannot be suspended even during an emergency.
• Article 32 has a limited reach since it only applies when a fundamental right has been
violated. Article 226 on the other hand, has a greater reach since it applies not only to
violations of fundamental rights but also to violations of legal rights.
• Under Article 32, the Supreme Court has the authority to issue writs across India. As a result,
the Supreme Court’s territorial jurisdiction is broader and expanded. Article 226, on the
other hand, allows the High Court to issue a writ exclusively in its own local jurisdiction.
As a result, the territorial authority of High Courts is narrower and limited.
• Since Article 32 is a basic right, the Supreme Court cannot dismiss it. However, Article 226
gives the High Court discretionary power, which means it is up to the High Court to decide
whether or not to issue a writ.
Difference between Article 226 and Article 227

The Supreme Court of India relied on many previous constitutional judgments of the Hon’ble Apex
Court in the case of Surya Devi Rai vs. Ram Chander Rai, one of which was Umaji Keshao Meshram
and Ors. vs. Smt. Radhikabai and Anr which established the scope, power, and differences between
Articles 226 and 227.
After reviewing its prior decisions in the matter of Surya Devi Rai vs. Ram Chander Rai, the Supreme
Court determined the following differences:
• Article 226 gives High Courts the ability to issue instructions, orders, and writs to any
person or authority, including the government. Whereas, Article 227 gives High Courts the
power of superintendence over all courts and tribunals in the territory over which they have
jurisdiction.
• The most significant and distinguishing distinction between the two articles is that actions
under Article 226 are in the exercise of the High Court’s original jurisdiction, whilst
procedures under Article 227 are purely supervisory.
• The writ of certiorari is an exercise of the High Court’s original jurisdiction (Article 226);
supervisory jurisdiction (Article 227) is not an original jurisdiction and is more analogous
to appellate revision or corrective jurisdiction in this regard.
• The authority given by Article 226 of the Constitution can be exercised on a plea made by
or on behalf of the party aggrieved, although the supervisory jurisdiction conferred by
Article 227 can also be exercised suo moto.
Scope of Article 226

In Bandhua Mukti Morcha v. the Union of India (1984), it was held that Article 226 has a much broader
scope than Article 32, as it gives the High Courts the power to issue orders, directions, and writs not
only for the enforcement of fundamental rights but also for the enforcement of legal rights that are
granted to the disadvantaged by statute and are just as important as the fundamental rights.
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In Veerappa Pillai v. Raman and Raman Limited (1952), it was held that the writs referred to in Article
226 were clearly intended to enable the High Court to issue them in cases where subordinate bodies or
officers act without jurisdiction, or in excess of jurisdiction, or in violation of natural justice principles,
or refuse to exercise a jurisdiction vested in them, or there is an obvious error on the face of the record,
and such act, omission, error, or excess has resulted in injustice. Regardless of how broad the
jurisdiction is, it does not appear to be sufficiently broad or large to allow the High Court to turn it into
a Court of Appeal and evaluate for itself the accuracy of the contested decisions and determine what is
the right position to be taken or the order to be issued.
In Chandigarh Administration v. Manpreet Singh (1991), it was decided that the High Court does not
sit and/or function as an appellate authority over the orders/actions of the subordinate authorities when
working under Article 226. Its authority is purely supervisory. One of the jurisdiction’s key goals is to
keep the government, as well as a number of other agencies and courts, inside their particular
jurisdictions. While performing this job, the High Court must ensure that it does not go beyond the well-
defined boundaries of its own jurisdiction.
In Burmah Construction Co. v. the State of Orissa (1961), It was held that the High Court does not
normally entertain petitions under Article 226 of the Constitution to enforce a civil liability arising out
of a breach of tort or breach of contract to pay an amount due to the claimant and that the aggrieved
party must pursue the issue in a civil suit filed for that purpose. However, in order to execute a statutory
duty, an order for payment of money may be issued in a petition under Article 226 against the state or
an officer of the state.
In Jagdish Prasad Shastri v. the State of Uttar Pradesh (1970), it was held that if a writ petition raises
factual problems that the High Court considers should not be decided in a petition for a high prerogative
writ, the High Court has the right to refuse to resolve such matters and relegate the party seeking redress
to his usual litigation process. The High Court’s decision to dismiss the petition because there were
disputed factual matters to be resolved is unquestionably unlawful.
In the case of State of Madras v. Sundaram (1964), it was held that when it is proven that the impugned
conclusions were not supported by any evidence, a High Court, in the exercise of its authority under
Article 226 of the Constitution, cannot sit in appeal over the findings of fact made by a competent
Tribunal in a properly conducted departmental investigation. When the High Court exercises its power
under Article 226 of the Constitution, the adequacy of such evidence to support the allegation is not a
matter before it.
In Common Cause v. the Union of India (2018), the Hon’ble Supreme Court stated that the High Court
has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus,
certiorari, prohibition, quo warranto, and habeas corpus for the enforcement of fundamental rights or
for any other purpose under Article 226 of the Constitution. As a result, the High Court can issue relief
not only for the enforcement of fundamental rights but also for “any other reason,” which might include
the enforcement of public responsibilities by public authorities.
Writs
A writ is a written order issued by a court instructing someone to do or refrain from doing something.
It possesses authority and the ability to compel compliance. We all have various rights, such as the right
to life, the right to education, the right to dignity, and so on, but these rights can only be used if they
are safeguarded. Our Constitution primarily mentions the protection of our fundamental rights in four
articles:
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• Article 13 of the Constitution of India discusses judicial review;
• Article 359 of the Constitution of India states that fundamental rights cannot be curtailed at
any time except in the situation of emergency;
• Article 32 of the Constitution of India mentions the protection of our fundamental rights by
the Supreme Court;
• Article 226 of the Constitution of India mentions the protection of our fundamental rights
by the High Courts.
Part III of the Indian Constitution deals with fundamental rights, it runs from Article 12 through Article
35. This essentially indicates that Article 32 of India’s Constitution, which stipulates the preservation
of fundamental rights, is a fundamental right in and of itself.
Types of writs available under Article 226
Habeas Corpus
It’s a Latin phrase that means “to have a body or to produce a body.” This is the most powerful and
most often used writ. For example, if a person is wrongfully held by the government, that person, or his
family or friends, can file a writ of Habeas Corpus to have that person released. When this writ is used,
the Supreme Court or the High Court interrogates the State about the reasons for the individual’s
detention. If the ground is judged to be irrational, the person is promptly freed from custody. It is the
court’s order to bring the detainee before the court and determine whether the arrest was valid or not.
The primary objective of this writ is to free a person who has been unlawfully detained or imprisoned.
This writ is crucial since it determines a person’s right to freedom and personal liberty.
This writ cannot be used in the following four situations:
• Detention is legal;
• Disobedience to the Court;
• The Court has no jurisdiction over detention;
• A Competent Court is in charge of detention.
Who may apply for the writ:
• The individual who has been illegally imprisoned or incarcerated;

