MODEL ANSWER 2018

CONSTITUTION II

Q.No.1. Explain the contractual Liability of the State with reference to

constitutional provisions.

Introduction:-

The subject of government contracts has assumed great importance in

the modern times. Today the state is a source of wealth. In the modern era of
a welfare state, government's economic activities are expanding and the
government is increasing.

Today a large number of individuals and business organizations enjoy

largess in the form of government contracts, licenses, quotas, mineral rights,
jobs, etc. This raises the possibility of exercise of power by a government to
dispense largess in an arbitrary manner. It is axiomatic that the government or
any of its agencies ought not to be allowed to act arbitrarily and confer
benefits on whomsoever they want.

Therefore there is a necessity to develop some norms to regulate and

protect the individual interest and at the same time to create working
environment to exercise the discretion of the Government to extend the
contractual benefits to the other parties to the contract.

Contract - Meaning of the term

A contract is an agreement enforceable by law which offers personal rights,

and imposes personal obligations, which the law protects and enforces against

the parties to the agreement. The general law of contract is based on the

conception, which the parties have, by an agreement, created legal rights and
obligations, which are purely personal in their nature and are only enforceable
by action against the party in default.

Section 2(h) of the Indian Contract Act, 1872 defines a contract as "An
agreement enforceable by law". The word 'agreement' has been defined in
Section 2(e) of the Act as ‘every promise and every set of promises, forming
consideration for each other’
Government Contract A contract to which the Central Government or a
State Government is a party is called a 'Government Contract'.
The Indian Contract Act, 1872 does not prescribe any form for entering
into contracts. A contract may be oral or in writing. It may be expressed or be
implied from the circumstances of the case and the conduct of the parties.But
the position is different in respect of Government Contracts. A contract
entered into by or with the Central or State Government has to fulfill certain
formalities as prescribed by Article 299 of the Indian Constitution.

In the case of State of Bihar v Majeed

The Hon'ble Supreme court has held 30 Section 2(h) of the Indian Contract Act,
1872 defines a contract as "An agreement enforceable by law".
The word 'agreement' has been defined in Section 2(e) of the Act as ‘every
promise and every set of promises, forming consideration for each other’

Government Contract:-
A contract to which the Central Government or a State Government is a party
is called a 'Government Contract'.
The Indian Contract Act, 1872 does not prescribe any form for entering
into contracts. A contract may be oral or in writing. It may be expressed or be
implied from the circumstances of the case and the conduct of the parties.

But the position is different in respect of Government Contracts. A

contract entered into by or with the Central or State Government has to fulfill
certain formalities as prescribed by Article 299 of the Indian Constitution.
 'Contracts' and 'Government contracts' It is true that in respect of
Government Contracts the provisions of Article 299(1) must be complied with,
but that does not mean that the provisions of the Indian Contract Act have
been superceded.

In the case of State of Bihar v Majeed,

the Hon'ble Supreme court has held that;

"It may be noted that like other contracts, a Government Contract is also
governed by the Indian Contract Act, yet it is distinct a thing apart. In addition
to the requirements of the Indian Contract Act such as offer, acceptance and
consideration, a Government Contract has to be complied with the provisions
of Article 299.

Thus subject to the formalities prescribed by Article 299 the contractual

liability of the Central or State Government is the same as that of any
individual under the ordinary law of contract."
As regards the interpretation of contract, there is no distinction between the
contracts to which one of the parties is the Government and between the two
private parties.

Article 299 provides:-

All contracts made in the exercise of executive power of the union or a

state shall be expressed to be made by the President or by the Governor of the
State as the case may be, and all such contracts and all assurances of property
made in the exercise of that power shall be executed on behalf of the
President or the Governor by such person and in such manner as he may direct
or authorize.

2. Neither the President nor the Governor shall be personally liable in

respect of any contract or assurance made or executed for the purpose of any
enactment relating to Government of India hereto before in force , nor shall
any such contract or assurance on behalf of any of them be personally liable in
respect thereof".

Thus Article 299 lays down three conditions which the contracts made in
the exercise of the executive power of the Center or a State must fulfill to be
valid –

a. The contract must be expressed to be made by the president or the

Governor as the case may be;

In Union of India v. SSH Syndicate, AIR 1976 SC 879.

It is observed that the contract with the Government will not be binding if it is
not expressed to be made in the name of the President or the Governor, as the
case may be.

b. These contracts made in the exercise of the executive power are to be

executed on behalf of the President/Governor as the case may be; and

In Union of India V. N.K.Ltd(AIR 1972 SC 915)

The Director was authorized to execute contract on behalf of the president,

but the contract was entered into by the secretary. The contract was declared
invalid as it was entered by an officer who was not authorized for this purpose.

c) The execution must be by such person and in such manner as the

President or the Governor of the case as the case may be, may direct or
authorize.

It has been held by the Hon'ble Supreme Court in the case of

BhikarajJaipuriavs Union of India

"it is clear from the words "expressed to be made" and "executed" that
there must be a formal written contract…The provisions of Article 299(1) are
mandatory in character and any contravention thereof nullifies the contract
and makes it void.

The provisions of Article 299(1) have not been enacted for the sake of mere
form but they have been enacted for safeguarding the Government against the
unauthorized contracts. The provisions are embodied in the constitution on
the ground of public policy on the ground of protection of general public and
these formalities cannot be waived or dispensed with."

Where a contract is made by tender and acceptance, the acceptance must be

made by a duly authorized person and on behalf of the President, and a valid
contract may result from correspondence.

Implied Contract with the Government

In view of Article 299(1) there can be no implied contract between the

government and another person, the reason being that if such implied
contracts between the government and another person were allowed, they
would in effect make Article 299(1) useless, for then a person who had a
contract with the government which was not executed at all in the manner
provided under Article 299(1) could get away by saying that an implied
contract may be inferred on the facts and the circumstances of the particular
case.

It was held by the Hon'ble Supreme Court in the case of

K.P.CHOWDHARY VS STATE OF MADHYA PRADESH

"In view of the provisions of Article 299(1) there is no scope for any implied
contract. Thus no contract can be implied under this Article.if the contract
between the Government and a person is not incompliance with Article 299(1),
it would be no contract at all and would not be enforceable as a contract either
by the Government or by the person."

CONCLUSION

The reason for enacting Article 299 of the constitution of India is that in order
to bind a government there should be a specific procedure enabling the agents
of the government to make contracts.

The Public funds cannot be placed in jeopardy by the contracts made by

unspecified public servants without express sanction of the law.

It is a provision made to save the state from spurious claims made on the
strength of unauthorized contracts.

Q2. Discuss the Establishment, Composition and Powers and Functions of

Election Commission of India.

Introduction:

Preamble of our Constitution declares India to be a Democratic Republic.

Democracy is the basic features of the Indian Constitution. Democracy is
sustained by free and fair elections. Only free and fair elections to the various
legislative bodies in the country can guarantee the growth of a democratic
polity. It is the cherished privilege of a citizen to participate in the processes
which place persons in the seats of power. India has been characterised as a
biggest democracy in the world because of the colossal nature of the elections
held in the Country. At a general elections, an electorate of millions goes to the
polls to elect members for the Lok Sabha. The Legislative Assemblies and the
Legislatures of the Union Territories. Free and fair election has been held to be
a basic feature of the Constitution

Establishment of Election Commission:

In order to ensure free, fair and impartial elections, the Constitution

establishes the Election Commission, a body autonomous in character and
insulated from political pressures or executive influence. Care has been taken
to ensure that the commission functions as an independent agency free from
external pressures from the party in power. Part-XV, Articles 324 to 329 of the
Constitution deals with provisions relating to Establishment, Composition,
Powers and Functions of Election Commission of India.

According to Article 324 (1) the election commission was constituted for
purpose of superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and Vice-
President held under this Constitution shall be vested in a Commission
(referred to in this Constitution as the Election Commission).

Composition of Election Commission:

According to Article 324 (2), The Election Commission shall consist of the Chief
Election Commissioner and such number of other Election Commissioners, if
any, as the President may from time to time fix and the appointment of the
Chief Election Commissioner and other Election Commissioners shall, subject
to the provisions of any law made in that behalf by Parliament, be made by the
President.

As per Article 324 (3) says that When any other Election Commissioner is so
appointed the Chief Election Commissioner shall act as the Chairman of the
Election Commission.

