Constitutional Law-II Notes

Constitutional Law-II -2nd Semester
CONSTITUTION II IMPORTANT QUESTIONS

SHORT ANSWER QUESTIONS
1. ANTI-DEFECTION LAW.
2. DISCUSS THE POWERS & FUNCTIONS OF THE PRESIDENT WITH
SPECIAL REFERENCE TO THE PARDONING & EXECUTIVE POWERS
3. JUDICIAL ACCOUNTABILITY.
4. DOCTRINE OF REPUGNANCY (LEGISLATIVE SUPREMACY OF THE UNION
OVER THE STATES) WITH DECIDED CASES.
5. DOCTRINE OF COLOURABLE LEGISLATION.
6. DOCTRINE OF PITH & SUBSTANCE.
7. PROMISSORY ESTOPPEL.
8. PUBLIC SERVICE COMMISSION (UPSC), ALL INDIA SERVICES.
LONG ANSWER QUESTIONS
1. POWERS & FUNCTIONS OF THE GOVERNOR

ORDINANCE MAKING POWER OF THE GOVERNOR.
2. POWERS, PRIVILEGES & IMMUNITIES OF LEGISLATIVE
DISCUSS WITH THE DECIDED CASES.
3. JURISDICTION (VARIOUS) OF SUPREME COURT.
WRIT JURISDICTION OF SUPREME COURT.
4. INDEPENDENCE OF JUDICIARY, HOW IT IS MAINTAINED IN INDIA?
5. LIABILITY OF STATE IN CONTRACTS (Article 299).
6. LIABILITY OF STATE IN TORTS (Article 300).
7. BASIC STRUCTURE THEORY, PARLIAMENT'S POWER TO AMEND
CONSTITUTION.
CASE LAWS
1. IMPOSITION OF EMERGENCY, ARTICLES 358, 353.
2. ARTICLE 164(4), APPOINTMENT OF A NON-LEGISLATOR AS A MINISTER.
ARTICLE 75(5), APPOINTMENT OF A MINISTER WHO IS NOT A MEMBER OF
PARLIAMENT.
3. Suspension of Civil Servant (Article 311).
4. ARTICLE 226, WRIT OF MANDAMUS.
5. Parliament’s power to amend Basic Structure (Article 368).
6. The ordinance making power and limitations, Articles 213 and 123.
7. Article 299 and 300, State Liability.
8. Territorial Nexus (Article 245).
9. Contempt of Court, Articles 215 and 129.
10. Article 253, Legislation for giving effect to international agreements.
11. Article 228, Transfer of certain cases to the High Court.
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12. Repugnance Article 254, inconsistency between Central and State Laws.
PAPER-III:
CONSTITUTIONAL LAW-II
Unit-I:
Legislature under Indian Constitution - Union and State Legislatures -
Composition, Powers, Functions and Privileges - Anti-Defection Law –
Executive under Indian Constitution - President and Union Council of
Ministers Governor and State Council of Ministers - Powers and position of
President and Governor
Unit-II:
Judiciary under Constitution - Supreme Court - Appointment of Judges, Powers
and Jurisdiction – High Courts - Appointment and Transfer of Judges – Powers
and Jurisdiction - Subordinate Judiciary - Independence of judiciary – Judicial
Accountability
Unit-III:
Centre-State Relations - Legislative, Administrative and Financial Relations -
Cooperation and Coordination between the Centre and States – Judicial
Interpretation of Centre-State Relations - Doctrines evolved by Judiciary
Unit-IV:
Liability of State in Torts and Contracts - Freedom of Interstate Trade,
Commerce and Inter course - Services under the State - All India Services -
Public Service Commissions
Unit-V:
Emergency – Need of Emergency Powers - Different kinds of Emergency -
National, State and Financial emergency - Impact of Emergency on Federalism
and Fundamental Rights - Amendment of Indian Constitution and Basic
Structure Theory
Suggested Readings:
1. M.P.Jain, Indian Constitutional Law, Wadhwa & Co, Nagpur
2. V.N.Shukla, Constitution of India, Eastern Book Company, Lucknow
3. Granville Austin, Indian Constitution-Cornerstone of a Nation, OUP,
NewDelhi
4. H.M.Seervai, Constitutional Law of India (in 3 Volumes), N.M.Tripati,
Bombay
5. G.C.V.Subba Rao, Indian Constitutional Law, S.Gogia & Co., Hyderabad
6. B.Shiva Rao, Framing of India’s Constitution (in 5 Volumes), Indian
Institute of Public Administration, New Delhi
7. J.N.Pandey, Constitutional Law of India, Central Law Agency, Allahabad
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IMPORTANT ARTICLES
TOPIC SC/UNION HC/STATE
Writs 32 226
Appointment of non-legislator as Minister 75(5) 164(4)
Anti-defection Law 101, 102 190, 191
Ordinance making Power 123 213
Contempt of Court 129 215
Transfer of Cases 139A 228
Territorial Nexus 245
Legislation for International treaties 253
Doctrine of Repugnancy 254
Public Service Commission 315
Liability of State in Contracts 299
Liability of State in Tort 300
Suspension of Civil Servant 311
Emergency & Fundamental Rights 358
Constitution Amendment 368
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SHORT ANSWERS
1. Anti defection law.

Answer: The 52nd amendment has amended Articles 101, 102,190 and 191 and
added a new Schedule, the Tenth Schedule, to the Constitution which specifies the
disqualifications on the ground of defection.
Article 102(2) of the Constitution provides that a person shall be disqualified for
being a member of either House of Parliament if he is so disqualified under the
Tenth Schedule and Article 191(2) is applicable for state Legislative members.
Regarding disqualification on ground of defection paragraph 2 of Tenth Schedule
of the Constitution provides that-
A. If he has voluntarily given up his membership of such political party,

B. If he votes or abstains from voting in such House contrary to any direction
issued by the political party to which he belongs,
C. If a member joins another party,
D. A nominated member of a House shall be disqualified for being a member
of the House if he joins any political party after the expiry of six months.
Exceptions: The above disqualification will however not apply:
(1). If a member goes out as a result of a merger of his original political party with
another political party provided 2/3 of the members of the legislature party have
agreed to such merger, or
(2). If a member, after being elected as the presiding officer gives up the
membership of the party to which he belonged, or does not rejoin that party or
becomes a member of another party.
The Constitution (91 st Amendment) Act, 2003 has added a new clause to Articles
75 and 164 of the Constitution. Clause (1-B) provides that a member of the either
House of Parliament belonging to any political party who is disqualified for being
member of that House on the ground of defection under paragraph (2) of the Tenth
Schedule shall also be disqualified to be appointed as a minister under Clause (1) of
Articles 75 and 164 until he is re-elected. Consequently paragraph (3) of the Tenth
Schedule under which the exemption from disqualification as provided in case of
split of 1/3 members have been omitted.
In any question arises as to whether a member of a House has become subject to

any of the disqualifications under the Tenth Schedule, the question shall be referred
to the Chairman or the Speaker of such House, whose decision shall be final. The
decision of the presiding officers shall not be called into question in any court of law.
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2. Discuss the powers and functions of the President.

