Indian Constitutional Law New Challenges Short Notes Set 01

SN1. Creation of New States:

Part I and Articles 2 to 4 discuss the formation of new states. Under these Articles, Parliament can increase or decrease the area of any state or alter the boundaries or change the name of any state.

Under Article 2 of the Constitution, Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. By Thirty-sixth Amendment Act, 1975, s. 5, w.e.f. 26-4-1975, Sikkim was added as State of India.

Under Article 3 of the Constitution, a new state can be formed or established in the following ways:

by separation of territory from any state, or
by uniting two or more states, or
by uniting any part of a state, or
by uniting any territory to a part of any state.

A new state may be formed and area, boundary or names of the existing states may be altered by a simple majority in the Parliament. The following are the conditions for passing such a law: –

No bill for the formation of new states or the alteration of the boundaries or names of the existing state shall be introduced in either House of Parliament except upon the recommendation of the President.
If the bill affects the area boundaries or names of the states, President, is required to refer the bill to the legislature of the state, so affected for expressing its views within the period specified by the President. The President may extend the period so specified. If the state legislature to which the bill has been referred does not express its views within the period specified or extended the Bill may be introduced in the Parliament even though the views of the state have not been obtained by the President. If the state legislature expresses its views within the time so specified or extended, the Parliament is not bound to accept or act upon the views of the state legislature. Further, it is not necessary to make fresh reference to the state legislature every time an amendment to the bill is proposed and accepted.

Using these procedures new states of Chhattisgarh out of Madhya Pradesh, Zarkhand out of Bihar, and Telangana out of Andhra Pradesh are created.

Under Article 4 of the Constitution, laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.

Thus, it is clear that the very existence of a state depends upon the will of the Central Government. By simple majority and by the ordinary legislative process, Parliament may form a new state or alter the boundaries, etc. of existing states and thereby change the political map of India.

In Berubari Union (1) re, AIR 1960 SC 845 Case, the Court held that under Article 3 Parliament does not have the power to cede any Indian territory to a foreign state. In this case, the Government of India entered into an agreement with Pakistan Government for resolving certain boundary disputes which provided for the transfer of certain territory to Pakistan. It was held that Parliament could not do so by passing a law under Article 3 of the Constitution. The court held that this could only be done by the amendment of the Constitution under Article 368.
In State of West Bengal v. Union of India AIR 1963 SC 1241 case, the Court held that Clause (c) of the article deals with the diminution of the area of any State which may occur due to taking away part of the area of the State and its addition to another State. Parliament can even take away the entire area of a State to form a new State or to increase the area of another State. There is no constitutional guarantee continuing the existence of a State that existed at the time of commencement of the Constitution or came into existence later.
In Ram Kishore Sen v. Union of India AIR 1966 SC 644 case, the court held that the provisions of Articles 2, 3 and 4 are applicable to Union territories also.
In Mangal Singh v. Union of India AIR 1967 SC 944 case the court held that no state can be formed, admitted or set up by law under Article 4 by Parliament which does not have effective legislative, executive or judicial organs. Thus before creating such State the legislative, executive, and judicial organs for that state should be set up.
In Babulal Parate v. State of Bombay AIR 1960 SC 51 case, the court held that a fresh reference to the State Legislature is not necessary for an amendment of the Bill, if the amendment is proposed and accepted in accordance with the rules of procedure of Parliament and is germane to the subject matter of the original proposal or not a direct negation of it.

SN2. Concept of Federalism:

Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country. Usually, a federation has two levels of government. One is the government for the entire country that is usually responsible for a few subjects of common national interest. The others are governments at the level of provinces or states that look after much of the day-to-day administering of their state or province. Both these levels of governments enjoy their power independent of the other and share authority over the same geographical area.

In a federal system, the Central government cannot order the state government to do something. The State government has powers of its own for which it is not answerable to the central government. Both these governments are separately answerable to the people. Indian constitution says that India is a federal country.

