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Constitutional Law-I (LLB -203)

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The objective of this paper is to provide an understanding of basic concepts of Indian Constitution and various organs created by the Constitution and their functions.

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Constitutional Law-I (LLB -203)

  1. 1. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) SEMESTER: THIRD BBALLB III A+B & BALLB III A+B+C NAME OF THE SUBJECT: CONSTITUTION – I UNIT-I TOPIC: DEFINITION OF CONSTITUTION FACULTY NAME: Ms. Ridam Aggarwal (Assistant Professor)
  2. 2. Definition of Constitution & Classification • It is the law of the land. • It is the ultimate criteria existing from which the validity of any law can be derived. • It is the “Mirror of the Society”. • Parent document of the society. • Drafted by those who dreamt a free India. • Nothing can be ultra vires to Constitution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  3. 3. Classification of Constitution • Written & Unwritten Constitution • Rigid & Flexible Constitution • Federal & Unitary Constitution Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  4. 4. Written & Unwritten Constitution It is generally agreed that the written/unwritten is false distinction as there is no constitution which is entirely unwritten and nor is there a constitution which is entirely written. What is meant by a Written Constitution is, therefore, on that is reduced into the form of a document having special sanctity. The term written constitution, also designates a rather complete document/instrument in which the framers of the constitution have attempted to arrange for every foreseeable contingency in its operation. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  5. 5. Rigid & Flexible Constitution The rigidity or otherwise flexibility of a constitution hinges on whether or not its making is identical to the making of other ordinary laws. Accordingly, if the amendment or alteration procedure of a constitution is made to depend on some conditions or special procedures, then it may be called Flexible Constitution. If some conditions or a special procedure has to be met before the amendment of a constitution, it is a Rigid Constitution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  6. 6. Federal & Unitary Constitution • In a Federal Constitution, powers of governments are divided between government for the whole and governments for parts of the country in such a way that each government is independent and none is subordinate to the other, and legislature in both cases have limited powers. • In a Unitary Constitution, the legislature of the whole country is the supreme law-making body and it has the mandate to allow other legislatures to exist and exercise their powers while reserving the right to overrule them as they are subordinate to it. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  7. 7. Case Law- Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ((1973) 4 SCC 225: AIR 1973 SC 1461) This case discusses about the nature & purpose of Constitution; talks about preamble and its importance. • Amendable under Article 368 • Preamble contains Basic structure of Constitution • Source of Constitution – People of India Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  8. 8. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: SOURCES & FRAMING OF CONSTITUTION
  9. 9. Sources of Constitution • Indian Constitution has absorbed those features from other nations’ constitutions that suited Indian problems and aspirations. Constituent Assembly took the best of features from everywhere and made them its own. • Our constitution has features taken from the Government of India Act, 1935. Those features are: – Federal Scheme – Office of governor – Judiciary – Public Service Commissions – Emergency provisions – Administrative details Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  10. 10. Sources of Constitution • UK – Parliamentary Election • Ireland – Directive Principles of State Policy • USA – Fundamental Rights • Canada – Federal System • France – Preamble terms – republic, liberty, equality, fraternity • Australia – Concurrent Lists Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  11. 11. Sources of Constitution • Russia – Fundamental Duties • Germany – Suspension of FRs during Emergency • Japan – Laws on which Supreme Court functions Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  12. 12. Is Constitution a borrowed bag? • Indian Constitution is a unique document drafted after a hard work of three years of the constituent assembly. Though some features of the Indian constitution are borrowed from other nations, it is still wrong to say that it is a bag of borrowing. • Reasons to not call the Indian Constitution a bag of borrowing are given below: Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  13. 13. Is Constitution a borrowed bag? Cont. • There are various provisions borrowed from other nations but they are absorbed in the Indian Constitution to suit its polity and governance. They are not exactly copied. • Indian Constitution is the most detailed constitution of the world. Where the American Constitution has only seven articles, Australian Constitution 128 articles, Indian Constitution originally consisted of 395 articles which have now increased to 448 articles. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  14. 14. Is Constitution a borrowed bag? Cont. • Indian Constitution is unique in its content and spirit. • It is drafted considering the historical perspective of Indian Nationalist struggles, the geographical diversity of India, and its traditional and characteristics which are totally different from any other nation. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  15. 15. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: SALIENT FEATURES OF CONSTITUTION
  16. 16. Salient Features of Constitution The Constitution of India is a unique constitution. It is the largest written liberal democratic constitution of the world. It provides for a mixture of federalism and Unitarianism, and flexibility and with rigidity. Since its inauguration on 26th January 1950, the Constitution India has been successfully guiding the path and progress of India. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  17. 17. Written and Detailed Constitution: • Fully written • Fully debated & duly elected by Constituent Assembly • 2 years, 11 months and 18 days - time taken to write & enact Constitution • Constitution is for both Centre & State Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  18. 18. Self-made and Enacted Constitution • Indian Constitution is a constitution made by the people of India acting through their duly elected and representative body—the Constituent Assembly that was organised in December 1946 • Its first session was held on 9th December, 1946. It passed the Objectives Resolution on 22 January, 1947. • it initiated the process of constitution-making in the right earnest and was in a position to finally pass and adopt the constitution on 26th November, 1949. • The constitution became fully operational with effect from 26th January 1950. We celebrate this day as our Republic Day. The Constitution of India is thus a self-made and duly enacted constitution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  19. 19. Preamble of the Constitution • A document stating the philosophy of the Constitution • It declares India to be a Sovereign Socialist Secular Democratic Republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity the individual, and unity and integrity of the nation. • The Preamble is the key to the constitution. It states in nutshell the nature of Indian state and the objectives it is committed to secure for the people. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  20. 20. India is a Democratic Socialist State • Although, right from the beginning the Indian Constitution fully reflected the spirit of democratic socialism, it was only in 1976 that the Preamble was amended to include the term ‘Socialism’. • India is committed to secure social, economic and political justice for its entire people by ending all forms of exploitation and by securing equitable distribution of income, resources and wealth Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  21. 21. India is a Secular State • India gives special status to no religion. There is no such thing as a state religion of India. This makes it different from theocratic states like the Islamic Republic of Pakistan or other Islamic countries • Indian secularism guarantees equal freedom to all religions. The Constitution grants the Right to Religious Freedom to all the citizens Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  22. 22. India is a Democratic State • The Constitution of India provides for a democratic system. The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights. On the basis of these rights, the people freely participate in the process of politics. They elect their government. • Free fair and regular elections are held for electing governments. For all its activities, the government of India is responsible before the people. The people can change their government through elections. No government can remain in power which does not enjoy the confidence of the people. India is world’s largest working democracy Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  23. 23. India is a Republic • The Preamble declares India to be a Republic. India is not ruled by a monarch or a nominated head of state. India has an elected head of state (President of India) who wields power for a fixed term of 5 years. After every 5 years, the people of India indirectly elect their President. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  24. 24. India is a Union of States Article I of the Constitution declares, that “India that is Bharat is a Union of States.” The term ‘Union of State’ shows two important facts: • That Indian Union is not the result of voluntary agreement among sovereign states, and • that states of India do not enjoy the right to secede from the Union. Indian Union has now 28 States and 8 Union Territories. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  25. 25. Mixture of Federalism and Unitarianism • While describing India as a Union of States, the Constitution provides for a federal structure with a unitary spirit. Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with a unitary bias, or even as ‘a Unitarian federation. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  26. 26. Like a federation, the Constitution of India provides for • (i) A division of powers between the centre and states, • (ii) A written, rigid and supreme constitution, • (iii) Independent judiciary with the power to decide centre-state disputes and • (iv) Dual administration i.e. central and state administrations. However, by providing a very strong centre, a common constitution, single citizenship, emergency provisions, common election commission, common all India services etc. the Constitution clearly reflects its unitary spirit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  27. 27. Mixture of Rigidity and Flexibility • The Constitution of India is rigid in parts. Some of its provisions can be amended in a difficult way while others can be amended very easily. In some cases, the Union Parliament can amend some parts of the Constitution by passing a simple law. • Article 368, of the Constitution provides for two special methods of amendment Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  28. 28. Fundamental Rights • Under its Part IIIC Articles 12-35), the Constitution of India grants and guarantees Fundamental Rights to its citizens. It is called the Indian Bill of Rights. Initially, 7 Fundamental Rights were granted but after the deletion of the Right to Property from the list of Fundamental Rights (44th Amendment Act 1979) their number came down to six. • Those rights are : I. Right to Equality II. Right to Freedom III. Right to Freedom of Religion IV. Right against Exploitation V. Cultural & Educational Rights VI. Right to Constitutional Remedies (Art. 32) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  29. 29. Fundamental Duties of the Citizens In its Part IVA (Article 51 A) the Constitution describes the following Fundamental Duties of a citizen: 1. Respect for the Constitution, the national flag and the national anthem; 2. Cherish the noble ideals of the freedom struggle; 3. Uphold and protect the sovereignty, unity and integrity of India; 4. Defend the country and render national service when called; 5. Promote the common brotherhood of all the people of India and renounce any practice derogatory to the dignity of women; 6. Preserve the rich heritage of the nation’s composite culture; Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  30. 30. Fundamental Duties of the Citizens Cont. 7. Project the natural environment and have compassion for living creatures; 8. Develop scientific temper, humanism and spirit of inquiry and reform; 9. Safeguard public property and abjure violence; and 10. Strive for excellence in all individual and collective activity. 11. Duty of the parents to send their children to schools for getting education. The Fundamental Duties are, however, not enforceable by the courts. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  31. 31. Directive Principles of State Policy • Part IV of the Constitution dealing with the ‘Directive Principles of State Policy’ provides one of the most striking features of the Indian Constitution. The Directive Principles are instructions to the state for securing socio- economic developmental objectives through its policies. These are to be implemented by both the Union for the States. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  32. 32. Parliamentary System • The Constitution of India provides for a parliamentary system of government at the Centre as well as in every state of the Union. The President of India is the constitutional head of state with nominal powers. The Union Council of Ministers headed by the Prime Minister is the real executive. Ministers are essentially the members of the Union Parliament. • For all its policies and decisions the Council of Ministers is collectively responsible before the Lok Sabha. The Lok Sabha can remove the Ministry by passing a vote of no-confidence. The Cabinet, in fact the Prime Minister has the power to get the Lok Sabha dissolved by the President. On similar lines a parliamentary government is also at work in each state. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  33. 33. Adult-Suffrage • Another feature of the Constitution is that it provides for universal adult suffrage. All men and women enjoy an equal right to vote. Each adult man and woman above the age of 18 years has the right to vote. All registered voters get the opportunity to vote in elections Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  34. 34. Single integrated State with Single Citizenship • India is the single Independent and Sovereign integrated state. Presently it has 28 states and 8 Union Territories. All citizens enjoy a common uniform citizenship. They are entitled to equal rights and freedoms, and equal protection of the state.” Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  35. 35. Single Integrated Judiciary • The Constitution provides for a single integrated judicial system common for the Union and the states. The Supreme Court of India works at the apex level, High Courts at the state level and other courts work under the High Courts. • There are 25 State High Courts working in all parts of India. Orissa High Court has been in existence since 1948 and it is located at Cuttack. The Supreme Court is the highest court of the land. It controls and runs the judicial administration of India. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  36. 36. Independence of Judiciary • The Indian Constitution makes judiciary truly independent. It is clear from the following facts: • (a) Judges are appointed by the President, • (b) Only persons with high legal qualifications and experience are appointed as judges, • (c) Judges of the Supreme Court cannot be removed from office except through an extremely difficult process of implement. • (d) The salaries of the judges are very high, • (e) The Supreme Court has its own staff. Indian judiciary has an autonomous organization and status. It works as an independent and powerful judiciary. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  37. 37. Judicial Review • The Constitution is the supreme law of the land. The Supreme Court acts as the guardian protector and interpreter of the Constitution. It is also the guardian of the Fundamental Rights of the people. For this purpose it exercises the power of judicial review. By it, the Supreme Court determines the constitutional validity of all laws made by the legislatures. It can reject any law which is found to be unconstitutional. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  38. 38. Judicial Activism • Currently, Indian judiciary has been becoming more and more active towards the performance of its social obligations. Through Public Interest Litigation system (PIL) as well as through a more active exercise of its powers, the Indian judiciary has been now very actively trying to secure all public demands and needs due to them under the laws and policies of the state. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  39. 39. Emergency Provisions • The Constitution of India contains special provisions for dealing with emergencies. • It recognizes three types of possible emergencies: (1) National Emergency (Article 352) an emergency resulting from war or external aggression or threat of external aggressions against India or from armed rebellion within India or in any of its part; (2) Constitutional Emergency in a State (Article 356) an emergency resulting from the failure of constitutional machinery in any state; or some states and Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  40. 40. Emergency Provisions Cont. (3) Financial Emergency (Article 360) an emergency resulting from a threat to financial stability of India. • The President of India has been empowered to take appropriate steps for dealing with these emergencies. During the period of an emergency, the powers of the President, actually of the PM and the Union Council of Ministers Cabinet increase tremendously. President can take all steps deemed essential for meeting an emergency. These are called emergency powers of the President. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  41. 41. Special Provisions relating to Scheduled Castes and Scheduled Tribes • It provides for reservation of seats in the legislatures for the people belonging to Scheduled Castes and Scheduled Tribes. President can nominate in Lok Sabha not more than two members of the Anglo- Indian Community in case he is of the opinion that this community is not adequately represented in the House. • Reservation of some jobs for the people belonging to SCs, STs and OBCs has also been in operation. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  42. 42. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) TOPIC: IS CONSTITUTION FEDERAL IN NATURE?