Answer:
 Articles 52 – 78 & 123 deals with President & Vice President.
 Article 52 of the Constitution says that there shall be a President of India. He is the
Head of the State. The executive power of the union.
Powers of the President:
1. Executive powers (Art 77):

A. Power to appoint the Prime Minister and on his advice other Ministers of the
Union.
B. Power to appoint judges of the Supreme Court and the High Courts.
C. Power to appoint Governors of the States (Art 155) & termination of Governors
{Art 156(1)}.
D. Appointment of Attorney-General.
E. Appointment of Comptroller and Auditor-General.
F. Appointment of Chairman and Members of the Public Service Commission.
G. Appointment of the Members of the Finance Commission and Official
Commissions,
H. Appointment of Special Officer for Scheduled Castes and Scheduled Tribes.
I. Appointment of Commission to report on the administration of Scheduled Areas.
J. Appointment of Commission to investigate the conditions of backward classes.
K. Appointment of Special Officer for linguistic minorities.
2. Military Powers: The president is the Supreme Commander of the Defence Forces of
the Country. He has powers to declare war and peace.
3. Diplomatic Powers: As the head of the State, the President sends and receives
Ambassadors, and other diplomatic representatives. All treaties and international
agreements are negotiated and concluded in the name of the President though
subject to ratification by Parliament.
4. Legislative Powers: The President of India is a component part of the Union
Parliament. In theory, he possesses extensive legislative powers. He has the power
to summon and prorogue the Parliament and he can dissolve the Lok Sabha.
5. Ordinance-making power of the President (Art 123),
6. Pardoning Power (Art 72): Under Article 72 President has power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence (1) by Court-martial; (2) an offence
against any law relating to a matter to which the executive power of the Union
extends; or (3) in all cases in which the sentence is one of death.
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7. Emergency Powers (Articles 352 to 360): Part XVIII of the Constitution arms the
President with enormous emergency powers. The emergencies envisaged under the
Constitution are of three kinds:
A. Emergency arising out of the war, external aggression or armed rebellion {Art
352(1)},
B. Emergency due to failure of constitutional machinery in the State {Art 356(2)},
C. Financial emergency {Art 360(1)}.
Qualifications: Article 58 lays down the qualifications
1. He must be a citizen of India,

2. He must have completed the age of 35 years,
3. He must be qualified for election as a member of the House of the People (i.e. he
must be registered as a voter in any Parliamentary Constituency),
4. He must not hold any office of profit.
Condition of President’s office under Article 59, President cannot be a member of either
House of Parliament or of a House of the Legislature of any State.
*****
3. JUDICIAL ACCOUNTABILITY.
Answer: ‘Judicial accountability’ indicates that the judiciary (Judges) is accountable to the
common man as the society expects a judge to be a man of high integrity, honesty and
required to have moral vigor, ethical firmness and impervious to corrupt or venal influences.
Levels of Judicial Accountability: There are three levels on which one has to consider
judicial accountability –
1. Accountability for personal conduct,
2. Decisional Accountability,
3. The Accountability of the Judiciary as a whole.
 Need for Judicial Accountability.

 Judicial Accountability in India.
 The Judicial Standards and Accountability Bill, 2010.
4. DOCTRINE OF REPUGNANCY (LEGISLATIVE SUPREMACY OF THE UNION OVER THE

STATES) WITH DECIDED CASES.
Answer: Article 254,
Article 254(1) of the Constitution provides that if any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject to the provisions of clause
(2), the law made by Parliament, whether passed before or after the law made by the
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Legislature such State or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of the repugnancy, be void.
As per Article 254(2) of the Constitution, where a law made by the Legislature of a State
with respect to one of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has received his assent, prevail in
that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time
any law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the state.
The question of repugnancy between the Parliamentary legislation and State legislation
arises in two ways:
1. Where the legislations are enacted with respect to matters allotted in their fields but
they overlap and conflict.
2. Where the two legislations are with respect to the matters in the concurrent list and
there is a conflict.
In both the situations, the Parliamentary legislation will predominate, in the first by virtue
of a non-obstante clause in Article 246(1) and in the second by reason of Article 254(1).
In M.Karunanidhi v. Union of India, the principles to be applied for determining
repugnancy between a law made by the Parliament and a law made by the State Legislature
were framed. They are:
1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully
inconsistent and are absolutely irreconcilable, the Central Act will prevail and the
State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by
the Parliament on an entry in the Concurrent List, the State Act shall prevail to the
extent of the repugnancy and the provisions of the Central Act would become void
provided the State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantial with the scope
of the entries in the State List entrenches upon any of the entries in the Central List
the constitutionality of the law may be upheld by invoking the doctrine of Pith and
Substance.
4. Where, however, a law made by the State Legislature on a subject covered by the
Concurrent List is inconsistent with and repugnant to a previous law made by
Parliament, then such a law can be protected by obtaining the assent of the
President under Article 254(2).
Conditions for repugnancy:
1. That there is a clear and direct inconsistency between the Central Act and the State
Act.
2. That such an inconsistency is absolutely irreconcilable.
3. When the two Acts are into direct collision with each other.
5. DOCTRINE OF COLOURABLE LEGISLATION.
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Answer: The Indian Constitution distributes the legislative powers between the Parliament
and the State Legislatures and they are required to act within their respective spheres.
Often the question arises as to whether or not the legislature enacting the law has
transgressed the limits of its constitutional powers. Then the Courts apply the Doctrine of
Colourable Legislation to decide whether the legislation is valid or constitutional.
 The Doctrine of Colourable Legislation is based upon the maxim “what cannot be
done directly cannot be done indirectly”.
 The Court will look in the true nature and character of the legislation and for that its
object, purpose or design to make law on a subject is relevant and not it's motive.
 If the legislature has the power to make law, the motive in a making the law is
irrelevant.
 Colourable legislation would emerge when the legislature has no power to legislate
on an item either because it is not included in the list assigned to it under the
respective entries in the Seventh Schedule of the Constitution or on account of
limitation imposed either under Part III of the Constitution relating to the
Fundamental Rights or any other power under the Constitution.
 In K.C. Gajapati Narayan Deo v. State of Orissa the Doctrine of Colourable Legislation
has been illustrated for the first time.
 The transgression may be patent, manifest or direct, but it may also be disguised,
covert or indirect.
 The legislature cannot violate the constitutional prohibitions by employing indirect
methods.
6. DOCTRINE OF PITH AND SUBSTANCE.

