CONSTITUTIONAL LAW-2 (QUESTION BANK ANSWERS) (UNIT1-4)

UNIT-1:

LONG ANSWERS:

1. The office of the Comptroller and Auditor General of India is the pivotal office in the
Government of India which controls the entire financial system of the country at the
Union as well as State levels. What is the official mandate of CAG’s office?
[Short notes 1+2]

SHORT NOTES:

1. What is the official mandate of CAG’s office?

OFFICIAL MANDATE OF CAG’s OFFICE:
 The comptroller and Auditor-General shall be such as may be determined by
Parliament by law and, until they are so determined, shall be as specified in the
Second Schedule:
 Provided that neither the salary of a Comptroller and Auditor-General nor his
rights in respect of leave of absence, pension or age of retirement shall be The
Comptroller and Auditor General of India (CAG) is a Constitutional Authority.
The CAG is the sole authority prescribed in the Constitution entrusted with the
responsibility of audit of accounts of the Union and the States. The duties of the
CAG also extend to the audit of Government companies and corporations and
bodies and authorities in accordance with the laws made by the legislature and
rules made thereunder. Parliament has enacted the Comptroller and Auditor
General’s (Duties, Powers and Conditions of Service) Act, 1971 which
determines the condition of the service of the CAG and prescribes his duties and
powers and other matters connected with or incidental to the Act.
ART 148 – Comptroller and auditor general of India
1. There shall be a Comptroller and Auditor-General of India who shall be appointed by
the President by warrant under his hand and seal and shall only be removed from office
in like manner and on the like grounds as a Judge of the Supreme Court.
 2. Every person appointed to be the Comptroller and Auditor-General of India shall,
before he enters upon his office, make and subscribe before the President, or some
person appointed in that behalf by him, an oath or affirmation according to the form set
out for the purpose in the Third Schedule.
3. The salary and other conditions of service of the Comptroller varied to his
disadvantage after his appointment.
4. The Comptroller and Auditor-General shall not be eligible for further office either
under the Government of India or under the Government of any State after he has
ceased to hold his office.
5. Subject to the provisions of this Constitution and of any law made by Parliament, the
conditions of service of persons serving in the Indian Audit and Accounts Department
and the administrative powers of the Comptroller and Auditor-General shall be such as
may be prescribed by rules made by the President after consultation with the
Comptroller and Auditor-General.
6. The administrative expenses of the office of the Comptroller and Auditor-General,
including all salaries, allowances and pensions payable to or in respect of persons
serving in that office, shall be charged upon the Consolidated Fund of India.

2. What are the duties and powers of Comptroller and Auditor General of India?
[Pg 551 full side]

UNIT-2

LONG ANSWERS:

1. Independence of Judiciary is an essential attribute of rule of law. Judicial Review is one

of the most potent weapon in the armory of law. Explain with the help of decided case
laws how the independence of judiciary has been ensured and secured through the
elaborate provisions in the Constitution. (Article 124(4) and (5); Article 217 and Article
222)

INDEPENDENCE OF JUDICIARY:

 Independence of Judiciary is indispensable in democratic system of governance.

The constitutional makers were keen to ensure that the judiciary was independent
 from the executive. An independent, impartial and fearless judiciary was our
constitutional creed.
 In C. Ravi Chandran Iyer v justice A.M Bhattacharjee, the SC held that only the
CJI is considered to be the first among Judges and can take action against an
erring HC judge or CJ whose bad conduct falls short of impeachment.
The constitution has already put nail squarely on the projections, prosecution or
attempt by any forum or association or otherwise, to instigate or inquire the
conduct of judges or the performance of his duties and on-off court behavior.
Thereby no other authority can inquire or instigate into the conduct or acts of the
judge.
 Appointment of judges:
Independence of judiciary starts from appointment of judges. Article 217, clause
(1) vests the powers of appointment of Judges of High Courts in the Central
Government, but such power is exercisable only after consultation with the Chief
Justice of India, the Governor of the State and the Chief Justice of the High Court.
i. S.P Gupta & others v UOI – judge’s transfer case: The Supreme Court
held that consultation is a mere suggestion not concurrence and is not
binding on the President. It held that the constitutional functionaries had
merely a consultative role and that the power to appoint the judges is
solely vested in the central gov.
ii. SC Advocates-on-record v Union of India - The judgment in S.P. Gupta's
Case is now reversed that the court has held that the opinion of the Chief
Justice shall be binding on the President as he is more competent than
other constitutional machineries to accrue the merit of a candidate.
 Removal of judges: Article 124 (4)(5)
A judge may be removed from his office by the order of the president only on the
grounds of proven misbehavior or incapacity after an impeachment motion passed
by each house supported by a stipulated majority. Their tenure and different
process of removal is also in tune with their independent function.
The order of the president can be passed only when it has been addressed to both
Houses of Parliament in the same session. The address must be supported by a
majority of the total membership of that House and also by a majority of not less
than two third of the members of that house present and voting.
 In the case K. Veeraswami v UOI, the SC held that a judge of the SC and HC can be
prosecuted and convicted for criminal proceedings. They can be removed in the grounds
of proven misbehaviour or incapacity.

2. The principle of Cabinet Responsibility in the States differs from that of the Union. In
this regard, explain the relationship between the Governor and the Council of Ministers…
Is it similar to that between the President and Council of Ministers? Discuss with the help
of decided case laws.
1. Yes the relation between the council of ministers and the governor is the same as the
relation between the COM and the president. But the only diff is the governor has the
authority to exercise some functions at his discretion but the president does not have the
right to do so.
2. Art 163 states that there shall be council of ministers with the CM to advice the governor
in exercise of his functions.
3. Art 163(2) the governor need not seek advice where he can exercise his discretion.
4. Usually he only acts only as a constitutional head but in times of crisis the governor can
effectively utilize the provision that the constitution has granted him that is to act upon
his discretion.
5. Cases where the governor can exercise in his discretion:
1. Appointment of CM- under Art 164 the CM is appointed by the governor. In the case
M KARUNANIDHI V UNION OF INDIA the question was raised as to if the CM or
a Minister is a public servant under section 21of IPC and also that this section
mentions the word in pay of the government. The court held that part 1 of the section
signifies only the relation between master and the servant and would not be applied
here. But according to part two states that the relation is of the master and the servant
or even a public servant so CM or any minister for that matter is a public servant. He
can be prosecuted and no prior sanction of the governor is needed.
2. Dismissal of ministry- According to Article 164 the ministers will hold office at the
pleasure of the governor. But he also cannot at the same time dismiss the minister at
his own will. Confidence of the majority is needed for dismissal. Under article 164
(2) the council of ministers is responsible to the leg assembly. As long as the ministry
enjoys confidence it cannot be dismissed by the governor. He may refuse to take the
advice of the ministry that has lost the majority. In the case MAHABIR PRASAD V
PROFULLA CHANDRA it was held that the right to withdraw the pleasure during
which the ministers hold office is absolute and unrestricted and cannot be questioned.
3. Dissolution of leg assembly- under Article 174 the governor summons and dissolves
the leg assembly. Normally it does not get dissolved till the tenure of 5 years but will
get if the ministry has lost majority. He may dissolve the house according to the
advice of the defeated CM or may not dissolve and find a new person to form an
alternate state ministry.
4. Advising the president- as per article 356 the governor has to report to the president
that there is such a situation arisen and the government of the state cannot be carried
out in the manner given in the constitution.He may advise the President to take
appropriate action to restore constitutional machinery.

3. State graphically the relative positions of the two Houses of the Union Parliament and of
a State Legislature: (i) as regards Money Bills, and (ii) as regards Bills other than Money
Bills.
The parliament in matters regarding money bills:
1. According to Article 110(1) a money bill is a bill that contains the abolition, remission,
and alteration of the taxes, regulating the borrowing of money, deals with the
consolidated fund or the payment and withdrawal from such funds.
2. According to Article 110(3) the speaker of the lok sabha decides if the bill is a money bill
or not.
3. According to Article 110(4) the speaker shall endorse a certificate that the bill is a money
bill when it’s being sent to the president for his assent.
4. The money bill can be introduced only in the lok sabha and cannot be introduced in the
Rajya Sabha under Article 109(1).
5. The money bill can be introduced only with the recommendation of the president.
6. But his recommendation is not needed when there is any amendment or abolition of the
tax. As per Art 117 (1) proviso.
7. Once the money bill has been passed in the lok sabha it will be sent to the Rajya sabha
for recommendations but it has to be returned within 14 days from the bill date.
8. The lok sabha may either take or reject the recommendations.
9. If the lok sabha accepts the recommendations then the money bill would deemed to be
passed by both the houses. But if the money bill sent to the rajya sabha and has not been
returned within 14 days then it would deemed to be passed by the lok sabha at the
expiration period of 14 days.
10. The president may give his assent or refuse to give his assent to the money bill.
Regarding other than money bills:
1. An ordinary bill which is neither a money bill nor a financial bill can be introduced in
either house of the parliament.
2. The bill must be passed by both the houses of the parliament in order to get the assent of
the president.
3. The bill becomes a law only when it ahs got the assent of the president.
4. Usually the bill undergoes 3 readings before it becomes a law, the first reading is when
the bill is introduced in the house. The second reading is when the bill is discussed clause
by clause and this is when the amendments can be made. The third and the final reading
is where the bill is discussed in a general and brief way and then finally passed.
5. The bill is passed to the other house where the same procedure is repeated and if there is
any disagreement then the bill cant be passed.
6. This will create a deadlock and to resolve this, the constitution provides for a joint sitting
of the two houses.
State legislature on money bills: (same as parliament)
1. The money bill will originate in the legislative assembly.
2. After it has been passed in the assembly it is transmitted to the leg council for its
recommendations.
 3. The council should return within 14 days.
On bills other than money bills: it is the same as parliament but here there is no joint sitting
of the houses in case of deadlock. The decision of the leg assembly prevails (lower house).
Pg 624 1st para.

4. State the special responsibilities assigned to the Governor under the amended
Constitution.
The Governor can go for his own decision though the Council of Ministers provides him with
advice. These are discretionary powers given to the Governor that are not very explicitly
mentioned.