  43. 43. Is Indian Constitution Federal in Nature? It has been the matter of debate among the scholars that whether the Constitution of India is completely federal or unitary in nature. But actually Indian constitution contains both features of a federal constitution and unitary constitution. And that is why, it is called QUASI – FEDERAL CONSTITUTION Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  44. 44. Quasi Federalism • Quasi-federalism means an intermediate form of state between a unitary state and a federation. It combines the features of a federal government and the features of a unitary government. India is regarded as a semi-federal state or a quasi-federal state as described by Prof. K.C. Wheare. The Supreme Court of India also describes it as a federal structure with a strong bias towards the Centre. • Article 1 of the Constitution of India states that ‘India that is Bharat shall be a union of states’. Indian model of federalism is called the quasi-federal system as it contains major features of both a federation and union. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  45. 45. Federal Features of Constitution • Supremacy of the Constitution:Constitution is the supreme law of land in India. A federal state derives its existence from the Constitution. • Bicameral Legislature: The main feature of federalism is a bicameral legislature. The Constitution of India also provides for a bicameral legislature i.e. Parliament with two houses of the Lok Sabha and the Rajya Sabha. • Independent Judiciary: In India, the Constitution has provided for a Supreme Court. The Supreme Court of India can declare a law as unconstitutional, if it contravenes any provisions of the Constitution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  46. 46. Federal Features of Constitution Cont. • Dual Government Polity: The Constitution of India has divided powers between the Central government and the state governments through the 7th schedule. It contains three legislative lists which enumerate subjects of administration, viz. Union, State and Concurrent Legislative Lists. Both the governments have their separate powers and responsibilities. • Written Constitution: The Indian Constitution is a written document containing 448 Articles and 12 schedules, and therefore, fulfils this basic requirement of a federal government. The Indian Constitution is the most elaborate Constitution of the world. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  47. 47. Federal Features of Constitution Cont. • Revenue Sharing: In the case of a federal country there is a system of revenue sharing between the Center and the State. In India, there is the principle of dual GST system adopted by the legislation for the constitutional requirement of fiscal federalism. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  48. 48. Unitary Features of Constitution • Single Constitution: In India, there is only one Constitution. It is applicable to both the Union as a whole and the Stares. In a true federation, there are separate constitutions for the union and the States. • Rajya Sabha does not represent the States equality: In a true federation, the upper house of the legislature has equal representation from the constituting units or the States. But in Rajya Sabha, the States do not have equal representation. The populous States have more representatives in the Rajya Sabha than the less populous States. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  49. 49. Unitary Features of Constitution Cont. • Division of power is not equal: In a federation, power is divided equally between the two governments. But in India, the Central government has been given more powers and made stronger than the State governments. • Constitution is not strictly rigid:The Constitution of India can be amended by the Indian Parliament easily. On many subjects, the Parliament does not need the approval of the State legislatures to amend the Constitution. In a true federation, both the Union and the State legislatures take part in the amendment of the Constitution with respect to all matters. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  50. 50. Unitary Features of Constitution Cont. • Existence of States depends on the Centre: In India, the existence of a State or a federal unit depends upon the authority of the Centre. The boundary of a State can be changed by created out of the existing States. • Unified judiciary: India has a unified or integrated judicial system. The High Courts which work in the States are under the Supreme Court of India. • Proclamation of emergency: The Constitution of India has given emergency powers to the President. When an emergency is declared, the Union or Central governments become all powerful and the State governments come under the total control of it. The State governments lose their autonomy Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  51. 51. Conclusion On a careful analysis of the federal and unitary features of the constitution, it is evident that with every federal feature, there is an ultimate centralising force which is existing. Therefore, it would not be wrong to conclude that the Constitution of India is federal in structure and unitary in spirit i.e. it is quasi- federal in nature. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  52. 52. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) UNIT-II PARLIAMENT: COMPOSITION, PARLIAMENTARY SOVEREIGNTY & PARLIAMENTARY PRIVILEGES
  53. 53. Parliament - Introduction • Parliament is the supreme legislative body of India. The Indian Parliament comprises of the President and the two Houses - Rajya Sabha (Council of States) and Lok Sabha (House of the People). The President has the power to summon and prorogue either House of Parliament or to dissolve Lok Sabha. The Constitution of India came into force on January 26, 1950. The first general elections under the new Constitution were held during the year 1951-52 and the first elected Parliament came into existence in April, 1952, Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  54. 54. Composition • Art. 79 - Constitution of Parliament. • Art. 80 - Composition of the Council of States • Art. 81 - Composition of the House of the People • Art. 82 - Readjustment after each census • Art. 83 - Duration of Houses of Parliament • Art. 84 - Qualification for membership of Parliament • Art. 85 - Sessions of Parliament, prorogation and dissolution • Art. 86 - Right of President to address and send messages to Houses • Art. 87 - Special address by the President • Art. 88 - Rights of Ministers and Attorney-General as respects House Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  55. 55. Procedure • Art. 118 - Rules of Procedure • Art. 119 - Regulation by law of procedure in Parliament in relation to financial business • Art. 120 - Language to be used in Parliament • Art. 122 - Courts not to inquire into proceedings of Parliament Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  56. 56. Functions • Art. 75 (5) - A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. • Art. 75(3) - The Council of Ministers shall be collectively responsible to the House of the People. • Art. 107 - Provisions as to introduction and passing of Bills • Art. 108 - Joint sitting of both Houses in certain cases • Art. 109 - Special procedure in respect of Money Bills Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  57. 57. Parliamentary Sovereignty Meaning - Parliamentary sovereignty means supremacy of the legislative body i.e., parliament over all other government institutions including executive and judicial bodies. Sovereign legislature may change or repeal any previous legislation and is not bound by any written law like constitution. In India there is no parliament sovereignty rather there is constitutional sovereignty. Various features of Parliamentary Sovereignty – Written Constitution: In India Constitution is written which put limitations on all organs of the state. Although parliament can amend constitution but it cannot supersede the written document. In UK, as there is no written constitution, the Parliament possesses legislative sovereignty. So any law passed by it cannot be questioned before any court on such grounds. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  58. 58. Parliamentary Sovereignty Cont. • Independent judiciary and Judicial review: Judiciary is independent and the guardian of the Constitution. It can declare any law or ordinance passed by the legislature void, if any of its provisions violate one or more of the constitutional provisions. • Federal structure: Although constitution says India as a union of states, India is a federal polity. Various federal provisions especially some special powers for schedule area limit parliament powers where many parliamentary laws are applicable only on presidential and governor consent. • Limited amendment power: Parliament can amend most of the part of constitution but it cannot amend the ‘basic features of the constitution’. Further some amendments need special majority and states’ legislature resolution. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  59. 59. Parliamentary Sovereignty Cont. • Division of powers: Schedule VII divide law making power between centre and state. Parliament cannot make laws on state list. Any law in state subject would require state’s consent through majority. • Limit by Presidential vetoes: A bill cannot become law without presidential assent. President can practice various veto powers like pocket veto that act as limitation on parliament sovereignty. • Limited Doctrine of ‘Separation of Powers’: In India there is no strict application of doctrine of separation of powers. So if the legislature encroaches into the functions of the other organs, judiciary can prevent it to do so. • Bar on discussion of conduct of judges: Article 121 and 211 of Indian Constitution states that no discussion shall take place in the Legislature of a state or in the Parliament with respect to the conduct of any judge of the Supreme Court or of the High court in the discharge of his duties. Thus legislature have no power to discuss judges conduct. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  60. 60. Case Laws • U N Rao V. Indira Gandhi (AIR 1971 SC 1002) • Indira Nehru Gandhi V. Raj Narain (AIR 1975 SC 2299) • Rameshwar Prasad V. UOI (2006 AIR SCW 494) • Ramdas Athawale V. UOI (2010(3) SCALE 412) Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  61. 61. Parliamentary Privileges • Article 105 & 194 deal with the powers, privileges & immunities of Parliament and its members, and the State Legislatures and their members respectively. They both are mutatis mutandis. • Art. 105 - Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof • Art. 194 - Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  62. 62. Division of Privileges of Houses • A) those which are enjoyed by the members individually i) Freedom from arrest ii) Freedom of attendance as witness iii) Freedom of Speech iv) Art. 121 - Restriction on discussion in Parliament v) Art. 211 - Restriction on discussion in the Legislature Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  63. 63. Division of Privileges of Houses Cont. • B) those which belong to each Houses of Parliament as a collective body i) the right to publish debates and proceedings & the right to restrain publication by others. ii) the right to exclude strangers from galleries at any time iii) the right to regulate the internal affairs of House, and to decide matters arising within its walls iv) the right to publish Parliamentary behaviour v) the right to punish members & outsiders for the breach of its privilege. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  64. 64. Case Laws • M S M Sharma V. Sri Krishna Sinha (AIR 1959 SC 395) • Keshav Singh’s case a.k.a The Legislative Privileges Case • Tej Kiran Jain V. N. Sanjiva Reddy (AIR 1970 SC 1573) • P V Narsimha Rao V. State (AIR 1998 SC 2120) • Raja Ram Pal V. Hon’ble Speaker, Lok Sabha & others ((2007) 3 SCC 184) a.k.a The Case Querry Case Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  65. 65. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) EXECUTIVE POWERS: POWERS OF PRESIDENT & GOVERENOR
  66. 66. Introduction • The Executive along with the legislature and the judiciary forms one of the three agencies through which the State functions. • The two important points to be looked into before analyzing the extent and nature of ‘executive functions’ in the Indian Constitution according to the Constitution is what constitutes the executive and what exactly are executive functions. • In pursuant with the federal structure envisaged in the Constitution, the executive is divided into a) Union Executive, enumerated in Part V Chapter 1 Articles. 52 to 78, and b) State Executive, enumerated in Part VI, Chapter 2 Articles 153 to 167. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  67. 67. Union Executive • Art. 52 – The President of India • Art. 53 – Executive power of the Union • Art. 54 – Election of President • Art. 55 – Election of President • Art. 56 – Term of office of President • Art. 57 – Eligibility for re-election • Art. 58 – Qualifications for election as President • Art. 59 – Conditions of President’s office • Art. 60 – Oath or affirmation by the President • Art. 61 – Procedure for impeachment of the President Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  68. 68. Union Executive Cont. • Art. 62 – Time of holding election to fill vacancy in the office of President and the term of office of person elected to fill casual vacancy • Art. 70 - Discharge of President’s functions in other contingencies • Art. 71 - Matters relating to, or connected with, the election of a President or Vice- President • Art. 72 - Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases • Art. 73 - Extent of executive power of the Union • Art. 74 - Council of Ministers to aid and advise President Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  69. 69. State Executive • Art. 153 - Governors of States • Art. 154 - Executive power of State • Art. 155 - Appointment of Governor • Art. 156 - Term of office of Governor • Art. 157 - Qualifications for appointment as Governor • Art. 158 - Conditions of Governor’s office • Art. 159 - Oath or affirmation by the Governor • Art. 160 - Discharge of the functions of the Governor in certain contingencies • Art. 161 - Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  70. 70. State Executive Cont. • Art. 162 - Extent of executive power of State. • Art. 163 - Council of Ministers to aid and advise Governor • Art. 164 - Other provisions as to Minister Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  71. 71. Case Laws • Dinesh Chandra v. Choudhari Charan Singh AIR 1992 Raj 70 The Court held that to argue pleasure could be interpreted in Article 75(2) to mean the President can dismiss any Minister at any time at his will. • SP Anand v. HD Devegowda, (1997 SC) It was held that since Ministers also include Prime Minister, the President can dismiss Prime Minister also at his will. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  72. 72. Case Laws Cont. • Pal & Co. vs. Lt. Governor of Delhi (1979 AIR 1550), it was ruled that the power to issue an Ordinance by the President is “co-extensive with the Legislative power of the Parliament.” • Swaran Singh v. State of U.P (AIR 1982 SC 849), the Governor of Uttar Pradesh remitted the whole of the life sentence of an MLA of the State Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. The Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor’s previous rejection of his clemency petition in regard to the same case Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  73. 73. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) JUDICIARY: JURISDICTION OF HIGH COURT & SUPREME COURT AND INDEPENDENCE OF JUDICIARY
