Effects of Proclamation of Emergency under Article 356

Effects of Proclamation of Emergency by the President of India under Article 356

When the President of India proclaims an emergency under Article 356, also known as President's Rule, the state government is suspended, and the central government takes over the administration, with the state legislative assembly either dissolved or suspended.

The effects are discussed in details below:

The state government, including the Council of Ministers and the Chief Minister, is effectively suspended, and the state legislative assembly is either dissolved or suspended.
The central government takes over the administration of the state, exercising its powers through the Governor, who is appointed by the President.
Parliament gains the power to legislate on matters within the state list, which are usually reserved for the state legislature.
The state legislative assembly is either dissolved or prorogued, meaning it is adjourned indefinitely, and a new election is required after the President's Rule is lifted.
The executive authority of the state is transferred to the Central Government, which exercises its powers through the Governor of the state.
The Council of Ministers is dissolved, and the office of the Chief Minister is vacated.
The Union Government directly rules over the state or the union territory.

Duration of President's Rule:

The President's Rule initially lasts for six months, but can be extended for further periods, with the approval of both houses of Parliament, up to a maximum of three years.

Judiciary's Independence:

The High Court continues to function independently during the President's Rule.

Procedure of the appointment of Supreme Court Judge

The appointment of Supreme Court judges in India, as outlined in Article 124 of the Constitution, is a process involving the President, the Chief Justice of India (CJI), and a collegium of senior judges, with the President ultimately making the appointment after considering the collegium's recommendations.

Constitutional Basis:

Article 124 of the Constitution vests the power to appoint Supreme Court judges in the President.

The Collegium System:

The Collegium, comprising the CJI and four senior-most judges of the Supreme Court, plays a crucial role in recommending names for appointment.

Role of the President and the Chief Justice of India:

The President, while having the power to appoint, is expected to act on the advice of the CJI and the Collegium.
The President is required to consult with other judges of the Supreme Court and High Courts, as deemed necessary, before making an appointment.
The CJI is consulted in all appointments except his or her own, and the CJI's opinion is considered binding.

Process to appoint the Supreme Court Judge:

The CJI initiates the process by proposing names for appointment.
The CJI consults with the collegium, which then deliberates and makes recommendations.
The recommendations are sent to the government, which forwards them to the President.
The President, after considering the recommendations, appoints the judges.

Criticisms and Challenges in the Process of Appointment of the SC Judges:

Lack of Transparency: The collegium system has been criticized for lacking transparency and accountability.
Judicial-Executive Tussle: The relationship between the judiciary and the executive, particularly regarding appointments, has been a source of contention.
NJAC Proposal: The National Judicial Appointments Commission (NJAC), proposed as an alternative to the collegium system, was struck down by the Supreme Court.
Time Delays: The appointment process can be slow and time-consuming, leading to vacancies in the Supreme Court.
Memorandum of Procedure (MoP): A Memorandum of Procedure (MoP) was established to streamline the appointment process, but it has been criticized for not being comprehensive enough.

Case References for Appointment of Supreme Court Judges

1. First Judges Case (1981): S.P. Gupta v. Union of India

Initially, the Supreme Court held that "consultation" in the appointment process did not mean "concurrence".
The court stated that the Chief Justice of India's opinion on appointments and transfers could be rejected for "cogent reasons".

2. Second Judges Case (1993): Supreme Court Advocates-on-Record Association v. Union of India

Reversed the previous ruling and defined "consultation" as "concurrence".
Established that the advice of the Chief Justice of India, after consulting with two senior-most colleagues, is binding on the President for Supreme Court appointments.

3. Third Judges Case (1998): In re Special Reference

Clarified that the consultation process should involve a collegium of the Chief Justice of India and four senior-most judges of the Supreme Court.

Judicial and Legislative Function of the Central Executive.

In India, the central executive, though primarily focused on executing laws, also has legislative and quasi-judicial functions, including promulgating ordinances, participating in the legislative process, and exercising clemency powers, while the judiciary interprets laws and safeguards fundamental rights.

Legislative Functions of the Central Executive:

1. Participation in the legislative process:

The President, as the head of the executive, plays a crucial role in the legislative process.

2. Convening, proroguing, and dissolving Parliament:

The President has the power to summon and dissolve the Parliament and also prorogue its sessions.

3. President's assent is required to transform a bill into an act:

The President's assent is necessary for a bill passed by Parliament to become an Act.

4. Power to make ordinances:

The President can promulgate ordinances under Article 123 of the Constitution in certain situations, giving them the force of law.

5. Appointment of high officials:

The executive branch, headed by the President, is responsible for appointing various high officials, including the Attorney General and the Comptroller and Auditor General.

