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Showing posts from October, 2011

Q. What are the powers of Parliament to legislate on a Subject included in the State List in ordinary situations?

Ans. There are various situations, other than the Emergency, in which Parliament has been empowered to enact laws with respect to the matters included in the State List.
As provided in Article 249, if the Council of State declares 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 any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws with respect 4o such matter of the State List. A resolution passed by the Council of States under this article shall remain in force for a period not exceeding one year. However, the Council of States may pass such resolution again to Continue it for a period beyond one year. Such resolution may be renewed every year for any period of time.
A law passed by Parliament under this article shall cease to have effect after the expiry of 6 months period from th…

Q. What are the constitutional provisions with respect to creation of new States in the Union and alteration of boundaries of States?

Ans. The Union of India is not the result of an agreement or contract among the units of the Union. Therefore, the makers of Indian Constitution have empowered the Union Parliament to create by simple legal procedure the new Slates or to change the boundaries of the existing States.
According to Article 3 of the Constitution. Parliament may by law-
(a) form a new State by separation of territory from any State or re-uniting two or more States or parts of  States or by uniting any territory to part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State; and
(e) alter the name of any State. The following legislative procedure is adopted by Parliament for this Purpose—
(1) No Bill to the above effect can be introduced in Parliament except on the recommendation of the President.
(2) The President, before giving his recommendation to such a Bill, shall refer the Bill to the Legislature of the concerned States to seek the views of…

Q. What is meant by the Doctrine of Colourable Legislation?

Ans. Sometimes, a Legislature may enact a law which is apparently within its authority and scope but in substance it violates its constitutional jurisdiction. In such legislation, the outer form of law is not important whereas its substance should be considered. Such legislation or law is called colourable legislation. When the question of the validity of such law arises before the courts, they apply the doctrine of colourable legislation and declare the law as invalid. For example. the Bihar Land Reforms Act, 1950 was challenged before the Supreme Court on the ground of colourable legislation and the court, in Kameshwar Singh Vs. State of Bihar, declared that the law in question is invalid.

Q. What do you understand by the ‘Doctrine of Pith and Substance’?

Ans. The Constitution has made elaborate provisions to separate the jurisdiction of the Union and the State Legislatures. Thus the 7th Schedule of the Constitution provides three Lists—the Union List the State List and the Concurrent List to specify as to what is the limit of Legislative scope of the Union and the States. It is also expected that both, the Centre and the States, shall respect each others Legislative domain while enacting laws. However, a dispute may arise with respect to a law whether the concerned law comes within the authority of the Legislature which enacted it, or not? In such a controversial situation, the courts apply the doctrine of pith and substance which denotes that the actual nature and purpose of the law shall be investigated. It should be determined whether the substance of the concerned law is really related to the matter or not, in which the concerned legislature has power to enact law. Thus, if, in substance, a law is related to a matter on which the …

Q. What is Contingency Fund and what is its purpose?

Ans. According to the provisions of Article 267(1), Parliament may by law establish a Contingency Fund of India in the nature of an imprest. Such sums of money shall be deposited into this fund as may be determined by law made by Parliament. The Contingency Fund of India shall be placed at the disposal of the President who shall make advances out of this fund to meet unforeseen expenditure pending authorization by Parliament. The money withdrawn out of Contingency Fund is paid back to it as and when Parliament authorizes such unforeseen expenditure. The basic purpose behind this fund is to meet some immediate and urgent expenditure which can not be authorised immediately by Parliament.

Similarly, under the provisions of Article 267(2) the Legislature of a State by law may establish a Contingency Fund of the State in the nature of an imprest. Such sums of money shall be paid into this fund as is determined by the law made by the State Legislature. This fund shall be placed at the dispos…

Q. What are the Consolidated Fund of the State and the Consolidated Fund of India?

Ans. According to Article 266. there shall a Consolidated Fund of India at the Centre and a Consolidated Fund of the State in each State The Consolidated Fund of India shall consist of all moneys realized  through all revenues received by Government of India, all loans raised by that government by issue of treasury Bills, loans or ways and means advances and all moneys received by that government in repayment of loans,
Similarly, 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 part of the ‘Consolidated Fund of the State’.
As per the provisions of Article 112, the following expenditure shall be expenditure charged on the Consolidated Fund of India
(i) the emoluments and allowances of the President and other expenditure relating to his office;
(ii) the salaries and allowances of the Chairman and the Dy. Chairman …

