Constitutional Law-I (LLB -203)

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
SEMESTER: THIRD
BBALLB III A+B & BALLB III A+B+C
NAME OF THE SUBJECT: CONSTITUTION – I
UNIT-I
TOPIC: DEFINITION OF CONSTITUTION
FACULTY NAME: Ms. Ridam Aggarwal
(Assistant Professor)

Definition of Constitution &
Classification
• It is the law of the land.
• It is the ultimate criteria existing from which
the validity of any law can be derived.
• It is the “Mirror of the Society”.
• Parent document of the society.
• Drafted by those who dreamt a free India.
• Nothing can be ultra vires to Constitution.

Classification of Constitution
• Written & Unwritten Constitution
• Rigid & Flexible Constitution
• Federal & Unitary Constitution

Written & Unwritten Constitution
It is generally agreed that the written/unwritten is false
distinction as there is no constitution which is entirely
unwritten and nor is there a constitution which is entirely
written. What is meant by a Written Constitution is,
therefore, on that is reduced into the form of a document
having special sanctity. The term written constitution, also
designates a rather complete document/instrument in which
the framers of the constitution have attempted to arrange for
every foreseeable contingency in its operation.

Rigid & Flexible Constitution
The rigidity or otherwise flexibility of a constitution
hinges on whether or not its making is identical to
the making of other ordinary laws. Accordingly, if
the amendment or alteration procedure of a
constitution is made to depend on some conditions
or special procedures, then it may be called Flexible
Constitution. If some conditions or a special
procedure has to be met before the amendment of a
constitution, it is a Rigid Constitution.

Federal & Unitary Constitution
• In a Federal Constitution, powers of governments are
divided between government for the whole and
governments for parts of the country in such a way that each
government is independent and none is subordinate to the
other, and legislature in both cases have limited powers.
• In a Unitary Constitution, the legislature of the whole
country is the supreme law-making body and it has the
mandate to allow other legislatures to exist and exercise
their powers while reserving the right to overrule them as
they are subordinate to it.

Case Law- Kesavananda Bharati Sripadagalvaru and
Ors. v. State of Kerala and Anr.
((1973) 4 SCC 225: AIR 1973 SC 1461)
This case discusses about the nature & purpose
of Constitution; talks about preamble and its
importance.
• Amendable under Article 368
• Preamble contains Basic structure of
Constitution
• Source of Constitution – People of India

TOPIC: SOURCES & FRAMING OF CONSTITUTION

Sources of Constitution
• Indian Constitution has absorbed those features from other
nations’ constitutions that suited Indian problems and aspirations.
Constituent Assembly took the best of features from everywhere
and made them its own.
• Our constitution has features taken from the Government of India
Act, 1935. Those features are:
– Federal Scheme
– Office of governor
– Judiciary
– Public Service Commissions
– Emergency provisions
– Administrative details

• UK – Parliamentary Election
• Ireland – Directive Principles of State Policy
• USA – Fundamental Rights
• Canada – Federal System
• France – Preamble terms – republic, liberty,
equality, fraternity
• Australia – Concurrent Lists

• Russia – Fundamental Duties
• Germany – Suspension of FRs during
Emergency
• Japan – Laws on which Supreme Court
functions

Is Constitution a borrowed bag?
• Indian Constitution is a unique document drafted
after a hard work of three years of the constituent
assembly. Though some features of the Indian
constitution are borrowed from other nations, it is still
wrong to say that it is a bag of borrowing.
• Reasons to not call the Indian Constitution a bag of
borrowing are given below:

Cont.
• There are various provisions borrowed from other
nations but they are absorbed in the Indian
Constitution to suit its polity and governance. They
are not exactly copied.
• Indian Constitution is the most detailed constitution
of the world. Where the American Constitution has
only seven articles, Australian Constitution 128
articles, Indian Constitution originally consisted of
395 articles which have now increased to 448 articles.

Cont.
• Indian Constitution is unique in its content and
spirit.
• It is drafted considering the historical
perspective of Indian Nationalist struggles, the
geographical diversity of India, and its
traditional and characteristics which are totally
different from any other nation.

TOPIC: SALIENT FEATURES OF CONSTITUTION

Salient Features of Constitution
The Constitution of India is a unique
constitution. It is the largest written liberal
democratic constitution of the world. It
provides for a mixture of federalism and
Unitarianism, and flexibility and with rigidity.
Since its inauguration on 26th January 1950,
the Constitution India has been successfully
guiding the path and progress of India.

Written and Detailed
Constitution:
• Fully written
• Fully debated & duly elected by Constituent
Assembly
• 2 years, 11 months and 18 days - time taken to
write & enact Constitution
• Constitution is for both Centre & State

Self-made and Enacted
Constitution
• Indian Constitution is a constitution made by the people of India
acting through their duly elected and representative body—the
Constituent Assembly that was organised in December 1946
• Its first session was held on 9th December, 1946. It passed the
Objectives Resolution on 22 January, 1947.
• it initiated the process of constitution-making in the right
earnest and was in a position to finally pass and adopt the
constitution on 26th November, 1949.
• The constitution became fully operational with effect from
26th January 1950. We celebrate this day as our Republic Day.
The Constitution of India is thus a self-made and duly enacted
constitution.

Preamble of the Constitution
• A document stating the philosophy of the
Constitution
• It declares India to be a Sovereign Socialist Secular
Democratic Republic and a welfare state committed
to secure justice, liberty and equality for the people
and for promoting fraternity, dignity the individual,
and unity and integrity of the nation.
• The Preamble is the key to the constitution. It states
in nutshell the nature of Indian state and the
objectives it is committed to secure for the people.

India is a Democratic Socialist
State
• Although, right from the beginning the Indian
Constitution fully reflected the spirit of
democratic socialism, it was only in 1976 that the
Preamble was amended to include the term
‘Socialism’.
• India is committed to secure social, economic and
political justice for its entire people by ending all
forms of exploitation and by securing equitable
distribution of income, resources and wealth

India is a Secular State
• India gives special status to no religion. There
is no such thing as a state religion of India.
This makes it different from theocratic states
like the Islamic Republic of Pakistan or other
Islamic countries
• Indian secularism guarantees equal freedom to
all religions. The Constitution grants the Right
to Religious Freedom to all the citizens

India is a Democratic State
• The Constitution of India provides for a democratic system.
The authority of the government rests upon the sovereignty
of the people. The people enjoy equal political rights. On
the basis of these rights, the people freely participate in the
process of politics. They elect their government.
• Free fair and regular elections are held for electing
governments. For all its activities, the government of India
is responsible before the people. The people can change
their government through elections. No government can
remain in power which does not enjoy the confidence of the
people. India is world’s largest working democracy

India is a Republic
• The Preamble declares India to be a Republic.
India is not ruled by a monarch or a nominated
head of state. India has an elected head of state
(President of India) who wields power for a
fixed term of 5 years. After every 5 years, the
people of India indirectly elect their President.