According to Article 324 (4), Before each general election to the House of the
People and to the Legislative Assembly of each State, and before the first
general election and thereafter before each biennial election to the Legislative
Council of each State having such Council, the President may also appoint after
consultation with the Election Commission such Regional Commissioners as he
may consider necessary to assist the Election Commission in the performance
of the functions conferred on the Commission by clause (1).

Tenure & Safeguard: Article 324 (5)

Every Election Commissioner has a term of six years from the date he/she
assumes office or till he attains the age of 65 years (whichever is earlier).

The Chief Election commissioner cannot be removed from his office, except in
a like manner and on like grounds as a judge of the Supreme Court. All the
three members are entitled to the same salary and other facilities, as are
provided to a judge of the Supreme Court.

Powers and Functions of Election Commission:

The election commission plays a pivotal role in the electoral mechanism of the
Country. The Election Commission primarily exercises administrative functions
but it also has some adjudicative and legislative functions as well.

Article 324 (1) assigns the following powers and functions of Election
Commission:

The Superintendence, direction and control rolls for all elections to

Parliament, State Legislatures, Offices of the President and Vice-
President;
Conduct of all these elections.
Prepare, revise and maintain the voter’s list.
Delimitation of Constituencies.
Advises the President and Governor regarding electoral matters
Determine criteria for recognizing political parties
Settle election disputes.
Election Commission has the power to review its decision as to the
expediency of holding the poll on a particular date.
When there is no law or rule made under the law, the Commission may
pass any order in respect of the conduct of elections.

Q3. Define Gram Sabha under Panchayath Raj Institutions? Explain its
Composition, Costitution and powers and function of Panchayath?

Introduction:

In India there is a government at the Center and State levels. But there is
another important system for local governance. The foundation of the present
local self-government in India was laid by the Panchayati Raj System (1992).
But the history of Panchayati Raj starts from the self-sufficient and self-
governing village communities. In the time of the Rig-Veda (1700 BC), evidence
suggests that self-governing village bodies called ‘sabhas’ existed. With the
passage of time, these bodies became panchayats (council of five persons).
Panchayats were functional institutions of grassroots governance in almost
every village. They endured the rise and fall of empires in the past, to the
current highly structured systemLocal self-government implies the
transference of the power to rule to the lowest rungs of the political order. It is
a form of democratic decentralization where the participation of even the
grass root level of the society is ensured in the process of administration.

Definition of Gram Sabha:

Gram Sabha is described as a legal general assembly of all adult persons

residing in a village or a group of villages. The roles, powers and functions of
the Sabha are decided by the State Legislature, as per the 73rd amendment.

Gram Sabha reviews annual budget, accounts of the Panchayat and also
discusses its audit and administrative reports and tax proposal. Further, it
approves development schemes formulated by the Panchayat. It also plans and
organizes various resources for community development programs.

Two meeting of the Gram Sabha, are organised every year, wherein the first
meeting is to consider the budget of the Gram Panchayat and the second
meeting is held to take into account the reports of the Panchayat. The
members of the Sabha elect their representatives at the Village Panchayat, i.e.
its members and the Chairperson, through voting by a secret ballot.

Constitution And composition of Panchayaths:

The Three-Tier System of Panchayati Raj in India:

1. Village Panchayat:

In the structure of the Panchayati Raj, the Village Panchayat is the lowest unit.
There is a Panchayat for each village or a group of villages in case the
population of these villages happens to be too small. The Panchayat chiefly
consists of representatives elected by the people of the village.

Only the persons who are registered as voters and do not hold any office of
profit under the government are eligible for election to the Panchayat. The
persons convicted by the court for criminal offences are disqualified from
election of the Panchayat.
There is also provision for co-option of two women and one member of the
Scheduled Castes and Scheduled Tribes, if they do not get adequate
representation in the normal course.

The Panchayat as a body is accountable to the general body of the village

known as Gram Sabha which meets at least twice a year. The Gram Panchayat
must present its budget, accounts of the previous year and annual
administrative report before the Gram Sabha.

The Sarpanch occupies a pivotal position in Gram Panchayat system. He

supervises and coordinates the various activities of the Panchayat.

He is an ex-officio member of the PanchayatSamiti and participates in its

decision-making as well as in the election of the Pradhan and of the members
of various Standing Committees. He acts as the executive head of the
Panchayat, represents it in the PanchayatSamiti as its spokesman and
coordinates its activities and those of other local institutions like cooperatives.

The Panchayat Secretary and the Village Level Worker are the two officers at
the Panchayat level to assist the Sarpanch in administration.

2. PanchayatSamiti:

The PanchayatSamiti is the second on join tier of the Panchayati Raj. The
BalwantRai Mehta Committee report has envisaged the Samiti as a single
representative and vigorous democratic institution to take charge of all aspects
of development in rural areas. The Samiti, according to the Committee, offers
“an area large enough for functions which the Village Panchayat cannot
perform and yet small enough to attract the interest and services of residents.”

Usually a PanchayatSamiti consists of 20 to 60 villages depending on area and

population. The average population under a Samiti is about 80,000 but the
range is from 35,000 to 1, 00,000. The PanchayatSamiti generally consists of-
(1) about twenty members elected by and from the Panches of all the
Panchayats falling in the block area; (2) two women members and one
member each from the Scheduled Castes and Scheduled Tribes to be co-
opted, provided they do not get adequate representation otherwise;
(3) two local persons possessing experience of public life and administration,
which may be beneficial for the rural development; (4) representatives of the
Co-operatives working within the jurisdiction of the block; (5) one
representative elected by and from the members of each small municipality
lying within the geographical limits of a block; (6) the members of the State
and Union legislatures representing the area are to be taken as associate
members.

The President of the PanchayatSamiti is the Pradhan, who is elected by an

electoral college consist of all members of the PanchayatSamiti and all the
Panchas of the Gram Panchayat falling within the areas. Besides the Pradhan,
the Up-pradhan is also elected. The Pradhan convenes and presides over the
PanchayatSamiti meetings. He guides the Panchayats in making plans and
carrying out production programmes.

The principal function of the PanchayatSamiti is to coordinate the activities of

the various Panchayats within its jurisdiction. The PanchayatSamiti supervises
the work of the Panchayats and scrutinises their budgets.

3. ZillaParishad:

The ZillaParishad stands at the apex of the three-tier structure of the

Panchayati Raj system. Generally, the ZillaParishad consists of representatives
of the PanchayatSamiti; all the members of the State Legislature and the
Parliament representing a part or whole of the district; all district level officers
of the Medical, Public Health, Public Works, Engineering, Agriculture,
Veterinary, Education and other development departments.

There is also a provision for special representation of women, members of

Scheduled Castes and Scheduled Tribes provided they are not adequately
represented in the normal course. The Collector is also a member of the
ZillaParishad.

The Chairman of the ZillaParishad is elected from among its members. There is
a Chief Executive Officer in the ZillaParishad. He is deputed to the ZillaParishad
by the State Government. There are subject matter specialists or officers at the
district level in all the states for various development programmes.
The ZillaParishad, for the most part, performs co-ordinating and supervisory
functions. It coordinates the activities of the PanchayatSamitis falling within its
jurisdiction. In certain states the ZillaParishad also approves the budgets of the
PanchayatSamitis.

Powers, authority and responsibilities of Panchayats:

State Legislatures have power, to confer on the Panchayats such powers and
authority as may be necessary to enable them to function as institutions of
selfgovernment[Arts. 243G243H]. They may be entrusted with the
responsibility of (a) preparing plans for economic development and social
justice,(b) implementation of schemes for economic development and social
justice, and

(c) in regard to matters listed in the Eleventh Schedule (inserted by the 73rd
Amendment). The list contains 29 items, e.g., land improvement, minor
irrigation, animal husbandry, fisheries, education, women and child
development etc. The 11th Schedule thus distributes powers between the
State Legislature and the Panchayat just as the 7th Schedule distributes powers
between the Union and the State Legislature.

Obligatory functions:

Every Panchayat is required under the statute to make 'reasonable provision'

for meeting the requirements of the village with regard to the construction,
repair and maintenance of all public roads, bridges, causeways, lighting of
public roads, and places, construction of drains, and public latrines, cleaning of
streets and other improvements of sanitory condition, improvement of cattle,
promotion of cottage industries, development of co-operatives, welfare of
backward castes, preventive and remedical measures against epidemics,
promotion of agriculture and other development programmes at the village
level.