Q. How is Finance Commission constituted ? What are its functions?

Ans. According to Article 280 of the Constitution, the President shall, within two years from the commencement of the Constitution and thereafter at the interval of every five years, constitute a Finance Commission, which shall consist of a Chairman and four other members to be appointed by the President. Parliament has the power to determine by law the qualifications of these members and the manner of their select ion. Accordingly, the four members are appointed from four different fields as given below—
(1) One member should be either a judge of a High Court or should be qualified to become a judge of High Court.
(2) One member should be a person who has special knowledge of government finance and accounts.
(3) One person having vast experience of financial administration and other such matters.
(4) One person having special. knowledge of economics.
The following are the main functions of the Finance Commission— It shall be the duty of the
Finance Commission to make recommendations to the…

Q. Is the Inter-State Council a constitutional body ? How is it constituted and what are its functions?

Ans. The Inter-State Council is a constitutional body. its constitution and functions are prescribed in Article 263 of the Constitution. If at anytime it appears to the President that the public interest would be served by the establishment of a Council, he may establish such a Council which will have the following functions—
(a) inquiring into and advising upon disputes which may have arisen between States;
(b) investigating and discussing subjects in which some or all the States, or the Union and one or more of the States have a common interest; or
(c) making recommendations upon any such subject and in particular, recommendations for the better co-ordination of policy and action with respect to that subject.

Q. Is the National Development Council a constitutional body ? What are its functions?

Ans. The National Development Council was set up in 1952 to cooperate with and advise the Planning Commission. It was also created by a resolution of the Government of India. It is also not a constitutional bod’. It may be termed as an extra- consitutional body. The National Development Council is headed by the Prime Minister and the Chief Ministers of all the States are its members. Since 1967, the Administ rators of all the Union Territories are also given the membership of the N. D.C. The main functions of the counc il are—
(1) to monitor the functioning of national plans from time to time;
(2) to suggest measures and ways for effectively achieving the targets of plans; and
(3) to consider and approve the Five Year Plans in order to ensure an all India and balanced perspective in the plans.

Q. What is the constitutional status of Planning Commission?

Ans. Though Constitution makes provision for the setting up of various commissions for different purposes, it does not mention anywhere about the Planning Commission. Thus Planning Commission is not a constitutional body. In fact, it is an extra-constitutional body. The Planning Commission came into existence in March 1950 through a resolution of the Union Cabinet. The Commission was set up as an advisory body for the panned socioeconomic development of the country. In fact, its only constitutional genesis lies in its entry in the Concurrent List, e.g., social and economic planning. On the basis of this entry, the Union Government has taken initiative to, establish the Planning Commission for the purpose of socio-economic planning. The State Planning Commissions have also been set up at provincial level.

Q. Which official of the Government of India, who is not a Minister of the Union nor a member of Parliament, but has the right to take part in the proceedings of Parliament?

Ans. The Attorney General of India is appointed by the President. He is neither the member of the Council of Ministers nor a member of Parliament, but he has the right to take part in the meetings of Parliament or its Committees. However, the Attorney General of India can not take part in the voting in the House. He has the right to speak in both Houses of Parliament and enjoys such privileges and immunities, while taking part in the meetings of Parliament, as are enjoyed by the members of Parliament.

Q. Does the Governor enjoy the power of pardoning a death sentence?

Ans. The Governor does not have the power, like the President, to grant pardon in case of a death sentence. However, according to Article 161, the Governor has he power to grant pardon in all cases, except the sentence of death, with respect to the violations of State Laws. The Govern or also enjoys the powers of Corn-. mutation, Respite, Reprieve and Remission of punishment and sentences with respect.to all cases under the laws of the State.

Q. If the Vice-President is unable to discharge his responsibilities for a time being, who will act as the Vice-President during such period?

