F.Y.

LLB Sem 2 Keyur Chinchole

LFSA
Team Notes
CONSTITUTIONAL LAW II
UNIT 1
1. Explain Anti-Defection Law with relevant case laws.
Ans. Anti-defection law

 Defection causes government instability. Defection is undemocratic.

 A political party which fails to get majority in the house through election yet may
form the government through the defected members from other party.
 Thus the party which wins the majority through election still fails to form the
government because of few members defected from the party.
 The member may change his political party because he may consciously disagree
with the policies of the party to which he belongs.
 In such case, if he leaves the party then he has to resign from his membership and
seek fresh election. But such principled defection are rare.
 Most of the defections take place out of selfish motive as to appointment in Council
of Ministers.
 It was realised that if the evil of defection is not controlled, then it would injure the
very foundation of democracy. Therefore, it was necessary to enact the law
regarding defection.
 The 10th schedule, popularly known as the Anti-defection Act was introduced in 52nd
Amendment Act, 1985.
 It sets the provisions for disqualification of elected members on the grounds of
defection to another political party.
Para 2: Grounds for Disqualification

 If the member of the political party-

 Voluntarily resigns from his political party
 Votes or does not vote-contrary to the direction of his political party
 However, if the member has taken prior permission or is condoned by the
party within 15 days from such voting or abstention, then he shall not be
disqualified.
 If an independent candidate joins any political party after the election.
 If a nominated member joins a party six months after he becomes a member of the
legislature.
Para 3: Split and Merger
 If at least one-third members of the legislative party decided to form or join another
political party, it was recognised as ‘split’.
 91st Amendment Act, 2003, didn’t recognised split- omitted para 3.
Para 4: Exception (Merger)
 A person shall not be disqualified-
 If his original party merges with another and he & other members of the old
political party become members of new political party.
 He and other members do not accept the merger and opt to function as a
separate group.
 This exception shall operate only if not less than 2/3 of the members of party
in the house have agreed to the merger.
Para 5: Exemption
 Notwithstanding anything contained in this schedule, a person who has elected to
the office of-
 Speaker or deputy speaker of the house of people
 Deputy chairman of the council of states
 Chairman or deputy chairman of legislative council of a state
 Speaker or deputy speaker of the legislative assembly of a state
 Shall not be disqualified under this schedule
 If he, by reason of his election to such office, voluntarily gives up the
membership of the political party to which he belonged immediately before
such election and does not, so long as he continues to hold such office
thereafter, re-join that political party or become a member of another
political party.

Para 6: Power to disqualify

 The chairman or the speaker of the house takes the decision to disqualify a member.
 If a complaint is received with respect to the defection of the chairman or speaker, a
member of the house elected by that house shall take the decision.

Para 7: Bar of Jurisdiction of courts

 Notwithstanding anything in this constitution, no court shall have any jurisdiction
regarding disqualification of a member of house under this schedule.
 But in Kihoto Hollohan case, this para was struck down by Supreme Court.
 In this case, Manipur speaker disqualified 5 members of house on the ground of
defection.
 The Supreme Court held that function of speaker regarding Anti-defection law is like
that of tribunal and therefore it is open to judicial review.
Para 8: Power to make rules
 The chairman or the speaker has the authority to make rules for giving effects to the
provisions of this schedule.
 A reasonable opportunity to be heard must be allowed to the member.
 Speaker may refer the case to inquiry committee.
 This process takes time so the defection does not have any immediate effect.
Advantages
 Provides stability to the government by preventing shifts of party allegiance.
 Ensures that candidates elected with party support and on the basis of party
manifestoes remain loyal to the party policies. Also promotes party discipline.
Disadvantages
 By preventing parliamentarians from changing parties, it reduces the accountability
of government to the parliament and the people.
 Interferes with the member’s freedom of speech and expression by curbing dissent
against party policies.
Case laws
Ravi Naik v. Union of India

 In this case, the issue was whether only registration constitutes voluntarily giving up
membership of a political party.
 It was held that an inference can also be drawn from the conduct of the member
that he has voluntarily given up the membership of his party.
G. Vishwanathan v. Speaker TN, legislative assembly

 In this case, the issue was whether a member cab be said to voluntarily give up his
membership of a party if he joins another party after being expelled by his old
political party.
 It was held that once a member is expelled, he is treated as ‘independent’ member
in the house. But as per 10th schedule he continues to be the member of old party.
 So if he joins a new party after expulsion, it can be said that he has voluntarily given
up membership of his old party.
Kashinath v. Goa legislative assembly
 In this case, the issue was whether a speaker can review his own decision to
disqualify a member under 10th schedule.
 It was held that the speaker of the house does not have the power to review his own
decision regarding the matters of anti-defection law.
Avtar Singh Bhadana v. Shri Kuldeep Singh
 The INC alleged that Shri Bishnoi often dissented from and criticized the congress
government publicly, and had demanded the dismissal of government in Haryana.
 It was held that stories in the print or electronic media can be taken as evidence of
defection.
2. What do you mean by Parliamentary Privileges?
Ans. Parliamentary Privileges
 After the 44th Amendment, Article 105 provides that regarding the power, privileges
and immunities of each house of parliament and members thereof, shall be such as
 define by parliament from time to time, and until so defined it shall be those as they
were before the 44th Amendment.
 Article 105(1): Powers, Privileges, etc. of the house and members thereof subject to
the provisions of the constitution and rules, and there shall be freedom of speech in
parliament.
 Article 105(2): provides that no member of parliament shall be liable to any
proceeding regarding the publication by/under the authority of either house, any
report, paper, votes or proceeding.
P.V. Narsimha Rao v. State
 Supreme Court held that the privilege of immunity from court in Article 105(2)
extends even to bribes taken by the members of parliament for the purpose of
voting in a particular manner.
 But the MPs who had given or take bribe and not participate in voting were not
entitled to the protection.
Other privileges
 Freedom from Arrest
 A member of parliament cannot be arrested on civil proceedings within the
period of 40 days before and 40 days after the session of parliament.
 This protection does not extend to arrest on criminal charge or for contempt
of court.
 Right to exclude strangers from its proceedings and hold secret sessions
 However, secret session can be held only in exceptional cases because the
voters must be kept informed that what their representatives are doing.
 Right to prohibit the publication of its report and proceedings
 In the famous searchlight case, the Supreme Court held that the publication
of expunged portion of speech amounts to breach of privilege of the house.
 Right to regulate internal proceedings
 The house has an exclusive right to regulate its own internal proceedings and
to adjudicate upon such matters. The court will not interfere.
 Right to punish members or outsiders for contempt
 The house has the power to punish person whether the members or
strangers for the contempt of privilege. This power is described as ‘keystone
of Parliamentary Privilege’.
Privileges and the court
Re under Article 143
 Keshava Singh who was not the member of the U.P. assembly was held guilty for
contempt of the house and sentenced to imprisonment for 7 days.
 Then his advocate filed the habeas corpus petition arguing the illegal detention
because he was not given an opportunity to defend himself. Then the HC granted
him interim bail.
 The assembly passed the resolution that HC judges, Keshawa Singh and his advocate
had committed the contempt of house. So the two judges and advocate shall be
bought into custody before the house.
 Later, two judges and the advocate filed a petition under Article 226 arguing that
resolution amounts to contempt of the court.
 HC passed an interim order directing the stay of resolution of assembly. The arrest
warrant against the two judges was withdrawn. However they were ordered to
appear before the house and to explain about their conduct.
 At this stage, the president had referred the matter to the Supreme Court under
Article 143 for its advisory opinion.
 The main question was-
 Whether the legislature is competent to punish the person for the contempt
of house taking place outside of the legislature.
 Whether the HC (who entertains habeas corpus petition) had committed the
contempt of the house.
 The SC held that the two judges were not guilty of contempt of house by issuing
interim bail order. Under Article 226, HC has jurisdiction to order the release person
from illegal detention.
 SC further held that Article 121 prohibits any discussion in the state legislature
regarding the conduct of the judges of SC and HC in discharging their duties.
 SC further held that interpretation of nature and scope of Article 194 (3) lies within
the court because interpretation of constitution is a judicial function including the
interpretation of parliamentary and state legislature privilege.