Discretionary Functions

Discretionary functions of the village panchayat depend upon the resources

available and the income at their disposal to meet the requirements. These
include items such as constitution and maintenance of slaughter houses,
establishment of granaries, village library and reading rooms, layout and
maintenance of play grounds and promotion improvement and
encouragement of cottage industries, establishment and maintenance of
markets, dispensaries and maternity and child welfare centres, veterinary
relief and organizing voluntary labour for community work.

Other functions.

Under section 44 of the Act, the Taluk Board can transfer the maintenance of
the institutions like minor muzrai institutions or Dharmashala and execution of
any other works. According to section 46 of the Act, the government can assign
some more functions to the village panchayat. For example, the management
and maintanence of forest adjacent to the village, make over to the panchayat
the management of waste lands, pasture lands or vacant lands belonging to
the Government situate within the village, entrust the panchayat with the
collection of land revenue on behalf of the Government and themaintanence
of such records as are connected therewith. Besides theGovernment has
power to give new functions to panchayat inconsultation with the Taluk Board
and subject to such conditions as may be imposed by it.

Conclusion:

Local government has deep roots in Indian history. The local bodies organized
life of stability at the local levels. The grass roots system had shown a peculiar
identity and stability despite frequent changes ofpower occurred at the super
structural level.Keeping in view the importance of the village in the economy
of India, the makers ofthe Indian Constitution inserted Article 40 into the
Constitution. The 73rd Constitutional Amendment Act, 1993 was a land mark in
the history ofrural local self-government. It uniformly introduced athree-tier
Panchayati Raj system through out the country.

Q4. What are union territories? Explain the constitutional previews

connecting to union territories.

A few centrally administered units which do not form any part of the state but
have been kept as a separate & distinct entity because of several because of
several historical, cultural, or political reasons. These administrative units are
designated as union territories. In India we have 7 Union Territories; Delhi,
Andaman & Nicobar islands, Lakshadweep, Dadar & Nagar Haveli, Pondicherry,
Chandigarh, Daman & Due. Before 1956 the present day union territories were
characterized as part C states. The states Registration Act & the seventh
constitutional amendment act abolished the part C states created the present
day Union Territories.

Union territory is administered directly by the Central Executive. a union

territory is to be administered by the president acting , to such an extent as he
thinks fit . U/Art 239(1) the parliament by law appoint the Governor of the
state as an administrator of the trade union adjourning to that state. The
Governor is to act independently of his council of ministers u/art 239(2).

In Devij Vallabhai V/S Administrator, Goa Daman Diu (AIR 1982 SC 1029) in
this the Apex court of India has given its opinion as, that the administrator of
Union Territory is not purely a constitutional functionary, his position is
different from that of the state Governor.

The administrator may act under the order of the president, which means the
central Govt . The administrator is not purely constitutional functionary.

In Vindya Pradesh V/S Shri MoulaDas (AIR 1962 SC 145), in this case the SC
declares that the Union Territories though centrally administered under the
provision of Art 239, they are not part of the central Govt but distinct
constitutional entities.

The president who is the head of the union territories does not function as the
head of the central govt but as the head of the union territories under the
powers especially vested to him u/art 239. Thereby occupying a position
analogous to the governor of a state. Status of the union territory is not the
same as that of the state. In this connection the SC, in Govt of NCT Delhi V/S
AICCA (AIR 2001 SC 3090) , has stated that the Union Territories are certainly
administered under the provision of Art 239 they do not get merged with the
central govt.

Pondicherry:
The constitution makes special provisions for administering the union
territory of Pondicherry, the parliament is empowered to create by law
 for Pondicherry, a legislature u/Art 368, and such law is not regarded as
an amendment of the constitution even though the law in question
contains provision amending the constitution. The ordinance making
power of the administrator is similar to that of the state govt except
that,
An administrator cannot promulgate an ordinance without seeking the
instruction from the president.
He cannot promulgate ordinance if when the legislature is suspended or
dissolved.

The ordinance is to be laid before the legislature of the union territory & it
ceases to have effect after six months of reassemble of the legislature or
earlier if the legislature disapproves the same. The ordinance has the same
effect as that of the Act of the legislature.

Delhi :
Delhi is the national capital of India it is maintained as the union
territory it has not been given the status of full fledge state, because it
was felt that it must remain under the effective control of the Union
Govt , it was also felt that the people of Delhi must enjoy some
semblance of democracy .
By the virtue of the constitution sixty Ninth Amendment Act 1991 Delhi
has been given special status. U/Art 239 AA introduced by the 1991
amendment, Delhi is now called as National Capital Territory of India.
The administrator appointed u/Art 239 is designated as the Lt Governor.
Delhi has a legislative Assembly elected by the people under the
supervision of the Election Commission. The assembly can make laws
with respect to matters enumerated in the state list or in the concurrent
list barring certain entries u/Art 239AA (3)(a).
The chief minister is appointed by the president & the other ministers
are appointed by the president on the chief minister’s advice. They hold
the office at the pleasure of the president & are collectively responsible
to the assembly. The L Governor of Delhi has got the power to
promulgate ordinance similar to the ordinance of Pondicherry. U/Art
239 AB the president has the power to take over the administration in
case there is a breakdown of the constitutional machinery or for proper
administration of National Capital Territory. The parliament has been
given the power to make laws & give effect to those provisions or
supplement the provisions; such a law is not deemed to be the
amendment of the constitution u/Art 368. The parliament has enacted
the NCT Act 1991 to effectuate & supplement the constitutional
provisions in Delhi.

Other Union territories:

It is only on respect of Delhi & Pondicherry that some democratic setup
is envisaged by the constitution. The other Union territories are
governed more directly by the center under the provisions of the Art 239
of the constitution. The union territories of Andaman & Nicobar Islands,
Lakshadweep, Dadar &Nagar Haveli, Daman & Diu & Chandigarh have no
legislation.

Q5 . Explain the special provisions regarding certain states.

With the formation of Gujarat & Maharashtra the president was

authorized to provide special provisions for any special responsibility of
the Governor for, the establishment of separate development board for
Vidharba, Maharatwada, & rest of Maharashtra, Saurashtra, Kutch & the
rest of Gujarat with the provision on each of these boards will be placed
each year before the state legislative assembly.
The equitable development of funds for development expenditure over
the areas subject to requirement of the state as a whole.
Adequate facility for training & education & vocational training &
adequate opportunity for employment in services under the control of
the state govt, in respect of the areas, subject to the requirement of the
state as a whole. The object of Art 371(20 is to enable the president to
lay special responsibility on the governors of Maharashtra & Gujarat for
development of certain areas.
Nagaland, Art 371 (2) is to enable the president to lay special provisions
for the state of Nagaland partly because of the disturbed law & other
conditions there, & partly because of the prevalence of strong feeling
regarding the customs etc among the people of the state. Naga-Hills,
Tuensang Area had been administered as a scheduled area under the
provision of the scheduled area. According to Art 371 A the parliament
concerning any of the following matters would apply to Nagaland unless
the state legislative assembly decides by a resolution; religious, or
special practices of Nagas, Nagas customary laws & procedures,
Administration of Civil & Criminal justice involving decision according to
Naga customary law, ownership & transfer of land & it resources . so
long as there occur internal disturbances in the state the Governor of
Nagaland shall have special responsibility with respect to law & order, &
in discharge of his functions, the Governor after consulting with the
council of ministers exercise his individual judgment as to the action to
be taken.
The Governor is also to see that the money provided by the central Govt
for any specific or purpose is included in the demand for the grant
relating to that service or purpose is included in the demand for that
services or purpose & not in any other demand moved in the state
legislature. A regional council is to be established for the state. The
Governor is to make rules for the composition of the council manner of
choosing its members. Their terms of office, salaries etc, the procedure
of the council appointment of officers of council & their condition of
services.
For the period of 10 yrs or for further period as the governor may specify
on the recommendation of the regional council, the following provisions
operate for this district,
The administration of the Tuensang district is to be carried on by the
governor.
The governor shall in his discretion arrange for equitable distribution
b/w Tuensang dist & the rest of the state of money provided by the govt
of India to meet the requirements of the state.
No law of Nagaland district applies to Tuensang district unless the
governor to directs on the recommendation of the regional council. The
governor may also introduce such modification in the Act as the regional
council may recommend.
The governor may make regulations for Tuensang district & any such
regulation may repeal or amend any law prevailing there.
 There shall be a minister for Tuensang affairs in the council of ministers
from among the members representing Tuensang in the legislature.
The members of the Nagaland Legislative Assembly from Tuensang are
not elected directly by the people as in other states but by the regional
council , members from the district of Kohima & Mokokechung are
elected in the territorial constituencies.