India is a Union of States
Article I of the Constitution declares, that “India
that is Bharat is a Union of States.” The term
‘Union of State’ shows two important facts:
• That Indian Union is not the result of voluntary
agreement among sovereign states, and
• that states of India do not enjoy the right to secede
from the Union. Indian Union has now 28 States
and 8 Union Territories.

Mixture of Federalism and
Unitarianism
• While describing India as a Union of States,
the Constitution provides for a federal
structure with a unitary spirit. Scholars
describe India as a ‘Quasi-Federation’ (K.C.
Wheare) or as ‘a federation with a unitary bias,
or even as ‘a Unitarian federation.

Like a federation, the
Constitution of India provides for
• (i) A division of powers between the centre and states,
• (ii) A written, rigid and supreme constitution,
• (iii) Independent judiciary with the power to decide
centre-state disputes and
• (iv) Dual administration i.e. central and state
administrations. However, by providing a very strong
centre, a common constitution, single citizenship,
emergency provisions, common election commission,
common all India services etc. the Constitution clearly
reflects its unitary spirit.

Mixture of Rigidity and
Flexibility
• The Constitution of India is rigid in parts.
Some of its provisions can be amended in a
difficult way while others can be amended
very easily. In some cases, the Union
Parliament can amend some parts of the
Constitution by passing a simple law.
• Article 368, of the Constitution provides for
two special methods of amendment

Fundamental Rights
• Under its Part IIIC Articles 12-35), the Constitution of India grants
and guarantees Fundamental Rights to its citizens. It is called the
Indian Bill of Rights. Initially, 7 Fundamental Rights were granted
but after the deletion of the Right to Property from the list of
Fundamental Rights (44th Amendment Act 1979) their number came
down to six.
• Those rights are :
I. Right to Equality
II. Right to Freedom
III. Right to Freedom of Religion
IV. Right against Exploitation
V. Cultural & Educational Rights
VI. Right to Constitutional Remedies (Art. 32)

Fundamental Duties of the
Citizens
In its Part IVA (Article 51 A) the Constitution describes the
following Fundamental Duties of a citizen:
1. Respect for the Constitution, the national flag and the national
anthem;
2. Cherish the noble ideals of the freedom struggle;
3. Uphold and protect the sovereignty, unity and integrity of India;
4. Defend the country and render national service when called;
5. Promote the common brotherhood of all the people of India and
renounce any practice derogatory to the dignity of women;
6. Preserve the rich heritage of the nation’s composite culture;

Fundamental Duties of the
Citizens Cont.
7. Project the natural environment and have compassion for
living creatures;
8. Develop scientific temper, humanism and spirit of inquiry
and reform;
9. Safeguard public property and abjure violence; and
10. Strive for excellence in all individual and collective
activity.
11. Duty of the parents to send their children to schools for
getting education.
The Fundamental Duties are, however, not enforceable by
the courts.

Directive Principles of State
Policy
• Part IV of the Constitution dealing with the
‘Directive Principles of State Policy’ provides
one of the most striking features of the Indian
Constitution. The Directive Principles are
instructions to the state for securing socio-
economic developmental objectives through its
policies. These are to be implemented by both
the Union for the States.

Parliamentary System
• The Constitution of India provides for a parliamentary system of
government at the Centre as well as in every state of the Union. The
President of India is the constitutional head of state with nominal
powers. The Union Council of Ministers headed by the Prime
Minister is the real executive. Ministers are essentially the members
of the Union Parliament.
• For all its policies and decisions the Council of Ministers is
collectively responsible before the Lok Sabha. The Lok Sabha can
remove the Ministry by passing a vote of no-confidence. The
Cabinet, in fact the Prime Minister has the power to get the Lok
Sabha dissolved by the President. On similar lines a parliamentary
government is also at work in each state.

Adult-Suffrage
• Another feature of the Constitution is that it
provides for universal adult suffrage. All men
and women enjoy an equal right to vote. Each
adult man and woman above the age of 18
years has the right to vote. All registered voters
get the opportunity to vote in elections

Single integrated State with
Single Citizenship
• India is the single Independent and Sovereign
integrated state. Presently it has 28 states and 8
Union Territories. All citizens enjoy a common
uniform citizenship. They are entitled to equal
rights and freedoms, and equal protection of
the state.”

Single Integrated Judiciary
• The Constitution provides for a single integrated
judicial system common for the Union and the states.
The Supreme Court of India works at the apex level,
High Courts at the state level and other courts work
under the High Courts.
• There are 25 State High Courts working in all parts of
India. Orissa High Court has been in existence since
1948 and it is located at Cuttack. The Supreme Court
is the highest court of the land. It controls and runs
the judicial administration of India.

Independence of Judiciary
• The Indian Constitution makes judiciary truly independent. It is
clear from the following facts:
• (a) Judges are appointed by the President,
• (b) Only persons with high legal qualifications and experience are
appointed as judges,
• (c) Judges of the Supreme Court cannot be removed from office
except through an extremely difficult process of implement.
• (d) The salaries of the judges are very high,
• (e) The Supreme Court has its own staff. Indian judiciary has an
autonomous organization and status. It works as an independent and
powerful judiciary.

Judicial Review
• The Constitution is the supreme law of the land.
The Supreme Court acts as the guardian protector
and interpreter of the Constitution. It is also the
guardian of the Fundamental Rights of the people.
For this purpose it exercises the power of judicial
review. By it, the Supreme Court determines the
constitutional validity of all laws made by the
legislatures. It can reject any law which is found
to be unconstitutional.

Judicial Activism
• Currently, Indian judiciary has been becoming
more and more active towards the performance
of its social obligations. Through Public
Interest Litigation system (PIL) as well as
through a more active exercise of its powers,
the Indian judiciary has been now very
actively trying to secure all public demands
and needs due to them under the laws and
policies of the state.

Emergency Provisions
• The Constitution of India contains special provisions for
dealing with emergencies.
• It recognizes three types of possible emergencies:
(1) National Emergency (Article 352) an emergency resulting
from war or external aggression or threat of external
aggressions against India or from armed rebellion within
India or in any of its part;
(2) Constitutional Emergency in a State (Article 356) an
emergency resulting from the failure of constitutional
machinery in any state; or some states and

Emergency Provisions Cont.
(3) Financial Emergency (Article 360) an emergency
resulting from a threat to financial stability of India.
• The President of India has been empowered to take
appropriate steps for dealing with these emergencies.
During the period of an emergency, the powers of the
President, actually of the PM and the Union Council
of Ministers Cabinet increase tremendously. President
can take all steps deemed essential for meeting an
emergency. These are called emergency powers of the
President.