Features of Federalism:

There are two levels (or tiers) of governance in the country at least. There can even be more. But the entire power is not concentrated with one government.
Different tiers of government govern the same citizens, but each tier has its own JURISDICTION in specific matters of legislation, taxation, and administration. This means that each level of government will have a specific power to form laws, legislate and execute these laws or perform specific duties as given in the constitution. So, the existence and authority of each tier of government are constitutionally guaranteed.
There is a possibility that a conflict may arise between the two levels on their jurisdiction. In a federal state, the judiciary resolves the conflict. The courts have the power to interfere in such a situation and reach a resolution. The highest court (The Supreme Court in India) acts as an umpire if disputes arise between different levels of government in the exercise of their respective powers.
Both levels of government should have their own autonomous revenue streams. Sources of revenue for each level of government are clearly specified to ensure its financial autonomy. This system is developed so that the different levels can work independently.
The federal system has dual objectives: to safeguard and promote the unity of the country, while at the same time accommodate regional diversity.

Pre-requisites of Federalism:

The Governments at different levels should agree to some rules of power-sharing.
They should also trust that each would abide by its part of the agreement.
Thus, the ideal federal system has both aspects: mutual trust and agreement to live together.

The exact balance of power between the central and the state government varies from one federation to another. This balance depends mainly on the historical context in which the federation was formed. There are two kinds of routes through which federations have been formed.

The first route involves independent States coming together on their own to form a bigger unit so that by pooling the sovereignty and retaining identity they can increase their security. This type of ‘coming together’ federations include the USA, Switzerland, and Australia. In this category of federations, all the constituent States usually have equal power and are strong vis-à-vis the federal government.
The second route is where a large country decides to divide its power between the constituent States and the National government. India, Spain, and Belgium are examples of this kind of ‘holding together’ federations. In this category, the central government tends to be more powerful vis-à-vis the States. Very often different constituent units of the federation have unequal powers. Some units are granted special powers.

The Constitution originally provided for a two-tier system of government, the Union Government or what we call the Central Government, representing the Union of India and the State governments. Later, the third tier of federalism was added in the form of Panchayats and Municipalities.

SN3. Formation of new States:

Under Article 3 of the Constitution, a new state can be formed or established in the following ways:

by separation of territory from any state, or
by uniting two or more states, or
by uniting any part of a state, or
by uniting any territory to a part of any state.

A new state may be formed and area, boundary or names of the existing states may be altered by a simple majority in the Parliament. The following are the conditions for passing such a law: –

No bill for the formation of new states or the alteration of the boundaries or names of the existing state shall be introduced in either House of Parliament except upon the recommendation of the President.
If the bill affects the area boundaries or names of the states, President, is required to refer the bill to the legislature of the state, so affected for expressing its views within the period specified by the President. The President may extend the period so specified. If the state legislature to which the bill has been referred does not express its views within the period specified or extended the Bill may be introduced in the Parliament even though the views of the state have not been obtained by the President. If the state legislature expresses its views within the time so specified or extended, the Parliament is not bound to accept or act upon the views of the state legislature. Further, it is not necessary to make fresh reference to the state legislature every time an amendment to the bill is proposed and accepted.

Using these procedures new states of Chhattisgarh out of Madhya Pradesh, Zarkhand out of Bihar, and Telangana out of Andhra Pradesh are created.

Under Article 4 of the Constitution, laws made under Articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.

In Berubari Union (1) re, AIR 1960 SC 845 Case, the Court held that under Article 3 Parliament does not have the power to cede any Indian territory to a foreign state. In this case, the Government of India entered into an agreement with Pakistan Government for resolving certain boundary disputes which provided for the transfer of certain territory to Pakistan. It was held that Parliament could not do so by passing a law under Article 3 of the Constitution. The court held that this could only be done by the amendment of the Constitution under Article 368.
In State of West Bengal v. Union of India AIR 1963 SC 1241 case, the Court held that Clause (c) of the article deals with the diminution of the area of any State which may occur due to taking away part of the area of the State and its addition to another State. Parliament can even take away the entire area of a State to form a new State or to increase the area of another State. There is no constitutional guarantee continuing the existence of a State that existed at the time of commencement of the Constitution or came into existence later.
In Ram Kishore Sen v. Union of India AIR 1966 SC 644 case, the court held that the provisions of Articles 2, 3 and 4 are applicable to Union territories also.
In Mangal Singh v. Union of India AIR 1967 SC 944 case the court held that no state can be formed, admitted or set up by law under Article 4 by Parliament which does not have effective legislative, executive or judicial organs. Thus before creating such State the legislative, executive, and judicial organs for that state should be set up.
In Babulal Parate v. State of Bombay AIR 1960 SC 51 case, the court held that a fresh reference to the State Legislature is not necessary for an amendment of the Bill, if the amendment is proposed and accepted in accordance with the rules of procedure of Parliament and is germane to the subject matter of the original proposal or not a direct negation of it.