Q 6. Discuss article 370 and its effect?

Special Status of Jammu & Kashmir

Historical Background

Jammu & Kashmir has the contrast of being the only state in the Indian Union
that negotiated in terms of accession. The then ruler (Maharaja Hari Singh) of
Jammu & Kashmir at the time of independence from the British rule decided
not to join either India or Pakistan and thereby remain independent. But then
after 2 months on 6thOctober 1947, the border areas (some of which is now
called PoK) of Jammu & Kashmir were attacked by the Azad Kashmir Forces
supported by the Pak Army. Subsequently, after the attack, the ruler decided
to join India because of their own lack of Army and Weapons. So in October
1947, accession was made by the ruler considering certain promises made by
Pt. JawaharLalNehru(The then Prime Minister of India). It was the aftereffect of
these promises that Article 370 was included in the constitution of India. And
only matters related to Defense, Foreign relations, Communication and
Finance of Jammu & Kashmir comes under the jurisdiction of Constitution of
India.
Special Status

A State is said to have special status if all the provisions of a Union don’t apply
to that state. Different states may have different provisions. Article 370[1] of
the constitution of India gives such special status to the state of Jammu and
Kashmir. Article 371 of the Indian Constitution provides special status to 10
other states which are Assam, Nagaland, Sikkim, Manipur, Mizoram, Goa,
Andhra Pradesh, Arunachal Pradesh, Maharashtra and Gujarat.

Fundamental Rights, DPSP & Fundamental Duties

 Part IV Principles of State Policy (DPSP) and Part IVA i.e. Fundamental
Duties are not applicable to the State of Jammu & Kashmir where on
the other hand it is applicable to other states. DPSP actually means
that the states are required to do some things for the welfare of the
community.
 Fundamental Right to Property is still guaranteed in J&K i.e. Articles
19(1)(f) and 31(2) of the Indian Constitution are applicable in this
state.
 The only Fundamental Right which has been added in the history of
Indian Constitution which Right to Education is not extended to the
State of J&K.
 A special constituent assembly set up by the State has framed a
separate constitution of this state and it is the only Indian State that
has its own official flag.
 It is the only state which does not have to provide a detailed record of
money flowing in the state and where and how is it used.
  Land or Property of this state cannot be purchased by the Indians of
other states.

Without the consent of state legislature, Parliament cannot make any law
relating to:

 Modification of name or territories of the state.

 The international agreement affecting the final settlement of any part
of the territory of the state.

-In respect of J&K, the residuary power is with the state government and not
with the Union of India.

-The permanent residents of the J&K state have been granted with some
special provisions with respect to employment under state; settlement of the
state; attaining of immovable property in state etc.

-Any amendment in the Constitution of India cannot extend to J&K unless it is

extended under Article 370(1) by the order of the president.

Emergency Provision

 President cannot declare an emergency under Article 352 of the

constitution of India for the state of Jammu & Kashmir without the
consultation of the State Governor.
 Financial emergency (allowances reduction & salaries) under Article
360 cannot be declared by the Union of India in relation to J&K. Only
in a situation of War and External Aggression, the Union can declare
an emergency.
  Governor’s rule has to be imposed for breaking down the constitution
of the state of Jammu & Kashmir. Thus on the ground of failure to
comply with the directions, the Union has no power to suspend the
constitution of the State

High Court of J&K

Limited power rests with the High Court of J&K as compared to other High
Courts within India. It doesn’t have the power to declare any law
unconstitutional and also it can issue writs only for the enforcement of
fundamental rights, unlike other High Courts which can issue writs under
Article 226 in relation to other matters also.

Procedure for Amendment of State Constitution

The provisions of the Constitution of the State can be amended by the

Legislative Assembly Act of the state passed by not less than two-thirds of the
total members. President’s approval is needed to come into effect if an
amendment seeks to affect the Governor or Election Commission. Extension of
Amendment to the State of J&K can only be done by an order of the President
under Article 370(1). Whether Article 370 can be amended when the
constituent assembly of the State no longer exists is still a debatable question.

Conclusion

As per what constitutional experts say Article 370 should not be repealed or
abolished. Rather it should be extended to the remaining states of India.
Extension of such a provision to other states would provide greater freedom to
them for making laws. And such an Autonomy will give greater scope for
development. But for doing this centre should continue to support backward
states which are ponderously dependent on Central Government Aid.

Also, Armed Forces Special Powers Act (AFSPA) has been enforced in Jammu &
Kashmir since 1990, which gives provides special power to Indian security
forces. Therefore a special status should be there if such a rule is implemented
as it cannot be denied that it is a disturbed zone. Also, this rule is not helping
the state as it doesn’t permit any person living outside the territory of J&K to
buy any property here which eventually hampers the development scene of
the state and that is why the state lags behind in Industrial growth. There are
lesser job opportunities for people and as no outside companies can set up
here, therefore it leaves a blank in the infrastructure scene.

5th UNIT

DOCTRINE OF JUDICIAL REVIEW

Judicial Review refers to the power of the judiciary to interpret the

constitution and to declare any such law or order of the legislature and
executive void, if it finds them in conflict the Constitution of India.

The Constitution of India is the supreme law of the land. The Supreme Court of
India has the supreme responsibility of interpreting and protecting it. It also
acts as the guardian-protector of the Fundamental Rights of the people. For
this purpose, the Supreme Court exercises the power of determining the
constitutional validity of all laws.

It has the power to reject any law or any of its part which is found to be un-
constitutional. This power of the Supreme Court is called the Judicial Review
power. State High Courts also exercise this power but their judgements can be
rejected or modified or upheld by the Supreme Court.

The power of Judicial Review is incorporated in Articles 226 and 227 of the
Constitution insofar as the High Courts are concerned. In regard to the
Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India
has come to control by judicial review every aspect of governmental and public
functions.

Extent of Judicial Review in India:

The initial years of the Supreme Court of India saw the adoption of an
approach characterised by caution and circumspection. Being steeped in the
British tradition of limited judicial review, the Court generally adopted a pro-
legislature stance. This is evident from the rulings such as A.K. Gopalan, but
however it did not take long for judges to break their shackles and this led to a
series of right to property cases in which the judiciary was loggerhead with the
parliament. The nation witnessed a series of events where a decision of the
Supreme Court was followed by a legislation nullifying its effect, followed by
another decision reaffirming the earlier position, and so on. The struggle
between the two wings of government continued on other issues such as the
power of amending the Constitution. During this era, the Legislature sought to
bring forth people-oriented socialist measures which when in conflict with
fundamental rights were frustrated on the upholding of the fundamental rights
of individuals by the Supreme Court. At the time, an effort was made to project
the Supreme Court as being concerned only with the interests of propertied
classes and being insensitive to the needs of the masses. Between 1950 and
1975, the Indian Supreme Court had held a mere one hundred Union and State
laws, in whole or in part, to be unconstitutional.

After the period of emergency the judiciary was on the receiving end for having
delivered a series of judgments which were perceived by many as being
violative of the basic human rights of Indian citizen and changed the way it
looked at the constitution. The Supreme Court said that any legislation is
amenable to judicial review, be it momentous amendments to the Constitution
or drawing up of schemes and bye-laws of municipal bodies which affect the
life of a citizen. Judicial review extends to every governmental or executive
action, from high policy matters like the President's power to issue a
proclamation on failure of constitutional machinery in the States like
in Bommai case, to the highly discretionary exercise of the prerogative of
pardon like in Kehar Singh case or the right to go abroad as in Satwant Singh
case. Judicial review knows no bounds except the restraint of the judges
themselves regarding justifiability of an issue in a particular case.