Answer: ‘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 the 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 provision is about a subject that falls in the
State List.
 The Doctrine of Pith and Substance which has come to be established in India derives
its genesis from the approach adopted by the Courts (including the Privy Council) in
dealing with controversies arising in other federations.
 The doctrine of pith and substance provides that where the question arises of
determining whether a particular law relates to a particular subject mentioned in
one list or another, the court looks to the substance of the matter. Thus, if the
substance falls within Union List, then the incidental encroachment by the law on
the State List does not make it invalid.
 The Doctrine of Pith and Substance is sometimes expressed in terms of ascertaining
the true character of legislation and it is also emphasised that the name given by the
Legislature to the legislation in the short title is immaterial.
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7. PROMISSORY ESTOPPEL.
Answer:
Introduction: The concept of promissory estoppel is a good relief for the suffered party
which was not at fault at all. There is no provision as such which clears availability of relief
under this principle but it is enforceable and based on equity, to protect the innocent party
as a shield. The doctrine itself, its evolution and jurisprudence behind this principle is dealt
with in this project.
Various cases in which this principle is followed and these are precedents to assure the
availability of this principle in Indian law are mentioned in this project. The realm of this
principle is ambiguous, the law commission suggested recommendation to make new
section as 25A in the Indian contract act in the 108th report. These recommendations are
mentioned in the project.
The doctrine of Promissory Estoppel
The doctrine of promissory estoppels is based on the principles of justice, fair play, and good
conscience. It was evolved by equity to prevent injustice. It neither comes under the
contract nor under estoppels proper.
The principle is that when one party with the intention of creating or affecting legal
relationship makes a promise with another party and that party acts on it, that promise
should be binding for the party who is making it. It will not be allowed to go back from its
words. Because reverting from the words will be against equity.
In Motilal Padampat Sugar Mills v. State Of Uttar Pradesh And Ors, the Chief Secretary
of Govt. made an assurance that in order to establish industries firmly the total tax
exemption will be given to the new industrial units for next 3 years based on this assurance,
M.P. sugar mill started hydro generation plant taking huge amount of money as loan.
Afterwards govt. makes some changes in the tax policy saying that industries will be taxed at
a varying rate.
Applying the doctrine of promissory estoppels the SC held that appellant took a huge
loan relying on the assurance made by govt. so no tax should be imposed for the period of 3
years from the date of production as the promise was made. And there is nothing like to
make that promise enforceable one party should suffer harm or damages, in absence of
detriment also the promise is binding.
Jurisprudence behind the Doctrine
The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies, it
is discretionary, in contrast to the common law absolute right like the right to damages for
breach of contract. It is a principle evolved by equity to avoid injustice and though
commonly named ‘promissory estoppel’, it is neither in the realm of contract nor in the
realm of estoppel.
In India, however, as the rule of estoppel is a rule of evidence, the ingredients of Section
115 of the Indian Evidence Act, 1872, must be satisfied with the application of the doctrine.
The doctrine of promissory estoppel does not fall within the scope of Section 115 as the
section talks about representations made as to existing facts whereas promissory estoppel
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deals with future promises. The application of the doctrine would negate the constitutional
provision, as under Article 299, which affords exemption from personal liability of the
person making the promise or assurance.
8. PUBLIC SERVICE COMMISSION (UPSC).

Answer: Article 315 of the Constitution of India provides that:
1. Subject to the provisions of this article, there shall be a Public Service Commission
for Union and a Public Service Commission for each State.
2. Two or more States may agree that there shall be one Public Service Commission for
that group of States.
Appointment and term of office of members: Article 316 of the Constitution of India
provides that:
A. The Chairman and other members of a Public Service Commission shall be
appointed, in the case of the Union Commission or a Joint Commission, by the
President, and in the case of a State Commission, by the Governor of the State.
B. A member of a Public Service Commission shall hold office for a term of six years
from the date on which he enters upon his office or until he attains, in the case of
the Union Commission, the age of Sixty five years, and in the case of a State
Commission or a Joint Commission, the age of sixty-two years, whichever is earlier.
Removal and suspension of a member of a Public Commission: Article 317 of the
Constitution of India provides that –
1. Subject to the provisions of clause (3), the Chairman or any other member of a Public
Service Commission shall only be removed from his office by order of the President
on the ground of misbehaviour after the Supreme Court’s inquiry.
2. The President, in the case of the Union Commission or a Joint Commission, and the
Governor in the case of a State Commission, may suspend from office the Chairman
or any other member of the Commission in respect of whom a reference has been
made to the Supreme Court.
3. The President may by order remove from office the Chairman or any other member
of a Public Service Commission if the Chairman or such other member, as the case
may be-
A. Is adjudged an insolvent, or
B. Engages during his term of office in any paid employment outside the duties of
his office, or
C. Is, in the opinion of the President, unfit to continue in office by reason of
infirmity of mind or body.
4. Chairman or any other member of a Public Service Commission is interested in any
contract or agreement by the State or Central Government.
LONG ANSWER QUESTIONS
1. POWERS & FUNCTIONS OF THE GOVERNOR.
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Answer: Articles 153 – 167 & 213 deals with Governor.

Powers of the Governor
1. Executive Power (Article 154).
2. Financial Powers:
A. Money bill or other Financial Bill is introduced in the House on the
recommendation of the Governor.
B. The Governor has the contingency fund of the State at his disposal for
emergencies.
C. Governor can borrow money on the security of the Consolidated Fund of the
State and guarantee the loans of any other local authorities.
3. Legislative Powers: The Governor is part and parcel of the Legislature of a State
which consists of the Governor and the House or Houses of Legislature as the case
may be (Article 168)
A. The Governor nominates one-sixth of the total number of the members of the
Legislative Council (Upper House)
B. The nomination of one Anglo-Indian member to the Assembly.
C. Summoning the House
D. Addressing the House.
E. When the bill is passed by the Assembly, it is presented to the Governor for his
assent.
4. The Pardoning Power
5. Ordinance-making power of the Governor (Article 213).
2. POWERS, PRIVILEGES & IMMUNITIES OF LEGISLATIVE DISCUSS WITH DECIDED

CASES.
Answer: The powers of Legislative:

1. Legislative Powers: According to Article 245 of the Constitution, parliament has the
power to make laws for the whole or any part of the territory of India, and the
Legislature of a State has the power to make laws for the whole or any part of the
State.
2. Executive Powers,
3. Financial Powers,
4. Constituent Powers: Power of Parliament to amend the Constitution.
5. Judicial Powers,
6. Electoral Powers,
7. Power to determine salaries and allowances of Members.
8. Other Powers:
A. Parliament has the power to punish any individual for the breach of its privileges.
B. Parliament has to ratify the Ordinance for imposing Emergency.
C. Parliament elects President and Vice President through Electoral College.
D. Parliament can remove Judge of the Supreme Court or High Court from his office
by a majority.
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Privileges & Immunities of Legislative Articles 105 and 194 :

1. Freedom of speech (P V Narsimha Rao v State),
2. Right of publications of its proceedings
3. Freedom from arrest
4. Right to exclude strangers from its proceedings and hold secret sessions,
5. Right to prohibit publication of its reports and proceedings,
6. Right to regulate internal proceedings,
7. Right to punish members or outsiders for contempt
3. Jurisdiction of Supreme Court.

Answer:
Classification of Supreme Court Jurisdiction
(1). A Court of Record: Article 129 makes the Supreme Court a ‘court of record’ and confers
all the powers of such a court including the power to punish for its contempt. A court of
Record is a court whose records are admitted to be of evidentiary value and they are not to
be questioned when they are produced before the court. Once a court is made a Court of
Record, its power to punish for contempt necessarily follows from that position. The power
to punish for contempt of court has been expressly conferred on the Supreme Court by our
Constitution. This extraordinary power must be sparingly exercised only where the public
interest demands.
(2).Original Jurisdiction:
A. Interstate disputes specified in the Proviso to Art. 131:

1. Between the Government of India and one or more States,
2. Between the Government of India and any State or States on one side and
one or more other States on the other,
3. Between two or more States.
B. Disputes relating to the election of a President or Vice President (Article 71),
C. Transfer of cases (Article 139-A),
D. Writ Jurisdiction (Article 32).
(3).Appellate Jurisdiction:
A. An appeal in Constitutional matters (Art. 132)
B. Appeals from the High Court in regard to civil matters (Art. 133),
C. Appeals from the High Courts in regard to criminal matters (Art. 134),
D. Federal Court (Art. 135),
E. Special Leave Petition (Art. 136),
F. Statutory appeals.
(4). Advisory jurisdiction (Art. 143),
(5). Miscellaneous powers and jurisdictions:
A. Review the power of the Supreme Court,
B. Ancillary powers (Art. 140),
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C. Enlargement of the jurisdiction (Art. 138),

D. Rulemaking power (Art 145).
(6). Other powers:
A. Law declared by Supreme Court to be binding on all Courts,
B. Overruling power of the Supreme Court.
C. Interpretation of Constitution and Acts.
4. INDEPENDENCE OF JUDICIARY. AND HOW IT IS MAINTAINED IN INDIA?