• The individual who is aware of the advantage related to the case;
• The individual who has knowledge about the facts and circumstances of the case willingly
files a writ of habeas corpus under Articles 32 and 226.
Rudul Sah v. State of Bihar (1983)
In this case, a person who had already served his sentence was wrongfully held in prison for an
additional fourteen years. The person was promptly freed from jail and was given exemplary damages
after using the writ of Habeas Corpus.
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Sunil Batra v. Delhi Administration (1980)
In this case, it was held that a writ petition for habeas corpus can be filed not only for the prisoner’s
improper or illegal detention but also for his protection from any sort of ill-treatment or discrimination
by the authority responsible for his detention. As a result, a petition for wrongful detention can be
submitted, and the way in which the detention occurred can be investigated.
Nilabati Behra v. the State of Orissa (1993)
In this case, the petitioner’s son was hauled away by the Orissa police for interrogation. All attempts to
track him proved futile. As a result, a habeas corpus writ petition was filed before the court. During the
petition’s pendency, the petitioner’s son’s body was recovered from a railway track. The petitioner was
awarded compensation of Rs. 1,50,000.
Mandamus
t’s a Latin phrase that translates to ‘we command.’ It is a type of command that can be used to execute
public duties by constitutional, statutory, non-statutory, universities, courts, and other bodies. This writ
is used to compel a public official to carry out the duties that have been assigned to them. The only
requirement for using this writ is that there be a public duty. The writ of Mandamus is used to order any
authority to carry out the public obligations given to them. It’s a directive or order that tells someone, a
company, a lower court, or the government to do what they’re legally obligated to do. Any individual
who is harmed by a breach or abuse of a public obligation and has the legal right to enforce its
performance can seek a writ of Mandamus from a High Court or the Supreme Court.
This writ cannot be used in the following three situations:
• When a private body is entrusted with a public obligation;

• When the duty is discretionary;
• When the duty is based on a contract.
Gujarat State Financial Corporation v. Lotus Hotels (1983)
In this case, the Gujarat State Financial Corporation entered into an arrangement with Lotus Hotels,
stating that the funds would be released so that the building work could proceed. They did not, however,
release the monies subsequently. As a result, Lotus Hotels filed an appeal with the Gujarat High Court,
which issued a writ of mandamus ordering Gujarat State Financial Corporation to perform its public
duty as promised.
Hemendra Nath Pathak v. Gauhati University (2008)
In this case, the petitioner sought a writ of mandamus against the institution where he studied because
the university failed him despite the fact that he received the requisite passing grades under the
university’s statutory standards. The university was ordered to declare him pass according to university
norms, and a writ of mandamus was issued.
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Sharif Ahmad v. HTA., Meerut (1977)
In this case, the respondent failed to follow the tribunal’s instructions, and the petitioner went to the
supreme court to have the tribunal’s orders enforced. The Supreme Court issued a Mandamus, requiring
the respondent to obey the tribunal’s directives.
SP Gupta v. Union of India (1981)
In this case, the court concluded that the president of India cannot be served with a writ directing him
to determine the number of High Court judges and fill vacancies. The courts cannot issue writs of
Mandamus against individuals such as the president and governors.
Certiorari
It’s a Latin phrase that means ‘to be certified.’ The Supreme Court and the High Court can use this writ
to order other subordinate courts to submit their records for review. The purpose of these reviews is to
see if the lower court’s decisions are legal or not. Their decisions may be illegal if they are made in
excess of jurisdiction, in the absence of jurisdiction, in unconstitutional jurisdiction, or in violation of
natural justice principles. If their decisions are found to be unconstitutional, or illegal then those
judgments will be quashed.
Conditions required for the issuance of a writ of certiorari:
• There should be a court, tribunal, or an official with the legal power to decide the issue and
the responsibility to act judicially;
• Such a court, tribunal, or officer must have issued an order without jurisdiction or in excess
of the judicial power granted to such a court, tribunal, or person by law;
• The order might also be contrary to natural justice principles, or it could involve an error of
judgement in assessing the circumstances of the case;
• The order might also be contrary to natural justice principles, or it could involve an error of
judgement in assessing the circumstances of the case.
A.K. Kraipak v. Union of India (1970)
In this case, the writ of certiorari was issued to the lower courts and their judgments delivered were
quashed. The cases which were reviewed were termed illegal and were held as quashed and invalid for
future purposes.
Collector of Customs v. A.H.A. Rahiman (1956)
In this case, the customs collector issued a seizure order without any prior warning or investigation. The
Madras High Court ruled that the collector’s order was made without hearing or understanding all of
the facts of the case and that this was contrary to the principles of natural justice. As a result, the Madras
High Court issued a writ of certiorari to quash the collector’s order.
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Syed Yakoob v. Radhakrishnan (1964)
In this case, the Court held that a writ of certiorari can fix an error of law that is obvious on the face of
the record, but not an error of fact, no matter how bad it appears to be.
A. Ranga Reddy v. General Manager Co-op. Electric Supply Society Ltd. (1977)
In this case, the Court held that a writ of certiorari cannot be issued against a private body. Co-operative
Electricity Supply Society Limited, incorporated under the Co-operative Societies Act, is a private body
rather than a public body discharging a public function, and the writ petition can’t be filed against such
a private society.
Prohibition
The distinction between a writ of prohibition and a writ of certiorari is minimal. The adage “Prevention
is better than cure” exemplifies the distinction between the two writs. In this case, preventive is linked
to prohibition, which means “to forbid,” while certiorari is linked to treatment or cure. If a judgement
is given and it is invalid, it is quashed and a writ of certiorari is granted. However, if the judgement is
still to be published and to prevent the mistake from occurring, a writ of prohibition is issued. This writ
can only be used until the judgement has not been delivered. A writ of prohibition is issued to prevent
a lesser court or tribunal from acting outside of its jurisdiction or in violation of natural justice standards.
The lower court procedures come to a halt after the issuance of this writ. Except in cases of clear mistake
of law on the face of the record, a writ of prohibition can be issued on the same grounds as a writ of
certiorari.
A writ of prohibition is issued when an inferior court or tribunal:
• Proceeds to act without authority or in excess of authority; or