  74. 74. Jurisdiction of High Court The Jurisdiction of High Court can be divided into three parts – 1) Original Jurisdiction- it means that applicant can directly go to High Court and not by means of appeals. This power is used in the following matters – • Disputes arising out of relating to members of Parliament and state legislative assembly • Relating to marriage, law, admiralty divorce, contempt of court etc • Enforcement of fundamental rights (Supreme Court also has this power) • Cases transferred from other court to itself which involves a question of law. 2) Writ Jurisdiction- Article 226 states that High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases, any government, within those territories directions, orders, or writs. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  75. 75. Jurisdiction of High Court Cont. 3) Appellate Jurisdiction- • It is said that the high court is the primary court of appeal i.e. it has power to hear the appeals against the judgment of the subordinate courts within its territories. This power can be classified in to 2 categories-Civil jurisdiction and Criminal jurisdiction • In civil cases its jurisdiction includes to the orders and judgments of the district courts, additional district courts and other subordinate courts. • In criminal cases its jurisdiction includes judgments relating to sessions courts and additional sessions court. These cases should be involving imprisonment for more than 7 years, confirmation of any death sentence awarded by session court before execution Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  76. 76. Jurisdiction of Supreme Court The Jurisdiction of Supreme Court can be broadly divided into three parts : 1) Original Jurisdiction a) Writ Jurisdiction b) Election Disputes relating to President/Vice-President of India c) Original Suits d) Transfer of Cases e) Arbitration Matters f) Contempt Proceedings Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  77. 77. Jurisdiction of Supreme Court Cont. 2) Appellate Jurisdiction a) General b) Statutory Appeals c) Special Leave Petitions d) Reference 3) Advisory Jurisdiction Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  78. 78. Relevant Articles • Art. 32 - Remedies for enforcement of rights conferred by this Part • Art. 137 - Review of judgments or orders by the Supreme Court • Art. 142 - Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. • Curative Petitions Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  79. 79. Case Laws – Landmark Case Rupa Ashok Hurra V. Ashok Hurra (AIR 2002 SC 1771) Issue – Whether an aggrieved person is entitled to any relief against a final judgment/order of SC, after dismissal of review petition, either under Art. 32 or otherwise? Held – A final judgment/order passed by SC cannot be assailed in an application under Art. 32 by an aggrieved party whether he was a party to the case or not. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  80. 80. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Administrative Relations between Union and the States
  81. 81. Introduction • The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the National Government and separate states. The tendency of federalism to limit on every side the action of the government and to split up the strength of the state among co-ordinate and independent authorities is especially noticeable, because it forms the essential distinction between a federal system. And a unitary system of Government. ” A Federal Constitution establishes the dual polity with the union at the centre and the states at a periphery, each endowed with sovereign powers to be exercised in the field assigned to them respectively by the constitution.” “The one is not subordinate to the other in its own field, the authority of one is co-ordinate with that of other”. In fact, the basic principle of federation is that the legislative, executive and financial authority is divided between the centre and state not by any law passed by the centre but by constitution itself. This is what Indian constitution does. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  82. 82. Article 245 - Extent Of Laws Made By Parliament And By The Legislatures Of States (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  83. 83. Article 246 - Subject-Matter Of Laws Made By Parliament And By The Legislatures Of States (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the “Union List”. (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”. (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the “State List”. (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2 [in a State] notwithstanding that such matter is a matter enumerated in the State List. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  84. 84. Article 247 - Power Of Parliament To Provide For The Establishment Of Certain Additional Courts • Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  85. 85. Article 248 - Residuary Powers Of Legislation (1) Subject to article 246A, Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  86. 86. Article 249 - Power Of Parliament To Legislate With Respect To A Matter In The State List In The National Interest (1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to goods and services tax provided under article 246A or any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. (2) A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein: Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  87. 87. Article 249 - Power Of Parliament To Legislate With Respect To A Matter In The State List In The National Interest (3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  88. 88. Article 250 - Power Of Parliament To Legislate With Respect To Any Matter In The State List If Proclamation Of Emergency Is In Operation (1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to goods and services tax provided under article 246A or any of the matters enumerated in the State List. (2) (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  89. 89. Article 251 - Inconsistency Between Laws Made By Parliament Under Articles 249 and 250 And Laws Made By The Legislatures Of States Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  90. 90. Article 252 - Power Of Parliament To Legislate For Two Or More States By Consent And Adoption Of Such Legislation By Any Other State (1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State. (2) (2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  91. 91. Article 253 - Legislation For Giving Effect To International Agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  92. 92. Article 254 - Inconsistency Between Laws Made By Parliament And Laws Made By The Legislatures Of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  93. 93. Article 255 - Requirements As To Recommendations And Previous Sanctions To Be Regarded As Matters Of Procedure Only No Act of Parliament or of the Legislature of a State, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given— (a) where the recommendation required was that of the Governor, either by the Governor or by the President; (b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President; (c) where the recommendation or previous sanction required was that of the President, by the President Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  94. 94. Introduction • The Constitution of India, 1950 is the grund norm of the country. It primarily lays down the framework which defines the political principles, procedures, powers and duties of various governmental institutions and lays down the fundamental rights and duties of the citizens, etc. • The Constitution follows a parliamentary system of government. Further, it follows the doctrine of the division of powers. The Constitution is neither purely federal nor purely unitary. Scholars have often defined it as ‘quasi-federal.’ India has moved from competitive federalism to cooperative federalism over a period of time. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  95. 95. Administrative Relations Between Centre And States • The administrative relations between the Centre and the States are stated under Article 256 to Article 263 of the Constitution of India. The Government of India has also constituted the Punchhi Commission in 2007, to determine the Centre-State Relations. • Article 246 of the Constitution deals with the subject matter of laws which are to be made by the Parliament and the State Legislatures. The Constitution, under Schedule VII, lays down three lists. These lists divide the subjects between the Centre and the States. The List I is the Union List, List II is the State List and List III is the Concurrent List. • As a set rule, the Central Government has administrative authority over the matters on which the Parliament is empowered to make the laws. The State Governments exercises administrative authority over the matters specified in the State List. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  96. 96. The Obligation Of States And The Union • Article 256 of the Constitution of India can be divided into two parts. • Firstly, it lays down that the executive powers of the State are to be exercised in such a manner that it complies with the laws made by the Parliament or any other existing laws which are applicable in the State. Secondly, it states that the executive power of the Union includes in its ambit such directions that are given to the State by the Central Government, which it deems necessary for the purpose. • It appears from reading the provision that if the States duly comply with the first part, then the second part does not seem necessary. Whereas, if the second part indeed serves its purpose sometimes, then it is evident that the States are guilty of violating the first part of the provision. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  97. 97. The Obligation Of States And The Union • The Constitution lays down this provision with the assumption that the States will be, at some juncture, guilty of either wilful defiance or negligence of its duties. • Article 256 is the successor of Section 122 of the Government of India Act, 1935. Although this provision is particularly silent about the consequences in case of non-compliance, the drastic sanction is laid down in Article 365 of the Constitution. To explain, if a State fails to comply with the directions issued by the Centre, then it is lawful for the President to hold that a situation has arisen wherein the State government cannot be carried on according to the provisions of the Constitution. Consequently, a state emergency can be imposed. The primary theme of this provision is that there should be a proper execution of the central laws in all the states. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  98. 98. Cases • In the case of Rameshwar Oraon vs. State of Bihar and Ors. (1995)(AIR 1995 Pat 173), it was observed that it is mandatory for the State Government to act according to the directions issued by the Central Government. • In the case of State of Karnataka vs. Union of India (1977) (1978 AIR 68), it was held that the Centre can issue directions to a State under Article 256 as a legal entity, not as a geographical or territorial unit. Further, in State of Rajasthan vs. Union of India (1977) (1977 AIR 1361), the Apex Court held that the issuance of directions to the State government by the Centre under Article 256 is justified if the Union Government is of the opinion that the manner in which the executive power of the State is exercised may be in contravention to the enforcement of Central Laws. • In Swaraj Abhiyan vs. Union of India (2017)(Writ Petition (Civil), 857 of 2015), the Apex Court drew attention to this provision, calling it a ‘forgotten provision’. This is because of the seldom usage of this provision since the Constitution came into force. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  99. 99. Control of the Union over States in certain cases • Article 257(1) provides that the exercise of the executive powers of the State should be done in such a manner that it does not hamper or prejudice the exercise of the executive powers of the Centre. Further, the second part of this clause is similar to that of Article 256. It lays down that the Centre can issue directions to the State Governments for purposes deemed necessary. • Article 257(2) provides that the executive power of the Union to issue directions to the States shall also extend to the matters of construction and maintenance of means of communication declared to be of national or military importance. Although communications is a State subject under Entry 13, List II, Schedule VII of the Constitution – the Union has been empowered to issue directions. • The proviso states that nothing in this particular provision will be considered as restricting the power of the Parliament to: Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  100. 100. Control of the Union over States in certain cases • Declare certain highways or waterways as national highways or waterways; • Construct and maintain means of communication as a part of its functions with reference to naval, military and air force purposes. • Article 257(3) provides that the executive power of the Union to issue directions to the States shall also extend to the measures required to be taken for the protection of the railways within a particular State. • Article 257(4) provides that for the purpose of compliance to the directions under clause (2) or clause (3), the States incur excess costs, which would not have occurred in the discharge of the normal duties of the State in the absence of such directions, then these costs shall be paid by the Government of India such sum as may be agreed. If there is a default of agreement, the sum of the extra costs so incurred by the State will be determined by an arbitrator appointed by the Chief Justice of India. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  101. 101. Power Of The Union To Confer Powers, etc. On States In Certain Cases • Article 258(1) begins with a non-obstante clause. It states that the President, with the permission of the Governor of the State, can entrust conditionally or unconditionally the State Government or its officers to perform functions which are related to any matter which is included in the ambit of the executive power of the Union. • Article 258(2) provides that a Parliament-made law which is applicable in any State may confer certain powers and impose duties, or authorise such conferring of powers and imposition of duties upon the State or its officers and the authorities thereof. The clause has a non-obstante clause within it. It states that even if the Legislature of the State has no power to make laws on that matter, the Parliament made law is applicable. • Article 258(3) states that the extra costs of administration which the States incur, in connection with the exercise of such conferred powers and imposed duties, shall be paid by the Government of India – such sum as may be agreed. If there is a default of agreement, the sum of the extra costs so incurred by the State will be determined by an arbitrator appointed by the Chief Justice of India. •Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  102. 102. Power Of The States To Entrust Functions To The Union • This power is laid down under Article 258-A of the Constitution of India. The article begins with a non-obstante clause. It states that the Governor of a State, with the consent of the Union Government, may entrust conditionally or unconditionally to that particular State’s government or its officers, functions which are related to any matter that is included in the scope of the executive power of the State. • This provision was inserted into the Constitution by the Constitution (Seventh Amendment) Act, 1956. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  103. 103. Jurisdiction Of The Union In Relation To Territories Outside India • Article 260 of the Indian Constitution deals with the jurisdiction in relation to foreign territories. The article states that the Indian Government can enter into an agreement with the Government of any territory which is not a part of the Indian territory. This agreement is entered into to undertake any executive, legislative or judicial functions vested in the Government of that territory. All such agreements are subjected to and governed by any law which pertains to the exercise of foreign jurisdiction for the time being in force. • This is a latent emboldening provision. The Constituent Assembly debated this provision on three different sessions – July 25, 1947; July 28, 1947, and August 25, 1947. Upon a perusal of these debates, it can be understood that the motive behind this provision was to facilitate the administration of states that had not acceded to the Indian Union. • The Apex Court has ruled in GVK Inds. Ltd. & Anr. vs. The Income Tax Officer & Anr. (2011), that this Article is to be invoked only in cases when such laws either have an impact on or consequences for the people of India or the Indian territory. The Parliament has also enacted the Foreign Jurisdiction Act, 1947 in accordance with this Article, to provide for the exercise of foreign jurisdiction of the Union Government. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  104. 104. Public Acts, Records And Judicial Proceedings • Article 261(1) provides that full faith and credit must be given to all the public acts, records and judicial proceedings of the Union and every State, throughout the territory of India. • Article 261(2) provides that the manner in which and conditions under which the aforementioned acts, records and proceedings are to be proved along with the effect thereof, shall be provided by such law as made by the Parliament. • Article 261(3) states that final judgments or orders which are delivered or passed by the civil courts located in any part of the Indian territory are capable of execution anywhere within that territory, according to the law. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  105. 105. Adjudication Of Disputes Relating To Waters Of Inter-State Rivers Or River Valleys • Article 262(1) states that the Parliament may formulate laws to provide for the adjudication of any dispute or complaint with reference to the use, distribution or control of waters of, or in, any inter-State river or inter-State river valley. • Article 262(2) begins with a non-obstante clause and provides that the Parliament may by law provide that neither the Apex Court nor any other court shall be able to exercise their jurisdiction in respect of any such dispute or complaint as mentioned in clause (1). • The States have a power to legislate on this issue of water under Entry 17, State List, Schedule VII. The Union is empowered to legislate upon the same under Entry 56, Union List, Schedule VII. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  106. 106. Adjudication Of Disputes Relating To Waters Of Inter-State Rivers Or River Valleys • In exercise of the powers bestowed by Article 262, the Parliament enacted the Inter- State Water Disputes Act, 1956. If the water disputes cannot be settled by negotiations then the Central Government establishes a Water Disputes Tribunal for the adjudication of such disputes. There are currently five active tribunals – namely, Ravi and Beas Water Tribunal, Krishna Water Disputes Tribunal – II, Vasundhara Water Disputes Tribunal, Mahadayi Water Disputes Tribunal and Mahanadi Water Disputes Tribunal. There are several legal doctrines related to the issue of inter-state waters. These include – Doctrine of Riparian Rights, Prior Appropriation, Territorial Sovereignty, Community of Interest and Equitable Apportionment. • The Supreme Court in the judgment of State of Kerala through the Chief Secretary to Government vs. State of Tamil Nadu through the Chief Secretary to Government (2018) (CIVIL APPEAL NO. 2453 OF 2007), finally settled the age-long Cauvery Water Dispute. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  107. 107. Provisions With Respect To An Inter-State Council • Under Article 263 of the Constitution of India, if the President believes that the establishment of an inter-state council would help in serving the public interests, then it is lawful for the President to establish such Council by order. He shall also define the nature of duties to be performed by the Council, its organisation and the procedure to be followed. • The President can charge the Council with the following duties: – To inquire into and advise upon disputes which may have arisen between States; – To investigate and discuss subjects in which some or all of the States, or the Union and one or more of the States display a common interest; – To make recommendations upon any subject and in particular, to make recommendations for enhanced coordination of policy and action pertaining to that subject. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  108. 108. Conclusion • The aim of the Indian Constitution is to establish either collaborative or cooperative federalism. Through the division of powers between the Centre and the States, a certain autonomy is granted to the States to ensure that the administration at the grass-root level remains efficient. Simultaneously, the Centre exercises its power over the States to maintain a balance. • There are several challenges in the way of maintenance of a federation but the key solution is healthy debate and discussion between the parties involved. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  109. 109. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India) Financial Relations between Union and the States
  110. 110. Introduction • India follows a federal structure where the powers are shared between both the centre and the states. Though however, the distribution of these powers are not equal, and we often find states raising constant concerns about their extreme dependence on the Union Government for all the matters, thus limiting their powers and autonomy. Hence, it is also said that India follows a quasi-federal structure where the central government enjoys more powers over the states. • Similarly in the financial field too, the Union Government is more powerful than the states and though there have been various reforms in fiscal federalism from time to time still there exists a wide variety of issues that needs to be addressed. As in the present situation also the states have to rely heavily on the centre for financial resources. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  111. 111. Article 246 – Subject Matter Of Union And States To Make Laws On Taxation • Article 246 of The Constitution of India, 1949 provides a list of subjects giving power to the different levels of government to make laws on them. Essentially speaking there are three kinds of lists mentioned under Article 246 that are as follows: • Union list The Union Government has the authority to make laws relating to the subject matter given under the list I, called the Union list. It includes taxes like Corporation Tax, Customs and Excise duties and taxes on income other than agricultural income, etc. • State List The State Government is vested with the power to frame laws on the subjects mentioned under list II, called the state list. It includes taxes on vehicles, liquors, land revenue, entertainment, luxuries, stamp duties and sale or purchase of goods, etc. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  112. 