Answer:
 Independent judiciary is one of the federal features and essential in a democracy.
 It is also called as Supremacy of law
 It is one of the basic features of the Constitution of India.
 Supreme Court of India is the guardian of the Constitution and the fundamental
rights.
 The supremacy of the Constitution can be maintained only through an independent
and impartial judiciary.
 The judiciary has the power of judicial review under the Constitution.
 The judiciary imposes limits on the power of the Centre and the State also.
 The Government has three organs namely, legislature, executive and judiciary.
 Judiciary is the organ of the government not forming a part of the executive or the
legislative.
 The independence of the judiciary can be understood as the independence of the
institution of the judiciary and also the independence of the judges which forms a
part of the judiciary.
Independence of Judiciary in India: The Constitution of India has made several provisions
to ensure the independence of Judiciary, they are:
1. Separation of Judiciary from the Executive (Article 50),
2. Power of contempt of Court ( Articles 129 for SC and 215 for High Courts),
3. No discussion in the house (Article 211),
4. Fixed tenure,
5. Salaries and Allowances,
6. Jurisdiction and power of the Supreme Court not to be curtailed,
7. Appointment of Judges with the consultation of the Supreme Court and High Courts,
8. Prohibition on practise after retirement.
9. Removal of Judges of Supreme Court or High Court requires a majority in Parliament
and it acts as a deterrent to remove them.
10. Keshavananda Bharati v State of Kerala – Basic Structure Theory.
5. LIABILITY OF STATE IN CONTRACTS (Article 299)

Answer:
 Both the Union and State Governments have the power to enter into contracts like
private individuals, in relation to the respective spheres of their executive power.
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 The contractual power of the Government is subject to some special formalities

required by the Constitution, in addition to those laid down by the Law of Contract
which governs any contract made in India.
 Article 298 of the Constitution of India provides that the executive power of the
Union and of each State shall extend to the carrying on of any trade or business and
to the acquisition, holding and disposal of property and the making of contracts for
any purpose.
 In Mahabir Auto v. IOC, it has been held that the freedom of the Government to
enter into business with anybody it likes is subject to the condition of reason and fair
play as well as the public interest.
Liability in contracts: Article 299 authorises the Government of India and the Government
of State to enter into a contract for any purpose subject to the mode and manner provided
by Article 299.
Article 299 runs as follows—
(1) All contracts made in the exercise of the executive power of the Union or of 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 persons 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 purposes of this Constitution, or for
purposes of any enactment relating to the Government of India heretofore in force, nor
shall any person making or executing any such contract or assurance on behalf of any of
them personally liable in respect thereof.
Essential features of Liability of State in Contracts:
1. The Contract must be in the name of the President or Governor,
2. The contract must be executed by a person duly authorised by the President or the
Governor of the State,
3. All contracts must be expressed,
4. The contractual power of the Government is subject to some special formalities
required by the Constitution,
5. All contracts of the Union and State are subject to provisions laid down in the Indian
Contract Act, 1872,
6. The contract must be executed in proper form,
7. No ratification (Mulamchand v. State of Madhya Pradesh),
8. Restitution, in case of void agreements, the party receiving the advantage bound to
restore it, under Section 70 of the Indian Contract Act,
9. No personal liability,
10. Natural justice: Although the government is not at par with a private person while
dealing in private law yet the Governmental actions must conform to the prescribed
procedure and also must be reasonable.
11. Promissory estoppels (Motilal Padampat Sugar Mills v. the State of U.P).
12. The contractual liability of the State the same as that of an individual.
13. Liability in tort {Article 300(1):
- State of Rajasthan v Vidyawati.
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- Rooplal v Union of India.
6. LIABILITY OF STATE IN TORTS (VICARIOUS LIABILITY) WITH DECIDED CASES.

Answer: State is not a living entity but a legal entity. It can function only through its
servants. These servants in discharge of the functions assigned to them by the State may
commit torts. In such situations liability of the State for such torts arises. The liability of the
State in torts actually means the vicarious liability of the State for the torts committed by its
servants in the exercise of their power or in the discharge of their duties.
Tort means a civil wrong causing injury or damage to another. The injury may be
personal, physical, mental or otherwise and injured party resorts to remedy by an action in
Civil Court. The remedy may be un-liquidated damages or injunction or restitution of
property etc.
TORTIOUS LIABILITY OF THE STATE (ARTICLE 300):

Article 300 of the Indian Constitution, which speaks about the Suits and Proceedings, deals
with the legal status of the Union and State Governments to sue and be sued in respect of
the tort, committed by its servants while discharging their duties on behalf of the
Government, the Union or State.
Article 300 reads as —

(1) The Government of India may sue or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of the State and may, subject to any
provisions which may be made by Act of Parliament or of the Legislature of such State
enacted by virtue of powers conferred by this Constitution, sue or be sued in relating to
their respective affairs in the like cases as the Dominion of India and the corresponding
Provinces or the corresponding Indian States might have sued or been sued if this
Constitution had not been enacted.
(2) If at the commencement of this Constitution—
a) Any legal proceedings are pending to which the Dominion of India is a party, the Union of
India shall be deemed to be substituted for the Dominion in those proceedings, and
b) Any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State
in those proceedings.
Tortious Liability of the State means 'Liability of the State/ Government for the torts
committed by its servants.
In view of tremendous growth in administrative functions, being discharged by the

Government Servants, danger to another's person or property may take place. Then, the
question arises is, whether the Government or State is vicariously liable for the torts
committed by its servants? (Vicarious liability means 'liability of one person for the tort
(wrong) committed by another.)
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Underlying Principle:
The doctrine of vicarious liability is based on the following two maxims:
1. Quasi facit per alium facit per se: It means "he who does an act through another does it
himself."
2. Respondent Superior: It means "let the Superior (Principal) be liable."
Position of State/Government Liability after the Constitution of India:

Even after the Constitution of India came into force, the courts followed sovereign, the non-
sovereign dichotomy in many cases in spite of the Supreme Court’s decision in Vidyavathi’s
case.
State of Rajasthan v. Vidyavathi (AIR 1962 SC 933),

Vidyavathi's husband died of an accident having knocked down by a Collector's jeep on
official top. On appeal, the Supreme Court through Sinha C.J. held that the State is liable,
without taking into consideration, the Sovereign, Non-Sovereign Dichotomy.
Kasturilal v. State of Uttar Pradesh (AIR 1965 SC 1039)-