3. Discuss parliamentary form of government/features.

Ans. Parliamentary form of government:
 The Constitution of India establishes a parliamentary form of government both at
the centre & states.
 The essence of parliamentary form of government is its responsibility to the
legislature. It is a responsible government.
 The President is the constitutional head of the state.
 The real executive power is vested in Council of ministers whose head is the
Prime Minister.
 The Council of ministers are collectively responsible to the lower house and the
members of lower house are elected directly by the people normally for five
years.
 There is absence of separation of powers.
 There is an intimate relationship between the legislature & executive.
4. Discuss Executive Powers of President.
Ans. Executive Powers of President (Article 77):
 The power to appoint-
  Prime Minister and Council of Ministers.
 Judges of Supreme Court and High courts.
 Governors of States.
 Attorney-general.
 Comptroller and Auditor-general.
 Chairman and members of UPSC.
 Members of finance commission and official commissions.
 Special officer for SC & ST
 Special officer for linguistic minorities
 Also, the power to remove above-mentioned officials from their post subject to
prescribed procedure.
 The President has to exercise executive powers on the advice of Council of
ministers.
5. Discuss Military Powers of President.
Ans. Military powers of President:
 The President is the supreme commander of the defence forces of the country.
 President has the powers to declare war and peace.
 The exercise of military powers by President can be regulated or controlled by
the parliament.
 The military power of President is subordinate to his executive powers.
6. Discuss Diplomatic Powers of President.
Ans. Diplomatic powers of President:
 President can send and receive Ambassadors & other diplomatic
representatives.
 Can negotiate and conclude treaties & international agreements subject to
ratification by parliament.
7. Discuss Legislative Powers of President.
Ans. Legislative powers of President:
 To summon & prorogue parliament.
 Can dissolve Lok Sabha.
 Article 85(1) restriction- has to summon within 6 months from last sitting.
 Article 108- can summon joint session of parliament if conflict between two
houses over ordinary bills.
 Address house at commencement- lays down general policy of government.
 Article 111- Assent of President on every bill
 Cannot withhold assent on money bill
 Other bills may return to house for consideration. Second time has to pass bill.
 Article 3- Recognition of new state, alteration of boundaries- Presidential
recommendation necessary prior to introduction.
  Bills- restriction on trade & commerce require prior presidential
recommendation.
 Nomination power- 12 members to Rajya Sabha & 2 members to Lok Sabha
(Anglo Indian community).
8. Discuss Ordinance making Power of President.

Ans. Ordinance-making power (Article 123):

 The ordinance making power has been vested in the President to deal with
unforeseen or urgent matters.
 An ordinance can be issued only when both the houses of parliament are not in
session.
 An ordinance promulgated under Article 123 is a law having the same force and
effect as an Act of parliament.
 An ordinance cannot violate the fundamental rights.
 However, such ordinances, must be laid before both houses of parliament and
shall cease to operate at the expiry of six weeks from the date of reassembly of
parliament, unless a resolution disapproving it is passed by both houses before
expiration of six weeks.
 The ordinance making power is exercised by the president on his own
‘satisfaction’ but in reality, it is the cabinet on whose advice the President
exercises his ordinance making power.
 The ordinance making power of President is co-extensive with the legislative
power of parliament.
 Case laws: R.K. Garg v. Union of India- The President is competent to issue an
ordinance amending or altering the tax laws (Special bearer bonds immunities &
exemptions) ordinance, 1981, was not ultra vires of Article 123 of the
Constitution.
 A.K. Roy v. Union of India- National security ordinance was valid. The ordinance
shall be subject to the test of vagueness, arbitrariness & reasonableness.
 D.C. Wadhwa v. State of Bihar- Abuse of ordinance making power. The court
pointed out that between 1967 to 1981, Bihar Governor promulgated 256
ordinances and all these were kept alive by re-promulgation from time to time.
Out of these 256, 69 were re-promulgated with prior permission of President.
The court called it ‘subversion of democratic process’ and held that it is
unconstitutional.
9. Discuss Pardoning Powers of President.
Ans. Pardoning power:

 Pardon means to forgive.

 It is an act of grace which exempts an individual from punishment for the
offence he committed.
 Granting pardon to the criminal brings him to the original position of innocence
as if he had never committed the offence.
 The pardoning power is exercised for public welfare which is the legal object of
the punishment and it will be promoted by suspension of sentences.
 Pardon may help to save an innocent person from punishment due to
miscarriage of justice.
 The hope of being pardoned acts as an incentive for the offender to behave in
good manners in the prison institution.
 The object is to correct possible judicial errors as no judicial administration
system can be free from imperfections.
 Under Article 72, President has the power to grant pardons, reprieves, respites,
commute or remissions of punishment for an offence by:
 By Court Martial
 An offence against any law relating to a matter to which executive
power of the union extends
 In which there is death sentence
 Commutation means substitution of one form of punishment for another of
lighter character.
 Remission means reduction of the sentence without changing its character.
 Respite means awarding lesser punishment on some special ground eg.
Pregnancy.
 Reprieve means temporary suspension of death sentence.
 Granting of pardon may be of two kinds:
i. Absolute pardon
ii. Conditional pardon
 Absolute pardon- Absolute pardon blot out the guilt. The criminal is released
permanently without reducing any condition.
 Conditional pardon- Offender is released subject to certain conditions. The
breach of these conditions will lead to revival of his sentence and shall be
subjected for the unexhausted portion of his punishment.
 Procedure
 Petition/application is sent to secretariat.
 Forwarded to ministry of home affairs for comments or
recommendations.
 Then petition/application along with such recommendations submitted
to President for final decision.
 President examines the advice and if agrees, acts accordingly.
 If disagrees, then he will send disagreement notes to home ministry.
 However, the pardoning power is exercised through the advice of Council of
ministers.
 Case Laws:
Kuljeet Singh v. Lt. Governor of Delhi (Guidelines)
 Ranga and Billa – Petitioners were murderers of two innocent children and
session court awarded death sentence and High court confirmed the same.
 Special Leave petition under Article 136 against high court judgement was
dismissed by Supreme Court.
 Mercy petition presented to President was rejected without assigning any
reasons.
 Petitioners contended that power under Article 72 is coupled with duty which
must be exercised fairly and reasonably.
 The court said that the court did not know whether government of India has
formulated any guidelines or uniform standard by which the exercise of this
power was in fact guided.
 The court further held that this was not the appropriate case in which the
question of laying down the guidelines would arise.
Sher Singh v. State of Punjab (Disposal of Petition)

 In this case, there was an inordinate delay of disposal of writ-petition for the
commutation of death sentence into life imprisonment.
 It was held that mercy petitions under Article 72 & 161 or under sections 432
& 433 of Cr. P. C. must be disposed expeditiously.
 Chandrachud, C.J. said that such petitions must be disposed within 3 months
from the date when it is received.
Kehar Singh v. Union of India (Nature of Pardoning power)

 The petitioner Kehar Singh murdered PM Indira Gandhi and was sentenced to
death which was confirmed by High Court and Supreme Court also dismissed
his appeal.
 President also rejected his mercy petition without going into merits of the
decision of the Supreme Court.
 The Court held that it is open to the President to scrutinize the evidence and
come to different conclusion.
 The President does not amend or supersede the judicial record. Judicial
record will remain intact.
 The Court need not specify in detail the guidelines for the pardoning power
exercise because this power is of the “wildest amplitude”. The President
cannot be asked to give reasons for the order.
Epuru Sudhakar v. Govt. of A.P. (Pardoning power subject to judicial review)

 Pardoning power of President under Article 72 and Governor under Article

161 is subject to judicial review.
 In this case, a Congress worker was convicted for murder of a worker and was
awarded death sentence.
 The Governor, U.P.A govt., Mr. Shinde, granted him pardon. The High Court
quashed the order of pardoning as it was exercised on political ground.
 The Govt. of A.P. filed an appeal against the judgement of High Court in the
Supreme Court.
  The Supreme Court held that if pardoning power has been exercised on the
grounds of political reasons, caste and religious considerations, it would
amount to violation of constitution and the court will examine its validity.
10. Write a note on Council of Ministers.
Ans. Council of Ministers

