Category Archives: Constitutional Law – II



Funds of Government of India

The accounts of Government are kept in three parts

1. Consolidated Funds of India
2. Contingency Funds of India
3. Public Account

Consolidated Fund of India This is the chief account of the Government of India. The inflow to this fund is by way of taxes like Income Tax, Central Excise, Customs and also non-tax revenues which arise to the government in connection with the conduct of its business. Loans raised by issue of treasury bills are also received in this fund. The government meets all its expenditure including loan repayments from this fund. No amount can be withdrawn from the fund without the authorisation from the Parliament. This fund is formed under the provision of Aricle 266 (1) of the Indian Constitution. Each state may have its own consolidated fund of the state with similar provisions.

Public Account The Public Account is constituted under Article 266 (2) of the Constitution. All other public moneys (other than those covered under Consolidated Fund of India) received by or on behalf of the Government of India are credited to the public account of India.

The transactions under Debt, Deposits and Advances in this part are those in respect of which Government incurs a liability to repay the money received or has a claim to recover the amounts paid. The receipts under Public Account do not constitute normal receipts of Government. Parliamentary authorization for payments from the Public Account is therefore not required. Each state may have its own Public Fund on similar lines.

Contingency Fund of India The Contingency Fund of India is set up in the nature of an imprest account under Article 267 (1) of the Constitution of India. The corpus of this fund is Rs. 500 crores. Advances from the fund are made for the purposes of meeting unforeseen expenditure by the President of India. The amount is resumed to the Fund to the full extent as soon as Parliament authorizes additional expenditure. The Secretary to the Government of India, Ministry of Finance, Department of Economic Affairs holds the fund on behalf of the President of India. Each state may have its own Contingency Fund on similar lines.


Doctrine of Colorable Legislation (2018)

The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

 

Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and applied by the Supreme Court of India to interpret various Constitutional Provisions. It is a guiding principle of immense utility while construing provisions relating to legislative competence.

his maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

 

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.

 

This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one. By applying this principle the fate of the Impugned Legislation is decided.

Doctrine of Colorable Legislation states, “Whatever legislature can’t do directly, it can’t do indirectly”. By applying this principle the fate of the impugned legislation is decided. This has been provided by Article 246 which has demarcated the legislative jurisdiction of the parliament and the state assemblies by outlining the different subjects under List I for the Union, List II for the State and List III for both, as given in the seventh schedule to the Indian Constitution.

 In a recent case the supreme court rejected that the Armed Forces Special Powers Act,1958 enacted by the parliament is colourable legislation and held that “the use of the expression ‘colourable legislation’ seeks to convey that by enacting the legislation in question the legislature is seeking to do indirectly what it can not do directly. But ultimately the issue boils down to the question whether the legislature had the competence to enact the legislation because if the impugned legislation falls within the competence of the legislature the question of doing something indirectly which cannot be done directly does not arise.”

Colourable Legislation in India :  In India ‘doctrine of colourable legislation’ signifies only a limitation of the law making power of the legislature. It comes to know while the legislature purporting to act within its power but in reality it has transgressed those powers. So, the doctrine becones applicable whenever a legislation seeks to do in an indirect manner what it cannot do directly.

In India legislative powers of Parliament and the State Legislatures are conferred by Article 246 and distributed by Lists I, II,and III, in the Seventh Schedule of the Indian Constitution. The Parliament has power to make law respect to any of the matters of the List II and the Parliament and the State Legislatures both have power to make laws with the respect to any of the matters of the List III and the residuary power of legislation is vested in the Parliament by virtue of Article 248 and entry 97,List I. For making any law or for that law’s validity legislative competency is an issue that relates to how legislative power must be shared between the Centre and the States or it focuses only on the relationships between both of them. The main point is that the legislature having restrictive power cannot step over the field of competency. It is termed as the ” fraud on the Constitution.”

 


Power and Position of President ? (2018)

The President  is the Head of State of India, and supreme commander of armed forces. the President is the nominal executive or a Constitutional ruler. He is the head of the nation, but does not govern the nation. Our Union Council of Ministers headed by the Prime Minister is the real executive. And the President rules the country on the advice of the Prime Minister and his colleagues. The powers and the functions of the President of India may be classified under five heads,

  1. executive,
  2. legislative,
  3. financial,
  4. judicial
  5. emergency.