SN4. Distribution of Grants in Aid:

Apart from distribution of taxes between centre and states, the constitution provides for mainly two types of grants-in-aid viz. statutory grants and discretionary grants. Grants-in-aid are payments in the nature of assistance, donations or contributions made by one government to another government, body, institution or individual. Grants-in-aid are given by the Union Government to State Governments and/or Panchayati Raj Institutions. Union Government also gives substantial funds as grants-in-aid to other agencies, bodies and institutions. Similarly, the State Governments also disburse grants-in-aid to agencies, bodies and institutions such as universities, hospitals, co-operative institutions and others. The grants so released are utilized by these agencies, bodies and institutions for meeting day-to-day operating expenses and for creation of capital assets, besides delivery of services. Grants-in-aid is given in cash or in kind, but have to be always accounted for as revenue expenditure in the books of the grantor irrespective of the purpose for which it has been given. Grants-in-aid are given by the Union Government both for execution of plan schemes and for other purposes.

Finance Commission is a constitutional body for the purpose of allocation of certain revenue resources between the Union and the State Governments. It was established under Article 280 of the Indian Constitution by the Indian President. It was created to define the financial relations between the Centre and the states. It was formed in 1951.

Statutory Grants: Article 275 empowers the Parliament to make grants to the states which are in need of financial assistance and not to every state. Also, different sums may be fixed for different states. These sums are charged on the Consolidated Fund of India every year. Apart from this general provision, the Constitution also provides for specific grants for promoting the welfare of the scheduled tribes in a state or for raising the level of administration of the scheduled areas in a state including the State of Assam. The statutory grants under Article 275 (both general and specific) are given to the states on the recommendation of the Finance Commission.
Discretionary Grants: Article 282 empowers both the Centre and the states to make any grants for any public purpose, even if it is not within their respective legislative competence. Under this provision, the Centre makes grants to the states. The Centre is under no obligation to give these grants and the matter lies within its discretion. Notably, the discretionary grants form the larger part of the Central grants to the states (when compared with that of the statutory grants).

SN5. Restrictions on Freedoms Available to Citizens Under Provisions of Art.19 of Indian Constitution.

Article 19 (1) of the Constitution guarantees the citizens of India the following six fundamental freedoms that are not absolute and limited to certain restrictions provided in Article 19 (2) through to Article 19 (6):

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practise any profession, or to carry on any occupation, trade or business

Restriction on freedom of speech and expression:

The right to free speech and expression is not an absolute right and is subject to reasonable restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:

sovereignty and integrity of India,
the security of the state,
friendly relations with foreign states,
public order, decency or morality, or
in relation to contempt of court,
defamation, or
incitement to an offence.

Restrictions on Right to Assemble:

The object of holding an assembly or a meeting is the propagation of ideas and to educate the public. Hence, the right to assemble is a necessary corollary of the right to free speech and expression. Article 19(1)(b) provides for the right to assemble peaceably and without arms.

Under Article 19 (3) of the Constitution, in the interest of Sovereignty and public order, the right conferred by Article 19 (1) (b) can be curbed with reasonable restrictions like dispersion of such gathering by using force. However, an assembly can only be dispersed when it becomes “unlawful”.

Section 141 of the Indian Penal Code (IPC) lays down the criteria for when an assembly of five or more persons becomes unlawful:

When the common object of the persons composing the assembly is to-

Resist the execution of any law or legal process.
Commit any mischief or criminal trespass
Obtain possession of any property by force
Compel a person to do an illegal act or omission
Overawe or prevent any public servant from exercising his lawful powers.

Section 144 of IPC also empowers the Magistrate to restrain an assembly or prevent the gathering of five or more people if, under his estimation, there is a risk of obstruction, annoyance, or injury to any person lawfully employed or danger to human life, health and safety. This is also viewed as preventing the rise of public tranquility, riot, or an affray.