Ans. As per the provisions of the Constitution, there is nothing like an acting .Vice-President. The Constitution does not make any provision in this regard as the main function of the Vice-President is to act as the President when the latter is not able to discharge his responsibility. But if the President is discharging his responsibility, the Vice-President does not have any function in this respect. However, the Vice-President is also the Ex-Official Chairman of the Council of States. If the Vice President is not discharging, for the time being his responsibility as the Chairman of the Council of States, the Dy. Chairman shall act as the Chairman of the Council of States.

Q. What are the provisions for constituting Legislative Assemblies in Union Territories?

Ans. The provisions for constituting Legislative Assembly in a Union Territory can be made in the Constitution as and when need arises. However, at present, the provisions of the Constitution provide for a 30 member Legislative Assembly for the Union Territory of Pondicherry. By the 69th Constitutional Amendment, a 70 member Legislative Assembly was provided for the National Capital Territory of Delhi. But the powers of these Legislative Assemblies arc limited and are not equivalent to those of State Assemblies:. By the 70th Constitutional Amendment, these Assemblies were given the right to participate in the election to the office of the President. The past practice in this respect shows that the provision of constituting a Legislative Assembly in a Union Territory paves the way for making it as a full fledged State of the Union in future.

Q. Does the Vice-President act as President during the period between the completion of the five year term of President and the election of the new President?

Ans. According to the provisions of Article 62(1), the election to the office of the President shall be completed before the expiry of the five years term of the incumbent President. However, it is possible that the elections to the office of the President may not be held before completion of such term. Thus, in view of the provisions, of Article 56, the incumbent President shall continue in office till his successor assumes charge of the office. Therefore, the Vice-President shall not get the opportunity to act as the President as the incumbent President. Even after the expiry of his term of office, shall continue in office till the new President assumes office.

Q. Is there any provision to initiate legal proceedings against the President or the Governor ?What is the position of the Prime Minister in this respect?

Ans. The President or the Govern or cannot be called before any court of law with respect to the acts done by him in the performance of his official duties. Thus they arc not responsible to any court for their official actions. The impeachment proceedings may he initiated in Parliament against the President in order to remove him from office. The Governor is responsible to the President and can he removed any time by the President. Again, the criminal proceedings cannot be initiated in any court against the President or the Governor during his term of office. However, such proceedings may be launched after the President or the Governor ceases to hold office. The civil proceedings may be inhabited in courts by an affected person against the President or the Governor during their term of office, hut i is required to  give Two months’ advance notice to the President or the Governor before starting such proceedings.
The Prime Minister and other Ministers are not covered by such immunities.…

Q. What are the powers of the President with respect to the Bills passed by State Legislature and reserved by the Governor for the assent of the President?

Ans. Following are the main provisions with respect to the Bills reserved by the Governor for the assent of the President—
(I) if a Bill is reserved by the Governor for the assent of the President, he may either grant his assent or declare that he withholds his assent. If the President withholds his assent, the Bill comes to an end. If the President grants his assent, the Bill becomes an Act; or
(2) the President may return such a Bill to the State Legislature for its reconsideration, with his message or directives. The State Legislature is required to send back the Bill within
6 months after having passed with modifications or without modifications. The President is, however, not bound to grant his assent to a Bill returned back to him after reconsideration by the State Legislature; or
(3) the President may keep the Bill pending on his table, which is reserved by the Governor. The President may not decide the fate of the Bill for any period of time and the Governor shall not have any rig…

Q. What is the meaning of the terms like ‘Pardon’, ‘Reprieve’, ‘Respite’, ‘Remission’ and ‘Commutation’ with respect to the power of the President to grant pardon to convicted persons?