Article 371 – Maharashtra and Gujarat, 7th Amendment

Governors of the states of Maharashtra and Gujarat are given special responsibilities to set up development
boards in regions such as Vidarbha, Marathwada, Kutchh etc.
Aticle371A – Nagaland, 1962
Article 371A of the Constitution mainly states that no act of Parliament would apply to the state of
Nagaland in matter relating to religious or social practices of Nagas, Naga customary law and
procedure, administration of civil or criminal justice involving decisions according to Naga customary law
and ownership and transfer of land and its resources. The Legislative Assembly of Nagaland must
pass a resolution for an act to be applicable to the state.
The governor is given special responsibilities with respect to law and order in the state as well.
Article 371B – Assam
According to the special provision under Article 371B, the president may provide for the Constitution and
functions of a committee of Legislative Assembly of the state consisting of members elected from the
tribal areas of Assam.
Article 371C – Manipur,1971
The special provision under Article 371C in the case of Manipur is similar to 371B for Assam. Here, too,
the president may provide for the Constitution and functions of a committee of Legislative Assembly
of the state, but consisting of members elected from the hill areas of Manipur. The governor must submit an
 annual report to the president regarding the administration of hill areas as well.
Article 371D & E – Andhra Pradesh

Article 371D, which was added to the Constitution in 1974, provides equitable opportunities and
facilities for the people of the state and safeguards their rights in matters of employment and
education. The state government may organize civil posts or direct recruitment to posts in local
cadre as required.

Article 371E states that the Parliament may by law provide for the establishment of a University
in Andhra Pradesh.

Article 371F – Sikkim, 36th Amendment 1975

Article 371F was incorporated into the Constitution in 1975. It states that the Legislative
Assembly shall consist of not less than 30 members. In order to protect the rights and interests of
the different sections of the population in the state of Sikkim, seats in the assembly are provided
to people of these different sections.

Article 371G – Mizoram

The Legislative Assembly of the state of Mizoram must consist of not less than 40 members. In
addition, following the same provisions as Nagaland, an act of Parliament would not apply to
Mizoram in matters relating to religious or social practices of Mizo, Mizo customary law and
procedure, administration of civil or criminal justice involving decisions according to Mizo
customary law, ownership and transfer of land and its resources.

Article 371H – Arunachal Pradesh

The Legislative Assembly of the state of AP must consist of not less than 30 members. The
governor will have special responsibility with respect to law and order in the state.

Article 371I – Goa

The Legislative Assembly of the state of Goa must consist of not less than 30 members.

Article 371J, Karnataka, 98th Amendment

Article 371J grants special status to six backward districts of Hyderabad-Karnataka region. The special
provision requires that a separate development board be established for these regions (similar to
Maharashtra and Gujarat) and also ensures local reservation in education and government jobs.
5. Discuss with the help of appropriate case laws the constitutional provisions relating to
the transfer of judge from one High Court to another High Court.
Position prior to 99th amendment of the constitution:
Article 217:

 Every judge of the HC will be appointed by the President.

 After consulting the CJI and the Governor of the respective states the CJ of that particular
HC will be appointed.
 In case of appointment of a Judge other than the CJ, then the CJ of that particular court
will be consulted by the President.
Article 222(1):
This states that after consultation from the CJI, the President can transfer a Judge from one HC to
another.
This can be better understood with the help of the following case laws:
I. UOI Vs. Shankalchand:
Justice Shankalchand was transferred from Gujarat HC to AP HC. It was challenged that
the transfer was done without the consent of the Judge, against public interest and
without consultation from the CJI. The SC by a majority of 3:2, held that a Judge can be
transferred without his consent as per Art.222(1). If consent has to be asked and the
Judge withholds it, the whole power contained in Art.222 will be rendered ineffective.
However, this clause casts an absolute obligation on the President to consult the CJI
before transferring a Judge from one HC to another. That is a condition precedent to an
actual transfer of the Judge. If the facts necessary to arrive at a proper conclusion is not
provided by the President, then the CJI is obliged to ask for the necessary details to come
to a solid decision as the duty is imposed on him too. Thus, Art.222(1) means full and
effective, not formal and unproductive.

II. S.P.Gupta Vs. UOI:

Under the Art.217, the President is obliged to get consultation from three functionaries,
the CJI, the CJ of the HC and the Governor of the State. In this case, the President took
the consultation of the CJ of the HC to disapprove the extension of a Justice at HC due to
a complaint against him. However, the CJI recommended the extension valid as there was
no evidence to support the charge. But, the President however relied on the
recommendation made by the CJ of the HC. In this context the majority held that, the
recommendation of the CJI has no supremacy of that of the other two and all three
functionaries are treated as equals.

III. Supreme Court Advocates on record Vs. UOI:

 A nine judge bench of the SC with the majority of 7:2, overruled the Judge’s Transfer
Case and held that the recommendation of the CJI formed with the consultation f the two
senior most Judges of the SC, has to be given primacy over the other two functionaries.
The process of appointment must be initiated by the CJ of the HC. When conflict arises,
the view of the judiciary symbolized by the opinion of the CJI after proper consultation
from his colleagues is given primacy. No appointment of a HC judge can be made
without the approval of the CJI. Only during exceptional circumstances where strong
reasons are disclosed as to why one shouldn’t be made the CJ of the HC, the decision of
the CJI is not taken.

IV. re Presidential Reference:

This case is also popularly known as the Appointment and Transfer of Judges Case. In
this case a nine judge bench held that the appointment of the CJ of the HC without due
consultation process and compliance of the guidelines mentioned by the CJ, will not be
binding on the Government. Under Art.217(1) and 222(1),the consultation requires
plurality of judges, i.e., “a collegium of the two senior most judges of the SC”.
After the 99th Amendment in 2014, the Judge of HC was appointed by the President with
a warrant and on recommendation by the NJAC under Article 124A. But later after the
SC Advocates on record Vs. UOI in 2015, the 99 th amendment was declared
unconstitutional and the position before that stood revived. This implies that the CJI will
again be held responsible for the appointment of the CJ of the HC.

V. M.Manohar Reddy Vs. UOI:

In this case two pills was filed under Article 32, one in the nature of quo warranto for
cancelling the appointment of R-3 as the Judge of Andhra HC and the other in the nature
of mandamus for seeking the Bar Council to cancel his certificate as an advocate. This
was because both the HC and SC failed to notice two issues at the time of the
appointment, one being a criminal trial that was pending and him actually being accused
as a proclaimed offender, and the other one of him concealing the criminal proceeding
pending against him.
Later, from the facts on record it was found that both the HC and SC was totally unaware
of this fact, and surprisingly R-3 himself was unaware of a criminal proceeding against
him. The SC dismissed the writ petitions. To fault the consultative process for not taking
into account a fact that was not known at the time would put an impossible burden on the
constitutional authorities.

6. Examine the position and powers of the Governor of the State, as a representative of the
President under the Indian Constitution.
POSITION AND POWERS OF GOVERNOR:

 The pattern of the Government in the state level is the same as for the union, that is, a
parliamentary system.
 Appointment of a Governor has been specified in article 153 of the Indian Constitution.
Therefore, the governor has been made just a nominal official; the real official comprises the
committee of ministers headed by the chief minister.
 The governor needs to exercise his powers and functions with the help and advice of Council of
ministers headed by the chief minister, aside from in issues in which he is required to act in his
watchfulness (i.e., without the exhortation of ministers).
 The official intensity of the state will be vested in the governor and will be practiced by him
either legitimately or through officers’ sub-ordinate to him as per this Constitution (Article 154).
 The article deals with the Powers and the Position of the Governor as per the constitutional
provisions.

APPOINTMENT AND QUALIFICATION OF GOVERNOR:

 The Governor is generally appointed by the President of the Nation under Article 155 of
Indian Constitution. The governor shall be appointed by the President under his seal and
warrant. IN Hargovind v Raghukul, it has been held that the office of the governor is an
independent one and is not under the control or subordinate to the govt of India.
 According to Art. 157, a person is eligible to be appointed as Governor must be
A. citizen of India
B. Must have completed 35 years of age.
 The candidate shall fulfill the listed criteria given below to be appointed as Governor of the
state enshrined in Article 158 of Indian Constitution which is as follows:

A. He ought not to be the individual from either house of parliament or a place of the state
governing body.
B. He ought not to hold any office of profit.
C. He can utilize his official home for other purposes, however, ought not to charge rent for
that.
D. If an individual is named as the overseer Governor of other states, he is qualified to get the
compensation of both state’s Governor (chosen by the President of India).
E. His payments and remittances can’t be diminished amid his term.

OATH AND RESIGNATION:

 The Governor takes his oath from the Chief Justice of the respective state (Art. 159), and
he/she addresses his resignation to President of India.
 The governor shall hold the office during the pleasure of the president. The tenure of the
office is fixed for 5 years from the date on which he enters upon the office.
 He may be removed from his office anytime by the president. (Art. 159)

POWERS OF THE GOVERNOR:

 Executive power:
1. The executive power of the state is vested in the gov and is to be exercised by him directly or
through officers subordinate to him. (Art. 154)
2. All executive actions of the govt of the state shall be expressed to be taken in the name of the
gov.
3. The orders and instruments executed in the name of the gov, shall be authenticated in the
manner specified in the rules made by the gov and its validity shall not be called in question.
4. Authentication only signifies that the order is made by the gov but if in making the order the gov
has not acted according to the law the order can be challenged.
5. The SC in the case Ram JawayaKapur v State of Punjab, held that our constitution has adopted
British system of parliamentary form of government and the basic principle of this type of
government is that the president and gov are only constitutional heads and the real executive
power is vested in the council of ministers.
6. The gov as the state head has to exercise his formal constitutional powers only upon the aid and
advice of the council of ministers State of Gujarat v Mr. Justice R.A Mehta. But Art 163 (2)
permits the gov to act on his own w.o ministerial advice in certain situations depending on the
circumstances even though they may not be specially mentioned in the consti as discretionary
functions.

 Financial power:
1. A money bill cannot be introduced in the legislative assembly w.o the recommendation of the
gov (Art. 207 (1)).
2. No grants can be made except on the recommendation of the gov (203 (3)).
3. The gov is required to cause to be laid before the house or houses of legislature ‘Annual financial
statements’ called as Budget (Art. 202).

