Unit 6 :- 

 

6.1 Trade, Commerce and Intercourse

6.2 Services under the Constitution,

6.2.1 Doctrine of Pleasure (Article 310)

6.2.2 Protection against arbitrary removal,

dismissal or reduction in rank (Article 311)

6.2.3 Exceptions to Article 311

6.3 Panchayats, Municipalities And Co-Operative

Societies (Articles 243-243ZT)

6.3.1 Panchayati Raj system 73rd and 74th

Amendment

6.4 Elections (Articles 324-329A )

6.4.1 Function Of Election Commission

6.4.2 Power Of Parliament And State Legislature

6.4.3 To Make Law With Regard To Election Law

6.4.4 Right To Vote And Eligibility To Make Election

6.4.5 Provisions Relating To Legislature

6.4.6 Courts Not To Interfere In Election Matters

 

Unit 6: Trade, Services, Local Govt & Elections

6.1 Trade, Commerce and Intercourse

(Articles 301-307)

Introduction & Definition

To ensure the economic unity of India, the Constitution guarantees the free flow of trade across state borders. Article 301 is modeled on Section 92 of the Australian Constitution. It declares that trade, commerce, and intercourse throughout the territory of India shall be free.

Statutory Provisions

  • Article 301: Freedom of trade, commerce, and intercourse.
  • Article 302: Power of Parliament to impose restrictions in public interest.
  • Article 303: Restrictions on legislative powers (No discrimination between States).
  • Article 304: Restrictions on trade by State Legislatures (Taxation).

Essential Ingredients

  • “Free”: Means freedom from restrictions that directly hamper the movement of goods.
  • “Throughout the Territory”: Applies to both inter-state (between states) and intra-state (within a state) trade.
  • Regulatory vs. Restrictive: A law that merely regulates trade (e.g., traffic laws) is not a violation of Art 301. Only laws that restrict movement are violations.

Landmark Case Laws

  1. Atiabari Tea Co. Ltd. v. State of Assam (1961)
  • Facts: Assam imposed a tax on tea carried through the state via inland waterways.
  • Issue: Does a tax amount to a restriction on “free trade” under Art 301?
  • Judgment: Yes. The SC held that taxation is a restriction. If a tax directly hinders the movement of trade, it violates Article 301 unless saved by Article 304(b) (reasonable restriction with President’s sanction).
  1. Automobile Transport Ltd. v. State of Rajasthan (1962)
  • Facts: Rajasthan imposed a tax on vehicles strictly for the maintenance of roads.
  • Issue: Are “Compensatory Taxes” restrictions?
  • Judgment: Clarified Atiabari. The SC held that Compensatory Taxes (taxes collected to provide a specific facility, like roads) are not restrictions on trade but rather facilitate it. Therefore, they do not violate Article 301.

Exam-Style Conclusion

Article 301 creates an economic union, ensuring India functions as a single market. However, this freedom is not absolute; it is subject to reasonable restrictions (Art 302, 304) and compensatory taxes (Automobile Transport case) required for orderly governance.

6.2 Services under the Constitution

(6.2.1 Doctrine of Pleasure, 6.2.2 Protection, 6.2.3 Exceptions)

Introduction & Definition

Civil servants are the backbone of administration. To ensure their loyalty and efficiency, the Constitution adopts the English “Doctrine of Pleasure” but balances it with strict procedural safeguards to prevent arbitrary firing.

Statutory Provisions

  • Article 309: Recruitment and conditions of service.
  • Article 310: Doctrine of Pleasure.
  • Article 311: Dismissal, removal, or reduction in rank.

6.2.1 Doctrine of Pleasure (Article 310)

  • Concept: A civil servant holds office during the pleasure of the President (for Union) or Governor (for State).
  • Implication: Technically, they can be dismissed at any time without assigning reasons.
  • Limitation: This doctrine is controlled by Article 311 (Procedural Safeguards).

6.2.2 Protection against Arbitrary Removal (Article 311)

Article 311 provides two major shields to civil servants:

  1. No dismissal by subordinate authority: A civil servant cannot be removed by an authority subordinate to the one who appointed them.
  2. Right to be Heard (Inquiry): No dismissal/removal/reduction in rank without an inquiry where they are informed of charges and given a reasonable opportunity of being heard.

6.2.3 Exceptions to Article 311 (Where No Inquiry is Needed)

The protection of an inquiry (Art 311(2)) does not apply in three cases:

  1. Conviction: Where a person is dismissed on the ground of conduct which has led to his conviction on a criminal charge.
  2. Impracticability: Where the authority records reasons that it is not reasonably practicable to hold an inquiry.
  3. Security of State: Where the President/Governor is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry.

Landmark Case Laws

  1. Purushottam Lal Dhingra v. Union of India (1958)
  • Issue: Difference between “Termination” and “Dismissal”.
  • Judgment: The SC held that Art 311 protections apply only if the action results in “penal consequences” (punishment). Simple termination of a temporary employee is not dismissal.
  1. Union of India v. Tulsiram Patel (1985)
  • Facts: Civil servants were dismissed without inquiry for participating in a mass strike/agitation.
  • Issue: Validity of the exceptions under Art 311(2)(b).
  • Judgment: The SC upheld the dismissals. It ruled that if the situation makes an inquiry impossible (e.g., mass violence), the authority can dispense with it. The “Doctrine of Pleasure” prevails in such security/practicality cases.

