Indian Constitution 3
7. The Union legislature
Union legislature
The parliament of India consists of the president and two houses.
1) The lower house is called the house of the people (Lok Sabha)
2) upper house is called the Council of states (Rajya Sabha).
The Council of states shall be composed of not more than 250 members of whom
a) 12 members shall be nominated by the president and 238 shall be
representatives of the states and UTs elected by the method of indirect election. The representatives of each state shall be elected by elected members of legislative assembly of the state in accordance with the system of proportional representation by means of single transferable vote. The representatives of UT’s are also selected by this manner. The Rajya Sabha shows the federal character by representing the units of federation however it does not show equality of representation as in America. The No. of membership varies from 1(Nagaland) to 34 (U.P).
representatives of the states and UTs elected by the method of indirect election. The representatives of each state shall be elected by elected members of legislative assembly of the state in accordance with the system of proportional representation by means of single transferable vote. The representatives of UT’s are also selected by this manner. The Rajya Sabha shows the federal character by representing the units of federation however it does not show equality of representation as in America. The No. of membership varies from 1(Nagaland) to 34 (U.P).
The Council of states is not subject to dissolution. It is a permanent body but 1/3 of its members retire on the expiration of every second year.
Lok Sabha : Parliamentary system in India
The House of the people prescribes a maximum number as follows
a) Not more than 530 representatives of states
b) Not more than 20 representatives of union territories.
c) Not more than 2 members of Anglo-Indian community
The people of the states on the basis of adult suffarage shall directly elect the representatives of the states. Every citizen who is not less than 18 years of age and is not otherwise disqualified e.g. By reason of non residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to vote at such election (326). There will be no reservation for any minority community other than the scheduled Castes and Tribes.
The election to the Lok sabha requires that the territory of India should be divided into territorial constituencies for the purpose of holding such elections. So the 7th Amendment act provided for uniformity of representation in two respects a) between different states and between the different constituencies in the same state depending upon the population.
The normal life of the Lok Sabha is 5 years but it may be dissolved earlier by the President. The normal term may extended by an act passed by parliament during a proclamation of Emergency is in operation. The extension cannot be made for a period not exceeding one year at a time and in any case such extension cannot continue beyond a period of 6 months after the Proclamation of Emergency ceases to operate. The President must summon each house at such intervals that 6 months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
A session is the period of time between the first meeting of a parliament and its prorogation or dissolution.
Recess is the period between prorogation of parliament and its reassembly in a new session
Adjournment refers to the postponement of consideration of business for a specified time
Prorogation terminates a session but the dissolution ends the life of the House. The powers of dissolution and prorogation are exercised by President on the advice of the council of ministers, the power to adjourn the daily sittings of the house of the people are exercised by Speaker or the Chairman as the case may be. The dissolution brings an end to all the business pending before the House but a bill pending in the council which has not yet been passed by the house shall not lapse on dissolution. Dissolution would not however affect a joint sitting of two houses summoned by the President has notified his intention to hold a joint sitting before the dissolution (108(5)).
Qualifications for membership of parliament
a)Must be a citizen of India
b)Must be not less than 30 years of age in case of RS and not less than 25 years in case of Lok Sabha
Additional qualifications may be prescribed by parliament by law and a person shall be disqualified for being chosen as and for being a member of either House of parliament
a) If he holds any office of profit under the GOI or of any state but not a minister
b) If he is unsound mind and so declared by competent court
c) If he is an undischarged insolvent.
d) If he is not a citizen of India or has voluntarily acquired citizenship of a foreign state or is under acknowledgement of allegiance or adherence to a foreign power.
e) If he is so disqualified by or under any law made by parliament (102).
Any question regarding disqualifications, the presidents decision based on the opinion of election commission, shall be final.
A member of parliament shall vacate his seat if
a) If he acquires membership of both house of parliament or of union and state legislature.
b) Disqualified as mentioned above
c) By resignation addressed to the speaker or chairman as the case may be
d) If the member absents himself from all meetings of the house for a period of 60 days without permission of the House.