 Legislative power:
1. He is to bring the House or each House of the State Legislature, if it is a bicameral governing
body, to meet at such time and spot as he deems fit. There must not be a difference of more than
6 months between the first and the last session of the house. He ensures that the balance is
maintained.
2. The Bills passed by the State council require his consent. He can retain his consent and return the
Bill (other than a Money Bill) to the State governing body for re-examination. In any case, if the
House ends, with or without alteration, he should accord his consent to it.
3. He is engaged in saving specific Bills for the consent of the President. For example, the Bills
accommodating obligatory procurement of the property or diminishing the forces of the High
Court must be so saved for President’s assent.
4. The most important legislative power of the gov is the ordinance making power. Under Art 213,
whenever the legislature is not in session and the gov is satisfied that the circumstances exist
which require him to take immediate action he may legislate by ordinance.
5. However, he cannot issue an ordinance without the previous instruction from prez in certain
cases.
6. In the case D.C Wadhva v state of Bihar, a professor was undertaking research on the ordinances
issued by the gov. From the research he found that the gov of Bihar has promulgated 256
ordinances and all these were kept alive for between 1 to 14 years for re-promulgation. The court
 held that such practice amounted to fraud upon the Indian Constitution and therefore
unconstitutional.

 Pardoning power:
1. Art 161 says that the governor shall have the powers to pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentences of any person
convicted of any offence against any law relating to matters to which executive powers of the
state extends.
2. He cannot grant pardon in death sentences and cannot pardon punishment of sentences
inflicted by court martial.
3. This power is subject to judicial review. Epuru Sudhakar v State of A.P

7. Explain in detail the writ jurisdiction of High Court.

A Writ is an order by a court, directing lower courts to either do something or not do something.
India has empowered Supreme and High Courts to issue such writs.
Writs under Indian law are prerogative writs, a subset of writs, which are issued as an
extraordinary remedy for distressed persons. The power to issue prerogative writs has been
granted by the Constitution under Article 266 to the High Courts and to the Supreme Court under
Article 32. Prior to the coining of the constitution, only three presidency High courts of,
Bombay, Madras and Kolkata had the power to issue writs. Their writs jurisdiction was also
limited to these towns. But, article 226 now invests all the High courts in India with the power to
issue prerogative writs.
Moreover, the words “for any other purpose” stands to extend the jurisdiction of High courts to
all legal rights and duties. L Chandra Kumar verses UOI, held that a person cannot go directly to
the Supreme Court from a decision of a tribunal, without first going to the high courts.
It is a discretionary power which means that the High Court may or may not issue a writ.
A prerogative writ is also known as an extraordinary writ because it is only issued when
alternative remedies have been exhausted.
Following are certain grounds on which the court may issue writs even if there are other
remedies available;

1. When the alternative remedy is inadequate to meet the needs of the case.
2. When the remedies provided are not well suited to the situation at hand.
3. When there is complete lack of jurisdiction to try the case.
4. When there is an unreasonable amount of delay.

INTERIM RELIF
RELIF CANNOT BE BARRED BY ANY STATUTE

Earlier it was believed that Power conferred under Article 226 can’t be taken away from the
High Court by any way other than amendment of the constitution. But the power of judicial
review can’t be taken away even by amendment because judicial review is the basic feature of
our constitution and basic feature of the constitution not subject to any amendments.

In the case, Chandra Kumar v Union of India exclusion of High Court jurisdiction in cases
of Article 323-A and Article 323-B was invalidated by the Supreme Court, and in Surya Dev
Rai v Ram Chander Rai case it was held that section 115 of civil procedure code cannot
impose any limitation on the powers of High Court conferred under Article 226 and 227.

1. Habeas Corpus

Writ of habeas corpus, is a Latin phrase, which can be literally translated as "We command that
you have the body". It means, you can have the body and produce it before the Court. The aim of
this writ is to release a person who might be illegally detained. It secures the release of a person
from illegal detention either in prison or in private custody. According to law, no person shall be
detained unlawfully.

The Court can direct to have the body of the person detained, to be brought before it, in order to
determine whether the detention is legal or illegal. If a person who is arrested is not produced
before the Magistrate within 24 hours from the time of arrest, he will be entitled to be released
on the writ of Habeas Corpus. It can be issued against any private person or executive authority.
The disobedience of this writ amounts to contempt of Court, and is punishable.

Only if there’s detention of a person and the detention happens be illegal at the time of filing the
petition and if such a detention is unwarranted by law can this writ be filed.

Following persons can apply for writ of Habeas Corpus:

 A person who has been detained illegally,

 A prisoner himself whose detention is illegal, or

 Any person on behalf of the detainee/prisoner.
Writ of Habeas Corpus is not issued in following cases:
 If the detention has been made in accordance with law and procedure.

 Where the person against whom the writ is issued or the person who is detained is
not within the jurisdiction of the Court.
  If a person who has been imprisoned by a Court of law on a criminal charge.
 If the proceedings interfere with a proceeding for contempt by a Court of record
or by Parliament.

In Sunil Batra v Delhi Administration, the solitary confinement imposed on Sunil Batra and
Charles Sobhraj, who were under sentence of death was challenged as violation of Article
14,19,20and 21 of the Constitution. The Court treated their letter as writ petition. The Court held
that writ of Habeas Corpus can not only be granted for releasing a person illegally detained but
also it will be used for protecting him from ill- treatment inside jails.

In Bhim Singh v State of J & K,Bhim Singh, an MLA of State of J & K was wrongfully
arrested and detained in the police station and was prevented from attending the State Legislative
Assembly. The Court awarded a sum of Rs.50,000 to the petitioner as compensation for the
violation of his Constitutional right of personal liberty under Art. 21.

2. Mandamus
Mandamus in Latin means "we command, or sometimes "we mandate. It is issued by a superior
court to compel a lower court or a government officer to perform mandatory or purely ministerial
duties correctly.

Mandamus means 'the order'. Mandamus is an order by Supreme Court or High Courts to any
public authority to do or not to do something in the nature of public duty. It is issued against the
persons or authorities who fail to perform their mandatory duties. For the purpose of issuing writ
of mandamus, the officer must have a pubic duty and must fail to perform such duty. The
applicant of this writ must also have right to compel the performance of some duty cast upon the
authority.

Conditions:
 There must be public duty upon the respondent.
 The petitioner must have legal right to compel the performance of public duty
 Such duty must be mandatory duty cast by law.
 The petitioner must have demanded for the performance of such duty.
 The public authority must have failed to perform or refuse to perform the pubic
duty

Mandamus is issued
 Against public authorities and institutions.
  Against officers exercising public functions.
 Against Government and public corporations

Writ of Mandamus is not issued in following cases:

 When the duty is merely discretionary in nature

 Writ of Mandamus cannot be issued against private individuals or private

organisations because they don't have public duty
 Writ of Mandamus cannot be granted to enforce a duty arising out of contract.
In Manjula v Direct Public Instructions, the petitioner published a book namely 'Ama
IthihasaGapa' and filed a writ of Mandamus to compel the director, Public Instructions to include
her book in the list of books approved for the schools. The writ was not granted on the ground
that the choice of the textbooks was a matter entirely left to the discretion of the DPI and DPI
was not under duty to include the petitioner's book in the approved list.

3. Certiorari
It is an Order by the Supreme Court or the High Courts to an inferior Court to remove a suit from
an inferior Court and adjudicate upon the validity of the proceedings or to quash the Orders of
the inferior Court. Writ of Certiorari can be issued not only against any inferior Courts but also
against a body exercising judicial or quasi-judicial functions. This writ is issued under the
supervisory or original jurisdiction and not under the appellate jurisdiction.

Writ of certiorari can be issued in the following cases:

 There must be want or excess of jurisdiction.

 Principles of natural Justice must be violated

 There must be an error or law on the face of judicial record

Writ of Certiorari can be invoked or granted:

 Before the trial to prevent an abuse of jurisdiction and remove the case for trial to
higher Court.
 After trial to quash an order which has been made without jurisdiction or in
violation of the principles of natural justice.

In other words, whenever anybody has a legal authority to determine questions affecting the
rights of subject and having the duty to act judicially, acts in excess of their legal authority, writ
of certiorari can be granted.
Any person whose fundamental right is violated can apply for writ of Certiorari.
Writ of Certiorari can’t be issued against a private individual or body of private persons.
This writ will not be granted to remove ministerial acts, to remove or cancel executive acts and
to declare an Act as unconstitutional or void.
In the case of Rafiq Khan v State of UP, the Magistrate maintained the conviction of the
accused as passed by a Panchayat Adalat which is no1 authorised under Section 85 of the U. P.
Panchayat Raj Act, 1947. Hence, the High Court quashed the conviction by a writ of certiorari.

4. Prohibition
Prohibition means 'to prevent'. Each Court is expected to act within the limits of their
jurisdiction. A writ of prohibition is issued to prevent an inferior Court or Tribunal from
exceeding its jurisdiction, which is not legally vested, or acting without jurisdiction or acting
against the principles of natural justice.

The writ of Prohibition can be issued not only against the Courts but also against the authorities
exercising judicial or quasi-judicial functions.

In East India Commercial Co. v Collector of Customs, the Court compelled the inferior court
to keep itself within the limits of jurisdiction.
The person whose right is violated can apply for the writ of prohibition.
Writ of Prohibition can be granted in the following cases:
 When the inferior Court or quasi-judicial authority exceeds its jurisdiction.

 When the inferior Court acts without lawful jurisdiction.

 When the inferior Court or quasi-judicial authority acts against the rule of natural
justice.
 When there is an apparent error on the face of the judicial record.
Writ of Prohibition cannot be issued when the Court acts within its lawful jurisdiction and when
the Court observes principles of natural justice.

5. Quo Warranto
Quo warranto means 'what is your authority?' It is an Order questioning the authority of a person
holding a public office. It is issued against the holder of a public office, calling upon him to show
with what authority he holds such office. The object of this writ is to control the executive action
in making appointments to the public offices and also to protect the public from usurpers of
public offices.

Writ of Quo warranto can be granted in the following cases:

  The office must be a public office.
 The office must be substantive in character with independent title.
 The respondent must have held the office against the law.
 The respondent must not be legally qualified to hold the public office.