• Proceeds to act in contravention of natural justice rules; or
• Proceeds to act in accordance with legislation that is itself ultra vires or unconstitutional; or
• Proceeds to act in violation and contravention of fundamental rights
East India Company Commercial Ltd. v. Collector of Customs (1962)
In this case, the Supreme Court clarified the concept of a writ of prohibition, stating that it is an order
issued by a higher court ordering a lower/inferior court to halt proceedings on the grounds that the court
either lacks jurisdiction or is exceeding its jurisdiction in determining the matter.
P.S. Subramaniam Chettiar v. Joint Commercial Tax Officer (1966)
In this case, the court held that a writ of prohibition may only be issued if the petitioner can show that
any government official owed him a duty that was under his authority but was not carried out.
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Brij Khandelwal v. the Union of India (1975)
In this case, the Delhi High Court declined to issue a restriction against the Central Government
engaging in a boundary dispute agreement with Sri Lanka. The ruling was founded on the basis that
prohibition does not restrict the government from performing executive tasks, and that prohibition is
designed to regulate quasi-judicial rather than executive functions.
With the growth of the notion of natural justice and the establishment of the concept of fairness even in
administrative tasks, this position is no longer tenable, and the rigidity surrounding prohibition has also
been reduced. If any of the grounds on which the writ is issued is present, the writ can now be issued to
anybody, regardless of the nature of the function performed. Prohibition is currently seen as a broad
remedy for judicial supervision over quasi-judicial and administrative decisions that impair rights.
Quo Warranto
It’s a Latin phrase that means ‘by what authority.’ The Courts can use this writ to ask any public official
about the authority under which that public official has accepted that particular public office. If it is
discovered that the public office was improperly occupied, the public official must quit the position
immediately. Unlike the other four writs, this one can be filed by anybody.
Conditions to be satisfied for issuing the writ of quo warranto:
• The office must be open to the public, and it must be established by statute or by the
constitution;
• The office must be a substantive one.
• In appointing such a person to such a position, there must have been a violation of the
constitution or legislation, or statutory instrument.
Jamalpur Arya Samaj v. Dr. D Ram & Ors. (1954)
In this case, a quo warranto writ was brought against the working committee of a private entity, the
Bihar Raj Arya Samaj Pratinidhi Sabha. The petition was refused by the court. The Patna High Court
ruled that a writ of quo warranto may only be issued against someone who is unjustly holding a public
office. In the event of a private office, it is not applicable.
In G. Venkateswara Rao v. Government of Andhra Pradesh (1966)
In this case, the court held that a private individual may make an application for a writ of quo warranto.
The individual filing the writ does not have to be directly impacted or engaged in the issue.
Puranlal v. P.C.Ghosh (1970)
In this case, the court held that a person’s election to or appointment to a particular post is insufficient
for the issuance of quo warranto unless that person accepts the position.
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Difference between Mandamus and Prohibition
• The writ of mandamus is Issued against judicial, quasi-judicial, and administrative

authority. Whereas, the writ of prohibition is Issued against judicial and quasi-judicial
authority.
• The writ of mandamus is an order to a lower court to do something. Whereas, writ of
prohibition is an order to a lower court to not do something.
• The writ of mandamus directs activity. Whereas, writ of prohibition directs inactivity.
• The writ of mandamus directs the performance of public duties. Whereas, writ of prohibition
prohibits continuance in excess of their jurisdiction.
Difference between Certiorari and Prohibition
• The writ of prohibition is issued to stop a decision or administrative action in the process
from moving further, whereas the writ of certiorari is used to quash a judgement that has
already been made.
• When a subordinate court takes up hearing a subject over which it has no jurisdiction, the
person being sued can file a writ of prohibition with the supreme court, and an order will be
issued prohibiting the inferior court from continuing the case. When a subordinate court
hears a cause or matter and makes a judgement on a case over which it has no jurisdiction,
the aggrieved party must file a writ of certiorari with the Supreme Court, which will issue
an order quashing the inferior court’s decision.
• A writ of prohibition is issued prior to the conclusion of the proceedings. Writ of certiorari
is issued after a subordinate court or Tribunal, or any other entity exercising judicial or
quasi-judicial responsibilities, makes a judgement that is outside of its authority.
• A writ of prohibition is intended to prevent rather than heal. Whereas, writ of certiorari is
used to quash a decision made by a lower court.
• Only judicial or quasi-judicial organisations are subject to a writ of prohibition. Writs of
certiorari, on the other hand, are issued against a public authority acting only in an executive
or administrative capacity, as well as legislative bodies, as well as judicial and quasi-judicial
organisations.
Conclusion
Martin Luther King once said, “Injustice anywhere is a threat to justice everywhere”.
This indicates that any unjust conduct or injustice perpetrated somewhere in the world will spread like
a virus and will not be accepted everywhere. As a result, all the justice that has been done will be tainted,
and everyone else will wonder what it would take for the same injustice to be done to them.
Furthermore, there is a need to ensure that all people are treated fairly and that the system is free of
bias. As a result, the notion of writ was established into Common Law in order to keep a judicial check
on administrative operations. Therefore, the Indian Constitution’s Articles 226 and 32 guarantee
people’s basic rights by executing writ.
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7. Indian Judiciary Independent:
Introduction
Independence of judiciary in India