Restrictions on to form associations or unions:

The right of association pre-supposes organization. An organization is a body of connected people involved either in the same industry, residence, or any other agenda that may require a permanent relationship between all members for the pursuit of a collective goal.

Under Article 19 (4) of the Constitution, the State is empowered to impose reasonable restrictions on this right in the interest of “public order”, “morality”, “sovereignty” and “integrity” of India.

In Haji Mohd. v. District Board, Malda, decided On, 03 April 1958 case, A teacher requiring prior permission to engage in political activities was considered a reasonable restriction as it was deemed to be aimed at preventing teachers from getting mixed up with political institutions. This was because the profession of teaching is to be considered of primary importance and that a teacher must adhere to the certain terms and disciplines of the said profession.

Restriction on free movement throughout the territory of India and Settle:

Article 19 (1) (d) of the Constitution guarantees all citizens of India the right “to move freely throughout the territory of India”. This means that any citizen of the country is free to go wherever they like in the Indian Territory without any kind of unreasonable restrictions. Article 19 (1) (e) of the Constitution gives every citizen the right “to reside and settle in any part of the territory of India”.

Article 19 (5) states that nothing in Article 19 (1) (d) and (e) shall “affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe”

In State of U.P v. Kaushalya, AIR 1964 SC 416 case, a prostitute falling under the Suppression of Immoral Traffic in Women and Girls Act, 1956 was ordered to remove herself from the busy city’s limits i.e. a restriction was placed on her movement and residence. This restriction was held to be reasonable as it was in the interest of her safety.

Restriction to practise any profession, or to carry on any occupation, trade or business

The right- Article 19 (1) (g) guarantees all Indian citizens the right “to practice any profession, or to carry any occupation, trade or business”.

Article 19 (6) of the Constitution provides that the State under this right can make any law;

Imposing reasonable restriction on this right, to be in the “interest of the public”
Prescribe professional qualification, technical qualifications to be made necessary to practice those professions that need such qualifications.
Enable the State to carry on any trade or business by excluding citizens wholly or partly.

In Sukumar Mukherjee v. State of West Bengal, AIR 1993 SC 2335 case, the appellant had challenged the validity of the West Bengal State Health Service Act, 1990 on the ground that it had imposed an unreasonable restriction on their right to carry on any business or occupation as under Article 19 (1) (g) by not allowing them to have a private clinic. All graduating doctors were given an option to join WBMES and WBHS in their state system. Section 9 of the West Bengal State Health Service Act, 1990 restricted the private practice of teacher Doctors i.e. the ones who joined WBMES.\The Court in this case held such restriction to be reasonable and in the interest of public health and that all doctors voluntarily joining the teaching service in the WBMES were bound to live by the rules of such service.

SN6. Right to equality in the context of third gender:

Indian Constitution from the time of its independence has ensured equal justice to all citizens of the country by providing equality to everyone irrespective of their race, caste or gender. Right to Equality means that all citizens enjoy equal privileges and opportunities. It protects the citizens against any discrimination by the State on the basis of religion, caste, race, sex, or place of birth. Right to Equality includes five types of equalities.

Equality before law (Article 14)
Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15)
Equality of opportunities in matters of public employment (Article 16)
Abolition of Untouchability (Article 17)
Abolition of titles (Article 18)

‘Equality before law’ means that no person is above law and all are equal before the law, every individual has equal access to the courts. This concept is taken from English Common Law. The expression, “equal protection of laws”, is a corollary of the first expression “equality before the law”, and is based on the last clause of the first section of the Fourteenth Amendment to the American Constitution. It directs that equal protection shall be secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favoritism or discrimination.

In National Legal Services Authority v. Union of India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] case, the Apex Court recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society. In judgment the Court said that:

the Court stated that:

The right to choose one’s gender identity is integral to the right to a life with dignity and therefore falls within the scope of the right to life under the Indian Constitution (Article 21).
The right to equality before the law under Article 14 of the Indian Constitution applies to all persons, including transgender persons, who are thereby entitled to equal protection of the law in all spheres including employment, health care, education and civil rights.
The prohibition of sex discrimination under Articles 15 and 16 of the Constitution is a prohibition against all forms of gender bias and gender based discrimination including discrimination against transgender people.
The state is obliged to take affirmative action to advance “socially and educationally backward classes” and this includes transgender people, who have faced centuries of injustice (Article 15(4)).
Expressing one’s identity through words, dress, action or behaviour is included in the right to freedom of expression (Article 19). The values of privacy, self-identity, autonomy and personal integrity are also fundamental rights under Article 19 and these rights belong to transgender people as well as others.