 As per Article 74 (1), “there shall be a Council of Ministers with the Prime
Minister as its head to aid and advice the President who shall, in exercise of
his functions act in accordance with such advice.”
 As per Article 75 (1), the Prime Minister shall be appointed by the President
and other Ministers shall be appointed by the President on the advice of the
Prime Minister.
 As per 91st Amendment Act, 2003, Total number of Ministers, including Prime
Minister, in the Council of Ministers shall not exceed 15% of total number of
members of the house of people.
 As per Article 75 (1B), a member of either house of parliament belonging to
any party who is disqualified for being a member of that house on the ground
of defection under para 2 of the Tenth schedule shall also be disqualified to
be appointed as Minister under 75(1), till he is again elected.
 There are three categories of Council of Ministers:
i. Cabinet Ministers
ii. Ministers of State
iii. Deputy Ministers
 Cabinet Ministers are head of their departments who can attend cabinet
meetings when specially invited by PM and when matter concerning their
department is discussed.
 Ministers of State are formally of cabinet status and are paid the same salary
as cabinet ministers and they hold independent charge of their department.
 Deputy Ministers assist the Ministers with whom they are attached to in their
administrative duties. They do not have separate charge of a department.
 A Non-member can become a Minster:
 As per Article 75(5), Minister who for a period of six consecutive months
is not a member of either House of Parliament shall cease to be a
Minister at the expiration of that period.
 There is no legal bar that a Minister must be a Member of Parliament.
 An outsider may be appointed as a Minister but he must become
Member of Parliament within six months.
 If he is not elected within six months, he is bound to resign from
legislature.
S.P. Anand v. H.D. Deve Gowda
  In this case, petitioner had challenged the appointment of Mr. Deve
Gowda as Prime Minister on the ground that at the time of appointment
he was not the member of either house.
 Supreme Court held that person who is not the member of either house
can be appointed by Prime minister for six months, but he has to become
Member of Parliament within the said period.
 Non-member cannot be re-appointed without being elected:
S.R. Chauhan v. State of Punjab
 In this case, Mr. Tej Prakash Singh, a member of legislature was appointed
as a Minster for six months. He failed to get himself elected to the
legislature and resigned.
 In the meantime, another person was appointed as CM and he appointed
Mr. Tej Prakash as minister again.
 Supreme Court held that Article 164(4) was violated. A non-member who
fails to get elected during the period of six consecutive months after he is
appointed as a minister cannot be reappointed as minister.
 Convicted person cannot be appointed Chief Minster:
B.R. Kapoor v. State of Tamil Nadu
 Supreme Court held that a person convicted of criminal offence and
sentenced for more than two years of imprisonment cannot be appointed
as CM.
 In 2001, Smt. Jaylalitha won election. But prior to election she was
convicted for various offences and was sentenced to imprisonment for
more than two years.
 This was challenged by certain persons through PIL. The court held that
the appointment was violative of Article 164 (4) and therefore was
unconstitutional and invalid.
 The court also rejected the argument of her counsel that the “mandate” is
supreme and the will of people must be respected. The Constitution shall
prevail over the mandate.
11. Discuss Doctrine of Collective Responsibility.
Ans. Doctrine of Collective responsibility [Article 75(3)]:
 The principle of collective responsibility may be regarded as fundamental for
the working of parliamentary form of government.
 The principle of collective responsibility means that the Council of Ministers
are responsible as a body for the general conduct of the affairs of the
government. All Ministers stand for (support) or fall together in parliament.
 Thus, the principle of collective responsibility secures the unity of the cabinet
and COMs.
 Each minister is responsible for the cabinet decision. Ministers have to
support the policies and programmes of the cabinet even if there is
differences in opinion.
  A Minister cannot disown responsibility so long as he is minister. So he
cannot oppose cabinet decision or cannot be neutral at same time.
 A minister who does not agree with PM or cabinet has only one alternative,
that is, to resign from cabinet.
 A former minister must not reveal cabinet secrets.

Minster’s individual responsibility

 Every Minister is responsible for the acts of the officers of his department.
He has to answer question regarding the affairs of his department in
parliament. He cannot throw the responsibility of his department either on
his officials or another minister.
 If the minister has taken action with the approval of officers of his
department, principle of collective responsibility applies and the whole
cabinet should support and defend his actions.
 But, if the minister has taken action without the approval, the cabinet may
or may not support him. If the cabinet does not support him, then the
minister has to go and not the whole cabinet.
12. Write a note on Coalition form of Government.
Ans. Coalition from of government
 A Coalition government is a cabinet of a parliamentary government in which
many or multiple political parties cooperate, reducing the dominance of any
one party within that coalition.
 The usual reason for this arrangement is that no party on its own can achieve
a majority in the parliament.
 A coalition government might also be created in a time of national difficulty
or crisis (for example, during wartime or economic crisis) to give a
government the high degree of perceived political legitimacy or collective
identity it desires while also playing a role in diminishing internal political
strife. In such times, parties have formed all-party coalitions (national unity
governments, grand coalitions). If a coalition collapses, a confidence vote is
held or a motion of no confidence is taken.
Advantages
 Enlarges your base of support, networks and connections; gives strength in
numbers: you can achieve more together than you can alone.
 Provides safety for advocacy efforts and protection for members who may
not be able to take action alone, particularly when operating in a hostile or
difficult environment.
 Magnifies existing financial and human resources by pooling them together
and by delegating work to others in the coalition.
 Reduces duplication of effort and resources.
 Enhances the credibility and influence of an advocacy campaign, as well as
that of individual coalition members.
  Helps develop new leadership skills amongst members.
 Assists in individual and organizational networking.
 Facilitates exchange of information, skills, experience, materials,
opportunities for collaboration etc.
 Brings together a diverse range of people and organizations. Diversity can
strengthen a campaign by broadening perspective and understanding of the
issue. It can also assist outreach by appealing to a wider population base with
differing priorities and interests.
 Provides peer support, encouragement, motivation and professional
recognition.
Disadvantages
 Can lack clear objectives, or be difficult to agree common objectives.
 Forming and managing a coalition can be a very time-consuming and
bureaucratic process that can take away time from working directly on
campaign issues and organizational tasks.
 May be dominated by one powerful organization. Power is not always
distributed equally among members; larger or richer organizations can have
more say in decisions.
 May require you to compromise your position on issues or tactics.
 Shared decision-making can be slow and may paralyze progress.
 Can often be constrained by a lack of resources.
 Potential for donor interference (e.g. a donor is interested in funding certain
activities but there is a danger of planning activities only because you know
you can get the funds).
 You may not always get credit for your work. Sometimes the coalition as a
whole gets recognition rather than individual members. Or certain members
get or claim more recognition than others, causing conflict and resentment.
 If the coalition process breaks down it can harm everyone's advocacy by
damaging members' credibility.
 Coalition activities can be difficult to monitor and evaluate.
Other Important Topics:

o President of India: Election, qualification, salary and impeachment

o Position of President

Unit-2
1. Discuss Governor. Also discuss powers and positions of Governor.
Ans. Governor
 Article 153 of the Constitution of India requires a governor to be appointed for
every state in India.
 Like the President is for the Union, the governor is the chief executive head of a
state.
  Governor is neither directly elected by people nor, like the president, elected by
a specially constituted electoral college.
 Governor is directly appointed by the president, or in other words, he is a
nominee of the central government.
 The general tenure of office is five years. But he or she is allowed to hold office at
the pleasure of the President i.e. as long as the President wishes. So, a Governor
can be removed any time when the President wishes to. The post of governor is
not an employment under the central government, it is a constitutional post.

Executive Powers

 All the executive actions of the state are taken in his name. He makes rules
specifying the manner in which the orders and other instruments made and
executed in his name shall be authenticated. Further, Governor also can make rules
for more convenient transaction of the business of the state government.

Appointments done by Governor

 Appointment of some of the following important functionaries of the State

Government is made by the Governor including:
 Chief Minister and Other Ministers
 The Chief Ministers is appointed by Governor and other ministers in state are
appointed by him on advice of Chief Minister.
 The CM as well as other ministers hold their office during pleasure of the
Governor. However, they cannot be removed arbitrarily until Council of Ministers
has confidence of the state assembly.
 Chairmen and members of SPSC
 Governor also appoints the chairman and other members of State Public Service
Commissions.
 However, removal of chairmen and members of SPSCs can be done only by
President.
 Advocate General
 Advocate general is the part of state executive and highest law officer of the
state. He is appointed by governor and his retainer is determined by Governor.
 Advocate general has no fixed tenure and holds the office during the pleasure of
the Governor.
 State Election Commissioner
 Governor appoints the state election commissioner and determines the
conditions of service and tenure of the later.
 However, Election Commissioners in states can be removed only in like manner
and on like grounds of a state high court judge.
 Vice-chancellors
 Governor is the Chancellor of universities in the state and he appoints vice-
chancellors in various universities.
  District Judges
 Appointments of persons to be, and the posting and promotion of, district judges
in any State is done by Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.