Executive powers

Article 53(1) vests the executive power of the union in the president. All executive actions of the Government of India and all contracts and assurances of the property are made by the Government of India are formally taken in the name in president.

Appointments made by president

President of India makes appointment to other constitutional officers and other important members of union government. These include:

  • Prime Minister
  • Other ministers on advice of Prime Minister
  • Chief Justice of India
  • Other Judges of Supreme Court on advice of the Chief Justice
  • Chief Justice and other judges of high courts
  • Chairman and other members of UPSC and Joint Public Service Commissions
  • Attorney General of India
  • Comptroller and Auditor General of India
  • Chief Election Commissioner and other members of election commission
  • Governors of states
  • Administrators of Union Territories
  • Chairman and members of National Commission of Scheduled Caste
  • Chairman and members of National Commission of Scheduled Tribes
  • Finance Commission chairman and members
  • Central Chief Information Commissioner
  • Central Vigilance Commissioner
  • Chairperson of National Human Rights Commission
  • Union Lokpal Chairman and its members on recommendation of selection committee

At the same time, also note that:

  • Chairperson of National Commission of Women is notappointed by President but by Central Government.
  • Solicitor General is NOTappointed by President. His appointment is done by Central Government.
  • The chairman and member of state public service commissions are although appointed by Governor, the removal of any of them (chairman or members) will be done by president.

Role of Council of Ministers in Executive Powers

The executive powers vested in the president have to be exercised in accordance with the advice of the Council of Minister as per Article 74(1). However, he has the power to send back the advice to council of Ministers for reconsideration. If the council of Ministers adheres to the previous advice, the president has to act as per this advice. This is the reason that real executive powers are with the Central Government.

Further, Article 74 (2) says that what advice was tendered by minister to the president shall not be inquired into in any court. Thus, relation between president and council of ministers are confidential and cannot be questioned in a court. Further, constitution also mentions some duties of the Prime Minister towards President in article 78. These are:

  • To communicate to the President all decisions of the Council of Ministers Regarding the administration and legislation of India.
  • To furnish such information as the President may call for.
  • To submit for the Consideration of the Council of Ministers as desired by the President.

Legislative Powers of President

President as part of Parliament

The parliament is composed of president, Lok Sabha and Rajya Sabha, thus president of India is a inseparable part of Indian Parliament despite not being member of any house.

Power to summon, prorogue two houses of parliament

President has power to summon or prorogue {Prorogue means discontinuing without dissolving. It refers to end of a session of parliament) the two houses of parliament. After a prorogation, the house must be summoned within 6 months. The President may dissolve the Lok Sabha. (Rajya Sabha is never dissolved). After the general Elections, president addresses both the houses of the parliament. He may address either house or a joint sitting.

Nomination of MPs

President nominated 2 members of Anglo Indian Community in the Lok Sabha (Article 331). He also nominates 12 members of Rajya Sabha if they excel in Art, Literature, Science, Social Science, Culture etc. (Article 80)

Giving assent to bills

The bills passed by the parliament become acts only after assent of president. When a bill is send to President after it is passed in parliament, President has the following options:

  • can either give his assent (he must give assent in case of Constitution Amendment bill)
  • withhold his assent if it is not a Constitution amendment bill
  • Return the bill to the parliament for reconsideration if it is not a money bill

When Parliament passes again a bill sent to it with or without amendments, the president has to give assent to that bill.

The bills passed by state legislatures are sent to governor for assent. Governor has been given power to reserve a bill for consideration of president, provided such bill is not a money bill of that state. When the governor sends such bill to president, president has the following options:

  • give his assent to the bill
  • withhold his assent to the bill
  • Direct the governor to return the bill for reconsideration of the state legislature. If the state legislature again passes the bill with or without amendments; and if the governor again sent to president, it is NOT obligatory for president to give assent to such bill.
Pocket veto

In case of an ordinary bill or a bill got introduced by a private member and passed by both houses, the president can just keep the bill in his pocket and forget it. When president neither gives assent nor returns the bill, it is also called “Pocket Veto”.  Pocket Veto is applicable to only ordinary bills. This is also called Absolute Veto.

President’s Assent in case of Constitution Amendment Bills

Before 24th amendment 1971, President could withhold assent to a Constitution amendment bill. After this amendment, it has been made clear that once passed by parliament, president has to give his assent. Thus, while president cannot block a constitution amendment bill, such bill are subject to judicial scrutiny and can be nullified by Supreme Court if they are violative of basic structure doctrine.