Judicial Functions of the Central Executive:

1. Appointment of Judges

According to Article 124(2) and 217(1) of the constitution, the central executive appoints the judges of the Supreme Court and the High Court respectively.

2. Clemency powers:

The President has the power to grant pardons, reprieves, and other forms of clemency under Article 72 of the Constitution.

3. Quasi-judicial powers:

The executive branch also exercises quasi-judicial powers through the establishment of tribunals, which are similar to courts and decide disputes between parties.

4. Immunity from court proceedings:

The President and the Governor enjoy immunity from court proceedings under Article 361 of the Constitution.

5. Judicial review:

The judiciary, including the Supreme Court and High Courts, has the power of judicial review and can strike down laws that it considers unconstitutional or arbitrary.

Legislative relations between the centre and the states

The Indian Constitution, under Part XI (Articles 245-255), outlines legislative relations between the Centre and States, dividing legislative powers territorially and by subject matter through the Union, State, and Concurrent Lists, with Parliament having broader powers in certain circumstances.

Territorial Scope:

Article 245(1) states that Parliament can legislate for the whole or any part of India, while State Legislatures can legislate for the whole or any part of their respective states.
Article 245(2) clarifies that laws made by Parliament are not invalid due to having extra-territorial operation.

Distribution of Legislative Powers (Article 246):

The Constitution divides legislative powers into three lists: Union List, State List, and Concurrent List, as outlined in the Seventh Schedule.

Union List: Parliament has exclusive power to legislate on subjects in this list (e.g., defense, banking).
State List: State Legislatures have exclusive power to legislate on subjects in this list (e.g., police, agriculture).
Concurrent List: Both Parliament and State Legislatures can legislate on subjects in this list, but in case of conflict, Parliament's law prevails.

Parliamentary Legislation in State Field:

Parliament can legislate on State List matters in certain circumstances, such as:

When Rajya Sabha approves a resolution with a two-thirds majority, declaring that it is necessary for the national interest.

During a national emergency (Article 352).
When President's Rule is imposed in a state (Article 356).
To implement international treaties and agreements.

Financial Relations:

Part XII (Articles 268-293) deals with financial relations between the Centre and the States, outlining the distribution of financial resources and responsibilities.

Administrative Relations:

Articles 256 to 263, also in Part XI, deal with administrative relations between the Centre and the States.

Emergency Provisions:

During emergencies (National, President's Rule, Financial), the balance of power can shift towards the Centre.

Conclusion:

The Constitution establishes a framework for a federal structure, dividing powers between the Centre and the States.
The division of legislative powers is a key aspect of this federal structure.
The system allows for flexibility and adaptation to changing circumstances, including national emergencies.
The Constitution also provides mechanisms for resolving conflicts and ensuring cooperation between the Centre and the States.

Powers and functions of the President of India

The President of India, as the head of state, holds both formal and ceremonial powers, including appointing key officials, summoning/proroguing Parliament, and granting pardons, while the Prime Minister is the head of government and holds the real executive power.

Executive Powers:

1. Formal Head:

The President is the formal head of the executive branch, with all executive actions taken in their name.

2. Appointment of Key Officials:

The President appoints the Prime Minister, other ministers, Governors of States, the Attorney General of India, the Comptroller and Auditor General of India, the Chief Election Commissioner, and other Election Commissioners, among others.

3. Information and Advice:

The President can seek information from the Prime Minister on the administration of affairs and proposals for legislation, and can require the Prime Minister to submit matters for consideration by the Council of Ministers.

4. Supreme Commander:

The President is the supreme commander of the Indian Armed Forces, and can declare war or conclude peace on the advice of the Union Council of Ministers.

5. Ordinances:

The President can promulgate ordinances when Parliament is not in session, which have the force of law for a limited period.

6. Emergency Powers:

The President can declare a national emergency (Article 352), state emergency (Article 356), or financial emergency (Article 360) based on the advice of the Council of Ministers.

Legislative Powers:

1. Parliamentary Sessions:

The President summons and prorogues Parliament, and dissolves the Lok Sabha on the advice of the Prime Minister.

2. Bill Assent:

The President gives assent to bills passed by both Houses of Parliament for them to become laws.

3. Nomination:

The President can nominate 12 members to the Rajya Sabha (Council of States).

4. Financial Matters:

The President makes recommendations for introducing financial and money bills in Parliament.

Judicial Powers:

1. Pardons and Reprieves:

The President has the power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offense.

2. Supreme Court Advice:

The President can seek the advice of the Supreme Court on matters of law or constitutional importance.

Ordinary Bill, Money Bill and Financial Bill

Ordinary Bill, Money Bill and Financial Bill

In the context of Indian parliamentary procedure, an Ordinary Bill covers general legislative matters, while a Money Bill specifically deals with taxation, government expenditure, and related financial matters, and a Finance Bill addresses the government's financial policies, including tax proposals and fund allocation.