Role in President’s Rule

 Governor has extensive executive powers in terms of imposition of emergency in
state under article 356.
 Under this article, Governor can send a report to President and recommend
constitutional emergency on the ground that government of the State cannot be
carried on in accordance with the provisions constitution.

Legislative Powers

 Powers with regard to state legislature

 Governor has powers to summon and prorogue state legislature and dissolve the
state assembly.
 He addresses the first session of the state legislature after the general elections
in the state.
 He also appoints 1/6th members of the State legislative Council in states
wherever there is bicameral legislature.
 He also nominates one member in state legislative assembly from the Anglo-
Indian Community if in view, the community is not well represented.

 The powers with regard to Bills

 All the bills passed by the state legislatures are sent to the Governor for assent. Once
a bill is sent to Governor for assent, he can:
i. give assent to the bill
ii. withhold the assent
iii. Return the bill to legislature for reconsideration (if it is not a money bill).
 If the bill is re-passed by legislature with or without amendment, the governor has to
give assent to the bill.
 Reserve the bill for consideration of the President in circumstances when the bill
violates constitution or is against directive principles of state policy or may involve
some kind of conflict with union powers or is against the larger interest of country
and people or may endanger the position of the high court in the state.

Ordinance Making Powers

 As per provisions of Article 213, the Governor has special legislative power of
promulgating the ordinances during the recess of the State legislature.
 To issue an ordinance, the governor must be satisfied with the circumstances that
make it necessary for him / her to take immediate action.
 Governor cannot promulgate an ordinance in any of the three situations give below:
 If the ordinance has the provisions which of embodied in a bill would require
president’s sanction.
 If the ordinance has the provisions which the governor would reserve as a bill
containing them for the president’s sanction.
  If an act of the state legislature has the same provisions that would be invalid
without the assent of the president.
 All ordinances promulgated by the Governor in the state have the same effect and
force.
 The ordinance must be laid before the state legislature when it reassembles and it
must be upheld by the State legislature, failure to which the ordinance would be
invalid.
Powers with respect to Disqualification of members
 Governor decides on the question of disqualification of members of the state
legislature in consultation with the Election Commission.
Reports laid by Governor in state legislature
 Governor lays the reports of the State Finance Commission, the State Public Service
Commission and the Comptroller and Auditor-General relating to the accounts of the
state, before the state legislature.
Financial Powers
 Money bills in the State legislature cannot be introduced without prior
recommendation of the Governor.
 Governor ensures that the Budget of the state is laid before the assembly every year.
The “Contingency Fund of the state” is maintained and administered by the
Governor of the state.
 Governor can advance money out of it for meeting unforeseen expenditures, but the
money has to be recuperated with the authority of the state legislature.
 The Governor of the state receives the report of the States auditor general
pertaining to the accounts of the legislature and puts it before the state legislature.
Judicial Powers
 President of India consults the Governor while appointing the Chief Justice and other
judges of the High Courts of the states.
 President has powers can grant pardon, reprieve, respite or remission of punishment
to persons convicted of an offense against the any law relating to a matter to which
the executive power of the state extends.
 Further, He cannot pardon a person awarded capital punishment, although he can
convert the same into some other kind of punishment. Governor has no powers to
pardon with respect to a sentence in court martial.
Discretionary Powers of the Governor
 The discretionary powers of Governor in state are much more extensive in
comparison to the President in centre in India. For example, Article 163 of the
constitution says that there shall be a Council of Ministers in the states with the
Chief Minister at the head to aid and advise the Governor in exercise his functions,
except those which are required to be done by the Governor on his/ her discretion.
 The constitution further mentions that if any question arises whether a matter falls
within the Governor’s discretion or not, decision of the Governor shall be final, and
the validity of anything done by the Governor shall not be called in question on the
ground that he ought or ought not to have acted in his discretion. Moreover, what
advice was tendered by the Governor to the Ministry cannot be inquired into a
court.
Some discretionary powers are as follows:
 Governor can dissolve the legislative assembly if the chief minister advices him to do
following a vote of no confidence. Now, it is up to the Governor what he/ she would
like to do.
 Governor, on his/ her discretion can recommend the president about the failure of
the constitutional machinery in the state.
 On his/ her discretion, the Governor can reserve a bill passed by the state legislature
for president’s assent.
 If there is NO political party with a clear cut majority in the assembly, Governor on
his/ her discretion can appoint anybody as chief minister.
 Governor determines the amount payable by the Government of Assam, Meghalaya,
Tripura and Mizoram to an autonomous Tribal District Council as royalty accruing
from licenses for mineral exploration.
  Governor can seek information from the chief minister with regard to the
administrative and legislative matters of the state.
 Governor has discretion to refuse to sign to an ordinary bill passed by the state
legislature.
 Thus, though the Governor is made the constitutional head of a state like president
of India, yet there is a thin line as the Constitution empowers the Governor to act
without the advice of the Chief Minister and his council and can use discretion on
certain matters.

Special Responsibilities of Governor

 The constitution has also placed some special powers and functions of Governor in
certain states which need to be exercised in consultation with the Council of
Ministers in state. These include:
 Establishment of separate development boards for Vidarbha and Marathwada in
Maharashtra.
 Establishment of separate development boards for Saurashtra and Kutch in Guhjarat
 Governor of Nagaland has special responsibility with respect to law and order in the
State of Nagaland for so long as in his opinion internal disturbances occurring in the
Naga Hills-Tuensang Area immediately before the formation of that State continues.
 Special powers with respect to administration of tribal areas in Assam.
 Special powers with respect to Manipur with respect to administration of hill areas in
Manipur.
 For peace and for ensuring social and economic advancement of the different
sections of the population in Sikkim.
 With respect to law and order in Arunachal Pradesh.

2. Explain Doctrine of Pitch and Substance.

Ans. Doctrine of Pitch and Substance
 Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most
important or essential part of something’.
 Doctrine of Pith and Substance says that where the question arises of determining
whether a particular law relates to a particular subject (mentioned in one List or
another), the court looks to the substance of the matter.
 Thus, if the substance falls within Union List, then the incidental encroachment by
the law on the State List does not make it invalid.
 This is essentially a Canadian Doctrine now firmly entrenched in the Indian
Constitutional Jurisprudence.
 This doctrine found its place first in the case of Cushing v. Dupey. In this case the
Privy Council evolved the doctrine, that for deciding whether an impugned
legislation was intra vires, regard must be had to its pith and substance.
Need for the Doctrine of Pith and Substance in the Indian Context
 The doctrine has been applied in India also to provide a degree of flexibility in the
otherwise rigid scheme of distribution of powers. The reason for adoption of this
doctrine is that if every legislation were to be declared invalid on the grounds
 that it encroached powers, the powers of the legislature would be drastically
circumscribed.
Incidental or Ancillary Encroachment
Prafulla Kumar Mukherjee v. The Bank of Khulna
 In this case, a State Legislature dealing with any matter may incidentally affect
any Item in the Union List was explained. The court held that whatever may be
the ancillary or incidental effects of a Statute enacted by a State Legislature, such
a matter must be attributed to the Appropriate List according to its true nature
and character.
 Thus, we see that if the encroachment by the State Legislature is only incidental
in nature, it will not affect the Competence of the State Legislature to enact the
law in question. Also, if the substance of the enactment falls within the Union List
then the incidental encroachment by the enactment on the State List would not
make it invalid.
 However, the situation relating to Pith and Substance is a bit different with
respect to the Concurrent List. If a Law covered by an entry in the State List made
by the State Legislature contains a provision which directly and substantially
relates to a matter enumerated in the Concurrent List and is repugnant to the
provisions of any existing law with respect to that matter in the Concurrent List,
then the repugnant provision in the State List may be void unless it can coexist
and operate without repugnancy to the provisions of the existing law.
State of Bombay v. F.N. Balsara
 This is the first important judgment of the Supreme Court that took recourse to
the Doctrine of Pith and Substance.
 The court upheld the Doctrine of Pith and Substance and said that it is important
to ascertain the true nature and character of a legislation for the purpose of
determining the List under which it falls.