Judicial Review of Political Questions:

In the initial stages of the judicial adjudication Courts have said that where
there is a political question involved it is not amenable to judicial review but
slowly this changed, in Keshavananda Bharathi’s case, the Court held that, "it is
difficult to see how the power of judicial review makes the judiciary supreme in
any sense of the word. This power is of paramount importance in a federal
constitution…. Judicial Review of constitutional amendments may seem
involving the Court in political question, but it is the Court alone which can
decide such an issue. The function of Interpretation of a Constitution being
thus assigned to the judicial power the State, the question whether the subject
of law is within the ambit of one or more powers of the legislature conferred
by the constitution would always be a question of interpretation of the
Constitution."

Than it was in Special Courts Bill, 1978, In re, case where the majority opined
that, "The policy of the Bill and the motive of the mover to ensure a speedy
trial of persons holding high public or political office who are alleged to have
committed certain crimes during the period of emergency may be political, but
the question whether the bill or any provisions are constitutionally invalid is a
not a question of a political nature and the court should not refrain from
answering it." What this meant was that though there are political questions
involved the validity of any action or legislation can be challenged if it would
violate the constitution. This position has been reiterated in many other
cases and in S.R. Bommai’s case the Court held, "though subjective satisfaction
of the President cannot be reviewed but the material on which satisfaction is
based open to review…" the court further went on to say that, "The opinion
which the President would form on the basis of Governor’s report or otherwise
would be based on his political judgment and it is difficult to evolve judicially
manageable norms for scrutinizing such political decisions. Therefore, by the
very nature of things which would govern the decision-making under Article
356, it is difficult to hold that the decision of the president is justifiable. To do
so would be entering the political thicker and questioning the political wisdom
which the courts of law must avoid. The temptation to delve into the
President’s satisfaction may be great but the courts would be well advised to
resist the temptation for want of judicially manageable standards. Therefore,
the Court cannot interdict the use of the constitutional power conferred on the
President under Article 356 unless the same is shown to be male fide."

There is genuine concern about misuse by the Centre of Article 356 on the
pretext that the State Government is acting in defiance of the essential
features of the Constitution. The real safeguard will be full judicial review
extending to an inquiry into the truth and correctness of the basic facts relied
upon in support of the action under Article 356 as indicated by Justices Sawant
and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the
material, so be it.

What this meant was the judiciary was being cautious about the role it has to
play while adjudicating matters of such importance and it is showing a path of
restraint that has to be used while deciding such matters so that it does not
usurp the powers given by the Constitution by way of the power of review at
the same it is also minimizing the misusing of the power given under Article
356 to the President.

Judicial Review as a part of the Basic Structure:

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme

Court of India the propounded the basic structure doctrine according to which
it said the legislature can amend the Constitution, but it should not change the
basic structure of the Constitution, The Judges made no attempt to define the
basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five
basic features:

1. Supremacy of the Constitution. 2. Republican and democratic form of

Government. 3. Secular character of the Constitution. 4. Separation of powers
between the legislature, the executive and the judiciary. 5. Federal character
of the Constitution. He observed that these basic features are easily discernible
not only from the Preamble but also from the whole scheme of the
Constitution. He added that the structure was built on the basic foundation of
dignity and freedom of the individual which could not by any form of
amendment be destroyed. It was also observed in that case that the above are
only illustrative and not exhaustive of all the limitations on the power of
amendment of the Constitution. The Constitutional bench in Indira Nehru
Gandhi v. Raj Narain held that Judicial Review in election disputes was not a
compulsion as it is not a part of basic structure. In S.P. Sampath
Kumar v. Union of India, P.N. Bhagwati, C.J., relying on Minerva Mills Ltd.
declared that it was well settled that judicial review was a basic and essential
feature of the Constitution. If the power of judicial review was absolutely taken
away, the Constitution would cease to be what it was. In Sampath Kumar the
Court further declared that if a law made under Article 323-A(1) were to
exclude the jurisdiction of the High Court under Articles 226 and 227 without
setting up an effective alternative institutional mechanism or arrangement for
judicial review, it would be violative of the basic structure and hence outside
the constituent power of Parliament.

In Kihoto Hollohan v. Zachillhur another Constitution Bench, while examining

the validity of para 7 of the Tenth Schedule to the Constitution which excluded
judicial review of the decision of the Speaker/Chairman on the question of
disqualification of MLAs and MPs, observed that it was unnecessary to
pronounce on the contention whether judicial review is a basic feature of the
Constitution and para 7 of the Tenth Schedule violated such basic structure.

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger

Bench of seven Judges unequivocally declared:
"That the power of judicial review over legislative action vested in the High
Court’s under Article 226 and in the Supreme Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution,
constituting part of its basic structure".

Though one does not deny that power to review is very important, at the same
time one cannot also give an absolute power to review and by recognizing
judicial review as a part of basic feature of the constitution Courts in India have
given a different meaning to the theory of Checks and Balances this also meant
that it has buried the concept of separation of powers, where the judiciary will
give itself an unfettered jurisdiction to review any thing everything that is done
by the legislature.

Q7. WHAT ARE THE PRINCIPLES RELATING TO INTERPRETATION OF THE

CONSTITUTION.

The following are some of the key principles applied specially in interpreting
the provisions of the constitution - 

1. Doctrine of pith and substance

2. Doctrine of Colourable legislation
3. Principle of Ancillary powers
4. Principle of Occupied field
5. Doctrine of repugnancy
6. Principle of Territorial Nexus
7. Doctrine of prospective overruling

Doctrine of Pith and Substance:

Pith means "true nature" or "essence" and substance means the

essential nature underlying a phenomenon. Thus, the doctrine of pith
and substance relates to finding out the true nature of a statute. This
doctrine is widely used when deciding whether a state is within its rights
to create a statute that involves a subject mentioned in Union List of the
Constitution. The basic idea behind this principle is that an act or a
provision created by the State is valid if the true nature of the act or the
provision is about a subject that falls in the State list. The case of State
of Maharashtra vs F N Balsara, illustrates this principle very nicely. In
this case, the State of Maharashtra passed Bombay Prohibition Act that
prohibited the sale and storage of liquor. This affected the business of
the appellant who used to import liquor. He challenged the act on the
ground that import and export are the subjects that belong in Union list
and state is incapable of making any laws regarding it. SC rejected this
argument and held that the true nature of the act is prohibition of
alcohol in the state and this subject belongs to the State list. The court
looks at the true character and nature of the act having regard to the
purpose, scope, objective, and the effects of its provisions. Therefore,
the fact that the act superficially touches on import of alcohol does not
make it invalid. 

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the

courts have to ignore the name given to the act by the legislature and
must also disregard the incidental and superficial encroachments of the
act and has to see where the impact of the legislation falls. It must then
decide the constitutionality of the act.

Principle of Incidental or Ancillary Powers:

This principle is an addition to the doctrine of Pith and Substance. What

it means is that the power to legislate on a subject also includes power
to legislate on ancillary matters that are reasonably connected to that
subject. It is not always sufficient to determine the constitutionality of 
an act by just looking at the pith and substance of the act. In such cases,
it has to be seen whether the matter referred in the act is essential to
give affect to the main subject of the act. For example, power to impose
tax would include the power to search and seizure to prevent the
evasion of that tax. Similarly, the power to legislate on Land reforms
includes the power to legislate on mortgage of the land. However,
power relating to banking cannot be extended to include power relating
to non-banking entities. However, if a subject is explicitly mentioned in a
State or Union list, it cannot be said to be an ancillary matter. For
example, power to tax is mentioned in specific entries in the lists and so
the power to tax cannot be claimed as ancillary to the power relating to
any other entry of the lists.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the

power to legislate on a topic includes the power to legislate on an
ancillary matter which can be said to be reasonably included in the topic.