In this case, Kasturilal's gold was seized by the police under the suspicion that it was the
stolen property. The gold was kept in the Police Malkhana under the custody of a Head
Constable. He misappropriated the gold and fled to Pakistan. In an action by Kasturilal
against the State for recovery of the Gold or its equivalent value, the trial court dismissed
the suit. On appeal, the Supreme Court upheld the Trial Court's decision following the rule
of the sovereign, non-sovereign dichotomy laid down in P & 0 Steam Navigation Case.
The above rule was followed by the Supreme Court in:

State of Uttar Pradesh v. Tulasi Ram, (AIR 1971 All. 162)-
It is to be noted that, to plead the immunity both the conditions stated above are to be
satisfied. If either of the two conditions is absent, the State is liable as in the case of
Hindustan Lever Limited v. State of Uttar Pradesh, (AIR 1972 All. 486).
Gross negligence by the Servant: The Government/State is vicariously liable for the gross
negligence of its servants. Relevant case on this point is Ramakanda Reddy v. State, (1989)
— The A.P. High Court held the State liable to pay compensation. In this case, an undertrial
prisoner died owing to the negligence of the prison authorities. The Court viewed that the
sovereign immunity could no longer be applicable in cases for violation of the right to life
and personal liberty guaranteed under Article 21 of the Constitution.
In Satyawati Devi v. Union of India (AIR 1967 Delhi 98)-

Air Force personnel played the game and returned by a bus. The bus driver drove the bus
negligently causing the death of the husband of the Satyawati Devi. The Court held that the
State is liable for damages, on the ground that the carrying function is a non-sovereign
function.
Rudul Shah V. State of Bihar (AIR 1983 SC 1086)
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An acquitted person was detained in prison for more than 14 years. The Supreme Court
directed the State to release him immediately and awarded exemplary damages of
Rs.35,000/-.
Bhim Singh v. State Jammu & Kashmir (AIR 1986 SC 494)

Bhim Singh was awarded Rs.50,000/- as exemplary damages (by the Supreme Court) for
unlawful detention.
Kalawati v. State of Himachal Pradesh (AIR 1989 HP 5)

Two persons died in a Government Hospital owing to the negligence of hospital staff who
administered nitrous oxide in place of Oxygen to the patients. The Court awarded
compensation under Article 21.
7. BASIC STRUCTURE THEORY. PARLIAMENT’S POWER TO AMEND.

Answer: ‘Basic Structure’ of the Constitution consists of basic elements or features or
essential elements of the constitution which the Indian Parliament cannot amend under any
circumstances or under Art. 368. Although it is permissible under the power of amendment
to effect changes howsoever important and to adopt the system to the requirements of
changing conditions, it is not permissible to touch the foundation or to alter the basic
institutional pattern.
Basic structure Theory:
Article 368 provides the procedure for the amendment of the Constitution of India.
However, the Parliament while exercising its power under Article 368 should not alter the
basic structure. 'Basic Structure' has not been defined in the Constitution, but Courts
declared certain features as a basic structure.
Kesavananda Bharati v. the State of Kerala, AIR 1973 SC 1461, the following features of the
Constitution were held to be basic structure.
1. The supremacy of the Constitution
2. Republican and democratic forms of the Government
3. Secular character of the Constitution
4. Separation of powers between legislature, executive, judiciary
5. Federal character of the Constitution
6. Sovereignty of India
7. Parliamentary democracy.
8. Unity of the country
9. The dignity of the individual
10. Fundamental rights and freedoms
11. Welfare State etc.
Golak Nath v. State of Punjab, AIR 1967 SC 1643,
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It has been held that the Parliament had no power to amend Part III of the Constitution so
as to take away or abridge the fundamental rights. Thus the earlier decisions in Shankan
Prasad and Sajjan Singh Cases were overruled.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299,

This is popularly known as 'Election Case'. Smt. Indira Gandhi and Mr. Raj Narain contested
as the candidates for the General Election to the Parliament. Smt. Indira Gandhi alleged to
have been elected Member of Parliament by misusing her powers as sitting Prime Minister
of India. The Government under the leadership of Smt. Indira Gandhi amended Article 329
and inserted a new Article 329A by the Constitution 39th Amendment act 1975, once
elected, they cannot be questioned, which gives protection to the Prime Minister and
Should not be questioned by any court of Law including the Supreme Court retrospectively.
This amendment caused a very great sensation in the country. Mr. Raj Narain challenged the
constitutional validity of Article 329A as it was destructive of the basic structure of the
Constitution of India. The Supreme Court declared judicial review, free and fair elections,
rule of law and right to equality as the basic structure of the Constitution of India.
The Supreme Court has thus added the following features as basic features of the
Constitution to the list of basic features laid down in the Keshavananda Bharati’s Case:
1. Rule of law.
2. Judicial Review.
3. Democracy, which implies free and fair Election.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789,

The Central Government passed the Sick Textile Undertaking (Nationalization) Act, 1974.
The Act authorised the Central Government to take over the Minerva Mills Ltd. The
shareholders and the creditors of the Mill challenged the constitutional validity of Article
368 (4) and (5) along with Section 55 of the 42 nd Amendment as it was against the spirit of
Article 14, 19(1)(g) and 31(C) of the Constitution of India. The Central Government
contended that they were authorised to pass an Act by the 42nd Amendment Act, 1976. The
Supreme Court unanimously held that the power of judicial review was one of the features
of the basic structure, which cannot be destroyed and struck down the changes
incorporated by the amendment, and restored Article 31C of the Constitution.
*****
CASE LAWS
1. IMPOSITION OF EMERGENCY, ARTICLES 358, 353.

A. Articles 14, 19, 20, 21 and 22 guaranteed by the Fundamental Rights of Indian Constitution
to the citizens of India are suspended by the President of India during the National
Emergency. A person wants to challenge in the Supreme Court, advise (Aug 2018).
B. During the period of national emergency all the fundamental rights and their operation
was suspended by the President. Is such action valid? Decide (Aug 2014), (Sep 2012).
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C. National Emergency was imposed and all the fundamental rights were suspended by
Presidential Declaration. A civil liberties activist approached the High Court for violation
of his right to life and personal liberty. Decide. (Aug 2013).
D. National Emergency was imposed in India and operation of all the fundamental rights was
suspended by Presidential order. Is such order valid? Explain with reasons. (Jul 2012).
Issue
Can the fundamental rights be suspended during Emergency? Yes
Can the right to life and personal liberty be suspended? No
Whether the petition filed by the activist is maintainable? Yes
Rule
Article 359(1) of the Constitution of India: Where a Proclamation of Emergency is in
operation, the President may by order declare that the right to move any Court for the
enforcement of such of rights conferred by Part III, except Articles 20 and 21 as may be
mentioned in the order and all proceedings pending in any Court for the enforcement of the
rights so mentioned shall remain suspended for the period during which the Proclamation is
in force or for such shorter period as may be specified in the order.
Application
The instant problem is related to 'the suspension of fundamental rights during national
emergency'. During the period of emergency, the State is empowered to suspend the
fundamental rights guaranteed under Article 19 of the Constitution. It means that the power
to suspend the operation of these fundamental rights is vested not only in the Parliament
but also in the Union Executive and even in subordinate authority. It means that virtually
the whole Chapter on fundamental rights can be suspended during the operation of the
emergency. Articles 20 and 21 cannot be suspended in any case.
A.D.M Jabalpur v. Shukla, AIR 1976 SC 1207, this is popularly known as Habeas Corpus Case.
The respondents challenged the validity of the proclamation of emergency trade under
Article 352 on 25th June 1975 and the Order of detention. They were detained under
Section 3 of Maintenance of Internal Security Act, 1971 (MISA). They filed a writ of Habeas
Corpus. The Supreme Court held that the fundamental right to life under Article 21 couldn't
be suspended during the proclamation of emergency.
Conclusion
In the instant problem, the fundamental rights are suspended during an emergency, but the
right to life and personal liberty cannot be suspended. Hence, the petition filed by the
activist is maintainable.
2. ARTICLE 164(4), APPOINTMENT OF A NON-LEGISLATOR AS A MINISTER.