3. Discuss in detail whether Indian Constitution is a Federal Constitution.

Identification of Federal features of Indian Constitution.
Ans. Indian federalism: Identification of Federal Features
 Constitutions are either unitary of federal.
 In unitary Constitution, the powers of government are centralised in one
government i.e. the central government.
 In federal Constitution, there is a division of powers between the central and the
state governments.
 The view of the framers of the constitution is that Indian Constitution is a federal
constitution.
 One view is that it is quasi-federal constitution and contains more unitary features
than federal. The other view is that it is federal constitution with a novel feature of
adopting itself to national emergencies.
Essential characteristics of a federal constitution
 Distribution of powers
 There is a distribution of powers between the union and the states.
 Supremacy of Constitution
  Constitution is the supreme law of land. Hence, executive, legislative or judicial
power, whether it belongs to union or state, is subordinate to and controlled by
constitution.
 A Written Constitution
 The foundations of a federal state are complicated contracts. To maintain
supremacy, the constitution must be written. Indian constitution is the lengthiest
constitution of the world.
 Rigidity
 Constitution, the supreme law of land, must be rigid, where the procedure of
amendment must be complicated and should not remain exclusively with the
union or state governments.
 Authority of Courts
 The Judiciary- independent and impartial authority, has the final power to
interpret and guard the entrenched provisions of the constitution.
 Indian constitution possesses all the essential characteristics of a federal
constitution.
 Expressions like ‘quasi-federal’, ‘unitary with federal features’ or ‘federal with
unitary features’ are used by some scholars because they believe that constitution
empowers centre to interfere in state matters and thus places states in a
subordinate position which violate federal principle.
 Indian constitution contains modifications of federal principle is shown in following
matters:
 Appointment of Governors
 The Governors of the states are appointed by the President and answerable to
him. This is, however, not a matter of significance, for, the Governor is only the
constitutional head of the state who shall normally act on the advice of his
ministers.
 Parliament’s power to legislate in the national interest
 Parliament is empowered to make laws with respect to every matter
enumerated in the state list if Rajya Sabha passes a resolution by 2/3 majority
that it is necessary in national interest.
 Parliament’s power to form new states and alter boundaries of existing states
 Parliament may form new states, it may increase or diminish area of any state
and it may alter boundaries or name of any state [Article (3)].
 Emergency provisions
 Constitution envisages three types of emergency-1. National emergency 2. State
emergency 3. Financial emergency. When proclamation of emergency is made,
the normal distribution of powers between centre and states undergo vital
change.
 In short, it may be concluded that the constitution of India is neither purely federal
nor purely unitary but is a combination of both. It is a union of composite state of a
novel type. It enshrines the principle that inspite of federalism, the national interest
ought to be paramount. Thus, Indian constitution is mainly federal with unique
safeguards for enforcing national unity and growth.

Other Important Topics:

o Legislative relations
 o Administrative relations
o Financial relations
o Centre’s power over the states
Unit-3
1. Discuss Methods/types, Necessity and Procedure of amendment.
Amendment of fundamental rights.

Ans. Methods/types:
i. Simple Majority:
 Same as required for passing of any ordinary law by parliament.
 Articles that can be amended by simple majority includes Article 5, 169 &
239-A.
ii. Special Majority:
 Majority of total membership of each house of parliament as well as by a
majority of not less than 2/3 of the members of that house present &
voting.
 All constitutional amendments, other than those passed by simple
majority or requiring ratification by states, comes within this category.
iii. Special Majority & Ratification by States:
 The following articles/provisions requires, in addition to special majority,
ratification (Formal consent) by not less than ½ of the state legislatures-
 Election of President- Article 54 & 55.
 Extent of the executive powers of union & states- Article 73 & 162.
 Articles dealing with judiciary, Supreme Court, high court in the
states & union territories- Articles 124 to 147, 214 to 231, 214.
 Distribution of legislative powers between the centre & the state-
Article 245 to 255.
 Any of the lists of VII schedule.
 Representation of states in parliament IV schedule.
 Article 368 itself.
Necessity of amendment:
 To overcome the difficulties which may encounter in future in the
working of the constitution.
 To adapt itself to the changing need & circumstances of growing people &
nation.
 To correspond with social, economic & political changes in a country.
 To avoid excessive rigidity.
Procedure of amendment:

 A bill for amendment may be introduced in either house of parliament.

  It must be passed by each house by special majority i.e. majority of total
membership of that house and by a majority of not less than 2/3 of the
members of that house present & voting.
 After the bill is passed, it shall be presented to the president for his assent
(approval) who shall give his assent to the bill.
 If Article 368 itself is to be amended, it requires special majority along with
ratification by the ½ of the states.
Ans. Amendment of Fundamental Rights:

Shankari Prasad v. Union of India (1st Amendment, Act, 1951)

 The validity of the 1st Amendment Act, 1951, which inserted Article 31-A &
31-B was challenged on the ground that it takes away or abridges the
fundamental rights which fell within the prohibition of Article 13(2) and
hence was void.
 It was argued that in Article 12, “State” included parliament and the word
“Law” must include the constitution amendment.
 However, the Supreme Court rejected the argument and held that the power
to amend the constitution including the fundamental rights is contained only
in Article 368. The word “Law” includes only an ordinary law exercisable by
the legislative powers.
 Therefore, constitutional amendment will be valid even if it takes away the
fundamental rights.

Sajjan Singh v. State of Rajasthan (17th Amendment, Act, 1964)

 In this case, the validity of the 17th Amendment Act, 1964 was challenged.
 The Supreme Court approved the judgement given in Shankari Prasad’s case
and held that the words “amendment of the Constitution” means
amendment of all constitutional provisions.
 Gajendragadkar, C.J. said that if the constitution-makers intended to exclude
the fundamental rights from the scope of amending power, they would have
made a clear provision in that behalf.
Golak Nath v. State of Punjab
 In this case, the validity of 17th Amendment Act, 1964 which inserted certain
State Acts in Ninth schedule was again challenged.
 The Supreme Court overruled the decision of Shankari Prasad case and Sajjan
Singh case and held that the parliament has no power to take away the
fundamental rights.
24th Amendment Act, 1971
 In order to remove the difficulties created in Golak Nath’s case, the
parliament enacted 24th Amendment Act which made the following
amendments:
  Added a new clause (4) to Article 13- nothing in this Article shall apply
to any amendment of this Constitution made under Article 368.
 Substituted old heading “Procedure for amendment of the
Constitution” with new heading “Power of Parliament to amend the
Constitution and Procedure therefor.”
 Inserted new sub section (1) in Article 368-“notwithstanding anything
in the Constitution, Parliament may, in exercise of its constituent
power amend by way of addition, variation, or repeal any provision of
this Constitution in accordance with the procedure laid down in this
Article”.
 Substituted the words- “it shall be presented to the President who
shall give his assent to the Bill and thereupon”
 Added new clause (3) to Article 368- “nothing in Article 13 shall apply
to any amendment made under this Article”.
2. Explain Basic Structure Theory.