Special Provisions relating to Scheduled
Castes and Scheduled Tribes
• It provides for reservation of seats in the legislatures
for the people belonging to Scheduled Castes and
Scheduled Tribes. President can nominate in Lok
Sabha not more than two members of the Anglo-
Indian Community in case he is of the opinion that
this community is not adequately represented in the
House.
• Reservation of some jobs for the people belonging to
SCs, STs and OBCs has also been in operation.

TOPIC: IS CONSTITUTION FEDERAL IN NATURE?

Is Indian Constitution Federal in
Nature?
It has been the matter of debate among the scholars
that whether the Constitution of India is completely
federal or unitary in nature. But actually Indian
constitution contains both features of a federal
constitution and unitary constitution. And that is why,
it is called QUASI – FEDERAL CONSTITUTION

Quasi Federalism
• Quasi-federalism means an intermediate form of state
between a unitary state and a federation. It combines the
features of a federal government and the features of a
unitary government. India is regarded as a semi-federal state
or a quasi-federal state as described by Prof. K.C. Wheare.
The Supreme Court of India also describes it as a federal
structure with a strong bias towards the Centre.
• Article 1 of the Constitution of India states that ‘India that is
Bharat shall be a union of states’. Indian model of
federalism is called the quasi-federal system as it contains
major features of both a federation and union.

Federal Features of Constitution
• Supremacy of the Constitution:Constitution is the
supreme law of land in India. A federal state derives its
existence from the Constitution.
• Bicameral Legislature: The main feature of federalism is a
bicameral legislature. The Constitution of India also
provides for a bicameral legislature i.e. Parliament with two
houses of the Lok Sabha and the Rajya Sabha.
• Independent Judiciary: In India, the Constitution has
provided for a Supreme Court. The Supreme Court of India
can declare a law as unconstitutional, if it contravenes any
provisions of the Constitution.

Cont.
• Dual Government Polity: The Constitution of India has
divided powers between the Central government and the state
governments through the 7th schedule. It contains three
legislative lists which enumerate subjects of administration,
viz. Union, State and Concurrent Legislative Lists. Both the
governments have their separate powers and responsibilities.
• Written Constitution: The Indian Constitution is a written
document containing 448 Articles and 12 schedules, and
therefore, fulfils this basic requirement of a federal
government. The Indian Constitution is the most elaborate
Constitution of the world.

Cont.
• Revenue Sharing: In the case of a federal
country there is a system of revenue sharing
between the Center and the State. In India,
there is the principle of dual GST system
adopted by the legislation for the constitutional
requirement of fiscal federalism.

Unitary Features of Constitution
• Single Constitution: In India, there is only one
Constitution. It is applicable to both the Union as a whole
and the Stares. In a true federation, there are separate
constitutions for the union and the States.
• Rajya Sabha does not represent the States equality: In a
true federation, the upper house of the legislature has equal
representation from the constituting units or the States. But
in Rajya Sabha, the States do not have equal representation.
The populous States have more representatives in the Rajya
Sabha than the less populous States.

Cont.
• Division of power is not equal: In a federation, power is
divided equally between the two governments. But in India,
the Central government has been given more powers and
made stronger than the State governments.
• Constitution is not strictly rigid:The Constitution of India
can be amended by the Indian Parliament easily. On many
subjects, the Parliament does not need the approval of the
State legislatures to amend the Constitution. In a true
federation, both the Union and the State legislatures take
part in the amendment of the Constitution with respect to all
matters.

Cont.
• Existence of States depends on the Centre: In India, the existence
of a State or a federal unit depends upon the authority of the Centre.
The boundary of a State can be changed by created out of the
existing States.
• Unified judiciary: India has a unified or integrated judicial system.
The High Courts which work in the States are under the Supreme
Court of India.
• Proclamation of emergency: The Constitution of India has given
emergency powers to the President. When an emergency is declared,
the Union or Central governments become all powerful and the State
governments come under the total control of it. The State
governments lose their autonomy

Conclusion
On a careful analysis of the federal and unitary
features of the constitution, it is evident that
with every federal feature, there is an ultimate
centralising force which is existing. Therefore,
it would not be wrong to conclude that the
Constitution of India is federal in structure and
unitary in spirit i.e. it is quasi- federal in
nature.

UNIT-II
PARLIAMENT: COMPOSITION, PARLIAMENTARY
SOVEREIGNTY & PARLIAMENTARY PRIVILEGES

Parliament - Introduction
• Parliament is the supreme legislative body of India. The Indian Parliament
comprises of the President and the two Houses - Rajya Sabha (Council of States)
and Lok Sabha (House of the People). The President has the power to summon and
prorogue either House of Parliament or to dissolve Lok Sabha. The Constitution of
India came into force on January 26, 1950. The first general elections under the
new Constitution were held during the year 1951-52 and the first elected Parliament
came into existence in April, 1952,

Composition
• Art. 79 - Constitution of Parliament.
• Art. 80 - Composition of the Council of States
• Art. 81 - Composition of the House of the People
• Art. 82 - Readjustment after each census
• Art. 83 - Duration of Houses of Parliament
• Art. 84 - Qualification for membership of Parliament
• Art. 85 - Sessions of Parliament, prorogation and dissolution
• Art. 86 - Right of President to address and send messages to Houses
• Art. 87 - Special address by the President
• Art. 88 - Rights of Ministers and Attorney-General as respects House

Procedure
• Art. 118 - Rules of Procedure
• Art. 119 - Regulation by law of procedure in Parliament in relation to financial
business
• Art. 120 - Language to be used in Parliament
• Art. 122 - Courts not to inquire into proceedings of Parliament

Functions
• Art. 75 (5) - A Minister who for any period of six consecutive months is not a
member of either House of Parliament shall at the expiration of that period cease to
be a Minister.
• Art. 75(3) - The Council of Ministers shall be collectively responsible to the House
of the People.
• Art. 107 - Provisions as to introduction and passing of Bills
• Art. 108 - Joint sitting of both Houses in certain cases
• Art. 109 - Special procedure in respect of Money Bills

Parliamentary Sovereignty
Meaning - Parliamentary sovereignty means supremacy of the legislative body i.e.,
parliament over all other government institutions including executive and judicial
bodies. Sovereign legislature may change or repeal any previous legislation and is
not bound by any written law like constitution. In India there is no parliament
sovereignty rather there is constitutional sovereignty.
Various features of Parliamentary Sovereignty –
Written Constitution: In India Constitution is written which put limitations on all
organs of the state. Although parliament can amend constitution but it cannot
supersede the written document. In UK, as there is no written constitution, the
Parliament possesses legislative sovereignty. So any law passed by it cannot be
questioned before any court on such grounds.

Parliamentary Sovereignty Cont.
• Independent judiciary and Judicial review: Judiciary is independent and the
guardian of the Constitution. It can declare any law or ordinance passed by the
legislature void, if any of its provisions violate one or more of the constitutional
provisions.
• Federal structure: Although constitution says India as a union of states, India is a
federal polity. Various federal provisions especially some special powers for
schedule area limit parliament powers where many parliamentary laws are
applicable only on presidential and governor consent.
• Limited amendment power: Parliament can amend most of the part of constitution
but it cannot amend the ‘basic features of the constitution’. Further some
amendments need special majority and states’ legislature resolution.

