This web page contains the summary of Constitutional Law 2 notes of the 5 Year BALLB Hons course in Law Schools. These notes briefly discuss the constitutional provisions pertaining to the federal structure of the Union and States in India.
To access the constitutional law 1 notes, click here.
Focus- Structures, and organs of government
Broad Topics-Union and Judiciary
1. Historical background
2. Analysis of relationship between Union and State Judiciary
3. Concepts
4. Case-laws
5. Conclusion
Characteristics of Constitution–
1. Supreme Law of the land
2. Defines structures of governance
3. Defines powers and liabilities of different organs of state-
Executive
Articles 52-78
Articles 123 and 213 (Ordinance making power)
Articles 153-167
Legislature
Articles 105 and 194 (Powers and Privileges)
Articles 79-122
Articles 168-212
Judiciary
Articles 124-213
Articles 214-237
Articles 32 and 216
We shall also deal with-
1. Parliamentary system
2. Cabinet
3. Collective responsibility
4. Rules of Business
5. Law making process
6. Fiscal relationships (GST)
7. Doctrine of pleasure (Articles 309-311)
8. Emergency Provisions
9. Amendment procedures
10. Difference between States and UTs (Earlier Part A, B and C states)
11. Scheduled and Tribal areas
12. Election
13. Panchayats and Municipalities
14. Language
15. State Liability (299-300)
16. Vicarious Liability
17. Contractual Liability
18. Tortuous Liability
19. Sovereign and Non-Sovereign functions
20. Committees and Commissions
Difference between Constitution and Constitutional Law
1. Constitution is the just the bare text.
2. Constitutional Law is the application of that text into law by making statutes in confirmation with the provisions of the constitution.
Constitutional Conventions-
Article 75- When elections are there, President has to call the party with largest number and appoint him the PM.
If no majority then single largest party.
President will take into account pre-poll and then post-poll alliance situations.
Pocket Veto– If President does not sign the bill and does not even return it.
Read Fali S Nariman article on Constitutional Conventions.
Other Constitutional adjectives
Constitutional morality enunciated in the cases of-
1. Navtej Johar case
2. Sabarimala Case
3. Tripple Talaq
Some other concepts-
Constitutional Democracy
Constitutional Validity
Constitutional Theocracy?
Constitutional Monarchy.
Article 14-Equality has been interpreted as-
1. Dignity
2. Opportunity
3. Rule of Law
4. Non-arbitrariness
5. Non-discrimination
Constitutionalism-
1. Idea that government should not have absolute powers but limited under the provisions of constitutions.
2. Separation of Power. (Montesquieu)
3. Distribution of Power (Eric Brandt)
4. Socialism- means of production and ownership should be controlled by the state. After liberalization, it has little meaning
5. Federalism
Difference between federation and confederation.
Indian federalism is amphibian (Justice Beg)
Quasi-Federal
Cooperative Federalism (Granville Austin)
Fundamental Rights summary (covered in previous semester)
FR- Part III
Enforceable under article 32 and 226.
Article 20
1. Ex-post facto law- That you cannot make an act an offense retrospectively. Cannot be punished more than the punishment prescribed in law.
2. Double Jeopardy
3. A person cannot be punished twice for the same offense.
4. Self-incrimination.
Case laws-
1. Nandini Satpathy v PL Dhani
2. Kathi Kalu Aughad v TN
Article 22
1. A person should be told the grounds of Arrest
2. Right to counsel
3. Must be produced before nearest magistrate within 24 hours of the arrest.
Exceptions-
1. Enemy Alien
2. Preventive detention
3. Not more than 3 months unless advised otherwise by the advisory board
Article 23
1. Prohibition of traffic in human beings and forced labor.
2. Begar- A person is forced to do something against wishes without being paid.
Exception–
1. Public welfare (Jail etc)
2. Compulsory service for public purpose
Article 24
1. Prohibition of employment of children in factories.
PART I (Article 1-4)
Constitutional Law 2 Notes
PART V UNION
Articles 52-78
There shall be a President of India (A.52)
Confederation is voluntary and federation is involuntary.
EU, Switzerland are confederation.
Whether President is head of executive or head of union?
A.1 India that is Bharat.
Head of the Union.
A.53-Executive power of the Union to vest in President.
Power to be exercised directly or through officers subordinate to him.
Direct exercise– Appointments, Clemency, appointment of commissions
Indirectly. Exercise of power shall be regulated by law. To be read with A.74 and A.75
A.74– President to act in accordance in aid and advice of Council of Ministers.
Can ask to reconsider but only once.
A.75– PM to be appointed by Prez. And other ministers by Prez. On advice of PM. Total no. of ministers including PM to not exceed 15% of the total members of the house. The Ministers shall hold office during the pleasure of the President. (advice of PM) (Authority that appoints should have the power to remove) The Council of Ministers shall be collectively responsible to the House of the People. If one minister holds an opinion, all other have either to endorse it or keep silent.
President in India is not hereditary unlike Monarch but is elected.
He/she can be impeached on ground of violation of constitution. (S.61)
He/she can be criticized.
KM Munshi- Indian President has three powers.
1. Right to Advice
2. Right to Warn
3. Right to be consulted
Pocket Veto-when he holds the bill for indefinite time.
Prez. Gyani Zail Singh exercised Pocket Veto for the the Post-Office Bill which he thought was in violation of FR.
Difference between President and Governor
Election of President (A.54-55)
Electoral college of elected MPs and MLAs.
By 70th amendment Act 1992, elected MLAs of NCT Delhi and Pudduchery were made part of electorate. Nominated members cannot elect.
Indirect Election-Power equation; cost and time
1. Elected members of both houses of parliament
2. Elected members of state legislative assemblies and elected members of Delhi and Pondicherry (70AA 1992)
3. By proportional representation
4. By means of single transferable vote/uniformity and parity
5. By secret Ballot
6. Uniformity in the scale of representatives of different states and parity in states as a whole and Union.
Art.71-Doubts and disputes in respect of election of President to be inquired into and decided by SC of India
Presidential and Vice Presidential Elections Act 1952
50 electors as proposers and 50 electors as seconders along with 15000 as deposit
Cases Laws on Presidential Election
NB Khare v Election Commission 1957
Punjab and HP did not have state assemblies at the time of election of President. Petitioners claimed that we should wait till state assemblies are elected.
SC held that any kind of vacancy in state legislature should not affect election of President
71(4) was also added-The election of a person as President or Vice- President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.
Ram Nath v Election Commission 1957
Any dispute regarding election of president shall be decided by SC.
Terms of office-5 years (A.56)
Should there be re-election if president resigns or dies in mid-term?
Yes. New president has to be elected within 6 months.
What will happen if some state assemblies are vacant or have been dissolved.
Read 56 along with 62 and 71.
Re-election (A.57)
Qualifications A.58
1. Citizen
2. 35 Years
3. Qualified for election as a member of HoP/not if office of Profit.
4. Conditions of office A.59
Oaths A.60
Discharge of functions in contingencies. A.70
Removal by Impeachment A.61
1. For violation of constitution
2. Charge preferred by either HoP
3. Proposal of Charge-Charge-Resolution moved after 14 days notice in writing to either house
4. Signed by min 1/4th of total membership of the house
5. Other House to investigate and President right to appear and represented
6. If passed by min 2/3rd by the investigating House-charge sustained-sustained-resolution removing the president passed.
What if President does not step-down even after impeachment?
361 and 77
Filling of vacancy A.62
Pardoning Power A.72
Extent of executive power A.73
Executive Powers-
1. Co-extensive with legislative powers (77)
2. Residue of governmental functions except legislative and judicial functions
3. Determination of policy and its execution
4. Initiation of policy and its execution
5. Promotion of social and economic welfare
6. Direction of foreign policy
Carrying on supervision of general administration
Maintenance of order
Whole corpus of authority to govern-widening.
Ramjawaya Kapur v State of Punjab
Whatever is left after we deduct legislative and judicial power is executive power.
President only formal constitutional head. Real power vests in council of Ministers on whose advise President Acts.
UN Rao v Indira Gandhi
President not to exercise powers without the aid and advice of the council of ministers-mandatory functions.
Singh v State of Punjab 1974
Executive functions not personal; Personal or constitutional satisfaction of President-Satisfaction of council of ministers
Legislative Powers-
Component part of Union Executive
Nominates 12 persons (eminent in science, Art, Literature, Social Sciences) to Rajya Sabha (Art.80)
Nominates 2 Anglo-Indian community to Lok Sabha, if not adequately represented. (Art. 331)
Takes final decision reg. qualifications of members of either HoP.
Power to prorogue and summon sessions of Hop-Time and Place.
Other Powers-
1. President addresses the house after new government has taken over.
2. President addresses first session of Parliament each year.
3. Addresses the Joint-session of parliament. 108
4. When there is a deadlock in on house.
Article 87-88.
Money Bills 109- Prior recommendation of President
Finance Bill 117- Prior recommendation of President
Consolidated Fund 113
Prior recommendation to Bill-for formation/re-organisation of states (A.3)
Recommendation for imposing restrictions on Freedom of trade and commerce in State Legislatures 303.
President cannot refuse ascent the money bill.
UPSC Report to beauthenticated by president
Pardoning Power of President 72
Pardon– Completely absolves the guilt of the offender/punishment completely gone.
Reprieve– Temporary suspension of Punishment fixed by law
Respite– postponement to the future-the execution of sentence
Remission-reduction of punishment/amount of sentence w/o changing its character.
Commute-Exchange of one form of punishment of another rigorous Imprisonment/different sort of punishment.
Reasons–
1. Crime is offense against State.
2. Popular government take political steps.
3. Humanitarian government.
4. Prevent Injustice.
5. Prisoner has reformed.
6. Mercy under changed circumstances.
When mercy petition can be filed?