Privileges of house and members
The privileges enjoyed by members individually are
1) Freedom from arrest in civil cases during a period of 40 days before and after meeting
2) freedom of attendance as witness
3) freedom of speech.
It gives immunity of action for anything said within the walls of house subjected to the rules framed by the house. The constitution imposes a limitation with respect to the conduct of any judge of SC or of HC in the discharge of duties except upon a motion for their removal. (121)
The privileges of the house are collectively are
1) The right to publish debates and proceedings and the right to restrain publication by others
2) The right to exclude others
3) The right to regulate the internal affairs of the House, and to decide matters arising within its walls
4) The right to publish parliamentary misbehaviour
5) The right to punish members and outsiders for breach of its privileges.
Speaker
There shall be a speaker to preside over the house of the people.Speaker and deputy speaker will be chosen among the members as soon as after the first sitting. They normally hold the office during the life of the house and may terminate earlier by the following ways
a) By ceasing to be a member of house
b) by resignation addressed to Deputy Speaker or Vice versa
c)By removal from office by a resolution passed by a majority of all the then members of the House.
The Speaker exercises a casting vote in case of tie. He has the power to maintain order within the house, interpret its Rules of procedures, adjourn or suspend the House. The speaker shall preside over the joint sitting of the two houses of the parliament and when a money bill is transmitted from Lok Sabha to Rajya Sabha, the speaker shall endorse on the bill his certificate that it is a money bill.
The deputy speaker presides when the speaker is vacant or absent.
Privileges are certain rights belonging to each house of parliament collectively, and some others belonging to the members individually without which it would be impossible for either house to maintain its independence of action or dignity of its position. The constitution confers upon the houses of legislatures the same British privileges as those of house of common.
Parliamentary committees
A parliamentary committee is a committee which is appointed or elected by the House or nominated by the speaker and works under the direction of the speaker and present the report to the speaker or to the house.
There are two type of committees Viz. Ad hoc committees and Select committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed for specific purposes. Apart from the Ad hoc Committees, each House of Parliament has Standing Committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc. Loksabha has 18 standing committees. No member is to be appointed or elected unless he is willing to serve on it.
Legislative procedure for ordinary bills
Stages in Legislative procedure for ordinary bills
1. Introduction: A bill may be introduced in either house of parliament by a Minister or by a private member. The leave of house is required to introduce the bill by a private member and it should published in the official gazette.
2. Motions after introduction: The member in charge of the bill may make the following motions.
a) That it be taken into consideration
b) That it be referred to a select committee or a Joint committee
c) That it be circulated for eliciting public opinion.
After the passage of above motions, the principles of the bill and general Provisions are discussed.
3. Report by select committee : After receiving the report of select committee A motion that the bill as returned by select committee be taken into consideration and the clauses of the bill are open to consideration and amendment are admissible.
4. Passing of the bill in the house where it was introduced.
5.Passage in the other House as described above.
6. The house, which receives the bill from another house, may take the following courses
a) It may reject the bill altogether.
b) It may pass the bill with amendments
c) It may take no action on the bill within 6 months
In all the above case if the originating house does not agree on the actions taken by the other house, the president may apply a joint sitting as per the provisions of Art 108.
7. when presidents assent is obtained the bill becomes an Act.
Vote on account
The process of voting of demands continues for a long time while day to day expenditure of the government cannot wait till the budget is finally passed. To meet this difficulty, a new device vote on account is introduced to draw from consolidated fund generally for two months. It is passed without debate.
In the sphere of finance, the parliament’s power is supreme. Art 265 says that no tax shall be collected except by the authority of law. In the same manner Art 266(3) says that no moneys shall be appropriated out of the consolidated fund of India except in accordance with the law.
