Fatin Tirmizi 20180401076

Q.1. Explain the Doctrine of Pith and Substance with the help of suitable
examples.

A-1

Doctrine of Pith and Substance

The Constitution of India has split the degree of authoritative forces between the
Center and states via the Seventh Schedule.

The Seventh Schedule determines the topics and splits the ability to make laws
between the Center and the State.

Rundown I or the Union List contains matters where the Center has the ability to
make laws, for example Protection, Foreign issues and Currency.

Rundown II or the State list contains the subjects where the State has the ability to
make laws, for example public request, wellbeing and disinfection.

Rundown III or the Concurrent List contains subjects where both the Center and
the State have forces to enact, for example Schooling, Forests and Administration
of Justice.

Despite the fact that their authoritative reaches are grounded in the Seventh
Schedule, there frequently emerge clashes regarding whether the Center or the
State, by and large, is infringing upon the circle of the other. To manage this
contention, the courts in India have developed a couple of precepts and the well
established convention of pith and substance is one among them.
It is broadly accepted that the beginning of the regulation of essence and substance
lies in Canada and it was presented for a situation named Cushing v. Dupuy in the
year 1880. The teaching later advanced toward India and is immovably upheld by
Article 246 of the Constitution and the Seventh Schedule. In India, it has
developed to turn into a commended convention that turned into the premise of
numerous milestone Supreme Court decisions.

The principle expresses that inside their separate circles the state and the
association lawmaking bodies are made incomparable, they ought not infringe
upon the circle differentiated for the other.

Notwithstanding, in the event that one among the state and the Center infringes
upon the circle of the other, the courts will apply the Doctrine of Pith and
Substance.

On the off chance that the essence and substance i.e., the genuine object of the
enactment relates to a subject inside the fitness of the lawmaking body that
authorized it, it ought to be held to be intra vires despite the fact that it might
unexpectedly infringe on the issue not inside the capability of the council.

The Privy Council applied this tenet in Profulla Kumar Mukherjee v Bank of
Khulna.

For this situation, the Bengal Money Lenders Act of 1946 instituted by the State
Legislature was tested with the dispute that pieces of the enactment managed
promissory notes; a focal subject.

The Privy Council while maintaining the legitimacy of the reproved enactment
expressed that the Bengal Money Lenders Act was in essence and substance a law
identifying with cash moneylenders and cash loaning – a state subject despite the
fact that it by chance channels upon Promissory note – a focal subject.

In State of Bombay v FN Balsara, the Bombay Prohibition Act was tested on the
ground that it unintentionally infringes upon import and fare of alcohol across
custom boondocks – a focal subject. The court while maintaining the criticized
enactment pronounced that the Act was in essence and substance a State subject
despite the fact that it unexpectedly infringed upon a focal subject.

The Doctrine is applied when the topic of List I of the Seventh Schedule is in
struggle with the topic of List II.

The explanation for receiving this precept is that generally every law will be
announced invalid on the ground that it infringes upon the topic of another circle.

The principle looks at the real essence and substance of the enactment to figure out
which List it has a place with.

It contemplates whether the State has the ability to make a law that infringes on a
topic from another rundown.

The teaching was first applied and maintained by the Supreme Court in the FN
Balsara case.

The convention of essence and substance has furnished the Indian established plan
with much-required adaptability in light of the fact that without this precept each
and every other law would have been pronounced invalid since it unexpectedly
infringes upon the circle of another lawmaking body. Aside from its materialness
in cases identified with the competency of the council as referenced in Article 246,
the Doctrine of Pith and Substance is additionally applied in cases identified with
Article 254, which manages the repugnancy parents in law made by Parliament and
laws made by the State Legislatures. The tenet is utilized in such cases to
determine the irregularity between laws made by the Center and the State
Legislature.

Regardless of the clear isolation of forces among the Center and the states, it is
very unavoidable that auxiliary infringements will undoubtedly happen during the
establishment of laws. The forces outlined according to Section 100 of the
Government of India Act, 1935 was so unbending and rigid that it gave no degree
to the use of the principle of essence and substance. Ensuing to the outlining of the
Indian Constitution in 1949, when such coincidental infringement of authoritative
forces occur, courts with the guide of the regulation of essence and substances
choose the legitimacy and authenticity of an authorization.

Prafulla Kumar Mukherjee v. Bank of Khulna

For this situation, the legitimacy of the Bombay Money Lenders Act, 1946 came to
be addressed. The fundamental contention here was that promissory notes framed a
piece of the focal subject and not state subject. In any case, despite what might be
expected, the Privy Council held that deciphering the regulation of Pith and
Substance, the demonstration is really a law regarding 'cash loaning and cash
moneylenders' and this was unmistakably a state subject, further the court felt free
to express a significant point that this demonstration was substantial regardless of
whether it settled in upon the subject of 'Promissory note' which is a focal subject,
hence maintaining the rule of the teaching of Pith and Substance.