Articles. 72 and 171
Cases Laws-
G Krishna Goud v State of AP 1976
2 Deaths due to terrorist activities.
President refused to pardon.
Judicial review of pardoning power only in exceptional cases. Grounds which are not irrational, unreasonable, discriminatory, mala-fide, etc.
Burden is on accused.
Oral/Personal hearing is not a matter of right.
Maru Ram v UOI 1980
Should basis of pardon be made public?
It would be better if such guidelines are there.
Obiter Dicta.
Kuljeet Singh v State of Bombay 1989
SC held that pardoning power is widest residuary power, it cannot be restricted by guidelines.
Kehar Singh v Bombay 1989
Again held that pardoning power is widest residuary power, it cannot be restricted by guidelines.
Main person responsible for assassination of Indira Gandhi.
Ashok Kumar v UOI 1991
Clubbed Maru Ram and Kehar Singh. That Maru Ram is obiter. If judicial review is to be done, it has to be on the merits of the cases. Grounds of pardon should not be irrational, unreasonable, discriminatory, arbitrary or mala-fide, etc.
Burden of proof on accused.
Epuru Sudhakar v AP 2008
That order of President should not be seen as non-application of mind. Retained all grounds mentioned in Ashok Kumar.
Devender Pal S. Bhullar v NCT Delhi 2013
DPSB was a Delhi bomb blast convict 1993. President did not do anything. Ultimately pardon was rejected in 2013. SC held that when pardon has been rejected, there cannot be any review. There can be no sympathy for a terrorist.
Shatrughan Chauhan v UOI 2014
Justice Sathasivam said, that 15 death-convicts were petitioning president who did not take any action. Court said that this is inordinate delay on part of executive. Cause mental agony to convicts. Death sentence was converted to life-sentence.
Devender Pal S. Bhullar v NCT Delhi 2013
After this case, wife of Bhullar filed curative petition after the case of Shatrughan Chauhan.
Justice Sathasivam gave relief.
Sawarn Singh v UOI
President rejected the pardon granted by Governor.
If the sessions court has convicted and the matter is pending in appeal. Will mercy petition be entertained by Governor?
Yes.
Basis of Mercy Petition-
1. Humanitarian
2. Circumstantial
3. Health
4. Good Conduct
5. Aggravating and mitigating
Jessica Lal case.
Can President annul pardon granted by Governor?
Yes.
ORDINANCE MAKING POWER (Art.123)
Promulgate ordinances
For short duration
To meet unforeseen/urgent situations
Parliament not in session
Satisfied regarding the circumstances/emergency
Objective and constitutional satisfaction.
S.123 and 213
It is nothing but a law.
Constitutional Satisfaction.
6 months+6 Weeks.
DC Wadhwa v State of Bihar 1982
1. 256 Ordinances promulgated by Bihar government
2. Court held it to be a fraud of constitution. Bypassing the democratic requirements. Colourable legislation.
Can the same ordinance be promulgated again without changes?
Yes.
It’s subject to Judicial Review.
Case Laws
SKG Sugar v State of Bihar 1974
RC Cooper v UOI 1970
Bank Nationalisation case. Ordinance passed in 1961
AK Roy v UOI 1981
T Venkata Reddy v State of AP 1985
DC Wadhwa v State of Bihar 1982
Constitutional State liability in Tort and Contract case.
S.299 (Contract) and 300 (Tort)
1. Vicarious Liability-Master is vicariously liable for wrongs committed by servant during the course of the employment.
2. My driver despite my warning drives negligently and causes an accident. 3. Victim filed a case against both driver and the master. Both will be jointly and severally liable. If 100000 damage is to be paid to plaintiff, master and driver will internally decide in what ratio they will bear the expense.
4. If the contract has been formulated according to 299, only then will there be state liability and no personal liability.
CK Achutan v Kerala 1959
1. There is no need to give choice to private person when they are signing the contract with the government.
2. Government is different from ordinary people
3. Gave literal interpretation to contractual liability. 3 requirements under 299 are to be fulfilled.
4. Contract making is not statutory function but executive power being discharged.
Erusian Equipments and Chemicals v WB 1975
Govt. is not free as private individuals are so some guidelines must be there
RD Shetty v International Airport Authority 1979
1. When u giving licences, it has to be done in accordance with Article 14.
2. Government must announce the standards for allocating licences.
3. Standards must be objective, reasonable and non-discriminatory.
Common Cause v UOI
1. Allocation of petrol pumps case.
2. No unfettered discretion to public officials.
3. Public Trust Doctrine-Government holds all public property as a trust.
FCI v Kamdhenu Cattle 1993
No unfettered discretion to public officials.
Tata Cellular v UOI 1996
1. Government contracts should be very transparent
2. Illegality and Irrationality should be absent.
State of Haryana v Lalchand 1984
Under Punjab Excise Act license was granted to a person for liquor sale. Later the license was revoked.
Its statutory contract under Punjab Excise Act.
Oral Agreements not covered under 299?
TORTOUS LIABILITY 300
Government Liability in Torts Bill 1967
Common law principles.
Sovereign Immunity-King can do no wrong.
Was never applied in India even in British times.
Peninsular and Oriental Steam Navigation Company v Secretary of State 1861
A EEIC horse carriage carrying iron lost control and injured a passerby.
It was held to be a non-sovereign function and liability was imposed.
State of Rajasthan Vs. Vidyawati, AIR 1962
In this case the driver of a Government jeep, which was being used by the Collector of Udaipur, knocked down a person walking on the footpath by the side of a public road. The injured person died three days later, in the hospital. It was found by the court, as a fact, that the driver was rash and negligent in driving the jeep and that the accident was the result of such driving on his part.
Kasturi Lal Ralia Ram Jain v UOI 1965
A police constable ran away with the gold confiscated from a person to Pakistan and never came back. Damages were not allowed by court on two basis- 1. The act was done in the purported exercise of a statutory power. 2. The act was done in the exercise of a sovereign function.
Rudal Shah v State of Bihar 1983
Court ordered release of a prisoner but Jail authorities did not release him for a long time.
Chairman Railway Board v Chandrima Das
1. A Bangladeshi Women was raped in Train and Kolkata Lawyer filed a writ petition.
2. Article 21 was made available to Non-Indians as well.
3. India is a signatory to UDHR
Nilabati Bahera v State of Orissa 1992
A son of petitioner died in suspicious circumstances in Jail. Damages were allowed.
N Nagendra Rao v State of AP 1994
Revenue Officers confiscated food grains of the appellant under a statute but when unable to return all of that when the case was decided in his favour. They did not store it properly and it perished.
Maintenance of law and order is a sovereign function.
Sovereign function should inalienable.
Injuria sine Damnum– Legal Injury without damage
Damnum sine Injuria– Damage without Legal Injury
Process-
1. Prove violation of Legal Right
2. Then prove Injury
3. Then prove it was a non-Sovereign Function
Govt (Liability in Torts) Bill 1967 was introduced but could not be passed.
Armed forces cannot claim sovereign immunity in peace times.
How to convert legal right into FR?
1. By proving violation of FR
2. If able to prove violation of FR, then remedy of writ petition 32/226
3. You don’t need to prove sovereign and non-sovereign function.
4. Article 14 violated in case of contractual violation by State
Parliament=Prez+2 houses
Article 361- 2 members from Anglo-Indian community
Why Rajya-Sabha?
1. Stablising
2. Checks and balances
Articles 82 and 83-Membership of RS
Schedule 4- Rajya Sabha Members
S.3 and S.4 of RoP Act
Kuldeep Nair v UOI 2006
Nomenclature of council of states represent federal character of house.
Article 84-Qualification for members of RS
Read with S.3 pf RoP Act
RoP is importnat
Conditions for Memberships
1. Sound Mind
2. Not insolvent
3. Citizen of India
4. No office of Profit
OFFICE OF PROFIT AND DISQUALIFICATION
Art. 102(1)
1. Holds any office of Profit
2. Unsound Mind
3. Undischarged Insolvent
4. Not citizen of India
5. Disqualified by or u/any law made by Parliament
RP Act 1951
Article 102(2): Disqualified u/10th schedule (52AA 1985)
Article 103: President decides and acts according to opinion obtained from EC (Quasi-Judicial Body to investigate into allegations levied)
Only when the questioned is referred to President
Question arises as to whether a member has become subject to any of the disqualifications mentioned u/a 102
Office of Profit
1. Office– Should be permanent and substantial, exists independent of its holder.
2.Of Profit-Office capable of yielding some profit (does not matter whether actually received that profit or not)
Under Central or State Government-appointing and removing authority; payment; functions; control;
Statutory bodies not directly u/govt-Not OOP
Conflicts with duty of an elected legislator OoP
Reasons
1. Bias
2. Prejudice
3. Ingredients
Central/State government appointee
Whether Lawyer representing state can be said to be holding the office of profit?
No. Not taking salary on a regular basis
Jaya Bachhan v UOI 2006
She held office of the chairman of development council under central government but took no salary/perks. And was also the member of the RS
So there was office of central government but not receiving any salary.
Nonetheless it was held to be office of profit.
Shibu Soren v Dayanand Sahai
Chairman of Jharkhand Area Autonomous Council
Was receiving honorarium of 1000/- and other perks.
Contended that honorarium does not amount to salary
SC refused the contention.
ECI v Saka Venkata Rao 1953
A.102 and 103
A person was convicted and sentenced for 7 year imprisonment in 1942.
RPA Act came in 1951 so before-after controversy.
K Venkatachalam v K Swami Kant
Prevention of Disqualification Act 1959
Ram Krishna Hegde v State of Karnataka
Petitioner was an MLA and govt. wanted to make him the chairman of the planning commission.