Ans. In terms of their scope and effect, these terms have specific connotations. The effect of Pardon is to abolish punishment and to absolve the convict of all charges. If Pardon is granted, it is assured as if the convict has not committed any crime. The convict will not face any disabilities due to the allegations and charges made against him. ‘Remission’ means reducing the punishment without changing the nature of punishment. For example, the imprisonment for 20 years may be reduced to the imprisonment for 10 years. ‘Commutation’ means reducing the punishment by changing the nature of punishment. For example, punishment to death may be changed to life imprisonment. ‘Respite’ means reducing or changing the nature of punishment in view of the specific facts and circumstances of the convict. For example, the punishment to death awarded to a pregnant woman, may be changed to simple life imprisonment. Respite means delay in execution of punishment especially that of death, in order to …

INDIA

1. India is the world's largest, oldest, continuous civilization. 2. India never invaded any country in her last 10000 years of history. 3. India is the world's largest democracy. 4. Varanasi, also known as Benares, was called "the ancient city" when Lord Buddha visited it in 500 B.C.E, and is the oldest, continuously inhabited city in the world today. 5. India invented the Number System. Zero was invented by Aryabhatta. 6. The World's first university was established in Takshashila in 700BC. More than 10,500 students from all over the world studied more than 60 subjects. The University of Nalanda built in the 4th century BC was one of the greatest achievements of ancient India in the field of education. 7. Sanskrit is the mother of all the European languages. Sanskrit is the most suitable language for computer software - a report in Forbes magazine, July 1987. 8. Ayurveda is the earliest school of medicine known to humans. Charaka, the fathe…

Q. What are law matters with respect to which a Bill needs a prior consent of the President before it is introduced in Parliament?

Ans. A Bill, if his related to the following matters, requires the prior consent of the President before its introduction in Parliament—
(a) The creation of new States or the alteration in the boundaries of States (Article 3);
(b) appropriation of agricultural land (Article 31A(1))
(c) Money Bills [Article 117(1)];
(d) a proposal w expend money out of Consolidated Fund of India;
(c) a Bill which affects the interests of States with respect to taxation, or a Bill affecting the principles governing the allocation of central funds to States or a Bill which has the effect, of changing the term  ‘agriculture income’ for the purpose of income tax or a Bill seeking to impose surcharge of incomes for certain purposes of union govern- merit;
(f) a Bill which seeks to affect inter-State trade transactions [Article 304].
However, the validity of an act cannot be questioned on the ground that it did not receive the prior consent of the President, lithe President gives his assent subsequently to the Bill…

Q. Does the President of India enjoy the right to veto the Bills passed by Parliament?

Ans. The purpose behind the Executive Veto is to check the hasty and ill considered passing of legislation by the Parliament. The President of India does not enjoy right to veto to the extent it is enjoyed by the American President. However, the President of India can exercise the right to veto over the Bills passed by Parliament in some situations—(i) If the President declares that he withholds his assent from a Bill, such Bill shall lapse. Generally, this type of veto is exercised by the President over the Bills initiated by private members of Parliament. In the case of government Bills, the Council of Ministers may advise the President for approval of a Bill. However if the Council of Ministers resigns during the pendency of a Bill before the President and the new Council of Ministers advises the President to veto such Bill, it will be considered constitutional and legal. (ii) If the President returns a Bill for the reconsideration of Parliament and such Bill is again passed by Par…

Q. Is there any provision to initiate impeachment proceedings against the Governor, Attorney General and Comptroller and Auditor General?

Ans. The Governor and the Attorney General are appointed by the President. The Governor is appointed for a period of five years but the President can remove him from office even before the expiry of such period, because the Governor remains in his office during the pleasure of the President. Similarly, the Attorney General can also be removed by the President before the expiry of his term of office as he also remains in his office during the pleasure of the President. The Comptroller and Auditor General is appointed by the President for a period of 6 years or up to the age of 65 years (whichever is earlier). The Comptroller and Auditor General can be removed from his office on the basis of Impeachment Resolution passed by both Houses of Parliament by special majority (the majority of the total members and 2/3 of the members present and voting). The impeachment proceedings against the Comptroller and Auditor General can be initiated in Parliament only on the ground of proved misbehavio…

Q. How long are the ordinances issued by the President or the Governor effective

Ans. If at any time, the President is satisfied, except when both Houses of Parliament. are in session, that circumstances exist which render it necessary to take immediate action, he may promulgate such ordinances as the circumstances require. An ordinance promulgated by the President under this Article shall have the same effect as an act of Parliament.’ If such ordinance is passed by Parliament, whenever it is convened within a period of six weeks, it will be in effect, If such ordinance is not passed by Parliament within this period, it would cease to have effect after the expiry of 6 weeks’ period. Any ordinance may be withdrawn at any time by the President. However, if and so far as an ordinance under this article makes any provision which Parliament would not under this provision be competent to enact, it shall be voice
Similarly, if at any time, except when both Houses or House, as the case may be, of the State Legislature is in session, the Governor is satisfied that circumsta…

Q. What are the grounds for imposing National Emergency ? Can the proclamation of National Emergency be challenged in the court of law?