ARTICLE 75(5), APPOINTMENT OF A MINISTER WHO IS NOT A MEMBER OF
PARLIAMENT.
A non-legislator was appointed as a minister in the state cabinet. He could continue as
such only for six months, as he could not get elected either as MLA or MLC during such
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time. After a week, he was again appointed as a minister in the same cabinet even though
he was still a non-legislator. The second appointment was challenged as unconstitutional.
Decide (Sep 2016), (May 2016), (Aug 2015).
Issue:
Can the Chief Minister appoint a non-legislator as a Minister? Yes.
Whether such appointment is permissible? Yes.
Whether such Minister continues beyond 6 months? No.
Whether such a Minister can be reappointed after the 6 months term? No.
Rule:
Article 164(4) of the Constitution of India.
A person not being a member of either of the house can be appointed as a minister for six
months.
Application:
The instant problem is related to ‘appointment of a minister who is not a member of either
of the house’. Generally, the ministers are appointed from the legislature. However, Article
164(4) of the Constitution of India provides that a person not being a member of either of
the houses can be appointed a minister up to a period of six months.
If the minister is not elected as a member of either of the house, within the six months,
he would cease to be a minister.
Supreme Court judgment in S.R. Chaudhuri v State of Punjab & Others, delivered on
August 17, as a warning to Tamil Nadu Chief Minister Jayalalithaa against seeking to invoke
Article 164(4) of the Constitution to secure another term of six months if and when her
current grace period expires in November, without getting elected to the Assembly.
Conclusion:
In the given case, the Chief Minister cannot appoint a non-legislator as minister for
another term, and the appointment is unconstitutional.
3. Suspension of Civil Servant (Article 311).

A. A, a Civil Servant (Collector) was suspended without holding any departmental
enquiry. What are the remedies available to the suspended person? Decide (Aug
2018).
B. A, a Civil Servant was forced to retire without holding any enquiry. A wants to
challenge the forceable retirement. Advice ‘A’. (Aug 2014).
C. A Government employee was dismissed by an authority below the rank of
appointing authority discuss the validity of such action. (Aug 2015).
D. X was dismissed from service without holding departmental enquiry by the
authority exercising the disciplinary power under the provisions of the Constitution
of India. Discuss whether the action of the authority can be sustained. Give reason
in the light of provisions of the Constitution and relevant case law. (June 2014).
E. X was a government servant holding a substantive post of a clerk. He was
promoted. Subsequently, he was reverted to his substantive post on the ground of
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unsatisfactory work. X challenged the validity of the order on ground that he was
reduced in rank without giving a reasonable opportunity under the Constitution.
Decide with the help of relevant case law. (Aug 2013).
Issue:
Whether the suspension is valid? NO.
Whether the dismissal by a subordinate authority is valid (case C)? No.
Rule:
Article 311(1): No dismissal or removal by authority subordinate to the appointing
authority, “no person who is a member of a civil service of the Union or an all-India service
or a civil service of a State or holds a civil post under the Union or a State shall be dismissed
or removed by an authority subordinate to that by which he was appointed.
No dismissal, removal or reduction in rank except after inquiry and reasonable
opportunity to defend. Article 311(2) of the Constitution of India gives certain protections:
The protection under Article 311(2) is available only where dismissal, removal or
reduction in rank is proposed to be inflicted by way of punishment and not otherwise.
When a Government servant has been dismissed in contravention of either Article 311(1)
or Article 311(2), or of a mandatory statutory rule, or of the principles of natural justice, he
would be entitled to bring a suit against the Government.
Application:
Article 311(2) lays down that a civil servant cannot be dismissed, or removed or reduced
in rank unless he has been given reasonable opportunity to show cause against the action
proposed to be taken against him.
In Khem Chand v. Union of India, the Supreme Court has held that the reasonable
opportunity should be given.
Conclusion:
A civil servant cannot be removed without conducting an inquiry and giving him a
reasonable opportunity to defend his case.
4. ARTICLE 226 HIGH COURT (AND 32 SUPREME COURT), WRIT OF MANDAMUS.

A. A public servant failed to discharge his duties as imposed under a law. Explain the
appropriate constitutional remedy. (Aug 2018), (Aug 2014).
B. A public servant failed to discharge his duties as imposed under a law. Explain the
appropriate writ remedy and the forum available. (Sep 2012).
Issue:
Whether a public servant is bound by the law to discharge his duties? Yes.
Whether constitutional remedy available for such failure to discharge his duties? Yes.
Rule:
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Article 226: The writ of Mandamus is an order by a superior court commanding a person or
a public authority (including the Government and public corporation) to do or forbear to do
something in the nature of public duty or in certain cases of statutory duty. For instance, a
licensing officer is under a duty to issue a licence to an applicant who fulfils all the
conditions laid down for the issue of such a licence. But despite the fulfilment of such
conditions if the officer or the authority concerned refuses or fails to issue the licence the
aggrieved person has a right to seek the remedy through a writ of Mandamus.
Application:
In the case of Saraswati Industrial Syndicate Ltd. V. Union of India, the Supreme Court
said that the writ or order in the nature of Mandamus would be issued when there is a
failure to perform a mandatory duty. But even in cases of alleged breaches of mandatory
duty, the party must show that he has made a distinct demand to enforce that duty and the
demand was met with refusal.
Essentials of Writ of Mandamus:
1. Failure to perform a mandatory duty,
2. The victim demanded to enforce that duty and the demand was met with refusal.
3. The duty sought to be enforced must be a public duty, that is, duty cast by law.
4. A private right cannot be enforced by the writ of Mandamus.
Conclusion:
The writ of Mandamus can be granted only in cases where there is a statutory duty
imposed upon the officer concerned, and there is a failure on the part of that officer to
discharge the statutory obligation. In the given case the public servant has failed to
discharge his duties imposed by law, hence a writ of Mandamus can be initiated in the High
Court.
5. Basic Structure Amendment (Article 368).