CERC v UOI 2009
Disqualified before elections but elected-continue as member despite disqualification unless declaration/admission.
Joint Committee on Office of Profit
10 Members from LS and 5 members from RS
Continuous scrutiny of opposition and character of various government appointed bodies and report to both the houses
Tests–
1. What are the emoluments/allowances to membership and
2. What is the nature of functions?
3. If advisory/no influence then no disqualification on account of OoP.
Parliamentary secretaries to aid and advice ministers given cabinet status/MoS status in many states such as Goa, Punjab, Haryana, Telangana, West Bengal, Assam and Mizoram
Court generally held it as unconstitutional and contrary to the constitutional intent of limiting the size of Ministry or cabinet and holding as OoP— disqualification unless incorporated u/Parliament (Prevention of Disqualifications) Act 1959.
AAP 21 MLA disqualification case-
21 MLAs were appointed as parliamentary secretaries by APP government.
Prabhat Patel filed petition before president to disqualify MLAs for holding OoP
President sought EC opinion and disqualified them.
AAP approached HC and tried to add the post into Delhi State (Prevention of Disqualification) Act retrospectively.
Delhi HC refused to grant interim relief but asked EC to hear afresh and decide again as there was lack of communication.
ANTI-Defection Law and Schedule X
Para 3-Split-Omitted by the 91st amendment 2003
Para 4-Merger-Not less than 2/3rd members agree to merge. Its different from defection
Para 5–Exemption-No disqualification if elected as an officer, till holds office and rejoins original party.
Para 6-Decision on question of disqualification-Decision of Chairman/Speaker shall be final; Proceedings deemed to be u/a 122/212.
Kihoto Holohan case held para 6 of Schedule 10 unconstitutional on grounds that it was not ratified by more than half of state legislatures as required in such amendments.
GOVERNOR OF STATE–
A.153-154
Appointment of governor (A.155)
Terms of office-Pleasure of President.
Eyes and Ears of Central Government
S.163 (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
Comparison between 53 and 163(1), 72, 73
Governor has more discretionary power than President.
Appointment of Chairman and member of State service public service commissions.
356-State Emergency
239-
200-
Legislative Powers of Governor
- Summons the legislature of the state
- Gives assent to bills passed by state legislature
- He may reserve any bill for the consideration of President
- No money or financial bill can be introduced without his/her prior recommendation.
- He can promulgate ordinances u/a 213 but he cannot promulgate ordinance without the instructions of President in some cases.
Judicial Powers of Governor
- Pardoning power u/a 161
- But is limited to offenses against any law relating to matter where the executive power of the state extends.
Governor also has some discretionary power u/a 163
MP Special Police Establishment v State of MP 2004
PANCHAYATI AND MUNICIPALITIES
1. 73rd and 74th Amendment gave constitutional status to Panchayats and Municipalities.
2. Existed since centuries
3. PART IX
4. 243-243O
6. Schedule 11
7. Consists of certain subject on which state government has power to make law.
29 Subjects-
Social Welfare, Family Welfare
What is Panchayat?
1. Village Council
2. Mode of local self-government
3. Decentralization of Power
Exists at 3 levels-
1. Village
2. Block
3. District
Javed v State of Haryana
Educational Qualification for election in Panchayat.
Can educational qualifications be the criteria? At what level? Village level? Central Level?
Will 2 child policy stop population explosion?
No.
Loopholes and malpractices.
News regarding 2 child policy-SC rejects PIL seeking making mandatory 2 child norm in all elections.
243(I)-
243(K)-
MUNICIPALITIES
On similar lines in Municipalities
Reservations
Levels–
1. Wards
2. Metropolitan Area
Types of Municipalities-
1. Nagar Panchayat
2. Municipal Council
Municipal Corporation
Article 243R-
Article 243U-
Article 243V-
102, 191 and 361B have to be read together.
Article 361-B- If an MP or MLA is taking up a remunerative post, it would amount for disqualification.
PARLIAMENTARY PRIVILEGES
Article 105 and Article 194
1. For members, committees, Ministers, Attorney general, entitled to speak in the house
2. No civil or criminal liability for anything said or vote again.
3. Absolute immunity w.r.t to speech and voting subject to Article. 107, 121 and RoP
4. Fundamental Rights u/a 19(1)(a) and (2) and u/a 105 and 194.
5. No unparliamentary language/conduct.
Facts situation-
A reporter publishes the happenings of the house. Will he also be immune?
S.105(2)-
Reporting should be true and without malice. Substantially True.
Its qualified privilege.
Committee of Privileges (LS=15 & RS=10)
Parliament (Prevention of Publications) Act 1956
Powers, Privileges and Immunities of State Legislature, Re (1956 SC) (cases seeking Advisory opinion are referred to as Re)
Keshav Singh printed published and circulated pamphlets against CM and others outside house.
Speaker reprimanded him and sent him to jail for 7 days.
Petition u/s 491 CrPC and art. 226 to HC- released on bail-LA resolution against HC Justices, Keshav and lawyer for contempt of assembly so be arrested.
Petition to HC-FB w/0 jurisdiction, interim order to set aside.
Advice u/a 143. LA jurisdiction; contempt of LA; FB jurisdiction; outside house; lawyer.
Full bench of Judges advised against speaker.
Procedure adopted by speaker cannot exceed his jurisdiction.
If the procedure is unfair, court can review it. So limited judicial review.
Tej Kiran Jain v Sanjeev Reddy 1970 SC
Shankaracharya spoke in World Hindu Conference 1969 Patna on Untouchability. Next day some members of Bihar Assembly praised him and 6 others criticised him and used derogatory remarks against him. Followers of Shankaracharya filed a defamation case against them.
Gunupati Kesavaram Reddy v Nafisul Hasan (Blitz Editor) (1954 SC) 5J
Blitz editor Homi Dinshaw Mistry aspersions against UP LA speaker-speaker-referred to committee on Privileges. Summoned to appear-appear-did not appear-LA resolution to arrest on Breach of Privilege. Mistry arrested in Bombay-kept in Lucknow for 7 days in hotel-habeaus corpus to SC for violation of Article 22 and FRs. SC ordered release.
FR control privileges. IMP
MSM Sharma v Srikrishna Sinha (Searchlight Case) 1959 SC
Searchlight editor-MSM Sharma published expunged portions of speech-Bitterest attack on CM. LA/CoP=BoP. Why not action>
MSM Sharma writ u/a 32. Violation of art. 19(1)(a).
SC-Art. 194(3) will prevail over Art.19(1)(a); Harmonious construction, if conflict.
Action may be by house for breach of privilege, if inaccurate/garbled/expunged version of speeches, mis-reporting, mis-representation, premature publication.
Authority was given to publish only partial proceedings and not the expunged portions.
Other Privileges- (taken from UK)
Freedom from Arrest
40 days prior and 40 days after.
Right to exclude strangers
During secret session
Especially in War time session
Right to prohibit the publication of proceedings/debates
After 1886, UK allowed publication of proceedings.
Qualified privilege
Article 361A- it should be true without malice.
u/a 105(3) was amended by 44th amendment 1978
Right of house to regulate its own procedure
Rules of procedure shall be made by the house.
Right to regulate internal proceedings
Right to punish members/outsiders for contempt
Right to expel members.
These privileges started being interpreted differently by case laws.
PV Narasimha Rao v State (1998) 3:2
Bribe givers and takers for voting
Whether give bribe is illegal/unconstitutional and breach of privilege?
MP taking bribe and voting-still under privilege and cannot be disqualified u/a 105.
If they have taken bribery and have not taken, then they can be expelled. So 2 were expelled as they took money but did not vote.
Thos expelled said they no word ‘expelled’ in constitution so they cannot be expelled. If they had been disqualified they could not have become MP. art. 102 and 191 talk about disqualification.
SC said that an immunity does not mean absolute. If an MP is found taking bribe, doing criminal offence or convicted, he can be disqualified.
Raja Ram Pal v Hon’ble Speaker Lok Sabha 2007
MPs taking bribe to vote
Sting operation-live telecast-disqualified/expelled
Difference between being expelled and being disqualified
Other Privileges- (taken from UK)
Freedom from Arrest
40 days prior and 40 days after.
Right to exclude strangers
During secret session
Especially in War time session
Right to prohibit the publication of proceedings/debates
After 1886, UK allowed publication of proceedings.
Qualified privilege
Article 361A- it should be true without malice.
u/a 105(3) was amended by 44th amendment 1978
Right of house to regulate its own procedure
Rules of procedure shall be made by the house.
Right to regulate internal proceedings
Right to punish members/outsiders for contempt
Right to expel members.
These privileges started being interpreted differently by case laws.
LEGISLATIVE PROCEDURE (107-120)
Rules of Procedure for Conduct of business (CoB) in both houses.
BPST-Bureau of Parliamentary- Drafts laws and legislations.
indiacode.nic.in
Many parliamentary committees
Department related Standing Committee
Select Committees of LS/RS
Joint Committees for both houses.
Depending on the subject, membership shall be there.
As business of the houses grew, the committees and their membership also increased.
These are assisting bodies.
Types of Bills-
Ordinary Bills OB
Money Bill MB
Finance Bill FB
Financial Bill FB
Bill on Expenditure BE
Appropriation Bill (running/supply bill)
ORDINARY BILL
Can be introduced by minister, etc
Private member bill- A bill introduced by a member of the house who is not from the party in power.
Process–
Asking for the leave of the house to introduce a bill.
Concerned minister who wants to introduce the bill has to give notice to the speaker 7 days earlier. Full Friday is reserved in RS for private members and 2.5 hours in LS.
If the speaker consents, the copies shall be sent to all members prior to 3 days before the bill is introduced.