Any member of the public can file writ of Quo Warranto, whether any right of such person has
been infringed or not.
Writ of Quo Warranto is not issued in the following cases:
 When the office is a private office.

 When the holder of the office is qualified to hold that office.

 When the holder subsequently gets qualified for the office.
 When issue of writ becomes futile. It means if the writ does not serve any
purpose.

In K.Bhima Raju v State of Andhra Pradesh, the Government pleader was appointed against
the rules. The petitioner filed a writ of Quo Warranto. The High Court quashed the appointment
of Government Pleader on the ground that the appointment was not made in accordance with
rules.

Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable,
unfair and against the public interest.

8. Explain in detail the supervisory jurisdiction of the High Court.

[ Same answer as Short notes 4]
+ this two points
1. “Arbitrator" tribunal under section 10A of industrial disputes act 1947 hence High court
has jurisdiction under article 226 ( Gujarat Steel tubes limited case)
2. Special courts established under the special courts act, 1992 is not a subordinate court of
HC so, article 226 cannot be invoked. (Dhyan investments and trading co limited vs
CBI).

SHORT ANSWERS:

1. Creation, Abolition and Utility of Second Chamber in States.

ABOLITION, CREATION AND UTILITY OF SECOND CHAMBER IN STATES:

 Parliament allows for the abolition of L.C in states where it already exists and
creation of L.C where it does not exist. (ART 169)
 Such abolition or creation can be done only in the cases where the L.A passes a
resolution by a majority of total members of the assembly and majority of not less
than 2/3rd of members present and voting.
 Such law that is making provision for creation and abolition cannot be deemed to
be an amendment and is passed like an ordinary legislation.
 As per art 168, states can either have one/two houses. Art 169 provides the choice
of having L.C to the states.
 The second chamber of the states can help to check hasty decisions or actions by
the directly elected houses and also enable non-elected persons to contribute to
the legislative process.

2. Composition of Panchayats and Municipalities.

The composition of Panchayats: Pg 684
1. According to Article 243-C the state may by law make provisions for the composition of
the Panchayats.
2. The following persons must be a part of the representation of the Panchayats:
a. The Chairman of the Panchayat at the village, intermediate and in the district
level.
b. The Chairpersons of the panchayats at the intermediate level, in the panchayats at
the district level.
c. The members of the legislative assembly and Lok Sabha of the state representing
the constituencies which comprise wholly or partially the panchayat area.
d. The members of the Rajya Sabha and Legislative Council of the state where they
are registered as electors.
3. The Chairperson of a Panchayat and other members has the right to vote in the panchayat
meetings as per clause 4 of Article 243-C.
4. The Chairpersons of the panchayat at the intermediate level or at the district level will be
elected amongst the existing elected members as per Clause 5 of Article 243-C.
The Composition of Municipalities: pg 693
1. According to Article 243R all the seats in the municipality shall be filled by the persons
chosen by the direct election in the municipal area.
2. Each of the municipal area is being divided into wards.
3. The following must be a part of the municipality representation:
a. Persons who have knowledge about the administrations of the municipalities.
 b. The members of the Lok Sabha and leg assembly of the state representing the
constituencies which comprise wholly or partially the municipal area.
c. The members of the Rajya Sabha and the leg council of the state where they are
registered as electors.
d. The chairperson of the committee under clause 5 of Article 243S.
4. The persons having the knowledge of the administration of the municipal will not be
given the voting rights.
5. Article 243S states the provisions for the constitution and composition of the wards
committee.

3. How the Union Territories are administered under the provisions of the Constitution?
1. Every Union Territory shall be administered by the President through an administrator
appointed by him as per Article 239(1).
2. The governor of a state shall also be appointed by the President for the adjoining UT.
3. As per Article 239(2) the governor so appointed shall exercise his functions
independently of his council of ministers.
4. Explain the superintendence power of the High Court.
Superintendence Power of the High Court:
Article 227: Every HC has this power over all courts and tribunals throughout the territory in
relation to which it exercises its jurisdiction.
For this,

 HC can call returns from them.

 HC can make, and issue general rules.
 HC can prescribe forms for regulating the practice and proceedings etc.

Exception: This power of HC does not extend over any court or tribunal relating to Armed
Forces.
3. This is a wide power and is wider than the powers mentioned in Article 226.
4. Waryam Singh Vs. Amarnath:
This power is not confined only to Administrative Superintendence, but also to Judicial
Superintendence over all subordinate courts within its jurisdiction. This power has to be
exercised most sparingly and only in appropriate cases.
5. Santosh Vs. Mool Singh: (Explanation with Case Law) Grounds on which HC interferes
when,
 Inferior courts act arbitrarily
 Inferior courts act in excess of jurisdiction vested in them
 Inferior courts fail to exercise jurisdiction vested in them
  Inferior courts act in violation of principle of natural justice
 If there is error of law apparent on the face of record.
Eg: Banerji Vs. Mukherji: Employee by Industrial Tribunal was held wrongful.
Here, HC cannot interfere unless there is grave miscarriage of justice.

6. State of Jharkhand Vs. Surendra Kumar:

In this case, the Civil Court refused to grant interim injunction under Rules 1 and 2 of CPC. Here
a writ petition was filed under Art.227 and it challenged the said order and was held
maintainable. The respondents denied amending the case title, and this was not accepted. The SC
instead of setting aside the judgment of the HC proceeded to examine the contentions on the
merits. (optional)
5. ‘Free, fair and impartial election is necessary in any democratic country’. Discuss.

Elections are a central feature of democracy. For elections to express the will of the electorate,
they must be ‘free and fair’.

‘Free’ means that all those entitled to vote have the right to be registered and to vote and must be
free to make their choice. In India every citizen over the age of 18 is entitled to vote (adult
suffrage art 326). An election is considered ‘free’ when you can decide whether or not to vote
and vote freely for the candidate or party of your choice without fear or intimidation. A ‘free’
election is also one where you are confident that who you vote for remains your secret.

‘Fair’ means that all registered political parties have an equal right to contest the elections,
campaign for voter support and hold meetings and rallies. This gives them a fair chance to
convince voters to vote for them. A fair election is also one in which all voters have an equal
opportunity to register, where all votes are counted, and where the announced results reflect the
actual vote totals.

NOTE: THIS IS A GENERAL QUESTION SO, WE CAN ADD ON MORE THIS IS JUST AN
OVERVIEW.

6. Explain the constitutional provisions relating to scheduled areas and tribal areas.

Provisions relating to the administration and control of the Scheduled areas and Scheduled
Tribes in any state, other than Assam, Meghalaya, Mizoram, Tripura are contained in the fifth
schedule to the constitution.
(i) The executive power of the states extends to the scheduled areas.

(ii) The Governor of these states has to submit the report to the President regarding the
administration of such areas on the annual basis or whenever required to do so;

(iii) Tribes Advisory Councils consisting of not more than 20 members, have to be constituted to
advise the government on the matters relating to the welfare and advancement of the Schedules
Tribes-these matters are those which may have been referred to the councils by the Governor.

(iv) The Governor may annul or suspend acts and resolutions of district or regional councils if he
is satisfied that it’s likely to endanger the safety or public order of India.

(v) The Governor is authorized to make regulations to prohibit or restrict transfer of land by or
among the members of Scheduled Tribes, to regulate the allotment of land and the business of
money- lending. All such regulations made by the Governor must have the assent of the
President

(vi) The President may appoint a Commission to report on the administration of the Scheduled
Areas and Scheduled Tribes in the state. As it was obligatory to appoint such Commission at the
end of first ten years of the implementation of the Constitution, the first Commission was
appointed in 1960. The Commission submitted its report in 1961

7. What is the role and functions of Election Commission of India?

Art 324 provides for the appointment of an election commission in India.
Election commission plays a vital role in organizing elections. The gravest challenge before the
Election Commission of India is to implement norms and the Model Code of Conduct to ensure
free and fair elections in the country. It has also been empowered to supervise political parties
and candidates and take appropriate action in case of violations.
Key functions of the Election Commission of India are as under:

 The Election Commission of India is considered the guardian of free and

reasonable elections.
 It regulates political parties and registers them for being eligible to contest
elections.
 It issues the Model Code of Conduct in every election for political parties and
candidates so that the decorum of democracy is maintained.
 It publishes the allowed limits of campaign expenditure per candidate to all the
political parties, and also monitors the same.
  The political parties must submit their annual reports to the ECI for getting tax
benefit on contributions.
 It guarantees that all the political parties regularly submit their audited financial
reports.

8. State the writ of prohibition and distinguish it from the writ of certiorari.
•Objective of both: restraining the inferior courts from exceeding their jurisdiction.
•It applies only to judicial or quasi-judicial bodies.
•It does not apply to public authority which acts purely on an executive or administrative
capacity, nor does it apply to a legislative body.
Major differences:
# A writ of prohibition is issued to prevent an inferior court or tribunal to go ahead with the trial
of a case in which it has assumed excess of jurisdiction, whereas a writ of certiorari is issued to
quash the order passed by an inferior court or tribunal in excess of jurisdiction.
#Prohibition is used at the starting stage and Certiorari is used at the later stage.
#Prohibition is only preventive because it prevents court from exceeding its jurisdiction.
But certiorari is preventive and curative both because it not only prevents but quashes the order
of lower courts.

9. Write a note on Advocate General of a State.

 The Advocate General of a State is a Constitutional post and authority appointed as per
Article 165 of the Constitution of India. Authority and functions are specified in article
165 and 177.
 The Governor of each State shall appoint a person who is qualified to be appointed as a
Judge of a High Court to be Advocate General for the State.
 The Advocate General shall hold office during the pleasure of the Governor, and the
remuneration is decided by governor
 He is the Supreme law officer of the state.
DUTIES
 Gives advice to the State upon legal matter
 Performs legal duties assigned by Governor and functions conferred under constitution or
any other law in force.
RIGHTS
Conferred with the right to speak-in and takes part in proceedings of legislative assembly or
legislative councils (in short, considered in par with the ministers ).
CASE LAW:
Joginder Singh Wasu v/s State of Punjab -The Advocate General and his Law officers are
basically engaged to deal with court cases in the High Court by State Government and the
relationship between the Government and Law Officers is that of a client and counsel.
10. What is the role and functions of Speaker of Legislative Assembly?