The Court also declared that centre and state governments should take positive measures to fully realise the rights of transgender people including by: ensuring that transgender people benefit from reservations for educational institutions and public appointments; making available focused medical care and social welfare schemes; and conducting public awareness raising campaigns to reduce society’s ostracisation of the represented groups.

SN7. Right to Strikes and Bandh / Hartal by Political Parties

Freedom of speech and expression is included in Article 19(1) of the Constitution, which gives the Indian citizens the right to associate with unions. The Article 19 of the constitution also restricts the powers of the state compared to the rights of the citizens. The article empowers the Indian citizens the liberty to express one’s view, opinions, beliefs, suppositions and convictions. In a way it implies the right of any citizen to express his/her opinions by word of mouth, writing, printing, pictures or any other mode freely.

The Supreme Court has many times asserted that the Demonstrations can be considered a form of freedom of speech unless they violate the public order. However, the court refused to hold strikes within the ambit of freedom of speech. Article 19 does not give explicit permission to any resident of India to organize Hartal, Bandh or Chakka Jam. These forms can be either non-violent or peaceful, but are not guaranteed by the fundamental rights of

1Speech and expression
Assemble peaceably and without arms
Forming associations or unions

In Kameshwar Prasad v State of Bihar, AIR 1962 SC 1166, case the Court held that even a liberal interpretation of the Article 19(1)(c) would conclude that the Trade Unions would guarantee the fundamental right to strike. However, in the All India Bank Employees Association case, the SC rejected the idea of formation of associations guaranteed by 19(1) carried with the concomitant right to conduct strikes.

In T. K. Rangarajan v Government of Tamilnadu, AIR 2003 SC 3032 case, the Court held that the mass strike cannot be legal. It held, “there is no legal, moral or equitable right with the government employees to go on strike.”

In Bharat Kumar K. Palicha v. State of Kerala, AIR 1997 Kerala 291 case, the full bench decision of Kerala High Court was affirmed by the Supreme Court in Communist Party of India (M) v. Bharat Kumar and other, 1998(1) SCC 202. The full bench judgment of the Kerala High Court as certified by the Supreme Court draws a qualification or distinction between a “bandh” and ‘a call for general strike’ or “hartal”. The calling for bandh is clearly different from a call for a general strike or hartal.

In B.R. Singh and others V. Union of India, (1989) 4 SCC 710, the Supreme Court observed that the right to strike was not a fundamental right, however, the right to association may be extended to the right to protest through demonstrations provided it does not disturb public order

In Re: Destruction of public & private properties v. State of A.P. (2004) 2 SCC 203, case the Court set up two boards of trustees to think of rules to manage the issue. One council was going by Justice K.T. Thomas, a resigned judge of the Supreme Court and the other advisory group was going by Mr. Fali S Nariman, Senior Advocate, SC of India. The critical proposals of the Justice Thomas panel incorporate correction to the Prevention of Damage to Public Property Act, 1984 to make a rebuttable assumption of blame against wrongdoers, altering the Act to make heads of the gathering who call for direct activity, blameworthy of reduction, videography of exhibits and exercises harming public property, allowing of bail just in cases in which the Court has reasonable grounds to presume that the accused isn’t guilty for the offence.

The Court welcomed both the Nariman committee reports and came up with a list of guidelines.

Some of them are:

Coordinators to meet police before the dissent and give an endeavor for support of harmony.
Deny utilization of blades, lathis and weapons.
The senior most cop in the area or city to oversee the dissent.
The police will present a report of occasion and harms caused to the State Government which will at that point record a report under the steady gaze of the High Court or Supreme Court all things considered.
High Court may issue suo motu activity and set up a hardware to examine the harm caused and to grant remuneration.
A resigned or sitting High Court or Supreme Court judge might be named as Claims Commissioner gauge harms and explore burden of risk. An Assessor might be delegated to help the Claims Commissioner. They will have capacity to bring video film and other proof to release their obligations.
Absolute Liability will be forced once the connection between the occasion and harm is clear.
Harms will be surveyed for harm to public property, private property, harm because of causing of hurt or passing of people and cost of activities taken by police and the leader to make preventive strides.
Exemplary damages not exceeding twice the amount of damages liable to be paid may be imposed.
The Claims Commissioner will answer to the High Court or Supreme Court as the case perhaps.