Ordinary Bill:

Covers a wide range of subjects other than financial matters.
Can be introduced in either house of Parliament.
Requires passage by both houses and presidential assent to become law.
Example: Consumer Protection Bill.

Money Bill:

Deals with matters related to taxation, government expenditure, and financial matters.
Can only be introduced in the Lok Sabha (lower house).
The Rajya Sabha (upper house) can only recommend changes, which the Lok Sabha can accept or reject.
Example: Appropriation Bill.

Finance Bill:

Specifically pertains to the government's financial policies, including tax proposals, allocation of funds, and other monetary matters.
It is treated like an ordinary bill, meaning it can be amended or rejected by the Rajya Sabha.
Both Houses must approve it.
Example: Union Budget.

Meaning of the Amendment of the Constitution

Meaning of the Amendment of the Constitution

A constitutional amendment is a formal change or addition to a constitution, the supreme law of a country, often requiring a specific procedure for ratification. These amendments ensure the constitution remains relevant and adaptable to evolving societal needs while upholding its fundamental principles.

In India, the procedure for amending the constitution is outlined in Part XX (Article 368).

Essential conditions for the appointment of the Prime Minister

Essential conditions for the appointment of the Prime Minister

To be appointed Prime Minister of India, a person must be a citizen, a member of either the Lok Sabha or Rajya Sabha (or become one within six months), and at least 25 years old (for Lok Sabha) or 30 years old (for Rajya Sabha), and not hold any office of profit.

Details of the conditions are as discussed below:

1. Citizenship:

The candidate must be an Indian citizen.

2. Membership in Parliament:

The candidate must be a member of either the Lok Sabha (the lower house) or the Rajya Sabha (the upper house) at the time of appointment.

If not a member at the time of appointment, the candidate must become a member of either house within six months.

3. Age:

If the candidate is a member of the Lok Sabha, they must be at least 25 years old.

If the candidate is a member of the Rajya Sabha, they must be at least 30 years old.

4. No Office of Profit:

The candidate cannot hold any office of profit under the Government of India or any state government, or any local or other authority subject to the control of any of the said governments.

5. Appointment Process:

The Prime Minister is appointed by the President of India.
In a parliamentary system, the President typically appoints the leader of the party or coalition that holds a majority in the Lok Sabha as Prime Minister.
If no party or coalition has a clear majority, the President may exercise their discretion in selecting the Prime Minister.
The Prime Minister, once appointed, must prove their majority on the floor of the Lok Sabha.

Ordinance Making Power of the President of India

Ordinance Making Power of the President of India

Article 123(1) of the Indian Constitution empowers the President to promulgate ordinances when both Houses of Parliament are not in session, provided that he is satisfied that immediate action is necessary due to urgent circumstances.

Article 74 of the Constitution of India

(a) Can the President in India reject the advice tendered by a cabinet which has lost the support of majority in the House to dissolve the house of people?

(b) Can the President of India dismiss a council of Ministers which enjoys the confidence of Parliament but in the opinion of the President has lost the confidence of the people?

As per Article 74 of our Constitution, the President has to act in accordance with the aid and advise of the council of ministers.

Solution:

As per Article 74 of our Constitution, the President has to act in accordance with the aid and advise of the council of ministers. The Supreme Court, in a judgement given in 1971, held that the council of ministers does not cease to hold office even after the dissolution of Lok Sabha and Article 74 is mandatory.

Hence, even when the Lok Sabha is dissolved, the President continues to work as per the aid and advice of previous council of ministers till the new COM assumes office.

If the Lok Sabha is to be dissolved before the full term of five years, then a formal order by the President to this effect is essential and the dissolution does not take place automatically as in the case of the completion of five years. Thus the Election Commission can issue a Notification on the

constitution of the next Lok Sabha only when the President dissolves the present House. While this rule is inviolable, there have been incidents in the past, (1952 and 1957), when even after the elections, the Lok Sabha was not dissolved and the sitting members of those Houses attended "lame-duck"

sessions.

Under Article 75(3) of the Constitution, the Council of Ministers is collectively responsible to the Lok Sabha. By a vote of no confidence, the Lok Sabha can bring down a government. Dissolution at a theoretical level, does not subject the Lok Sabha to the wishes of the Government but to the wishes of the electorate. In practice, however, a person who leads a disciplined party having a comfortable majority in the Lok Sabha can become a very powerful Prime Minister and coupled with a weak President at the helm of the affairs of the executive, may very easily secure such a dissolution."

Composition and Functions of Parliament of India

The Indian Parliament, a bicameral legislature, comprises the President, the Rajya Sabha (Council of States), and the Lok Sabha (House of the People), with the primary functions being law-making, financial control, and oversight of the executive.