 The important function of the Speaker is to preside over the sessions of the Legislative
Assembly and to maintain order and discipline within the House.
 The Speaker does not take part in the debate and usually does not vote except to break tie.
 When the Assembly meets, the Speaker calls the House to order, maintains discipline in
the House.
 He sees whether there is necessary quorum.
 He may adjourn or suspend the sitting of the House if necessary quorum is not there, or to
restore discipline.
 He may even suspend or expel members of the House for unruly behaviour.
 Within the House, the Speaker is the master. It is the Speaker who decides whether a bill
is a money bill or not. Money bills are sent to the Upper House with the Speaker’s
certificate that it is a money bill.
 The Speaker’s decision cannot be challenged in a Court of Law.
 `The salary of the Speaker is charged on the Consolidated Fund of the State.

UNIT-3
LONG ANSWERS:

1. Discuss the areas of stress and strain in the distribution of federal financial relations in
the Indian constitution and suggest the ways and means to overcome such difficulties.
https://www.accountingnotes.net/fiscal-federalism/problems-financial-relations-between-the-
centre-and-state/10089 (Check this link)

2. The basic principle of federation enshrined in the Constitution of India is that the
legislative, executive and financial authority is divided between the Centre and State not
by any law passed by the Centre but by the Constitution itself. Discuss the relation
between the Union and the States.
1. Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations
between the Centre and the State.

2. The Parliament can make laws for the whole or any part of the territory of India.
Territory of India includes the states, UTs and any other area for the time being included
in the territory of India. Whereas, the state legislature can make laws for whole or any
part of state.
3. The Parliament can alone make ‘extra territorial legislation’ thus the laws of the
Parliament are applicable to the Indian citizens and their property in any part of the
world.

4. Subject-matter of laws made by Parliament and by the Legislation of States.

5. The Constitution divides legislative authority between the Union and the States in three
lists- the Union List, the State List and the Concurrent List. The Union list consists of 99
items. The Union Parliament has exclusive authority to frame laws on subjects
enumerated in the list. These include foreign affairs, defence, armed forces,
communications, posts and telegraph, foreign trade etc.
6. The State list consists of 61 subjects on which ordinarily the States alone can make laws.
These include public order, police, administration of justice, prison, local governments,
agriculture etc.

7. The Concurrent list comprises of 52 items including criminal and civil procedure,
marriage and divorce, economic and special planning trade unions, electricity,
newspapers, books, education, population control and family planning etc. Both the
Parliament and the State legislatures can make laws on subjects given in the Concurrent
list, but the Centre has a prior and supreme claim to legislate on current subjects. In case
of conflict between the law of the State and Union law on a subject in the Concurrent list,
the law of the Parliament prevails.
8. Case laws -STATE OF BOMBAY V RMDC / WALLACE V INCOME TAX
COMMISONER/ AH WADIA CASE.
Rest of the ques in Pg 720-735

3. Explain in detail how the legislative powers have been distributed between the Centre
and States.
Distribution of Legislative powers:
A Federal system postulates the distribution of powers between the Centre and State. Different
countries all over the world practiced different types of distribution of power. And after
analyzing the shortcomings of all of it, our constitution makers adopted for the Canadian Scheme
opting for a strong centre. However, they added one more to the List- the Concurrent List. The
Government of India Act, 1935 introduced the three fold enumeration, which is Federal,
Provincial and Concurrent.
I. Article 246: Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent
List)
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws
for such State or any part thereof with respect any of the matters enumerated in the List II in the
Seventh Schedule ( in this Constitution referred to as the State List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of
India not included (in a State) notwithstanding that such matter is a matter enumerated in the
State List

1) The Union List consists of 97 subjects and the subjects mentioned are of National
Importance. Eg. Defense, Foreign Affairs etc. (Some entries were added and deleted by
amendments)
2) The State List consists of 66 subjects and the subjects mentioned are of local importance.
Eg. Public order and Police, local Government etc.
3) The Concurrent List consists of 47 subjects. Both the Centre and State can make laws on
these subjects, but in case conflict arises, the Central law will prevail.

II. Article 248: The Residuary powers

Article 248 vests the residuary powers in the Parliament. Entry 97 in the Union List lays
down that Parliament has exclusive powers to make laws with respect to any matter not
mentioned in the State List or the Concurrent List including any tax not mentioned in
either of these Lists.

III. Principle of Interpretation of Lists (Refer Unit-3 short notes 7-Cut short as required)
IV. Parliament’s power to Legislate on State Subjects.
In certain exceptional circumstances the powers of the Union Parliament are extended
over the subjects mentioned in the State List.
[Rest of the answer pg 719,720- till “… greatly modified”]
4. Explain in detail the constitutional provisions relating to Union control over States in
normal times of administration.
5. The contractual liability of the State is the same as that of an individual. Elucidate this
statement with the help of appropriate case laws.
The contractual liability of the state is the same as that of an individual --
1. The contractual liability of the state under Indian constitution is the same as that of an
individual under ordinary law of contracts.
2. The contract not in proper form is not enforceable.
3. Contract entered into by unauthorised person on behalf of government, could be ratified
by the government.
4. Service contracts are not governed by article 299 but fall under statutory rules framed
under article 309.
No personal liability:
5. Under article 299 (2) the president or the governor shall not be personally liable for any
contract or assurance made or executed for the purpose of this constitution/any enactment
relating to government of India.
6. Any person making or executing any contract or assurance on behalf of the president or
the governor is also not personally liable for that.
No personal liability of the officer in the contract not in the proper form:
7. When the contract with the government is not in the form of article 299 (1) the officer
who entered into contract could be held personally liable under section 230 (3) of Indian
contract Act. - CHATURBHUJ v MORESHWAR.
8. The court dropped this view and held in STATE OF UP v MURALI LAL that section
230(3) of the Indian contract Act would not apply to such cases.
BhikrajJaipuria vs Union of India (1962)pg. 737
• If not in the form Art. 299- Not enforceable
Union of India vs A.L.Rallia Ram (1963)pg. 737
• Mere the fact – fails to express – execution
• Inferences –liable
Union of India vs Anglo (Indian) Afghan Agencies (1968)pg 738
• Govt. Declared-in the form Art. 299- Not enforceable
• Doctrine of Promissory Estoppel
MotilalPadampati Sugar Mills vs St. OfU.P (1979)pg 738
Facts:Govtreported in newspaper that UPgovt would grant sales tax exemption for 3 yrs to
new vanaspathi industry but later denied.
Court held:
 Govt. bound by its promise,Equitable Doctrine
• Govt.- Bonafide intension/ fair & Just : requirement of equity
• Balance b/n Public interest & Doctrine of Promissory Estoppel

6. The residuary powers are legislative powers that fall in none of the three lists in the
Constitution of India. These powers are neither under the legislative powers of the State
nor the Union but are under the jurisdiction of the Judiciary. Critically analyse the
residuary powers in the light of the above statement.
Residuary Powers Article 248 vests the residuary powers in the Parliament. The Parliament has
exclusive power to make any law with respect to any matter not enumerated in the Concurrent
List or the State List. It is different from 3 lists, union list, state list, and concurrent list. These powers
are neither under the legislative powers of the State nor the Union. The residuary power of
legislation also includes the power to levy residuary taxes. Predominance of Union List In the
case of conflict between the Union and the State List, it is the Union List which is to prevail. In
case of conflict between the Union and the Concurrent List, it is again the Union List which will
prevail. In case of conflict between the Concurrent List and State List, it is the Concurrent List
that shall prevail. If there is a conflict between the central and the state law on concurrent
subjects, the central law will prevail. But, there is an exception to this provision. If the state law
has been reserved for the consideration of the President and has received his assent, then the state
law prevails in that state. However, still the Parliament is competent to override such a law by
subsequently making a law on the same matter. But the scope of the residuary powers is
restricted. This is because the three lists that is, the Union, State and Concurrent cover all
possible subjects. Then, the court can also decide whether a subject matter falls under the
residuary power or not.
Judiciary (being the interpreter of constitution) has a very important role to play in deciding the
residuary powers. It has been left to the courts to determine finally as to whether a particular
matter falls under the residuary, power or not.
Union of India v H.S. Dhillon
Whether parliament has legislative competence to pass wealth tax act on the assets of persons in
agricultural land?
Court held: in case of a central legislation the proper test was to inquire whether the matterfell in
list 2 (state list) or list 3 (concurrent list). Once it is found that the matter does not fall under list
2, parliament will be competent to legislate on it under its residuary power I entry 97 of list 1. In
such a case, it becomes immaterial whether it falls under entries 1-96 of list or not.

SHORT NOTES:

1. Role of Inter State Councils.

 Art 263 provides for the establishment of this council to bring into effect the
coordination b.w the states. It is appointed by the prez if he thinks that public
interest would be served by its establishment.
 This council is charged with certain duties. They are,
a. Inquiring and advising upon disputes arising between the states
b. Discussing and investigating matters in which some or all of the states of the
union and one or more of states have common interest.
c. Making recommendation on any subject and for the better coordination of the
policy and action with resp to that subject.
 Though the council can deal with legal and non-legal matters but its function is
merely advisory.
 Such a body will be given an opportunity to the states to express their views
freely on common matter and would enable the union to understand the feeling of
the states and inter-gov co-operation will ensure smooth carrying on of
developmental plans.
 These councils have been established for the promotion of co-operation and for
making efforts to solve common problems of inter-state council.