Ans. The provisions of the Constitution relating to Emergency (352— 360) have been subjected to various changes by the 42nd and the 44 Amendments in 1976 and 1978 respectively. The Proclamation of National Emergency is made by the President under Article 352 on any one of the following grounds—
(1) War or
(2) External Aggression or
(3) Armed rebellion (the word ‘internal disturbance’ was replaced by Armed Rebellion by 44th Amendment Act, 1978).
The President makes Proclamation of National Emergency only on he written recommendation of the Union Cabinet (not the whole Council of Ministers). Also, the Proclamation of National Emergency may be issued even on the ground of apprehension of any, one of the above situations. That means, the President can issue such proclamation even before the actual occurrence of the above situations. By the 44th Amendment, 1978, it was provided that the proclamation of National Emergency may be issued with respect to whole country or a part of it. The 42nd Ame…

Q. What is the maximum time limit within which the declaration of National Emergency (under Article 352) and the declaration of President’s Rule in a State (under Article 356) should be approved by the Parliament?

Ans. The declaration of National Emergency made by the President should be approved by Parliament within a period of one month from the date on which such declaration was made. Once approved within a period of one month, such declaration will remain in effect for six months and it can be extended after every six months for any period of time. The declaration of President’s Rule under Article 356 should be approved by Parliament within a period of two months from the date on which such declaration came into effect. Once approved within a period of two months, such declaration can remain in force for six months and it can be extended after every six months after such approval for maximum period of three years. However it can be extended beyond a period of one year only on the following circumstances—
(1) If the Proclamation of National Emergency is in operation in any part of the State where President’s Rule has been imposed; or
(2) If the Election Commission certifies that the continuati…

Q. Is the President empowered to make Regulations with respect to administration of Union Territories?

Ans. At present, there are seven
Union Territories—
1. Delhi, 2.  Chandigarh, 3. Andaman and  -Nicobar Islands. 4. Lakshadweep,
5. Daman Diu, 6. Pondicherry, 7.  Dadra and Nagar Haveli.
According to the provisions of Article 240 of the Constitution, the President has power to  make regulations with respect to the administration of the following Union Territories—
1. Andaman and Nicobar Islands
2. Lakshadweep
3. Dadra and Nagar Haveli
4. Daman and Diu
5. Pondicherry
However, the President can make these  regulations for the peace and better administration of these Union Territories. Again, the power of the President to make regulations with respect to Union Territories of Pondicherry, and Daman and Diu shall not be exercised during the functioning of Legislatures in these Union Territories. As and when the Legislature is dissolved in these Union Territories, the President can exercise his power of making such regulations.

Q. What are the posts of Chief Commissioner, Lt. Governor and Administrator?

Ans. Under the provisions of the Constitution, the administration of Union Territories is carried on by the administrators appointed by the President. The administrators of different Union Territories have been given different designations. For example, the administrators of Delhi, Pondicherry and Andman and Nicobar Islands are called Lt. Governors, whereas in other Union Territories, they are called simply ‘Administrators’ except in Chandigarh where it is called ‘Chief Commission er’. A Governor of a State may also be given charge of office of a administrator of a Union Territory.