1st Reading–Introductory all members shall read the copies and give comments when the bill is introduced in the house. The will voting and will require simple majority. In case of constitutional amendment special majority.
Drafting, Notice, etc
Legislative competence to be checked. (lists)
2nd Reading- Consideration-The bill will be sent to standing committees which will take into account suggestions.
Now there are more than 31 standing committees.
General reading
Clause by clause reading.
What if there is a deadlock?
When there is no agreement over the bill.
Prez will convene a joint setting of the house.
No new clauses will be added here.
If the Lok Sabha is dissolved before the joint session notification will the bill lapse?
107(5)
If notification has been issued for joint session and then the LS got dissolved. Will joint session convene or not?
3rd Reading- Final– will require simple majority of those present and voting.
Money Bill is introduced in Lok Sabha. (To be decided by Speaker)
110-Money/Finance/Appropriation Bill (only in Lok Sabha) In RS it can be there only for 14 days. LS may agree or disagree with the suggestions of RS.
111-
No money can be taken out except by the authority of law.
Difference between Finance Bill and Financial Bill
117- Finance Bill. It’s partly money and partly ordinary bill. All money bills are financial bills but vice versa is not true.
Some nomenclatures (See BPST website)
Consolidated Fund of India CFI-
Reservoir of Funds
All revenues received by GOI is credited to CFI
u/a 266-most important account of GOI
Inflow by way of taxes like income tax, central excise, customs, non-tax revenues received by govt.
All loans raised by SG are done from this fund.
Contingent Fund-
Public Accounts-
Other receipts apart from CFI
Smaller than CFI
u/a 266(2)
Deals with the transactions related to debt and not covered u/CFI
It accounts for flows of those transactions where the govt. is merely acting as a banker.
These funds do not belong to the govt. They have to be paid back to the rightful owner. For example-provident funds, small savings, etc
Expenditures are not to be approved by the Parliament.
Provisions for how much & for what purpose to withdraw/appropriate money.
Provisions for demand for Grants (DFGs): Grants which govt. is demanding from parliament to spend in coming fiscal year.
Estimates of expenditure from CFI included in AFS
Revenue, capital expenditures, grants to Govts. Of states/UTs, loans and advances.
Generally one DFG for one Ministry/Department & more than one for larger Ministries/Department.
Estimated Expenditure: Sums required to meet expenditure charged upon the CFI (ECCFI-Non-votable items of expenditure) & sums required to meet other expenditure on revenue account from other expenditure (Demands for grants to HoP)
ECCFI-not to be submitted to the vote of Parliament, but only discussed.
Other Expenditures=Demand for grants DFGs to LS which may assent/reject/refuse/reduce any DFG
All DFGs to be made only after President’s recommendation.
Vote on Accounts-
Demands for Grants-
Annual Financial Statement-
Votes on Credit-
Supplementary Grants-
Contingent Grants-
Excess Grants-
Token Grants-
Regional Grants-
Cut Motions-
Annual Financial Statement 112– How to withdraw/appropriate money and how to spend it.
AFS comprises of 2 bills:
Finance Bill=Estimated Receipts or income. It is collection of funds.
Appropriation Bill=expenditure of government. Book of demands in case of appropriation bill.
Presented by FM& both are discussed in each HoP; amendments decided-govt. Makes changes, before passing.
Both are money bills to be laid before LS, passed by the HoP.
Article 114-Appropriation Bill (AB)-After DFGs made in LS, AB introduced for appropriation out of CFI of all money to meet grants to be made/Expenditure charged upon CFI
Authority given to the govt. to incur expenditure from & out of CFI
Voted by LS in form of Money Bill
Debate only on public importance
No amendment to AB proposed to vary amount/alter destination of any grant so made.
DFG-one DFG for one Ministry/Department generally
Estimates of expenditure from CFI
Included in AFS required to be voted in LS
Provisions wrt revenue & capital expenditures
Art. 115- Supplementary, additional or excess grants: President to recommend
Article 116-Votes on account, credit and exceptional grants: Allotting of limited sum out of CFI to execute to be spent on services/items until AB finally passed.
Votes of Credit-grants for an unexpected demand upon the resources of the government due to magnitude/indefinite character of service.
Exceptional Grants- Grant which forms no part of current service of any financial year.
Supplementary DFG: New Service not contemplated in AFS
Extra expenditure-supplementary estimate to be approved by Parliament.
Additional/Excess DFG: Money spent in excess of the amount granted;
Unexceptional/national emergency-no detail- lump-sum.
Finance Bill
Taxation proposals for ensuing year of the government introduced in LS after AFS;
Taken up for consideration & passing after AB is passed
Essential for raising revenues & includes AFS (general & Railways, DFGs, supplementary & Excess DFGs, votes on account, etc)
Financial Bill
Art. 117
Bill dealing with certain matters not strictly financial in nature; otherwise as good as ordinary bill as regards to the procedure for passing 2 things
Financial Bill cannot be introduced or moved except on the recommendation of the Prez. (except bill for reduction/abolition of tax) & Financial Bill cannot be introduced in RS.
Bill involving Expenditure
Kind of financial bill u/a 117(3) involve expenditure from CFI
This can be introduced in RS also & need the recommendation of Prez only at the time of passing/before the motion for passing is made.
Contingent Fund: Unforeseen, from CFI, prior to parliament approval.
Cut Motion:
Lack of confidence in govt.
DRSC considers DFGs of concerned ministry-Report to HoP-Parliament control over government expenditure.
Guillotine:
Exercise by the speaker of the house on the very last day of the period allotted for discussions on DFGs whether discussed or not, puts to vote all outstanding DFGs at a time specified in advance.
Govt. then formally introduces AB to authorise govt. to draw funds from CFI
After voting on AB, becomes Act, FB is taken up for consideration.
FB becomes Act-Final Budget gets approved.
Policy and Legislative Impact Assessment PLIA- New concept to determine whether a bill requires pre-legislative impact assessment.
PART 16-SPECIAL PROVISION RELATING TO CERTAIN CLASSES
Four points wrt SC, ST, Backward Classes and Anglo Indians
Reservation of seats in LS and State Assemblies for these classes
Whether the number of seats fixed?
1. Depends upon proportion of their population.
2. Census needs to be taken into account.
3. For Anglo-Indians, 2 seats in LS and 1 seats in in LA if they are not adequately represented.
4. Rational was socio-economic upliftment of these classes.
5. Reservation in jobs and services as well
6. Not for Anglo-Indians any more.
What needs to be considered?
Article 335– maintenance of efficiency of administration.
Balance between advancement of these classes as well efficiency of administration.
Establishing Commissions for these classes
1. Article 366
2. For SC, ST, Women and BC
3. Duties of National Commission
4. Power of Civil Court
5. Investigate
6. Recommend
7. Quasi-Judicial
8. They derive their authority from constitution but power is determined by statutes.
KC Jayashree v State of Kerala
1. Admission fee in colleges was 10000. A person asked for reservation.
2. Court said certain criteria should be taken account
3. Economic criteria.
4. Education
5. Living standard in society
6. Special privileges for those who need it.
7. Article 366 clause 24 and 25 enumerates the castes in these categories who were notified by President in 1950.
Article 341-Castes to be notified by President
Can one go to court against president’s notification?
1. No. Civil court does not have power to inquire into whether a particular caste is SC or not.
2. Clause 2 of 341-Only parliament has power to include or exclude a caste.
3. President has to make the list in consultation with governor but if he has to make some inclusion or exclusion, that can be done only by parliament.
Whether a person belonging to such a caste if migrates to other state will continue be eligible?
1. Status will not change for posts and services of Union but for state, it might change.
2. Depends upon the state list where he has migrated.
If a caste has various sub-classes and president notification does not mention all, will those not mentioned will be eligible?
No. Only those specifically mentioned.
Whether a person belonging to such a caste, if marries non-caste member eligible?
A Person belonging to such a caste marries a spouse non-socially backward person, the latter will not be eligible?
What about the children of such marriage?
Only if parents are able to prove that the child has suffered injustice and discrimination.
What about those who get converted to other religion?
1. Depends upon facts to facts.
2. Definition of Hindu
3. Whether he also changes the personal law?
4. His practices.
SCHEDULE TRIBES
Indigenous
State of Maharashtra v Milind AIR 2001
Whether a caste or a tribe was SC or ST was to be determined by looking the entries as they were in the order and no inquiry could be held and no evidence could be led in to establish that caste or tribe, its parts or groups not expressly included in the order was SC or ST. Neither the state government not any authority not court or tribunals are vested with any power to modify to vary the said orders.
PV Chinayia v AP
1. Article 341 indicates that there can be only one list in a state
2. A person cannot loose its status just by conversion to another religion.
ANGLO INDIANS
Article 366(2)-
NATIONAL COMMISSION FOR SC
Article 338-
NATIONAL COMMISSION FOR ST
Article 338A
NATIONAL COMMISSION FOR BC
Justice Kelkar Commission
1. To look into what classes can be classified as backward classes.
2. Recommended to consider the caste hierarchies.
3. Recommendation was not accepted.
4. Accepted that backwardness shall be considered by occupation.
Mandal Commission
1. Observed that 22.7% population was ST and SC and 52% population was BC.
Indira Sawhney case 2000
1. That caste only cannot be the basis of reservation.
2. Reservation can be for a backward class of a citizen of a particular caste.
3. Therefore from that the creamy layer and non-backwardness of citizens are to be excluded.
Ashok Kumar Thakur Case
1. Whether reservation should extend to private institution.
2. Principle of creamy layer.
3. Article 340-
4. National Commission for Backward Classes 1993
5. Power is of a civil court.
KC Jayashree v State of Kerala
1. Admission fee in colleges was 10000. A person asked for reservation.
2. Court said certain criteria should be taken account and no reservation only on the basis of caste and religion.
3. Economic criteria.
4. Education
5. Living standard in society
6. Special privileges for those who need it.
UNION TERRITORIES
Part 8 of constitution
3 categories
Number 1
Andaman Nicobar, Daman Diu, Chandigarh, Dadar & Nagar Haveli, Lakshadweep
Number 2
Pondicherry
Number 3
Delhi
239AA, 239AB
Before 1956, they were known as Part C states.