Composition of Parliament of India

1. President:

The President is an integral part of the Parliament, though not a member of either house, and is the head of state.

2. Rajya Sabha (Council of States):

Represents the states and union territories.
Maximum strength is 250, with 238 members representing states and union territories and 12 nominated by the President.
It is a permanent body and is not subject to dissolution; one-third of its members retire every two years.

3. Lok Sabha (House of the People):

Represents the people of India.
Its maximum strength is 552.
Elected directly by the people.

Functions of Parliament of India

1. Legislative Functions:

The Parliament makes laws for the whole of India.
All legislative proposals are brought before Parliament in the form of a bill.
A bill must be passed by both houses and assented to by the President to become an act of Parliament.
Money bills must originate in the Lok Sabha.

2. Financial Functions:

The Parliament approves and oversees the revenues and expenditures proposed by the government.
The budget of the previous year and the appropriation bill are presented in the Lok Sabha by the Finance Minister.

3. Oversight of the Executive:

The Parliament can question the government on its policies and actions.
The Parliament can impeach the President, the Vice-President, the judges of the Supreme Court and the High Court.
International Relations:
The Parliament ratifies treaties and approves agreements with other nations.
It monitors the government's foreign policy decisions.

4. Constitutional Amendments:

Parliament has the power to modify the Constitution of India.
Any type of changes in the constitution, both houses of the parliament have the same authorities.

Distribution of law-making powers between the Union and States

The Indian Constitution distributes law-making powers between the Union and States using three lists (Union, State, and Concurrent), with the Union Parliament having exclusive power on the Union List and both Union and State legislatures on the Concurrent List, while States have exclusive power on the State List. In case of conflicts, Union laws on the Concurrent List prevail, and the Union has greater power, especially in matters of national interest.

1. Distribution of Legislative Powers:

The Constitution outlines the distribution of legislative powers between the Union and the States in the Seventh Schedule, which contains three lists:

Union List (List I): This list contains subjects of national importance, where the Union Parliament has exclusive power to legislate. Examples include defense, foreign affairs, currency, and banking.

State List (List II): This list contains subjects of state importance, where the State legislatures have exclusive power to legislate. Examples include police, local government, trade, and agriculture.

Concurrent List (List III): This list contains subjects of common interest, where both the Union Parliament and State legislatures have the power to legislate. Examples include criminal law, civil procedure, education, and economic planning.

Residuary Powers:

The Constitution vests residuary powers (powers not specifically mentioned in any of the three lists) with the Union government.

2. Resolving Conflicts:

(a) Concurrent List Conflicts:

If a conflict arises between a law made by the Union Parliament and a law made by a State legislature on a subject in the Concurrent List, the Union law prevails.

State Law on Concurrent List:

However, if a State law on a subject in the Concurrent List has been reserved for the consideration of the President and received his consent before the Union law on the same subject, the State law will prevail.

(b) National Interest:

In matters of national interest, the Union Parliament can legislate on subjects in the State List with a two-thirds majority.

(c) Emergency:

During a proclamation of emergency, the Union Parliament can legislate on subjects in the State List.

(d) Inter-State Council:

The Inter-State Council, established under Article 263, provides a platform for Union and State representatives to discuss and resolve disputes.

(e) Supreme Court:

The Supreme Court can adjudicate disputes between the Union and States, or between States, under Article 131.

(f) Harmonious Interpretation:

The courts must, wherever possible, interpret a statute, rule, or regulation's many parts logically and sustain them rather than invalidating the entire provision.

(g) Doctrine of Territorial Nexus:

A state legislature can only make laws for its purpose. The doctrine of Territorial Nexus can be only valid if certain conditions are fulfilled.

(h) Extra-territorial laws:

The Union has the power to make even extra-territorial laws, but the State does not have the same power.

Powers, Privileges and Immunities of the Member of the Parliament

Members of Parliament in India, as outlined in Article 105 of the Constitution, enjoy certain powers, privileges, and immunities to ensure they can effectively discharge their duties without undue interference, including freedom of speech, immunity from legal proceedings for statements made in Parliament, and protection from arrest during certain periods.

Powers of a Member of Parliament:

Legislative Powers:

Participate in debates in the parliament
Question the government on matters of public importance.
Initiate legislation in the form of bills and motions.
Oversee government spending to have a control over it.

Representative Powers:

Represent the interests and aspirations of their constituencies.
Advocate for policies and programs that benefit their constituents.

Other Powers:

Participate in parliamentary committees that investigate specific issues or draft legislation.
Participate in Elections.

Parliamentary Privileges and Immunities

Parliamentary privileges and immunities refer to the special rights, freedoms, and exemptions granted to members of Parliament (MPs) and members of state legislatures in India to enable them to perform their duties efficiently and without interference.