Q. Whether the President has the power to dismiss the Prime Minister or not?

Ans. The President can not dismiss the Prime Minister in any condition. The provision of Article 75(2) that the Ministers shall hold office during the pleasure of the President, is not applicable in the case of the Prime Minister. This provision is related to the Union Ministers only. The actual practice is that a Minister can be dismissed by the President only on the recommendation of the Prime Minister. The President cannot dismiss the Prime Minister on the charges of corruption or misbehavior. The Prime Minister can be removed from his office only in the condition of the passing of no-confidence motion in the Lok Sabha. The President, in such a condition, may ask the but going Prime Minister to continue to act as the Prime Minister till such time as new incumbent is appointed. Or else, the President may appoint another person as the Prime Minister and the earlier Prime Minister shall cease to hold office. In either case, there is no occasion to dismiss the Prime Minister. If a Prim…

Q. If the Vidhan Sabha of a State is under dissolution, the elections to the office of President can be held or not?

Ans. The Constitution prescribes that the members of the Vidhan Sabha of each State shall be part of the Electoral College constituted for the election of President. However, the Constitution does not provide specifically whether members of the Vidhan Sabha of each State shall be available during election or not. But it was subsequently incorporated by 11th Constitution Amendment, 1961, that the election of President cannot be challenged on the ground of any vacancy in the Electoral College, constituted for the election of President. During 1974 elections to the office of the President, the Vidhan Sabha of Gujarat was under dissolution and this matter was referred to the Supreme Court for its legal opinion on this issue. The court held the opinion that the elections to the office of the President may be held even during the dissolution of the Vidhan Sabha of  a State.

Q.. What are the constitutional provisions with respect to the powers of the High Courts to enforce the rights of citizens?

Ans. Article 226 of the Constitution empowers the High Courts to issue writs in the nature of Habeas Corpus. Quo-Warranto, Mandamus, Prohibition and Certiorary and other such orders. These writs or orders may be issued by the High Courts for the following purposes—
(I) to enforce the Fundamental Rights provided in Part III of the Constitution; and
(2) for any other purpose.
With respect to the Fundamental Rights, these writs are issued by the High Court only after the satisfaction that any of the Fundamental Rights of a person has been violated. It should be noted that under the provisions of the Constitution, the Supreme Court does not have power to issue these writs for a purpose other than enforcing Fundamental Rights. However, it has been provided that the Parliament by law may make provisions to empower the Supreme Court to issue these writs for other purposes. But, in the case of High Courts, the Constitution itself provides that these writs may be issued for a purpose other than t…

Q. What are the Fundamental Duties ? What are the provisions made for their enforcement?

Ans. Originally, the Fundamental Duties were not provided in the Constitution. On the basis of the recommendations of Swam Singh Committee, these duties were included in the Constitution under Article51A of Part IV by the 42nd Constitutional Amendment Act. 1976. Under these provisions, a citizen of India is expected to faithfully observe the following Fundamental Duties.
It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions. the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty. unit)’ and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India. transcending religious, linguistic. regional or sectional diversities, to renounce practices derogatory to the dignity of wom…

Q. What is the present position of right to property under the Constitution ?

Ans. Originally, the right to property was recognized as one of the seven Fundamental Rights under Articles 19(1-7) and 31 of the Constitution. It included the right to acquire. to earn and to dispose of the property. The State was authorised to appropriate the property ot a person only in the public interest with the payment of a just compensation. As provided by the First and the Fourth Amendments, the amount of compensation was to be determined by the Legislature and the same was not to be questioned in the court of law. The right to property became highly controversial as it came in the way of socialistic pattern of society and led to many legal battles in the courts. Therefore, by the 44th Constitutional Amendment in 1978, the right to property was abolished as a Fundamental Right under Part III of the Constitution and was placed under Article 300A as a legal right. The legal right to property means that the private property of a person can be appropriated by the government only …

Q. What are the provisions of the Constitution relating to freed om of religion? What are the restrictions imposed on such freedom?

Ans. The Preamble of the Constitution declares India as a Secular State. That means, there shall not be a State religion of India and there should be equality of religions in India. In this background, right to freedom of religion and related provisions are given in Articles 25—28 under the Fundamental Rights of the Constitution.
In terms of Article 25, every person enjoys two categories of freedoms in India—
(I) freedoms of conscience;
(2) right to freely profess, practice aid propagate religion.
Article 26 of the Constitution provides to every citizen the right to freedom of managing religious affairs. It includes the right—
(1) to establish and maintain institutions for religious and charitable purposes;
(2) to manage its own affairs in matters of religion;