Due to the prolonged British Raj and then a newly formed democracy, there was always a concern on
how the judiciary in India should function. Hence, an independent judiciary was the answer to this
question. For the prosperity and stability of the country, the rule of law is very important. An
independent and impartial judiciary can establish a stable rule of law. Independence of judiciary means,
the power of upholding the rule of law, without any fear or external influence, and maintaining effective
control over the actions of the government. The independence of the judiciary is part of the basic
structure of the Constitution. The independence of the judiciary ensures that the powers of the
Parliament, the State legislature, and the Executive, are properly distributed and there is a balance
between the demands of the individuals and norms of the society. The legal system does not have any
ideology and political interests and is often rendered neutral.
Few case laws which explain the concept of independence of the Indian Judiciary
In the case of S.P Gupta v Union of India (1982), the court held that the judges should be fearless and
should uphold the principle of rule of law. This is the basis of the concept of independence of the
judiciary.
In the case of Supreme Court Advocates-on-Record Association & Anr. Vs Union of India (1993), the
court observed that the independence of the judiciary is necessary for democracy to function effectively.
The court further concluded by stating the powers and rights can never be hampered as long as the
judiciary remains independent from the executive and the legislature.
Constitutional provisions on an independent judiciary
Around the world, the independence of the judiciary has been a debate. However, as India has a
written Constitution, the independence of the judiciary is mentioned in writing, hence, making this
concept even more important. Independence of the judiciary means that the legal fraternity has all the
powers to make their own decisions, without any external influence. The judiciary is not only important
in dispensing justice but also, in solving disputes arising between the States. This can only be done if
the judiciary is free from all outside pressures. Judges play one of the most important roles in the legal
system. Hence, independence of the judiciary also means independence of the judges. This means that
the judges can submit their reports and take decisions without any influence, they are not dependent on
the Government, and they are not dependent on any of their superior judicial officers. Part 5 of the
Indian Constitution deals with the Union Judiciary. The independence of the judiciary starts with the
appointment of the judges in the courts. Article 124 to Article 147 deal with the appointment of the
Supreme Court judges and, Article 214 to Article 231 deal with the appointment of judges in the High
Courts. Further, the Subordinate courts are mentioned under Article 233 to Article 237 of the
Constitution. The highest subordinate court is that of the court of District Judge. The framers of the
Constitution divided the judiciary, legislature, and the executive into three separate organs, so as to
ensure that each organ will perform its roles independently and not interfere with the functioning of the
other, and also that this will help in justifying the principles mentioned in the Preamble.
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The meaning of independence with respect to the judiciary
Even after years of existence, the meaning of the judiciary’s independence is still unclear. Our
Constitution’s Articles 124 to 147 deal with the appointment of Supreme Court judges and Articles 214
to 231 deal with the appointment of judges in the High Courts, but our Constitution only mentions the
judiciary’s independence; it makes no mention of what such independence truly entails. Judiciary’s
independence includes both the independence of the judicial institutions and the independence of the
judges who make up its body. However, judicial independence does not mean lack of responsibility or
arbitrariness. The country’s democratic political system includes the judiciary. As a result, it must
answer to the country’s citizens, the Constitution, and democratic values. The theory of the separation
of powers appears to be the concept’s foundation and focal point. Therefore, it largely refers to the
judiciary’s independence from the executive and legislative branches. Judiciary’s independence goes
beyond just establishing a separate institution free from the oversight and influence of the government
and the legislative branch. The fundamental goal of the judiciary’s independence is that judges must be
able to resolve a dispute that comes before them in accordance with the law, free from other influences.
Because of this, every judge’s independence is a component of the judiciary’s overall independence.
Independence of the judiciary and the rule of law

French theorist Montesquieu contended that a framework in which various authorities exercised
legislative, administrative, and judicial authority while all being bound by the rule of law was the best
way to avoid despotism. He saw despotism as a looming danger to any government that was not already
despotic and the principle of separation of powers refers to this theory. Judicial review is one of the
strongest strategies courts use to defend the rule of law. Judicial review refers to the court’s authority
to assess the legality of both government executive orders and laws established by the legislature. By
employing this authority, the court maintains control over the legislative and executive branches.
The case of Marbury v. Madison (1803), in which Chief Justice Marshall established that the court had
the authority to evaluate legislation adopted by the legislature, can hence be credited for giving birth to
the concept of judicial review. However, a lot of academics have criticised this idea for a variety of
reasons, including judicial authoritarianism, excessive dependence on judges, being undemocratic, and
being a barrier to a strong democracy.
Independence of the judiciary : international perspective

The Basic Principles on the Independence of the Judiciary, which were ratified by the General
Assembly in resolutions 40/32 on November 29, 1985, and 40/146 on December 13, 1985, were
approved by the 7th United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held in Milan from August 26 to September 6, 1985. The Universal Declaration of Human
Rights (Article 10) and the International Covenant on Civil and Political Rights, among other human
rights documents, both established the idea of judicial independence (Article 14). Additionally, there
are a number of UN standards, particularly the Bangalore Principles of Judicial Conduct from
2002 which was accepted by the UN General Assembly.
The United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the
Organisation and Administration of Justice in Every Country, and other basic principles developed to
aid the Member States in their task of securing and promoting the independence of the judiciary should
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be taken into consideration and respected by governments within the framework of their national
legislation and practise and brought to the attention of judges, lawyers, members of the executive, and
the legislative.
Constitutional provisions (more content for existing heading)