Ans. Theory of Basic Structure:

Basic structure are systematic principles underlying and connecting provisions of the
Constitution. They give coherence and durability to Constitution. These principles are
part of constitutional law even if not expressly stated.
Keshvananda Bharati v. State of Kerala (Fundamental Right’s case)
 The validity of the 24th Amendment Act, 1971 was challenged.
 The petitioners had challenged the validity of the Kerala Land Reforms Act-
Amendment 1971.
 The question was that what was the extent of the amending power conferred
by Article 368 of the Constitution?
 On behalf of Union of India, it was claimed that amending power is unlimited.
 On the other hand, the petitioner contended that amending power is wide
but not unlimited. Under Article 368, parliament cannot destroy the “Basic
Feature” of the Constitution.
 The court overruled the Golak Nath’s case which denied Parliament the
power to amend fundamental rights of citizens.
 Parliament has wide powers of amending the Constitution and it extends to
all Articles, but the amending power is not unlimited and does not include
the power to destroy or abrogate the ‘basic feature’ or ‘framework’ of the
Constitution.
 Certain essential elements of basic structure enumerated in Keshvananda
Bharati case are as under:
 Supremacy of the Constitution
 Republican and Democratic forms of the Governments
 Secular character of the Constitution
  Separation of powers between the Legislature, the Executive and the
Judiciary
 Federal character of the Constitution
Indira Nehru Gandhi v. Raj Narayan
 In this case, Supreme Court applied the theory of basic structure and struck
down clause (4) of Article 329-A which was inserted by the 39th Amendment
Act, 1975 on the ground that parliament cannot destroy the basic structure
of the Constitution.
 In this case, election of the Prime Minister was set aside. Supreme Court held
that it violate the free and fair elections which was a basic postulate of the
democracy.
 Thereafter the Supreme Court added following features to the basic structure
of the Constitution:
 Rule of Law
 Judicial Review
 Democracy, which implies free and fair election
42nd Amendment
 Under this Amendment, clause (4) and (5) to Article 368 of the Constitution
were added.
 It was declared that there shall be no limitation on the Parliament’s power to
amend by addition, variation or repeal of the provisions.
 Thus it was cleared in this amendment that even the “basic feature” of the
Constitution could be amended.
Minerva Mills v. Union of India
 The Supreme Court struck down clause (4) and (5) of Article 368 inserted by
42nd amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the Constitution.
 Limited amending power is a basic structure of Constitution. But these
clauses removed all limitations which was destructive of the basic feature of
the Constitution.
 The Supreme Court held that the basic features of Constitution includes:
 Limited power of Parliament to amend the Constitution
 Harmony and balance between fundamental rights and directive
principles
 Fundamental rights in certain cases
 Power of judicial review in certain cases
 Independence of Judiciary

Unit-4
1. Explain Emergency provisions under Indian Constitution.
 Effects of its Proclamation.
National Emergency
State Emergency
Financial Emergency
Ans. Emergency Provisions:
 The Emergency provisions are contained in Part XVIII of the Constitution,
from Articles 352 to 360.
 The term emergency maybe defined as a difficult situation arising suddenly
and demanding immediate action by public authorities under powers
specially granted to them by the Constitution.
 These provisions are incorporated to safeguard the sovereignty, unity,
integrity and security of the country, the democratic political system, and the
Constitution.
 The Constitution of India provides for three types of emergency:
 National Emergency (Article 352)
 State Emergency (Article 356)
 Financial Emergency (Article 360)
A. National Emergency
 Article 352 provides that if the President is satisfied that the security of India
or any part of India is threatened either by war, external aggression or armed
rebellion, then he may proclaim the emergency. The proclamation may be
varied or revoked by subsequent proclamation.
 The proclamation of emergency must be laid before both houses and it shall
cease to operate at the expiration of one month (prior to 44 th amendment
two months) unless before the expiry of one month it has been approved by
resolution of both houses. A resolution approving the proclamation must be
passed by special majority.
 Emergency can be declared only on the concurrence of the cabinet i.e. Prime
Minister along with Cabinet Ministers. The power to declare emergency can
be exercised only on the advice of Council of ministers.
 Once the proclamation of emergency is approved then it shall remain in force
for a period of 6 months from the date of passing second resolution under
clause (4), unless revoked earlier.
 The President shall revoke the proclamation or a proclamation varying such
proclamation if the Lok Sabha passes a resolution disapproving it or its
continuance.
 In Minerva Mills ltd. v. Union of India, it was held that there is no bar to
judicial review of the validity of the proclamation of emergency. The court’s
power is limited only to examining whether the constitutional provisions
have been followed or not.
Effects of Proclamation of Emergency
 Extension of Centre’s Executive Power [Article 353 (a)]
  During the emergency, the executive power of the union extends to
giving the direction to any state as to the manner in which the
executive power of the state is to be exercised. However, the
executive power of the union to give direction and to make laws shall
also extend to any state other than the state where emergency is in
force.
 Parliament empowered to legislate on State Subjects [Article 353(b)]
 Parliament is empowered to make laws regarding any matters of the
state. The law making power of the state is not suspended during
emergency. The state can make law but it is subject to the overriding
power of the union parliament.
 Centre empowered to alter distribution of revenue between the union and
the state [Article 354]
 The President may alter the financial arrangement between the union
and the state as provided in Articles 268 to 279, by order.
 Extension of life of Lok Sabha [Article 83 (2)]
 During emergency, the President may extend the normal life of the
Lok Sabha by a year each time up to a period not exceeding beyond
six months after proclamation ceases to operate.
 Suspension of Fundamental rights guaranteed by Article 19 [Article 358]
 As soon as the proclamation is made the freedoms guaranteed by
Article 19 are suspended. Article 19 comes to life and begins to
operate when the emergency ends.

44th Amendment Act, 1978

 Two Important changes in Article 358:
 Article 19 will not be suspended if the proclamation of emergency is
declared on the ground of armed rebellion.
 Inserted clause (2) in Article 358 which says that nothing in clause (1)
shall apply to-
a) Any law which does not contain a recital to the effect that
such law is in relation to the proclamation of emergency, or
b) To any executive action taken otherwise than under a law
containing such recital.
 This clause makes it clear that Article 358 will only protect emergency laws
and no other laws which are not related to emergency.
 Two Important changes in Article 359:
 President does not have the power to suspend the enforcement of
fundamental rights guaranteed under Article 20 and 21 of the
Constitution.
 It provides that suspension of fundamental rights under Article 359
will not apply in relation to any law which does not contain a
declaration that such a law is related to emergency in operation when
 it is made or to any executive action taken otherwise than under a law
containing such a recital.
B. State Emergency
 Article 356 says that if the President on the report of the Governor or
otherwise is satisfied that situation is such that government of state cannot
be carried on in accordance with the constitutional provisions, then he may
issue a proclamation.
 By the proclamation:
 The President may hold all or any powers vested in the Governor.
 The President may declare that powers of the state legislature shall
be exercised by the parliament.
 The President may make such provisions as it is necessary for giving
effect to the proclamation.
 But the President cannot hold any powers of the High court or cannot
suspend any constitutional provisions relating to the High court.
 The satisfaction of the President can be challenged on the ground that-
 If it has been exercised Mala fide
 Based on irrelevant ground
 A proclamation issued under Article 356 shall be laid before each house of
parliament and shall remain in force for two months unless before expiry of
that period, it has been approved by both houses.
 The proclamation issued under Article 356 may be revoked or varied by the
President by a subsequent proclamation.
 Judicial guidelines for imposing President’s rule:
S.R. Bommai v. Union of India
 President’s rule was imposed in three BJP ruled states- Madhya Pradesh,
Himachal Pradesh and Rajasthan on the ground that chief ministers of these
states had connections with RSS-a banned organization, and these
governments encouraged their karsevaks to go to Ayodhya. But there were
no proof that they were not following the directions of the centre. So this
case was clear abuse of Article 356.
 The Madhya Pradesh High court held that imposition of President’s rule is
invalid as the Governor failed to explain that how the constitutional
machinery had broken down and there was no evidence that state
governments disobeyed the directions of the centre.
 Just worsening of the law and order situation in a state due to sudden
violence does not need the President’s rule.
 The union government filed an appeal to the Supreme Court. The Supreme
Court held that the dismissal of the government in these states was invalid
because ‘secularism’ is the basic feature of the Constitution and if state
government acts against that then it can be dismissed by the President.
 The Supreme Court laid down the following guidelines:
  Presidential proclamation dissolving a state legislature assembly is
subject to judicial review.
 If a state government works against secularism, President’s rule can
be imposed.
 No wholesale dismissal of opposition ruled state governments when a
new political party assumes power at the centre.
 If President’s rule is imposed only on political considerations the court
can even restore the assembly.
 Imposition of President’s rule and dissolution of state assembly
cannot be done together.
 State assembly cab be dissolved only after parliament approves
central rule.
 The Supreme Court or a High Court can compel the union government
to disclose material on whose basis President’s rule is imposed on a
state.
 The power of the President under Article 356 is a constitutional
power, it is not an absolute power. The existence of material is a
precondition to form the satisfaction to impose President’s rule.
C. Financial Emergency
 Article 360 provides that if the President is satisfied that situation has arisen
whereby the financial stability or credit of India or part of the territory
thereof is threatened, he may by a proclamation make a declaration to that
effect.
 The proclamation shall cease to be in operation at the expiry of two months
unless it has been approved by both houses of parliament.
 Such a proclamation may be revoked or varied by the President by a
subsequent proclamation.
 But if the Lok Sabha is dissolved during the period of two months and
resolution is approved by the Rajya Sabha, but not by the Lok Sabha the
proclamation shall cease to operate at the expiry of 30 days from the date
on which the date on which the new Lok Sabha sits unless before the expiry
of 30 days a resolution approving proclamation is passed by Lok Sabha.
 The President can issue directions for the reduction of salaries and
allowances of all or any class of persons serving in connection with the
affairs of the union, including the judges of Supreme Court and High Court. It
can also require that all money bills and other financial bills passed by the
state legislature be reserved for his consideration.
 The duration of proclamation will be in operation for two months and unless
approved by President it shall cease to operate at the expiry of two months
period.