Parliamentary Sovereignty Cont.
• Division of powers: Schedule VII divide law making power between centre and
state. Parliament cannot make laws on state list. Any law in state subject would
require state’s consent through majority.
• Limit by Presidential vetoes: A bill cannot become law without presidential
assent. President can practice various veto powers like pocket veto that act as
limitation on parliament sovereignty.
• Limited Doctrine of ‘Separation of Powers’: In India there is no strict application
of doctrine of separation of powers. So if the legislature encroaches into the
functions of the other organs, judiciary can prevent it to do so.
• Bar on discussion of conduct of judges: Article 121 and 211 of Indian
Constitution states that no discussion shall take place in the Legislature of a state or
in the Parliament with respect to the conduct of any judge of the Supreme Court or
of the High court in the discharge of his duties. Thus legislature have no power to
discuss judges conduct.

Case Laws
• U N Rao V. Indira Gandhi (AIR 1971 SC 1002)
• Indira Nehru Gandhi V. Raj Narain (AIR 1975 SC 2299)
• Rameshwar Prasad V. UOI (2006 AIR SCW 494)
• Ramdas Athawale V. UOI (2010(3) SCALE 412)

Parliamentary Privileges
• Article 105 & 194 deal with the powers, privileges & immunities of Parliament and
its members, and the State Legislatures and their members respectively. They both
are mutatis mutandis.
• Art. 105 - Powers, privileges, etc., of the Houses of Parliament and of the members
and committees thereof
• Art. 194 - Powers, privileges, etc., of the Houses of Legislatures and of the
members and committees thereof

Division of Privileges of Houses
• A) those which are enjoyed by the members individually
i) Freedom from arrest
ii) Freedom of attendance as witness
iii) Freedom of Speech
iv) Art. 121 - Restriction on discussion in Parliament
v) Art. 211 - Restriction on discussion in the Legislature

Division of Privileges of Houses Cont.
• B) those which belong to each Houses of Parliament as a collective body
i) the right to publish debates and proceedings & the right to restrain publication by
others.
ii) the right to exclude strangers from galleries at any time
iii) the right to regulate the internal affairs of House, and to decide matters arising
within its walls
iv) the right to publish Parliamentary behaviour
v) the right to punish members & outsiders for the breach of its privilege.

Case Laws
• M S M Sharma V. Sri Krishna Sinha (AIR 1959 SC 395)
• Keshav Singh’s case a.k.a The Legislative Privileges Case
• Tej Kiran Jain V. N. Sanjiva Reddy (AIR 1970 SC 1573)
• P V Narsimha Rao V. State (AIR 1998 SC 2120)
• Raja Ram Pal V. Hon’ble Speaker, Lok Sabha & others ((2007) 3 SCC 184) a.k.a
The Case Querry Case

EXECUTIVE POWERS: POWERS OF PRESIDENT &
GOVERENOR

Introduction
• The Executive along with the legislature and the judiciary forms one of the three
agencies through which the State functions.
• The two important points to be looked into before analyzing the extent and nature
of ‘executive functions’ in the Indian Constitution according to the Constitution is
what constitutes the executive and what exactly are executive functions.
• In pursuant with the federal structure envisaged in the Constitution, the executive is
divided into
a) Union Executive, enumerated in Part V Chapter 1 Articles. 52 to 78, and
b) State Executive, enumerated in Part VI, Chapter 2 Articles 153 to 167.

Union Executive
• Art. 52 – The President of India
• Art. 53 – Executive power of the Union
• Art. 54 – Election of President
• Art. 55 – Election of President
• Art. 56 – Term of office of President
• Art. 57 – Eligibility for re-election
• Art. 58 – Qualifications for election as President
• Art. 59 – Conditions of President’s office
• Art. 60 – Oath or affirmation by the President
• Art. 61 – Procedure for impeachment of the President

Union Executive Cont.
• Art. 62 – Time of holding election to fill vacancy in the office of President and the
term of office of person elected to fill casual vacancy
• Art. 70 - Discharge of President’s functions in other contingencies
• Art. 71 - Matters relating to, or connected with, the election of a President or Vice-
President
• Art. 72 - Power of President to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases
• Art. 73 - Extent of executive power of the Union
• Art. 74 - Council of Ministers to aid and advise President

State Executive
• Art. 153 - Governors of States
• Art. 154 - Executive power of State
• Art. 155 - Appointment of Governor
• Art. 156 - Term of office of Governor
• Art. 157 - Qualifications for appointment as Governor
• Art. 158 - Conditions of Governor’s office
• Art. 159 - Oath or affirmation by the Governor
• Art. 160 - Discharge of the functions of the Governor in certain contingencies
• Art. 161 - Power of Governor to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases

State Executive Cont.
• Art. 162 - Extent of executive power of State.
• Art. 163 - Council of Ministers to aid and advise Governor
• Art. 164 - Other provisions as to Minister

Case Laws
• Dinesh Chandra v. Choudhari Charan Singh AIR 1992 Raj 70
The Court held that to argue pleasure could be interpreted in Article 75(2) to mean
the President can dismiss any Minister at any time at his will.
• SP Anand v. HD Devegowda, (1997 SC)
It was held that since Ministers also include Prime Minister, the President can
dismiss Prime Minister also at his will.

Case Laws Cont.
• Pal & Co. vs. Lt. Governor of Delhi (1979 AIR 1550), it was ruled that the power
to issue an Ordinance by the President is “co-extensive with the Legislative power
of the Parliament.”
• Swaran Singh v. State of U.P (AIR 1982 SC 849), the Governor of Uttar Pradesh
remitted the whole of the life sentence of an MLA of the State Assembly who had
been convicted of the offence of murder within a period of less than two years of
his conviction. The Supreme Court found that Governor was not posted with
material facts such as the involvement of the accused in 5 other criminal cases, his
unsatisfactory conduct in prison and the Governor’s previous rejection of his
clemency petition in regard to the same case

JUDICIARY: JURISDICTION OF HIGH COURT &
SUPREME COURT AND INDEPENDENCE OF
JUDICIARY

Jurisdiction of High Court
The Jurisdiction of High Court can be divided into three parts –
1) Original Jurisdiction- it means that applicant can directly go to High Court and not
by means of appeals. This power is used in the following matters –
• Disputes arising out of relating to members of Parliament and state legislative
assembly
• Relating to marriage, law, admiralty divorce, contempt of court etc
• Enforcement of fundamental rights (Supreme Court also has this power)
• Cases transferred from other court to itself which involves a question of law.
2) Writ Jurisdiction- Article 226 states that High Court shall have power throughout
the territories in relation to which it exercises jurisdiction to issue to any person or
authority including in appropriate cases, any government, within those territories
directions, orders, or writs.