The underlying idea behind this principle is that the grant of power
includes everything necessary to exercise that power. However, this
does not mean that the scope of the power can be extended to any
unreasonable extent. Supreme Court has consistently cautioned against
such extended construction. For example, in R M D Charbaugwala v
State of Mysore, , SC held that betting and gambling is a state subject as
mentioned in Entry 34 of State list but it does not include power to
impose taxes on betting and gambling because it exists as a separate
item as Entry 62 in the same list.
Doctrine of Colourable Legislation:

This doctrine is based on the principle that what cannot be done directly
cannot be done indirectly. In other words, if the constitution does not
permit certain provision of a legislation, any provision that has the same
effect but in a round about manner is also unconstitutional. This
doctrine is found on the wider doctrine of "fraud on the constitution". A
thing is Colourable when it seems to be one thing in the appearance but
another thing underneath.  K C Gajapati Narayan Deo vs State of Orissa,
is a famous case that illustrates the applicability of this doctrine. In this
case, SC observed that the constitution has clearly distributed the
legislative powers to various bodies, which have to act within their
respective spheres. These limitations are marked by specific legislatives
entries or in some cases these limitations are imposed in the form of
fundamental rights of the constitution. Question may arise whether
while enacting any provision such limits have been transgressed or not.
Such transgression may be patent, manifest or direct. But it may also be
covert, disguised, or indirect. It is to this later class of transgression that
the doctrine of colourable legislation applies. In such case, although the
legislation purports to act within the limits of its powers, yet in
substance and in reality, it transgresses those powers. The transgression
is veiled by mere pretense or disguise. But the legislature cannot be
allowed to violate the constitutional prohibition by an indirect method.
In this case, the validity of Orissa Agricultural Income Tax (Amendment)
Act 1950 was in question. The argument was that it was not a bona fide
taxation law but a colourable legislation whose main motive was to
artificially lower the income of the intermediaries so that the state has
to pay less compensation to them under Orissa Estates Abolition Act,
1952. SC held that it was not colourable legislation because the state
was well within its power to set the taxes, no matter how unjust it was.
The state is also empowered to adopt any method of compensation. The
motive of the legislature in enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair v State of Kerala, AIR 1961. In

this case, the state imposed a tax under Travencore Cochin Land Tax Act,
1955, which was so high that it was many times the annual income that
the person was earning from the land. The SC held the act as violative
of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a
person's property was being confiscated.

Similarly, in Balaji v State of Mysore, SC held that the order reserving

68% of the seats for students belonging to backward classes was
violative of Article 14 in disguise of making a provision under Article
15(4).

Doctrine of Eclipse:

In the case of Keshavan Madhava Menon v. The State of Bombay, the

law in question was an existing law at the time when the Constitution
came into force. That existing law imposed on the exercise of the right
guaranteed to the citizens of India by article 19(1)(g) restrictions which
could not be justified as reasonable under clause (6) as it then stood and
consequently under article 13(1) that existing law became void “to the
extent of such inconsistency”.
The court said that the law became void not in toto or for all purposes or
for all times or for all persons but only “to the extent of such
inconsistency”, that is to say, to the extent it became inconsistent with
the provisions of Part III which conferred the fundamental rights on the
citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras
And Others v. The State Of Madhya Pradesh And Another. This case also
held that “on and after the commencement of the Constitution,
the  existing law, as a result of its becoming inconsistent with the
provisions of article 19(1)(g) read with clause (6) as it then stood, could
not be permitted to stand in the way of the exercise of that fundamental
right. Article 13(1) by reason of its language cannot be read as having
obliterated the entire operation of the inconsistent law or having wiped
it out altogether the statute, book. Such law existed for all past
transactions and for enforcement of rights and liabilities accrued before
the date of the Constitution. The law continued in force, even after the
commencement of the Constitution, with respect to persons who were
not citizens and could not claim the fundamental right”.

The court also said that article 13(1) had the effect of nullifying or
rendering the existing law which had become inconsistent with
fundamental right as it then stood, ineffectual, nugatory and devoid of
any legal force or binding effect, only with respect to the exercise of the
fundamental right on and after the date of the commencement of the
Constitution. Finally the court said something that we today know of as
the crux of Doctrine of Eclipse. “The true position is that the  impugned
law became, as it were, eclipsed, for the time being, by the  fundamental
right.”

We see that such laws are not dead for all purposes. They exist for the
purposes of pre-Constitution rights and liabilities and they remain
operative, even after the commencement of the Constitution, as
against non-citizens. It is only as against the citizens that they remain in
a dormant or moribund condition.

Thus the Doctrine of Eclipse provides for the validation of Pre-

Constitution Laws that violate fundamental rights upon the premise that
such laws are not null and void ab initio but become unenforceable
only to the extent of such inconsistency with the fundamental rights. If
any subsequent amendment to the Constitution removes the
inconsistency or the conflict of the existing law with the fundamental
rights, then the Eclipse vanishes and that particular law again becomes
active again.

Doctrine of Occupied Field: the doctrine of Pith and

Substance according to which where the question arises of determining
whether a particular law relates to a particular subject (mentioned in
one list of another), the court looks into the substance of the matter.

 There is a very thin of line of difference between doctrine of

Repugnancy and Doctrine of Occupied Field. As we know that
repugnance arises only if there is an actual conflict between two
legislations, one enacted by the State Legislature and the other by
Parliament, both of which were competent to do so. 
 On the other hand, doctrine of Occupied Field simply refers to those
legislative entries of State List, which are expressly made ‘subject’ to a
corresponding Entry in either the Union List or the Concurrent
List. Doctrine of Occupied Field has nothing to do with the conflict of
laws between the state and the centre. It is merely concerned with the
‘existence of legislative power’ whereas repugnance is concerned with
the ‘exercise of legislative power’ that is shown to exist. Doctrine of
Occupied Field comes into picture even before the Union Law or the
State Law has commenced. Under Article 254, as soon as a Union law
receives assent of the President, it is said to be ‘a law made by the
Parliament’. Actual commencement of the law is not important for the
purpose of attracting doctrine of Occupied Field.

Doctrine of Territorial Nexus

Territorial Nexus and the Parliament
1. Article 245 (2) of the Constitution of India makes it amply clear
that ‘No law made by Parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation’. Thus a legislation
cannot be questioned on the ground that it has extra-territorial
operation.

2. It is well-established that the Courts of our country must enforce the

law with the machinery available to them; and they are not entitled to
question the authority of the Legislature in making a law which is extra-
territorial.
3. Extra-territorial operation does not invalidate a law. But some nexus
with India may still be necessary in some of the cases such as those
involving taxation statutes.

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of
the State[3]. Now, this leaves it open to scrutiny whether a particular
law is really within the competence of the State Legislature enacting it.
There are plethora of cases that have stated that the laws which a state
is empowered to make must be for the purpose of that State.

Thus, the Doctrine of Territorial Nexus has been applied to the States as
well. There are two conditions that have been laid down in this respect:

1. The Connection (nexus) must be real and not illusory.

2. The liability sought to be imposed must be pertinent to that
connection.

If the above two conditions are satisfied, any further examination of

the sufficiency of Nexus cannot be a matter of consideration before the
courts.

In various cases relating to taxation statutes, the courts have time and
again stated that it is not necessary that the sale or purchase should take
place within the Territorial Limits of the State. Broadly speaking local
activities of buying or selling carried in the State in relation to local
goods would be sufficient basis to sustain the taxing power of the State,
provided of course, such activities ultimately result in concluded sale or
purchase to be taxed.

There is also a Presumption of Constitutionality that the Legislature is

presumed not to have exceeded its constitutional powers and a
construction consistent with those powers is to be put upon the laws
enacted by the Legislature.

Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws
with respect to aspects or causes that occur, arise or exist, or maybe
expected to do so, within the territory of India and also with respect to
extra-territorial aspects or causes that have an impact or nexus with
India.

“Such laws would fall within the meaning, purport and ambit of grant of
powers of Parliament to make laws ‘for the whole or any part of the
territory of India’ and they may not be invalidated on the ground that
they require extra territorial operation. Any laws enacted by the
Parliament with respect to extra territorial aspects or causes that have
no nexus with India would beultra vires and would be laws made for a
foreign territory.”

This clearly indicates that as long as the law enacted by the Parliament
has a nexus with India, even if such laws require extra territorial
operation, the laws so enacted cannot be said to constitutionally
invalid. It is only when the‘laws enacted by the Parliament with respect
 to extra territorial aspects or causes that have no nexus with India’ that
such laws ‘would be ultra vires.

Q8. PREAMBLE AS AN AID TO INTERPRETATION:

No reading of any Constitution can be complete without reading

Preamble from the beginning to the end. While the end may expand, or alter,
the point of commencement can never change .It is the Preamble wherefrom
the Constitution commences. Hence, the significance of the Preamble.

The Preamble when analyzed can be divided into three parts by

reference to its qualitative characteristics.

