4/16/2019

Presented by: Dr. Atmaram Shelke

State –International Law- ‘an independent political

entity’

Police state-A)
A) Law and order state/police state-1)
state
Defending Country-Internal /External 2) Law and
order 3) Dispensing
D justice 4) Collection of tax.
tax

-Change is philosophy: Divine origin /Patriarchal and

Matriarchal /Historical theory /Force theory
Status Quo = State of -activism
B) Welfare-(Social
Welfare Contract- Sovereignty)-
Sovereignty
-1) Protector-(More
Protector than defed.) 2)Provider
Provider 3)
Entrepreneur 4)Economic
Economic Controller 5) Arbiter
***
- Parens patriae

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In order to perform function :

In welfare state-
state a) There was need to adopt new
philosophy/desirable goals-
goals- USA+ India

b) There was need to establish/create

establish/create organs-
organs- US+India

c) Function and mutual -relations

relations between organs-
organs-powers &
limit -power.

d) Limited governance: Since the welfare state-

state-trustee of
power of people –Human right-birth
right birth right=
right there was need to
protect basic rights.

united-
Need to form: Confederation or need of united - India+pak+USA

=Legal
Legal System:
System 1) Law Governing state-supreme lex/ organic
law 2) Law governing human conduct

CONSTITUTION
Broader Sense Narrow sense
(UK) India + US
Collection of rules Selection of rules
(Legal –binding-
binding-DP/Preamble)
Legal Non-
Non-Legal -By sovereign
Binding Non-
Non -binding -behalf (rep.)

Parliament Act, 1911/149 (Conventions) Constituent assembly

Crown Proceedings Act, 1947 -Queen shall not refuse Documented
Human Rights Act, 1998 assent to bill (UK) Supreme Lex
Decisions of the courts PM-
PM -Should belongs to commons –UK -Difficult to Amend
(124)-
Senior most judge CJ (124) -India -Limitations
PM-
PM Majority-
-leader of Majority -Art. 75(1)
-President bound –advice (UK+ India)Art. 74/-
74/-42-
42-76
- Leader of opposition -10% Majority

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Wade & Phillips: The Constitution of a country seeks to

establish its fundamental or basic or apex organs of the
government and administration,
administration describe their structure,
composition, powers and principle functions,
functions define the
inter-
inter-relationship of these organs with one another and
regulate their relationship with the people,
people more particularly
the political relationship.

Constitution is a document:
A) Establishing fundamental organs: Govt. & administration-
B) Descries-structure,
Descries composition, powers and principle
function-Comp-Art. 79/80/124 etc.
C) Defines-inter-relationship=organs-(check
Defines and balance)=
People

Constitutionalism???

1) According to form: Codification-

Codification Written or
unwritten

2) According method of amendment-

amendment Rigid or
flexible

3) According to method of division of power-

power
Federal, Unitary or quasi –federal

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Dicey Introduction to the Law of the Constitution, -1885

Dicey-
i) Supremacy of law-opposed
law opposed to the influence of arbitrary
power and wide discretionary power.
“Wherever there is discretion, there is room for arbitrariness
…”
-Wade- “Every govt. must subject to law not law sub. to govt..”
-discretionary- must mean insecurity for legal freedom
***
ii) Equality before law- French- Droit
law- England –criticized –French-
Administratif
Lord Denning – ‘our English law does not allow a public
administratif.
officer to shelter behind a droit administratif
** **** *****
iii) Predominance of legal spirit-
spirit- judge made law-
law- “Habeas
Habeas
Corpus –declares no principle and define no rights,
rights but they
are for practical purposes worth a hundred constitutional
articles guaranteeing individual liberty” Only declaration –
little value. * **

Criticism-
Criticism-
a) Paton-
Paton-Jurisprudence-
Jurisprudence- Principles –adopted in English System-
System- result of “Political
struggle” and not “logical deductions from a Rule of Law”

b) Fail to distinguished arbitrary powers from discretionary powers

C) France Administrative Actions were not immune from the judicial scrutiny-
scrutiny
Wade & Forsyth –Adm. Law (2005)
(Tribunal- Counseil d’Etat-
d’Etat appeal)

d) Wade & Forsyth –Adm. Law (2005)- ‘TheThe King can do no wrong’
wrong –not correct to
say that there was equality before law in stricto sensu even in England
-Ignored
Ignored –immunities given to King/ Parliamentarian

Supremacy of law over parliament –UK???