Jurisdiction of High Court Cont.
3) Appellate Jurisdiction-
• It is said that the high court is the primary court of appeal i.e. it has power to hear
the appeals against the judgment of the subordinate courts within its territories. This
power can be classified in to 2 categories-Civil jurisdiction and Criminal
jurisdiction
• In civil cases its jurisdiction includes to the orders and judgments of the district
courts, additional district courts and other subordinate courts.
• In criminal cases its jurisdiction includes judgments relating to sessions courts and
additional sessions court. These cases should be involving imprisonment for more
than 7 years, confirmation of any death sentence awarded by session court before
execution

Jurisdiction of Supreme Court
The Jurisdiction of Supreme Court can be broadly divided into three parts :
1) Original Jurisdiction
a) Writ Jurisdiction
b) Election Disputes relating to President/Vice-President of India
c) Original Suits
d) Transfer of Cases
e) Arbitration Matters
f) Contempt Proceedings

Jurisdiction of Supreme Court Cont.
2) Appellate Jurisdiction
a) General
b) Statutory Appeals
c) Special Leave Petitions
d) Reference
3) Advisory Jurisdiction

Relevant Articles
• Art. 32 - Remedies for enforcement of rights conferred by this Part
• Art. 137 - Review of judgments or orders by the Supreme Court
• Art. 142 - Enforcement of decrees and orders of Supreme Court and orders as to
discovery, etc.
• Curative Petitions

Case Laws – Landmark Case
Rupa Ashok Hurra V. Ashok Hurra (AIR 2002 SC 1771)
Issue – Whether an aggrieved person is entitled to any relief against a final
judgment/order of SC, after dismissal of review petition, either under Art. 32 or
otherwise?
Held – A final judgment/order passed by SC cannot be assailed in an application under
Art. 32 by an aggrieved party whether he was a party to the case or not.

Administrative Relations between Union and the States

Introduction
• The distribution of powers is an essential feature of federalism. The object for
which a federal state is formed involves a division of authority between the
National Government and separate states. The tendency of federalism to limit on
every side the action of the government and to split up the strength of the state
among co-ordinate and independent authorities is especially noticeable, because it
forms the essential distinction between a federal system. And a unitary system of
Government. ” A Federal Constitution establishes the dual polity with the union at
the centre and the states at a periphery, each endowed with sovereign powers to be
exercised in the field assigned to them respectively by the constitution.” “The one is
not subordinate to the other in its own field, the authority of one is co-ordinate with
that of other”. In fact, the basic principle of federation is that the legislative,
executive and financial authority is divided between the centre and state not by any
law passed by the centre but by constitution itself. This is what Indian constitution
does.

Article 245 - Extent Of Laws Made By Parliament And By
The Legislatures Of States
(1) Subject to the provisions of this Constitution, Parliament may make laws for the
whole or any part of the territory of India, and the Legislature of a State may make
laws for the whole or any part of the State.
(2) (2) No law made by Parliament shall be deemed to be invalid on the ground that it
would have extraterritorial operation.

Article 246 - Subject-Matter Of Laws Made By Parliament
And By The Legislatures Of States
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to
make laws with respect to any of the matters enumerated in List I in the Seventh
Schedule in this Constitution referred to as the “Union List”.
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in this Constitution referred
to as the “Concurrent List”.
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to
make laws for such State or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule in this Constitution referred to as the
“State List”.
(4) Parliament has power to make laws with respect to any matter for any part of the
territory of India not included 2 [in a State] notwithstanding that such matter is a
matter enumerated in the State List.

Article 247 - Power Of Parliament To Provide For The
Establishment Of Certain Additional Courts
• Notwithstanding anything in this Chapter, Parliament may by law provide for the
establishment of any additional courts for the better administration of laws made by
Parliament or of any existing laws with respect to a matter enumerated in the Union
List.

Article 248 - Residuary Powers Of Legislation
(1) Subject to article 246A, Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List or State List.
(2) (2) Such power shall include the power of making any law imposing a tax not
mentioned in either of those Lists.

Article 249 - Power Of Parliament To Legislate With Respect
To A Matter In The State List In The National Interest
(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council
of States has declared by resolution supported by not less than two-thirds of the
members present and voting that it is necessary or expedient in the national
interest that Parliament should make laws with respect to goods and services tax
provided under article 246A or any matter enumerated in the State List specified in
the resolution, it shall be lawful for Parliament to make laws for the whole or any
part of the territory of India with respect to that matter while the resolution
remains in force.
(2) A resolution passed under clause (1) shall remain in force for such period not
exceeding one year as may be specified therein:
Provided that, if and so often as a resolution approving the continuance in force of any
such resolution is passed in the manner provided in clause (1), such resolution shall
continue in force for a further period of one year from the date on which under this
clause it would otherwise have ceased to be in force.

To A Matter In The State List In The National Interest
(3) A law made by Parliament which Parliament would not but for the passing of a
resolution under clause (1) have been competent to make shall, to the extent of the
incompetency, cease to have effect on the expiration of a period of six months after the
resolution has ceased to be in force, except as respects things done or omitted to be
done before the expiration of the said period.

To Any Matter In The State List If Proclamation Of
Emergency Is In Operation
(1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of
Emergency is in operation, have power to make laws for the whole or any part of
the territory of India with respect to goods and services tax provided under article
246A or any of the matters enumerated in the State List.
(2) (2) A law made by Parliament which Parliament would not but for the issue of a
Proclamation of Emergency have been competent to make shall, to the extent of the
incompetency, cease to have effect on the expiration of a period of six months after
the Proclamation has ceased to operate, except as respects things done or omitted to
be done before the expiration of the said period.

Article 251 - Inconsistency Between Laws Made By
Parliament Under Articles 249 and 250 And Laws Made By
The Legislatures Of States
Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to
make any law which under this Constitution it has power to make, but if any provision
of a law made by the Legislature of a State is repugnant to any provision of a law made
by Parliament which Parliament has under either of the said articles power to make, the
law made by Parliament, whether passed before or after the law made by the
Legislature of the State, shall prevail, and the law made by the Legislature of the State
shall to the extent of the repugnancy, but so long only as the law made by Parliament
continues to have effect, be inoperative.

Article 252 - Power Of Parliament To Legislate For Two Or
More States By Consent And Adoption Of Such Legislation
By Any Other State
(1) If it appears to the Legislatures of two or more States to be desirable that any of the
matters with respect to which Parliament has no power to make laws for the States
except as provided in articles 249 and 250 should be regulated in such States by
Parliament by law, and if resolutions to that effect are passed by all the Houses of
the Legislatures of those States, it shall be lawful for Parliament to pass an act for
regulating that matter accordingly, and any Act so passed shall apply to such States
and to any other State by which it is adopted afterwards by resolution passed in that
behalf by the House or, where there are two Houses, by each of the Houses of the
Legislature of that State.
(2) (2) Any Act so passed by Parliament may be amended or repealed by an Act of
Parliament passed or adopted in like manner but shall not, as respects any State to
which it applies, be amended or repealed by an Act of the Legislature of that State.