The President may either give or withhold his assent to a Money Bill. Under the Constitution, a Money Bill cannot be returned to the House by the President for reconsideration.

President’s assent in case of Money Bills

Money bills can be introduced in the Parliament only with prior recommendation of President. Due to this President can agree to that bill or withhold his assent but can NOT return a money bill to the house for reconsideration.

The bills that need prior recommendation of President

The bills that need prior recommendation of the president for introduction in parliament are as follows:

  • Any bill that seeks to alter the boundaries of the states and names of the states. (Article 3)
  • Money Bill (as per Article 110)
  • Any bill which affects the taxation in which the states are interested (Article 274)
  • State Bills which impose restriction upon freedom of trade (Article 304).

Financial Powers of the President of India :
(i) No money-bill can be presented it the Lok Sabha without the President’s prior permission.
(ii) Budget of the Central Government is presented to Lok Sabha by the Union Finance Minister only with the permission of the President.
(iii) He appoints Finance Commission after five years or earlier of there arises such a need.
(iv) He distributes the shares of the Income Tax between the union and the States. All these powers of the President are however, exercised by him only on the advice of the Cabinet.

(V) the President can take advances out of the Contingency Fund of India to meet unforeseen expenses.

Judicial Powers / Power to Pardon

Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The meaning of these terms is as follows:

  • Pardon:Complete pardon
  • Reprieve:Temporary suspension of sentence
  • Respite:awarding less sentence
  • Remission:Reducing amount of sentence
  • Commutation:Changing one punishment to another

 

Comparison of Pardoning Power of President and Governor

Governor also has powers to pardon under article 161.  However, while president can grant pardon to a person awarded death sentence; governor does not enjoy this power. Governor can commute death sentence to some other kind of sentence.

Role of Union Government and Supreme Court in Pardoning Power

Power to grant pardon is not absolute and is exercised by the President on the advice of Council of Ministers like any other powers. Further, the power to pardon is subject to judicial review and Supreme Court retains the power of judicial review even on matters which has been vested by the Constitution solely in the Executive.

Military Powers of President

Article 53 vests the supreme command of the Armed Forces of India in the President. President of India can declare war or conclude peace, under the regulation by the parliament.

As the Supreme Commander of the Indian Armed Forces the President plays the following role:

  • He appoints the chiefs of defence forces
  • The country declares war in the name of the President.
  • The country also concludes peace in the name of the President

 

Diplomatic Powers of President

India is represented on International forum by President of India. He sends and receives ambassadors.

All international treaties and agreements are concluded on behalf of the President subject to ratification by the parliament.

The President of India plays a vital role in maintaining diplomatic and cordial relationships with other countries across the globe.

  • The country’s ambassadors and high commissioners are his representatives in foreign land.
  • He also receives the credentials of diplomatic representatives of foreign countries.
  • The President also negotiates treaties and agreements with other nations prior to ratification by Parliament.

 

Emergency Powers

President has been conferred upon by extraordinary powers in case of national emergency (Article 352), President’s rule (Article 356 & 365) and financial emergency (article 360).

Emergency Powers: The President of India exercises extra-ordinary powers in times of emergency. The three kind of Emergency situations are:

  1. Emergency due to armed rebellion or external aggression;
  2. Emergency arising from the breakdown of constitutional machinery in a State;
  3. Financial Emergency.

Proclamation of National Emergency by the President of India: The President of India may issue a Proclamation of National Emergency when the security of India or any part thereof is threatened by war, armed rebellion or external aggression. Such a Proclamation of Emergency may remain in force for an indefinite period. During a Proclamation of National Emergency, the executive power of the States is to be exercised in accordance with the directions given by the Central Government. Parliament has the power to make laws on the subjects enumerated in the State List. The right to freedom of speech and expression, freedom to form association, freedom to practice and profession, etc., embodied in Article 19 shall remain suspended.

Failure of State Constitutional Machinery: In Case of failure of Constitutional machinery in a State, the President of India is authorized to make a Proclamation to that effect. The maximum duration of this type of emergency is three (3) years. During such an emergency, the President may assume to himself the executive powers of the State. The powers of the legislatures of the State are to be exercised by the Union Parliament.

Proclamation of Financial Emergency by the President: The President may also issue a Proclamation of Financial Emergency if he is satisfied that the financial stability of India is threatened. This type of emergency may continue to remain in force for an indefinite period. The Central Government may give directions to the States for canons of financial propriety. All money-bills passed by the State Legislatures are to be reserved for the consideration of the President.