****

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Preamble –Source
Source of Constitution/Justice, Liberty and Equality

Part-
Part-III-Art.
III 13-Art. 21-procedure
procedure of law/14
****
-245(1);
245(1) -sub.
sub. Provision –parliament –whole or part of territory

-Govt.
Govt. and public-
public subject to –ordinary court

-Rule
Rule of law Basic structure-
structure Indira Nehru Gandhi v. Raj- 1975

-Powerful
Powerful judiciary-
judiciary judicial review –basic
basic structure-L.
structure L. Chandra
Kumar case-
case-1997 (2) SCR 1186

Amending process-368
368-
368-Basic Structure-
Structure absolute supremacy of law
***

Habeas Corpus Case- A.D.M. Jabalpur v.

Shivakant Shukla (1976) 2 SCC 521
(Five Judges:: Ray,
Ray Khanna,
Khanna Beg, Chandrachud,
Bhagwati)
*
**
-Emergency– ‘internal
internal disturbance’-Sups.
disturbance Art.
19-Art. 358

Leader of opposite parties were arrest –MISA-

1971

-Preventive + Punitive arrest

-Non disclose –grounds

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June 25, 1975,

1975 Art.352(2) of the Constitution
declared that a grave emergency exists whereby
the security of India is threatened by internal
disturbances.
disturbances

Suspension of Fundamental Rights:

Art. 359 (1) the President declared -right of any
person - to move any court for the enforcement
of the rights – Art.-
Art.-14, 21, 22 - pending in any
court for the enforcement of the above
mentioned rights shall remain suspended for the
period during-
during emergency

The President -amend

amend -ordinance-
ordinance No. I and 7 of 1975 -
introducing a …
=new section 16A-
16A-removed-
removed-right to know-
know-
grounds/satisfaction
grounds/satisfaction-
satisfaction-final/
final/Made-
Made-communication/disclosure-
communication/disclosure-
material etc-
etc- containing grounds-
grounds-illegal.
****
Exclusion of Natural and Common Law:
By the same Act a new section 18 was also inserted with effect
from June 25, 1975-excluded
1975 excluded –application of natural or common
law.

38 & 39 amend-Constitution
amend renders the satisfaction of the
President or the Governor in the relevant Articles final and
conclusive and to be beyond any question in any court on any
ground.

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Retrospective effect:
effect: All the amendments made by the (ordinance
were given retrospective effect for the purpose of validating all
acts done previously.
previously.

Challenged -High Courts: The respondents detained under S. 3

of the maintenance- MISA, -1975 challenged in several High
Courts-
Courts-the vires of the ordinance issued on June 27, 1975, by
the President of India as unconstitutional and inoperative in law

And prayed for:

for

(a) the setting aside of the said order and

(b) for directing their release forthwith.

In some cases, they challenged the validity of the 38 & 39

constitution Amendment Acts.

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High courts broadly took the view that:

Writ: H.C. –Allahabad, Andhra Pradesh, Karnataka, Madhya Pradesh, Punjab:
Punjab:-
-
**
(a) Despite the Presidential order it is open to the detenus to
challenge their detention on the ground:

Court can issue writ/

writ/ entertained matter:
1) Detained other than compliance with law or
2) Under Circumstances which pointed to Mala Fides.
3) Ultra vires-authority not empowered to pass-
pass-not according to
law/
4) Irrelevant consideration/
5) Non-
Non-application of mind etc.

Emergency could not prevent person from approaching the

court.
Appeal to SC/
SC/ Accepting the States' appeals, some by certificates
granted by the High Court-special
special leave.

Arguments (Additional Solicitor General):

Art. 21 is sole repository-

repository-Life and personal liberty.

(359(1))-No locus standi-

-Right to move suspended (359(1))- standi-must be dismissed-
dismissed-without
any further inquiry.

Non-
Non- disclosure of the ground –permitted under MISA-
MISA- subjective satisfaction.
satisfaction.