The Government of Kerala also drafted a bill in 2015 called the Kerala Regulation of Hartal Bill which criminalised the enforcement of hartals by force, threats or injury to common people, etc. All organizers are required to obtain permission from the authorities of the state to conduct a gathering at least three days prior to organizing it. Organisers are required to deposit an amount as security for payment of compensation for damage caused to property and injuries sustained

SN8. Impeachment of Supreme Court and High Court Judges.

The procedure for removal of the Supreme Court judge is guided by Article 124(4) of the Constitution of India and the Judges (Inquiry) Act, 1968. Article 218 of the Constitution of India provides for the impeachment of High Court judges.

Notice of motion for removal of a judge

Removal proceedings against a Supreme Court or a High Court judge can be initiated in any of the houses of Parliament. For this:

A minimum of 100 members of Lok Sabha may give a signed notice to the speaker, or
A minimum of 50 members of Rajya Sabha may give a signed notice to the Chairman.

The speaker or chairman may consult individuals and examine relevant content related to notice and according to that, he or she may decide to either admit or refuse to admit it

Constitution of an Inquiry Committee

After the motion is admitted, the Speaker of the Lok Sabha or Chairman of the Rajya Sabha will form an Inquiry Committee as per Article 3(2) of the Judges (Inquiry) Act, 1968 to start investigating the complaint. It will consist of the following members:

A Supreme Court judge,
A High Court Chief Justice, and
A distinguished jurist, as per the opinion of the Speaker/Chairman.

If such notices have been admitted in both the Houses of Parliament, the Inquiry Committee will be formed together by the Speaker and the Chairman of the respective houses. In this scenario, the notice that has been on a later date will stand rejected. If such notices have been passed by both the Houses of Parliament on the same day, the Inquiry Committee will not be formed.

Submission of the inquiry report

After concluding its investigation, the Inquiry Committee will put down its findings in a formal report and submit it to the Speaker or Chairman. If the report finds misbehaviour or incapacity which makes the judge guilty, the motion for removal has to be put to vote in both The Lok Sabha and Rajya Sabha. As per Article 124(4) of the Constitution, the motion is required to be adopted in each house by:

A majority of the total membership of the House, and
A majority of not less than two-thirds of members present and voting.

If the motion is adopted by this majority in one house, the motion will be sent to the other house.

Order by the President

As per Article 124(4), after the motion is adopted in both the houses by the required majority, it is placed before the President of India, who will issue an order for the removal of the judge.

SN9. Accountability of executive authority.

India has a parliamentary form of government. The Parliament or the legislature performs the law-making function, the executive executes or implements the laws made by the Parliament. The functioning of the government is based on the cooperation and coordination between the legislature and executive. The makers of our constitution made sure that each arm of power could be held accountable for its actions by the other, by this logic, the executive, is accountable to the legislature for all its actions involving the implementation of laws or policies. The executive is answerable to the legislature for its actions and its authority is also limited by the checks and balances of the Parliament. The Legislature in India exercises a substantial amount of control over the executive by various mechanisms available at its disposal. It is necessary to control the executive to ensure its accountability to the elected legislature.

Control over Law Enactments:

When a law is enacted in the Parliament, the government is bound to respond to all the queries of the Members of the Parliament. The Parliament can question the executive by:

Deliberation and discussion: The Parliamentary debates on policies and amendments procedures, by which the legislature gets various points regarding the laws and policies clarified and sometimes amended if necessary.
Question Hour: During this hour the MP’s question the executive regarding the laws enacted by them with prior notice.
Zero Hour: During this hour the MP’s can ask a question to the executive regarding any administrative decision made without any prior notice.

