DIRECTORATE OF LEGAL STUDIES Chennai - 600 010 5 Year B.A. B.L., Course Semester System III - Year VI - Semester SI. No Subject Subject Code Page No. 1. Constitutional Law - II FRF 3 2. Company Law FRG 33 3. Labour Law - I FRH 49 4. Clinical Course I - Professional Ethics & Professional Accounting System (Internal) FR3 58 COURSE MATERIALS Compiled by: Dr. N. Kayalvizhi M.L., Ph.D., Asst. Professor, Dr. Ambedkar Govt. Law College, Chennai - 600 104 First Compilation : Dec 2012 Second Compilation of Re-edition : Oct 2013 Third Compilation of Re-edition : Oct 2014 Fourth Compilation of Re-edition : Feb 2016 Copyright © Director of Legal Studies, Chennai - 600 010. For Your Information : The Registrar, THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY “Poompozhil”, 5, Dr. D.G.S. Dinakaran Salai, Chennai - 600 028. Telephone : (044) 2464 1212, 2464 1919, Tele - Fax : (044) 2461 7996 Email : [email protected] : [email protected] Website : http://www.tndalu.ac.in DIRECTORATE OF LEGAL STUDIES, Kilpauk, Chennai - 600 010. Telephone : (044) 2532 1394 Email : [email protected] Website : www.tndls.ac.in Dr. AMBEDKAR GOVERNMENT LAW COLLEGE, CHENNAI - 600 104. Telephone : (044) 2534 0907 Email : [email protected] Website : www.draglc.ac.in GOVERNMENT LAW COLLEGE, MADURAI - 625 020. Telephone : (0452) 253 3996 Email : [email protected] Website : www.glcmadurai.ac.in GOVERNMENT LAW COLLEGE, TIRUCHIRAPALLI - 620 023. Telephone : (0431) 242 0324 Email : [email protected] Website : www.glctry.ac.in GOVERNMENT LAW COLLEGE, COIMBATORE - 641 046. Telephone : (0422) 242 2454 Email : [email protected] Website : www.glccbe.ac.in GOVERNMENT LAW COLLEGE, TIRUNELVELI - 627 011. Telephone : (0462) 257 8382 Email : [email protected] Website : www.glctvl.ac.in GOVERNMENT LAW COLLEGE, CHENGALPATTU - 603 001. Telephone : (044) 2742 9798 Email : [email protected] Website : www.glccgl.ac.in GOVERNMENT LAW COLLEGE, VELLORE - 632 006. Telephone : (0416) 224 1744 Email : [email protected] Website : www.glcvellore.ac.in Printed at : ABNA TRADERS, Chennai - 45, Cell : 98400 16816. Email : [email protected] 1. CONSTITUTIONAL LAW - II The President of India is the head of state of the Republic of India. The President is the formal head of the legislature, executive and judiciary branches of Indian Democracy and is the commander-in-chief of the Indian Armed Forces. The powers to pardon and clemency vest with the President of India The President is elected, from a group of nominees, by the elected members of the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures (Vidhan Sabhas), and serves for a term of five years Historically, ruling party (majority in the Lok Sabha) nominees have been elected and run largely uncontested. Incumbent presidents are permitted to stand for re-election. A formula is used to allocate votes so there is a balance between the population of each state and the number of votes assembly members from a state can cast, and to give an equal balance between State Assembly members and National parliament members. If no candidate receives a majority of votes, then there is a system by which losing candidates are eliminated from the contest and their votes are transferred to other candidates, until one gains a majority. The Vice-President is elected by a direct vote of all members (elected and nominated) of the Lok Sabha and Rajya Sabha. Although Article 53 of the Constitution of India states that the President can exercise his or her powers directly, with few exceptions, all of the authorities vested in the President are in practice exercised by the Council of Ministers, headed by the Prime Minister POWERS AND DUTIES Legislative The President summons both the Houses (the Lok Sabha and the Rajya Sabha) of the Parliament and prorogues them. He or she can dissolve the Lok Sabha. These powers are formal, and by convention, the President uses these powers according to the advice of the Council of Ministers headed by the Prime Minister. The President inaugurates the Parliament by addressing it after the general elections and also at the beginning of the first session each year. Presidential address on these occasions is generally meant to outline the new policies of the government. All bills passed by the Parliament can become laws only after receiving the assent of the President. The President can return a bill to the Parliament, if it is not a money bill or a Constitutional amendment bill, for reconsideration. When after reconsideration, the bill is passed and presented to the President, with or without amendments, President is obliged to assent to it. The President can also withhold his assent to the bill thereby exercising pocket veto. When both Houses of the Parliament are not in session and if government feels the need for immediate action, President can promulgate ordinances which have the same force and effect as laws passed by Parliament. These are in the nature of interim or temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid for no more than six weeks from the date the Parliament is convened unless approved by it earlier. 