Perceived by different High courts and Supreme Court in India, this regulation is a
set up standard of law. At whatever point a law apparently is infringing or
intruding upon a field, the enactment of which has been relegated to another, the
Doctrine of essence and Substance becomes possibly the most important factor.
The core of the precept is that at whatever point an inquiry emerges in regards to
the assurance of whether a specific law identifies with a specific subject the court
while managing such issues investigates the substance of such matter.

Consequently, from the previously mentioned focuses it very well may be

expressed that Doctrine of essence and Substance states-"At whatever point an
inquiry emerges as to assurance of whether a specific law identifies with a specific
subject the courts essentially takes a gander at the substance of the matter. Along
these lines, for example, in the event that the substance falls in the association list,
the coincidental infringement by the law on the State list doesn't make it invalid".
Q.2. Discuss the Freedom of “Trade, Commerce and Intercourse” under Article
301 read with Article 304 of the Constitution.

A-2

The object of such arrangements in a Federal Constitution

The creators of the Constitution wished to energize the free progression of Trade
and commerce in India in light of the fact that, as indicated by them, a nation
should function as a solitary monetary unit with no obstructions or hindrances in
inner Trade. They saw that financial solidarity and coordination of the country
would be the fundamental supporting force for strength and social solidarity of the
government commonwealth.

In an organization, it is fundamental to diminish the hindrances (duties, non-taxes,

portions, and so on) between the states however much as could reasonably be
expected so individuals feel that they are individuals from similar nation however
living in various geological spaces of the country.

Opportunity of Trade, commerce, and intercourse

Article 301 discussions about the opportunity of Trade, commerce, and intercourse
all through the country. It expresses that subject to different arrangements under
Part XIII, the opportunity to carry on these exercises will be free. Opportunity here
implies the privilege to opportunity of development of people, property, things that
might be substantial or elusive, unhampered by obstructions inside the state or
across the states.

The three fundamental words utilized in this article are:

Trade

Trade implies purchasing and selling of products revenue driven making purposes.
Under Article 301, the word Trade implies a real, coordinated and organized
movement with an unmistakable rationale or reason. For the rationale of Article
301, the word Trade is reciprocally utilized with commerce.

Commerce

Commerce implies transmission or development via air, water, phone, broadcast or

whatever other medium; what is fundamental for trade under Article 301 is
transportation or transmission and not increase or benefit.

Intercourse

It implies the development of products starting with one spot then onto the next. It
incorporates both commerce and non-commerce developments and dealings. It
would incorporate travel and all types of managing others. Nonetheless, it is
contended that the opportunity ensured in Article 301 doesn't contact intercourse in
its broadest importance. There are two purposes behind this. Above all else,
"intercourse" is utilized in juxtaposition with the words 'Trade and commerce' and
consequently this word here will signify "commerce intercourse" and not
purposeless movement. The subsequent explanation being that however Article
301 forces a limit on the force of Legislature and Parliament gave to them under
Article 245 and 246 yet the word intercourse is excluded as a subject of enactment
under the Seventh Schedule as the words Trade and commerce have been thus the
word intercourse can not be inferred to have the amplest of the importance when
utilized here.
The utilization of the word 'free' in Article 301 doesn't mean independence from
laws and rules overseeing the country. There is a reasonable differentiation
between the laws blocking opportunity and laws containing rules and guidelines
for the legitimate conduction of Trade exercises a smooth and simple way.

Exercises which are not Trade

Article 301 gives the opportunity of Trade, commerce, and intercourse however
there are sure exercises which might be covered under the ambit of the Trade, trade
or intercourse exercises yet are not ensured by the opportunity ensured under
Article 301 of the Indian Constitution.

Criminal operations, similar to lottery and betting, can be a model. The bar on
these criminal operations was maintained by the Supreme Court on account of
State of Bombay v. R.M.D. Chamarbaugwala (1957). For this situation, it was held
that all exercises of criminal nature or those exercises which are bothersome would
not be given any assurance under Article 301. A few instances of such exercises
can be clicking foul pictures for cash, dealing of ladies and kids, employing
goondas or psychological militants, and so on In spite of the fact that the
structures, strategies, and methods of Trade might be applied these exercises are
extra-commercium (not expose to private proprietorship or procurement), and in
this manner are not covered under Article 301. Between connection between
Article 301 and Article 19(1)(g)

Article 301 under Part XIII engages the free progression of the flood of Trade all
through the country while Article 19(1)(g) under Part III gives the opportunity to
rehearse any occupation, Trade or commerce in light of a legitimate concern for
the overall population. The privilege under Article 301 is established and can be
asserted by anybody. The privilege under Article 19(1)(g) is basic and can be
asserted exclusively by residents. Hence, this part of restriction of Article 19 is
managed under Article 301 which gives the privilege to the two residents and non-
residents to move the court if their privilege has been encroached.

Article 19(1)(g) contains limitations to the opportunity of conveying an occupation

or Trade while Article 301 is joined by Article 302-307 which set out the
limitations to the free progression of Trade the country. Notwithstanding, the
limitations determined in Article 302-307 ought to have roundabout outcomes and
ought not straightforwardly diminish the opportunity set down in Article 19(1)(g).
Article 301 is in this way thought to be an illustrative arrangement to Article 19(1)
(g) and furthermore has a more restricted degree than Article 19(1)(g) on the
grounds that it is just worried about the progression of labor and products.