Our constitution has several clauses that guarantee the independence of the judiciary. The following is
a discussion of the constitutional clauses:
Security of Tenure:
The Supreme Court and high court justices have been granted tenure security. Once appointed, they
stay in their positions until they reach the retirement age, which is 65 years for judges of the Supreme
Court (Article 124(2)) and 62 years for high court judges (Article 217(1)), respectively. They cannot be
removed from their positions other than by presidential order, and even then only on the basis of proven
misbehaviour and incapacity. A majority of all members of each House of Parliament, as well as a
majority of at least two-thirds of the members who are present and voting, are required in order to
approve a resolution to that effect. Due to the difficult nature of the procedure, there has never been a
case of a Supreme Court or High Court judge being removed under this clause.
Separation of the Judiciary from the Executive:
According to Article 50, which is one of the Directive Principles of State Policy, the State must take
action to keep the judiciary and executive branches distinct in its public services. Securing the
judiciary’s freedom from the executive is the goal of the Directive Principle. There must be a separate,
independent judiciary according to Article 50.
Salary and Allowances:
Since judges’ salaries and allowances are set and not subject to a vote by the legislature, it is also a
factor that contributes to the judges’ independence. In the instance of judges of the Supreme Court, they
are charged to the Consolidated Fund of India, and in the instance of judges of the high court, to the
state consolidated fund. Except in extreme financial emergencies, their pay structures can be changed,
but they cannot be changed to their detriment (Article 125(2)).
Powers and jurisdiction of Supreme Court:
Parliament is only able to increase the Supreme Court’s authority, it cannot reduce it. Parliament may
alter the monetary threshold for Supreme Court appeals in civil matters. The Supreme Court’s appellate
authority may be expanded by Parliament. To help the Supreme Court function more efficiently, it could
grant it extra authority. It may provide authority to issue orders, writs, or directives for any purpose
other than those listed in Article 32. The Supreme Court’s authority cannot be diminished, thereby
establishing judicial independence in India.
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Penalising for its contempt:
Both the Supreme Court and the high court are able to do so. According to Article 129, the Supreme
Court is empowered to penalise for its contempt. Similarly, Article 215 stipulates that each high court
should have the authority to impose punishment for contempt of itself.
The conduct of a judge is not discussed in the state legislature or Parliament:
According to Article 211, no debate over the behaviour of any Supreme Court or high court judge in
the course of his duties shall take place in the state legislature. A similar provision is included in Article
121, which states that no discussion of the behaviour of the Supreme Court or A high court judge in the
performance of his duties may take place in Parliament until a resolution is presented by the President
requesting the judge’s dismissal.
Appointment of Judges
The Collegium
According to the First Judges case, the Chief Justice of India’s (CJI) proposal for judge appointments
and transfers might be rejected for “cogent reasons.” For the following 12 years, the executive had
priority over the judiciary in making judicial appointments. However, the Supreme Court held in
the Second Judges case (and subsequently the Third Judges case, which was a clarification) that the
judiciary had supremacy in appointing judges. According to it, the Supreme Court’s senior-most judges
and the Chief Justice of India will have a major influence on judicial recruitment decisions. Regarding
judicial appointments, rules and procedures were established. The executive’s position was drastically
diminished, and the judiciary now controlled a major function.
NJAC
With the passage of the Constitution (Ninety-ninth Amendment) Act of 2014 as well as the National
Judicial Appointments Commission Act of 2014, the NDA government proposed the establishment of
the National Judicial Appointments Commission in 2014. The Commission would be made up of the
Chief Justice of India, two senior judges, the Law Minister, and “two eminent personalities” chosen by
the Prime Minister and Leader of the Opposition. The NJAC Act and Constitution (Ninety-ninth
Amendment) Act, 2014 were, however, declared illegal by the Supreme Court in a case brought by the
Advocates-on-Record Association as according to them it undermined the separation of powers and
intruded on the independence of the judiciary.
Relevant rulings where the independence of the Indian Judiciary has been challenged
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No one is perfect in this world. So, how can a judiciary be perfectly independent? In India too, judicial
independence has been challenged in various court rulings. However, before that, to justify this, in India
the Constitution has mentioned provisions for the appointment of judges in the Supreme Court and the
High Court, but the final approval while selecting the judges is in consultation with the President of
India. A few of these court rulings are:
The Rafale deal case
In this case, the Indian Government announced a deal with the French Government to purchase 36
Rafale fighter jets from the French company Dassault Aviation in 2015. The deal also included a 50%
offset clause which meant that the French company had to invest 50% of the contract value in India by
purchasing Indian goods and services. Next year, the company and Reliance Group announced a joint
venture. Dassault specified that it wants to invest $115 million to fulfill its offset obligation partially.
Hence, the matter went to the Supreme Court where the litigants alleged irregularities in the deal. The
Court turned down the corruption charges on the grounds that it had less scope for judicial review in
defense matters. This decision of the Court proved to be controversial as the government stated that the
judgment had some factual errors. The judgment consisted of the CAG(Comptroller and Auditor
General) report and the Parliamentary Accounts Committee report which were submitted to the Court
by the government and were termed as misinformation. The Court decided to review the petitions on
merit, hence closing the controversy.
The Bhima Koregaon case
In 2018, the celebrations for the bicentenary anniversary of the Bhima Koregaon battle were interrupted
due to violence leading to the death of a person and several injuries. The police investigated and arrested
several activists claiming that inflammatory speeches were made by them eventually leading to the
violence. Hence a PIL was filed seeking an investigation by the SIT(Special investigation team) over
the Unlawful Activities (Prevention) Act charges against the arrested activists. The litigants alleged that
the Mumbai Police were biased in their decision. The case went to the Supreme Court who dismissed
the case with a 2:1 majority. While the two judges who were Chief Justice of India Dipak Misra and
Justice Khanwilkar were satisfied with the investigation done by the Mumbai Police, Whereas, Justice
D.Y Chandrachud was not. Justice Chandrachud dissented, alleging that the arrests were made targeting
political dissent.
Aadhar Act as a money bill case
In this case, the issue was whether the Aadhar Act in 2016, was passed as a money bill. The court held
that it was a money bill again with a majority. Justice A.K Sikri accepted the act as a money bill and
referred to Section 7 of the Act which states that the Aadhar based authentication can be used for
benefits or services charged on the Consolidated Fund of India, hence it can be used as a money bill.
Whereas, Article 110 of the Constitution stated that the money bill can be used only on services related
to spending and receiving of money by the Union Government. Hence, the judgment was criticized and
Justice Chandrachud who had dissented to the judgment termed it as a fraud on the Indian Constitution.
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The CBI-Alok Verma case
In this case, the judgment was delayed. The government had divested the CBI director Alok Verma of
all his powers. This needed sanctions from a high-powered committee under the Delhi Special Police
Establishment Act. The Supreme Court examined the details of the corruption charges against the CBI
director. Later, the Court directed the reinstatement of Verma as the CBI director on the basis of the
sanctions of the selected committee. However, the reinstatement was ordered when Mr. Verma had just
three weeks left for his tenure. Hence, this raised criticism once again.
Is India’s judicial independence at stake