2. What is delegated legislation? What are the factors that contribute to the growth of
delegated legislation?


Delegated or subordinate legislation may be defined as rules of law made under
the authority of an act of parl.
 Although laws are to be made by the legislature, but the legis may by statute
delegate its power to other person or bodies. Such a statute is known as ‘enabling
Act’ and lays down the principles and rules to be given by regulation made by a
minister or other persons.
FACTORS THAT CONTRIBUTE TO THEIR GROWTH:
  Technicality: To understand the technicality of each and every topic, legislature
needs the expert of that particular topic. Therefore, after framing policies by the
parliament on any topic, that topic is given to the government department or any
particular person who knows about the technicalities of that particular topic and is
given the power to lay down the details
 Pressure on parliament: The area, scope, or horizon of state activities are
expanding day by day and it is difficult for the Parliament to make laws on each
and every matter. So, it only frames the broad part of the rule and gives to the
executive or some of its subordinates to fill the full detail following the necessary
rules and regulations.
 Flexibility:Parliamentary amendment is very slow and it involves a tedious
process to make any type of law but by the presence of delegated legislation it can
be made swiftly with the help of the executives.
 Emergency: In the cases of emergency the legislature does not have the skill of
providing urgent solution. So, the delegated legislation is the only way to meet
such situation.
 Unforeseen contingencies: subordinate legislation enables a gov to deal with
problems which could not be foreseen and to act quickly in an emergency when
the ‘enabling act’ was passed

3. Why there is a need to control exercise of delegated legislation? How it can be effectively
controlled?
The parliament does not have that much time to deliberate and debate about every topic.
Therefore, delegated legislation helps in making laws rapidly than the Parliament and the
procedure of the Parliament is also very slow as the bills for every law needs to pass from every
stage.
But there should be control over delegated legislation. Delegated legislation is controlled by the
Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as
it takes account with the statutory committees which make law through bills. The main object of
parliamentary control is to look that there is no abuse or unnecessary use of the powers given to
rulemaking authorities.
There are three kinds of Control given under Delegated Legislation:
 Parliamentary or Legislative Control
 Judicial Control
 Executive or Administrative Control
Parliamentary or Legislative Control
In India “Parliamentary control” is an inherent constitutional function because the executive is
responsible to the legislature at two stages of control.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for the executive
to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines are
given which need to be followed while whether it is mandatory or directory to follow it or not. It
includes three components:
1. Pre-publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.

Judicial Control
The court has to see that the power delegated is within the ambit of the constitution as
prescribed. Judicial review is more effective because court do not recommend but it clearly
strikes down the rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined
under the Constitution of India which clearly indicate that State should not make any law which
abridge the right given in Part iii of the Constitution. It is dependent on two basic grounds:
 It is ultra vires to the Constitution of India, and
 It is ultra vires to the enabling Act.

4. “No person shall be deprived of his property save by authority of law”. Discuss.
Right to Property:
1. Article 300A provides that no person shall be deprived of his property save by authority
of law.
2. This Article was added in the 44th amendment and Articles 19(1)(f) and 31 were deleted.
3. The outcome of the amendment is that the if the right to property is being violated under
Article 300A the person will not be allowed to file a writ jurisdiction under Article 32 in
the Supreme Court but can file a writ petition under Article 226 in the respected High
Court.
4. In the case Jilubai Nanbhai Khachar V State of Gujaratit was held that the right to
property stated under Art 300A is only a constitutional right and not a fundamental right.
5. The government has the right to take the private property of the citizens for public use.
This power is called the Eminent Domain.
 6. The properties may be acquired for government offices, libraries, slum clearance projects,
railways and so on.
7. This power is recognized in all the civilized countries.
8. This Article only imposes certain restrictions on the power of eminent domain.

5. Theory of territorial nexus.

1. According to article 245 the parliament may make laws for the whole or any part of the
country.
2. According to clause 2 of this act the law made by the parliament shall not be deemed to
be invalid on the grounds that it has extrajudicial operations.
3. In the case AH wadia V income tax commissioner the supreme court held that the
question of extra judicial operations can never be questioned in the municipal courts in
case of sovereign legislature.
4. Thus the validity of the legislation cannot be questioned.
5. In the case state of Bombay v RMDC the court held that there existed a sufficient nexus
to enable the state of Bombay to tax the newspaper.

6. Write a note on residuary powers.

1. Article 248 vests the residuary powers in the parliament.
2. It provides that subject to article 246A(special provisions regarding GST) the parliament
has the power to make any law with respect to the matters not pertaining to the state and
the concurrent lists.
3. This also included the taxes not mentioned in these lists.
4. Entry 97 in the union list also states that the parliament has the powers to make laws with
respect to any matter that has not been mentioned in the state and the concurrent list.
5. The Indian constitution is different from that of the US, Australian constitutions.
6. The importance and the power here is given to the state.
7. But the scope of the residuary powers is restricted. This is because the three lists , Union,
State and Concurrent cover all possible subjects.
8. later, the court can also decide whether a subject matter falls under the residuary power or
not. The rationale behind the residual power is to enable the parliament to legislate on
any subject, which has escaped the scrutiny of the house, and the subject which is not
recognizable at present.
9. Therefore, the framers of constitution intended that recourse to residuary powers should
be the last resort, and not the first step.

7. What are the various principles of interpretation of lists?

 The Centre and State have powers assigned for each other separately. They cannot make
laws outside the said boundaries. To determine the power of the State and Center, the SC
has come up with the following principles.

1. Predominance of the Union List:

The opening words of Art.246 (1) “notwithstanding anything in clauses (2) and (3)” and
the opening words of clauses (3) “subject to clauses (1) and (2)” expressly show the
predominance of the Union List over the State and Concurrent List and that of the
Concurrent List over the State List. So, in case of overlapping between the Union and
State List, the Union will prevail, and in case of State and Concurrent List, the
Concurrent List will prevail. Art.246 gives powers to the Parliament to only legislate the
entries given in List-1 and List-3 in case of a conflict between the State and
Parliamentary law and in that case, Parliamentary law will prevail. This does not mean
that the Parliamentary law has a blanket over all entries mentioned in List-2.

2. Each Entry to be Interpreted broadly:

Subject to the overriding predominance of the Union List , entry in the various lists
should be interpreted broadly.
Calcutta Gas Vs. State of WB: The SC held that the ‘widest possible’ and ‘most liberal’
interpretation should be given in each entry. The court should try its best to reconcile the
entries and to bring harmony between them. Only when this is not possible, the non
obstante clause applies and the federal powers prevail.
Another example for this is the caseUOI Vs. Dhillon.

3. Doctrine of Pith and Substance:

 State and Union are supreme in their own spheres.
 If both intersect i.e., the law passed by one encroaches the other, then the court will apply
the doctrine of Pith and Substance to determine whether the respective legislature that
passed the law was competent to do it.
 If the Pith and substance, that is, the object of the legislation or statute comes under the
ambit of the said legislature, then it is said to be intra vires, even though it has
incidentally encroached matters that are not competent under its head.
 Profulla vs. Bank of Khulna:The validity of the Bengal Money Lenders Act was
challenged on the grounds that it passed a law that was related to recovering amounts by
money lenders that included “promissory notes” which is a Central subject. This was held
ultra vires. Later, the Privy Council held that law in respect of money lending and money
lenders come under state subject, and hence this is valid though it has incidentally
trenched the subject of Promissory note that is a Central subject.

4. Doctrine of Colourable legislation:

The Doctrine of Colourable legislation comes into play while the legislation purports to act
within its power but in reality has transgressed those powers. It becomes applicable when the
legislation seeks to do in an indirect manner what it can’t do directly. The question whether the
legislation has kept itself within the jurisdiction assigned or has transgressed is determined by
finding out the nature/character which is nothing but the pith and substance of the legislation.
Here the motive behind it is irrelevant.
The Supreme Court in the case of K.C Gajapti vs State of Orissa while explaining the doctrine
held that “if the constitution of a state distributes the legislative arenas marked out through
precise legislative entries or if there are obstacles at the legislative authority in the shape of
fundamental rights, questions do rise up as to whether or not the legislature in a specific case in
relation to the subject matter of the statute or with respect to the technicality of implementing it,
transgressed the boundaries of the constitutional power or not. Such transgression can be patent,
manifest and direct, however can also be distinguished, protected and oblique and it is the latter
class of cases that the definition of the ‘colourable legislation’ has been applied in certain
judicial pronouncements.”
State of Bihar Vs. kameshwar: There is hardly any instance where a law has been declared by the
court as invalid on the ground of competency of the legislature. The only instance is in the case
where a state law dealing with the abolition of landlord system, provided for payment of
compensation on the basis of income accruing to the landlord by way of rent. Arrears of rent due
to the landlord prior to the date of acquisition were to vest in the state and half of these arrears
were to be given to the landlord as compensation.

8. Write a note on Doctrine of Pith and Substance.

Doctrine of Pith and Substance:

 State and Union are supreme in their own spheres.

 If both intersect i.e., the law passed by one encroaches the other, then the court will apply
the doctrine of Pith and Substance to determine whether the respective legislature that
passed the law was competent to do it.
 If the Pith and substance, that is, the object of the legislation or statute comes under the
ambitof the said legislature, then it is said to be intra vires, even though it has incidentally
encroached matters that are not competent under its head.
 Profulla vs. Bank of Khulna:The validity of the Bengal Money Lenders Act was
challenged on the grounds that it passed a law that was related to recovering amounts by
money lenders that included “promissory notes” which is a Central subject. This was held
ultra vires. Later, the Privy Council held that law in respect of money lending and money
lenders come under state subject, and hence this is valid though it has incidentally
trenched the subject of Promissory note that is a Central subject.
9. Write a note on Doctrine of Colourable Legislation.
1. Doctrine of Colourable legislation:
The Doctrine of Colourablelegislation comes into play while the legislation purports to act
within its power but in reality has transgressed those powers. It becomes applicable when the
legislation seeks to do in an indirect manner what it can’t do directly. The question whether the
legislation has kept itself within the jurisdiction assigned or has transgressed is determined by
finding out the nature/character which is nothing but the pith and substance of the legislation.
Here the motive behind it is irrelevant.
The Supreme Court in the case of K.C Gajapti vs State of Orissa while explaining the doctrine
held that “if the constitution of a state distributes the legislative arenas marked out through
precise legislative entries or if there are obstacles at the legislative authority in the shape of
fundamental rights, questions do rise up as to whether or not the legislature in a specific case in
relation to the subject matter of the statute or with respect to the technicality of implementing it,
transgressed the boundaries of the constitutional power or not. Such transgression can be patent,
manifest and direct, however can also be distinguished, protected and oblique and it is the latter
class of cases that the definition of the ‘colourable legislation’ has been applied in certain
judicial pronouncements.”
State of Bihar Vs. kameshwar: There is hardly any instance where a law has been declared by the
court as invalid on the ground of competency of the legislature. The only instance is in the case
where a state law dealing with the abolition of landlord system, provided for payment of
compensation on the basis of income accruing to the landlord by way of rent. Arrears of rent due
to the landlord prior to the date of acquisition were to vest in the state and half of these arrears
were to be given to the landlord as compensation.
10. When can the Parliament legislate on the State subjects?
The Constitution also empowers the Parliament to legislate on state subjects under the following
extraordinary circumstances:
1. WhenRajya Sabha passes a resolution to that effect
 Under Article 249, if the Rajya Sabha passes a resolution supported by 2/3rd of the
members present and voting that it is necessary or expedient in the nationalinterest that
Parliament should make laws with respect to any matter enumerated within the State List,
then the Parliament becomes competent to make laws on that matter.
 Such a resolution normally lasts for one year at a time. It may be renewed any number of
times, but not exceeding one year at a time.
 These laws of Parliament will, however, cease to have effect on the expiration of the
period of 6 months after resolution has ceased to operate.
2. During a National Emergency:
 Under Article 250, Parliament has the power to make laws with respect to all matters in
the State List while the proclamation of national emergency is in operation.
 Such a law, however, shall cease to have effect on the expiration of 6 months after the
proclamation of emergency has ceased to operate. In both the above mentioned cases, the
state legislature has the power to make laws on the same matter. However, the
parliamentary law will prevail in case of repugnancy between a state and parliamentary
law.
3. When states make a request
 As per Article 252, if the legislature of two or more states passes a resolution to the
effect that it is desirable to have a law passed by the Parliament on any matters in the
State List, then the Parliament can make laws for regulating that matter.
4. To implement 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.
5. During President’s Rule
 Under Article 256, the Parliament is empowered to make laws with respect to all
matters in the State List when the President’s Rule is imposed in the concerned state.
 A law made so by the Parliament continues to be operative even after the President’s
Rule ceases to operate. However, such a law can be altered or repealed or re-enacted
by the state legislature concerned.