After re-organisation of states, it was felt that they should be centrally administered.
Legislative Assemblies in Delhi and Pondicherry
239B-Power of an administrator to promulgate ordinance during recess of legislature.
240-
241-
239AA-Special Provision wrt Delhi (69th Amendment 1991)
NCT Delhi v All India Civil Account
Issue-Can Delhi govt. and central govt in an appeal be pleaded as separate party?
Held-All UTs are administered by central government and if something happens, responsibility of central government
No. Doubt that UTs are administered by Centre but they have their own separate identity, they can plead as a separate party. They cannot be said to be merged into the identity of the central government
UNION JUDICIARY (Article-124-147-Union) (Article-214-237-State)
Judiciary as defined in constitution
Evolution, constitutional Provisions
Appointment and removal of judges
Powers of review
Mulberry v Madison US
Accountability and activism
Independence of Judiciary
Confusion
PIL is the result of Judicial Activism
SP Gupta v UOI 1982 (PN Bhagwati)
Continuous Mandamus
Direction shall continue
Adventurism
Delhi ceilings
SP Gupta v UOI 1982
Where a judge of the SC is to be appointed, the CJI is required to be consulted, but again it is not concurrence but only consultation.
SCAORA v UOI (2nd Judges case 1993)
Overruled the 1st judges case
Evolved the collegium system for the purpose of judicial appointments.
Re: Presidential Reference (3rd Judges case 1999)
SC laid down a process in which it said that the CJI should consult with a plurality of 4 senior most SC judges to form his opinion on judicial appointments and transfers.
- NJAC Judgement (SCAORA v UOI) 2015
- 99th Amendment Act
- Provided that Collegium System is not good and hence Judicial appointment must happen according to this system.
- Collegium System
- CJI along with 4 judges (generally senior-most) + A judge from HC (if required) recommends (to president) name of the persons to be appointed as Judges of SC.
- NJAC (5 Member)
- PM+ Leader of Opposition + Law minister + 2 Eminent person (selected by PM+Leader of Opposition; one should be belonging to SC, ST or OBC community)
- NJAC held unconstitutional.
- Ratio was 4:1
- Justice Kehar
- Unconstitutional
- Issue was how are judges judging the judge-makers.
- NJAC did not provide adequate composition to Judicial component.
- Impeaching directly the independence of Judiciary
- Principle of Reciprocity- Give and take situation. If Law Minister is going to have say in appointment of NJAC then primacy of Judiciary is compromised.
- Plurality is must.
- Sensitivity of appointing Judges is so important. If wrong appointment is made, it would be dangerous
- “Width and Identity Test” laid down in M Nagraj case. It says that 99th amendment is so wide that it crosses the width and identity test.
- Consultation is the word in 124 which was added after so many deliberation in CA. NJAC disregards this spirit.
- Judiciary is not an appointment in service in real sense and cannot be handled like they are handling that.
- Justice Madan Lokur
- Unconstitutional
- NJAC is an empty package wrapped and sealed in colourful ribbons and papers.
- Half-backed measures and vital measures have not been sorted out.
- It’s like imperium en imperium.
- Downsizing the Judicial independence.
- Politicising the whole scenario.
- Conflict of interest in will be created by eminent persons. It’s also a structured bargaining in which shift is towards executive.
- The quota system is a populist measure.
- Only merit should be the consideration.
- Justice Kurian Joseph
- Unconstitutional
- Institutional Caution. We know that collegium has some problems as it lacks transparency, accountability, objectivity and there is trust deficit but NJAC is more dangerous.
- NJAC is like a structural bargaining which is not good for our country.
- Problems of collegium needs to be rectified.
- Justice Goyal
- Unconstitutional
- When constitution is saying something, Parliament cannot override that.
- NJAC is beyond the power of Parliament.
- In India Constitution is sovereign and not parliament but NJAC is reversing that.
- Lack of clarity regarding the role of law minister and imminent persons.
- Justice Chelemeshwar
- Constitutional
- Transparency is a vital factor in constitutional governance and we can’t afford to be opaque. Collegium system is totally opaque and inaccessible.
- No accountability in collegium system.
- Only the luckiest of all judges is going to be CJI.
- 99th Amendment Act
- COURT OF RECORD
- Both HC and SC are courts of record
- Article 129
- Records admitted to be of evidentiary value
- Not to be questioned, produced before any court.
- Judgements are recorded & considered as authoritative and serves as cases, laws and proceedings
- Acts and proceedings of the court are enrolled for a perpetual memory & testimony
- Power to fine & imprison including power to punish for its contempt.
- Extraordinary power, must be sparingly exercised only in public interest
- Derived from common law in the England
- Statutory in India- contempt of courts Act, 1971
- No excuse for imputing dishonesty in a judgement
- No evidence allowed to justify allegations relating to contempt
- Court/s own procedure to deal with contempts.
- One can claim freedom of expression.
- If clear & simple charge against the contemnor, no need to draw a formal charge.
- No withdrawal of contempt petition by the petitioner at will, only court may allow/refuse
- Extends to all courts & tribunals may not confined to its own contempt only.
- But no subordinate/High court have power to punish for contempt of SC
- No law to crucial/take away contempt power.
- Criminal and Civil contempt
- Civil Contempt– wilful disobedience
- Criminal Contempt– more serious
- In India we do not distinguish between libel and slander.
- Court may punish a lawyer for its contempt but cannot exercise power to suspend/cancel his licence to practice (Only Bar Council under Advocates Act 1961 & Rules)
- Court has sacred obligation & unlimited power to compel obedience & observance of its orders.
- Suo-Motu exercise of power by court itself even against the highest authority.
- Fair & objective criticism of court judgements not contempt.
CASES ON CONTEMPT OF COURT
- CK Daphtary v OP Gupta 1971
- OPG was publishing and circulating a book claiming bias and dishonesty against Justice Shah while acting in his judicial capacity.
- Daphtary claimed the it amounted to imputation against Judicial credibility.
- OPG claimed freedom of speech and expression.
- Truth, Fair comment, Public interest and privileges are defences to Defamation.
- Truth is not a defence in case of contempt.
- Held to be criminal contempt as scandalising the Judiciary acting in judicial capacity.
- Whether the statement is merely a defamatory attack on a judge? Or it is interfering with Judicial credibility?
- DJS v State of Gujarat 1991
- F
- Viney Chandra Mishra v UOI 1995 (over-ruled)
- A lawyer was found to be contempt of court and was punished with suspension for 4 years.
- SC said that determining quantum of punishment lies in inherent powers of court u/a 129 219 and 142.
- Supreme Court Bar Association v UOI 1998
- Vinay Chandra Mishra was over ruled.
- A lawyer was again ordered to be imprisoned.
- He challenged his convictions on the argument that no power with court to determine quantum of punishment u/a 129.
- Court traced power under Advocates Act, Contempt of Court Act, etc.
- In Re: Arundhati Roy 2002
- When SC allowed the raising of the height of the Sardar Sarovar Dam, Arundhati Roy published an article critiquing the SC judges and accusing them of mala-fide.
- Court took suo-motto cognisance.
- Court looked into the words mentioned in Contempt of Courts Act-
- Scandalises
- Tend to scandalise
- Interferes with administration of Justice.
- She said that her right to free speech can only be curtailed under Article 19. Her contention was rejected.
- Gag order by ECI against Yogi and Mayawati.
- During 2019 General Elections
- Can HC/SC take suo-motto cognizance?
- Yes.
JURISDICTION OF SC
- ORIGINAL JURISDICTION (A.131)
- SC can settle disputes between-
- Centre and one or more states
- Centre and any state
- Two or more state
- Involving any question on which the existence and the extent of legal right depends.
- Karnataka v UOI 1978
- Karnataka questioned validity and legislative competence with CG to enact commission of Inquiry Act, 1952 & appoint commission of Inquiry against CM & other Ministers of the State.
- Supreme Court– Col on the basis of public importance. No violation of Basic structure; hence suit maintainable. CG has residuary powers to legislature u/L-1, E-54& L-III, E-45, wide enough to cover every field of inquiry even if power overlaps between CG & SGs.
- 2 Limitations u/a 131
- Parties– can only be between governments
- Subject matter– existence of legal right not exercised properly and the scope of that legal right.
- State of Rajasthan v UOI 1977
- Central govt. sent advisories to governors various states that their legislative assemblies be dissolved.
- President’s satisfaction conclusive & final cannot be assailed. Only if no satisfaction. CG can issue advisory to SGs unless concrete is done suit should not be entertained.
- This case no longer holds good.
- SC can settle disputes between-
- APPELLATE JURISDICTION
- Articles 132, 133, 134, 136
- Appeal in Constitutional Matters (u/a 132(1))
- Appeal in Civil Matters (u/a 133)
- Appeal in Criminal Matters (u/a 134)
- Without a certificate (u/a 134(a)(b))
- With a Certificate (u/a 134(c))
- Special leave to Appeal. (u/a 136)
- Appeal in Constitutional Matters
- An appeal shall lie to SC from any judgement, decree or final order of a HC whether in civil, criminal or other proceedings if the HC certifies u/a 134A(44th amendment act 1978) that the case involves a substantial question of law as to the interpretation of the constitution.