The above-mentioned court rulings were criticized on the grounds that they had political interests.
However, there have been instances where the judges after retirement have enjoyed certain benefits.
Former Chief Justice of India Ranjan Gogoi was made a member of the Rajya Sabha after stepping
down from the post of CJI. Similar instances in the past have occurred. In 1991, Justice Ranganath
Mishra stepped down as the CJI and was later made the Chairman of the National Human Rights
Commission. Justice M. Hidayatullah was the Chief Justice of India who retired in 1970. He later
became the Vice President of India. There have also been instances where the members of Parliament
have become judges. Due to the COVID 19 pandemic, the courts are shut and all physical hearings are
done online. This has made things difficult because there is already a huge pendency of cases. Hence
the courts decided to deliver judgments on cases that are very urgent. However, the listing of urgent
cases for hearing has been controversial. A petition was filed in the case of Jagdeep Chokkar v Union
of India (2020), for the return of the migrant workers who were helpless and stranded amidst the
lockdown to their homes. This matter was not heard immediately, whereas a petition filed in the case
of Arnab Goswami v Union of India (2020), for quashing the FIRs against him, was heard on the next
day. Hence this was controversial as to which case the court found more important. Further, the internet
in Jammu and Kashmir was shut down for nearly 6 months. The Court took a long time to hear this
matter. The people in Jammu and Kashmir were deprived of the internet and cut of from the rest of the
world. As we have touched on the cases where the court has faced criticism for having political interests,
there have been many landmark judgments that were assumed to have political interests but the judiciary
stood strong. In the case of Indira Gandhi v Raj Narain (1975), Raj Narain, an activist challenged the
appointment of the then Prime Minister Indira Gandhi on the grounds that it was faulty. This case was
just before the emergency was implemented. The Court found out that the appointment of Indira Gandhi
was faulty and she was ordered to leave her office. This judgment proved to be one of the major
judgments in the context of judicial independence. However, in recent times, the judiciary has had to
face a lot of criticism due to the cases they give more priority to, and also the post-retirement stint of
the judges. This shows that there is work needed to be done in the functioning of the justice system.
Few suggestions are:
• The salaries given to the judges in India are less as compared to the other countries, which
makes a strong reason why the judges look for post-retirement jobs.
• Many times it is seen that highly influential cases are given more priority than the cases
which are of a social cause and are really necessary to be heard. The reason this might be
happening is the low strength of the judiciary. Increasing the strength of the judiciary can
help in solving influential as well as genuinely urgent cases.
• There is a need to impose a law that ensures that the judges do not get post-retirement jobs.
This will ensure a little discipline and reliability in the working of the courts.
Suggestion
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Before the concept of the collegium given by the Supreme Court, Article 124 of the Indian Constitution
stated unequivocally that the President of India, in concert with the Chief Justice of India, would appoint
any judges to the Supreme Court. This indicates that the constitutional writers themselves thought the
appointment of judges required the intervention of the executive. It has been made very obvious that all
of the components of a democratic government require the establishment of certain safeguards. The
Constitution’s framers made a conscious decision to keep the executive involved in the selection of the
judiciary in order to prevent any abuse of power by a single branch of government, despite the fact that
the entire concept of the separation of powers was created to keep each branch independent of the other.
However, collegium governance should also exist with regard to the promotion or transfer of judges in
order to protect their judicial independence and allow them to exercise their judgement freely without
interfering with their personal or substantive independence. So, we can say that independence of the
judiciary is necessary while not forcing itself on the other wings of the government.
Conclusion
The work that the justice system does is very difficult. Hence, the judiciary has been given the power
of judicial independence which is mentioned in the Constitution of India. The judges do a phenomenal
job of administering impartial justice to the people. However, while doing this, there are bound to be
people who are not happy with the decision. Hence, this is where the independence of the judiciary is
challenged. Now, no one can ever prove whether there is any sort of influence on the justice system in
India. However, the above-mentioned case laws and the examples of judges acquiring jobs after retiring
from the judiciary, call for some serious reforms in the country’s justice delivery system.
8. Centre-State Relationship India

The constitution of India is based on the principle of federalism in which the powers are divided
between the union and the states. However, the powers are not equally divided and the centre is given
extra authority in case of adversities. Further, the states are not allowed to leave this federation and the
centre can alter the boundaries of states. This complex interplay of power between the union and state
government is known as the Centre-state relationship and it is elaborately explained in our Constitution.
In this article, we will explore the legislative, administrative and financial relationship between the state
and the centre. Further, we will also look into the impact of an emergency on the centre-state
relationship.
Table of Contents
• Elements of Centre-State Relationship

o Legislative Centre-state relationship
▪ The extent of laws Making
▪ Subject-matter of Legislature
▪ Power to legislate on the residuary subject
▪ Parliament’s Power to Legislate on the subjects falling in the domain
of state legislature
▪ The control of Parliament over State Legislature
o Administrative Centre-state relationship
▪ The extent of Executive power of State and Centre
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▪ Duty on State to not interfere with the executive power of the union
government
▪ To construct or maintain means of communication relating to
military or national importance
▪ To Protect Railways:
▪ For the welfare of Scheduled Tribes
▪ To impart primary education in a mother-tongue language
▪ To ensure that the constitutional provisions are followed by the state
government
▪ The power of the Union government to adjudicate the Inter-State
River Water Disputes
▪ Administrative Relations During Emergencies
o Financial Centre-state relationship
▪ Distribution of tax
▪ Grants-in-Aid from the Central Resources
▪ Finance Commission
• Conclusion
Elements Of Centre-State Relationship
There are 3 main elements of the Centre-state relationship which is as follows –
1. Legislative relations
2. Administrative relations
3. Financial relations
Legislative Centre-State Relationship
The legislative relationship between the centre and the states are mentioned between Articles 245 to
255 of the constitution. These legislative provisions enshrined under part XI of the constitution are as
follows –
The Extent Of Laws Making
The parliament of India is empowered to make laws for any part of India including our union territory.
Further, the parliament can make extra-territorial legislation for the security and well being of Indian’s
inhabitants residing in any other part of the world. On the other hand, the law-making areas of the states
are confined to the geographical area of a particular state.
Subject-Matter Of Legislature
The constitution of India has divided the legislative authority of the centre and states into 3 lists namely
union list, state list and concurrent list. The union list comprises 99 subjects including foreign affairs,
defence, etc. and the union parliament has the sole authority to make law on these subjects. The state
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list includes 61 subjects including health, public order, etc. and the state legislature has the exclusive
jurisdiction to formulate laws on these subjects.
7th schedule of Indian constitution- Union list, State list and Concurrent list
Lastly, the concurrent list has 52 subjects including education, family planning, criminal procedure code
etc. It is important to note that under the concurrent list both the parliament and the state can frame
laws. However, in case of conflict, the laws formulated by the parliament will prevail.
Power To Legislate On The Residuary Subject
The constitution of India also contains provisions related to those subjects which are not mentioned in
any of the aforesaid lists. These subjects are known as residuary subjects and the union parliament is
given the authority to frame laws on these subjects. However, if any dispute arises, it is the duty of the
court to determine whether a subject falls in the ambit of the residuary list or not.
Parliament’s Power To Legislate On The Subjects Falling In The Domain Of State Legislature
In ordinary circumstances, the law-making power between both the union and the state legislature is
confined to their concerned list. However, the constitution of India can allow our union parliament to
legislate on the state list under certain circumstances. These conditions are as follows –
• To protect the National Interest