3 CONSTITUTIONAL LAW - II Executive powers The Indian Constitution, vests in the President of India, all the executive powers of the Central Government. The President appoints the Prime Minister, the person most likely to command the support of the majority in the Lok Sabha (usually the leader of the majority party or coalition). The President then appoints the other members of the Council of Ministers, distributing portfolios to them on the advice of the Prime Minister. The Council of Ministers remains in power during the ‘pleasure’ of the President. In practice, however, the Council of Ministers must win the support of the Lok Sabha. If a President were to dismiss the Council of Ministers on his or her own initiative, it might trigger a Constitutional crisis. Thus, in practice, the Council of Ministers cannot be dismissed as long as it commands the support of a majority in the Lok Sabha. The President is responsible for making a wide variety of appointments. These include • Governors of States • The Chief Justice, other judges of the Supreme Court and High Courts of India • The Attorney General of India • The Comptroller and Auditor General • The Chief Election Commissioner and other Election Commissioners • The Chairman and other Members of the Union Public Service Commission • Ambassadors and High Commissioners to other countries The President also receives the credentials of Ambassadors and High Commissioners from other countries. The President is the Commander in Chief of the Indian Armed Forces. The President of India can grant a pardon to or reduce the sentence of a convicted person for one time, particularly in cases involving punishment of death. The decisions involving pardoning and other rights by the President are independent of the opinion of the Prime Minister or the Lok Sabha majority. In most other cases, however, the President exercises his or her executive powers on the advice of the Prime Minister and the cabinet. Financial powers All money bills originate in Parliament, but only if the President recommends it. He or she causes the Annual Budget and supplementary Budget before Parliament. No money bill can be introduced in Parliament without his or her assent. The President appoints a finance commission every five years. Withdrawal from the contingency fund of India is done after the permission of President. Judicial powers The President appoints the Chief Justice of the Union Judiciary and other judges on the advice of the Chief Justice. He/she dismisses the judges if and only if the two Houses of the Parliament pass resolutions to that effect by two-thirds majority of the members present. If they consider a question of law or a matter of public importance has arisen they can ask for the advisory opinion of the Supreme Court. They mayor may not accept that opinion. He/she has the right to grant pardon, to suspend, remit or commute the death sentence of any person. He/she enjoys the judicial immunity: • No criminal proceedings can be initiated against him/her during his term in office. • He/She is not answerable for the exercise of his/her duties. 4 CONSTITUTIONAL LAW - II Basic terminologies used: 1. Pardon: Completely absolves the guilt of the offender 2. Reprieve: Temporary suspension of the sentence 3. Respite: Awarding a lesser sentence on special ground 4. Remission: Reducing the amount of sentence without changing its character 5. Commutation: Substitution of one form a punishment for another form which is of a lighter character Diplomatic powers All international treaties and agreements are negotiated and concluded on behalf of the President. However, in practice, such negotiations are usually carried out by the Prime Minister along with his Cabinet (especially the Foreign Minister). Also, such treaties are subject to the approval of the Parliament. The President represents India in international forums and affairs where such a function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the officers from the Indian Foreign Service. The President is the first citizen of the country. Military powers The President is the supreme commander of the defence forces of India. The President can declare war or conclude peace subject to the approval of parliament only under the decision of the Council of the Armed Forces Chief staffs, Military Secretary and President’s Officer (Deputy Military Secretary). All important treaties and contracts are made in president’s name. Pardoning Powers As mentioned in Article 72 of Indian Constitution, the President is empowered with the powers to grant pardons in the following situations: • Punishment is for offence against Union Law • Punishment is by a Military Court • Sentence is a death sentence Emergency powers The President can declare three types of emergencies: national, state and financial.