Money bill & Budget
Money bill : A bill is deemed to be a money bill if it contains only provisions dealing with all or any of the matters specified in Art 110. If any question arises whether a bill is money bill or not the decision of the speaker shall be final. A money bill shall not be introduced in the council of states. The Rajya Sabha cannot reject a money bill or amend it. It must within a period of 14 days from the date of receipt, return the bill which may thereupon either accept or reject all or any of recommendations of the council of states.
Budget : At the beginning of every financial year, the president shall, in respect of the financial year, cause to be laid before both the houses of parliament a statement of the estimated receipts and expenditure of the Government of India for that year is called annual financial statement or the Budget.(Art 112). It also contains an analysis of the actual receipts and expenditures of the closing year and the causes of any surplus or deficit in relation to such year and the economic policy and spending programme of the Govt. in the coming year and the prospects of revenue. The estimated in the budget are shown separately.
a) The sums required to meet expenditure charged upon Consolidated fund of India. These are not submitted to vote of parliament but they can only discuss them.
b) The sums required to meet other expenditures to be made from consolidated fund of India. They are submitted in the form of demands for grants to the houses of people.
The appropriation act gives that legislative sanction to withdraw money from the consolidated fund of India. This bill is passed as a money bill subject to the condition that no amendment shall be proposed to any such bill in either house of parliament.
The taxing proposals of the Budget are embodied in another bill known as Annual Finance Bill.
Consolidated fund of India & Public Account of India
Consolidated fund of India: Subject to the assignment of certain taxes to the states, all revenues received by the government of India, all loans raised by the government and all moneys received by that government in repayment of loans shall form one consolidated fund to be called “the consolidated fund of India” Art (266(1)).
Public Account of India: All other moneys received by or on behalf of the government of India shall be credited to the public Account of India Art (266(2)).
Contingency Fund of India/state: Art 267 empowers Parliament and the legislature of a state to create a Contingency Fund for the purpose of meeting the unforeseen expenditure by the Executive. The amount of the Fund is subject to be regulated by appropriate legislature.
The expenditure charged on consolidated fund of India are
a) the emoluments and allowances of presidents and other expenditure relating to his office,
b) the salaries and allowances of chairman and Deputy chairman of the council of states and the Speaker and Deputy speaker of the houses of the people
c) debt charges for which the government of India are liable
d)
(i) the salaries, allowances and pensions payable to or in respect of judges of supreme court
(ii) the pensions payable to or in respect of of judges of the Fedral Court
(iii) pensions payable to or in respect of Judges of any High Court
e) the salary, allowances and pension payable to or in respect of the comptroller and Auditor General of India
f) any sums required to satisfy any judgement, decree or award of any court or arbitral tribunal
g) any other expenditure declared by this constitution or by Parliament by law to be charged.
....................................................................................................................................................................
8. The State Executive
Governor
Our Constitution provides for a federal government having separate systems of administration for the union and its units, called states. The pattern of Government is almost same for the Union and states with minor differences. So only the differences are dealt in this Chapter. Part VI of the constitution is applicable to all states except Jammu and Kashmir.
Governor : At the head of the executive power of a state is the Governor just as the President stands at the head of the executive power of the Union. The same person can act as the Governor for more than one state and he may be appointed one than once. The Governor is not elected but is appointed by the President and the normal term is 5 years but it may be terminated earlier by
1) Dismissal by president at whose pleasure he holds the office (Art 156(1))
ii) Resignation holds the office at the pleasure of the President.
The Governor has no military and diplomatic Power however he has the following powers. Qualification : citizen of India, completed 35 years of age, should not hold any office of profit, must not be the member of parliament or state legislatures.
Executive Power
He has the power to appoint the council of ministers, Advocate General (corresponding to Attorney General of India) and the members of the state public service commission. The ministers as well as the advocate general hold during the pleasure of the Governor but the members of State Public Commission cannot be removed by him. The Governor can nominate one member from the Anglo-India Community if he is satisfied that they are not adequately represented. The Governor can nominate members to the upper chamber of state legislature amongst persons having special knowledge or practical experience in respect of matters such as literature, science, art, co-operative movement and social service.