- Appeal in Civil Matters
- 3 conditions-
- Decision against the judgement, decree or final order of HC in the territory of India
- In civil proceedings
- HC certifies that case involves substantial question of law and question needs to be decided by HC
- 30AA 1972- subject matter of dispute not less than Rs. 20000
- After 44A 1978– No monetary value required. All appeals to SC.
- 3 conditions-
- Appeal in Criminal matters (Art. 134)
- An appeal shall lie to SC from any judgement, final order or sentence in a criminal proceeding of a HC
- Has an appeal reversed an order of an acquittal and sentence him to death or
- Has withdrawn for trial before itself from any subordinate court convicted & sentenced him to death or
- If the HC has certified u/a 134A that it is a fit case for appeal to SC.
- Case laws-
- Tarachand Danu Sutar v Maha 1962
- Accused was charged and convicted for murder by Sessions court u/s 304 IPC
- HC reversed the order & convicted u/a 302 IPC and sentenced to death.
- SC held that accused entitled to come to SC in appeal even without certificate.
- Art. 134(2): SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
- Tarachand Danu Sutar v Maha 1962
- Certificate for appeal to SC [ArtA (44 AA 1978)
- Obligatory on HC, immediately on passing or making a judgement, decree, final order or sentence.
- Jurisdiction & Powers of federal court u/a 135
- Cases not covered u/a 133 & 134.
- It was transitory provision.
- Special Leave to Appeal (Art. 136)
- SC in its discretion grant special leave to appeal from any kind of judgement, decree, final order, determination, sentence or order made.
- In any cause or matter passed or made by any court or tribunal (except a military tribunal) in the territory of India.
- Kind of Appellate Jurisdiction
- Different from Art. 132-134.
- Plenary jurisdiction in matter of entertaining & hearing the appeals by granting SL against any kind of judgement, decree, final order, determination, sentence or order made.
- SLP-for interference in Criminal Appeal-
- Accused not given opportunity of being heard
- Trial took place in absence of accused
- Accused not allowed to call relevant witness
- Tribunal was shown to have been corrupt or not properly constituted
- Court failed to understand proceedings due to language
- Sentencing court having no jurisdiction.
- SC to review in Criminal Appeals u/a 136
- Only if serious legal defect or grave irregularity by the court below in reading the evidence
- Miscarriage of justice
- HC order based upon conjectures only, no sound reasoning
- Summary disposal of Criminal Appeal by HC-SC may re-examine/reassesses.
- If altered circumstances necessary to shorten litigation
- Original relief inappropriate due to subsequent events
- Matter is no longer available.
- Grounds to interfere
- Exercise of jurisdiction u/a 136-2 steps-
- Granting of SLP
- Hearing the Appeal
- Acts in excess of Jurisdiction
- Apparent error on face of decision
- Violation of PNJ causing substantial & grave injustice to parties
- Erroneous application of well accepted principles of Jurisprudence.
- Exercise of jurisdiction u/a 136-2 steps-
- Only with permission/leave of SC
- Very wide & general power
- Exceptional and overriding powers
- Residuary/Reserve Power not possible to define exhaustively
- Cases which are of grave & substantial injustice in violation of legal process/PNJs
- Discretionary nature if power continues until the disposal of appeal.
- No right to appeal on a party, only wide discretionary power ion SC to grant SLP in suitable cases.
- Plenary jurisdiction in matter of entertaining & hearing the appeals by granting SL against any judgement, decree, determination or order in any cause
- Passed by any court/tribunal
- Even against interlocutory orders, normally other remedies exhausted.
- No law to limit jurisdiction
- Norms of fair procedure implied u/a Art 21
- AR Antulay v RS Nayak
- Transfer of prosecution from special judge to HC for day to day trial violation of Articles 14, 21 and PNJ
- Actus curae neminem gravabit: Act of court shall prejudice no one. Under an obligation to undo the wrong done to a party.
- Coram non-judice– not before a judge-Legal proceedings outside the presence of a judge with improper venue or without jurisdiction.
- Ex debito Justitae- as a right- a matter in which a litigant is entitled merely upon the asking for it as opposed to something which may be a matter of judicial discretion/determination.
- Nunc pro tunc- now for then- a common legal term, used for a ruling which applies retroactively to correct an earlier ruling.
- L Chandra Kumar v UOI 1997
- Tribunals function is only supplementary and all such decisions will be subject & scrutiny before a division bench of respective HC. (Art. 226-227)
- No appeal from decisions of tribunals u/a 323- A&B would lie directly to SC (Art.32)
- Doctrine of merger: Common Law Decree/order passed by an inferior court/tribunal/authority/people of propriety.
- Cannot be more than one decree/order operative.
- Dhakeswari Cotton Mills Ltd Commissioner of IT WB 1954
- Article 136 powers to be rarely exercised.
- Tribunals
- Few trappings of courts
- Quasi Judicial
- Review of Judgement and Order
- Article 137
- Purpose
- To remedy errors leading to miscarriage of Justice
- Suo-Motu Review without any application-questionable
- Second Review-abuse of court process
- Review ordinarily by the same bench
- 30 days time limit for filing review petition
- Death Penalty not awarded even after confirmation by SC until that period as well as 7 days for filing mercy petition is over.
- Power to review its own judgements u/r of SC made u/a 145 or under Parliamentary Law. Order 47 Rule 1 CPC
- 3 grounds-
- Discovery of new and important evidence
- Mistakes/error apparent on the face of record.
- Any other sufficient reason. Re-examination or reconsideration due to human infallibility.
- Girdhari Lal Gupta v DH Mehta 1971
- Review by SC of judgement in criminal appeal involving violation of FERA not brought into notice of the court-modified sentence of imprisonment to fine.
- Deo Narayan Singh v Daddan Singh 1986
- UP junior High school Act applied
- Rupa Ashok Hurra v Ashok Hurra 2002
- Curative petition can be filed against any final order or judgement of SC if it is vitiated by the non-observance of law.
- Enlargement of Jurisdiction
- Art. 138
- Parliament to invest SC with additional jurisdiction & powers by law wrt. Any matter from list 1 & III
- SC to have further jurisdiction & powers wrt any matter as government of India and govt. of any state may by special agreement confer if parliament by law provides.
- SC Power to issue Writs
- Article 139
- Habeus Corpus– produce the body
- Mandamus– Direction to perform public duty
- Continuous Mandamus were issued in the Bandhua Mukti Morcha v UOI case
- Quo-Warranto– Illegal usurpation of public post
- Certiorari– Direction to infer judicial court/tribunal for error of jurisdiction
- Prohibition– To prevent from assuming the jurisdiction.
- Transfer of Certain cases
- Art. 139A (44A 1978)
- Cases involving same/substantially the same question of law
- Pending before SC & 1 or more HCs or before 2 or more HCs
- SC satisfied on its own motion or on application by Attorney general or by a party to such case that questions are of general importance
- SC may withdraw case/cases pending before HC/HCs & dispose of all the cases itself.
- SP Gupta v UOI
- Ancillary Powers & Law Declared by SC
- Art. 140-141
- Art.140– Parliament by law may confer upon SC such supplemental powers not inconsistent with any of the provisions of the constitution which are necessary or desirable for purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it.
- Art. 141– Law declared by SC binding on all courts within the territory of India. Declared is wider than ‘law found or made’
- Art. 142-
- Delhi Judicial Service Association v State of Gujarat 1991
- Mr. Patel joined as CJM in Nadia district. When police was not cooperating with him, he filed a complaint to DGP. Aggrieved by this complaint, police inspector withdrew police from Mr. Patel’s office. He was later kidnapped and beaten by police.
- Criminal cases were lodged against them. Art. 129, 142, 136- Contempt of Court.
- Union Carbide Corporation v UOI 1992
- Bhopal Gas Tragedy.
- If apparent conflict between SC decisions-large benches opinion preferred unless distinguished by giving reasons.
- Larger bind smaller/equal Benches.
- If doubt, smaller/equal bench ask CJI to constitute bigger bench & resolve.
- Each case has 3 basic ingredient-
- Findings of material facts
- Statement of Principles of Law (Ratio Decidendi)
- Judgement based on combined effect of findings & law
- Strictly ‘Stare Decisis’ not followed as too rigid adherence to precedent may lead to injustice/restrict proper development of law.
- Per Incurium– judgement which did not follow the precedent.
- Decision sub-silentio- not precedents-given on point of law, not perceived by courts or presented to its mind.
- ADVISORY JURISDICTION
- A 143– Power of President to consult SC
- Case– Re Presidential Poll 1974
- Article 144– All authorities, civil and judicial, in the territory of India shall act in aid of the SC.
- SC has no power to supervise HC.
UNION-STATE RELATIONS (Art. 245-255)
- Art. 245- Territorial jurisdiction of the parliament & the State Legislatures.
- Parliament to make laws for whole of India or any part of it.
- State legislatures to make laws for the territory of that State or any part of it.
- Extra-territorial operation of laws.
- Wallace v Income Tax Commissioner 1948
- Co. registered in Britain appointed agent in Bombay. More than half of the earnings from India-Tax levied upheld as enough Territorial Nexus (TN) between the object and State making law.
- State of Bombay v RMD Chamarbaugwala 1958
- Bombay Lotteries & Prize Competition (Control of Tax) Act 1948-Amended 1952 sought to tax crossword puzzle-sporting star.
- Printed/Published in Bangalore wide circulation in Bombay.
- Article 245.
- Article 246-
- Distribution of Legislative powers between Centre & States
- Functions of National Importance-Centre
- Functions of Local Interests-State
- Legislative Competence of Union and States
- Mere enumeration of broad categories-Not scientific/logical
- Fields of legislation not powers of legislation
- Strong Centre with adequate powers.
