Indian Constitution

Making of the constitution

  • 1934: Idea of constituent assembly put forward by M N Roy
  • 1935: INC officially demands constituent assembly
  • 1938: JL Nehru’s declaration on the constitution of India
  • 1940: Nehru’s demand accepted in the form of August Offer
  • August Offer
    • PM: Winston Churchill
    • While rejecting INCs demand for independence of India after the war on the ground that INC is not representative of the minorities, three offers were made
    • Expansion of Viceroy’s executive council with the inclusion of Indian representatives
    • An advisory body with the members from British India and Indian princely states which were supposed to meet at consequent intervals was established
    • Two practical steps were decided to be taken in which it was to come at an agreement with the Indians on the form which the post representatives body should take and the methods by which it should come to a conclusion.
    • It further planned to draw out the principles and outlines of the Constitution itself
    • Congress rejected the offer
  • 1942: Cripps Mission
    • PM: Winston Churchill Sec of State: Leo Amery                                Viceroy: Linlithgow
    • On the framing of an independent constitution to be adopted after the WW II
    • Cripps proposals rejected by the ML which wanted India to be divided into two autonomous states
  • 1946: Cabinet Mission
    • PM: Clement Attlee Viceroy: Lord Wavell
    • Members: Pethick Lawrence (sec of state for India), Stafford Cripps, A V Alexander
    • Simla Conference
    • May 16 plan
      • United dominion of india would be given independence
      • Muslim majority and Hindu majority provinces to be grouped
      • Central government to run foreign affairs, defence and communications while rest of the responsibility would belong to the provinces, coordinated by the two groups
    • Interim cabinet was formed. ML joined the cabinet but decided to boycott the constituent assembly
  • 1946, Nov: Constituent Assembly formed under the Cabinet Mission Plan
  • First meeting of CA on December 9, 1946. Sacchidanada Sinha was elected the temporary Presidetn
  • Dec 11, 1946: Rajendra Prasad and H C Mukharjee elected as the President and VP of the assembly respectively.
  • BN Rao was the constitutional advisor to the assembly
  • Dec 13, 1946: Objectives Resolution moved by JL Nehru
  • Jan 22, 1947: Objectives resolution adopted
  • June 3, 1947: Mountbatten plan. Partition of the country announced.
  • Jan 24, 1950: Final session of the CA. It however continued as a provisional body from Jan 26, 1950 till the formation of the new Parliament after the first general elections in 1951-52

Major Committees of CA

CommitteeChairman
Union Powers CommitteeJL Nehru
Union Constitution CommitteeJL Nehru
Committee for Negotiating with StatesJL Nehru
Steering CommitteeRajendra Prasad
Rules of Procedure CommitteeRajendra Prasad
Provincial Constitution CommitteeSardar Patel
Committee on Fundamental Rights and  Minorities.

Two sub committees ( FR , Minorities)

Sardar Patel

(J B Kriplani, H C Mukharjee)

Drafting CommitteeB R Ambedkar

 

  • Drafting Committee was setup on Aug 29, 1947. It had seven members
    • B R Ambedkar
    • Alladi Krisnaswamy Ayyer
    • N Gopalaswamy Ayyangar
    • K M Munshi
    • TT Krishnamchari
    • N Madhava Rau
    • Syed Mohammad Saadullah
  • Nov 26, 1949: Constitution was adopted
  • The Preamble was enacted after the entire Constitution was already enacted

Governor

  • Same person can be appointed the governor of two or more states
  • Appointed by the President
  • May resign by writing to the President
  • Qualification
    • Citizen of India
    • 35 years of age
  • Art 161: Pardon for any offence against a law relating to a matter to which the executive power of the state extends
  • Constitution does not state the procedure or the grounds for the removal of the Governor

 

Council of Ministers

  • The advice tendered by the CoM cannot be enquired in a court
  • Number of ministers in the CoM (including the PM) cannot exceed 15 pc of the total number of members of LS (91st amendment, 2003)
  • If a person is disqualified under the 10th schedule (defection), he cannot become a minister
  • Art 75(3): Collective responsibility

Attorney General

  • Article 76
  • Should be qualified to be appointed as a judge of the SC
  • Right of audience in all courts in the territory of India
  • Has the right to take part in the proceedings of either houses, without the right to vote.

Parliament

  • Consists of the President, Lok Sabha and Rajya Sabha
  • Six months should not intervene between consecutive sessions
  • The president shall address a joint sitting of both the houses at the first session of every year and at the first session after the general elections
  • The Chairman and Speaker can vote only in case of equality of votes
  • Quorum: One-tenth of the total number of members of the House
  • MPs resign by addressing their resignation to the Speaker of the Chairman
  • If a member is continuously absent for 60 days without permission for all the meetings of the House, his seat is declared vacant
  • Article 102: grounds for disqualification.
    • 5 grounds
  • Decision on questions as to disqualification of members shall be referred to the President and his decision shall be final. The President, in giving his decision, shall act in accordance with the advice of the Election Commission
  • Joint sitting: If passed by one house and rejected by the other, disagreement between houses on the amendments to the bill, more than six months has passed and the other house has not passed the bill
  • Joint sitting does not apply to Money Bills