 The first part is declaratory, where by the people of India in their

Constituent Assembly adopted, enacted and gave to themselves
this Constitution. That is the Constitution of India1.
 The second part is revolutionary, whereby the people of India
solemnly resolved to Constitute India into a Sovereign Democratic,
Republic “We, the people of India, having solemnly resolved in our
constituent assembly this 26th Nov.1949” is a matter of history or
the past and proposals to place on record an event which has
already happened.
 The third informative, in the sense that it shows us the source of
the constitution, i.e., “We, the people of India”.

Each and Every word of the Preamble has been cautiously chosen. Even
the arrangement of the words- the order, in which they have been placed-is
not without significance and suggestion. The Preamble to the Constitution has
played a predominant role in shaping the destiny of the country. The Preamble
of the Constitution like the preamble of any statute furnish the key to open the
mind of the makers of the Constitution more so because the Constituent
Assembly took great pains in formulating it so that it may reflect the essential
features and basic objectives of the Constitution.
 The opinion of K.K Mathew J. said that the preamble stands part of the
constitution and there seems to be no valid reason why the Preamble, being a
part of the constitution, cannot be amended.

Scope of Preamble:-

The Preamble does not grant any power but it gives direction and
purpose to the Constitution .It outlines the objective of the whole Constitution.
The Preamble contains the fundamental of constitution. It serves several
important purposes:

1. It contains the enacting clause which brings the Constitution into force.
2. It declares the basic type of government and polity which is sought to be
established in the country.
3. It declares the great rights and freedom which the people of India intended
to secure to its entire citizen.
4. It throws light on the source of the Constitution, viz., the People of India.

The framers of the Constitution of India set out three broad purposes
preamble: First, they sought to constitute India into a “Sovereign Socialist
Secular Democratic Republic”.

 India is Republic because the head of the state is not hereditary

monarch.
 It is Democratic because the Constitution ensures the creation and
existence of the government at the will of the people through the
participation in the formation of the government at regular
intervals on the principle of universal adult franchise.
 It is Sovereign because it can make or unmake any decision with
respect to itself without interference – by any other country. Her
membership of the Commonwealth of the Nations is not
inconsistent with her independent and sovereign status.
 The words “Socialist” and Secular were added in the preamble by
the forty-second Amendment. As Preamble is the basic structure
of Indian Constitution so the question is that whether it can be
amended or not. In the Landmark Judgment of Keshvananda
Bharti v. State of Kerala In this case the Supreme Court
 propounded the principal of basic structure of the constitution
and restricted the power of parliament to amend the constitution
under the provision of Article 368.

Interpretation of Preamble:
The interpretational value of the Preamble can be studied in the following
dimensions-

1. Preamble assisting the interpretation of provisions of the Constitution

itself;
2. Preamble as a source of interpretation of statutes framed under the
Constitution ;and
3. The words in the Preamble as judicially interpreted and reflected in
judicial analysis.
4. Fundamental rights; and
5. Directive Principles of the State Policy.

The Preamble is of utmost importance in the process of interpretation of the

Constitution. The Preamble is considered to be a legitimate aid in the
interpretation of the provisions of the Constitution. For the purpose of
interpretation, the Preamble of the Constitution stands on the same footing as
the Preamble of an Act. “The Preamble of the statue,” said Coke, “is a good
means to find out the meaning of the statute, and as it were a key to open the
understanding thereof.

Examples:

1. Keshavanada Bharthi: In this Supreme Court of India has emphasized in

that the Preamble to the Constitution emphasizes the principle of
equality as basic to the Constitution of India. This is the basic features of
the Constitution which no legislature in India can transgress. Even an
Amendment of the Constitution offending a basic structure of the
Constitution is ultra virus.

In this the majority propounded the novel doctrine of „basic features ‟as
an implied limitation upon the amending power confereed by Article
368, not from the Preamble- but from an interpretation of the word
amendment in Article 368 itself.
1. In formulating the basic features, the court referred to the objective
specified in the Preamble, as other provisions, but it was nowhere stated
that the Preamble as such constituted any substantive source of power
or limitation apart from its enacting provisions.

2. Kesavananda Bharati judgment created a history in Judicial review of

the policy if the government. For the first time, a bench of 13 Judges
assembled and sat in its original jurisdiction hearing the writ petition. 13
Judges placed on record 11 separate opinions. It is not an easy task to
find out the ratio of the holding of the court in the same case. It was
held in this case:

A. Preamble to the Constitution of India is a part of Constitution

B. Preamble is not a source of power nor a source of limitation
C. Preamble has a significant role to play in the interpretation of statues,
also in the interpretation of provisions of the Constitution.
D. The basic elements in the preamble cannot be amended under Article
368.

One of the various questions raised in this case was the extent of the
power of the Parliament to amend under Article 368. A 13 Judge
Constitutional bench was formulated under Chief Justice Sikri in order to
evaluate the intricacies of Golaknaths case. The Supreme Court
overruled its decision in Golaknaths case and held that, Article 368
contained power as well as procedure for amendment. The majority
held that there are inherent limitations on the amending power of the
Parliament and Article 368 does not confer power so as to destroy the
“Basic Structure” of the Constitution.

It may be however be mentioned here that in India, the concept of

equality is regarded not as a static, but a dynamic concept. It permits
every process of equalization and protective discrimination. Progressive
measures to eliminate group disabilities and promote collective equality
are not regarded as antagonistic to the concept of equality on the
ground that every individual ate existing inequalities. Those who are
unequal, in fact, cannot be treated by identical standards. That may
amount to equality in law but it would certainly not be real equality. It is
necessary to take into account de facto inequalities which exist in
society and to remove which affirmative action needs to be taken. This
may involve giving preference to the socially and educationally
disadvantaged persons, or inflicting handicaps on those more
advantageously placed. Such affirmative action though apparently
discriminatory is calculated to produce equality on a broader basis by
eliminating de facto inequalities.

2. Minerva Mills V. Union Of India 

It was relied on Kesavananda Bharati, Supreme Court struck down
clauses (4) and (5) of Article 368 inserted by the 42nd amendment.
Justification for the deletion of the said clauses was based on the
destruction of Basic Structure. The Court was satisfied that 368 (4) and
(5) clearly destroyed the Basic Structure as it gave the Parliament
absolute power to amend Constitution. Limitation on the amending
power of the Parliament is a part of the Basic Structure explained in
Kesavananda’s case.

In this case the Supreme Court express the meaning of “Socialism” as to

crystallize a socialistic state securing to its people socio-economic justice
by interplay of the Fundamental Rights and the Directive Principle . The
Preamble to the Constitution read with the Directive Principle in
Arts.38,42,43,46 and 48A promotes the concept of social justice. The
aim of social justice is to attain a substantial degree of social, economic
and political equality. Social justice is a device to mitigate the suffering
of the poor, weak, Tribals and the deprived sections of the society and to
elevate them so that they can live with dignity.

3. Re: The Berubari Union and Exchange of Enclaves Reference: Under

Article 143(1) of The Constitution of India.
In re Berubari Union case, the Supreme Court held that the Preamble is
not a part of the Constitution. It is only "a key to open the mind of the
 makers" which may show the general purposes for which they made the
several provisions in the Constitution; but nevertheless the preamble is
not a part of the Constitution, therefore "it has never been regarded as
the source of any substantive power. Such powers embrace only those
expressly granted in the body of the Constitution and such as may be
implied from those so granted if necessary.

What is true about the powers is equally true about the prohibitions and
limitations. Besides, it is not easy to accept the assumption that the first
part of the preamble postulates a very serious limitation on one of the
very important attributes of sovereignty itself. It can be restored to
where there is any ambiguity in the statue. Thus, if the terms used in any
of the articles in the Constitution are ambiguous or are capable of two
meanings, in interpreting them some assistance may be sought from the
objectives enshrined in the preamble and construction which fits the
Preamble may be preferred.

PROSPECTIVE OVERRULING:

It is commonly acknowledged that when a judicial pronouncement is made, it

not only applies to any particular case but the ratio would apply to the future
cases also. This is also the essence of the concept of precedent. In other words,
the law declared by the court is not descriptive as the court holds it but also
prescriptive in the sense the future judges have to use it. This, is other words,
places precedent on a higher pedestal- a major source of law.

Precedent, as a source of law, is both declaratory and constitutive of law. And

traditionally, the rule of retrospectively is the norm. This means that when a
law is declared invalid, then it is deemed to be invalid from the date law had
come into existence or the date on which it was enacted. Thus, the rule of
retrospective operation of a decision or pronouncement of a court, which is
also one of the indispensable features of a precedent, confirms to the
declaratory character of a precedent. This, in essence, is what is meant by
Balckstonian principle wherein he says that judges do not make law, but only
declare the law. Thus, we see that the declaratory theory supports retroactive
operation of a precedent.