Article 253 - Legislation For Giving Effect To International
Agreements
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has
power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries
or any decision made at any international conference, association or other body.

Article 254 - Inconsistency Between Laws Made By
Parliament And Laws Made By The Legislatures Of States
(1) If any provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact, or
to any provision of an existing law with respect to one of the matters enumerated in
the Concurrent List, then, subject to the provisions of clause (2), the law made by
Parliament, whether passed before or after the law made by the Legislature of such
State, or, as the case may be, the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters
enumerated in the Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an existing law with respect to
that matter, then, the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has received his assent,
prevail in that State: Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of the
State.

Article 255 - Requirements As To Recommendations And
Previous Sanctions To Be Regarded As Matters Of Procedure
Only
No Act of Parliament or of the Legislature of a State, and no provision in any such Act,
shall be invalid by reason only that some recommendation or previous sanction
required by this Constitution was not given, if assent to that Act was given—
(a) where the recommendation required was that of the Governor, either by the
Governor or by the President;
(b) where the recommendation required was that of the Rajpramukh, either by the
Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that of the President,
by the President

Introduction
• The Constitution of India, 1950 is the grund norm of the country. It primarily lays
down the framework which defines the political principles, procedures, powers and
duties of various governmental institutions and lays down the fundamental rights
and duties of the citizens, etc.
• The Constitution follows a parliamentary system of government. Further, it follows
the doctrine of the division of powers. The Constitution is neither purely federal nor
purely unitary. Scholars have often defined it as ‘quasi-federal.’ India has moved
from competitive federalism to cooperative federalism over a period of time.

Administrative Relations Between Centre And States
• The administrative relations between the Centre and the States are stated under
Article 256 to Article 263 of the Constitution of India. The Government of India has
also constituted the Punchhi Commission in 2007, to determine the Centre-State
Relations.
• Article 246 of the Constitution deals with the subject matter of laws which are to be
made by the Parliament and the State Legislatures. The Constitution,
under Schedule VII, lays down three lists. These lists divide the subjects between
the Centre and the States. The List I is the Union List, List II is the State List and
List III is the Concurrent List.
• As a set rule, the Central Government has administrative authority over the matters
on which the Parliament is empowered to make the laws. The State Governments
exercises administrative authority over the matters specified in the State List.

The Obligation Of States And The Union
• Article 256 of the Constitution of India can be divided into two parts.
• Firstly, it lays down that the executive powers of the State are to be exercised in
such a manner that it complies with the laws made by the Parliament or any other
existing laws which are applicable in the State. Secondly, it states that the executive
power of the Union includes in its ambit such directions that are given to the State
by the Central Government, which it deems necessary for the purpose.
• It appears from reading the provision that if the States duly comply with the first
part, then the second part does not seem necessary. Whereas, if the second part
indeed serves its purpose sometimes, then it is evident that the States are guilty of
violating the first part of the provision.

The Obligation Of States And The Union
• The Constitution lays down this provision with the assumption that the States will
be, at some juncture, guilty of either wilful defiance or negligence of its duties.
• Article 256 is the successor of Section 122 of the Government of India Act,
1935. Although this provision is particularly silent about the consequences in case
of non-compliance, the drastic sanction is laid down in Article 365 of the
Constitution. To explain, if a State fails to comply with the directions issued by the
Centre, then it is lawful for the President to hold that a situation has arisen wherein
the State government cannot be carried on according to the provisions of the
Constitution. Consequently, a state emergency can be imposed. The primary theme
of this provision is that there should be a proper execution of the central laws in all
the states.

Cases
• In the case of Rameshwar Oraon vs. State of Bihar and Ors. (1995)(AIR 1995 Pat
173), it was observed that it is mandatory for the State Government to act according
to the directions issued by the Central Government.
• In the case of State of Karnataka vs. Union of India (1977) (1978 AIR 68), it was
held that the Centre can issue directions to a State under Article 256 as a legal
entity, not as a geographical or territorial unit. Further, in State of Rajasthan vs.
Union of India (1977) (1977 AIR 1361), the Apex Court held that the issuance of
directions to the State government by the Centre under Article 256 is justified if the
Union Government is of the opinion that the manner in which the executive power
of the State is exercised may be in contravention to the enforcement of Central
Laws.
• In Swaraj Abhiyan vs. Union of India (2017)(Writ Petition (Civil), 857 of 2015), the
Apex Court drew attention to this provision, calling it a ‘forgotten provision’. This
is because of the seldom usage of this provision since the Constitution came into
force.

Control of the Union over States in certain cases
• Article 257(1) provides that the exercise of the executive powers of the State should
be done in such a manner that it does not hamper or prejudice the exercise of the
executive powers of the Centre. Further, the second part of this clause is similar to
that of Article 256. It lays down that the Centre can issue directions to the State
Governments for purposes deemed necessary.
• Article 257(2) provides that the executive power of the Union to issue directions to
the States shall also extend to the matters of construction and maintenance of means
of communication declared to be of national or military importance. Although
communications is a State subject under Entry 13, List II, Schedule VII of the
Constitution – the Union has been empowered to issue directions.
• The proviso states that nothing in this particular provision will be considered as
restricting the power of the Parliament to:

Control of the Union over States in certain cases
• Declare certain highways or waterways as national highways or waterways;
• Construct and maintain means of communication as a part of its functions with
reference to naval, military and air force purposes.
• Article 257(3) provides that the executive power of the Union to issue directions to
the States shall also extend to the measures required to be taken for the protection
of the railways within a particular State.
• Article 257(4) provides that for the purpose of compliance to the directions under
clause (2) or clause (3), the States incur excess costs, which would not have
occurred in the discharge of the normal duties of the State in the absence of such
directions, then these costs shall be paid by the Government of India such sum as
may be agreed. If there is a default of agreement, the sum of the extra costs so
incurred by the State will be determined by an arbitrator appointed by the Chief
Justice of India.