Exam-Style Conclusion

The Constitution strikes a balance: Article 310 empowers the State to remove inefficient officers (Pleasure), while Article 311 protects honest officers from arbitrary removal. However, in cases of national security or criminal conviction, the State’s interest overrides the individual’s right to an inquiry.

6.3 Panchayats, Municipalities & Co-operatives

(Articles 243-243ZT)

Introduction & Definition

Originally, Village Panchayats were only a Directive Principle (Art 40). The 73rd and 74th Amendments (1992) gave them Constitutional status, creating a third tier of federalism: Local Self-Government.

6.3.1 Panchayati Raj System (73rd Amendment)

  • Three-Tier Structure (Art 243B):
    • Village Level: Gram Panchayat.
    • Intermediate Level: Panchayat Samiti (Block).
    • District Level: Zila Parishad.
  • Direct Elections (Art 243C): Seats filled by direct election.
  • Reservation (Art 243D):
    • SC/ST: In proportion to population.
    • Women: Not less than 1/3rd of total seats.
  • Duration (Art 243E): 5 years fixed tenure. If dissolved, elections must be held within 6 months.
  • State Election Commission (Art 243K): Conducts these elections (Not the Election Commission of India).

74th Amendment (Municipalities)

  • Similar structure for Urban areas: Nagar Panchayat (transition), Municipal Council (small town), Municipal Corporation (large city).
  • District Planning Committees (Art 243ZD) created to consolidate plans from Panchayats and Municipalities.

Landmark Case Laws

  1. Javed v. State of Haryana (2003)
  • Facts: Haryana law disqualified persons with more than two children from contesting Panchayat elections.
  • Issue: Does this violate Article 14 (Equality) or Article 21 (Liberty)?
  • Judgment: The SC upheld the law. It ruled that the right to contest an election is a statutory right, not a Fundamental Right. The “Two-Child Norm” is a valid policy measure for population control.

Exam-Style Conclusion

The 73rd and 74th Amendments transformed Indian federalism from a two-tier to a three-tier system. By mandating regular elections, finance commissions, and reservations for women/SC/STs, these provisions ensured that democracy trickles down to the grassroots level.

6.4 Elections

(Articles 324-329A)

Introduction & Definition

Free and fair elections are part of the Basic Structure of the Constitution. Part XV (Arts 324-329) establishes an independent Election Commission (EC) to ensure this.

Statutory Provisions

  • Article 324: Superintendence, direction, and control of elections vested in the EC.
  • Article 326: Universal Adult Suffrage.
  • Article 329: Bar to interference by courts in electoral matters.

6.4.1 Function of Election Commission (Art 324)

  • Preparing Electoral Rolls.
  • Conducting elections to Parliament, State Legislatures, President, and Vice-President.
  • Granting recognition and symbols to political parties.
  • Enforcing the Model Code of Conduct.

6.4.2 & 6.4.3 Power to Make Election Laws

  • Parliament (Art 327): Can make laws regarding all matters relating to elections (e.g., Delimitation, Rolls). Example: Representation of the People Act (RPA), 1950 & 1951.
  • State Legislature (Art 328): Can make laws only if Parliament has not made provision for that specific aspect.

6.4.4 Right to Vote (Art 326)

  • Universal Adult Suffrage: Every citizen above 18 years (lowered from 21 by 61st Amendment, 1988) has the right to vote.
  • Nature of Right: It is a Constitutional Right (Art 326) and a Statutory Right (RPA, 1951), but not a Fundamental Right.

6.4.6 Courts Not to Interfere (Article 329)

  • The “Non-Obstante” Clause: Notwithstanding anything in the Constitution, courts cannot interfere in electoral matters (like delimitation of constituencies).
  • Election Petition: No election can be called in question except by an Election Petition presented to such authority as provided by law, and only after the election process is over.

Landmark Case Laws

  1. T.N. Seshan v. Union of India (1995)
  • Facts: The Govt made the EC a multi-member body (1 CEC + 2 ECs) to curb the power of then CEC, T.N. Seshan. Seshan challenged this.
  • Judgment: The SC upheld the multi-member structure. It held that the CEC does not have superior status over the other Election Commissioners; they are equal in power.
  1. Mohinder Singh Gill v. Chief Election Commissioner (1978)
  • Issue: Can a High Court stay an election process under Article 226?
  • Judgment: No. Article 329(b) creates a complete bar. Once the election process (notification) starts, the judiciary must step back. Courts can only intervene after results via an Election Petition.
  1. PUCL v. Union of India (2013) – The NOTA Case
  • Judgment: The SC held that voters have a right to negative expression. It directed the EC to introduce the “None of the Above” (NOTA) button on EVMs to uphold the secrecy and freedom of the vote.

Exam-Style Conclusion

The Constitution creates a “firewall” around the election process. Article 324 gives the EC plenary powers to conduct free elections, while Article 329 prevents judicial interference during the process. This ensures that the democratic cycle of elections proceeds smoothly without legal delays.

 

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