 

Ordinance Making Powers of President

Parliament is not always in session and when it becomes necessary to have a law on some urgent public matter, the constitution via article 123 provides the power to the president to issue ordinances if he is satisfied with the circumstances of issuing such ordinance.  Ordinances are promulgated when parliament is not in session.

The ordinance has similar effect to an act of parliament. However, every ordinance must be laid before both houses of the parliament within 6 weeks  from the reassembling of the parliament. If it is not placed in parliament within 6 weeks from reassembly, it becomes invalid.  If it does not get approval of parliament, it becomes invalid. However, it may be withdrawn by the president.

Maximum Possible Life of an Ordinance

An ordinance is in force as long as parliament does not meet. But, there cannot be a gap of more than 6 months between two meetings of parliament. Further, a time of 6 weeks is given after the parliament reassembles. So, 6 months + 6 weeks =71/2 month is maximum possible life of an ordinance.

Reports and Statements get by President to be laid before parliament:
  • Annual Financial Statement
  • Reports of Auditor General
  • Annual report of UPSC and JPSCs
  • Reports of Finance Commission
  • Reports of Special officers of SC & ST
  • Report of the Special officers of Linguistic Minorities and Backward Classes

 

 

 

Position:

Thus the President of India has been given wide and far-reaching powers which he enjoys both during

normal and emergency times. But after the passing of the Constitution Forty-Second (1976) and Forty-

Fourth (1978) Amendment Acts, the President of our Republic has become a Constitutional 􀂡gurehead and

nothing beyond that.

Today, President’s position is one of great authority and dignity, but at the same time strictly constitutional.

Thus the President is bound in every case to act on the advice of his Prime Minister and other Ministers

who are responsible to the Lok Sabha and responsive to the public opinion.

In short, the powers really reside in the Ministry and the Parliament and not in the President as such. He has

no discretion in our Parliamentary system of government.

The Supreme Court through various decisions has upheld the position that the President is a constitutional

head and as such he is as much bound by the advice of his Ministers during emergency as during normal

times.

For example, the President can declare a proclamation of the National Emergency (Article 352) only after

receiving a written communication of the decision of the Union Cabinet. If the President abuses his powers,

he can be removed from o􀂣ce by a process of impeachment.

It does not, however, mean that the President of India is a magni􀂡cent cipher or a mere rubber stamp.

Unlike the British Monarchy which is hereditary, the President of our Republic is an elected Head of the

State. In our coalition politics, there are some grey areas where the President may still have to use his own

judgment and wisdom. These are:

Appointment of the Prime Minister,

Dismissal of the Union Ministry,

Dissolution of the Lok Sabha, and,

Seeking information on all matters of administration and legislation from the Prime Minister etc.

In some such situations, the role of our President may become most crucial and decisive. However, the

President has to be free from all political a􀂣liations. He is expected to act with complete constitutional

rectitude and impartiality. The nation is expected to be bene􀂡tted by his wise leadership and constructive

role.

In short, the President of India is the symbol of national unity, magnet of loyalty and apparatus of ceremony

 


What is the procedure for amending the constitution? (2018)

Amendment is nothing but modification of the Constitution.

Amendment means Addition, Deletion, Modification of that already existing in the Constitution.

  • The amendment of the Indian constitution is mentioned in PART XX  of the constitution.
  • The procedure is mentioned under article 368  of the Indian Constitution.
  • The parliament is empowered to amend the constitution.
  • Indian Constitution is both rigid and flexible.
  • The constitution is rigid means  it is amended with a special majority .
  • The Constitution is flexible  means it is amended with a simple majority .

NOTE:  The Parliament cannot amend the basic features of the Constitution.   

  • This was ruled by the Supreme Court in the keshavananda Bharati case of 1973.
  • Various judgments of the Supreme Court have given many points that constitute the basic structure of the Constitution.
  • From various judgments of the Supreme Court  the basic structure of the Constitution can be
  1. The supremacy of the Constitution.
  2. Sovereign, Democratic and Republic nature of the Indian Polity
  3. Secularism
  4. Separation of powers between legislature, executive and Judiciary
  5. Federal character
  6. Judicial review
  7. Freedom and dignity of the individual
  8. Rule of law
  9. Unity and Integrity of the nation
  10. Balance between Fundamental Rights and Directive Principles of State Policy
  11. The Principle of equality
  12. Free and fair elections
  13. Independence of Judiciary
  14. Limited powers of the Parliament to amend the Constitution

HOW MANY METHODS ARE MENTIONED TO AMEND THE CONSTITUTION?