Section 16 A (9)-
(9)-Constitutes -rule of evidence-
evidence-no court can ask for production of
file relating to detenu / or disclosure of grounds/
grounds/ No adverse inference /
16A(9)-
16A(9)-permits disclosure to court-
court-Limited to:
to: –

A) Whether-
Whether-order-
order-made-
made-in exercise –power-
power-by law.
law.
B) If such law-
law-pre-
pre-emergency-
emergency-valid law.
law.
C) whether authority –duly empowered.
empowered.
D) whether person detained named-
named-order.
order.
E) Whether –stated purpose-
purpose-comes within –law.
F) Have the procedure (under law) followed.
G) Grounds furnished (if 16A-
16A-Not applied).
(Facts,
Facts, need etc.?? Case to case basis-
basis- analysis??//irrelevant
analysis??//irrelevant Consideration/Mala
fide intention/Non-
intention/Non- application of mind… can not be challenged before court...)

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On behalf of respondent: Detenues…

Detenues…
1) Object of 359(1) is to give free hand to legislatures –they can make laws in
violation of fundamental rights. –not to executives

2) Constitution divides function:-

function:-executive, judicial, legislatures-
legislatures-executive
function shall be discharged consistence with valid laws (legislature) and
judicial orders/ susp.
susp. F.R. does not give them any power to flout law (MISA).
(MISA).

3) 359(1)-
359(1)-may remove fetters imposed by part-
part-III-
III-cannot remove –fetters
arising -rule of law or checks and balance=principle
balance=principle of separation of power.
power.

4) The obligation cast on executive: to act accordance with law does not
arise-
arise-Article-
Article--from inherent compulsion arising from the principles of Rule
of law-
law-which central and basic feature of constitution.

The suspension of Art. 21-

21-does not automatically entail the suspen.
suspen. of rule
of law-
law-even during the emergency-
emergency-rule of law is not and cannot be
suspended.
suspended.

5) Presidential order u/Art. 359(1)-

359(1)-may bar -Art-
Art-32 SC-
SC-Cannot bar-
bar-226-
226-
enforcemnt of rights-
rights-other than F.R.

6) Common law rights to personal liberty-can

liberty can be enforced through writ-226226-
226
despite presidential order u/s-
u/s-Art. 359(1)-similarly
359(1) similarly-contractual
similarly contractual rights, natural
rights, and non-
non-Fundamental constitutional rights -can be enforced-
enforced-F.R.-
F.R. ‘any
other purpose’.
purpose’
(Non-fundamental constitutional rights-(73-256, 265, 361(3))-
73-Extent
73 of Executive powers of union/ 256-State-excutive power as per law/
265-Tax without law/ 300A/ 311 constitutional non-fundamental rights/)

7) The essence of inquiry in habeas corpus petition:-

petition: is –whether-detention is
justified by law or is ultra vires-the
vires law.-such inquiry is not shut out by the
suspension of right to enforce F.R.

8) If presidential order is construed as a bar to the maintainability of writ-

writ-U/A-
U/A-
226-that
226 Article shall have been amended -without a proper and valid
constitutional amendment Art. 226-
226-cannot be barred.

9) Article 21-not
not sole repository of right to life/personal liberty. There is no
authority for proposition that –Conferment of F.R.-by Part-III-corresponding-pre pre-
pre-
existing rights merged with F.R.
F.R. and with suspension of F.R. –corresponding pre-pre-
existing rights also got suspended.

10) Suspension of right to enforce Art. 21-cannot

cannot put a citizen in a worse position
than in the pre-
pre-constitutional period.
period Pre- constitutional-right
right in rem. Pre-
constitutional-right not to be detained,
detained save under the authority of law.
law

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11) Civil liberty or personal liberty-not

liberty not positive rights-negative
rights negative
concept-
concept constitutes an area of free action because no law exists
-curtailing it or authorizing its curtailment.

12) Section 16A(9)-

16A(9)-MISA-unconstitutional
MISA unconstitutional as it encroaches upon
H.C. power-
power-U/A-
U/A-226-by
226 creating presumption that the grounds
on which order is made, information, materials on which
grounds are based –shall be treated as confidential.

13) Dismissal of writ –on the ground –presidential

presidential order –U/A
359(1)-would
359(1) necessarily mean that during the emergency-no
emergency no
person has any right to life or personal liberty and

14) If the detenus are denied any forum for –redress

redress-would
redress open
executive-to
executive whip, starve, keep them in solitary confinement and
even to shoot them.
them The presidential order cannot permit the
reduction of Indian citizens into slaves.