A. A constitutional amendment was made to make India ‘non-socialist republic’.
Does such amendment violate the basic structure of the constitution? Decide with
reasons (Sep 2017).
B. The Parliament proposes to remove the word socialist from the preamble to the
Constitution. It is challenged as violative of the basic structure of the Constitution.
Decide. (Aug 2016).
Issue:
 Whether Article 368 gives the Parliament absolute powers to amend? No.
 Whether the Basic Structure of the Parliament can be amended? No.
 Keshavanand Bharati Case.
 India Nehru Gandhi v. Raj Narayan.
 Minerva Mills Ltd v Union of India.
Rule:
Basic structure Theory: (Grund Norm theory)
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Article 368 provides the procedure for the amendment of the Constitution of India.
However, the Parliament while exercising its power under Article 368 should not alter the
basic structure. 'Basic Structure' has not been defined in the Constitution, but Courts
declared certain features as a basic structure.
Kesavananda Bharati v. the State of Kerala, AIR 1973 SC 1461, the following features of the
Constitution were held to be basic structure.
1. The supremacy of the Constitution
2. Republican and democratic forms of the Government
3. Secular character of the Constitution
4. Separation of powers between legislature, executive, judiciary
5. Federal character of the Constitution
6. Sovereignty of India
7. Unity of the country
8. The dignity of the individual
9. Fundamental rights and freedoms
10. Welfare State, etc.
Application:
Article 368 gives limited power to the Parliament to amend the Constitution. The
Parliament cannot amend or change the basic structure of the Constitution.
Conclusion:
Hence the Parliament cannot amend the preamble to remove the word “socialist”.
 Indira Nehru Gandhi v. Raj Narayan.
 Minerva Mills Ltd. V. Union of India.
6. The ordinance making power and limitations, Articles 213 and 123.
A State Governor issued successive ordinance on the same subject, on the advice of the
Cabinet and the lapse of each ordinance. The State Government did not introduce any bill
to replace such ordinance. Decide its validity. (Sep 2017).
Issue:
Whether the Governor’s power to re-promulgate ordinance is valid? No.
Rule:
The Ordinance-making power of the Governor under Article 213 is similar to that of the
President under Article 123. The Governor can issue Ordinance only when two conditions
are fulfilled:
1. The Governor can only issue Ordinances when the Legislative Assembly of a State is
not in session or where there are two Houses in a State both Houses are not in
session.
2. The Governor must be satisfied that circumstances exist which render it necessary
for him to take immediate action. The Court cannot question the validity of the
ordinance on the ground that there was no necessity or sufficient ground for issuing
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the Ordinance by the Governor. The existence of such necessity is not a justiciable
issue. The exercise of Ordinance-making power is not discretionary. The Governor
exercises the power on the advice of the Cabinet.
Application:
The Ordinance-making power vested in the executive is meant to be exercised in
exceptional circumstances, i.e., where immediate action is necessary.
The case of D.C.Wadhava v State of Bihar furnishes a glaring example of the abuse of the
Ordinance making power by the Executive. The petitioner a professor who carried a
detailed research in the matter challenged the practice of the State of Bihar in promulgating
and re-promulgating ordinances on a large scale without enacting them into Acts of the
legislature and keeping them alive for an indefinite period of time. The five-judge bench of
the Court held that such a practice was a “subversion of the democratic process” and
colourable exercise of power and amounted to fraud upon the Constitution and, therefore,
unconstitutional”. The power to promulgate an ordinance is essentially a power to be used
to meet an extraordinary situation and it cannot be allowed to be “perverted to serve
political ends”.
Conclusion:
In the given case the Governor’s power to re-promulgate the ordinance is
unconstitutional and against the spirit of democracy.
7. Article 299 and 300, State Liability.

The police fired on a violent mob which tried to attack a police station where an accused
was kept. The diffuse the situation, lathi charge was also made. In the process, 10
persons got injured seriously. A NGO filed a PIL in the High Court seeking damages from
the police for the injured. Is such PIL maintainable and the damages payable? Decide.
(Sep 2016).
Issue:
 Whether the police can use force to protect the police station? Yes.
 Whether the injured persons are eligible for damages? No.
 Whether the PIL is maintainable? No.
Rule: Liability in Tort.

Article 300: Suits and proceedings – (1) The Government of India may sue or be sued by the
name of the Union of India and the Government of a State may sue or be sued by the name
of the State and may, subject to any provisions which may be made by Act of Parliament or
of the Legislature of such State enacted by virtue of powers conferred by this Constitution,
sue or be sued in relating to their respective affairs in the like cases as the Dominion of India
and the corresponding Provinces or the corresponding India States might have sued or been
sued if this Constitution had not been enacted.
Application:
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In the State of Orissa v. Padmalochan, the plaintiff filed a suit for damages against the
State of Orissa for injuries caused to him by the Military Police. The fact was that in the
apprehension of danger of attack on the office of the S.D.O. and its properties by an
unlawful mob which resorted to violence, the police personnel with a view to dispersing the
unlawful crowd were in the exercise of the sovereign function of the State. As the posting
of Police for the protection of its officers and properties was in the exercise of the delegated
sovereign function, the fact that the police committed excess in the discharge of their
function without authority could not take away the illegal activity from the purview of
delegated sovereign function. The State was held to be not liable for the police.
Conclusion:
The given case is similar to the case of Orissa v. Padmalochan, and the state is not liable
for the damages and the PIL is not maintainable.
8. Territorial Nexus (Article 245).

‘X’ a company which was registered in England was a partner in a firm in India. The
Indian Income Tax authorities sought to tax the entire income made by the company.
Whether the levy of tax is valid? Decide with the help of relevant case. (Aug 2013).
Issue:
Whether the Income Tax authorities can tax the entire income? Yes.
Rule:
According to Article 245 of the Constitution:
(1). Subject to the provisions of this constitution, Parliament may make laws for the whole
or any part of the territory of India, and Legislature of a State may make laws for the whole
or any part of the State.
Application:
A.H.Wadia v. Income Tax Commissioner, Bombay, the Supreme Court has held that “In
the case of a sovereign legislature question of extra-territoriality of any enactment can
never be raised in the municipal court as a ground for challenging its validity.
No extra-territorial power to affect persons or property outside the borders of its own
State can be claimed by a State Legislature in India. But there is an exception to this general
rule. State law of extra-territorial operation will be valid if there is sufficient nexus between
the object and the State (State of Bombay v. RMDC, SC).
Conclusion:
In the given case the Income Tax authorities can tax entire income.
9. Contempt of Court, Articles 129 and 215.

A person, unhappy with the judgment in an appeal decided by a High Court, made
personal allegations against the judges of the Bench. Decide whether such action invites
contempt of court, with reasons. (Sep 2017).
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Issue:
Whether the allegations by a person amount to contempt of Court? No.
Whether fair criticism is allowed? Yes.
Rule:
Every High Court is having the jurisdiction of Court of Record, Article 215 declares that
every High Court shall be a Court of record and shall have all powers of such a court
including the power to punish for its contempt. The scope and nature of the power of the
High Court under this Article is similar to the powers of the Supreme Court under Article
129.
Section 5 of the Contempt of Courts Act, 1971. ‘A person shall not be guilty of contempt
of court for publishing any fair comment on the merits of any case which has been heard
and finally decided.
Application:
In Arundhati Roy case, the Court had held that the fair criticism of the conduct of a Judge,
the institution of the judiciary and its functioning may not amount to contempt if it is made
in good faith and in public interest.
Conclusion:
In the present case, he is not liable for contempt of court.
10. Article 253, Legislation for giving effect to international agreements.

A law was made by Parliament on a State subject for giving effect to an international
agreement signed by India. The law was challenged as violative of scheme of Centre-State
relations. Decide with reasons. (Aug 2013) (Jul 2012).
Issue:
Whether the Parliament is having the power to legislate on a state subject? Yes.
Rule:
Parliament’s power to legislate for giving effect to treaties and international agreements.
– Article 253 empowers the Parliament to make any law for the whole or any part of the
territory of India for implementing treaties and international agreements and conventions.
In other words, the normal distribution of powers will not stand in the way of Parliament to
pass a law for giving effect to an international obligation even though such law relates to
any of the subjects in the State List.
Application:
International agreements or treaties are required to be passed in Parliament, Article 253
enables the Parliament to enact a law regarding state subject.
Conclusion:
In the given case, Parliament is having the power to enact and it is not violative of Centre-
State relations, it is strengthening the relations.
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11. Article 228, Transfer of certain cases to the High Court.