Power Of The Union To Confer Powers, etc. On States In
Certain Cases
• Article 258(1) begins with a non-obstante clause. It states that the President, with
the permission of the Governor of the State, can entrust conditionally or
unconditionally the State Government or its officers to perform functions which are
related to any matter which is included in the ambit of the executive power of the
Union.
• Article 258(2) provides that a Parliament-made law which is applicable in any State
may confer certain powers and impose duties, or authorise such conferring of
powers and imposition of duties upon the State or its officers and the authorities
thereof. The clause has a non-obstante clause within it. It states that even if the
Legislature of the State has no power to make laws on that matter, the Parliament
made law is applicable.
• Article 258(3) states that the extra costs of administration which the States incur, in
connection with the exercise of such conferred powers and imposed duties, shall be
paid by the Government of India – such sum as may be agreed. If there is a default
of agreement, the sum of the extra costs so incurred by the State will be determined
by an arbitrator appointed by the Chief Justice of India.
•Chanderprabhu Jain College of Higher Studies & School of Law

Power Of The States To Entrust Functions To The Union
• This power is laid down under Article 258-A of the Constitution of India. The
article begins with a non-obstante clause. It states that the Governor of a State, with
the consent of the Union Government, may entrust conditionally or unconditionally
to that particular State’s government or its officers, functions which are related to
any matter that is included in the scope of the executive power of the State.
• This provision was inserted into the Constitution by the Constitution (Seventh
Amendment) Act, 1956.

Jurisdiction Of The Union In Relation To Territories Outside
India
• Article 260 of the Indian Constitution deals with the jurisdiction in relation to
foreign territories. The article states that the Indian Government can enter into an
agreement with the Government of any territory which is not a part of the Indian
territory. This agreement is entered into to undertake any executive, legislative or
judicial functions vested in the Government of that territory. All such agreements
are subjected to and governed by any law which pertains to the exercise of foreign
jurisdiction for the time being in force.
• This is a latent emboldening provision. The Constituent Assembly debated this
provision on three different sessions – July 25, 1947; July 28, 1947, and August 25,
1947. Upon a perusal of these debates, it can be understood that the motive behind
this provision was to facilitate the administration of states that had not acceded to
the Indian Union.
• The Apex Court has ruled in GVK Inds. Ltd. & Anr. vs. The Income Tax Officer &
Anr. (2011), that this Article is to be invoked only in cases when such laws either
have an impact on or consequences for the people of India or the Indian territory.
The Parliament has also enacted the Foreign Jurisdiction Act, 1947 in accordance
with this Article, to provide for the exercise of foreign jurisdiction of the Union
Government.

Public Acts, Records And Judicial Proceedings
• Article 261(1) provides that full faith and credit must be given to all the public acts,
records and judicial proceedings of the Union and every State, throughout the
territory of India.
• Article 261(2) provides that the manner in which and conditions under which the
aforementioned acts, records and proceedings are to be proved along with the effect
thereof, shall be provided by such law as made by the Parliament.
• Article 261(3) states that final judgments or orders which are delivered or passed by
the civil courts located in any part of the Indian territory are capable of execution
anywhere within that territory, according to the law.

Adjudication Of Disputes Relating To Waters Of Inter-State
Rivers Or River Valleys
• Article 262(1) states that the Parliament may formulate laws to provide for the
adjudication of any dispute or complaint with reference to the use, distribution or
control of waters of, or in, any inter-State river or inter-State river valley.
• Article 262(2) begins with a non-obstante clause and provides that the Parliament
may by law provide that neither the Apex Court nor any other court shall be able to
exercise their jurisdiction in respect of any such dispute or complaint as mentioned
in clause (1).
• The States have a power to legislate on this issue of water under Entry 17, State
List, Schedule VII. The Union is empowered to legislate upon the same under Entry
56, Union List, Schedule VII.

Adjudication Of Disputes Relating To Waters Of Inter-State
Rivers Or River Valleys
• In exercise of the powers bestowed by Article 262, the Parliament enacted the Inter-
State Water Disputes Act, 1956. If the water disputes cannot be settled by
negotiations then the Central Government establishes a Water Disputes Tribunal for
the adjudication of such disputes. There are currently five active tribunals – namely,
Ravi and Beas Water Tribunal, Krishna Water Disputes Tribunal – II, Vasundhara
Water Disputes Tribunal, Mahadayi Water Disputes Tribunal and Mahanadi Water
Disputes Tribunal. There are several legal doctrines related to the issue of inter-state
waters. These include – Doctrine of Riparian Rights, Prior Appropriation,
Territorial Sovereignty, Community of Interest and Equitable Apportionment.
• The Supreme Court in the judgment of State of Kerala through the Chief Secretary
to Government vs. State of Tamil Nadu through the Chief Secretary to Government
(2018) (CIVIL APPEAL NO. 2453 OF 2007), finally settled the age-long Cauvery
Water Dispute.

Provisions With Respect To An
Inter-State Council
• Under Article 263 of the Constitution of India, if the President believes that the
establishment of an inter-state council would help in serving the public interests,
then it is lawful for the President to establish such Council by order. He shall also
define the nature of duties to be performed by the Council, its organisation and the
procedure to be followed.
• The President can charge the Council with the following duties:
– To inquire into and advise upon disputes which may have arisen between
States;
– To investigate and discuss subjects in which some or all of the States, or the
Union and one or more of the States display a common interest;
– To make recommendations upon any subject and in particular, to make
recommendations for enhanced coordination of policy and action pertaining to
that subject.

Conclusion
• The aim of the Indian Constitution is to establish either collaborative or cooperative
federalism. Through the division of powers between the Centre and the States, a
certain autonomy is granted to the States to ensure that the administration at the
grass-root level remains efficient. Simultaneously, the Centre exercises its power
over the States to maintain a balance.
• There are several challenges in the way of maintenance of a federation but the key
solution is healthy debate and discussion between the parties involved.

Financial Relations between Union and the States

Introduction
• India follows a federal structure where the powers are shared between both the
centre and the states. Though however, the distribution of these powers are not
equal, and we often find states raising constant concerns about their extreme
dependence on the Union Government for all the matters, thus limiting their powers
and autonomy. Hence, it is also said that India follows a quasi-federal structure
where the central government enjoys more powers over the states.
• Similarly in the financial field too, the Union Government is more powerful than
the states and though there have been various reforms in fiscal federalism from time
to time still there exists a wide variety of issues that needs to be addressed. As in
the present situation also the states have to rely heavily on the centre for financial
resources.

Article 246 – Subject Matter Of Union And States To Make
Laws On Taxation
• Article 246 of The Constitution of India, 1949 provides a list of subjects giving
power to the different levels of government to make laws on them. Essentially
speaking there are three kinds of lists mentioned under Article 246 that are as
follows:
• Union list
The Union Government has the authority to make laws relating to the subject matter
given under the list I, called the Union list. It includes taxes like Corporation Tax,
Customs and Excise duties and taxes on income other than agricultural income, etc.
• State List
The State Government is vested with the power to frame laws on the subjects
mentioned under list II, called the state list. It includes taxes on vehicles, liquors, land
revenue, entertainment, luxuries, stamp duties and sale or purchase of goods, etc.

Article 246 – Subject Matter Of Union And States To Make
Laws On Taxation
• Concurrent List
While there is another list also known as the Concurrent List, which gives power to
both the centre as well as state government to make laws with regards to the subjects
provided by the list III. List III does not include any major tax as such. This helps in
avoiding the competitive exploitation of the same source by both the authorities and the
overlapping of tax-jurisdictions under the Indian Constitution. Further, in the case of
conflict, the central government decision will prevail over the State government
decision.