Issue: 1: Maintainability of petition for Habeas Corpus-during emergency?

(Art-14, 19, 21 and 22-Susp-by presidential Order.)

Per Ray-Community
Ray Community may require govt. control over activities of the individuals:
Court of law in normal time-competent
time competent to weigh –competing
competing claims-individuals
claims individuals
and govt. –they (court) –not
not equipped-
equipped (emergency
emergency-
emergency recognized-war and account
of security of country) to measure-community
measure community may require govt. control over
activities of the individuals.
individuals

Liberty-confined
Liberty confined and controlled by law-whether common or statute/it is regulated
freedom/ It is not abstract or absolute freedom.

Emergency – extraordinary situation-Limited

situation Limited period.

Liberty itself is gift of –Law-forfeited

Law forfeited or abridged.
abridged

person locus standi -(359(1))

No person- (359(1))-226
(359(1)) 226

If there is a power, extreme examples will neither add to the power or rob the
same.
same

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Fundamental law found in constitution-paramount.

paramount.

Suspended-
Suspended No right –time
time being-object-avoid
being -judicial
judicial
intervention.
intervention
No Locus standi- detenu –other
other cannot claim.
claim

16 (9)- intention of parliament is clear- Presumption of validity.

validity

Criticism:-
Criticism
(Parliament-16(9)
16(9) v. 226 of the constitution of India)
(Right –Constitution –suspension- other rights.)
rights
-any
any other purpose-
purpose-legal right/common
right law- v. Law made by
parliament-
parliament-245)

J. Chandrachud-similar views.

Bhagwati J.- 1975-emergency

emergency was not challenged-If
challenged emergency
is valid-
valid we- equally presume –genuine and give full effect to it ,
without any hesitation or reservation.

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J. Beg:-What
Beg: What restriction-during
restriction national emergency (in the interest of
matter of policy-outside
national security)-matter policy outside the sphere of judicial
determination.

Constitution-determined
Constitution determined-
determined-sphere-executive
sphere executive-with
executive with meticulous care and
precision.
Judicial function –wider
wider –interpreting-14/19/21
14/19/21 /22-suspended
/22 suspended –
suspension -does
does not and cannot mean retention under disguise.
disguise

Habeas Corpus-also-deprivation
Corpus deprivation of liberty-object
liberty object of suspension.
suspension

-the intention of the parliament seems –clear and enough –by –provision
16A (including inquiry)

Detention order-made
order made conclusive.
conclusive

If such order is shown to exist –in response to the Habeas Corpus

Petition- H.C. cannot inquire –its validity –mala fides-
fides-non-
non- compliance
with provisions –MISA
MISA.
MISA

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‘right to move..’ - wide enough-

enough to include
all claims-in
in any court.
court

J. Bhagawati- protection of personal liberty

and supremacy of law-which
law sustain it must
be governed by the constitution itself.

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J. Khanna (dissenting):-

Art. 21 cannot be claimed –sole

sole repository of –life and
liberty.

Life and personal liberty-most

liberty precious right-in
right civilized
society-governed –by rule of law.
society law

Effect of suspension-court
suspension would –no- reliance can be
placed-Art. 21-for
placed for obtaining relief.
relief

-There is no antithesis-between-power
antithesis power-
power-deten.-power
deten of
courts only to ensure –detaining authority acts in
accordance with the law-preventive
preventive detention.
detention
*

Issue -2: Art. 21 sole repository/

repository statutory right/ common law / natural law-
( Cr. P. C.-Torts
Torts):
Torts

J. Ray :-Law
Law –state made law-

Art. 21 is rule of law-regarding

law right of life and liberty-
liberty Constitution
-no
no other rule of law can have separate existence as a distinct right.
right

-Negative
Negative language –imposes limitations on power of state-corresponding
guarantee of the individual-Limitations
Limitations and guarantee are complementary.

Pre-Constitutional rights-elevated
elevated to F.R. –Source-Part-III
Pre-constitutional right- shall grouped together as a F.R.
-otherwise
otherwise Art. 359(1)-will
359(1) be - exercise in futility.
futility

-The common law has–no

no separate existence under Constitution.