Now, the concept of Prospective Overruling, as the title of the project reflects,
is a deviation from the principle of retroactive operation of a decision and thus,
a deviation from the traditional Blackstonian principle too. This principle,
borrowed from the American Constitution, found its application first in the
famous case of Golaknath v. State of Punjab . To illustrate, in very simple
words, the implication of the invocation of the doctrine is that the decision of
such a case would not have retrospective operation but would operate only in
the future, i.e., have only prospective operation. This project now seeks to
embark on a detailed analysis of the application and implications, both positive
and negative, of the doctrine in the light of its invocation in the above
mentioned case.

The Doctrine of ‘Prospective Overruling: It’s Application In India

The Doctrine of Prospective Overruling, as noted above, is a deviation

for the traditional Blackstonian view of law, viz., the duty of the Court
was "not to pronounce a new rule but to maintain and expound the old
one". This doctrine offers foundations for an extended view of judicial
function, which primarily centers on discretion and freedom of choice, to
specify the time frame and the cases to which a particular
pronouncement in a case will be applicable to. In the case of Naryanan
Nair v. State of Kerela, Mathew J. explains the thrust of the doctrine by
observing that it was not meant to supplant the traditional Blackstonian
doctrine but was essentially meant to protect the interests of the
litigants when judicial overruling of a precedent entailed a change in the
law. In effect, what is contemplated through the doctrine is to lay down
the scope of the pronouncement in a particular case with regard to its
applicability to future cases and disputes. And the primary interest
behind the courts actually applying this doctrine is the fact, as already
mentioned, that courts always want to do justice and may apply various
criteria to reach their ends. In this effort of theirs, there are instances
when courts have themselves have invoked and laid down effective
principles which will guide them in their endeavour and the above
doctrine bears testimony to this point.
The essence of prospective overruling is that the Supreme Court lays
down the parameters within which a law laid down in a case which
overrules a previous judgment has to operate. The whole purpose is to
avoid reopening of settled issues and also prevent multiplicity of
proceedings; in effect, this means that all actions prior to the declaration
do not stand invalidated. Also, as laid down in the case of Baburam v.
C.C. Jacob , all the subordinate courts are bound to apply the law to
future cases only. There may also be instances where the Supreme Court
may specify the date when the declaration shall come into effect
thereby not disturbing the decisions taken before such a date. All this
happens during the process of invalidating a law or overruling a decision.

Q 8. Write Short Notes on the following

1.Law relating to official language:

India is a multi lingual country having numerous languages. This creates

a lot of problem & tension in the country. India has two linguistic
families Indo-Aryans & Dravidians. the Indo-Aryan languages are eleven
in number , & derived from Sanskrit & it is spoken by nearly 75% of the
population in the country of whom Hindi s spoken by 42% of the people .
The Dravidian language is spoken 25% of the population prevailing in the
South India & of these Telgue is spoken by large group some of the
Indian languages are very old & have a rich culture & literal heritage. All
these languages are prevalent in fairly compact area. None of these
languages occupied any important place during the British rule as English
had been accepted as the language of administration, instruction
examination for the whole of the country. It was the sole language for
communication among the elite on the all-Indi level.
Due to low rate of literacy level in the country English could be spoken
by only a minority f the people. Hence when India became independent
& adopted a democratic way of government based on the adult
sufferage, retention of the English language for the purpose of
administration appears to be incongruous.
 At the time of making the constitution, the language controversy came
to the fore front. The debates of constitutient assembly reveals that
there was a substantial amount of consensus on two basic points,
At some stage the English language should be displaced from its
permanent position & Its place should be taken by Hindi.

2. Issue of writs in matter of contracts.

Writs in Matters of Government Contracts

When it comes to exercise of contractual powers by governmental authorities,

the function of the courts is to prevent arbitrariness and favouritism and to
ensure that the power is exercised in public interest and not for a collateral
purpose.

This has been a question of debate whether one could resort to the writ
jurisdiction for imposing contractual obligations on a public authority. The
question of breach of contract is one which primarily falls within private law
under contract Act, and that the remedy therefore lays in a civil court and not
under writ jurisdiction.

The implementation and interpretation of a clause in a contract cannot

be the subject matter of a writ petition. The contracting parties are not
governed by any constitutional provision but by the provisions of the contract
act which would determine the rights and obligations of the concerned parties.

No question arises regarding the violation of Art.14 or any of the other

constitutional provision, when the government acts within the contractual
field. The Supreme Court ruled that a party could not claim under Art.226
enforcement of contractual obligation and recover damages. Proper relief for
the part would lie to seek specific performance of contract or damages in a
civil court.
 One of the main reasons for this judicial stance was that question of
breach of contract would depend on facts and evidence, such seriously
disputed question regarding breach of contract ought to be investigated and
determined on the basis of evidence which may be led by contesting parties.
This can be done in a properly instituted civil suit rather than in a writ petition.

But then in ShrilekhaVidyarthivs State of Uttar Pradesh,

The view started to change. The court observed that Art. 14 strikes at
arbitrariness in governmental action and ensures fairness and equality of
treatment.

The position now is that where the dispute lies within the contractual
field pure and simple a writ petition is not maintainable. The relation between
the parties is governed by the contract. But contractual obligations may fall
under judicial review if there is some public law involved therein.

The action of the State, its instrumentality, any public authority or

person whose actions bear insignia of public law element orpublic character
are amenable to judicial review and validity of such an action would be tested
on the avail of Art.14.

Thus, when the matter falls with the realm of public law rather than of
private law, the High Court can take cognizance of the same under Art. 226. If
the government takes unreasonable and arbitrary decisions while acting in
pursuance of a contract, the matter would fall under the writ jurisdiction.

There is the duty on the State to act fairly in respect of a contract as

well. A writ petition is maintainable to challenge action by a public
administrator when it is exercising statutory or administrative power even
within the frame of contractual relationship between the authority and the
person concerned.
 There is now a growing body of cases where writ petitions have been
held maintainable where contract has had statutory flavour, or where some
question of public law is involved.

3. Doctrine of Estoppel

According “Wade” :- the basic principle of estoppels is that a person who by

some statement or representation of facts causes another to act his detriment
in reliance on the earth of it is not allowed to deny, even though it was wrong.
Justice prevails over truth.

According to Garner:- ‘ a person may be precluded in legal proceedings from

denying the existence of some state of facts the existence of which he has
previously asserted, intending the other party to the proceedings to rely on the
assertion.

Nature & scope.

Estoppel is often described as rule of evidence.

 It is a principle of law

 It is neither the realm of contract nor in the realm of estoppel

 The basis of this doctrine is equality.

 It is invoked and applied to aid the law of administration of justice.

Section 115 of Indian Evidence Act 1872.

When one person has, by his declaration, act or omission intentionally caused
or permitted another person to believe a thing to be true and to act upon such
belief, neither he nor his representative shall be allowed in any suit or
proceeding between himself and such person or his representative to deny the
truth of that thing.

Ingredients.
 4. There must be some representative.

5. The representation must be made with the intention to be acted

upon.

6. The representation must have been acted upon.

7. Such action should have been determined to the interest of the

person whom representation has been made.

Illustration

‘A’ intentionally and falsely leads ‘B’ to believe that certain lands belong to ‘A,
and thereby induces B to buy and pay for it. The land afterwards becomes the
property of A, and A seeks to set aside the sale on the ground that at time of
sale he had no title.

He must not allow prove his want of his title.

In MotilalPadampat Sugar Mills vs State of U.P,

the Government of Uttar Pradesh announced that new industrial units in the
State would be granted exemptionfrom payment of sales tax for a period of
three years. The petitioner approached to the High Court but failed. On appeal,
the Supreme Court said (Bhagwati, J):-

“It is elementary that in a republic governed by the rule of law, no one high or
low, is above law. Every one is the subjects to the law as fully and completely
any other or the Government is no exception. It indeed the pride of
constitutional democracy and rule of law is concerned: the former is equally
bound as the latter. It is indeed difficult to see on what principle can a
Government, committed to the rule of law claim immunity from the doctrine
of promissory estoppel.”