This provision is given under Article 249 of the constitution and it allows the parliament to make law
on any subject if the national interest is at stake. For using this provision, firstly a resolution is passed
in Rajya Sabha with more than 2/3 members stating the need for making a law on the state list to protect
our national interest. After the resolution is passed, the parliament is empowered to formulate the law
and it remains in force for a maximum period of 1 year. However, the period can be extended by passing
the subsequent resolution.
• When National Emergency is in Operation

This power is given under Article 250 of the constitution. As per this Article, the parliament is
empowered to make the law even on the state subjects when the emergency is in operation. However,
it is important to note that the laws made under this provision will lose their validity after 6 months
from the date of emergency.
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• Agreement between States
As per Article 252 of the constitution, the parliament can make law on the state list if a particular state
passes a resolution that it is lawful for the union parliament to make law for this state and they will
abide by the law. Thus, any law passed by the union parliament will also have applicability to that state
also. However, the parliament still possesses the right to amend or repeal such a law made under this
provision.
• For Giving Effect to any International Treaties

As per Article 253 of the constitution, the president can enter into any bilateral or multilateral treaty
and the union parliament had to make a domestic law for giving effect to any such treaty. Thus, the
Parliament can enact any law for implementing any treaty or convention irrespective of the list the
subject may belong to.
• When President’s Rule is in operation

The concept of imposing president rule is mentioned under Article 356 of the constitution. This Article
empowers the president to suspend the state assembly on the ground of the breakdown of constitutional
machinery in a state. During this period, the parliament formulated laws for that particular state and
these laws have the validity of 6 months from the date of declaring president rule.
The Control Of Parliament Over State Legislature
The constitution of India is quasi-federal in nature with a strong centre that ensures that it keeps a vigil
over the functioning of the states. The centre can exercise control over the state’s legislature by the
following methods
• The governor possesses the author to transfer a bill to the president to seek his opinion.
The president can exercise an absolute veto over such a bill.
• There are certain matters in the state list on which the bill can be introduced only before
the prior consent of the president. These bills generally relate to the subject of trade
and commerce.
• During a financial emergency, the president possesses the authority to direct the state
authority for reserving money bills and other financial bills for his consideration before
passing in the state legislature.
Administrative Centre-State Relationship
As with the legislature authority, the administrative function of the centre and states are confined to the
subjects mentioned in the union and the state list respectively. Thus, the administrative relation can be
defined through the following –
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The Extent Of Executive Power Of State And Centre
This provision is dealt with under Article 256 of the constitution. It states that the executive power of a
state shall be exercised in a manner that complies with the union laws framed by the parliament.
Similarly, the central government shall also issue its direction after having regard to the particular state
laws.
Duty On State To Not Interfere With The Executive Power Of The Union Government
As per Article 257 of the constitution, the state should exercise its executive power in a manner that
doesn’t contravene or prejudice the executive power exercised by the union government. However, the
union government has broad powers and it is empowered to issue such directions that may result in the
encroachment of state authority.
To Construct Or Maintain Means Of Communication Relating To Military Or National Importance
As per this provision, the central government is empowered to issue directions to the state government
relating to the construction or the protection of the existing means of communication that are very
important for the military and national interest. The state had to abide by the same.
To Protect Railways:
This provision states that the union government can issue directions to the state government pertaining
to the protection of railways falling under the concerned state’s jurisdiction. However, it is important
to note that any expense incurred during this process of protection is reimbursed by the central
government.
For The Welfare Of Scheduled Tribes
This provision states that the union government can direct the state government to launch any scheme
or programme to ensure the welfare of the scheduled tribes of the state.
44
To Impart Primary Education In A Mother-Tongue Language
This provision is mainly used for the betterment and advancement of minority linguistic groups. The
central government can issue directions to a state to make arrangements so that the children can learn
their initial education in their mother tongue language.
To Ensure That The Constitutional Provisions Are Followed By The State Government
This provision is the heart of the centre-state relation. Under this, the central government is empowered
to issue any direction to the state government to ensure that it is functioning as per the provision of the
constitution. However, if a state doesn’t comply with the provision of the constitution for a substantial
period of time, then the central government is authorised to suspend the state government and impose
president rule in that state.
The Power Of The Union Government To Adjudicate The Inter-State River Water Disputes
The constitution of India has provided our union government with the power to adjudicate any dispute
that may arise in relation to the use or distribution of water or any other inter-river dispute. The pertinent
thing to note is that the parliament is also empowered to exclude this kind of dispute from the
jurisdiction of the Hon’ble supreme court or High court.
Administrative Relations During Emergencies
• President’s Rule: When a president’s rule is imposed under Article 356 of the
constitution, the union gets all the administrative power of the state.
• National Emergency: When a national emergency is in operation, then the central
government is empowered to issue directions relating to those subjects which may fall
in the domain of a state’s executive power. It is mandatory for the states to follow these
directions.
• Financial Emergency: When a financial emergency is declared by the central
government, then it is empowered to issue directions to the states relating to reducing
the salary or allowance of government servants or the judges of various courts etc. It
can also direct the state government to put all the money bills before the president for
his consent.
Thus, we can say that in the administrative field, the states can’t work in isolation and they have to
follow the directions of the central government.
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Financial Centre-State Relationship
The financial relationship between the Centre and the state government is governed by Articles 268 to
293 of the constitution. It provides detailed provisions relating to the distribution of tax as well as non-
tax revenue between the centre and the state.
Distribution Of Tax
As per the constitution, the parliament has the exclusive or the sole jurisdiction to levy taxes on those
subjects which are mentioned in the union list and the state government can impose a tax on the subjects
falling under the state list. In the case of a concurrent list, both the centre and the states are eligible to
levy taxes.
Grants-In-Aid From The Central Resources
Apart from tax, the state government also received certain kinds of grants from the central government.
These grants can be divided into 2 parts –
• Statutory Grants:
It refers to that grant which is given by the parliament from the consolidated fund of India. It is generally
given to those states who are facing some financial adversity. The amount of grants is not certain and it
keeps changing as per the requirement of the states. Sometimes, a specific grant is given by the central
government to promote the welfare of scheduled tribes of a state.
• Discretionary Grants:
This provision is dealt with under Article 282 of the constitution. As the name suggests, this grant is
discretionary in nature and is given on the basis of the recommendation received from the planning
commission. The main objective of giving such grants is to assist the states in achieving the result of a
particular plan.
During a National Emergency, the union government can declare that the distribution of tax between
the centre and states shall remain suspended. Further, it can also suspend or cancel any proposed grant
in aid given to a particular state.
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Finance Commission
Article 280 of the constitution deals with the establishment of the finance commission. The main
objective of setting this commission is to ensure the effective distribution of financial resources between
the centre and the states. This commission works under the authority of the president and he can
recommend changes every 5 years.
The commission mainly has 5 members including 1 chairman and 4 members. The chairman must have
experience in public affairs. Other 4 member includes –
• A judge of the high court or a person having equivalent qualification