-therefore –Art.
Art. 21 is sole repository –life & liberty-against
against state.
- Further-Art. 21-not
not a common law-law- no common law right –corresponds
corresponds to
F.R. exist as a distinct right apart from –F.R.

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J. Khanna (dissenting)-Art. 21 –cannot

cannot sole
repository-Most precious rights –civilized
civilized
societies.

-Sanctity
Sanctity of life and liberty-not
not new when
constitution drafted-not
drafted –-deprived---was not
the gift of the constitution.

It was necessary corollary of concept relating to

sanctity of life and liberty- it existed and enforce
–before
before –constitution.
constitution
****

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Joseph Raz:
Raz:
Certain procedural values inseparable from the
law: internal morality;
morality

F. A. Hayek-
Hayek-ideal of the rule of law: ‘stripped
stripped of
all technicalities this means that government in
all its actions is bound by rules fixed and
announced beforehand—rules
beforehand which make it
possible to foresee with fair certainty -how
how the
authority will use its coercive powers in given
circumstances,
circumstances and to plan one’s individual
affairs on the basis of this knowledge’.
knowledge’

1 959 the International Congress of Jurists

-meeting in New Delhi gave official blessing to a similar perversion of
the doctrine of the rule of law.

“The function of the legislature in a free society under the Rule of Law is
to create and maintain the conditions which will uphold the dignity of
man as an individual. This dignity requires not only the recognition of
his civil and political rights but also the establishment of the social,
economic, educational and cultural conditions which are essential to the
full development of his personality .

Joseph Raz-
Raz
Broadest sense-people
sense people should obey the law and be ruled by it.
it

Narrow-political
Narrow political and legal theory-
theory government shall be ruled by the law
and subject to it./‘government
government by law and not by men’.

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(1 ) All laws should be prospective, open, and clear:

(2) Laws should be relatively stable...

stable

(3) The making of particular laws (particular legal orders) should be guided
by open, stable, clear, and general rules.

4) The independence of the judiciary must be guaranteed.

(5) The principles of natural justice must be observed.

(6) The courts should have review powers over the implementation of the
other principles.

(7 ) The courts should be easily accessible.

accessible

(8) The discretion of the crime-preventing agencies should not be allowed to

pervert the law.
**

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1) All laws should be prospective, open, and clear:

* *** ****
(20(1)) :convicted of any offence/Penalty
◦ Harla v. State of Rajastan AIR 1951 SC 467 (Jaipur Opium Act, 1923)
1923)
◦ Delegated legislation -secrete process-
process-Public or representative of public have no access-
access-
can affect-
affect-lives, liberty or property.
◦ -Publication of some reasonable sort is essential.
◦ *****
Clear:-
Clear:- Shreya Singhal vs Union of India -2015-
2015-66A-
66A-vague… “annoying,” “grossly
offensive,” “menacing,”, “causing annoyance.”-open
annoyance.” open to misuse-
misuse-arbitrary

Prospective-
Prospective guide (Law is not always common sense- )

(2) Laws should be relatively stable...

stable...
-Short term and long term planning… business..
** ****
(3) The making of particular laws (particular legal orders) should be guided by
open, stable, clear, and general rules.

(Executive laws/Constitution –broad rules –guiding -institutions)

Preamble-
Preamble- F.R.
F.R.-key to open mind of maker.. D.P….etc..
D.P….etc..
Democracy/Secularism/Justice-
Democracy/Secularism/Justice-Equality/discrimination-racial/
Re The Delhi Laws1951 AIR 332
*

Independence of Judiciary-
Judiciary-Under Constitution:

1) Security of Tenure-Art.
Tenure 124(2)/4)/(Art. 217(1)
Ad hoc Judges-
Judges- Art. 127-
127-Quorum /128 Additional-
Additional-224-(president-
224 increase in
the business)

2) Fixed Salary-Art.
Salary 125-
125-Sch. II. -Reduction-Charged
Reduction on Consolidated fund-Art.
Art.
112(3) The Supreme Court Judges (Salaries and Conditions of Service) Act, 1958
/THE HIGH COURT JUDGES (SALARIES AND CONDITIONS OF SERVICES) ACT, 1954
3) Parliament cannot curtail power of SC-Art.138
SC Art.138
4) Prohibition of discussion in by legislative bodies about conduct of judge-Art.
121
*****
5) Power to punish for its contempt-
contempt Art. 129/215
6) Separation of judiciary from executive –Art. 50