Legislative Power
He summons, adjourns, prorogues and dissolves legislative assembly. When a bill is presented to him for his approval, he may give his assent, or he may reserve it for the consideration of the president or he may return it to the legislature for reconsideration. A bill thus returned, if again passed with simple majority, it becomes obligatory for him to give his assent. No money bill can be introduced without his recommendation. His other legislative functions include an address to the legislatures at the beginning of first session every year, may address, send messages to, legislatures. He has the power of issuing ordinances during the recess of the state legislature. An ordinance issued by the Governor ceases to be effective six weeks after the reassembly of the legislature unless approved earlier.
Judicial Power
He has the power to grant pardons, reprieves, respites or remission of punishments or to suspend, remit or commutes the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the state extends (Art 161).
Emergency power
He has no emergency power but has the power to make report to the President whenever he is satisfied that a situation has arisen in which the provisions of the constitution cannot be carried on accordance with the provisions of the constitution thus inviting the President’s Rule.
Special Powers : The governors of some states like Assam, Arunachal Pradesh, Nagaland, Sikkim have been special powers. In states of Bihar, MP and Orissa it is the special responsibility of the governor to see that a minister is placed in charge of tribal welfare.
Real Position of the Governor
The constitution vest enormous powers on the president. But in real practice all these powers are be exercised only on the advice of council of ministers except his discretionary powers.
The council of Ministers
Art 163 of the constitution lays down that ‘there shall be a council of ministers with Chief Minister as its head to aid and advanfe the governor in exercise of his functions.
At the head of the state council of ministers is the chief minister. The constitution does not empower the president to exercise any discretionary function but allows the Governor to do. The governor’s decision as to whether he should act in his discretion in any particular matter is final, it would be possible , for a governor to act without ministerial advice in certain other matters according to circumstances , even though they are not specifically mentioned in the constitution as discretionary functions. e.g. if he considers that the bill in question would affect the powers of the union or contravene any provisions of the constitution even though his ministry may be of a different opinion.
The State Legislature
The state legislature consists of Governor and legislative assembly but in some state like Bihar, Maharastra, Karnataka and Utter Pradeh , Jammu and Kashmir have a legislative council. Thus most of the state legislature is unicameral however the constitution allows for the abolistion as well as the creation of the legislative council by a resolution of the legislative assembly of the state concerned passed by a special majority followed by an act of parliament. The membership of the council should not be more than one-third of the legislative assembly but not less than 40. It will be a partly elected and nominated body. The legislative assembly of each state shall be composed of members chosen by direct election on the basis of adult suffrage and the number of members shall not be more than 500 nor less than 60. The assembly of Goa and Mizoram shall have only 40 members.
The governor may reserve a bill for the consideration of the President and in one case it has been made compulsory. viz where the law in question would derogate from the powers of the High Court under the constitution. In case of money bill, so reserved, the president may either declare his assent or withhold his assent however no time frame has been mentioned. But in the case other than money bills, the president may, instead of declaring his assent or refusing it, direct the governor to return the bill to legislature for reconsideration. In the latter case the legislature must consider the bill with 6 months and if it is passed again , the bill shall presented to the president again but it shall not be obligatory upon the President to give his assent in this case too.
Quorum: It is the minimum numbers of members required to conduct business of the house. It is 10 or one-tenth of the membership of the house concerned
The government of Delhi has all the legislative powers in the state list except entries 1(public order),2(police) and 18(Land)
....................................................................................................................................................................
9. Integrated Judiciary
Introduction
Though we have adopted a Federal system, the constitution has not provided for a double system of courts as in the United States. Under our constitution there is a single integrated system of courts for union as well as the states which administer both union and state laws.
The Supreme Court (SC) The Supreme Court of India: Sentinel of Freedom
Parliament has the power to make laws regulating the constitution, organisation of the jurisdiction and powers of the Supreme Court. The SC consists of the chief justice and not more than 25 other Judges. The President has the power to appoint High Court judges as Ad hoc judges for a temporary period if there is a lack of quorum of permanent judges in the supreme court.