The article 368 provides for two types of amendments.

  • By a Special majority of the Parliament.
  • By a special majority of the Parliament and consent by at least half the states by simple majority.  

 

NOTE:   Some other articles in the Constitution also provides for the amendment of the Constitution.

Hence, the Constitution of India can be amended in three ways.   

Note:  Please remember Article 368 provided 2 methods only. Amendment with simple majority is mentioned   outside the  purview  Article 368   where ever it is required.

  1. Amendment by simple majority of the Parliament.
  2. Amendment by a special majority of the Parliament.
  3. Amendment by a special majority of the Parliament and ratification (consent) by at least half the states legislatures.

 WHAT IS THE PROCEDURE FOR AMENDMENT OF THE CONSTITUTION?  

 

The procedure for the amendment is initiated in the Parliament (Lok Sabha or Rajya Sabha) only.   

  1. The amendment is initiated only by introducing a bill in the Parliament.
  2. The procedure cannot  be initiated in the state legislatures.
  3. The bill can be introduced either by a public member (Minister) or by a Private member (who is not a Minister, but a member of the house).
  4. The amendment bill does not  require the prior permission of the President.
  5. The amendment bill must be passed in each house by a special majority.

Special majority:  A majority of more than 50 percent of the total membership of the house and a majority of 2/3rd of members of the house present and voting.

  1. The bill must be passed in each house separately.
  2. If there is a disagreement between the Lok sabha and Rajya Sabha the bill is considered to be rejected.
  3. There is no provision of the Joint Session  in the Constitution for the purpose of passing a constitution amendment bill.

Note:  Joint session is summoned by the President only when there is a disagreement between two houses of the parliament with reference to ordinary bills  only.

  1. If the amendment bill seeks to amend the federal provisions of the constitution, the bill must be ratified by the legislatures of half of the states by a simple majority.
  2. The bill is presented to the President after it is passed by the Parliament and the state legislatures (in case of federal provisions).
  3. The President must give assent to the constitution amendment bill.
  4. The President canno t withhold the assent to the bill.
  5. The President cannot  return the bill for the reconsideration of the Parliament.
    1. Note: The 24th constitutional amendment of 1971 made obligatory on the part of the President to give the assent for the constitutional amendment bill.
  6. After the assent of the President the amendment bill becomes an act.

AMENDMENT BY SIMPLE MAJORITY OF PARLIAMENT:  

NOTE : Amendment of the Constitution with a simple majority is outside the scope of Article 368.

There are many provisions in the Constitution that can be amended by a simple majority of the Parliament.

  • Admission of new states – Article 2
  • Creation of new states – Article 3
  • Creation or  abolition of state legislative council – Article 169
  • Quorum in the Parliament – Article 100
  • Rules of procedures of Parliament
  • Salaries and allowances of the members of the Parliament
  • Use of English language in the Parliament
  • Use of official language
  • Citizenship

 

AMENDMENT BY SPECIAL MAJORITY OF PARLIAMENT:  

The majority of the provisions in the constitution need to be amended by special majority.

What is special majority?  

  • This is the majority of the total membership of each house

And    

  • a majority of 2/3rd of the members of each house present and voting.

The important provision that can be amended through special majority are  

  • Fundamental Rights
  • Fundamental Duties
  • Directive Principles of State Policy

AMENDMENT BY SPECIAL MAJORITY OF PARLIAMENT AND CONSENT BY ATLEAST HALF THE STATES:  

ü    The provisions that are related to the federal structure can be amended through this procedure.

ü    After the bill is passed in the Parliament with the special majority then the bill is forwarded to the state legislatures.

ü    If the bill is passed by a at least half the states with a simple majority then the bill is forwarded to the President.

FEDERAL PROVISIONS:

ü    Election of the President and its manner

ü    Extent of the executive powers of the union and the states

ü    Distribution of legislative powers between the union and the states

ü    Extension of reservation for Scheduled caste, Scheduled Tribes and Anglo-Indians in the Parliament and the state legislatures.

ü    Representation of states in the Parliament.

ü    Power of the Parliament to amend the Constitution and its procedure.