7) Judges are appointed in consultation-Art.

consultation 124(2)
-S.P. Gupta v. Union 1981 Supp. SCC 87 /Concurrence
/Concurrence
-Supreme Court Advocates-
Advocates-on-
on-Record Association & Others v. Union of India
(1993) 4 SCC 441
-Special Reference no. 1 of 1998-
1998-
-Supreme Court Advocates-
Advocates-on-
on-Record -Association and another V. Union of
India 2015 ***

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8) Prohibition of practice after Retirement -124(7) Re-

Re- employment
-Palaniswamy
Palaniswamy Sathasivam - Governor of Kerala-
Kerala-2014/
2014
(Scrapped a second FIR or Police Complaint against Amit Shah in a fake
encounter killing case in Gujarat)

(-M. Fathima Beevi-

Beevi-as Governor in Tamil Nadu (1997–2001)

-M.C. Chagla-
Chagla-US-Abs./

-Subba Rao-election
Rao president –lost
lost/
lost

-K.S. Hegde-MP-speaker-1977.
Hegde

-Santosh Hegde -Advocate General - 1984 /additional Solicitor General

of the union of India- 1989 /SC
SC-
SC-1999/
1999 Lokayukta)
Lokayukta)
(National Human Right Commission/Law Commissions etc. )

Maneka Gandhi- Section 10-1978/Kraipak-1969

a) Nemo debet esse judex in propria causa:
causa: No man shall be a judge in his own
cause;
Pecuniary Bias

Personal Bias

Official or bias as to subject-matter.

Partem::
b) Audi Alteram Partem
a) Notice –
b) Hearing.
Hearing
1) Hear both side
2) – One must not-
not- hear one side in absence of other (evidences
(evidences shall be
received in the presence of the concerned party))
3) - One who decides must hear-
hear- Gullapalli Nageswara Rao v. A.P.S.R.T.C.
AIR 1959 SC 308
Oral Hearing:-
Hearing
4) - One party is given oral hearing same shall be afford to other
(Opportunity to cross examine)
5) Disclosure of the Material

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(6) The courts should have review powers over the

implementation of the other principles.-32/226/227-Basic
principles Basic
Structure-S.P.
Structure Sampath Kumar/L. Chandra Kumar vs Union Of
India And Others 1997 (2) SCR 1186

(7 ) The courts should be easily accessible.

accessible.
-32/226/227/136-PIL PIL-
PIL- Majdur kaamgar sabha v Abdul bhai
Faizulla bhai - 1976 ; S.P.Gupta-Sunil
S.P.Gupta Batra vs Delhi
Administration on 20 December, 1979

(8) The discretion of the crime-

crime-preventing agencies should not
be allowed to pervert the law.-
law.-
◦ Habeas Corpus/Mandamus
Judicial Review- ultra-
Review- Mala fide; irrelevant consideration; ultra -virus
etc; colourable exercise of power; unreasonableness.
unreasonableness.
* ** *** **** *****

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Separation of powers-
Three organs-

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Aristotle/ John Locke and James Harrington:

Harrington
Montesquieu,
Montesquieu described these functions as
legislative, executive and judicial.

Montesquieu ‘Esprit des Lois’ –The

Montesquieu- The Spirit of Laws-
Laws
1748-formulated-systematically.
1748
Three Powers-
Powers separated -Liberty
Liberty.
Liberty

Powers:
Powers legislature, executive and judiciary

The three organs should be separate, distinct and

sovereign in its own sphere so that one does not
trespass the territory of the other.

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 4/16/2019

Wade and Phillips:

Phillips
A) That the same persons should not form part of more than one
of the three organs of government.
Minister-
Minister-part-
part-parliament
(US-Ministers/President-election/)
*

b. That one organ of government should not control or interfere

with the work of another.
another
..Ministers responsible to parliament -75(3)
(US-ministers –not members-responsible)

c. That one organ of government should not exercise the

functions of another.

(US
US-Executive-votes/India-Court-CBI-Investigation/pardoning
US
powers)

USA-
Art. I-Legislative –Congress
Art. II- Executive –President
Art. III-Judicial Powers- SC-sub. courts.