Council of States

  • Elected members: 238 from state and union territories
    • Allocation of seats given in the 4th schedule
  • Nominated members: 12
    • From field of Literature, science, art and social service
  • Elected members of the states to be elected by respective Legislative Assembly by proportional representation by means of single transferrable vote
  • Representatives of UTs to be chosen as Parliament may by law prescribe
  • 1/3 members retire every 2 years
  • At least 30 years of age
  • Deputy Chairman can resign by addressing to the Chairman

Most RS seats: UP>Maharashtra>TN=AP>Bihar=WB>Karnataka

States with only one RS seat: Arunachal, Goa, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura

States with least RS seats: Above 8<HP=Uttaranchal<J&K<Haryana=CG

UTs: Delhi-3, Puducherry-1, Rest-zero

House of People

  • 530 members from states by direct elections
  • 20 from UTs chosen in a manner prescribed by the Parliament
  • 2 nominated by the President from the Anglo-Indian community if it is not represented
  • Ratio of LS seats allocated to a state and its population should be same across states
    • This may not be followed if the population of the state is less than 6 million
  • Population kept as frozen till the census taken after 2026
    • For LS constituency allotment to states: 1971 census data used
    • For defining boundaries of constituencies: 2001 census data used
  • At least 25 years of age
  • Speaker can resign by addressing to the Dy Speaker. The latter can resign by addressing to the Speaker
  • When LS is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the LS after its dissolution
  • Whenever the Deputy Speaker is appointed as a member of a parliamentary committee, he automatically becomes its chairman

Most LS seats: UP>Maharashtra>AP=WB>Bihar>TN

States with one LS seat: Mizoram, Nagaland, Sikkim

Least LS seats: Above 3<Manipur=Meghalaya=Goa=AP=Tripura<HP<Uttaranchal<J&K

UTs: Delhi(7), Puducherry(2), Rest -1

Reserved for SC: UP – 17, WB – 10

Reserved for ST: MP – 6, Jharkhand, Orissa – 5, CG, Gujarat, Maharashtra – 4

 

Fundamental Rights

  • Discrimination not on grounds only of
    • Art 15: religion, race, caste, sex, place of birth
    • Art 16: religion, race, caste, sex, descent, place of birth, residence
  • Reservation
    • First Backward Classes Commission: 1953, Kaka Kalelkar
    • Second BCC: 1979, B P Mandal (by Morarji Desai govt)
    • Article 340
  • Reasonable Restrictions
    • Speech and Expression: sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offence
    • Assembly: sovereignty and integrity of India and public order
    • Association: sovereignty and integrity of India, public order and morality
    • Movement: interest of general public and the protection of interests of any scheduled tribe
    • Residence: interest of general public and the protection of interests of any scheduled tribe
    • Profession: in the interest of the general public
  • Protection against self-incrimination does not extend to civil proceedings
  • Protection provided under normal detention in Art 22 not covers arrest under the orders of a court, civil arrest, arrest on failure to pay the income tax and deportation of an alien

 

The president doesn’t sit in Parliament. Why is he still consider an integral part of it?

  • Because a bill passed by the Parliament cannot become a law unless it receives President’s assent
  • He also performs certain functions relating to the parliament eg, summoning and proroguing the sessions, issuing ordinances, addressing both the houses

What does Rajya Sabha consist of?

  • Representative of states
    • By elected members of state legislative assemblies
  • Representatives of Union Territories
    • By members of an electoral college constituted specially for this purpose
  • Nominated members
    • From field of Art, Science, literature and social service.

But, why have nominated members?

  • To provide eminent persons a place in the RS without going through the process of election

 

Why was proportional representation not adopted for election to LS?

  • Difficulty for the voters to understand the system due to low literacy rate in the country
  • Unsuitability to the parliamentary government due to the tendency of the system to multiply political parties leading to instability in government

Disqualification of an MP

  • Disqualification conditions mentioned in the constitution
    • Decided by the President on the advice of the EC
  • Disqualification on the ground of defection (10th Schedule)
    • Decided by the Speaker/Chairman. Open to judicial review

In what cases does a MP vacate his seat?

  • Disqualification
  • Resignation
  • Absence
  • Double Membership
  • Some other cases

 

Distinction between SC and HC

SCHC
Appointment of JudgesA distinguished jurist can be appointed a judgeConstitution does not make provision for appointment of a distinguished jurist
Tenure of judgesTill 65Till 62
JurisdictionJurisdiction cannot be curtained as mentioned in the constitution. Other jurisdiction and powers can be changed by the Parliament.Ditto. Other jurisdiction and powers can be changed by both the Parliament and the State legislature.
Original jurisdictionIn matters relating disputes between centre and states or between statesSome imp:

1.       Disputes relating to the election of members of Parliament and state legislatures

Writ JurisdictionCan issue only for enforcement of fundamental rightsCan issue for fundamental rights and for any other purpose

 

Posts

PostAppointmentRemoval
State Public Service CommissionGovernorPresident
HC JudgePresident in consultation with the CJI and the governor of the stateSame as SC judges