Qualifications :
a) Should be a Citizen of India
b) A distinguished Jurist or
c) Has been a High Court for at least 5 years or
d) Has been an advocate of a High Court for at least 10 years
No minimum age is prescribed for appointment as a Judge of SC or any fixed period. Once appointed, a judge of SC may cease to be so, on the happening of any one of the following
a) On attaining the age of 65 years;
b) On resigning his office by writing addressed to the President
c) on being removed by the President upon an address to that effect being passed by a special majority of each house of parliament viz a majority of the total membership of that house and by majority of not less than two-thirds of the members of that house present and voting. The ground upon which the removal may take place are proved misbehaviour and incapacity. A Judge of S.C. shall not plead or act in any court or before any authority within the territory of India.
Jurisdiction of the Supreme Court
The jurisdiction of the Supreme Court can be divided into the following.
a) Original Jurisdiction: The original jurisdiction of the Supreme Court is dealt with in Art 131 of the constitution. These are disputes between different units of the federation . The original jurisdiction shall be exclusive with means that no other court in India shall have the power to entertain any such suit. The constitution excludes from the original disputes relating to waters of inter state rivers or river valley ,matters referred to the Finance Commission, adjustment of certain expenses between Union and States and a dispute arising out of any treaty, agreement, covenant, engagement; ’sanad’ or other similar instrument which having been entered into or executed before the commencement of the constitution.
b) Appellate: As a court of appeal, The Supreme Court is the final appellate tribunal of the Land. This may be further divided under the following heads.
1) Case involving interpretation of the constitution –Civil, criminal or otherwise.
2) Civil irrespective of any constitutional question.
3) Criminal Cases irrespective of any constitutional question.
Art 136(i) says that not withstanding anything contained in this chapter, the Supreme Court, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
c) Advisory jurisdiction: The President may under article 143(1) make a reference to Supreme Court for its consideration and opinion for any question of law or fact which is of such a nature and of such public importance that is expedient to obtain the court’s opinion on it. A bench of at least 5 judges must hear such a references and the opinion of the S.C. is not binding on the president. The S.C is entitled to decline to answer a question if it is superfluous or unnecessary. Under the clause (2) of Article 143 the president may refer to S.C. for its opinion on disputes arising out of any treaty, agreement etc. which has been entered into or executed before the commencement of the constitution. In such cases it is obligatory on the part of S.C to give its opinion to the President. No court in India is bound by such opinion of S.C.
d) Writ Jurisdiction: Under Art. 32 of the constitution, the S.C can entertain an application for the issue of a constitutional writ for the enforcement of Fundamental Rights.
The High Court
Art 214 says that there shall be a High court in each state but the parliament has the power to establish a common High Court for two or more states. The High court stands at the head of judiciary in the state. Every High court shall consist of a Chief Justice and such other judges as the president of India may from time to time appoint. The constitution also provides for additional and acting judges.
The president shall appoint every judge of the high court. In making such appointment the, the president shall consult the chief justice of India, the Governor of the state (and also the chief justice of that high Court for the appointment of judge other than Chief Justice). A Judge of the high court holds office until the age of 62.
Qualifications :
He must be a citizen of India, not being over 62 years and must have 1) held for at least 10 years a judicial office in the territory of India or
2) has been for at least 10 years as advocate of a High Court or of two or more such courts in succession Art. 217(2).
Jurisdiction
The High courts are primarily courts of appeal. Only in matters of admiralty , probate, matrimonials, contempt of court ,contempt of court, enforcement of fundamental Rights and cases transferred from lower court involving the interpretation of the constitution ,they have original jurisdiction. Every High Court has a power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction, excepting military tribunals (Art 227). However, this jurisdiction of the has been taken away in respect of Administrative tribunal. The Art 226 empowers the High Court to issue Writs not only for the enforcement of the fundamental rights but also where an ordinary legal right has been infringed.
....................................................................................................................................................................
Posts
Post a Comment