(India-Art. 53(1)/154(1)-no
53(1)/154(1) other express provision-
President/ Governor)

-245(1);
245(1) -sub. Provision –parliament
parliament –whole or part of territory-
state legislature-whole
legislature or part of the state.
246-
246-division of power –within leg. Org. (Lists)

Art. 50-Judicial
50 power and executive powers- in the public
services of the State
*

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ESSENCE OF DEMOCRACY –protection of rights-

balances and counter balances exists among the three organs of the
government to ensure a strong nurtured democratic system.

Acton “Power corrupts and absolute power tends to corrupt

Lord Acton:
absolutely”.

The three organs can practically not be segregated into three watertight
compartments due to their interdependence on each other to ensure
efficacious governance.
Mutual respect-
respect to achieve welfare of people

(Co
Co-
Co-operative federalism =co
co-
co-operative separation of powers)

Work in harmony instead of giving primacy to only one of the organs.

Bestowing absolute power is anathema to democracy.

Ram Jawaya Kapoor v. State of Punjab [A.I.R. 1955

S.C. 549]
-Punjab- school-book-by private publishers-with
publishers
approval of Educational department –alternative
alternative-
alternative
books-choice
choice of –headmasters.
headmasters

May-1950
1950-
1950-control by gov.
gov –printing and publication-
resolutions-brought
resolutions –of govt.
monopoly
1952-
1952-notification of Education Department
–Excluded
Excluded publishers –invited
invited author and other -5%
5%
Royalty-monopoly
Royalty to publish.
Notification –Article -32
32

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Contention of petitioner:-
petitioner:-
1) Executives of state –wholly
wholly incompetent,
incompetent
without any legislative sanction to engage in any
business or trade-without
without jurisdiction –illegal
illegal

2) State could create monopoly-

monopoly by legislative
action –which should confirm to the
requirements of 19(6).

3) It was not open to govt. to deprive the

petitioner their interest in any business, which
amounts to property without authority of law and
without payment of compensation as it required
by Art. 31.

Mr. Pathak (behalf of petitioner): Government

function in three categories-Executive-
categories to
execute or supervise the enforcement.
enforcement

The legislature must first enact a measure –which

executive then can carry out.

Analogy is drawn with help of -73/162= Extent

of executive power:
-Sub. Provisions of this constitution executive
powers of state extends to– state legislative
powers…proviso- parliament.

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28
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Justice Malik-
Malik Difficult to define-executive
define executive
powers -but=means
but=means –as given by the
constitution or is inherent, implied or incidental.
*
It must include all powers-to achieve object of
the constitution –more than executing law.

According to J. Malik- state has right to manage

property-or
property or carry –business –as
as any citizen.
citizen

Court –specific
specific legislation –necessary –
additional powers/necessary to encroach
upon private rights

Court-
Court-Present case-
case-printing expenses –
shown in financial budget-
budget-no additional
power required –

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Held:
Fundamental Rights –Executive (Liberty
Liberty –object of
separation -may be protected )

(Text book –may be discontinued-school

discontinued or authority)

Customer –no
no fundament right to keep customer
forever.

No fundamental rights-
rights Art. 19(g)- Mere chance or
prospect of having particular customer-no
compensation -paid

Action may be bad-but not against -19

______________________

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J. A.N. Ray, H.R. Khanna,

Khanna, K.K. Mathew, M.H. Beg, Y.V. Chandrachud

Art. 329 -=S. 100 Representation of the People Act, 1951

HC-Appeal-held
HC held-
held She Obtained Assistance from Gazetted officers-UP-
officers
corrupt practice-disqualified
practice -6
6 years.
years

Other five grounds-

grounds
1) Assistance of Air force –arranging flights and helicopters
2) Distributed clothes and liquor to voters
3) She and agent- made appeal to religious symbols of cow and calf
4) Procure vehicle for conveyance of voter to polling station
5) Expenditure in violation of law

effect-39th Amendment
During pendency –amendment and retrospective effect-
Art. 71 –election of president/vice president =SC/Parliament
and 329A and election laws were put up in 9th Schedule.
Schedule

329A-Prime
329A Minister and Speaker -Election
Election valid –irrespective of any
judgment-
judgment- retrospective effect

Clause -6 -329 A- shall precedence over other part of the constitution

Challenged validity of 39th Amendment –Basic structure

Shanti Bhushan:
Bhushan:
1)-Amendment –against – institutional pattern adopted by constitution -
basic structure

2) Separation of power –basic structure- judicial power (judgment

judgment –
vitiated-
vitiated-not pardoning )-

3) Function of legislature –legislate –not to decide disputes between

parties.