These privileges ensure the independence, dignity, and effective functioning of legislative institutions in a democratic framework.

Sources of Parliamentary Privileges:

Constitution of India: Articles 105, 122, 194 and 212 has provisions for various privileges for the MPs which include freedom of speech, immunity from legal proceedings amongst many others.
Parliamentary Conventions (based on British parliamentary practices as of 1947).
Statutory Laws (laws enacted by Parliament).
Rules of Procedure and Conduct of Business (Lok Sabha and Rajya Sabha).
Judicial Interpretations (Supreme Court and High Court rulings).

Parliamentary Privileges Enjoyed by MPs

Freedom of Speech: Members have the right to freely express themselves in Parliament (Article 105(1)).
Immunity from Legal Proceedings: Members are protected from court action for anything said or any vote cast in Parliament or its committees (Article 105(2)).
Protection for Publications: No court proceedings can be initiated against individuals for publishing reports, papers, votes, or proceedings authorized by Parliament (Article 105(2)).
Exemption from Judicial Inquiry: Courts cannot question the validity of parliamentary proceedings on grounds of procedural irregularities (Article 122(1)).
Freedom from Arrest: Members are exempt from arrest in civil cases during sessions, as well as 40 days before and after the session (Section 135A, Code of Civil Procedure, 1908).

Article 356 : Proclamation of Emergency and Imposition of President's Rule

The President’s Rule (Article 356), also known as the Governor’s Rule, refers to a period when the constitutional machinery in a State has failed, and the State government is unable to function in accordance with the provisions of the Constitution. When the President of India proclaims an emergency under Article 356, the state government is suspended, and the central government takes over the administration, with the state legislative assembly either dissolved or suspended.

Constitutional Provisions Related to President’s Rule

Article 355 to Article 357 in Part XVIII and Article 365 in Part XIX of the Indian Constitution are related to the President’s Rule. The Articles with subject matters are explained below:

Article 355: Duty of the Union to protect States against external aggression and internal disturbance

Article 356: Provisions in case of failure of Constitutional Machinery in States

Article 357: Exercise of legislative powers under proclamation issued under Article 356

Article 365: Effect of failure to comply with, or to give effect to, directions given by the Union.

Grounds of Imposition of President’s Rule

1. As per Article 355, the Indian Constitution imposes a duty on the Centre to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.

2. It is this duty in the performance of which the Centre takes over the government of a State under Article 356 in case of failure of Constitutional Machinery in the State.

3. The President’s Rule can be proclaimed under Article 356 on two grounds:

4. Provisions under Article 356, and

5. Provisions under Article 365.

Effects of Proclamation of Emergency (President's Rule) under Article 356

1. The state government, including the Council of Ministers and the Chief Minister, is effectively suspended, and the state legislative assembly is either dissolved or suspended.

2. The central government takes over the administration of the state, exercising its powers through the Governor, who is appointed by the President.

3. Parliament gains the power to legislate on matters within the state list, which are usually reserved for the state legislature.

4. The state legislative assembly is either dissolved or prorogued, meaning it is adjourned indefinitely, and a new election is required after the President's Rule is lifted.

5. The executive authority of the state is transferred to the Central Government, which exercises its powers through the Governor of the state.

6. The Council of Ministers is dissolved, and the office of the Chief Minister is vacated.

7. The Union Government directly rules over the state or the union territory.

Duration of President's Rule:

The President's Rule initially lasts for six months, but can be extended for further periods, with the approval of both houses of Parliament, up to a maximum of three years.

Judiciary's Independence:

The High Court continues to function independently during the President's Rule.

Decided case references

1. State of Rajasthan v. Union of India (1977): The Supreme Court upheld the Centre’s broad discretion under Article 365 to impose President’s Rule.

The Supreme Court ruled that judicial review is limited, reinforcing the unitary bias in Indian federalism and allowing the dismissal of State governments for constitutional non-compliance.

2. S.R. Bommai Case (1994): The S.R. Bommai vs. Union of India (1994) judgment set important limits on the use of Article 356.

The court ruled that the President's Rule is conditional, not absolute, and is subject to judicial review.

The Court emphasized that Article 356 should only be invoked as a last resort and not for political purposes.

The Court also ruled that the President cannot dissolve a state's assembly without Parliament's approval and must first issue a warning to the state government.

The Supreme Court ruled that a government’s majority must be tested on the floor of the House before recommending President’s Rule.

3. Rameshwar Prasad Case (2006): The Supreme Court held that the dissolution of the Bihar Legislative Assembly under President's Rule was unconstitutional.

It emphasized judicial review of such decisions, reinforcing that President’s Rule should only be used for genuine breakdowns in governance, not political reasons.