It is likewise regularly contended that Article 301 is the privilege accessible for
Trade overall though Article 19(1)(g) is the ideal for people. Be that as it may, this
isn't correct. Article 301 is gotten from Section 92 of the Australian Constitution
and henceforth this privilege is accessible to people also.

In this manner the two of them can be supposed to be interrelated in certain

viewpoints. They likewise can be viewed as interrelated ideas at the hour of crisis.
At the hour of crisis, rights under Article 19(1)(g) are suspended. Around then the
court anticipates the rights gave under Article 301 to check if any infringement has
happened.

Limitations to Trade and trade

Parliament's ability to manage trade and commerce in the public interest

Article 302 offers capacity to the Parliament to force limitations on the opportunity
of Trade, commerce or intercourse carried on inside a state or across states an
anyplace in the area of India. These limitations can exclusively be forced taking
into due thought the interests of people in general. The ability to choose whether
something is in light of a legitimate concern for people in general or not is
exclusively given to the Parliament. It tends to be viewed as on account of
Surajmal Roopchand and Co v/s the State of Rajasthan (1967) were under the
Defense of India Rules, in light of a legitimate concern for the overall population,
limitations were forced on the development of grain.

States ability to control Trade and commerce

The force of the Parliament in Article 302 is held in line by Article 303. Article
303(1) states that the Parliament doesn't have the ability to make any law which
will keep one State at a more best situation than the other State, by uprightness of
any section in Trade and trade in any of the rundowns in seventh Schedule. In any
case, Clause (2) expresses that the Parliament can do as such in the event that it is
announced by law that it is fundamental for make such arrangements or guidelines,
as there is surely a shortage of products in certain pieces of the country. The ability
to choose whether there is a shortage of merchandise in certain pieces of the region
or not is vested in the possession of the Parliament.

Article 304(a) further says that the State ought to force charges on any products
moved/imported from different States if the same merchandise are burdened in the
State as well. It is done so that there is no segregation between merchandise
created inside the State and products imported from some different states. On
account of State of Madhya Pradesh v/s Bhailal Bhai,(1964) the State of Madhya
Pradesh forced charges on imported tobacco which was not liable to burden in the
own personal State i.e State of Madhya Pradesh. The Court opposed the
assessment proclamation that it was biased in nature.

Limitations on Trade, trade, and intercourse among States

Condition (2) of Article 304 aides the States to force certain sensible limitations on
the opportunity of Trade, trade, and intercourse as may suit the public interest. Be
that as it may, no Bill or Amendment for such will be advanced in the State
Legislature without the earlier endorsement of the President. A law passed by the
State to manage highway Trade should in this way satisfy the accompanying
conditions-

An endorsement from the President should be taken heretofore,

The limitation should be reasonable and normal,

It should be in light of a legitimate concern for people in general.

These conditions clarify that the Parliament's ability to manage Trade and
commerce is better than the State's force.
Q.3. Do you think federalism is the best mechanism of governance for larger
territories with Diverse population? How does Indian constitution determine
legislative relations betweenCenter and States?

A-3

Federalism is the most relevant factor of modern constitutionalism. The core

objectives of Indian federalism are unity in diversity, devolution in authority, and
decentralization in administration. Through federalism, the State pursues the goal
of common welfare in the midst of wide diversity in socio-cultural, economic
spheres.

Federalism or federal form of government is the most suitable form for a vast and
pluralistic country like India. It tries to facilitate the socio-political cooperation
between two sets of identities through various structural mechanisms of ‘shared
rule’.

But because of the above reasons, center- state relations and the state autonomy
have become the cardinal issues of the Indian federalism. The union government
appointed Sarkaria Commission in 1983 to examine and review the working of the
Indian Federalism. But many recommendations of this Commission are still to be
implemented properly.

The Union government also took in a very easy approach some of the
recommendations made by this commission. This shows that even though our
constitution is said to be federal, but this overemphasis on the power of the federal
government makes incapable of dealing effectively with socioeconomic challenges
and strengthening national unity. Hence, it is appropriate to restructure Indian
Federalism to make it more effective and promote center – state relation.
Critical Assessment of Federal System in India

The temperament of federalism in India during the coalition era has been changed
discernibly. Political deliberation seems to surpass the administrative and financial
aspects of the Union-state relations in India. The states having the governments of
those parties that form part of the central coalition give the impression that to have
little conflict with the Centre. Their complaint is submissive or subdued and the
general awareness is that they get particular contemplation and hold in matters of
resources approved by the Centre. As a consequence, it is raising that noise
sometimes that the Centre is being partial against the states having governments of
the opposition parties. However, when one becomes aware of the allocations of the
Central plan fund released by the Planning Commission on an annual basis, it
appears that there is no such obtrusive discrimination. There is called for a more
widespread perception of evenhandedness and fairness.