 

 

Taxes

LeviedCollectedAppropriatedExample
1.CentreStateStateStamp duty on some bills of exchange, Excise duty on some medicinal prep containing alcohol
2.CentreCentre + StateCentre + StateService Tax (88th amendment. Rule of appropriation decided by the Parliament)
3.CentreCentreStateSome taxes on inter-state trade
4.CentreCentreCentre+ StateAll other taxes expect those mentioned above and below (division decided by the FC)
5.StateStateStateWealth, Sales, some excise etc
6.CentreCentreCentreSurcharges on taxes referred to 3 and 4

 

Grants in aid

  • Statutory grants on the recommendation of the FC. There are charged on the Consolidated Fund of India every year
  • Discretionary grants on the recommendation of the Planning Commission
  • These days discretionary grants > statutory grants

Charged expenditure

  • CAG
  • UPSC

CG, Jharkhand, MP and Orissa have to have a minister for tribal affairs.

 

How is original jurisdiction of SC different wrt disputes of federal nature and those relating to fundamental rights?

Ans: In federal cases SC has exclusive original jurisdiction whereas in writ cases SC has original jurisdiction which is not exclusive. It shares it with the high courts. Secondly, the parties involved in the first case are units of the federation while in the second case it is between a citizen and the government.

 

 

Various Constitutional Posts

CAGUPSCSPSCECNat Comm SCNat Comm STOfficer Linguistic Minorities
Article148315-323315-323324338. By 65th amendment (1990) as Nat Comm of SC and ST338A <89th amendment>350 B – 7th Amendment.

1957

AppointmentBy presidentChairman and Members by PresidentGovernor (but can be removed only by President)PresidentPresidentPresident
Chair, VC, 3 members
QualificationNoneNone (except half the members govt servants>=10 yrsNone (except half the members govt servants>=10 yrs
TenureMax six years till 65 yearsMax six years till 65 years. Single term.Max six years till 62 years. Single termMax six years till 65Determined by Pres. Hold office for 3 yearsDetermined by Pres. Hold office for 3 years
RemovalSame manner and ground as SC judgeBy president: Insolvent, outside employment, infirmity of mind or body. Also misbehaviour <has to refer to SC. Binding advice>President <same as UPSC>CEC: Same manner and ground at SC judge

Members: cannot be removed without the recommendation of the CEC

Further employmentNot eligible under centre or state govtChairman: Not under the govt or state (except governor).

Members: Only as UPSC or SPSC chairman

Chairman: As Chairman of UPSC of any other SPSC but no other under govt.

Members: Same except that they can also be appointed as same SPSC chairman

 

Not debarred from any further employment
Service conditionsDetermined by ParliamentBy president. Jurisdiction can be extended by parliamentSimilar to that of SC Judge
OthersPresident can exclude posts, services and matters from purview of SPSC. Rejected recommendations to be approved by the Appointments CommitteeGovernor can exclude posts, services and matters from purview of SPSCCan regulate its own procedure

 

Powers of civil court

 

Also enquires matters relating to OBCs and Anglo Indians

Bifurcated after 89th amendment (2003). So came into being in 2004

 

Can regulate its own procedure

 

Powers of civil court

 

HQ: Allahabad

Regional office: Belgaum, Chennai, Kolkata

 

Falls under the ministry of Minority Affairs

 

Other Bodies

PCNDCNHRCSHRCCVCCIC
Estd1950 – executive resolution1952 – executive resolution1993 – Statutory1993 – Statutory1964 – executive res

2003 – statute

2005 – statute
Composition1 Chair, 4 Members, 4 ex-officio members (Chair of Nat com of SC, ST, Minorities, Women)1 Chair, 2 Members1 CVC, 2 VC1 CIC and <=10 members. Persons of eminence in public life etc.
QualificationChair: Ex CJI

Members: Ex or serving SC/HC judge; 2 persons having human rights knowledge or experience

Chair: Ex CJI of HC

Members: Ex or serving HCJ/Dist J min 7 year exp and a person having knowledge of HR

AppointmentPresident on recommendation of six member committee – PM, Speaker, Dy Chair (RS), Leaders of Opposition in Both Houses, Home MinBy Governor on recommendation of committee –( centre counterparts)President – 3 member committeePresident by committee: PL, Leader of Opp in LS, a Cabinet Minister
Tenure5 years or till age of 705 yrs of till age 704 years or till age of 655 years of 65 age. No reappointment. IC can be appointed as CIC but total term <= 5years
Further employmentNoNoNo
RemovalBy President. Same as UPSC.By President. Same as UPSC.By President. Same as UPSC.By President. Same as UPSC.
Conditions of servicesBy Central GovtBy State GovtSame as UPSCSame as EC/SC
PowersOf a civil court. Can look into a matter only within one year of its occurance.Powers of Civil court. Can look into a matter only within one year of its occurrence. Can enquire only on HR violations in matters relating to state list and concurrent list.Powers of a civil courtPowers of a civil court

 

If you know this, you know that

  • CIC – State IC
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