4) Democracy essential feature of the constitution-free

free and fair election

5) Equality –essential feature –republican constitution

constitution-election
election laws
above -equality-Prime
Prime M. & speaker –Above the law-classification
classification

6) 39 Amend. –Prime
Prime M. & speaker –Above the law=Rule
Rule of law and
judicial review –balance
balance upset-basic
upset features= organic balance upset by
eroding authority of SC

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Another Ground 329A- -number of members of both

houses were detained under preventive detention
order-
order without grounds-important leaders of house
were prevented from attending.
(Art. 359 (Susp.FR) does not itself –make detention
legal)

-Holding
Holding session and transacting business-
unconstitutional.

=Power
Power of amend-
amend implied restriction –with
preamble (Political Justice)–democratic
Justice) democratic way of life
through parliamentary institutions based on free and
fair election basic feature

Attorney General-
General
No free and fair election without Judicial Review-
Review-not true..
true
Election –law –policy
policy –how much shall be govern by ordinary law.

Exclusion of judicial review-not

review per se exclusion of right of
equality –parliament
parliament –election are right or wrong

-Free
Free & fair election itself –does
does not postulate that –there –must
be constitutional provision –tribunal
tribunal
-One election does –not alter –character of democracy

Rule of law is not a basic structure

A.K. Sen (appeared -Gandhi)

-Effect of invalidation of judgment is –change
change in law-
law-not –
encroachment of judicial review.
*
-Change
Change in law –appeal
appeal –should -applied
applied by appellate court..
court

-S
Separation of power-as
power applied in USA not applied

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Constituent Power=There
Power There is no question of
separation of powers =when constituent
authority exercises powers of any of the
authorities

-Constituent
Constituent powers are independent of fetters
imposed by the separation of powers.

-Constituent
Constituent power=crate
power crate organs and
distribute powers-
powers “super
super power”
power

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Judgment-
Judgment
Art. 329A- clause-4:- Determination of disputes –falls- outside
of the scope of 368.
368

-J.
J. Chandrachud-
Chandrachud court –interpretation
interpretation –not
not policy-election
policy
laws..

Preamble-
Preamble Declarations- (useful…to decide –basic structure)

Democracy and free and fair election –basic features-Judging

Judging
dispute without ascertaining the facts

Rule of law-
law- Basic structure-
structure-Certain person –beyond judicial
review.

Justice Ray-
Ray Changing validity of judgment –changing
definition of corrupt practices-not encroachment on
Judicial review power=
power

Validating election of appellant's election –not a

change in law- (clause -4-329A)-offended rule of
law.

J. Khanna-Rule
Khanna of law- Decisions shall be made based
on known principles and rules-citizen
rules should know
where he is. Predictable-
Predictable (Raz-prin.-1-prospective
effect…)

-There cannot be free election –without –forum

forum to
decide.

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(Basic Structures
-Rule of Law
-Separation of power
-Free and fair election)

a) Executives:
Indian Constitution allocates executive powers to the President and
Governors
(Article 53 (1) - Executive power of the Union and Article 154 (1),
(1
Certain legislative powers (Articles 123, 213 - Power of Governor -
Ordinances during recess of Legislature and 356-emergecy
356 emergecy-failure
emergecy of
constitution ---)
Judicial = Pardoning

b) legislature exercises
certain judicial functions (Articles 105-
105- Powers,
Power privileges and 194)
194 and
Certain judicial powers (Articles 103-
103 Decision on questions as to
disqualifications of members
and 192-
192- Decision on questions as to disqualifications of members-
members-state).
state

c) Judiciary exercises
Few legislative and executive functions (Articles 145, 146-officers/
146 officers/ servant-
servant
appointment conditions etc-chief Justice /state- 229,
229 227 ETC.).

However the judiciary is made separate from the executive in the public services
of the State (Article
Article 50).
50

35