There has been a steady requirement of the National Development Council, that is
a delegate institution of the Centre and the states, should become more energetic
and effective. It may be brought to mind that the First Administrative Reforms
Commission had suggested that the NDC be supposed to meet twice a year. Even
after more than forty years, this proposal has not been put into practice. In a true
federal spirit, the NDC, instead of becoming a mere routinized rubber stamp,
should re-emerge as a verbal and effectual gadget of Centre-state discourse in
matters of development. Here is an organization that has the potentiality of making
the Indian federal economic structure more powerful and therefore, this
instrumentality ought not to become a superfluous union.
A linked problem pertains to the role played by the state planning system. Most of
the socio-economic plans calculated at the state level are an upshot and replicas of
the priority structures and store management projects of the Central government,
more particularly of the Planning Commission. Hence, in order to make the
planning process truly federal, “planning from below” be supposed to become the
established doctrine of the Indian expansion state of affairs.

Centre-State legislative relations

The Constitution of India establishes a dual constitutional authority with a simple

separation of powers, each of which is sovereign within its domain. The Indian
federation is not the result, and Indian units cannot leave the union, as a
consequence of an arrangement between independent units. There are also
extensive provisions in the constitution to govern the various dimensions of
relations between the centre and the states. Central-state relations are separated by
the following:

The Legislative relations;

The Administrative relations;

Financial relations.

But under this article, we will cover the relationship between legislature and
centre-state.

The legislative ties between the centre and state are governed by Articles 245 to
255 of Part XI of the Constitution. It sets out a double division between the Union
and the states with legislative powers i.e, in territorial recognition and relation to
the subject.
Territory jurisdiction:

Concerning the territory, Article 245(1) requires a State Legislature to make law
for the entire or any part of the State to which it belongs, subject to the dispositions
of this constitution. Unless the boundaries of the state itself are broadened by an
act of the Parliament, a State legislature can not broaden territorial jurisdiction in
any circumstance. On the other hand, Parliament has the right to legislate “on all or
part of India’s territory, which does not only include the States but also Indian
Union territory.” It also has the strength of extra-territorial laws that no state
legislature has. This means that the laws made by Parliament would apply not only
to individuals and territory but also to Indian subjects living anywhere in the
world. However, there are other limitations on Parliament’s territorial competence.
However, certain unique clauses of the constitution are subject to the plenary
territorial competence of Parliament. These are the following:

The President can make regulations that are equivalent to the laws of Parliament,
some territories of the Union, such as the Andaman and Lakshadweep Region, and
these regulations may revoke or amend a law adopted by Parliament on the said
territories (Article 240).

Notifications can be issued by the governor (Para 5 of Schedule 5(3) of the Indian
Constitution) that prevent or change the application of the Acts of Parliament to
any programmed area of government.

Para 12(1)(6) of schedule VI says that, by public notification, the Governor of

Assam may, subject to such exceptions or adjustments as may be stated in the
notification, direct that any other act of Parliament shall not apply to the
autonomous region or district of the state of Assam or apply to that region or
section.

In the case of A.H. Wadia v. CIT, the court held that if there is an appropriate
relation or link between the State and the object, i.e. subject matter of legislation,
the State legislature cannot make extraterritorial law (objects can not be located
physically within territorial limits of the State). In the case of Wallace Bros, v.
CIT, a licensed business in England was a partner in an Indian venture. Indian
revenue tax authorities were aiming to tax the company’s entire income. The Court
affirmed that the derivation for a year of the substantial part of its revenue from
British India has given a corporation sufficiently territorial relation to justify that it
is regarded domestically in India for all purposes of income taxation.

Hence, the above particular requirements have been adopted since the areas
mentioned in the question are outdated and may cause difficulties or other
injurious effects if they are implemented indiscriminately.

Subject matter:

A federal structure demands that the centre and States share their forces. The
nature of the distribution is different in every region, depending on the local and
political context. For instance, in America, sovereign states did not like the
absolute central government subordination. Therefore, although maintaining the
remainder, they believed in confiding subjects of popular interest to the central
government. Australia was pursuing just one set of forces in the United States.
There are double listings in Canada, leaving the residue in the centre by the federal
and provincial governments. The Canadians were mindful of the tragic
circumstances that resulted in the Civil War of 1891 in the United States of
America. We knew the vulnerabilities of the centre. And it was a good core that
they wanted. The Canadian regime chose a strong centre as a result of the Indian
Constitution-Makers. However, they have added one more list-a a concurrent list.

Residuary powers of legislation

The constitution also vests the residuary powers (subjects not enumerated in any of
the three Lists) with the Union Parliament. The residuary powers have been
granted to the Union contrary to the convention in other federations of the world,
where the residuary powers are given to the States. However, in case of any
conflict, whether a particular matter falls under the residuary power or not is to be
decided by the court.