Unit-5
1. Discuss Constitutional Safeguards in protecting Independence of Judiciary.
 Ans. Independence of Judiciary
 Impartial and independent judiciary can protect the rights of individual and
provide equal justice without fear or favour.
 Therefore, it is necessary that the Supreme Court should be allowed to perform
its function in an atmosphere of independence and free from all kinds of
political pressures.
 The constitution has made several provisions to ensure independence of
Judiciary.
 Security of Tenure
 The Judges of the Supreme Court cannot be removed from office except by
an order of the President and that also on the ground of proved
misbehaviour or incapacity supported by special resolution.
 Salary of Judges fixed, not subject to vote of legislature
 The salary and allowances of Judges of SC are fixed by Constitution and
charged on the consolidated fund of India. They are not subject to vote of
legislature.
 Parliament can extend, but cannot curtail the jurisdiction and power of SC
 In respect of jurisdiction, parliament may change pecuniary limits for appeal
in SC in civil cases, enhance appellate jurisdiction of SC, confer
supplementary power to enable it to work effectively, confer power to issue
directions, orders or writs including prerogative writs.
 No discussion in legislature on the conduct of the Judges
 Neither in Parliament nor in a state legislature a discussion can take place
with respect to conduct of Judge of SC in discharge of his duties.
 Power to punish for its contempt
 SC and HC have power to punish any person for its contempt.
 Separation of Judiciary from executive
 Article 50 directs the state to take necessary steps to separate the Judiciary
from executive in public services of the state. It emphasis the need of
securing the Judiciary from interference by executive.
 Judges of SC are appointed by executive with consultation of legal experts
 Executive is required to consult Judges of SC and HC in appointment of
Judges of SC. Appointment of officers and servants shall be made by Chief
Justice or such other judge as he may appoint.
 Prohibition on Practice after Retirement
 Article 124(7) prohibits retired SC judge to appear and plead in any court or
before any authority within the territory of India.
 Thus the position of SC is very strong and its independence is adequately
guaranteed.
2. Explain Jurisdiction of Supreme Court of India.

Ans. Jurisdiction of Supreme Court

Original Jurisdiction:
  A court is said to have original jurisdiction when it possesses the authority to
hear and determine the case in the first instance. This type of jurisdiction has
been dealt with in Article 131 of the Constitution.
The Supreme Court of India possesses original and exclusive jurisdiction in any dispute:

 Between the Government of India, and one or more states or

 Between the Government of India and any state or states on one side and one or
more other states on the other or
 Between two or more states.
 The dispute relating to the original jurisdiction of the Court must involve a question
of fact or law on which the existences of a legal right depends.
 A legal right is defined “as any advantage or benefit which is in any manner
conferred upon a person by a rule of law”.
 The Supreme Court has no original jurisdiction in disputes between individuals or
between associations or local bodies.
 It is not authorized to investigate a dispute arising out of any treaty, covenant,
engagement or agreement which was entered into before the commencement of
the Constitution. These disputes may be referred by the President to the Supreme
Court for its advisory opinion.
Parliament may, by law, exclude the jurisdiction of the Supreme Court in:

 Disputes between States regarding the use, distribution or control of waters of any
inter-state river or river valley.
 Matters referred to the Finance Commission
 Adjustment of certain expenses between the Union and the states under Article 290.
 Disputes specified in the provision to Articles 131 and 363(1).
 Adjustment of expenses between the Union and the states under Articles 257 (4)
and 258(3).
Appellate Jurisdiction:
 The Supreme Court, as the highest Court of Appeal, stands at the apex of the Indian
judiciary.
 The appellate jurisdiction of the Court can be divided into four main categories of
cases; Constitutional, Civil, Criminal and Special.
Constitutional Cases
 According to Article 132(1) an appeal shall lie to the Supreme Court from any
judgement, decree or final order of a High Court in the territory of India, whether in
a civil, criminal or other proceedings, if the High Court certifies that the case involves
a substantial question of law as to the interpretation of the Constitution.
 If the High Court refuses to give such- a certificate, the Supreme Court can grant
special leave to appeal, if the Court is satisfied that the case involves a substantial
question of law as to the interpretation of the Constitution.
 In the Election Commission vs. Venkata Rao (1953) a point was raised as to whether
appeal lay to the Supreme Court in a constitutional matter under Article 132 from a
decision of a single judge.
 The Supreme Court answered the question in the affirmative. This makes the Court
the ultimate interpreter and saviour of the Constitution.
Civil Cases
  The Supreme Court’s appellate jurisdiction in civil cases is of limited character. In civil
matters after passage of the 30th Constitutional Amendment Act of 1972 (where no
constitutional question is involved), appeal could lie to the Supreme Court, if the
High Court certified that any of the under-mentioned conditions were satisfied:
 That the amount or the value of the subject matter of the dispute is not less
than Rs. 20,000,
 That the case is a fit one for appeal to the Supreme Court irrespective of
value.
 It may be pointed out that the appellate jurisdiction of the Court in civil cases can be
enlarged, if Parliament passes a law to that effect.
 Further if the court is hearing the appeal, it is open to any party to challenge a
decision of the High Court as invalid sofar as it deals with the interpretation of the
constitution.
Criminal Cases
 The Draft Constitution had made no provision for the appellate jurisdiction of the
Court in the criminal cases. Many members considered it a serious omission of the
Constitution.
 Eventually the provision was incorporated in the Constitution, substantially
conforming to the views of K.M. Munshi.
 There are only two modes by which appeals in the criminal matters lie from the
decision of a High Court to the Supreme Court, i.e.,
 Without a certificate of High Court;
 With a certificate of the High Court.
(i) Without Certificate:
 An appeal lies to the Supreme Court without a certificate, if:
 The High Court has reversed an order of acquittal of an accused and sentenced
him to death.
 If the High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such a trial convicted the accused person
and sentenced him to death.
 For instance in Tara Chand vs. State of Maharashtra the accused charged for
murder was acquitted by the Trial Court.
 The High Court reversed the order and convicted the accused of murder and
sentenced him to death.
 The Supreme Court rejecting the argument on behalf of the State said that the word
acquittal meant complete acquittal and that the accused was entitled to a certificate
under Section 134 (i) (a).
(ii) With Certificate:
 An appeal lies to the Supreme Court from a decision of High Court in criminal
proceedings, if the High Court certifies that the case is a fit one for appeal to the
Supreme Court.
 Parliament can, by further passing an Act, extend the jurisdiction of the Supreme
Court in criminal matters. But the enhancement of its jurisdiction “ought to be
made, having regard to the enlightened conscience of the modern world and the
Indian people.”
  In fact, if we go through hundreds of cases decided by the Court, under appellate
jurisdiction, we feel enamoured of the Fathers of our Constitution who incorporated
these provisions in the constitution.
Special Appeals (Article 136)
 Though Articles 132 to 134 of Indian Constitution provide for regular appeals to the
Supreme Court from decisions of the High Courts, yet some cases may still crop up,
where justice may be at stake.
 Hence, the interference of the Supreme Court with decisions not only of the High
Courts outside purview of Articles 132 to 134 but also of other tribunals located
within the territory of India may be indispensable. Such residuary power outside the
ordinary law relating to appeals, is conferred upon the Supreme Court by Article 136.
 Article 136 states, “Notwithstanding anything in this chapter, the Supreme Court
may in its discretion, grant special leave to appeal from any judgement, decree,
determination, sentence or order in any tribunal in the territory of India.”
Advisory Jurisdiction:
 A salient feature of the Supreme Court is its consultative role. In fact, it is a legacy of
the past. A similar role was assigned to the Federal Court according to Section 213 of
the Act of 1935.
 According to Article 143, (i) the President of India is empowered to refer to the
Supreme Court any question of law or fact of public importance. There is no
constitutional compulsion for the Court to give its advice.
 Evidently the Supreme Court may refuse to express its advisory opinion, if it is
satisfied that it should not express its opinion keeping in view the nature of
questions forwarded to it and having regard to other relevant facts and
circumstances, e.g., if the questions referred for advisory opinion are purely socio-
economic or political questions having no relation with the provisions of the
Constitution or having no constitutional significance.
 Moreover, it is left to the Court to decide as to what type of hearing it will adopt.
Eventually, the Court has adopted the same procedure, as in the case of a regular
dispute brought before it. The advice of the Court is not binding on the President.
 Under section (2) of Article 142, the President is empowered to refer to the Supreme
Court for its opinion, disputes arising out of any treaty, agreement etc., entered into
or executed before the commencement of the Constitution. In such cases, it is
obligatory for the Court to give its opinion to the President.
Other Important Topics:
o Special leave petition
o Power of HC to issue writs
o Power of Superintendence
o Judges: appointment, removal, transfer and condition of service
o Judicial Review: nature and scope