112. Article 246 – Subject Matter Of Union And States To Make Laws On Taxation • Concurrent List While there is another list also known as the Concurrent List, which gives power to both the centre as well as state government to make laws with regards to the subjects provided by the list III. List III does not include any major tax as such. This helps in avoiding the competitive exploitation of the same source by both the authorities and the overlapping of tax-jurisdictions under the Indian Constitution. Further, in the case of conflict, the central government decision will prevail over the State government decision. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  113. 113. Distribution Of Powers – Levying And Collection Of Taxes • Article 268 to 281 of the Indian Constitution has made elaborate provisions that provide directions to the centre relating to the distribution of financial resources amongst the states. It lays down principles for the centre and states to work in coordination for levying and collection of taxes through systematic arrangements. • The provisions, for the time being, can be summarised as follows but will be explained in detail further. It includes: – Taxes levied by the Union but collected and kept by the States (Article 268). – Taxes levied and collected by the Union but assigned to the States (Article 269). – Taxes levied and distributed between the Union and the States (Article 270). – Grant-in-aid from the Centre to the States (Article 273, Article 275 and Article 282). – Sharing of proceeds from other taxes. • In giving recommendations with regards to the distribution of funds between the centre and state, the Finance commission mentioned under Article 280 plays a very important role. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  114. 114. GST Regime – 101st Amendment • The 101st Amendment in the constitution and the introduction of GST in the Indian Economy has significantly changed the landscape of financial relations between the centre and states. Therefore, it is extremely important to have a basic knowledge of what GST is, its application and its different forms. • Position before GST Before the introduction of GST, there were multiple taxes imposed by the centre and states separately and the distribution of which was confusing and non-uniform. It included Service Tax, Central Excise, Customs duty and State VAT etc. But after the GST, the principle of one nation one tax was adopted. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  115. 115. Position before GST GST is categorized into CGST, SGST or IGST depending on whether the transaction is Intrastate or Interstate supplies. Let’s understand what does this means: • Inter-state and Intra-state Supplies • i) Intra-State supply of goods or services: In these kinds of transactions, the location of the supplier and the place of supply are in the same state. • ii) Inter-State Supply of Goods and Services: As per the Section 7 of The Integrated Goods, and Services Tax Act 2017 it can be understood that “Inter-state” trade or commerce basically means: – when the supplier is located in some other state or union territory and the place of the supply is in another state/UT, or – when the supply of goods or services is made to or by a Special economic zone (SEZ) unit. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  116. 116. Central Goods and Services Tax (CGST) • CGST is a tax imposed on Intra-state supplies of goods and services and is governed by the CGST Act. Along with this SGST/UTGST will also be levied on the same transaction and shall be governed by the SGST/UTGST Act. • It implies that in the case of Intra-state supplies of goods and services both CGST and SGST are combined which are collected simultaneously; where CGST goes to the centre and SGST goes to the state. • The proportion of SGST and CGST is equal. • However, it must be noted that any tax levied on Intra-State supplies of goods and/or services by the centre and state shall not exceed 14% each. State Goods and Services Tax (SGST) • The SGST is a tax levied by the state on the Intra State supplies of goods and/or services by the State Government. • It is governed by the SGST Act. • As already mentioned above it is levied and collected simultaneously with the CGST. • In the case of Union territories, it is called UGST and governed by the UGST Act. •Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  117. 117. Position before GST Integrated Goods and Services Tax (IGST) • IGST or Integrated Goods and Services Tax is a tax levied on all Inter-State supplies of goods and/or services. • It is governed by the IGST Act. • IGST applies on any supply of goods and/or services in case of both import into India and export from India. Though the exports will be zero-rated. • Tax obtained under IGST is shared between centre and states as per Article 269A. • The biggest achievement of GST is that it introduced a single uniform tax system with dual tax features where the revenue is shared between both centre and state. • The GST council as mentioned under Article 279 A, shall make decisions in relation to the GST rate, inter supply transactions and other matters related to GST etc. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  118. 118. Article 265- Taxes not to be imposed save by authority of law • According to Article 265 of the Constitution of India, the union and state cannot levy or collect any tax except authorised by law. • This basically means that the power of the centre or state government to levy and collect tax is not absolute power; as Article 265 of the Constitution of India imposes certain general and specific limitations on it. • In the case of Pratibha R.C.C. Spun, pipe and cement products V/s State of Karnataka (AIR 1991 Kant 205), the imposition of a certain tax was rejected in the light of Article 265 of the Indian Constitution. In the instant case, a tax was charged in the pretext of a fee. Since there was no legislative enactment behind the same, the imposition of the tax was considered illegal. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  119. 119. Article 266 - Consolidated Funds and public accounts of India and of the States • (1) Subject to the provisions of article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of India”, and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of the State”. • (2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be. • (3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  120. 120. Article 267 – Contingency Fun • (1) Parliament may by law establish a Contingency Fund in the nature of an interest to be entitled “the Contingency Fund of India” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the President to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under article 115 or article 116. • (2) The Legislature of a State may by law establish a Contingency Fund in the nature of an interest to be entitled “the Contingency Fund of the State” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the Governor 2*** of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the Legislature of the State by law under article 205 or article 206. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
  121. 121. Article 268 - Duties Levied By The Union But Collected And Appropriated By The States (1) Such stamp duties as are mentioned in the Union List shall be levied by the Government of India but shall be collected— (a)in the case where such duties are leviable within any Union territory, by the Government of India, and (b)in other cases, by the States within which such duties are respectively leviable. (2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State. Chanderprabhu Jain College of Higher Studies & School of Law Plot No. OCF, Sector A-8, Narela, New Delhi – 110040 (Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

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