- Parliament’s exclusive power to make laws on subjects mentioned under List-I (97 Entries)
- State Legislatures to make laws on subject mentioned under List-II (66 Entries)
- Parliament & State Legislatures to make laws on subjects mentioned under List III(47 Entries)
- Plenary Power of Legislatures
- Composite/Rag-Bag Legislations
- Principles of Interpretation-
- Broad/Liberal interpretation
- Inter-Relation of lists
- Harmonious construction
- Doctrine of Pith & substance
- Doctrine of colourable legislations.
Two theories given by Judiciary to interpret 245-255
- Territorial Nexus
- Colourable Legislation
Art. 248- Residuary Powers
UOI v Harbhajan Singh Dhillon 1972
Repugnancy between Central & State Laws (Art. 254)
- If inconsistent terms between two statutes
- If both statutes on the same subject matter
- Exhaustive Central law may eat up state law, even if no direct conflict.
There will be no Repugnancy if-
- If object & provisions of 2 enactments are entirely different
- If both laws can co-exist without any conflict
- If pertaining to 2 different fields, may operate simultaneously without encroaching upon each other.
Art. 254(2) State law will prevail if-
- Union law exists
- State law enacts subsequently wrt. L-III
- State law reserved for President’s consideration & received assent.
Deep Chand v UP 1959
- UP Transport Services (Development ) Act, 1955 &
- Motor Vehicles Act 1939
- Motor Vehicles (Amendment) Act, 1956- same field/occupied
- Nationalisation scheme u/both similar in nature occupied field.
Doctrine of Occupied Field
- Complete & Exhaustive provision covering entire field for centre
- No scope left for State Legislature in the said field
- SL superseded as a whole as Parliament has evinced/taken over to the entire field.
- No are/field left for state law.
Sukumar Mukharjee v WB
Indian Medical Council Act 1956 u/l III, E-26 medical practitioners enrolled u/IMR entitled to practice in any part of India.
WB Act u/L- II, E-41 prohibited members of Health Services from carrying on private practice.
No repugnancy u/a 254 as no conflict.
Srinivasa Raghavchar v Karnataka 1987
- Advocates Act 1961 u/L-I, Entries 77 and 78
- State Law u/L-II prohibited legal practitioners from appearing before Land Tribunals-Repugnant to CL. (can amount to reasonable restriction u/a 19)
- CL & SL u/Es of different Lists I & II.
Vijay Kumar Sharma v State of Karnataka 1990
- Karnataka Contract Carriage Act 1972 u/L-III, E-42
- Motor Vehicles Act, 1988 u/L- III, E-35
- SC by majority held: No Repugnancy as both statues can stand together, 2 set of different provisions.
- SC by minority held: Direct conflict between 2 statutes in same occupied field-operationally incompatible & irreconcilable.
Zaverbhai Amaidas v Bombay 1954
- Essential Supplies (Temporary Provisions) Act 1946 (Central Act providing for 3 years imprisonment)
- Bombay Essential Supplies (temporary Provisions) & Essential Supplies & Cattle Act 1947 (State Act providing for 6 years imprisonment)
- Bombay Food Grains order 1949
- Power & Jurisdiction of Courts to try offences wrt quantum of punishment (Under GOI Act 1935). Effectiveness of subsequently enacted provincial law with assent of gov. gen. or President of India)
- Earlier SL stand repealed by subsequent UL as regards to the offences envisaged by UL.
M Karunanidhi v UOI 1979
- Art. 259(2)
- TN Public Men (Cr. Misconduct) Act 1973 got president assent u/a 254(2)
- IPC 1860 and PCA 1947
- SC:- SL u/l II, E-1 operated in different field from that of CL- Repugnancy not applicable.
Tikaramji v State of UP 1956
- UP Sugarcane Act 1953
- Industrial Act 1951
- Essential Commodities Act 1955 & Sugarcane Control Order 1955 & Sugar Control Order 1955
Kaiser-e-Hind v National Textile Corporation. 2002
- Existing Cl- Public Premises Act 1971
- Bombay Rents, hotel & lodging house Rates Control Act 1947 re-enacted after Cl 1971
- President’s assent only after consideration of relevant material placed before him & after due application of mind.
- Repugnant amendments to SL-Re-enactment not mere extension of existing SL- can prevail in state only after President assent.
UNION-States Relations- ADMINISTRATIVE (Art. 256-263)
Administrative Relations:
- Proper Administration/execution of law
- Smooth coordination (Execution powers of Union Art. 73 & States Art. 162)
- Settlement of Disputes
- Duty of Union to Protect States against external aggression & internal disturbance. (Art. 355)
Basic difference between Art. 73 and Art. 162
Art. 73 talks about extent of executive power of Union.
Smooth Co-ordination between Union & States:
4 techniques:-
- Centres’s direction to States (Art. 256-257)
- Inter-governmental delegation of administrative powers (Art. 258 & 258A)
- All India Services (Art 308-323)
- Inter-State Council (Art. 263-263)
- Art. 256- General Obligation upon States; Constitutional duty of States
- Art. 257- Specific obligations upon States not to do anything which impede/hamper executive power of the Union
- CG to issue directions to SGs for construction & maintenance means of communication of national & military importance (State Subject) for protection of Railways.
- Art 257- if state fails to carry out directions- CG entitled to assume all or any functions/powers of any body/authority/legislature of SG except State HC.
- Art. 257A- Omitted by 44th amendment
- Art. 258- power of union to confer Powers on States-
- Jayanti Lal Amrat Law v FN Rana 1964
- Delegation could only be wrt executive powers of Union & not president
- Ordinance making, proclamation of emergency, judges appointment-powers of president-independent of Unions’s powers
- Shamsher Singh v State of Punjab 1974
- Delegated functions to be performed in accordance with approved rules of business
Art. 258A- Inserted by 7th amendment 1956. State governor to entrust state functions to CG
Art. 259- omitted by 7th AA
Art. 260- Union Jurisdiction over foreign territories by treaties, agreements, grants or other lawful means subject to foreign laws.
Art 261– Full Faith & Credit clause- to public acts (both executive & legislature) public records (official books , register) & judicial proceedings.
Art. 262- Adjudication of Inter-State River or River Valley Water Disputes.
Art. 263– Inter-State Council
FINANCIAL RELATIONSHIP B/W CENTRE AND STATE
GOODS & SERVICES ACT
- After 101AA 2016
- President Assent to 4 supporting GST legislations:
- The Central GST Act 2017 (intra-state)
- The Integrated GST Act 2017 (inter-state)
- The GST (Compensation to States) Act, 2017
- The Union Territory GST Act 2017
- Biggest taxation reform since independence
- Creation of Uniform market by subsuming indirect taxes such as central excise, service tax, VAT & other local levies
- GST regime is expected to boost GDP growth by about 2% and check tax evasion.
- Commodities to be slightly cheaper & exports more competitive.
- Improve tax compliance & ensure credit to tax-payers.
- Tax rates on the recommendation of GST Council.
- GST Council has 2/3 voting by States and 1/3 by Centre
- Not to apply to J&K which has to legislate its own laws.
- On top of the highest slap 28%-
- No tax on essential commodities.
Art. 264- Finance Commission u/a 280
Art. 265- Taxes levied or collected only by authority of law.
Law must be valid if-
- Within legislative competence; covered u/l assigned
- Not prohibited by any constitutional provision viz Arts. 276, 285, 286, 289, etc
- Not in conflict with FR.
- Not violative of Constitutional limitations u/a 301 & 304
Trade, Commerce and Intercourse within the territory of India Art. 301-307
Automobile Transport Ltd v State of Rajasthan 1962 SC
Atiabari & Automobile laid down:
- Art. 301 assures freedom of inter-state as well as intra-state trade, commerce and intercourse
- Trade, commerce and intercourse has widest connotation
- Freedom is not from laws enacted under legislative entries relating to trade, commerce, intercourse, sale, supply or distribution of goods but also to tax laws.
- Only laws having direct and immediate effect to inhibit or restrict will be violative Art.301
- Laws which are merely regulatory/imposes compensatory taxes to facilitate freedom of trade etc not violative of Art. 301
International Tourist Corporation v State of Haryana 1981
- Haryana passengers & Goods taxation Act 1952- Imposes tax on vehicles-proportionate to expenditure incurred on resignation provided and services rendered- Not tax but fee
- Necessary to uphold regulatory and compensatory tax-existence of specific identifiable object behind levy & nexus between subject and object.
Indian Cement v State of AP 1988
1. Validity of notification issued by Andhra Pradesh & Karnataka under central sales tax act.
M/s Video Electronics Pvt. Ltd v State of Punjab 1990 IMP
- Exemption based upon natural and business factors ie to provide incentives to manufacturers of local goods-not discriminatory not violative of Art. 301
- Art. 304 is an exception to Art. 301- need for resorting to exception will arise only if impugned tax hit by Art. 301 & 303. ‘
Jindal Stainless v State of Haryana 2006 & 2016 SC
- Taxes simpliciter are not within the contemplation of Part XIII of the constitution of India.
- The world ‘Free’ used in Art. 303 does not mean ‘Free from taxation’
- Art. 304(a) and (b) have to be read disjunctively.
- A levy that violates 304(a) cannot be saved even if the procedure u/a 304(b) or the proviso there under is satisfied.
- The ‘Compensatory Tax Theory’ evolved in Atiabari & Automobile cases and subsequently modified in Jindal’s case 2003 has no juristic bases and is therefore rejected.
- Decisions of this court in Atiabari Automobile Transport and Jindal cases and all other judgements that follow these pronouncements are to the extent of such reliance overruled.