Doctrine of Territorial Nexus

The Doctrine of Territorial Nexus, rooted in Article 245 of the Indian Constitution, allows state legislatures to make laws with extra-territorial effects if a real and substantial connection exists between the state and the subject matter of the legislation.

Salient Features of Doctrine of Territorial Nexus

As per this doctrine, the State’s legislature may make laws for the entire state or for any part of it.
The state legislature cannot adopt extraterritorial legislation unless there is a significant connection or nexus between the state and the object.
This doctrine governs the taxation of non-residents in India.

Landmark Case Laws of Doctrine of Territorial Nexus

1. In A.H. Wadia v. Income Tax Commissioner (1948), the Bombay High Court held that a question of extraterritoriality of enactment can never be raised against a Supreme Legislative Authority on the grounds of questioning its validity.

2. In State of Bombay v. RMDC (1952), the Supreme Court held that there existed a sufficient Territorial Nexus to enable the Bombay Legislature to tax the respondent as all the activities which the competitor is ordinarily expected to undertake took place mostly within Bombay.

Doctrine of Pleasure

Doctrine of Pleasure of the President of India

The "Doctrine of Pleasure" in the Indian context, rooted in English common law, means that civil servants, members of the Defence Services, or the Civil Services of the Union, or All-India Services hold office during the pleasure of the President. This implies the President can terminate their services at any time without prior notice or a specific reason.

Constitutional Provisions in Relation to Doctrine of Pleasure?

1. As per Article 155 of the Constitution of India, 1950 (COI), the Governor of a State is appointed by the President and holds the office during the pleasure of the President.

2. Article 310 states that the civil servants (members of the Defence Services, Civil Services, All-India Services or persons holding military posts or civil posts under the Centre/State) hold office at the pleasure of the President or the Governor as the case may be.

Constitutional position of Prime Minister of India

The Prime Minister of India, as per the Constitution, is the head of the government, appointed by the President, and is the leader of the Council of Ministers, which is collectively responsible to the Lok Sabha.

Appointment:

The Prime Minister is appointed by the President of India, typically the leader of the party or coalition that holds a majority in the Lok Sabha (the lower house of Parliament).

Head of the Council of Ministers:

The Prime Minister heads the Council of Ministers, which is responsible for advising and assisting the President in the exercise of their functions.

Collective Responsibility:

The Council of Ministers, including the Prime Minister, is collectively responsible to the Lok Sabha, meaning that the government can be forced to resign if it loses the confidence of the majority in the Lok Sabha.

Constitutional Provisions:

1. Article 74(1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President.

2. Article 75(1): The Prime Minister shall be appointed by the President, and the other ministers shall be appointed by the President on the advice of the Prime Minister.

3. Article 75(3): The Council of Ministers shall be collectively responsible to the Lok Sabha.

Doctrine of Vicarious Liability

The doctrine of vicarious liability, also known as imputed liability, holds one person responsible for the actions of another due to a specific relationship between them, such as employer-employee or principal-agent, even if the first person didn't directly cause the harm.

Definition:

Vicarious liability is a legal principle where a person (the principal) is held liable for the wrongful acts of another person (the agent or employee) based on the relationship between them.

Key Relationships:

This doctrine commonly applies in relationships like employer-employee, where an employer can be held liable for the actions of their employees, or principal-agent, where a principal can be held liable for the actions of their agent.

Basis of Liability:

The principle behind vicarious liability is that the principal has the right, ability, or duty to control the actions of the agent or employee, and therefore should be held responsible for their actions within the scope of that control.

Examples:

An employer might be held vicariously liable for an employee's negligence that causes injury to a third party while the employee is working.

A company can be held liable for the actions of its directors, as directors are the ones who act on behalf of the company.

Elements of Vicarious Liability:

Wrongful Act: The agent or employee must have committed a wrongful act.

Scope of Employment/Agency: The agent or employee must have been acting within the scope of their employment or agency.

Control: The principal must have had the ability to control the agent or employee.

Distinction from Strict Liability:

While both vicarious liability and strict liability are forms of liability that don't require proof of fault, vicarious liability is based on the relationship between the parties, whereas strict liability is imposed regardless of the relationship.

"Respondeat Superior":

The doctrine of vicarious liability is closely related to the Latin phrase "respondeat superior," which means "let the superior respond" and refers to the employer's responsibility for the actions of their employees.

Case References

1. Pushpabai Purshottam Udeshi & Ors vs. Ranjit Ginning & Pressing (1977)

The owner of a company was held vicariously liable because his servant committed an accident while driving on company business.

2. Sitaram Motilal Kalal vs. Santanuprasad Jaishankar Bhatt (1966)

An owner was held liable for injuries caused by a person who was learning to drive his taxi, even though the owner was not present at the time of the accident.