A High Court withdrew a criminal case pending before one of the Sessions courts and
sentenced the accused to death. What are the remedies available to the convicted
person? (Aug 2014) (July 2012).
Issue:
Whether the High Court can transfer a case? Yes.
Rule:
Article 228: Transfer of certain cases to the High Court. If the High Court is satisfied that
a case pending in a court subordinate to it involves a substantial question of law as to the
interpretation of this Constitution the determination of which is necessary for the disposal
of the case, it shall withdraw the case and may –
(a) Either dispose of the case itself, or
(b) Determine the said question of law and return the case to the court from which the
case has been so withdrawn together with a copy of its judgment on such question,
and the said court shall on receipt thereof proceed to dispose of the case in
conformity with such judgment.
Application:
Article 228 does not mention ‘tribunals’ and, therefore, the High Court cannot exercise
the power to withdraw certain cases form tribunals. It can withdraw cases from
subordinate courts only.
The High Court is the sole interpreter of the Constitution in a State and to deny to the
subordinate courts a right to interpret the Constitution for the sake of attaining some
degree of uniformity as regards constitutional decisions.
The High Court can exercise the power to withdraw cases from subordinate courts if the
following conditions exist –
1. A case is actually pending in a court subordinate to the High Court.
2. The case involves a substantial question of law as to the interpretation of the
Constitution. The question of law must be as to the interpretation of the
Constitution and it must be substantial. A question of law which has been settled by
the decision of the Supreme Court cannot be called substantial and
3. The High Court is satisfied that the determination of the question is necessary for the
disposal of the case.
Conclusion:
In the given case a High Court withdrew case from one of its subordinate courts and
decided the case, According to Article 228, High Court is having the power to withdraw a
case of its subordinate courts.
12. Repugnance Article 254, inconsistency between Central and State Laws.
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A. The State Legislation had provided seven years of punishment for a certain
offence. The subsequent Central Legislation fixed three years as punishment for
the same offence. There is repugnancy between the State and Central Legislation.
B. A State enacted legislation on Mining Areas Development Fund Act, levying a cess
on all extracted minerals for the better development of mining areas. Later on the
same subject, Parliament enacted Mines and Minerals (Regulation and
Development) Act. Decide the validity of Central legislation with the help of
decided cases.
Issue:
Whether the State can make Legislation over a matter in Central List? No
Whether the State’s Legislation over a matter in Concurrent List prevails over Central
Legislation? No.
Rule:
Article 254(1) of the Constitution provides that if any provision of a law made by the
Legislature of a State is repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then, subject to the provisions of clause
(2), the law made by Parliament, whether passed before or after the law made by the
Legislature such State or, as the case may be, the existing law, shall prevail and the law
made by the Legislature of the State shall, to the extent of the repugnancy, be void.
Application:
Conditions for repugnancy:
1. That there is a clear and direct inconsistency between the Central Act and the State
Act.
2. That such an inconsistency is absolutely irreconcilable.
3. When the two Acts are into direct collision with each other.
In Misralal Jain and Another v. State of Orissa and another, AIR 1962 Ori 24, the main
objection of the impugned Act was to constitute mining areas in various parts of Orissa and
to constitute a fund known as the Mining Areas Development Fund. In 1957 the Parliament
passed another Act known as the Mines and Minerals (Regulation and Development) Act,
1957 by which the provisions of the old Act were practically repealed except in respect of oil
fields.
Conclusion:
In the given case the Central Legislation will prevail over State Legislation.
*****
Harinath Janumpally
28

Constitutional Law-II Notes

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Constitutional Law-II -2nd Semester

CONSTITUTION II IMPORTANT QUESTIONS

LONG ANSWER QUESTIONS

1. POWERS & FUNCTIONS OF THE GOVERNOR

TOPIC SC/UNION HC/STATE

Appointment of non-legislator as Minister 75(5) 164(4)

Anti-defection Law 101, 102 190, 191

Ordinance making Power 123 213

Contempt of Court 129 215

Transfer of Cases 139A 228

Territorial Nexus 245

Legislation for International treaties 253

Doctrine of Repugnancy 254

Public Service Commission 315

Liability of State in Contracts 299

Liability of State in Tort 300

Suspension of Civil Servant 311

Emergency & Fundamental Rights 358

Constitution Amendment 368

1. Anti defection law.

A. If he has voluntarily given up his membership of such political party,

Exceptions: The above disqualification will however not apply:

In any question arises as to whether a member of a House has become subject to

2. Discuss the powers and functions of the President.

Powers of the President:

1. Executive powers (Art 77):

Qualifications: Article 58 lays down the qualifications

1. He must be a citizen of India,

 Need for Judicial Accountability.

4. DOCTRINE OF REPUGNANCY (LEGISLATIVE SUPREMACY OF THE UNION OVER THE

5. DOCTRINE OF COLOURABLE LEGISLATION.

6. DOCTRINE OF PITH AND SUBSTANCE.

8. PUBLIC SERVICE COMMISSION (UPSC).

LONG ANSWER QUESTIONS

1. POWERS & FUNCTIONS OF THE GOVERNOR.

Answer: Articles 153 – 167 & 213 deals with Governor.

2. POWERS, PRIVILEGES & IMMUNITIES OF LEGISLATIVE DISCUSS WITH DECIDED

Answer: The powers of Legislative:

Privileges & Immunities of Legislative Articles 105 and 194 :

3. Jurisdiction of Supreme Court.

A. Interstate disputes specified in the Proviso to Art. 131:

C. Enlargement of the jurisdiction (Art. 138),

4. INDEPENDENCE OF JUDICIARY. AND HOW IT IS MAINTAINED IN INDIA?

5. LIABILITY OF STATE IN CONTRACTS (Article 299)

 The contractual power of the Government is subject to some special formalities

- Rooplal v Union of India.

6. LIABILITY OF STATE IN TORTS (VICARIOUS LIABILITY) WITH DECIDED CASES.

TORTIOUS LIABILITY OF THE STATE (ARTICLE 300):

Article 300 reads as —

(2) If at the commencement of this Constitution—

In view of tremendous growth in administrative functions, being discharged by the

Position of State/Government Liability after the Constitution of India:

State of Rajasthan v. Vidyavathi (AIR 1962 SC 933),

Kasturilal v. State of Uttar Pradesh (AIR 1965 SC 1039)-

The above rule was followed by the Supreme Court in:

In Satyawati Devi v. Union of India (AIR 1967 Delhi 98)-

Rudul Shah V. State of Bihar (AIR 1983 SC 1086)

Bhim Singh v. State Jammu & Kashmir (AIR 1986 SC 494)

Kalawati v. State of Himachal Pradesh (AIR 1989 HP 5)

7. BASIC STRUCTURE THEORY. PARLIAMENT’S POWER TO AMEND.

Golak Nath v. State of Punjab, AIR 1967 SC 1643,

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299,

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789,