Parliament’s Power to Legislate on State List

Though under ordinary circumstances the Central Government does not possess
power to legislate on subjects enumerated in the State List, but under certain
special conditions the Union Parliament can make laws even on these subjects.

a) In the National Interest (Art.249)

If the Rajya Sabha declares by a resolution supported by not less than 2/3 of its
members present and voting, that it is necessary or expedient in the national
interest that the Parliament should make laws with respect to any matter
enumerated in the State List (Art.249). After such a resolution is passed,
Parliament can make laws for the whole or any part of the territory of India. Such a
resolution remains in force for a period of 1 year and can be further extended by
one year by means of a subsequent resolution.

b) Under Proclamation of National Emergency (Art.250)

Parliament can legislate on the subjects mentioned in the State List when the
Proclamation of National Emergency is in operation. However, the laws made by
the Parliament under this provision shall cease to have effect on the expiration of a
period of six months after the Proclamation has ceased to operate, except as
respects things done or omitted to be done before the expiry of the said period.

c) By Agreement between States (Art. 252)

The Parliament can also legislate on a State subject if the legislatures of two or
more states resolve that it is lawful of Parliament to make laws with respect to any
matter enumerated in the State List relating to those State. Thereafter, any act
passed by the Parliament shall apply to such states and to any other state which
passes such a resolution. The Parliament also reserves the right to amend or repeal
any such act.

d) To Implement Treaties (Art. 253)

The Parliament can make law for the whole or any part of the territory of India for
implementing any treaty, international agreement or convention with any other
country or countries or any decision made at any international conference,
association or other body. Any law passed by the Parliament for this purpose
cannot be invalidated on the ground that it relates to the subject mentioned in the
State list.

e) Under Proclamation of President’s Rule (Art.356)

The President can also authorize the Parliament to exercise the powers of the State
legislature during the Proclamation of President’s Rule due to breakdown of
constitutional machinery in a state. But all such laws passed by the Parliament
cease to operate six months after the Proclamation of President’s Rule comes to an
end.

Center's control over State Legislation

The Constitution empowers the centre to exercise control over the state’s
legislature in following ways:

1. The governor can reserve certain types of bills passed by the state legislature for
the consideration of the President. The President enjoys absolute veto over them.

2. Bills on certain matters enumerated in the State List can be introduced in the
state legislature only with the previous sanction of the President as imposing
restrictions on freedom of trade and commerce.

3. The President can direct the states to reserve money bills and other financial
bills passed by the state legislature for his consideration during a financial
emergency.

2. Centre State Administrative Relations

The administrative jurisdiction of the Union and the State Governments extends to
the subjects in the Union list and State list respectively. The Constitutio

Q.4. Explain the original and appellate jurisdiction of the Supreme Court in the
light of Constitutional provisions and decided cases.

A-4
The appellate jurisdiction of the Supreme Court can be invoked by a certificate
granted by the High Court concerned under Article 132(1), 133(1) or 134 of the
Constitution in respect of any judgement, decree or final order of a High Court in
both civil and criminal cases, involving substantial questions of law as to the
interpretation of the Constitution.

Appeals also lie to the Supreme Court in civil matters if the High Court concerned
certifies: (a) that the case involves a substantial question of law of general
importance, and(b) that, in the opinion of the High Court, the said question needs
to be decided by the Supreme Court. In criminal cases, an appeal lies to the
Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of
an accused person and sentenced him to death or to imprisonment for life or for a
period of not less than 10 years, or (b) has withdrawn for trial before itself any case
from any Court subordinate to its authority and has in such trial convicted the
accused and sentenced him to death or to imprisonment for life or for a period of
not less than 10 years, or (c) certified that the case is a fit one for appeal to the
Supreme Court. Parliament is authorised to confer on the Supreme Court any
further powers to entertain and hear appeals from any judgement, final order or
sentence in a criminal proceeding of a High Court.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and
Tribunals in India in as much as it may, in its discretion, grant special leave to
appeal under Article 136 of the Constitution from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
Court or Tribunal in the territory of India.

Appeals permitted under the Constitution

Article 132 of the Constitution of India, 1950 provides for an appeal to the
Supreme Court from any judgment, decree or final order of a High Court, whether
in civil, criminal or other proceedings, if the High Court certifies that the case
involves a substantial question of law as to the interpretation of the Constitution.

Article 133 of the Constitution of India, 1950 provides for an appeal to the
Supreme Court from any judgment, decree or final order in a civil proceeding of a
High Court if the High Court certifies that the case involves a substantial question
of law of general importance and in its opinion the said question needs to be
decided by the Supreme Court.

Article 134 of the Constitution of India, 1950 provides for an appeal to the
Supreme Court from any judgment, final order or sentence in a criminal
proceeding of a High Court if (a) it has on appeal reversed an order of acquittal of
an accused person and sentenced him to death or (b) has withdrawn for trial before
itself, any case from any Court subordinate to it and has in such trial convicted the
accused and sentenced him to death or (c) it certifies that the case is a fit one for
appeal to the Supreme Court.

Appeal by Special Leave

Article 136 of the Constitution of India, 1950 provides that the Supreme Court may
in its discretion grant special leave to appeal from any judgment, decree,
determination, sentence or order in any case or matter passed or made by any Court
or tribunal in the territory of India except the Court or tribunal constituted by or
under any law relating to armed forces.