Distribution Of Powers – Levying And Collection Of Taxes
• Article 268 to 281 of the Indian Constitution has made elaborate provisions that
provide directions to the centre relating to the distribution of financial resources
amongst the states. It lays down principles for the centre and states to work in
coordination for levying and collection of taxes through systematic arrangements.
• The provisions, for the time being, can be summarised as follows but will be
explained in detail further. It includes:
– Taxes levied by the Union but collected and kept by the States (Article 268).
– Taxes levied and collected by the Union but assigned to the States (Article
269).
– Taxes levied and distributed between the Union and the States (Article 270).
– Grant-in-aid from the Centre to the States (Article 273, Article 275 and Article
282).
– Sharing of proceeds from other taxes.
• In giving recommendations with regards to the distribution of funds between the
centre and state, the Finance commission mentioned under Article 280 plays a very
important role.

GST Regime – 101st Amendment
• The 101st Amendment in the constitution and the introduction of GST in the Indian
Economy has significantly changed the landscape of financial relations between the
centre and states. Therefore, it is extremely important to have a basic knowledge of
what GST is, its application and its different forms.
• Position before GST
Before the introduction of GST, there were multiple taxes imposed by the centre and
states separately and the distribution of which was confusing and non-uniform. It
included Service Tax, Central Excise, Customs duty and State VAT etc. But after the
GST, the principle of one nation one tax was adopted.

Position before GST
GST is categorized into CGST, SGST or IGST depending on whether the transaction is
Intrastate or Interstate supplies. Let’s understand what does this means:
• Inter-state and Intra-state Supplies
• i) Intra-State supply of goods or services: In these kinds of transactions, the
location of the supplier and the place of supply are in the same state.
• ii) Inter-State Supply of Goods and Services: As per the Section 7 of The Integrated
Goods, and Services Tax Act 2017 it can be understood that “Inter-state” trade or
commerce basically means:
– when the supplier is located in some other state or union territory and the place
of the supply is in another state/UT, or
– when the supply of goods or services is made to or by a Special economic zone
(SEZ) unit.

Central Goods and Services Tax (CGST)
• CGST is a tax imposed on Intra-state supplies of goods and services and is
governed by the CGST Act. Along with this SGST/UTGST will also be levied on
the same transaction and shall be governed by the SGST/UTGST Act.
• It implies that in the case of Intra-state supplies of goods and services both CGST
and SGST are combined which are collected simultaneously; where CGST goes to
the centre and SGST goes to the state.
• The proportion of SGST and CGST is equal.
• However, it must be noted that any tax levied on Intra-State supplies of goods
and/or services by the centre and state shall not exceed 14% each.
State Goods and Services Tax (SGST)
• The SGST is a tax levied by the state on the Intra State supplies of goods and/or
services by the State Government.
• It is governed by the SGST Act.
• As already mentioned above it is levied and collected simultaneously with the
CGST.
• In the case of Union territories, it is called UGST and governed by the UGST Act.
•Chanderprabhu Jain College of Higher Studies & School of Law

Position before GST
Integrated Goods and Services Tax (IGST)
• IGST or Integrated Goods and Services Tax is a tax levied on all Inter-State
supplies of goods and/or services.
• It is governed by the IGST Act.
• IGST applies on any supply of goods and/or services in case of both import into
India and export from India. Though the exports will be zero-rated.
• Tax obtained under IGST is shared between centre and states as per Article 269A.
• The biggest achievement of GST is that it introduced a single uniform tax system
with dual tax features where the revenue is shared between both centre and state.
• The GST council as mentioned under Article 279 A, shall make decisions in
relation to the GST rate, inter supply transactions and other matters related to GST
etc.

Article 265- Taxes not to be imposed save by authority of law
• According to Article 265 of the Constitution of India, the union and state cannot
levy or collect any tax except authorised by law.
• This basically means that the power of the centre or state government to levy and
collect tax is not absolute power; as Article 265 of the Constitution of India imposes
certain general and specific limitations on it.
• In the case of Pratibha R.C.C. Spun, pipe and cement products V/s State of
Karnataka (AIR 1991 Kant 205), the imposition of a certain tax was rejected in the
light of Article 265 of the Indian Constitution. In the instant case, a tax was charged
in the pretext of a fee. Since there was no legislative enactment behind the same,
the imposition of the tax was considered illegal.

Article 266 - Consolidated Funds and public accounts of
India and of the States
• (1) Subject to the provisions of article 267 and to the provisions of this Chapter
with respect to the assignment of the whole or part of the net proceeds of certain
taxes and duties to States, all revenues received by the Government of India, all
loans raised by that Government by the issue of treasury bills, loans or ways and
means advances and all moneys received by that Government in repayment of loans
shall form one consolidated fund to be entitled “the Consolidated Fund of India”,
and all revenues received by the Government of a State, all loans raised by that
Government by the issue of treasury bills, loans or ways and means advances and
all moneys received by that Government in repayment of loans shall form one
consolidated fund to be entitled “the Consolidated Fund of the State”.
• (2) All other public moneys received by or on behalf of the Government of India or
the Government of a State shall be credited to the public account of India or the
public account of the State, as the case may be.
• (3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a
State shall be appropriated except in accordance with law and for the purposes and
in the manner provided in this Constitution

Article 267 – Contingency Fun
• (1) Parliament may by law establish a Contingency Fund in the nature of an interest
to be entitled “the Contingency Fund of India” into which shall be paid from time to
time such sums as may be determined by such law, and the said Fund shall be
placed at the disposal of the President to enable advances to be made by him out of
such Fund for the purposes of meeting unforeseen expenditure pending
authorisation of such expenditure by Parliament by law under article 115 or article
116.
• (2) The Legislature of a State may by law establish a Contingency Fund in the
nature of an interest to be entitled “the Contingency Fund of the State” into which
shall be paid from time to time such sums as may be determined by such law, and
the said Fund shall be placed at the disposal of the Governor 2*** of the State to
enable advances to be made by him out of such Fund for the purposes of meeting
unforeseen expenditure pending authorisation of such expenditure by the
Legislature of the State by law under article 205 or article 206.

Article 268 - Duties Levied By The Union But Collected And
Appropriated By The States
(1) Such stamp duties as are mentioned in the Union List shall be levied by the
Government of India but shall be collected—
(a)in the case where such duties are leviable within any Union territory, by the
Government of India, and
(b)in other cases, by the States within which such duties are respectively leviable.
(2) The proceeds in any financial year of any such duty leviable within any State shall
not form part of the Consolidated Fund of India, but shall be assigned to that State.

Constitutional Law-I (LLB -203)

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Constitutional Law-I (LLB -203)