11. Write a note on Cooperative Federalism.

Co-operative federalism (the co-ordination between the centre and the states)
The federal government, state government, and local government interact co-operatively and
share their responsibilities in the governance.
1. INTER STATE COUNCIL:
Article 263 provides that the President may by order appoint an Inter-State Council to effect co-
ordination between states if it appears to him that public interest would be best served.
Functions of Inter-State Council
 Inquiring and advising upon disputes which may have emerged between the States:
 Investigating and discussing subjects in which the States of the Union has a common
interest.
 Making suggestions on any such subject, for the better coordination of policy and action
with respect to that subject.
Composition
 Prime Minister acts as the chairman of the council.
 Members of Inter-State Council
 Union Ministers of Cabinet rank in the Union
 Council of Ministers nominated by the Prime Minister.
 Chief Ministers of all states.
 Chief Ministers of Union Territories having a Legislative Assembly
 Administrators of UTs not having a Legislative Assembly.
 Governors of the states being administered under President’s rule.
All decisions on the matter of national importance should be taken after consulting the interstate
council except defence and foreign affairs.
2.Zonal Councils have been introduced in India by the State Re-organisation Act, 1956. These
Zonal Councils were created to promote the mechanism of intergovernmental consultation and
coordination in socio-economic fields.
3.Article 252(1) provides for delegation of powers by two or more states to Parliament so as to
enable it to legislate with respect to a matter in the State List in relation to such states. It simply
means that if it appears to two or more states that any matter in the State List should be regulated
by the Parliament then those states can request the Parliament, and the Parliament can legislate
with respect to the matter in the State List concerning that states.

12. Distinguish between tax and fee.

TAX FEE

No tax can be levied or collected without the This prohibition does not apply
authority of law

Compulsory contribution made by a taxpayer It is a voluntary payment

No direct give-and-take relationship between the The traditional concept that the element of quid pro
taxpayer and the tax-levying authority quo is always a sine qua non for the fee charged.
 A taxpayer cannot demand any special favour A fee is a direct payment by those who receives
from the authority in return for taxes paid by him. some special advantages or the government
guarantees the services who pays fees. Fees are,
therefore, deemed to be the by-products of the
administrative activities of the government.

Fees are mostly imposed to regulate or control Objectives of taxation are many. It has no separate
various types of activities. objective. Taxes are levied in the greater interests
of the country

13. State the restrictions on States’ taxing power.

RESTRICTION ON STATE’S TAXING POWER
• Restrictions on the power of the state to impose tax on the sale or purchase of the goods –
The state has like the union, power to levy tax on supply of goods or services or both other than
newspapers. Article 286 however , imposes the following restrictions on the state’s power to
impose sales tax on goods.
1.) sale or purchase of goods which takes place outside the state: Article 286 (1)(a) prohibits a
state to impose a tax on supply of goods or services or both which takes place outside state .
2.) Sale or purchase of goods in the course of import and export- article (1) (b) prohibits States to
impose tax on the supply of goods or services or both with such supply takes place outside the
state or in the course of import of the goods or services or both into or export of the goods or
services or both out of the territory of India.
14. Write a note on the functions of Finance Commission.
The Commission makes recommendations to the president with regard to:
•The distribution of the proceeds of taxes between the union and the states.
•The principles which should govern the grants-in-aid to be given to the states.
•Any other matter referred to the Commission by the President in the interest of sound finance.
•The recommendations of the commission are generally accepted by the Union Government as
well as by the parliament.
•The measures needed to augment the consolidated fund of the state to supplement the resources
of the municipalities nad panchayats in a state on the basis of the recommendations made by the
finance commission of the state.
15. Write a note on tortious liability of the State.

 Art 300 says that the gov of India can sue or be sued by the name of the union of
India and gov of state can sue or be sued by the name of the state or of the
legislature of the state.
 They can be sued in relation to their affairs in the like cases as the dominion of
India might have been sued if the constitution has not been enacted.
 The position in this respect remains the same as it existed before the
commencement of the consti as long as parl makes any law otherwise.
 Such liability arises only in the case of “non-sovereign functions”.
 In the leading case P. and O. Steam Navigation Co. v. Secretary of State of
India some gov workmen carrying a heavy iron rod were going in the middle of
the road. When the carriage of the plaintiff drove up nearer, the coachmen gave a
warning and slowed its speed. While attempting to get out of the way, the
workmen collapsed and dropped the iron rod. The plaintiff’s horse, on the great
noise resulting from the fall of the iron rod, startled and fell on the iron rod. The
company filed a suit against the secretary of state in council.The S.C held that the
secretary of state for India was liable for the damages caused due to the neg by the
gov servants, because the neg act was not done in exercise of “sovereign power”
UNIT-4
LONG ANSWERS
1. TYPES OF EMERGENCY TO BE DECLARED BY THE PREZ:
One of the chief characteristics of Indian Constitution is the way in which the normal
federal constitution can be adapted to emergency situation.
The constitution provides for 3 types of emergency:
A. National emergency – Due to war, external aggression or armed rebellion (art 352)
B. State emergency – failure of constitutional machinery in states (art 356)
C. Financial emergency – (art 360)

A. NATIONAL EMERGENCY

 Article 352 of the Indian Constitution talks about the national emergency.
National emergency is imposed whereby there is a grave threat to the security of
India or any of its territory due to war, external aggression or armed rebellion.
 Such emergency shall be imposed by the president on the basis of written request
by the council of ministers headed by the Prime Minister. When they are satisfied
that there is an eminent danger thereof.
 Every proclamation is required to be laid before each House of Parliament, it will
cease to operate after one month from the date of its issue unless in the meantime
 it is approved by the parliament, the proclamation may continue for a period of 6
months unless revoked by the president. (352 (4))
 In Minerva Mills Ltd v UOI, it was held that there is no bar to judicial review of
the validity of a proclamation of emergency issued by the president under Art 352
(1).
 For further continuance of emergency, the resolution has to be passed by either
house of parliament by a majority of not less than two-third members of the
houses.
 During the times of such emergency the executive, legislative and financial power
rests with the centre whereas the state legislature is not suspended.
 The union government under Art.250 of the constitution gets the power to
legislate in regards to subjects enumerated in the state list.
 Except Art20 and 21 all the fundamental rights are suspendedA. D. M.
JABALPUR V S. SHUKLA (Habeas corpus case). Under Art.359 the president
may suspend the right to move to the courts for enforcement of fundamental
rights during the time of emergency. (359) CASE LAW: M.M. PATHAK V
UOI [pg 817]
 A proclamation may remain in force in the first instance for 1 month. If such a
proc is approved by Prez shall remain in force for 6 months unless revoked earlier
 National emergency has been imposed thrice in the country- in 1962 at time of
Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of
internal disturbances
.
B. STATE EMERGENCY:
 Article 256 talks about the failure of constitutional machinery in state also known
as the President’s rule. If the president on Governor’s report or otherwise is
satisfied that the situation has arisen that the government can’t be carried in
accordance with the constitutional provisions then, he may issue State emergency.
 President can declare emergency either by the report of Governor or he himself is
satisfied that the situation is such that the emergency has to be imposed. But at
times, President may declare emergency when a report is not received from the
governor. This was done by President Venkataraman in 1991 in the state of Tamil
Nadu even though he didn’t receive a report from the governor.
 After the 42th Amendment of the constitution the state emergency was made
immune from judicial review. But later in the 44th Amendment the legality of
President’s rule could be challenged.
 The proclamation relating to state emergency shall be laid before each House of
Parliament unless both Houses approve it, the emergency shall cease to have
effect after the expiry of a period of two months. Further the duration of
proclamation can be extended to 6 months each time by both Houses of
Parliament passing resolution approving its continuance. Beyond the period of a
 year the proclamation can only be continued if the Election Commission certifies
that it is not possible to hold election in the state or that territory.
 The consequences of state emergency are
 The president assumes all the executive power of the state himself. The state
administration runs by him or any person appointed by him generally the
Governor.
 During such proclamation, the state assembly is either dissolved or
suspended. But the MLA’s do not lose their membership of the Assembly.
 Parliament makes laws regarding the state list. The parliament only passes the
budget for the state.
 The High court of the state functions independently.
 President also proclaims ordinances in the state.