Bhagatram Rajeev Kumar v CST 1995 SC
State of Bihar v Bihar Chamber of Commerce 1996
PART XX- AMENDMENT OF THE CONSTITUTION
- Amendment of constitution: 2 methods
- Informal Method & Formal Method
- Informal Method– By established convention
- Eg- Appointment of CJI & by giving different interpretation to provisions of the constitution according to the context eg- Shankari Prasad/ Golak Nath case.
- Formal Method- Text of law/written provision
- Eg- Added Arts. 31A & 31B and schedule IX vide 1st amendment 1951
- 3 kinds of formal method
- Simple majority– making ordinary statutes viz Art-2-4, 4, 169, 239A
- Special majority-all except above
- Special majority and ratification by States: election and manner of election of president; executive powers; judiciary, legislative powers, etc Schedule VII; Amendment to Constitution, etc.
- Kihoto Hollohan v Zachillu 1992
- Schedule X, para 7 invalidated as it has effect of amending the powers of SC and HC w/o following procedure u/a 368 (2)
- Shankari Prasad v UOI 1951
- Schedule 9 was challenged
- Art. 13 and A.368
- Sajjan Singh v State of Rajasthan 1963
- Golak Nath v State of Punjab 1967
- Keshavananda Bharti v State of Kerala 1973
- Indira Gandhi v Raj narayan 1975
- Minerva Mills v UoI 1980
- Waman Rao v UOI 1981
- SP Sampath Kumar v UoI 1987
- L Chandra Kumar v UoI 1997
- Ashoka Kumar Thakur v UoI 2006 (Prepare)
- M Nagraj v UoI 2007
- IR Cohello v State of TN 2007
- Informal Method– By established convention
Relationship between Article 13 and Article 368
- Confusion regarding Legislative Power and Constitutive Power.
- Kihoto Hollohan v Zachillu 1992
- Schedule X, para 7 invalidated as it had effect of amending the powers of SC and HC w/o following procedure u/a 368(2).
- Shankari Prasad v UOI 1951 5J
- State in order to bring land reforms passed abolition of zamindari.
- SC held that state cannot make amendment to FR.
- Law under S.13 is not amendment under S.368.
- Legislative Power and Constitutive Power are different
- Sajjan Singh v State of Rajasthan 1963 5J 3:2
- Govt. made amendment to S.30 (17th) to validate certain land reform act and also put them under the newly created 9th schedule.
- Law under S.13 is not amendment under S.368. Hence FR can be amended.
- Golak Nath v State of Punjab 1967 11J 6:5
- Whether amendments can violate FR?
- No. Law under article 13 include amendments.
- Keshawananda Bharti State of Kerala 1973 7:6
- Amending powers are wide but not unlimited and cannot violate basic structure.
- Judges used different terms for basic structure- essential features, fundamental features, central features, etc.
- Indira Gandhi v Raj narayan 1975
- Indira Gandhi was found to have won using electoral malpractice and court barred her from contesting elections for 6 years.
- Parliament passed 39th amendment introducing Ar. 329A barring jurisdiction of SC in case of disputes regarding election of PM, Speaker, etc.
- Held that violated basic structure as it violated free and fair election, rule of law, separation of power. Judicial Review was held to be an essential feature.
- Minerva Mills v UoI 1980
- 42nd amendment Act-was challenged which provided u/a 13, 368 clause (4) and (5) and Article 31(c) which granted unlimited powers to parliament.
- 14, 19. And 21 are the golden triangle. DPSP cannot take precedence over FR. Reiterated the basic structure doctrine.
- Waman Rao v UOI 1981
- An agricultural land act placed ceilings on land ownership.
- Violation of FR does not mean violation of Basic Structure.
- SP Sampath Kumar v UoI 1987
- Whether Tribunal can oust the jurisdiction of HC?
- Held that power of Judicial Review over legislative actions vested in HC and SC is part of basic structure.
- Held that tribunal can only test the validity of delegated legislation and not parent legislation.
- L Chandra Kumar v UoI 1997
- A 323A was added excluded jurisdiction of all courts except SC in case of Admin Tribunal Decisions.
- Court said appeal lies to division bench of HC.
- Ashoka Kumar Thakur v UoI 2006
- M Nagraj v UoI 2007
- IR Cohello v State of TN 2007
- Any law placed in schedule IX after 24/04/1973 will be open to challenge on the ground that it destroy the basic structure or taking away any or all FRs.
ELECTIONS (324)
A.324-(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
TN Seshan v UOI 1995
AC Jose v Sivan Pillai 1984
Challenge to Elections-
Art.329- Bar to interference by courts in electoral matters.
Notwithstanding anything in this Constitution-
- the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
- no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Once the elections are notified, no case can be filed to court.
Prior to 1966, there was an election tribunal to entertain disputes regarding eligibility, etc.
How long elections can be postponed?
In Re: Presidential Polls 2002
Issue 1- Whether Article 174 subject to EC’s decision not to hold election?
Issue 2- What is the relationship between Art. 174 and 324?
Issue 3- Can election commission postpone elections?
Issue 4- From which date Art. 174 needs to be applied? Whether 6 month from live assembly or dissolved assembly?
Govt. held last session on March 3 and the assembly was dissolved on July 2019. SC said there is no need to impose president’s rule. 324 is the prerogative of election commission. Under no circumstances elections can be delayed beyond 6 months.
UOI v Association for Democratic Reforms 2002
UNION SERVICES: Article 308-323
Art 308– Applies to whole India except J&K
Art. 309– legislation, Rules for appointment and general conditions for services
- Acts, Rules must not contravene Ar.14, 15 and 16.
- Acts, Rules must comply with DPSPs (Art. 39d)
- Acts/Rules making power subject to Doctrine of Pleasure
- Conditions of Service subject to Procedural Safeguards u/a 311
- Consultation with appropriate PSC in recruitment to all civil services posts/promotions.
- Art. 309- Not fettered by service contract as legal position more of ‘status’ than of ‘contract’
- Depends upon Statutes, Rules framed or altered, post abolished unilaterally by the govt.- not determined by the consent of the parties.
- C Sankaranaryan v State of Kerala 1971
- Kerala Education Act amended to raise age 55 to 58. Again amended to reduce it to 55. SC held that no estoppel as art. 309 not to be fettered by contract.
Art. 310- Doctrine of Pleasure. Common law doctrine
- Termination of services at any time, at will without assigning any reason
- Based upon Public Policy
- No remedy against crown
- Crown not bound by an contract
- Public Servants expected to observe certain standards of decency and morality.
Art. 311- Constitutional Procedural Safeguards-
- No removal/Dismissal by an authority subordinate to appointing authority
- No removal/dismissal/reduction in rank w/o Inquiry
- Members of Civi Services of Union and States
- Persons holding civil posts under union states
- Members of All India Service
- Master-Servant relationship-Ultimate Control
- Defence Services, Statutory Corporation, Govt. Companies, Registered Societies, etc excluded.
CASES-
State of Bihar v Abdul Majid 1954
Purushottam Lal Dhingra v UOI 1958 1958 IMP
He was a class III railway employee. He had been sent to officiate on a senior post but after few months he was asked to go back. He alleged it to be demotion and said that this can’t be done without proper inquiry (Art.311)
Two conditions-
- Whether the person has any right or claim to hold that post?
- Whether visited with any evil consequences?
State of Bihar v Gopi Kishore Prasad 1960
Moti Ram Dheka v NE Frontiers Railways 1963
Debesh Chandra v UOI 1970 IMP
Chief Secy under Assam was brought to central govt. on tennure post. After 6-7 months he was given option of reverting back to state cadre or face compulsory retirement as a secy. He contended that it cannot be done with inquiry u/a 312 and speaking order. It was claim right unlike Dhingra case. He suffered evil consequences.
Union of India v Tulsiram Patel
Exceptions where inquiry is not necessary
- Proviso of A.311
315-318- Talks about Public Service Commissions
EMERGENCY PROVISIONS (Art. 352-360)
- Emergency Provisions in the Indian Constitution
- National Emergency 352
- 3 Occasions
- 1961-68- Chinese Aggression
- 1971– Indo Pak War
- 1975-77– On grounds of internal disturbance
- 3 Occasions
- Effects of National Emergency
- Fundamental Rights and judiciary
- All powers of law making will be taken over by Centre
- Tennure of Lok Sabha and State Assemblies can be extended by a period of 1 year at a time.
- Fundamental Rights u/a 19 are automatically suspended.
- After 44th constitutional amendment Art.21 cannot be suspended not even during emergency.
- But Judicial Review available for any FR
- Bhutnath v State of W. Bengal 1974
- Minerva Mills v UOI 1980
- Held that court should not hesitate to perform its constitutional duty merely because it involves considering political issues.
- Maharashtra v Prabhakar
- Mohd Yakub v J&K
- Makhan Singh v State of Punjab
- ADM Jabalpur v Shiv Kant Shukla 1976
- One cannot go to court, even for violation of FR.
- State Emergency & Case Law 356
- Financial Emergency 360
All Proclaimed by President on constitutional satisfaction.
44th Amendment
Prior to 1978, the ground was internal disturbance. Certain safeguards have been brought.
State Emergency
- On failure of constitutional machinery in state-
- SR Bommai v UOI 1994
- Janta Party and Lok Dal merged to form Janta Dal in Karnataka. 19 MLAs defected. Governor on the basis of a forged letter thought that govt. has lost majority and there is constitutional crisis. CM SR Bommai requested governor that he be allowed to prove majority. But President proclaimed emergency on governor’s advice.
- UOI v Harish Rawat 2016
- Held that floor test be organised on camera. Emergency was withdrawn later.
- Nabam Rabi v Deputy Speaker AP Assembly 2016
- SC revoked state emergency