• A person having expertise in the field of finance and account of the government.
• A person having experience in public administration
• A person having expertise in the field of economics.
Conclusion
Federalism is a part of the basic structure of the constitution and the centre-state relationship is the core
principle behind it. There are mainly three facets namely legislature, administrative and financial
matters wherein their relationship is governed. Broadly, in all three domains, the power of the centre
and the states are confined to the subject of union and the state list respectively. However, in case of an
emergency, all the power got transferred to the central government.
9. EMERGENY PROVISIONS AND SCOPE
As evident from the word “emergency”, it refers to the unexpected turn of events that causes the
public authorities to take instant actions within their boundary. Human civil rights, except Articles
20 and 21 of the Indian Constitution, are removed from the state or Nation during an emergency.
Most of the emergencies are brought about by breaking down administrative machinery.
Dr B.R Ambedkar declared the Indian federal structure as special because of its ability to become
unitary when an administrative apparatus fails.
The key idea behind legislative arrangements for emergencies was to safeguard the region from
autocracy paired with domestic chaos, wars, and foreign assaults. The Black Law Dictionary describes
that any emergency demands immediate intervention and imminent warning, as such a condition is a
threat to both people and liberty within the region.
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The framers of the Constitution faced a dilemma in deciding the extraordinary arrangements under
which the President may declare an emergency. The pre-independence era of India is known for its
instances of destructive casteism, communalism, and religious tension.
With the defeat of the Monarch of Kashmir, a state of conflict arose with Pakistan. Junagarh and
Hyderabad have shown reluctance towards their membership in the Union of India. To mitigate the
issue and to prevent the separatist action, the Government of India devised Article 352.
The post-Independent India was coming up with Socialist regimes, and the communist activities of
Telangana’s workers and farmers were spreading. Article 356 was introduced to ensure safety against
extreme emergencies and protect legislative processes.
Article 360 was later added to the list by Dr B.R Ambedkar to cushion the country’s financial position
that was drastically falling along with foreign currency reserves and branches.
Important Events and Emergency Provisions in Indian Constitution
Emergency in the Indian Constitution can be differentiated as National Emergencies, State

Emergencies, and Financial Emergencies. Part XVIII of the Constitution contains the emergency
provisions in India.
• Article 352 demarcates the National Emergency: According to Article 352, the President
may declare an emergency when the region is under a state of attack, external intrusion, or
internal rebellion. Though such a declaration could only be made in the presence of the
legislative house and further supported by each chamber, the emergency was withdrawn after a
month of announcement.
The first emergency in the Nation was declared during the war with China, which lasted between 1962
and 1968. After that, the most contentious emergency was declared due to internal conflict by Smt.
Indira Gandhi.
• State Emergency has been included in Article 356: Article 356 marks out that the President
can declare a state emergency on receipt of briefs by the Governor of a particular state or by
the President’s observation on degrading mechanisms of the state. Thirty-five instances of
President rule have been recorded under the rule of Smt. Indira Gandhi.
• Financial Emergencies are in Article 360: The President can declare financial emergencies if
convincing evidence of an unstable economy and credibility is encountered. Executive and
legislative factors play a central role in declaring a financial emergency. According to Article
360, a corresponding proclamation will be withheld during the entire emergency period.
Financial emergency has never been declared in India.
The 44th Amendment changed the picture of emergency provisions in the Indian Constitution that
restricted the executive’s unjust influence as previously done in 1975. The “internal disturbance” is
replaced by “armed rebellion.” It is also clearly stated that direct communication between cabinets must
occur to declare an emergency. Moreover, the residents should be re-approved every six months to
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proceed with the emergency. Finally, the state of emergency can be annulled by a simple majority of
the Houses.
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1.

Position and Powers of the President

The President of India

How is the President Elected?

What are the Qualifications of a President?

What is the manner of Election of the President?

Who administers the Oath of the President?

What is the tenure of the President?

What is the meaning of Impeachment?

Head of the Armed Forces

Power to make appointments

The Prime Minister

Chief Justice of India

Attorney General of India

Comptroller and Auditor General of India

Chairperson of the National Human Rights Commission

Chief Election Commissioner and other Election Commissioners

Administrators of Union Territories

Powers relating to the Council of Ministers

Assent of the President

Power to Summon and Prorogue both the houses

Nominating Members to Parliament

Power to declare Emergency

There are 3 types of Emergency which can be declared by the president:

1. National Emergency (Article 352)

2. Pardoning Powers Of President (Article 72)

Pardoning Power Of The President: Concept And Purpose

Pardoning Powers of Governor - Article 161

Role of the Council of Ministers

Process of granting pardon in India

Terms related to pardoning powers

• It implies reducing the period of a sentence without changing its character.

• It denotes the substitution of one form of punishment for a lighter form.

Comparison of Pardoning Powers of President and Governor

Kuljeet Singh v. Lt. Governor (famous Ranga-Billa Case)

Pardoning power of the President - Legislative Background

3. Vice-President of India – Article 63-73 of Indian constitution

Article 63 tells us that There shall be a Vice-President of India.

Article 64 of Indian Constitution

Article 65 of Indian Constitution

Article 71 of Indian Constitution

Article 72 of Indian Constitution

1. The union shall extend its power

4.GOVERNORpointment - UPSC Indian Polity Notes

How is a Governor Appointed?

What is the term of the Governor’s office?

Who is qualified to become a Governor?

1. He should be an Indian Citizen

What are the conditions of his office?

There are a few conditions for a person to be appointed as a Governor:

What are the powers and functions of the Governor?

Executive Powers of the Governor

The following comes under his executive powers:

Legislative Powers of the Governor

The following are the legislative powers of the governor:

• When provisions mentioned in the bill violates the constitution (Ultra-Vires)

Financial Powers of the Governor

Judicial Powers of the Governor

1. He has the following pardoning powers against punishment:

What is the Constitutional Position of Governor?