Control on Actions of Executives:

The Parliament checks the actions of the executive by the exercise of various motions, they are as follows:

Censure Motion: It can be initiated against an individual minister or a group of ministers by the Lok Sabha to censure the council of ministers for a specific policy or action.
Adjournment Motion: It is moved in the Lok Sabha to draw the attention of the House on an urgent matter of public importance, it involves censure against the government.
Privilege motion: A privilege motion can be initiated against any member if he/she commits a breach of privilege.
Calling attention motion: A call attention motion can be initiated by the Parliament and the executive can be held accountable in matters requiring urgent public importance.
No confidence motion: This is the most important tool at the disposal of the Parliament, by which the Parliament can pass a no-confidence vote against the ruling government, post which they are bound to resign. This is mostly used as a last resort.

Financial control over the executive

The Annual Financial Statement and the financial bills proposed by the government must be approved by both the Houses of Parliament.
The Parliament may also initiate a Cut Motion to oppose any specific allocation of funds demanded by the government in a Financial Bill. A cut Motion is equivalent to a No-Confidence Motion.
The government cannot withdraw funds from the Consolidated Fund of India without Parliamentary approval.
The Parliamentary Committees like the Public Accounts Committee, The Estimates Committee keep a check on the control of finances. The reports made by these committees and the CAG are presented before the President of India to check the misuse of finances.

Individual and Collective Responsibility:

Article 75 of the Indian Constitution mentions the principle of individual responsibility, according to which every minister holds office during the pleasure of the President. The President has the authority to remove a minister from their position while the rest of the Council continues to operate.
Under Article 75 of the Constitution, the entire Council of Ministers is also responsible to the Lok Sabha by the principle of collective responsibility, here the whole cabinet may have to resign if the Parliament does not approve the acts of any minister.

SN10. Appointment of Judges:

India has three tiers of the Judicial system: The Supreme Court, the High Court and Subordinate Courts.

Appointment of Judges in the Supreme Court:

Article 124 of the Indian Constitution gives the provisions for the appointment of Chief Justice and Judges of the Supreme Court. In India, the collegium system is still followed for the appointment of the Judges. The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the Supreme Court and also in certain cases other judges of the High Court. Article 127 of the Indian Constitution deals with the appointment of ad-hoc judges in the Supreme Court. Article 124 of the Indian Constitution provides various necessary qualifications which have to be satisfied for the appointment as under:

The recommended person must be a citizen of India;
They should not be above 65 years of age;
They must have been a judge of one or more High courts continuously for five years;
They must have been an advocate in the high court for at least ten years;
The recommended person must be a distinguished jurist in the opinion of the President.

Article 124 of the Constitution says only seven judges can be appointed in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary. The Judges can hold office until they attain 65 years of age.

Appointment of Judges in the High Courts:

Article 217 of the Indian Constitution provides the procedure regarding the appointment of judges in the High Courts. According to this Article,

The judges of the High Courts can be appointed only by the warrant of the President and his seal;
The appointment can be done only after consulting the Chief Justice of India and the Governor of the State;
The appointment of Judges other than the Chief Justice can be done after consulting the Chief Justice of the High Court;
The provisions under this article must be followed even while appointing the Additional Judges according to Article 224.
The person can hold the office as a judge until he is sixty-two years old;
The consultation must be very effective, that is all the necessary information about the person being recommended must be revealed and no information should be hidden in order to facilitate the appointment;
The Judges appointed must take an oath before the Governor of the State according to Article 219. The oath must be according to the form that is provided for the purpose in the Third Schedule.

The appointment of additional judges is governed by Article 224 of the Indian Constitution. The President has the power to appoint additional judges. The State Government should obtain the permission and sanction of Central Government in order to create a post for additional judges and for appointing additional judges. Article 224 also deals with the appointment of acting judges. They are appointed for a period of three months.

Appointment of District Judges:

Article 233 of the Indian Constitution deals with the appointment of District Judges. According to this article, there are certain qualifications for a person to be appointed as a District Judge, they are:

The person has to be in practice as an advocate or pleader for seven years or more;
The person should not be in working in any other services of the Union or the State;
The person has to be recommended by the High Court for employment.

According to Article 233, the appointment can be done only after consulting the Governor of the State and also the Judges of the High Court that is exercising jurisdiction in the State. Article 235 of the Indian Constitution provides powers to the High Courts to have control over the persons in the judicial service in the district court and other subordinate courts.

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