Modes of acquisition of Possession

The primary modes of acquiring possession are by taking (occupation), delivery, and operation of law. Taking involves acquiring possession of a thing without a previous possessor or against their will, while delivery is a voluntary transfer of possession from one person to another. Operation of law refers to possession acquired through legal processes or events.

Taking (Occupation):

This involves acquiring possession of a thing without a previous possessor or against their will.

It can be:

Original: When the thing being taken control of had no previous possessor (e.g., finding abandoned property).

Derivative: When a person occupies an object that has a possessor, but against the possessor's will, which is usually a wrongful act.

Delivery:

This is the voluntary transfer of possession from one person to another.

It can be:

Actual delivery: Physically handing over the object.

Constructive delivery: Transferring possession even without a change in physical custody of the goods.

Operation of Law:

Possession is acquired through legal processes or events, such as inheritance, prescription, or court orders.

For example, inheriting property from a deceased person is an acquisition of possession by operation of law.

State

In jurisprudence, a "state" refers to a political entity with a defined territory, population, government, and sovereignty, which is the ultimate authority within its borders.

Here's a more detailed explanation:

Definition:

A state is a political organization that regulates society and the population within a definite territory.

Essential Elements:

Population: A group of people residing within the territory.

Territory: A defined geographical area under the state's jurisdiction.

Government: The political authority that makes and enforces laws.

Sovereignty: The supreme power or authority of the state to govern itself and its territory, free from external control.

Functions of the State:

Establishment of Order and Security: The state's primary function is to maintain order and security within its territory.

Enforcement of Laws: The state has the power to make and enforce laws, ensuring compliance by its citizens.

Types of States:

Unitary State: A state where all power is concentrated in a central government.

Federal State: A state where power is divided between a central government and regional governments (states).

Sovereignty:

Internal Sovereignty: The state's supreme authority within its own territory.

External Sovereignty: The state's independence from external control.

Jurisprudence and the State:

1. Jurisprudence, the study of law, examines the nature, purpose, and function of the state and its relationship to law.

2. Jurisprudence explores different theories about the origin and justification of the state.

Examples:

1. The United States is a federal state with a central government and state governments.

2. India is a unitary state with a central government that has the ultimate authority.

Duty

In jurisprudence, a "duty" refers to a legal obligation to act or refrain from acting, with a corresponding right vested in another, and the breach of which is a wrong, enforced by the state.

Definition:

A duty, in a legal context, is an obligation imposed by law or contract, requiring an individual to conform their actions to a specific standard.

Examples:

Legal Duties: Paying taxes, refraining from violence, following traffic laws, and fulfilling contractual obligations are examples of legal duties.

Moral Duties: While moral duties exist, they are not legally enforceable.

Ownership - Meaning, Definition and Kinds

Ownership

Meaning of Ownership

Ownership is the legal right to use, possess , and give away a thing. Ownership can be tangible such as personal property and land, or it can be of intangible things such as intellectual property rights.

Definition of Ownership

In jurisprudence, ownership is a legal relationship between a person and a property, recognized and protected by law, granting the owner the right to possess, use, dispose of, and even destroy the object, essentially representing the highest level of interest in that property.

Key Definitions of Ownership

Holland: Defines ownership as "a plenary control over an object".

Austin: Describes ownership as "a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration".

Black's Law Dictionary: Defines ownership as "a set of rights to use and enjoy the property, including the right to transmit it to others".

Essential Elements of Ownership

In jurisprudence, the essentials of ownership revolve around the rights to possess, use, manage, and transfer a property, as well as the right to exclude others and enjoy the benefits derived from it.

Right to Possess: The owner has the exclusive right to hold and control the property.

Right to Use: The owner can utilize the property as they see fit, within legal limits.

Right to Manage: The owner has the authority to decide how the property is used and managed.

Right to Alienate/Dispose: The owner can transfer ownership or dispose of the property to others.

Right to Income/Benefits: The owner is entitled to any income or benefits generated by the property.

Right to Exclude: The owner can prevent others from interfering with their ownership or use of the property.

Indefinite Duration: Ownership is generally permanent unless voluntarily transferred or legally revoked.

Absolute Right: Ownership confers total legal control over an asset, including the right to use or modify it.

Transferability: Ownership can be transferred through sale, inheritance, or gift.

Kinds of Ownership

Under jurisprudence, ownership can be categorized into various kinds, including corporeal and incorporeal, sole and co-ownership, legal and equitable, vested and contingent, and trust and beneficial ownership.

1. Corporeal vs. Incorporeal Ownership:
Corporeal ownership:
Refers to ownership of tangible, physical objects, like a house, land, or machinery.
Incorporeal ownership:
Relates to ownership of intangible rights, such as copyrights, patents, trademarks, or the right of way.