Statutory Appeals
Section 379 of the Code of Criminal Procedure, 1973 read with Section 2 of the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, as
amended by the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Amendment Act, 1972, provides for an appeal to the Supreme Court from any
judgment, final order or sentence in a criminal proceedings of a High Court, if the
High Court (a) has on appeal reversed an order of acquittal of an accused person
and sentenced him to death or to imprisonment for life or to imprisonment for a
period of not less than ten years; (b) has withdrawn for trial before itself any case
from any Court subordinate to its authority and has in such trial convicted the
accused person and sentenced him to imprisonment for life or to imprisonment for
a period of not less than ten years.

Section 130E of the Customs Act, 1962 provides for an appeal to the Supreme
Court from any judgment of the High Court on a reference made under Section
130, in any case which the High Court certifies to be a fit one for appeal to the
Supreme Court, or any order passed by the Appellate Tribunal relating, amongst
other things, to the determination of any question having relation to the rate of
custom duty or the value of goods for the purpose of assessment.

Section 35L of the Central Excise and Salt Act, 1944 provides for an appeal to the
Supreme Court from any judgment of the High Court delivered on a reference
made under Section 35G, in any case which the High Court certifies to be a fit one
for appeal to the Supreme Court, or any order passed by the Appellate Tribunal
relating, amongst other things, to the determination of any question having a
relation to the rate of duty of excise or to the value of goods for purpose of
assessment.
Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the
Supreme Court from an order made by the National Commission, entertaining
complaints where the value of the goods or services and compensation, if any,
claimed exceeds Rupees One Crore.

Section 19(1)(b) of the Contempt of Courts Act, 1971 provides for an appeal to the
Supreme Court, as of right, from any order or decision of Division Bench of a High
Court in exercise of its jurisdiction to punish for contempt.

Section 38 of the Advocates Act, 1961 provides for an appeal to the Supreme
Court from an order made by the Disciplinary Committee of the Bar Council of
India under Section 36 or 37 of the said Act.

Section 116-A of the Representation of People Act, 1951 provides for an appeal to
the Supreme Court on any question, whether of law or fact, from every order
passed by a High Court under Section 98 or Section 99 of the said Act.

Section 10 of the Special Court (Trial of offences relating to Transactions in

Securities) Act, 1992 provides for an appeal to the Supreme Court from any
judgment, sentence or order not being interlocutory order, of the special court, both
on fact and on law.

Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides
for an appeal to the Supreme Court from certain orders passed by the Central
Government or by MRTP Commission.

Section 18 of the Telecom Regulatory Authority of India Act, 1997 provides for
an appeal to the Supreme Court against any order not being an interlocutory order,
of the Appellate Tribunal, on one or more of the grounds specified in Section 100
of Code of Civil Procedure.
Section 15(z) of the Securities and Exchange Board of India Act, 1992, provides
that any person aggrieved by any decision or order of the Securities Appellate
Tribunal may file an appeal to the Supreme Court on any question of law arising
out of such order.

Section 261 of the Income-Tax Act, 1961 provides for an appeal to the Supreme
Court from any judgment of the High Court (delivered on a reference made under
Section 256 against an order made under Section 254 before 1st October, 1998 or
on appeal made to the High Court in respect of an order passed under section 254
on or after that date), in any case which the High Court certifies to be a fit one for
appeal to the Supreme Court.

Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987

provides for an appeal to the Supreme Court from any judgment, sentence or order
not being an interlocutory order, of a Designated Court, both on facts and on law.
The Act has since been repealed.

Section 53T of the Competition Act, 2002, provides for an appeal to the Supreme
Court against any decision or order of the Appellate Tribunal.

Original Jurisdiction of the SC in India

Original jurisdiction of a court refers to a matter for which the particular court is
approached first. In the case of the Supreme Court in India, its original jurisdiction
is covered under Article 131. It involves the following cases:

 Any dispute between the Indian Government and one or more States.
 Any dispute between the Indian Government and one or more States on one
side and one or more States on the other side.
 Any dispute between two or more States.
 Article 32 of the Constitution provides original jurisdiction to the SC for
matters regarding the enforcement of Fundamental Rights.
 The SC can issue writs, directions, or orders including writs in the nature of
mandamus, habeas corpus, quo warranto, prohibition and certiorari.
 The SC also has the power to direct the transfer of a criminal or civil case
from the High Court in one State to the High Court in another State.
 It can also transfer cases from one subordinate court to another State High
Court
 If the SC deems that cases involving the same questions of law are pending
before it and one or more High Courts, and that these are significant
questions of law, it can withdraw the cases before the High Court or Courts
and dispose off all these cases itself.
 The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate
international commercial arbitration.

Kailas & Ors. v/s State of Maharashtra and Taluka P.S.

This appeal had been filed against the final judgment and order dated
10.03.2010 in Criminal Appeal No. 62 of 1998 passed by the Aurangabad
Bench of Bombay High Court. This appeal furnished a typical instance of how
many of our people in India had been treating the tribal people (Scheduled
Tribes or Adivasis), who were probably the descendants of the original
inhabitants of India, but now constitute only about 8% of our total population,
and as a group are one of the most marginalized and vulnerable communities in
India characterized by high level of poverty, illiteracy, unemployment, disease,
and landlessness.
 “The victim in the present case was a young woman Nandabai 25 years of age
belonging to the Bhil tribe which is a Scheduled Tribe (ST) in Maharashtra,
who was beaten with fists and kicks and stripped naked by the accused persons
after tearing her blouse and brassieres and then got paraded in naked condition
on the road of a village while being beaten and abused by the accused herein.”