 During the state emergency the Union government has absolute control over the
state except the judiciary.
 If one looks at the past instances of state emergency in the country, three common
grounds emerge that have been invoked under Art.356- breakdown of law and
order, political instability, corruption and maladministration.
 In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held
that the presidential proclamation dissolving state assembly in Bihar under
Art.356 was unconstitutional on extraneous and irrelevant ground. The court said
that the state governor misled the centre in recommending dissolution of state
assembly.
 In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High
court produced different opinion about the imposition of the President’s rule in
Karnataka, while in other states the court held that it was in violation of the
constitution and would have restored the original position. It was held that pres
can only dissolve the S.A after the approval of proclamation by both the houses
and not before.

C. FINANCIAL EMERGENCY:

 The president under Article 360 of the constitution has the power to declare
financial emergency if he is satisfied that the financial stability or the credit of
India or any part of its territory is threatened.
 It has to be laid before both the Houses of Parliament and ceases to operate at the
expiration of two months unless meanwhile approved by the resolution of Houses.
 During the operation of financial emergency, the executive authority of the union
extends to the giving of directions to any state to observe certain specified canons
or financial propriety and such other directions that the President may find
necessary. The directions may include reduction of salaries or allowance of those
serving a state, of all those in connection with the affairs of union including
 judges of high court and Supreme Court. There has been no occasion of financial
emergency in India.

1. Pg. 826 – 828.

2. Pg. 816 – 820.

3. ADMINSTRATIVE TRIBUNALS: (ART 323-A & 323-B)

ADMINISTRATIVE TRIBUNAL FOR SERVICE MATTER – ART 323A

 This chapter was added to the consti by the Constitution (42 nd amendment) Act,
1976. It consists of two articles – Art 323-A & 323-B.
 Article 323A provides the establishment of administrative tribunals by law made
by Parliament for the adjudication of disputes and complaints related to the
recruitment and conditions of service of Government servants under the Central
Government and the State Government.
 It includes the employees of any local or other authority within the territory of
India or under the control of the Government of India or of a corporation owned
or controlled by the Government.
 The establishment of such tribunals must be at the center and state level
separately for each state or for two or more states.
 The law must incorporate the provisions for
1. the jurisdiction, power and authority to be exercised by tribunals;
2. the procedure to be followed by tribunals;
3. the exclusion of the jurisdiction of all other courts except the Supreme Court
of India.
4. The transfer of all cases to the tribunals which were pending before any court;
5. Repeal or amend any order made by the prez under clause (3) of Art 371-D
6. Supplementary or incidental or consequential provisions for the effective
functioning of such tribunal.
UOI v Deep Chand Pandey (Pg. 782)

TRIBUNALS FOR OTHER MATTERS – ART 323B

 Article 323B empowers the Parliament and the State Legislature to establish
tribunals for the adjudication of any dispute or complaint with respect to the
matters specified under clause (2) of Article 323B.
 Some of the matters given under clause (2) are a levy, assessment, collection and
enforcement of any tax; foreign exchange and export; industrial and labor
 disputes; production, procurement, supply and distribution of foodstuffs; rent and
its regulation and control and tenancy issues etc.
 Such a law must define the jurisdiction, powers of such tribunals and lays down
the procedure to be followed.

- Articles 323 A and 323 B provide for the exclusion of the matters mentioned
in these Arts from “all courts” except the jurisdiction of supreme court under
Arts. 32 and 136. These Art deprive the GC of their writ jurisdiction under the
Art 226 in matter specified therein.
- The object of this provision is to remove the hurdles in the implementation of
laws providing for socio economic reforms.

In the landmark case of L. Chandra Kumar v. Union of India, the court reached
various conclusions as to jurisdictional powers of the tribunal constituted under
Articles 323A and 323B. The Supreme Court struck down clause 2(d) of Article
323A and clause 3(d) of Article 323B on the ground that they excluded the
jurisdiction of the High Courts and the Supreme Court under Article 226/227 and
32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would
continue to be the courts of the first instance in their respective areas for which
they are constituted. The litigants are not allowed to approach the High Courts
directly by overlooking the jurisdiction of the concerned tribunal.

The court also held that Sec 28 of the Administrative Tribunal Act, 1985 and the
exclusion of jurisdiction clauses enacted under these Arts will, to the same extent,
be unconstitutional

The courts expressed unhappiness over the functioning of these tribunals and
suggested various measures to be initiated for their effective functioning.

The Malimath Committee, in its report, has pointed out that the tribunals have not
inspired confidence in the public mind and were unable to dispose of cases
speedily resulting in huge backlog of cases.

The Bench 7 judges have now resolved the problem. The court applied the
Doctrine of prospective overruling for saving cases already decided in various
tribunals and those which are still pending in the SC.

The result of this decision is that the tribunals have lost their status but not
jurisdiction. Earlier after losing in a tribunal the aggrieved party could
immediately approach SC for special leave petition under Art 136. Now it will not
 be possible to go to the SC directly, without first moving the HC under Art
226/227.

4. AMENDMENT OF THE CONSTITUTION: (Art 368)

PROCEDURE OF AMENDMENT (Book Pg. 831- 832):

BASIC STRUCTURE:
 There is no mention of the term “Basic Structure” anywhere in the Indian
Constitution.
 In order to remove difficulties created by the SC in Golak Nath’s case, parliament
enacted the Constitution (24th Amendment) Act, 1971. This Act not only restored
the amending power of the parliament but also extended its scope by adding the
words “to amend by way of addition or variation or repeal any provision in
accordance with the procedure laid down in tis Article”. The validity of the
Constitution (24th Amendment) Act, 1971 was challenged in Keshavananda
Bharati’s case. It has been held that every provision of the constitution can be
amended provided, in the result the basic foundation and structure of the
constitution remains the same.
 The basic structure are systematic principles underlying and connecting provisions
of constitution. They are part of constitution even if they are not expressly stated.
The theory of basic structure is based on the concept of constitutional identity
(Nagraj v UOI)
 It was the Kesavananda Bharati case that brought this doctrine into the limelight. It
held that the “basic structure of the Constitution could not be abrogated even by a
constitutional amendment”. The judgement listed some basic structures of the
constitution as:
1. Supremacy of the Constitution
2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom

 Over time, many other features have also been added to this list of basic structural
features. Some of them are:

- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
 - Harmony and balance between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the parliament to amend the Constitution
- Power of the Supreme Court under Articles 32, 136, 142 and 147
- Power of the High Court under Articles 226 and 227
Any law or amendment that violates these principles can be struck down by the
SC on the grounds that they distort the basic structure of the Constitution.
EVOLUTION OF BASIC STRUCTURE: (ANY 5 CASE LAWS)
The concept of the basic structure of the constitution evolved over time. In this section,
we shall discuss this evolution with the help of some landmark judgement related to this
doctrine.
Shankari Prasad v UOI (1951)
- In this case, the SC contended that the Parliament’s power of amending the
Constitution under Article 368 included the power to amend the Fundamental
Rights guaranteed in Part III as well.
Sajjan Singh v State of Rajasthan (1965)
- In this case also, the SC held that the Parliament can amend any part of the
Constitution including the Fundamental Rights.
- It is noteworthy to point out that two dissenting judges, in this case, remarked
whether the fundamental rights of citizens could become a plaything of the
majority party in Parliament.
Golaknathv State of Punjab (1967)
- In this case, the court reversed its earlier stance that the Fundamental Rights can
be amended.
- It said that Fundamental Rights are not amenable to the Parliamentary restriction
as stated in Article 13 and that to amend the Fundamental rights a new Constituent
Assembly would be required.
- Also stated that Article 368 gives the procedure to amend the Constitution but
does not confer on Parliament the power to amend the Constitution. This case
conferred upon Fundamental Rights a ‘transcendental position’.
- The majority judgement called upon the concept of implied limitations on the
power of the Parliament to amend the Constitution. As per this view, the
Constitution gives a place of permanence to the fundamental freedoms of the
citizens.
- In giving to themselves the Constitution, the people had reserved these rights for
themselves.
Kesavananda Bharati v State of Kerala (1973)
 - This was a landmark case in defining the concept of the basic structure doctrine.
- The SC held that although no part of the Constitution, including Fundamental
Rights, was beyond the Parliament’s amending power, the “basic structure of the
Constitution could not be abrogated even by a constitutional amendment.”
- The judgement implied that the parliament can only amend the constitution and
not rewrite it. The power to amend is not a power to destroy.
- This is the basis in Indian law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with the basic structure of the
Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)
- Here, the SC applied the theory of basic structure and struck down Clause(4) of
Article 329-A, which was inserted by the 39th Amendment in 1975 on the
grounds that it was beyond the Parliament’s amending power as it destroyed the
Constitution’s basic features.
- The 39th Amendment Act was passed by the Parliament during the Emergency
Period. This Act placed the election of the President, the Vice President, the Prime
Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
- This was done by the government in order to suppress Indira Gandhi’s
prosecution by the Allahabad High Court for corrupt electoral practices.
 After the decision od SC inKeshavananda Bharati and Indira Nehru Gandhi
case, the Constitution (42nd Amendment) Act, 1976 was passed which inserted
two new clauses, namely clause (4) and (5) in Art. 368.
Minerva Mills v UOI (1980)
- This case again strengthens the Basic Structure doctrine. The judgement struck
down 2 changes made to the Constitution by the 42nd Amendment Act 1976
(inserting clause (4) & (5) to Art. 368), declaring them to be violative of the basic
structure.
- The judgement makes it clear that the Constitution, and not the Parliament is
supreme.
- In this case, the Court added two features to the list of basic structure features.
They were: judicial review and balance between Fundamental Rights and DPSP.
- The judges ruled that a limited amending power itself is a basic feature of the
Constitution.
Waman Rao v UOI (1981)
- The SC again reiterated the Basic Structure doctrine.
- The Waman Rao case held that amendments made to the 9th Schedule until the
Kesavananda judgement are valid, and those passed after that date can be subject
to scrutiny.
 “If amendments help a constitution to survive, they must include changes in the
allegedly basic part of the Constitution”.

5. Pg. 754 – 760.

6. Pg. 832 – 835.

SHORT ANSWERS

1. Pg. 831 – 832.

2. Pg. 809 – 810.

3. Pg. 806.

4. Pg. 780 – 781.

5. Pg. 816 – 817.

6. Pg. 762 – 763.

7. Pg. 759 – 760.

8. Pg. 763 – 765.