Unit-6
1. Discuss provisions relating to Trade, Commerce and Intercourse.
Also discuss Restrictions on trade and commerce.
Ans. Trade, Commerce and Intercourse
 Free movement and exchange of goods throughout the territory of India is
essential for economy of the country.
 Prior to the new constitution, there were custom barriers between the states.
 Thus the main object of Article 301 was to breakdown the barrier between the
state and encouraging the free flow of trade and commerce throughout the
territory of India.
 Article 301 includes freedom of inter-state and intra-state.
 Article 301 will be violated where restrictions are imposed at the frontier of
state. But the freedom guaranteed by Article 301 is not absolute freedom i.e. it
is subjected to restrictions contained in Article 302 to 305.
 Restrictions from which the freedom is guaranteed should be such restrictions
which directly and immediately restrict the free flow of movement of trade.
Hence, it is violative. But incidental or indirect restriction is not violative.
 Trade- Buying or selling of goods.
Commerce- includes all form of transportation such as land, air or water.
Intercourse- movement of goods from one place to another.
 There is a clear distinction between law interfering with freedom to trade and
law imposing rules for proper conduct or due manner for carrying out the trade.
 A purely regulatory and compensatory law cannot be regarded as violative of
freedom of trade and commerce for eg. Traffic regulations, licensing of vehicles,
tax or toll for use of road or bridge, etc.
 Case laws:
 Atiabari Tea co. v. State of Assam
 The validity of Assam Taxation Act of 1954 was challenged on the ground
that it violated Article 301 and was not saved by Article 304(b).
 While passing through Assam the tea was liable to tax under the said Act.
 SC held that the impugned law undoubtedly levied a tax directly and
immediately on the movement of goods and therefore came within the
purview of Article 301.
 The Act was, therefore, held void.
 The court said that taxes may and do amount to restrictions if they directly
and immediately restrict trade.
 Automobile Transport Ltd. v. State of Rajasthan
 The validity of Rajasthan Motor Vehicles Taxation Act, 1951 was challenged,
inter alia, as violating Article 301.
 The state government imposed a tax on all motor vehicles used and kept
within the state.
 The court held the tax as valid as they were only regulatory measures
imposing compensatory taxes-for facilitating trade, commerce and
intercourse.
 A compensatory tax is not a restriction upon the movement part of trade
and commerce.
  The majority judgement in the Atiabari’s case read with a majority judgment
in the Automobile’s case lead to the following principles relating to Article
301:
i. Article 301 assures freedom of inter-state as well as intra-state trade,
commerce and intercourse.
ii. Trade, commerce and intercourse have the widest connotation and
take in movements of goods and persons.
iii. The freedom is not only from laws enacted in the exercise of the
powers conferred by the legislative entries relating to trade and
commerce or production, supply and distribution of goods, but also to
all laws including tax laws.
iv. Only those laws whose direct and immediate effect to inhibit or
restrict freedom of trade or commerce will come with mischief of
Article 301.
v. Laws which are merely regulatory or which impose purely
compensatory taxes, and hence intended to facilitate freedom of
trade, are outside the scope of Article 301.
 M/s. Video Electronics Pvt. Ltd. v. State of Punjab
 In this case, the petitioners contended that the manufacturers of local
goods were entitled to the exemptions while the manufacturers of other
states were liable to pay tax and thus it violates Article 301.
 The court ruled that the notification issued by the state of U.P. under U.P.
Sales Tax Act, 1948 and Central Sales Tax Act, 1956 exempting local
manufacturers is not violating Article 301 because this exemption was for
providing incentive to the local manufacturers.
 M/s. B.R. Enterprises v. State of U.P.
 The validity of the Lotteries Act, 1998 passed by Parliament was challenged.
 The state of U.P had passed an order banning the lotteries of other states by
virtue of power entrusted under section 5 of the said Act.
 It was contended that section 5 of the said Act and the rules made are
violating Article 301.
 The SC held that lottery contains elements of chance which makes the
lottery a gambling.
 Sale of lottery tickets even through the state cannot be analysed as trade
and commerce. Even if it is analysed, it cannot be given the status of ‘trade
and commerce’ as understand in general scenario.
 Hence, the Act and order is not violative of Article 301.
 Restrictions on Trade and Commerce
 Article 302
 Parliament’s power to regulate trade and commerce in public interest.
 Parliament can restrict the freedom of trade and commerce between
interstate or intrastate for public interest.
  Parliament has the sole power to decide which restrictions are imposed in
the public interest.
 Article 303(1)
 Parliament shall not have power to make any law giving preference to one
state over another.
 Article 303(2)
 Parliament may discriminate among the states if it is necessary to do so for
dealing with situation arising due to scarcity of goods.
 Article 304(a)
 State can impose any tax on goods imported from other state if similar
goods in the state are subject to similar tax.
 Article 304(b)
 A law passed by state to regulate interstate trade and commerce must
satisfy the following conditions:
i. Previous sanction of the President must be obtained
ii. The law must be in public interest
iii. Restrictions imposed by such law must be reasonable
 Therefore it can be seen that Parliament has wide powers to regulate trade
and commerce.
 Article 305
 It saves existing laws and laws providing for state monopolies subject to
direction of the President.
2. Explain Doctrine of Pleasure and also Article 311.
Ans. Doctrine of Pleasure
 Doctrine of Pleasure is drawn from Latin word ‘durante bene placito’ which
means during pleasure.
 The doctrine of pleasure is a common law rule.
 This doctrine has its origin in England and is a special prerogative of the British
Crown.
 The tenure of office of a civil servant can be terminated at any time without
assigning any cause.
 Even if there exists any special contract between the Crown and the civil
servant concerned, the crown is not bound by it.
 Doctrine of pleasure under Indian Constitution is also based on the same policy
considerations as it existed under the common law in England.
 This doctrine of pleasure is embodied in Article 310(1). It reads as follows-
 Every person who is a member of a defence service or of a civil service of the
Union or of an all India service or holds any post connected with defence or civil
post under the Union, holds office during the pleasure of the President,
 And every person who is a member of a civil service of state or holds any civil
post under state holds office during the pleasure of the Governor of the state.
  The following are expressly excluded by the constitution from the rule of
pleasure. They are-
 Supreme Court Judges, Article 124
 Auditor General, Article 148
 High Court Judges, Article 217,218
 Member of Public Service Commission, Article 317
 Chief Election Commissioner
 Article 311 of Constitution of India states that:
 No person who is a member of civil service of the Union or an all India
service or a civil service of the union or state or holds a civil post under
the union or state shall be dismissed or removed by an authority
subordinate to that by which he was appointed.
 No such person as aforesaid shall be dismissed or removed in rank
except after an inquiry in which he has been informed of charges against
him and given a reasonable opportunity of being heard in respect of
those charges: Provided further that this clause shall not apply-
i. Where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal
charge
ii. Where the authority empowered to dismiss or remove a person or
to reduce him in rank satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably practicable to hold
such inquiry
iii. Where the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the state it is not expedient to
hold such inquiry.

NOTE: For revision purpose only. Contains solution of past paper questions. Students are advised to refer complete
syllabus. Prepared from J.N. Pandey’s Constitutional law of India and other sources.