The four accused were convicted by the Additional Sessions Judge,

Ahmednagar on 05.02.1998 under Sections 452, 354, 323, 506(2) read with
Section 34 IPC and sentenced to suffer RI for six months and to pay a fine of
Rs. 100/-. They were also sentenced to suffer RI for one year and to pay a fine
of Rs. 100/- for the offence punishable under Sections 354/34 IPC. They were
also sentenced under Section 323/34 IPC and sentenced to three months RI and
to pay a fine of Rs. 100/-. The appellants were further convicted under Section
3 of the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act,
1989 and sentenced to suffer RI for one year and to pay a fine of Rs. 100/-.

In appeal before the High Court the appellants were acquitted of the offence under
Section 3 of the SC/ST Act, but the conviction under the provisions of the IPC
were confirmed. However, that part of the order regarding fine was set aside and
each of the appellant was directed to pay a fine of Rs. 5000/- only to the victim
Nandabai. The prosecution case was that the victim Nandabai who belonged to the
Bhil community was residing with her father, handicapped brother, and lunatic
sister. She had illicit relations with PW9 Vikram and had given birth to his
daughter and was also pregnant through him for a second time. Vikram belongs to
a higher caste and his marriage was being arranged by his family with a woman of
his own caste. On 13.5.1994 at about 5.00 P.M. when the victim Nandabai was at
her house the four accused went to her house and asked why she had illicit
relations with Vikram and started beating her with fists and kicks. At that time the
accused Kailas and Balu held her hands while accused Subabai aka Subhadra
removed her sari. The accused Subhash then removed her petticoat and accused
Subabai tore the blouse and brassiere of the victim Nandabai. Thereafter the
accused Subabai and Balu paraded the victim Nandabai on the road of the village
and at that time the four accused herein were beating and abusing the victim
Nandabai. At about 8.40 p.m. an FIR was lodged at Taluka Police Station and after
investigation a charge-sheet was filed. After taking evidence the learned Additional
Sessions Judge convicted the accused. As already mentioned above, the conviction
under the provisions of the IPC had been upheld but that under the Scheduled
Cases and Scheduled Tribes Act, 1989 had been set aside.
Q.5.Discuss the formal and real position of the President under the Constitution
with the help of relevant provisions and case law.

A-5

The President of India

Article 52 of the Indian Constitution provides that there shall be a President of

India. Thus, the position of the President is provided for in the Constitution. Under
Article 53, the executive powers of the Union are vested in the President and
therefore, he plays an important role in the governance of India.

As the Head of the Executive the President is met with a wide assortment of forces
which are given to him by the Constitution. The forces of the President can be
ordered into a few classifications and

Chief Powers

As the Executive Head of the State, the President appreciates numerous chief
forces. Every one of the activities and choices of the Government are taken for the
sake of the President.

Top of the Armed Forces

Under Article 53, the preeminent order of the military of the nation is vested in the
President. Hence, the President has the ability to pronounce battle with some other
country and furthermore the ability to close harmony. This is done under the
guideline of Parliament.

Ability to make arrangements

The President has the ability to choose numerous established officials and the
individuals from the Union Government. They include:

The Prime Minister

Boss Justice of India

Principal legal officer of India

Comptroller and Auditor General of India

Legislative heads of States

Administrator of the National Human Rights Commission

Boss Election Commissioner and other Election Commissioners

Heads of Union Territories

Forces identifying with the Council of Ministers

The President needs to practice his Executive forces on the counsel of the Council
of Ministers so he is exposed to certain constraints in practicing powers. Yet, he
has the ability to send back the proposal of the gathering for reevaluation. The
gathering could conceivably acknowledge such a proposal. In this way, the
President while being the Executive head in name, the real force dwells with the
Council of Ministers headed by the Prime Minister.

However, notwithstanding such constraints, the Prime Minister likewise has certain
obligations which he needs to satisfy towards the President and it incorporates, The
obligation to impart every one of the choices made by the committee on the
organization and enactment of the country, the obligation to such data as the
President may request and so forth
Authoritative Powers

The President regardless of being the chief top of the State, additionally have
numerous administrative forces which are significant for the enactment of the
country.

Consent of the President

For any bill to get the approval of law, it needs to get the consent of the President.
Along these lines just when the President gives his consent to a bill which has been
passed by both the places of Parliament, the bill can turn into a legitimate law. This
implies that the President is a fundamental piece of the Parliament in India.

The President additionally have the ability to reject the bill which is introduced to
him. The rejection implies that the President has the ability to send the bill back to
the Parliament if the President believes that some reevaluation ought to be made in
the bill. In any case, in the event that the Parliament sends the bill again with no
changes, the President needs to give his consent to the bill.