2. Sole vs. Co-ownership:
Sole ownership: Occurs when ownership is vested in a single person.
Co-ownership: Happens when ownership is shared among multiple individuals, like in a partnership or tenancy in common.

3. Legal vs. Equitable Ownership:
Legal ownership: Refers to the formal or title ownership, as recognized by law.
Equitable ownership: Represents the beneficial interest or right to enjoyment of the property, even if the legal title is held by someone else.

4. Vested vs. Contingent Ownership:
Vested ownership:
The ownership right is complete and immediate, with no conditions or contingencies.
Contingent ownership:
The ownership right is dependent on the fulfillment of a condition or event in the future.

5. Trust and Beneficial Ownership:
Trust ownership:
A legal arrangement where one party (the trustee) holds assets for the benefit of another party (the beneficiary).
Beneficial ownership:
The right to enjoy the benefits of the property, even if the legal title is held by someone else (the trustee).

Independence of Judiciary

Judicial independence ensures the judiciary operates free from undue influence or control by other branches of government or external forces, allowing judges to make impartial decisions based on law and facts.

Definition:

Judicial independence means the judiciary, including individual judges and the court system as a whole, is free from external pressures or influences, particularly from the executive and legislative branches.

Importance:

Upholding the Rule of Law: An independent judiciary is crucial for ensuring that laws are applied fairly and impartially, and that everyone is subject to the law, regardless of their position or power.
Protecting Citizens' Rights: An independent judiciary can safeguard citizens' rights by acting as a check on the power of the government and other actors.
Maintaining Public Trust: Public confidence in the justice system is essential, and this is undermined when the judiciary is perceived as being under the influence of other branches of government or external forces.

Key Elements:

Security of Tenure: Judges should have secure tenure, meaning they cannot be removed from office for political reasons or for expressing unpopular opinions.
Financial Autonomy: The judiciary should have control over its budget and resources, free from undue interference from the executive branch.
Judicial Review: The power of judicial review, where the judiciary can review the constitutionality of laws and actions of other branches of government, is a key element of judicial independence.
Impartiality: Judges must be impartial and free from bias or prejudice when making decisions.
Freedom from External Pressure: Judges should be free from undue influence or pressure from any source, including the media, political parties, or powerful individuals.

Examples of Threats to Judicial Independence:

Political interference in judicial appointments or transfers.
Attempts to influence judicial decisions through intimidation or coercion.
Restrictions on the judiciary's ability to exercise judicial review.
Lack of financial resources or resources to carry out their duties.

Constitutional Protection for Independence of Judiciary

The Indian Constitution ensures judicial independence through provisions like security of tenure for judges, fixed service conditions, removal only by impeachment, and judicial review powers, preventing undue influence from the legislature or executive.

Separation of Powers:

The Constitution establishes a separation of powers among the legislature, executive, and judiciary, ensuring each branch operates independently.

Security of Tenure:

Judges of the Supreme Court and High Courts enjoy security of tenure, meaning they cannot be removed easily, except through a complex impeachment process.

This is enshrined in Articles 124 and 217 respectively.

Fixed Service Conditions:

The salaries, allowances, and other service conditions of judges are fixed and cannot be altered to their disadvantage, preventing financial coercion.

This is guaranteed under Articles 125 and 221.

Removal Only by Impeachment:

Judges can be removed only through a parliamentary impeachment process, not by executive whim.

This is detailed in Articles 124(4) and 217(1)(b).

Power of Judicial Review:

Courts have the power of judicial review, allowing them to examine the constitutionality of laws and actions of the government.

This is enshrined in Articles 32 and 226.

No Discussion in Legislature:

The Parliament cannot discuss the conduct of judges, except during impeachment proceedings.

This is outlined in Article 121.

Contempt Powers:

Courts have the power to punish for contempt, ensuring compliance with their authority.

This is outlined in Articles 129 and 215.

Case References

1. S.P. Gupta v. Union of India (1981) (The First Judges Case):

This case addressed the issue of judicial appointments and transfers, particularly the role of the executive in these processes.
The court ruled that the executive's power in these matters should be limited, and that the judiciary should have a significant say in its own composition.
It established that the independence of the judiciary is a fundamental aspect of the Constitution.

2. Supreme Court Advocates-on-Record Association v. Union of India (1993) (The Second Judges Case):

This case further solidified the judiciary's independence by emphasizing the need for a collegial system for judicial appointments.
The court held that the independence of the judiciary is necessary for democracy to function effectively.
It stressed that the judiciary should be free from external pressures or influences, particularly from the executive and legislature.

3. The Third Judges Case (1998):

The Supreme Court, in this case, reiterated the principles laid down in the Second Judges Case.
It further clarified the role of the Chief Justice of India in the appointment and transfer of judges.