Sometimes, the Bills introduced to the Governor by the State Legislature might be
held by the Governor for the thought of the president if that bill isn't cash bill of the
State council. The President can acknowledge it or advise the Governor to send it
back for reexamination or he may guide him to not send it back. In the event that
the State council again sends the bill and the Governor again holds the bill for
thought of the President, he isn't obliged to acknowledge that bill.
If there should arise an occurrence of a Money Bill, the past proposal of the
President is vital subsequently, the President may either give his consent or retain
it however he can't send the bill back to the house for reexamination.

The President has the ability to bring either or both the Houses. The President
likewise has the ability to disintegrate the House of People sometimes. Prorogue
implies that the house is ceased without dissolving the House. The President
likewise addresses the Houses after the overall decisions are closed.

The President likewise has the ability to gather a joint sitting of the house in
instances of a gridlock wherein the two houses sit together and the contention is
settled.

Ability to Promulgate Ordinance

Under Article 123 of the Constitution, when the Parliament isn't in meeting and
there is a desperation, the President has the ability to give a statute and such a law
has the power of law. This statute remaining parts legitimate for about a month and
a half from the date when the Legislature continues its meeting. he impact of the
statute is equivalent to the demonstration of Legislature and consequently the
President is endowed with extraordinary administrative force.

Assigning Members to Parliament

The President has the ability to assign 2 individuals from the Anglo-Indian people
group in the House of People in the event that he feels that they are not addressed
as expected. He additionally the option to name 12 individuals in the Council of
States from the field of Arts, Literature, Science, Social Science and so forth
Legal Powers

The President of India is additionally furnished for certain legal forces which can
be practiced by him by the position given to him under Article 72 of the
Constitution. Under article 72 the President has the ability to give respites,
pardons, rests, abatement and recompense of sentence.

Respite implies that the sentence of an individual can be suspended for a brief
timeframe. In pardons, the individual documents a leniency appeal to the President
and it is normally applied for in situations where the Supreme Court maintains the
Capital discipline. Assuming the President allows the exoneration, the individual is
eased of any sentence and turns out to be liberated from any discipline. Under
Respite, the individual who is held liable is granted less discipline while under
abatement his the measure of sentence granted to an individual is diminished after
it has been granted by the Court. In Commutation, the discipline of an individual is
changed starting with one then onto the next. For. e.g., assuming the President
endorses the compensation of sentence, an individual who has been granted Capital
Punishment may rather be granted life detainment.

Ability to announce Emergency

Under the Provisions of Article 352, 356 and 350 the president has the ability to
proclaim crisis circumstance either in the entire domain of India or in any State or
part of it.

There are 3 kinds of Emergency which can be proclaimed by the president:

Public Emergency (Article 352)

State Emergency (Article 356)

Monetary Emergency (Article 360)

During Emergency, any rights including Fundamental rights aside from Article 20
and 21 can be suspended by the President and the Parliament can likewise pass a
goal to force President's standard in any State.

Additionally, every one of the Government Contracts made by the Union are made
for the sake of the President and without this necessity being satisfied, a
Government contract can't be viewed as legitimate.

From the different positions, t can be seen that the President has been vested with
numerous forces under the Constitution and every one of the choices and activities
of the Government are taken in his name. Be that as it may, while there are
numerous forces which are delighted in by the president, a considerable lot of them
are in genuine work on, dwelling with the Council of Ministers which is going by
the Prime Minister.

This situation of the President is equivalent to the King of England and accordingly
the Statement that the President is the Nominal or Titular Head of the State is valid
and the Prime Minister is the genuine head.

In India, the President is known as the Executive head yet he is just a nominal
leader. Despite the fact that the President is given numerous forces, a large number
of them are not successful for example regardless of whether the president sends a
bill back to the Houses of Parliament for certain adjustments, the Parliament can
resend it with no alterations and the President will undoubtedly give his consent.

Likewise, the President doesn't assume a functioning part in the undertakings of the
State and the genuine Executive force is vested in the Council of Ministers headed
by the Prime Minister. Thus, the Prime Minister is the genuine top of the state and
the President is the head just in name.

In Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549),

it was observed Ordinarily the executive power connotes the residue of

governmental functions that remain after legislative and judicial functions are
taken away. It is neither necessary nor possible to give an exhaustive enumeration
of kinds and categories of executive functions. Executive power is not confined to
administration of laws already enacted but it includes determination of
governmental policy, initiation of legislation, maintenance of law and order,
promotion of social and economic welfare, foreign policy, etc. in short, carrying on
the general administration of State.

Ram Jaway v. State of Punjab (AIR 1955 SC 549), Shamsher Singh v. State of
Punjab (AIR 1974 SC 2192) are the judicial precedents in this regard. Wherever
the Constitution requires the satisfaction of President or Governor, for example
Article 213, 311(2)(c), 356,360, the satisfaction is not the personal satisfaction, but
it is the satisfaction in the constitutional sense under the cabinet system of
government. It is the satisfaction of Council of Ministers on whose aid and advice
the President or Governor generally exercises all his powers.

Whether the functions exercised by the President are the functions of the Union or
the functions of the President, they have equally to be exercised on the aid and
advice of the Council of Ministers except those which he has to exercise in his
discretion (Shamsher Singh v. State of Punjab AIR 1974 SC 2192).